Parker Brothers and Co., Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1952

101 N.L.R.B. 872 (N.L.R.B. 1952)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The strike of July 25, 1951, was caused and prolonged by the Respondent's
unfair labor practices.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication in U is volumue.]
PARKER BROTHERS AND COMPANY, INC. and INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS,
AFL, LOCAL No. 968. Case No. 3S-Cd-141. December 9, 1952
Decision and Order
On June 4, 1951, Trial Examiner J. J. Fitzpatrick issued his Inter-
mediate Report in the above-entitled proceeding finding that the Re-
spondent engaged in and was engaging in certain unfair labor prac-
tices in violation of Section 8 (a) (1), (2), and (3) of the Act, and
recommending that it cease and desist therefrom and take certain affir-
mative action, as set forth in the copy of the Intermediate Report at-
tached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices in
violation of Section 8 (a) (2) and (5) of the Act and recommended
that the complaint be dismissed as to such allegations. Thereafter,
the Respondent; International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers, AFL, Local No. 968, the charging party,
herein called the Teamsters; and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs. The General Coun-
sel also filed request for permission to file reply brief, and attached
thereto General Counsel's reply brief.
The General Counsel's request and his reply brief pertained solely
to the question, raised for the first time in the Respondent 's exceptions
and brief, of the General Counsel's failure to serve Shell Workers
Independent Union, herein called the Independent, with notice of
hearing and complaint, and of including it as a party in the proceeding.
The Independent was alleged in the complaint as having been domi-
nated, assisted, and supported by the Respondent, and particularly,
that it was assisted in the form of a contract with the Respondent con-
taining an illegal union-security clause requiring membership in the
Independent as a condition of employment, and requiring that the em-
ployees execute an authorization for the deduction by the Respondent
of membership dues from their wages to be paid over to the
Independent.
101 NLRB No. 147.
PARKER BROTHERS AND COMPANY, INC. 873
On October 22, 1951, the Board issued an Order Remanding Case,
in which it granted the General Counsel's request to file a reply
brief, and on the basis of the Board's own motion remanded the
case to the Trial Examiner to permit the General Counsel properly to
join the Independent as a party, pursuant to Section 102.8 of Board
Rules and Regulations, and to afford the Independent, as a party,
full opportunity to participate in the proceeding. Thereafter, the
General Counsel served upon the Independent copies of the pertinent
formal papers in the proceeding, and on February 5 and 6, 1952, a
further hearing was conducted before Trial Examiner Fitzpatrick.
On June 18, 1952, the Trial Examiner issued his Supplemental
Intermediate Report, which is attached hereto, with respect to the
record made in the further hearing. He found, in substance, that
the procedural defect in the initial failure of the General Counsel
to make the Independent a party was cured by the subsequent action
of the General Counsel in naming and serving the Independent as
a party, and in affording it an opportunity in the further hearing
to cross-examine all the witnesses who testified at the original hear-
ing, to introduce evidence, and to participate fully in the proceeding.
Thereafter, the Respondent and the Independent filed general ex-
ceptions to the Supplemental Intermediate Report and supporting
briefs.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report and the Supplemental Intermediate Report, the
respective exceptions to each of these Reports, the supporting and
reply briefs, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Exam-
iner, with the-following additions and modifications:
1. We are of the opinion that the Independent has properly and
effectively been made a party in this proceeding, satisfying the pro-
visions of Section 102.8 of Board Rules and Regulations,2 and, inter
alia, any requirement in the opinion of the Supreme Court in the
Consolidated Edison case.3 Consequently, we need not consider, as
did the Trial Examiner, whether the General Counsel's initial failure
formally to make the Independent a party constitutes such a pro-
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Houston , Murdock,
and Styles].
1 Section 102.8 of the Board 's Rules (Series 6 ) defining the term "party" is substantially
the same as Section 203.8 of the Rules, which is set forth in full in the Supplemental
Intermediate Report , attached hereto.
9 Consolidated Edison Company of New York, Inc., at al., 305 U. S. 197, 231 , discussed
in detail in Supplemental-Intermediate Report.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cedural defect as would have otherwise precluded the issuance of our
Order herein, in whole or in part.'
2. We agree with the Trial Examiner that the Respondent assisted
and supported the Independent in violation of Section 8 (a) (1) and
(2) of the Act, by engaging in the specific conduct set forth in the
Intermediate Report, particularly in the execution and application
of an illegal union-security contract requiring membership in the In-
dependent as a condition of employment.' The illegality of the con-
tract, we find, stems from the fact that it was executed in the absence
of a union-shop authorization election then required under the pro-
visions of Section 9 (e) of the Act, as was found by the Trial Ex-
aminer, and the additional fact that the employees were obligated
under the contract to pay dues retroactive for the 30-day grace period
after the beginning of their employment, during which period, under
the proviso to Section 8 (a) (3) of the Act, membership as a condition
of employment could not validly be required in a union-security
agreement.
In addition, we find that the Respondent also violated Section 8
(a) (1) and (2) of the Act by coercing the employees with respect to
their execution of a checkoff authorization for the benefit of the
Independent. Thus, as shown in the Intermediate Report, the Re-
spondent enforced its contract with the Independent, which provided
in part :
The Company agrees that each new employee when hired shall
be presented with a printed form of application for membership
in the Union, which shall contain an authorization for deduction
from the employee's pay of the amount of his initiation fee and
monthly fees in the Union which form shall be executed by the
new employee . . . [Emphasis added.]
Therefore, in view of the coercion applied by the Respondent in this
respect, we adopt the holding of the Trial Examiner that the em-
ployees are entitled to the reimbursement of all fees and dues deducted
from their wages since December 27, 1949,11 and paid over to the
Independent.'
4 We reject as without merit the Independent's contention that, insofar as the Section 8
(a) (2) allegations in the case are concerned, the limitation provision in Section 10 (b) of
the Act was tolled only from the time the Independent was made a party, and that because
these alleged unfair labor practices were not proved to have occurred within 6 months
immediately preceding the service on the Independent as a party, these allegations in the
complaint should be dismissed. The limitation clause in Section 10 (b) of the Act expressly
and unambiguously relates only to the Board's power to issue a complaint, and thus limits
the Board in proceeding against "respondents," as distinguished from "parties."
' Julius Resnick, Inc., 86 NLRB 38.
' This date antecedes by not more than 6 months the date of the filing of the original
charge herein, pursuant to the limitation provision of Section 10 (b) of the Act.
' See Federal Stores Division of Spiegel, Inc., 91 NLRB 647. See also N. L. R. B. v.
I. Spiewak i Sons, 179 F. 2d 695 (C. A. 3).
PARKER BROTHERS AND COMPANY, INC. 875
As the General Counsel filed no exceptions to the Intermediate
Report in these respects, we do not pass upon the Trial Examiner's
failure to find, and upon his factual conclusions preliminary thereto,
(a) that the Respondent dominated the Independent in violation of
Section 8 (a) (2) of the Act; and (b) that the Respondent engaged
in conduct, other than that specifically found in the Intermediate
Report,8 which independently constituted interference with the em-
ployees in violation of Section 8 (a) (1) of the Act.
3. We are also in accord with the conclusion of the Trial Examiner
that the Respondent discharged L. W. Miller from his employment
in violation of the Act, and that Miller should therefore be reinstated
and made whole for any loss of pay he suffered as a result thereof.
In our opinion, Miller's discharge is attributable directly to the Inde-
pendent's action after the strike in rejecting Miller as a member of
that organization, and formally notifying the Respondent to this
effect." As already shown, the existing contract between these par-
ties required, albeit without statutory sanction, membership in the
Independent as a condition of employment. The Independent's
notice to the Respondent we view as tantamount to a request for
Miller's discharge. In the circumstances of this case, including the
timing of Miller's discharge following shortly upon the Respondent's
receipt of the Independent's notice, it is reasonable to conclude, as
we do, that the Respondent so interpreted the Independent's notice,
or in any event, undertook to discharge Miller because of such notice
of Miller's rejection by the Independent. We find, therefore, that
the Respondent discriminatorily discharged Miller, thereby encourag-
ing membership in the Independent in violation of Section 8 (a) (3)
of the Act. Moreover, we believe, in any case, that Miller's discharge
by the Respondent was inextricably related to the protected con-
certed activities carried on by Miller during and after his participa-
tion in the strike, whether these activities be regarded as favoring
or opposing the Teamsters or the Independent. Consequently,
whether Miller's discharge is considered as violative of Section 8 (a)
(1) or 8 (a) (3) of the Act, the remedy recommended by the Trial
In affirming the Trial Examiner 's finding that the Respondent violated Section 8 (a)
(1) by urging its employees to abandon the Teamsters and bargain through the Independ-
ent, we view the statements in question as more than mere expressions of opinion by the
Respondent . When considered in context with the Respondent's unlawful acts of assistance
and support of the Independent , these statements must be regarded as further active
manifestations of the Respondent 's intent to aid one of two competing unions, thus amount-
ing to verbal pressure not protected by Section 8 (e) of the Act. Corning Glees Works,
100 NLRB 444.
The Independent 's letter to the Respondent dated June 19, 1950 , reads as follows :
"This is to notify you, the Committee of the Shell Workers Independent union have rejected
Mr. L. W. Miller for Membership in the Organization , upon evidence and proof, of the
Members in that Department , we request that you do not hold any Int fee or dues from
his pay check." ( sic)
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner and ordered herein is required, in our opinion, to effectuate
the policies of the Act. Like the Trial Examiner, we are constrained
to regard the Respondent's many and varied reasons assigned as cause
for Miller's discharge as merely pretexts for its actual discriminatory
purpose.
4. We concur too with the Trial Examiner's finding that the Re-
spondent did not unlawfully refuse to bargain with the Teamsters.
However, we do not adopt his conclusion that a unit which embraces
56 truck drivers at all of the Respondent's plants is necessarily the
appropriate unit for collective bargaining. As fully described in the
Intermediate Report, the Teamsters' representation evidence of 32
authorization cards was confined to a basic group of 36 concrete
mixer and 2 dump truck drivers, under the separate supervision of
McCollum, at the Respondent's Engle Street plant, in Houston,
Texas.7° The Engle Street plant also employs, under Hilty's general
yard supervision, 8 yard employees who devote the majority of their
time to miscellaneous trucking duties. In addition, the Respondent
operates, in Houston, a plant or shipyard located at Greens Bayou,
where 5 winch truck drivers function, under Sykora's supervision, as
part of a major repair crew. A third plant of the Respondent en-
gaged in sand and gravel operations in Columbus, Texas, 95 miles
from Houston, employs 5 employees, under Clark's supervision, who
drive dump trucks essentially in and around those premises. The
total of the enumerated drivers at the 3 plants thus constitutes the
unit found by the Trial Examiner.
On the basis of this record evidence, we do not agree that only a
company-wide unit of all truck drivers is appropriate, but hold that
a unit less comprehensive in scope may also be appropriately How-
ever, with respect to such an over-all unit of 56 drivers. we do agree
with the Trial Examiner that the Teamsters did not represent an
uncoerced majority 12 With respect to any less comprehensive unit
which may be appropriate, we are of the view that the Teamsters,
in making its bargaining request, did not clearly communicate to the
Respondent a sufficiently specific description of the unit for which it
desired, to bargainl3 Thus, the Teamsters' sole written demand of
10 It appears that in the Teamsters' strike of May 4 , 1950 , all of the 28 participants were
from this basic group of 38 drivers.
11 We note that the Respondent 's unit position in the case is, in order of preference, (1)
all employees , (2) all drivers at the Engle Street plant , and (3 ) all drivers at the three
plants.
32 Of the 32 drivers who signed authorization cards, 9 testified in regard to alleged
coercive organizational conduct by the Teamsters , of whom we find at least 5 were coerced
by statements of representatives of the Teamsters to the effect that they would lose their
jobs if they did not join the Teamsters. The required majority of 29 in the unit of 56
drivers was therefore lacking.
13 See The C . L. Bailey Grocery Company , 100 NLRB 94 . Members Houston and Styles,
although dissenting in the Bailey case , deem themselves bound by the principle of law
stated therein , and find that the instant case is governed by that principle insofar as the
refusal to bargain issue is concerned.
PARKER BROTHERS AND COMPANY, INC. 877
the Respondent stated merely that "a majority of your employees
are now members." 14 And in telephone conversations with the Re-
spondent, the Teamsters' unit claim, as found by the Trial Examiner,
was narrowed merely to the category of truck drivers. No further
clarification of the unit was made by the Teamsters, although, as
already noted, it had limited its organization to the 38 mixer and
dump truck drivers under McCollum; and its unit position, as re-
vealed in the trial of the case, was that it desired to represent only
this basic group of 38 McCollum drivers, or alternatively, the entire
group of 46 drivers at the Engle Street plant.15 Accordingly, we
shall dismiss the Section 8 (a) (5) allegation in the complaint.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Parker Brothers and Com-
pany, Inc., Houston, Texas, its officers, agents, successors, and assigns :
1. Cease and desist from :
(a) Recognizing Shell Workers Independent Union as the repre-
sentative of any of its employees for the purpose of dealing with
the Respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment, unless
and until said organization shall have been certified by the National
Labor Relations Board.
(b) Performing or giving effect to any contract with the Shell
Workers Independent Union, or to any modification, extension, sup-
plement, or renewal thereof, unless and until said organization shall
have been certified by the National Labor Relations Board 16
(c) Interfering with, lending support to, or assisting the Shell
Workers Independent Union, or any other labor organization of its
employees.
(d) Discouraging membership in the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers, AFL, Local
No. 968, or encouraging membership in Shell Workers Independent
Union, or any other labor organization of its employees, by discharg-
ing or refusing to reinstate any of its employees, or by discriminating
in any other manner in regard to their hire and tenure of employment
or any term or condition of employment.
14 The Respondent employs a total of about 345 employees.
15 Organizer Pate testified that the Teamsters was not aware that the Respondent had
truck drivers at any place but the Engle Street plant.
16 However, nothing herein shall be construed to require that the Respondent vary or
abandon the terms or conditions of employment established in any current agreement with
the Independent , or any modification , extension, supplement , or renewal thereof, or any
superseding agreement , or to prejudice the assertion by the employees of any rights they
may have thereunder.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Interrogating its employees concerning their membership and
activities on behalf of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers, AFL, Local No. 968, or
any other labor organization; or promising benefits to its employees
or otherwise unduly seeking to influence their selection or repudiation
of, or adherence to, any labor organization.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to form, join, or assist
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers, AFL, Local No. 968, or any other labor organization, to
bargain collectively through representatives of their choosing, and
to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization (as
authorized in Section 8 (a) (3) of the Act) as guaranteed in Section
7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold recognition from Shell Workers
Independent Union as the representative of any of its employees for
the purpose of collective bargaining with respect to grievances, labor
disputes, wages, rights of sharing hours of employment, or other con-
ditions of employment, unless and until said organization shall have
been certified by the National Labor Relations Board.
(b) Reimburse all its employees whose fees and dues in the Inde-
pendent were checked off, for the amounts thereof deducted from their
wages since December 27, 1949.
(c) Offer to L. W. Miller immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole in the
manner described in the section of the Intermediate Report entitled
"The Remedy."
(d) Post at its Engle Street plant and its shipyard in Houston,
Texas, and at its plant in Columbus, Texas, copies of the notice at-
tached hereto marked "Appendix A." 17 Copies of such notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
77 In the event that this Order is enforced by a decree of the United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
PARKER BROTHERS AND COMPANY, INC. 879
Reasonable steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director, in writing, within ten (10)
days from the date of this Order what steps Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED , insofar as the complaint alleges that the
Respondent violated Section 8 (a) (5) of the Act, and that it domi-
nated the Independent in violation of Section 8 (a) (2) of the Act,
and that it engaged in surveillance and acts of interference with the
employees' protected rights under the Act, as to which violations
are not found herein, that the complaint be, and the same is hereby,
dismissed.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL withdraw and withhold all recognition from SHELL
WORKERS INDEPENDENT UNION as the representative of any of
our employees for the purpose of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employ-
ment , or other conditions of employment, unless and until SHELL
WORKERS INDEPENDENT UNION shall have been certified by the
National Labor Relations Board as the bargaining representative.
WE WILL cease performing or giving effect to any contract with
the SHELL WORKERS INDEPENDENT UNION, or to any modification,
extension, supplement, or renewal thereof, unless and until said
organization shall have been certified by the National Labor
Relations Board.
WE WILL NOT interfere with, assist , or support any labor organ-
ization of our employees.
WE WILL reimburse all of our employees whose fees and dues in
the SHELL WORKERS INDEPENDENT UNION have been checked
off since December 27, 1949, for the amounts thus deducted from
their wages.
WE WILL offer to L. W. Miller immediate and full reinstatement
to his former or substantially equivalent position, without prej-
udice to any seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of pay suffered as a
result of the discrimination.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interrogate our employees concerning their mem-
bership and activities on behalf of INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS,
AFL, LOCAL No. 968, or any other labor organization ; or prom-
ise benefits to our employees or otherwise unduly seek to influence
their selection or repudiation of, or adherence to, any labor or-
ganization; or in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS, AFL, LOCAL No. 968, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as provided in Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from be-
coming members Of INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS, AFL, LOCAL No. 968,
or any other labor organization. We will not, except to the extent
that this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the Act, discriminate in regard to the hire or
tenure of employment, or any term or condition of employment
against any employee because of membership in or nonmembership
in any labor organization.
PARKER BROTHERS AND COMPANY, INC.,
Employer.
Dated ---------------- By----------------------------------
This notice must remain posted for sixty (60) consecutive days
from the date hereof, and must not be altered, defaced, or covered
by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon an original charge and an amended charge by the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, AFL, Local
No. 968, herein called the Teamsters, the General Counsel of the National Labor
Relations Board, through the Regional Director for the Sixteenth Region (Fort
Worth, Texas), issued a complaint dated January 19, 1951, against Parker
Brothers and Company, Inc., herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in unfair labor practices affect-
PARKER BROTHERS AND COMPANY, INC. 881
ing commerce within the meaning of Section 8 (a) (1), (2), (3), and (5),
and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. Copies of the charges were served upon
the Respondent promptly after the filing thereof and copies of the complaint
and notice of hearing thereon were duly served upon the Respondent and the
Teamsters.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleges that from on or about December 27, 1949, to the date of the
issuance of the complaint, the Respondent has assisted, dominated, and con-
tributed to the support of and interfered with the administration of the Shell
Workers Independent Union, herein called the Independent, by (1) executing,
observing, and continuing in full force and effect a contract with the Independent
containing an illegal union-security clause, and wherein it required its employees
and/or applicants for employment to execute as a term and condition of em-
ployment applications for membership in the Independent and an authorization
for deductions of dues to be paid the Independent; that pursuant to such au-
thorizations the Respondent has deducted dues from the pay checks of its em-
ployees and paid them to the Independent; (2) on or about April 28, 1930, and
at all times thereafter, the Respondent through C. M. McCollum, supervisor
of its truck drivers at the Engle Street plant, has interfered with, restrained,
and coerced its employees in the exercise of their rights as guaranteed in the
Act; (3) on or about May 1, 1950, and at all times thereafter, Respondent has
refused and continues to refuse to bargain with the Teamsters as the exclusive
representative of all of its employees in an appropriate unit; and (4) on or
about June 28, 1950, discharged L. W. Miller, and has since refused to reinstate
Miller to his former or substantially equivalent position because he joined or
assisted the Teamsters, refused to join or assist the Independent, failed to
become a member of the Independent, or engaged in other concerted activities
for the purpose of collective bargaining or other mutual aid and protection.
The Respondent's answer, as supplemented and amended at the hearing,
admits certain allegations as to the nature of its business and the discharge
and refusal to reinstate Miller, but denies that the Board has jurisdiction, or
that the Respondent dominated the Independent or refused to bargain with
the Teamsters; alleges that Miller was discharged for cause and that at all
times material herein Respondent had a valid contract with the Teamsters
covering the employees involved herein.'
The Respondent's original answer also included a motion "to quash the charge
herein" because (a) the original charge, dated June 27, 1950, "appears to have
been abandoned and superseded" by the charge dated October 20, 1950; (b)
the October 20 charge "purports to be an amended charge" and an amended
charge is not authorized by law; and (c) the October charge alleging that
Miller was unlawfully discharged is not signed by "an aggrieved party." The
motion to quash was denied in its entirety. Also denied was a motion by the
Respondent to dismiss the complaint because (a) the charges are "Insufficient
in law," are vague and indefinite, and are not executed by a person aggrieved ;
(b) some of the acts alleged occurred more than 6 months prior to the filing
of the charges; and (c) the complaint contains no prayer for relief.'
' Other affirmative allegations In the answer will be referred to hereafter.
I In view of this last contention, and at my suggestion, and for the information of the
parties and the convenience of opposing counsel, the General Counsel stated on the record
at the opening of the hearing the remedy that In his judgment should be applied in the
event of a finding against the Respondent and in order to effectuate the purposes of the
Act. This recommendation , modified at the close of the hearing , was reiterated again in
General Counsel 's brief.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The answer also included a motion to dismiss the refusal-to-bargain allega-
tion in the complaint as vague and indefinite, and to dismiss the allegation of
domination of the independent because of insufficiency ; or, in the alternative,
that the General Counsel be required to furnish a bill of particulars concerning
the refusal to bargain and domination. The motion to dismiss was denied as
was also the alternative motion for specificity on the refusal-to-bargain and
domination allegations. As paragraph 8 of the complaint alleges that the Re-
spondent's domination and support of the Independent is "not limited," to the
execution and continuance in effect of the contract with that organization and
the deduction of Independent's dues, the General Counsel, upon my request,
stated on the record that other acts that he would rely upon to support the
8 (a) (2) allegations in the complaint consisted of evidence to substantiate
the 8 (a) (1), (3), and (5) allegations of the complaint.
Pursuant to notice a hearing was held at Houston, Texas, at various dates,
starting February 13 and ending February 24, 1951, before J. J. Fitzpatrick, the
undersigned duly designated Trial Examiner. The General Counsel, the Re-
spondent, and the Union were represented by counsel and participated in the
hearing, were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues. At the opening
of the bearing when the various motions above referred to were being disposed
of, the General Counsel's motion was denied to strike certain affirmative allega-
tions in the answer relevant to the refusal-to-bargain issue.'
At the conclusion of the hearing the parties waived oral argument but were
given time in which to file briefs and/or findings of fact and conclusions of law.
Briefs have since been received from the General Counsel, the Teamsters, and
the Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS of FAOT
I. THE BUSINESS OF THE RESPONDENT
Parker Brothers and Company, Inc., is a Texas corporation with its principal
office and place of business in Houston, Texas. Its largest plant is located near
Engle Street and Navigation Boulevard, and is referred to in the record as the
Engle Street plant. It also operates a shipyard in Greens Bayou in Houston, and
a gravel plant at Columbus, Texas, about 95 miles from Houston. The Re-
spondent is engaged in the manufacture, sale, and transportation of shell; sand,
' The affirmative allegations were • (1) If the Teamsters ever secured any bargaining
rights, said rights were forfeited by the Teamsters (a) calling the Respondent's employees
out on strike in breach of a valid existing contract, containing a no-strike clause and
(b) conducting a secondary boycott in violation of the criminal laws of Texas; (2) that
the Teamsters assembled some of the Respondent's truck drivers in a tavern about April 27.
1950, furnished them with free beer, misrepresented the "binding force" of the Independent
contract because the Independent had not been incorporated, and while many of such
drivers were "intoxicated" and "not acting under their free will," induced them to
authorize the Teamsters to represent them in collective-bargaining proceedings ; (3) that
the Teamsters' bargaining requests were not in good faith because of the existing contract,
and the Teamsters and Houston Building and Construction Council (with which the
Teamsters was affiliated) ; (a) "pre-determined" that a strike should be called at the
Respondent's Engle Street plant, and (b) attempted to force a closed shop on the entire
building and trades industry in the city of Houston by picketing the Respondent and its
customers and conducting a city-wide boycott.
4 Oyster shells dredged from Galveston Bay. The shells are broken into fine cinders and
used in the manufacture of concrete and cement
PARKER BROTHERS AND COMPANY, INC. 883
gravel , cement, and concrete. It is also engaged in the business of building and
repairing ships, boats, dredges, and tugs at its shipyard . During the fiscal year
ending May 31, 1950, it aggregated $6,534,187.47 from the sale of its products and
income from the shipyard. The sales included over $3,400,000 worth of products
sold to the cities of Houston and South Houston , and the counties of Galveston
and Harris , Texas, for the repair and construction of highways and buildings.
It sold sand, shell, gravel, concrete, and rendered towing services to Trinity Port-
land Cement Division of Portland Cement Company to the value of over $600,000,
including 800,000 cubic yards of shell valued at $546,516.04,` which was utilized in
the manufacture of over $2,000,000 barrels of cement . This cement sold for over
$6,000,000, $1,895,400 in value thereof going to sources outside of the State of
Texas. The Respondent sold $36,011 worth of oyster shells to Shell Builder Coin-
pany, which used the shell to manufacture $451,276 worth of poultry and feed
mixes, over half of which mixes were sent across the State line. The Respondent
sold more than $200,000 in value of shell to the Texas Division of the Dow Chem-
ical Company, which shell was used to make lime in the manufacture of certain
types of metals and chemicals sold for over $2,000,000, 95 percent thereof going
outside the State! The record discloses other manufacturing concerns purchas-
ing substantial amounts of shell to be used in the manufacture of products from
10 to 50 percent of which products are sold outside the State of Texas.
During the same fiscal period, the Respondent purchased a total of $2,826,564 37
worth of equipment, material, and merchandise consisting of engine parts,
machinery parts, oil, gasoline, pumps, motors, gas, steel, lumber, electric power,
asphalt, cement, sand, and miscellaneous equipment' It paid over $34,000 to
the Central Light and Power Company of Columbus, Texas, and the Houston
Light and Power of Houston, Texas, for electric power, purchased over $184,000
worth of oil, gasoline, asphalt, and fuel from numerous oil companies, including
Eastern States Petroleum Oil Co. Inc., Gulf Continental Oil Company, Magnolia
Petroleum Company, Sinclair Refining Company, Texas Oil Corporation, and
Humble Oil and Refining Company and purchased equipment and supplies valued
at more than $68,000 from the International Harvester Company, General Elec-
tric Company, Electric Wire and Cable Company, Fairbanks-Morse & Company,
and other large corporations appearing in the record, all of whom are engaged
in interstate commerce.
Although the Respondent contends that the nature of its business is such
that it is not advisable for the Board to take jurisdiction over it, I find, in con-
formity with the recently announced jurisdictional standards of the Board, that
the Respondent is engaged in commerce within the meaning of the Act and that
the Board should take jurisdiction thereof."
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, AFL, Local No. 968, and Shell Workers Independent Union are labor
organizations admitting to membership employees of the Respondent.
' These oyster shells were dredged from Red Fish and Hanna Reefs located from 12 to
15 miles o8 shore In Galveston Bay.
9 The oyster shells provided necessary calcium in the manufacture of the above products,
but did not become a constituent part of the manufactured product.
' Included in the above total of $2,826,564.37 is the sum of $430,123 80 used In securing
material to build and equip a dredge boat, a nonrecurring expense item.
s Stanislaus Implement L Hardware Company, Limited, 91 NLRB 618; Hollow Tree
Lumber Go, 91 NLRB 635; Minimax Stores, 91 NLRB 644; Hallsburton Portland Cement
Company, 91 NLRB 717.
242305-53-57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of ercnts
1. The first Teamsters ' strike ; organization of the Association
In the year 1937, after an organizing campaign, Teamsters' Local 367 struck
Respondent to force recognition of it as the bargaining representative of its
truck drivers! The strike was called off when the Respondent agreed to negoti-
ate. Bargaining resulted in agreement on terms for a contract, but the strike
was resumed after 3 weeks when the Respondent refused to execute a written
contract with the Teamsters, with about half the Respondent's employees par-
ticipating. It lasted several months, and there was bitterness and some violence.
A restraining order was secured by the Respondent, a contempt proceeding fol-
lowed, and the strike was finally broken. Thereafter, no serious effort was
made by Local 367, or any other local of the Teamsters, to organize the Respond-
ent's employees, until 1949, as will hereafter appear
After the strike was broken as above found, an inside union was organized
in 1937 in the Respondent's plants, known as the Independent Workers Benefit
Association of Parker Brothers and Company, herein called the Association.
The Respondent recognized and bargained with the Association as the exclusive
bargaining representative of all its employees until the summer of 1946. During
these years, as provided in the contracts, the Respondent deducted Association
dues from its employee members' pay checks and turned the dues so collected
into the Association's treasury. Largely because two of its officers were super-
visors,10 the legitimacy of the Association as a bargaining agency for the employees
was questioned and the Association voluntarily dissolved about August 13, 1946.
The money it had accumulated in its treasury was donated to a crippled chil-
dren's fund.
Prior to the dissolution of the Association as a bargaining agency, the Sea-
farers International Union, AFL, had been attempting to organize Respondent's
marine employees, and on July 20, 1946, tiled with the Board a petition con-
cerning their representation.
2. Organization of the Independent ; its contractual relations with the Respondent
Before the dissolution of the Association as above found and about the
time the Seafarers filed its petition for representation, a movement was started
to organize a new union among the Respondent's employees in its various
plants. Carl L. Yaws, leaderman in the repair crew at the Engle Street plant,
assisted by George W. Williams and R. L. Bierman, welder and electrician
respectively at the shipyard, sparked the movement. These 3, acting as a sort
of informal committee, but after consultation with other employees and ap-
parently with their approval, retained an attorney who prepared formal bylaws
for the Shell Workers Independent Union. Yaws, Bierman, and Williams then
circulated petitions among the employees adopting the bylaws and authorizing
the Independent to act as their bargaining agent. By August 12 they had
secured 64 signatures from the various plants, including several captains and
mates of vessels owned and operated by the Respondent. Neither Supervisors
Brown nor McCollum, officers in the Association as above found, took any part
in this campaign nor did they become members of the Independent. At an
° In 1937, Local 367 was the only Teamsters' local in Aariis County, Texas, which
includes the Houston area
10 C H Brown, Respondent's port engineer, was president, and C H. McCollum, in
charge of the Respondent's truck drivers and hereafter referred to, was secretary of the
Association.
PARKER BROTHERS AND COMPANY, INC. 885
organizational meeting on August 12 , 1946, Yaws was elected president, Wil-
liams, vice president , and Bierman , secretary of the Independent . These officers
then continued their solicitation and by September considerably more than a
majority of all the Respondent's employees had signed applications and dues-
deduction authorizations.
In October of that year , when the Seafarers ' petition for representation came
on for hearing (Case No. 16-11-1893), the Independent intervened as did also
the National Maritime Union (CIO). At that hearing the Independent con-
tended that the alleged unit of maritime employees was inappropriate, and
asked for a unit consisting of all the employees of the Respondent in all of
its branches. On the second day of the hearing the Seafarers asked leave
to withdraw its petition and on November 6 the request was formally granted
by the Regional Director."
After the formal withdrawal of the Seafarers' petition as above set forth,
the Respondent recognized the Independent and began negitiating a contract
with that organization as exclusive representative of all its employees in
all of its plants, exclusive of professional and supervisory groups. On March
1, 1947, a 1-year contract containing an automatic renewal clause was executed.
The contract required old employees who were Independent members to con-
tinue their membership and required all new employees to join that union and
sign a dues-deduction authorization. Although the contract as above found
was not executed until March 1, 1947, the record discloses that the Respondent
deducted monthly dues from the pay of its member employees beginning in
November or December 1946, and thereafter. In January 1949, and again in
January 1950, contracts were negotiated and executed with the Independent.
Both contracts carried forward the union-security provisions of the 1947 contract
and Respondent continued to enforce union-security provisions contained
therein insofar as requiring dues authorizations and applications for member-
ship by new employees until at least the fall of 1950.
3. Organization of the Teamsters' local
Meanwhile, beginning about August 1949, John H. Pate, business agent for
Local 968 of the Teamsters, started a campaign to organize the Respondent's
truck drivers. About 10 applications were secured that fall and by May 1, 1950,
the Teamsters had initiated as members 24 of the 37 or 38 truck drivers in the
Respondent's Engle Street plant and had applications signed by several more
drivers. On that date it sent a written request to the Respondent to recognize
the Teamsters as the bargaining agent, and negotiate a contract. The request
was refused. On the morning of May 4, after a strike vote the previous evening,
and notwithstanding a provision in the current contract with the Independent
prohibiting "strikes, slowdowns, or stoppages of any kind," all but 10 of the
truck drivers at Engle Street failed to report for work. The strike thus in-
augurated by the Teamsters and supported by the Houston Building and Con-
struction Council, above referred to, lasted for several months. Pickets were
established at the entrance to the Engle Street plant and there is evidence
that other pickets followed Respondent's trucks for a while at least to its
various customers in the Houston area in order to picket such trucks at their
destination. On May 10, Respondent notified all striking drivers to return to
work by May 15, or their jobs would be filled. On May 11, 2 strikers including
L. W. Miller, returned to work. Other strikers followed at intervals during
11 So far as the record discloses , neither the Seafarers nor the National Maritime onion
(who favored a unit similar to that asked by the Seafarers ) have taken any active interest
in organizing Respondent's maritime employees since the withdrawal of the above petition.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the summer , and by early September all the strikers had returned to work
except 1 or 2 who secured other employment , and the picketing ceased. All
the strikers who returned to work, except Miller , signed applications to rejoin
the Independent and were accepted into that organization . Miller applied for
membership but was rejected by the Independent , of which fact the Respondent
had knowledge. Miller was discharged on June 28 , 1950, and has not since
been reinstated.
About the middle of December 1950, Respondent and the Independent began
negotiating the terms of a new contract . The contract as finally agreed to was
executed February 1, 1951 , effective for 2 years from December 1 , 1950. The
union-shop provisions of the previous contract were not included.
B. Domination , support , and interference
As previously found , the Independent was organized in 1946 at a time when
Seafarers were claiming representation of part of the Respondent 's employees,
and the previously recognized Association ( organized and officered by super-
visors.) was voluntarily dissolving . After its organization dues of employee
members were deducted from their wages by management , even before the con-
tract providing for such deductions was executed . The union-security provisions
in the 1950 contract and also in the 1949 contract , are as follows :
All employees of the Company in the collective bargaining unit above de-
fined who are members of the Union in good standing at the date of the
execution of this agreement shall continue to remain members of the Union
in good standing for the duration of this agreement as a term, and con-
dition of their employment . All new employees who shall be hired after the
execution of this agreement shall immediately upon their hiring, make ap-
plication for membership in the Union , and upon the completion of their
probation period, herein provided for shall become members of the Union,
if accepted by vote of the Union membership , and shall pay to the Union
their initiation fee and one month's back dues covering their probation
period. Such new employees shall thereafter be required to remain mem-
bers of the Union in good standing for the duration of this agreement as a
term and condition of their employment . The Company agrees that each
new employee when hired shall be presented with a printed form of appli-
cation for membership in the Union , which shall contain an authorization
for deduction from the employee 's pay of the amount of his initiation fee
and monthly dues in the Union which form shall be executed by the new
employee in triplicate , one copy thereof to be retained by the Company,
and one copy thereof to be delivered by the Company to the Union, and one
copy to be retained in application book and returned to the Union when
completely filled. All employees of the Company in the collective bargain-
ing unit above defined, who have not yet completed the probation period
hereinafter defined, shall immediately upon the execution of this agree-
ment make application for membership in the Union , by executing said ap-
plication and initiation fees and dues deduction authorization form in
triplicate, and upon completion of their probation period , if continued in
the employ of the Company , shall join the Union , if accepted for member-
ship by vote of the Union , and shall thereafter be required to remain mem-
bers of the Union in good standing for the duration of this agreement as a
term and condition of their employment.
It is the intent hereof that all employees of the Company in the collective
bargaining unit above defined, who have heretofore , or who shall hereafter
PARKER BROTHERS AND COMPANY, INC. 887
complete their probationary period shall be required to become and to
remain members of the Union in good standing for the duration of this
agreement as a term and condition of employment. Employees who fail to
become members of the Union, or who after becoming members, fail to main-
tain their membership in the Union in good standing, shall after ten (10)
days' written notice by the Union to the Company, with copy thereof to
the employee affected, during which ten (10) days the employee may have
an opportunity to become a member of the Union in good standing, or to
restore his membership in good standing, be discharged by the Company at
the request of the Union.
The Company agrees that in the reinstatement or reemployment of
employees who have been heretofore or are hereafter laid off by the Com-
pany due to no fault of their own, preference shall be given to qualified
applicants who at the time of their layoff were members of the Union in
good standing.
To implement the above provisions, the Respondent provided new employees
with Independent application and dues-deduction forms. There is ample cred-
ible testimony that Respondent carried out the union-security provisions at least
until September 1950.12 While the union-security provisions above set forth were
legal at the time of the execution of the 1947 contract, such provisions became
illegal in contracts executed after the effective date of the amendment to the
Act (August 22, 1947), unless a union-shop election was held by the employees
in conformity with a proviso in Section 8 (a) (3) and the terms of Section
9 (e) of the amended Act. No such elections have been held in the Respondent's
plants.
1. Supervisor McCollum's activities
The complaint also alleges , and the Respondent denies, that the activities of
Supervisor McCollum not only constituted interference and restraint of the
employees in the exercise of their rights guaranteed in Section 7 of the Act,
but also constituted assistance and support of the Independent.
About April 27, 1950, according to the credible testimony of McCollum, who
had been secretary of the now defunct Association and was in charge of the
truck drivers at the Engle Street plant, President Yaws and R. M. (Tony)
Powledge, president and truck drivers' steward, respectively, for the Independ-
ent, told him that the truck drivers were "badly dissatisfied." At that time
McCollum questioned some of the drivers about their complaints and learned
that they were being organized by the Teamsters. A driver, F. J. Schoenwitz,
testified credibly and without denial that about a week before May 4 (when the
strike started), McCollum asked him if he was "going out and join the [Team-
sters] with the rest of the boys." On Friday, April 28, at McCollum' s sugges-
tion , Steward Powledge called all the drivers to a meeting after work that
evening in the plant. According to McCollum, he, at this meeting, told the
drivers he understood that they had joined the Teamsters and that he then
tried to get them to agree to let him and an Independent committee present
their grievances to Captain W. R. (Bill) Parker, the Respondent's president
and active head, but that the suggestion was rejected. Driver E. W. Dickey
testified that at the time McCollum criticized the drivers for joining the Team-
sters without first coming to him or to the Independent, and stated that he had
12 This is particularly true as to the provisions requiring the execution of dues-deduction
authorizations and securing signatures from new applicants to Independent application
forms.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had experience with the Teamsters and the drivers would "have a better oppor-
tunity" with the Independent ; that when the drivers voted adversely on
McCollum's suggestion that they take their grievances to Captain Parker,
McCollum told them they were not "doing the right thing." This testimony of
Dickey , most of which was corroborated by another driver , C. J. Mize, is credited.
The vote against taking the grievances of the drivers to Parker was close at
the above meeting, 15 for and 16 against . On the following day, Saturday,
George H. Sager and 2 other drivers , after talking to McCollum , agreed to confer
with Captain Parker about the complaints , but late that afternoon when they,
accompanied by McCollum , arrived at the captain 's office, the latter had left for
the day. On Monday , May 1 , after receiving from McCollum a detailed written
report of the April 28 meeting with the drivers, above described, Captain Parker
conferred with Sager and 2 other drivers including L. W. Miller, in company
with a committee from the Independent including Steward Powledge . At this
Monday meeting ( which McCollum did not attend ), Captain Parker offered to
adjust satisfactorily all the drivers' complaints but Sager told him that the
drivers intended to remain in the Teamsters ' local and that he had been elected
steward of the organization.
On May 3 the Independent received a communication on Teamsters ' stationery
dated April 30, signed by 24 drivers , revoking any previous authorization to the
Independent and announcing that their authorized representative for bargain-
ing was the Teamsters . This notice was signed by the 24 drivers on Sunday,
April 30, at the union hall. There is some question in the record as to whether
any typewritten statement appeared on the paper at the time it was signed but
there is ample credible evidence , and I find, that the signatures of the 24 were
placed on the paper voluntarily just prior to their initiation into the Union and
the signers understood that the purpose of the signature was to indicate that
they wanted the Teamsters as their exclusive bargaining agent
Two or three days after the strike started on May 4, McCollum talked over
the telephone to striking driver L . W. Miller. There is dispute between Miller
and McCollum as to who initiated this call , Miller testifying that McCollum
called him and McCollum testifying that the reverse was true. The evidence
indicates that at the time Miller needed money and secured financial help from
McCollum . Therefore I find, as is substantially testified to by Joe Cortimiglia
who was with Miller , that Miller phoned McCollum . I further find from testi-
mony of Miller , Cortimiglia, as well as that of McCollum, that as a result of
this telephone talk, in which Miller apparently indicated a willingness to return
to work, McCollum prepared and gave to Miller a number of blank forms reading
as follows :
I hereby withdraw any authority which I may have given to the Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers,
AFL, to represent me for the purpose of bargaining collectively with the
employer concerning wages and conditions of employment,
and requested that Miller secure as many strikers ' signatures thereon as pos-
sible; that after a day or two Miller's efforts in this respect came to the attention
of the Teamsters ' Business Agent Pate in charge of the strike ; that an argument
developed and Miller offered to withdraw from the Teamsters but the offer was
rejected ; that on or about May 10 , Miller ( as well as the other strikers ) having
received a letter from the Respondent reading :
Our records show that you have not reported for duty since the close of
business May 3. We regret that unless you immediately resume your work
as a truck driver , or furnish some adequate reason for not doing so, you will
be permanently dropped from the roll as an employee of the company.
PARKER BROTHERS AND COMPANY, INC. 889
You are therefore advised that unless you report for duty not later than
Monday morning, May 15, at 7: 30 a. m. someone else will be permanently
assigned to your job.
Miller again phoned McCollum and said he and Cortimiglia were ready to re-
turn to work, whereupon McCollum, after securing their Teamsters' dues books
and their signatures to withdrawal forms from that organization, put them to
work. The evidence shows without dispute, and I find, that in the various
telephone and personal interviews between Miller and McCollum, as an in-
ducement for Miller to abandon the strike and return to work without delay,
McCollum promised him full pay for the week that he had lost during the strike.
Conclusions as to Domination, Support, and Interference
find that by renewing the previously quoted union-security provisions in
the 1950 contract negotiated after the amendment to the Act, the Respondent
restrained its employees in the exercise of rights guaranteed in Section 7 of
the Act" Thereby the Respondent lent its support to the Independent in re-
cruiting and maintaining that union's membership. Although the record fails
to disclose any request by the Independent that any employee be discharged for
failure to become a member, or maintain his membership in good standing, the
Respondent kept its part of the bargain not only by deducting union dues but
also by supplying new employees with Independent application and dues-deduc-
tions forms for their signatures. Even if none of the union-security provisions
had been enforced, their mere existence in the contract acted as a restraint
upon employees and was evidence that the Independent and the Respondent were
in accord in denying employment to any who refused to join the union. Fur-
thermore, the union-security provisions agreed to do not satisfy the conditions in
the proviso to Section 8 (a) (3) of the Act."
When the Respondent in the spring of 1950 heard that the truck drivers were
being organized, Supervisor McCollum asked driver Schoenwitz if he was going
to join the Teamsters. The last of April McCollum called a meeting of the
drivers on company property and sought to persuade them from using the
Teamsters as their bargaining agent and use the Independent to deal with the
Respondent. When this effort failed and the drivers struck, McCollum pre-
pared blank forms rescinding the bargaining authorization to the Teamsters and
gave the forms to striking driver Miller with instructions to obtain the signa-
tures of other strikers thereon. He furnished Miller with a list of the other
strikers and their home addresses, and promised that Miller would be paid for
the time lost in the strike. Following this, on May 10, all the strikers were in-
formed in writing by the Respondent that their jobs would be filled by others
if they did not return to work by May 15. On May U, drivers Miller and
Cortimiglia offered to resume their employment but McCollum first required
that they surrender their Teamsters' books and sign withdrawals from that
organization before returning them to their jobs.
I therefore find that by (a) questioning its driver employees as to their union
affiliations and urging them to abandon the Teamsters and bargain through
the Independent and (b) furnishing Miller Teamsters' repudiation forms for
strikers to sign and promising to pay Miller for time lost during the strike,
and by requiring Miller and Cortimiglia to repudiate the Teamsters, the Re-
spondent further interfered with the rights of its employees guaranteed by the
Act, and assisted and supported the Independent.
13 Because of the limitations in Section 10 (b) of the Act no finding of any unfair labor
practice is based on events prior to December 27, 1949.
'4 Julius Resnick, Inc., 86, NLRB 38.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also contended by the General Counsel and the Union that the Respond-
ent dominated the administration of the Independent in violation of Section 8
(a) (2) of the Act because Yaws, one of the organizers of the Independent and
its president from 1946 up to the time of the hearing, was a supervisor, as was
also D. A. Melgran, tugboat captain who participated in negotiating the 1950
contract with Respondent.
Captain Parker described Yaws as "assistant" to Superintendent Hilty of the
Engle Street plant. Respondent's records classify him as a foreman and some-
times as a leaderman. Yaws described his duties as a general utility man, more
or less directing common labor in the yard of that plant as instructed by Superin-
tendent Hilty. Hilty corroborated Yaws in this respect. The preponderance of
the evidence shows that Yaws works with his hands better than 75 percent of the
time. He is paid by the hour the same as other ordinary employees and receives
$1.35 for each hour's work, which is considerably less than the rate paid to some
craftsmen 1' There is no credible testimony that he had authority to hire or fire,
or to effectively recommend such action."
At the time of the hearing, Melgran was a captain of one of the Respondent's
tugs, but when he was acting on the negotiating committee for the Independent
he was a tugboat mate. A mate is under the captain, but performs the same
duties as the captain during the latter's absence. It is of course traditional that
a ship captain normally has full control over his vessel and the employees thereon.
However, in the restricted area where the Respondent's tugs usually operated (the
ship channel from Houston to Galveston Bay), the captains have very little super-
visory authority. True, while the tug is in motion, its captain is necessarily in
command , and in the event of an emergency has authority to take on a deck hand
to complete the trip, but even in this respect, it is the Respondent's practice to
require him first to secure permission to do so from Marine Superintendent C. T.
Parker, who has full charge of all tugboats." Aside from such temporary
emergencies there is no credible evidence that Respondent's tugboat captains have
any authority to hire or fire.1° While it is true that the captain can recommend
promotions for deck hands, the decision thereon is made by the marine superin-
tendent after full investigation on his part.
I find that neither Yaws nor Melgran have duties that put them in the position
of acting directly or indirectly for management in their official capacity as officers
or members of a committee for the Independent "
C. The discharge of L. W. Miller
Miller first came to work for the Respondent as a truck driver on June 3, 1948.
He continued at such work until his discharge as will hereafter appear on June
28, 1950. As previously found, he had been a member of the Independent Union
"As president of the Independent, Yaws received $75 a month . The General Counsel
contends that this amount , added to his hourly rate, adds up to a total commensurate
with that received by supervisors, the inference being that Yaws , although he was an
officer and on the bargaining committee with the Independent , did not press for higher
pay for himself because of the financial benefits he was receiving from the union. In my
judgment the evidence will not support any such inference.
11 Common laborer Becera 's testimony denied by Yaws and Superintendent Hilty, that
when he returned to work for the Respondent in 1949, he was hired by Yaws is not
credited I find that he was rehired by Hilty.
11 Each tugboat is equipped with a two-way radio which has direct connections with the
marine superintendent.
Is Deck band Norris Lawson testified that tugboat Captain Ralley discharged an oiler
from the tugboat Sharon in 1949. Marine Superintendent Parker testified that the oiler
in question (J A. Lawson) was transferred from the Sharon to another tugboat at his
own request . (Neither Captain Railey nor J. A. Lawson testified . I credit C. T. Parker.
29 Somerville Buick, Inc., 93 NLRB 1603.
PARKER BROTHERS AND COMPANY, INC. 891
but joined the Teamsters and went on strike on May 4, 1950. Within a few days
thereafter he approached his supervisor, McCollum, about returning to work. At
that time McCollum prepared and gave to Miller forms repudiating the Teamsters
as bargaining representative and requested him to secure as many of the striking
drivers' signatures thereto as he could. When this maneuver was discovered by
the Teamsters, Miller reported for work. Before he was put to work about May
11, McCollum required him to sign one of the forms repudiating the Teamsters.
A short time after he returned to work he applied to the Independent to renew
his membership in that organization (from which he had withdrawn before going
on strike). The Independent turned down his application and on June 19 wrote
to the Respondent as follows :
This is to notify you, the Committee of the Shell Workers Independent
Union have rejected Mr. L. W. Miller for Membership in the Organization
upon evidence and proof, of the Members in that Department, we request that
you do not hold Int fee or dues from his pay check.
On June 28, 1950, without any previous notice, Miller was summarily dis-
charged. When he inquired the reason Assistant Foreman White said it was
on instructions from Captain Parker. Miller asked if it was on account of his
work and White replied that it was not, that he had always been a "good
man." 20 The current contract with the Independent provided that any employee
with two or more years "continuous service" was entitled to 2 weeks' vacation
with pay, even if his service was terminated "for any reason" ; so Miller went
to Captain Parker about the vacation pay. Parker denied that there was any
such provision in the contract. Miller then appealed to Respondent's Attorney
Bracewell. The latter agreed to talk to Captain Parker about it and to let
Miller know the outcome. Bracewell telephoned to Captain Parker but the
latter refused to pay Miller the vacation money. Bracewell testified that he
got the "impression" from Captain Parker that Miller's conduct and language
had antagonized the employees and that Parker felt if he made the payment
he would have trouble with the men ; and that he told Miller he could not get
the money for him but that "when this thing cleared up," Miller would probably
receive it. Miller never received the vacation pay."
It is alleged in the complaint that Miller was discharged because he joined
or assisted the Teamsters and refused to join or assist or failed to become a
member of the Independent, or engaged in other concerted activities for pur-
poses of collective bargaining or other mutual aid and protection. The Respond-
ent contends that Miller was discharged for cause.
Captain Parker testified that Miller was negligent and incompetent as a
truck driver. His testimony in this respect can be summarized as follows: (1)
In 1948, Miller "tore up a truck." Parker talked about this incident to McCollum,
foreman of the truck drivers at the Engle Street plant and heretofore referred
to, and "Mac thought he could work it out." In 1950, after the strike started,
Parker was notified that he was going to be sued "for thirty-five thousand
dollars." (2) In 1949, a year before the strike, Miller collided with a Burlington-
Rock Island train and had to be taken to a hospital. (No further particulars
of either of the above incidents appear in the record.) (3) After he abandoned
the strike and returned to work Miller, hauling concrete on the "King" job
backed his truck on a concrete form, destroying it, and then cussed the Negro
20 This credited testimony of Miller's was not denied. White testified at the hearing,
but was not questioned about the above talk.
21 The failure to pay Miller vacation pay is not alleged, nor was it litigated, as an unfair
labor practice ; therefore no finding is made whether Miller was actually entitled to the
money under the circumstances.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee who was directing the backing. Captain Parker placated the foreman
on the job but said nothing to Miller about the matter because he was short of
drivers and Miller seemed to be "excitable." After this third incident, Parker
caught Miller speeding in a truck, heard he had refused to deliver an order
given him by the shipping clerk, and had a fist fight with some unidentified
individual.
The record shows without dispute-in fact, the Respondent admits-that at
no time during his employment either before or after the May 1950 strike, was
Miller ever criticized by management because of negligent driving, or warned
that if he did not improve his work, he would be discharged. During most
of his employment with the Respondent, Miller was entrusted with one of the
better and more expensive mixer trucks. The same type of truck was returned
to him after he quit the strike and returned to work. In view of these circum-
stances, the incidents prior to the strike are rejected as a contributing cause
of Miller's release from employment as his negligence therein, if any, was
obviously later forgiven.
Coming to the breaking of a concrete form and the speeding after Miller had
returned to work, I find these incidents, assuming their accuracy, too trivial to
explain an outright discharge, especially where no criticism was ever made
to Miller about either happening.22 Furthermore, at the time of his release, he
was informed that the discharge was not due to his work. McCollum, head of
the truck drivers at the Engle Street plant, was not asked about Miller's dis-
charge, and apparently he did not know the reason therefor 23
I therefore reject the Respondent's contention that Miller was released be-
cause of his inadequacy or negligence as a driver .21
The record shows, and I find, that Respondent was aware of the fact that
Miller was not liked by other employees, particularly after he returned to
work in May 1950. At that time, he was rejected by the Independent as a mem-
ber, although other employees who abandoned the strike and returned to work
were accepted as members, because he worked against both unions and was a
disturbing influence. Miller admittedly bragged to employees after his return
that he would get paid by the Respondent for the period he was on strike and
would also collect vacation pay.
It is understandable why Miller's duplicity-and his talk about being, in
effect, rewarded for it-should develop resentment among other employees,
particularly those who had continued working throughout the strike. But that
resentment of the employees would apply not only to Miller, but to some extent
also to, the Respondent who was a party to the deal. The Respondent knew
this and realized, as Captain Parker told Attorney Bracewell, that Miller was
a "source of trouble." Influenced probably also by the provision in the existing
contract requiring membership in the Independent as a condition of continuing
employment and knowing that he had been rejected as a member of that organ-
2' Captain Parker testified that Miller was not told of these Incidents because the
Respondent was short of experienced drivers due to the strike. That reason still obtained
on June 28, at the time of the discharge, although to a lesser extent as some of the drivers
had meanwhile returned to work. Nor did Captain Parker refer to either Incident when
he instructed White to discharge Miller.
23 Captain Parker testified that he gave the discharge instructions to Assistant Foreman
White rather than McCollum,, who normally would have received them, because be feared
McCollum would disagree with his decision to fire Miller
24I have not overlooked the testimony of Captain Parker and two drivers that some
of the Respondent's customers did not like Miller. However, the testimony in this respect
was very general and no showing was made that animosity towards Miller in any way
jeopardized Respondent's business. Also apparently, If this condition existed, it was true
before as well as after the strike.
PARKER BROTHERS AND COMPANY, INC. 893
Nation, the Respondent got rid of Miller. Under the circumstances, the discharge
was brought about because of miller's union activities, or unsuccessful anti-
union activities, whichever is preferred. In any event, in my opinion, it con-
stituted either encouragement or discouragement of membership in a labor
organization in violation of Section 8 (a) (3) of the Act. Moreover, even if the
discharge should not be regarded as a violation of Section 8 (a) (3), it clearly
amounted to interference in the protected right of Miller as an employee to
engage in collective activity or not to do so, in violation of Section 8 (a) (1) of
the Act. It will therefore be recommended that in any event and because of
the discriminatory interference, Miller be offered reinstatement and made
whole 2' as set forth in the remedy hereafter.
D. The alleged refusal to bargain
1. The appropriate unit
As of May 1, 1950, Respondent's total employees numbered about 345 in all
its plants and on its boats. Included in this total group were 44 truck drivers,
38 of whom operate out of the Engle Street plant. In addition there were 12
employees not classified as truck drivers but who operated trucks a major portion
of their time.
As found above, the Teamsters on May 1, 1950, sent a written demand to the
Respondent requesting recognition and bargaining negotiations. This letter,
addressed to Captain Parker, reads as follows :
This is to notify you that a majority of your employees are now members
of General Drivers, Warehousemen & Helpers, Local Union 968.
We desire to meet with you as soon as possible to prove representation
for the purpose of negotiating for wages and working conditions for these
men.
A day or two prior to writing the above letter, Randy Miller, secretary-
treasurer of the Teamsters and who signed the above letter, wrote Charles E.
Jones, secretary of the Houston Building and Construction Council (of which
the Teamsters was a member) asserting that the Teamsters represented a
majority of the Respondent's "employees."
On May 1, Jones also wrote Captain Parker, stating that "a majority of the
Teamsters working for your company" had joined the Teamsters and requested
a meeting to negotiate a contract. In telephone talks between May 1 and
May 3 both Randy Miller and Jones made it clear to Parker that the Teamsters
were interested in negotiating a contract covering only the Respondent's truck
drivers. Although the complaint seems to allege a unit of truck drivers at
the Respondent's Engle Street plant; ° the General Counsel in his brief states
that a unit of truck drivers at the Engle Street plant, or of all of the Respond-
ent's truck drivers, excluding office clerical, professional, and supervisory em-
ployees is satisfactory. In May 1950, and several months prior thereto, the
Teamsters was endeavoring to organize employees of the Respondent who were
eligible to join that organization, i. e., all the Respondent's truck drivers,
according to the credited and undisputed testimony of Teamsters' Business
Agent Pate.
w Cf. Rock4ngham Poultry Marketing Cooperative, Inc., 59 NLRB 486, 487.
26 The allegation in the complaint as to the appropriate unit does not mention Engle
Street plant, but alleges a unit of truck drivers at the Respondent's "Houston office."
The Respondent's main office presumably is at the Engle Street plant, although the record
is not clear in that respect.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this connection it is noted that the Respondent knew, as above found, that
in 1937 the predecessor of Local 968 had organized its truck drivers, and in
fact negotiated with them on that basis. There was nothing that developed
in the Teamsters' later campaign, or in that organization's request for recog-
nition, to cause the Respondent to believe that Local 968's ideas of a bar-
gaining unit in any way differed from that sought by its predecessor. I there-
fore find that on or about May 1, 1950, the parties hereto "assumed and under-
stood" 24 that the Teamsters claimed to represent a majority of the employees
in a unit consisting of all the Respondent's truck drivers with the above
exclusions.
It is the Respondent's position that in view of its past history of collective
bargaining with the Independent that a unit consisting of all of its employees
with the above exclusions, is the appropriate one, i,ut it agrees that a unit limited
to all truck drivers may also be appropriate. The question then to be deter-
mined is which of these two units is the more appropriate under the circumstances.
For many years it has been the Board's practice to sever craft units from
existing industrial units provided an appropriate showing of interest is made.
Although craft units usually include highly skilled workmen, the practice has
also been applied to truck drivers and other allied workers.28 I therefore find
that the truck drivers of the Respondent in all its plants, e'^clusi.ve of all other
employees including office clerical, professional, and supervisory employees
constitute an appropriate unit.22
It is of course also true and the Board has found that truck drivers in one
plant or one division thereof may be an appropriate unit where they constitute
homogeneous and identifiable groups. However, in the instant case, the record
discloses that all the truck drivers of the Respondent in all its plants do about
the same type of work and receive about the same amount of pay. Further-
more, Captain Parker is in direct touch and has close over-all supervision of
each of the plants.
2. The Teamsters' alleged majority
In the telephone talks he had with Randy Miller and Charles E. Jones between
May 1 and 3, Captain Parker refused to recognize or deal with the Teamsters
because (1) that union did not represent a majority in the unit, and (2) the
1950 contract with the Independent barred such recognition. That was also
the Respondent's position at the hearing.
As heretofore found, the Respondent, as of the first of May 1950, employed
a total of 56 truck drivers in its various plants. The Teamsters produced
authorizations from 32 of these drivers. This computation eliminates the card
signed by James S. Butler, who the evidence shows was not an employee of the
Respondent as of the above date, but includes Robert Jordan, who was a member
of another local of the Teamsters as of May 1, but was working for the Re-
spondent at that time, and later transferred to Local 968. The above showing
is adequate to establish a majority representation in the unit unless, as con-
tended by the Respondent, the employees who signed these authorizations were
coerced into doing so.
In this respect, there is credible testimony on the part of a number of truck
drivers that, prior to signing the authorization cards, they were told In the
17 Barlow-Haney Laboratories, Inc., 65 NLRB 928.
29 Swift t6 Company, d/b/a New England Dressed Meat and Wool Company, 81 NLRB
1197.
20 Barlow-Haney Laboratories, Inc., supra; Potomac Electric Power Company, 73 NLRB
1291.
PARKER BROTHERS AND COMPANY, INC. 895
presence of other drivers by Teamsters' officials, or in the presence of such
officials without any denial or repudiation thereof, that they had to join that
organization or they would lose their jobs. Thus, drivers John J. Cotrone,
Joe Cortimiglia, L. E. Cobb, and J. M. Gray testified that Teamsters' Business
Agent Pate told them in the presence of other employees that in order to continue
working for the Respondent, they would have to join the Teamsters. A. C. John-
son, who signed an authorization at the Teamsters' party at Kelsey's Cafe the
evening of April 25 or 26, testified that Pate told the employees present that
if they did not join the Teamsters they would be relieved of their jobs. C. G.
Powledge testified that Randy Miller, secretary-treasurer of the Teamsters,
made a similar remark in the Kelsey Cafe.80 C. J. Mize and A. E. Fox credited
both Pate and Miller with like statements. George Sager, Teamsters' steward
and heretofore referred to, testified that at Kelsey's he heard statements made
by various drivers in the presence of Pate and Miller and not denied that if the
Teamsters were recognized by the Respondent, employees would "have to belong
to stay on."
In my judgment, the above statements were coercive because they contained
threats, or implied threats, of loss of employment "reasonably calculated to have
an effect" on the listener without regard to the Teamsters' ability to carry out
the threat'1 In fact the Board in G. H. Hess, Incorporated," found that a state-
ment 3 days before an election, "If you don't vote for the Union the girls will
refuse to work with you," conveyed a threat of economic reprisal, i. e., that
Basnett would, through the efforts of the union, be deprived of her job should
she vote against the Union. In that case, the Board made this significant
statement :
While it is true that Basnett did in fact vote, we cannot assume that less
stout-hearted employees would not have refrained from casting their ballot
as a consequence of such intimidatory utterances . . . the test is whether
the conduct or statements are reasonably calculated to interfere with the
employees' exercise of freedom of choice. Furthermore, we cannot assume,
under the circumstances, that Basnett's vote actually represented a free
and uncoerced choice for or against a bargaining representative."
In the ease at bar, several of the employees above referred to, namely, Corti-
miglia, Powledge, Johnson, and Fox, subsequent to hearing the threatening
statements, joined the Teamsters and struck. The General Counsel contends
that this constituted a ratification of the previous authorizations. In view of
the language above quoted in the Hess case, there may be some question as to
whether there was ratification under the circumstances. Assuming such action
on the part of the 4 named employees is sufficient to constitute a clear expression
of their voluntary desires, in spite of the previous threats, the Teamsters would,
at most, have only 28 in the unit of 56, less than a majority ; and this does
take into account the coercive influence of the above threats on other less "stout-
hearted" truck drivers.
"The Respondent's contention, that there was so much drinking at Kelsey's Cafe that
some of the employees signed cards not knowing what they were doing. is rejected as
lacking in proof There was some beer drinking at the cafe that night-as there was also
at the meeting McCollum called at the plant on April 28-but only one man became
intoxicated and he had signed a card prior to the cafe meeting.
91 Smith Cabinet Manufactui ing Company, Inc, 81 NLRB 886.
-1' 82 NLRB 463.
31 See also N L R. B. v D A Dourian Export Corp, 138 F. 2d 891, where the Second
Circuit Court of Appeals found that the union had lost its majority because loss of fob
threats to certain employees were not conditioned on the union's obtaining a closed-shop
contract (which at that time was legal). In the present case, we have a situation where
a closed chop Is illegal
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the facts and circumstances of this case, taking into consideration
the current contract with the Independent, Respondent's assistance to that
union, and its animosity to the Teamsters, as found herein, I am not convinced
it has been established that more than the 24 drivers who struck on May 4 °4
preferred the Teamsters to the Independent as their bargaining agent. I there-
fore find, contrary to the contentions of the General Counsel and the Union,
that the Teamsters on May 1, 2, and 3, 1950, and thereafter, did not represent
an uncoerced majority of the Respondent's employees in the above unit. It
follows, therefore, and I also find, that the Respondent did not violate Section
8 (a) (5) of the Act in refusing to recognize or deal with the Teamsters.35
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. TIIE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take af-
firmative action designed to effectuate the policies of the Act.
It has been found that by entering into an agreement with the Independent
containing illegal security provisions and by other acts of interference with
the rights of its employees and of support of the Independent, the Respondent
has violated Section 8 (a) (1) and (2) of the Act. The Respondent does not
dispute the illegality of these union-security provisions, nor seriously assert
that the severance clause contained in the contract, which applies in f iituro,n
saves the remaining contract provisions, but argues that, because the security
provisions were not all enforced, and the contract has now been superseded
by a later contract without such illegal provisions, there is no necessity to
order Respondent to cease doing business with the Independent or to require
it to reimburse employees for Independent dues checked off from their pay.
This argument overlooks the fact that by assenting to the unlawful security
provisions and by collecting the dues pursuant thereto, the Respondent lent
Its support to the Independent not only in recruiting and maintaining its
membership, but also in financing its activities. The effect of such violations
was to coerce the employees of the Respondent into becoming and remaining
members of the Independent. It was to avoid such coercive acts that Sections
8 (a) (3) and 9 (e) were included in the Act, and it would not effectuate the
purposes of these sections to permit the Independent to continue to enjoy a
representative status which it has strengthened by virtue of these illegal pro-
visions 37 It will therefore be recommended that the Respondent cease and
-"It is true that 28 truck drivers did not report for work on May 4, apparently 4 of
the 28 did not want to cross the picket line, but returned to work later on. The fact that
these 4 did not report for work that morning does not necessarily mean that they favored
the sfrike, or the Teamsters. Business Agent Pate claimed that more than 24 truck
drivers actually joined the Teamsters, but there was no adequate proof to support such
contention.
31 In view of the above finding, I deem it unnecessary to discuss the other contentions
presented on the refusal-to-bargain issue.
ae Hickey Cab Company, 88 NLRB 327.
27 Julius Resnick, Inc., 86 NLRB 38.
PARKER BROTHERS AND COMPANY, INC. 897
desist from recognizing the Independent or any successor thereto as the rep-
resentative of any of its employees for the purpose of dealing with the Respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment ; and that it cease and desist from
performing or giving effect to any contract now current with the Independent
or to any modification, extension, supplement, or renewal thereof unless and
until the Independent shall have been certified by the National Labor Relations
Board. It will also be recommended that the Respondent reimburse each em-
ployee for the amount of fees and dues which it had checked off since December
27, 1949, and paid to the Independent, less any amount returned to it by the
Independent"
Also, it having been found that the Respondent discriminatorily discharged
L. W. Miller, it will be recommended that it offer to Miller immediate and full
reinstatement to his former or substantially equivalent position" without
prejudice to his seniority and other rights and privileges previously enjoyed,
and make him whole for any loss of pay he may have suffered by reason of the
discrimination against him, by payment to him of a sum of money equal to the
amount he normally would have earned as wages from the date of his discharge
to the date of the Respondent's offer of reinstatement, less his net earnings dur-
ing that period." Loss of pay shall he determined by deducting his net earnings,
If any, from a sum equal to that which he normally would have earned for each
quarterly period or portion thereof. Earnings in one particular quarter shall
have no effect upon the back-pay liability for any other quarter ; the quarterly
periods shall begin with the 1st day of January, April, July, and October.41 Upon
request, Respondent shall make available to the Board, or its agents, all records
pertinent to the calculation of back pay.
Upon the basis of the foregoing findings of facts and upon the entire record
in this case, I make the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers, AFL, Local No 968, and Shell Workers Independent Union, are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
3 By supporting and assisting the Shell Workers Independent Union, the
Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (2) of the Act.
4. By discriminating in regard to the hire and tenure of employment of L W.
Miller, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
5. The unfair labor practices aforesaid are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
38 Federal Stores Ditision of Spiegel , Inc. 91 NLRB 647; Meyer cE Welch Incorporated,
91 NLRB 1102.
3° The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
4° Crossett Lumber Company , 8 NLRB 440
11 F W . Woolworth Company , 90 NLRB 289.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The Respondent has not violated (1) Section 8 (a) (1) of the Act by
surveillance of Teamsters' meetings or of its employees' collective activities ; or
(2) Section 8 (a) (5) of the Act by refusing to bargain with the Teamsters.
[Recommendations omitted from publication in this volume.]
Supplemental Intermediate Report
On October 22, 1951, the National Labor Relations Board remanded the case'
to the Regional Director for the Sixteenth Region for appropriate action. The
main portion of the Board's Order is as follows :
Order Remanding Case
On January 19, 1951, the General Counsel issued the complaint in the
above-entitled matter alleging, inter alia, (a) that the Respondent assisted,
dominated, and contributed to the support of the Shell Workers Independent
Union, herein called the Independent, in violation of Section 8 (a) (2) of
the Act, and (b) that the Respondent executed and gave full force and effect
to a contract with the Independent which contained an illegal union-
security clause requiring membership in the Independent as a condition of
employment, and requiring that employees execute an authorization for the
deduction of membership dues from their wages to be paid over to the
Independent.
At various dates between February 13 and 24, 1951, pursuant to notice,
a hearing was held before Trial Examiner J. J. Fitzpatrick, who, on June
4, 1951, issued his Intermediate Report finding certain of the unfair labor
practices alleged. However, the Independent was not served with copies
of the notice of hearing and the complaint and was not made a party to, nor
did it participate in the proceeding.
The Respondent, the Union, and the General Counsel filed exceptions to
the Intermediate Report and supporting briefs. Thereafter, the General
Counsel filed with the Board a request for permission to file a reply brief,
and attached thereto General Counsel's Reply Brief. The General Counsel's
request, which is hereby granted, and his reply brief, pertained solely to
the question (raised by a party for the first time in the Respondent's ex-
ceptions and brief) of the failure to serve the Independent with notice of
hearing and complaint, and of including the Independent as a party in the
proceeding.
The Board, having duly considered all matter before it pertinent to the
issue, does not rule upon any of the contentions op this question advanced by
the parties. On its motion,' the Board remands the case to the Regional
Director to permit the General Counsel properly to join the Independent
as party, pursuant to Section 102.8 of Board Rules and Regulations, and to
afford the Independent, as a party, full opportunity to participate in the
proceeding, including such further hearing as might be requested by the
Independent, or in lieu thereof, opportunity to file briefs.
' See Otte Elevator Company, 7 CA-343, remand order dated March 15, 1951.
Thereafter, pursuant to the remand order, the Sixteenth Region served on
Shell Workers Independent Union a copy of the charges herein upon which the
' Shell Workers Independent Union, party of the contract , was added to the caption fol-
lowing action taken by the Regional Director pursuant to the Board's Order dated October
22, 1951 , hereinafter described.
PARKER BROTHERS AND COMPANY, INC. 899
complaint was based, the complaint and the amendment thereto, the answer and
supplemental answers of Parker Brothers and Company, Inc., the Intermediate
Report, and the Order Remanding Case.
Pursuant to notice a further hearing was held before me at Houston, Texas,
on February 5 and 6, 1952. The Respondent Company and the Union were repre-
sented by the same counsel as at the previous hearing. Messrs. Thomas M.
Mobley and James R. Gough, of Houston, Texas, represented the Independent
and Mr. James P. Wolf, of Fort Worth, Texas, represented the General Counsel.
The hearing was for the purpose, as stated in the notice, of giving the In-
dependent full opportunity to participate as a party pursuant to the Board's
Order above described.
At the opening of the hearing the Independent filed a written motion as
follows :
MOTION TO Dismiss CHARGE, COMPLAINT AND ORDER
COMES NOW Shell Workers Independent Union, hereinafter called Inde-
pendent, served with notice of this proceeding on or about January 10, 1952,
and files this, its Motion to dismiss the Charge, Complaint and Order issued
in this case for the reason same are barred by the six months statute of
limitations in that no unfair practice is charged or alleged to have occurred
within the six months immediately preceding any service of notice to the
Independent. The service that was had on Parker Brothers & Company,
Inc., does not operate to toll the limitations against the Independent since
(a) service of the Independent did not follow, with reasonable diligence,
service to Parker Brothers & Company, Inc; (b) there is, in law, no privity
between Parker Brothers & Company, Inc. and Shell Workers Independent
Union; and (c) other reasons to be enumerated in the Independent's sup-
porting brief.
Shell Workers Independent Union does not request any participation in
the proceedings that have gone heretofore since same are void, having been
effected without the participation of an indispensable party, and since the
events there alleged and proved did occur during a period that is now
barred by the six months statute of limitations.
The motion to dismiss was denied.
The General Counsel, the Union, and the Respondent Company each offered
to make available all witnesses called by them and who had testified at the
original hearing, for the purpose of permitting the Independent to cross-examine
said witnesses or any of them. Counsel for the Independent stated on the record
that he did not desire to question any of these previous witnesses and then
offered testimony to show that the Independent was not served with a copy of
the charge or the amended charge or made a party to the original action because
of an oversight in the Sixteenth Regional Office. This testimony received in
question and answer form as an offer of proof was rejected as immaterial to
the issues. After due consideration that ruling is now reversed and the testi-
mony is received.
The Independent also offered, "if required," to file a formal answer to the
complaint alleging, as it had in the above motion, that the statute of limitations
in the Act prohibited any proceedings against the Independent .2 The Respondent
also asked for and was granted leave to file a supplementary answer subsequent
to the close of the hearing. Such supplementary answer has been received and
2 The Independent was advised at the hearing that an exhibit number would be reserved
for the receipt of this answer subsequent to the close of the hearing , but no such answer
has been received.
242:305--53--58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed . It alleges that because of the Independent 's limitation plea no order
can issue in the case that would have the effect of interfering with the con-
tractual relationship between Respondent and the Independent , and asks that
the complaint be dismissed in its entirety.
At the conclusion of the rehearing the Independent renewed its motion to dis-
miss. The motion is disposed of as hereafter appears. All parties waived oral
argument, but briefs have been received from the General Counsel, the Respond-
ent, and the Union
SUPPLEMENTAL FINDINGS AND CONCLUSIONS
As heretofore found the Independent did not take advantage at the oppor-
tunity presented at the second hearing to cross-examine any of the witnesses
who had testified at the original hearing. Although offered full opportunity to
be heard, it contented itself with testimony on lack of diligence on the part of
the Board's Regional Office in failing to serve the charge on the Independent
and name it as a party prior to January 1952, and renewed its motion to dismiss.
It is the position of the Independent, as stated in its motion to dismiss, and the
Respondent as alleged in its supplemental answer, that the Independent not
having been served with a copy of the charge or made a party at the inception
of the action which alleged unfair labor practices starting in January 1950, it
can not now legally be brought in, by belated service on it of the charge and
the complaint, because of the 6 months' limitation in Section 10 (b) of the Act.
The pertinent portions of Section 10 (b) reads as follows :
Whenever it is charged that any person has engaged in or is engaging in
any such unfair labor practice, the Board, or an agent or agency designated
by the Board for such purposes, shall have power to issue and cause to be
served upon such person a complaint stating the charges in that respect, and
containing a notice of hearing before the Board or a member thereof, or
before a designated agent or agency, at a place therein fixed, not less than
five days after the serving of said complaint: Provided, That no complaint
shall issue based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board and the service of a
copy thereof upon the person against whom such charge is made, unless the
person aggrieved thereby was prevented from filing such charge by reason
of service in the armed forces, in which event the six-month period shall
be computed from the day of his discharge.
Series 5 of the Board's Rules and Regulations, effective at the time of the original
hearing, provided :
See. 203.14 Service of Charge. Upon the filing of a charge, the charging
party shall be responsible for the timely and proper service of a copy thereof
upon the person against whom such charge is made. The regional director
will as a matter of course, cause a copy of such charge to be served upon the
person against whom the charge is made, but he shall not be deemed to
assume responsibility for such service.4
As the charge and the amended charge in this case was made against the Re-
spondent and service of the charges were admittedly properly served on it, there
is no real question but that the proceeding against the Respondent as such is
S After the close of the second hearing the Respondent moved to correct the record inso-
far as certain aspects of the testimony of Bert H Tunks was concerned. There being no
objection, the record is corrected as requested by the Respondent.
4 Now Section 102.14 in Series 6 of the Board's Rules and Regulations, effective March
1, 1951.
PARKER BROTHERS AND COMPANY, INC. 901
proper.` The question therefore is whether it is now too late to bring in the
Independent as a party to the proceeding. The Board's Rules and Regulations
effective in January 1951, provide:
COMPLAINT
Sec. 203.15 When and by whom issued ; contents ; service -After a charge
has been filed, if it appears to the regional director that formal proceedings
in respect thereto should be instituted, he shall issue and cause to be served
upon all the other parties a formal complaint in the name of the Board stating
the charges and containing a notice of hearing before a trial examiner at a
place therein fixed and at a time not less than ten days after the service of
the complaint.
Sec. 203.8 Party.-The term party as used herein shall mean the regional
director in whose region the proceeding is pending, and any person named or
admitted as a party, or properly seeking and entitled as of right to be a
party, in any Board proceeding, including, without limitation, any person
filing a charge or petition under the Act, any person named as respondent, as
employer, or as party to a contract in any proceeding under the Act, and any
labor organization alleged to be dominated , assisted , or supported in viola-
tion of Section 8 (a) (1) or 8 (a) (2) of the Act; but nothing herein shall be
construed to prevent the Board or its designated agent from limiting any
party to participate in the proceedings to the extent of his interest only."
The original complaint alleged that the Independent was a party to a contract
with the Respondent, and attacked the legality of that contract. It is clear
from the above-quoted rules of the Board, and I find, that there was a procedural
defect in failing to join and serve the Independent as a party ab initio. How-
ever, subsequent to the hearing, and after the issuance of the Intermediate
Report wherein the defendant was found to have violated Section 8 (a) (1),
(2), and (3) of the Act, the General Counsel was permitted to join the Inde-
pendent as a party pursuant to the Board's remand order above quoted. There-
after the General Counsel named the Independent as a party, served it with a
copy of all the formal papers in the proceeding up to that time, including the
charges, the complaint and its amendment, the Intermediate Report and order
remanding, and a notice of hearing on the issues. At the reopened hearing
the Independent, as a party, was afforded an opportunity to cross-examine all
the witnesses who testified at the first hearing and to participate in the pro-
ceeding. This action by the Board and its General Counsel cured the procedural
defect (which defect in any event could only affect a possible 8 (a) (2) finding
an order), unless the Independent, under the circumstances, was an indis-
pensable party from the beginning, as contended by the Independent and the
Respondent.
The question as to who are indispensable parties in cases involving non-
recognition of favored unions, or Board orders having the effect of invalidating
collective-bargaining agreements with them, has been considered a number of
times by the Supreme Court of the United States. In N. L. R. B. v. Pennsylvania
Greyhound Lines, Ine , 303 U. S. 261, decided February 28, 1938, no contract
was involved but the issue was whether the Board had authority to order the
employer to withhold recognition from an association found to have been com-
H In its supplemental answer the Respondent seems to take the position that, because
of the failure to serve Independent timely, the entire proceeding should be dismissed. In
its brief the Respondent argues that the failure to serve Independent bars the Board from
proceeding on the 8 ( a) (2) allegations only.
"The same provisions ( with slight changes in the language of Sec. 203 15 ) appear in
Sections 102.15 and 102.8 of the Board's present Rules and Regulations, Series 6.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany dominated , without notice to the association and opportunity for a hear-
ing. In that connection the Court said :
As the order did not run against the association, it is not entitled to notice
and hearing . Its presence was not necessary in order to enable the Board
to determine whether respondents had violated the statute or to make an
appropriate order against them.
In Consolidated Edison Company of New York, Inc., et al. v. N. L. R. B., 305
U. S. 197, dated December 5, 1938, the question was whether the Board could
invalidate contracts between the employer and the Brotherhood of Electrical
Workers, in the absence of notice of hearing to the Brotherhood. In this case
the complaint alleged interference and discrimination by the employers. One
of the allegations of interference was that the employers were contributing
support to the International Brotherhood of Electrical Workers and were coercing
their employees to join that Union. The Board found illegal support of the
Brotherhood, among other things because the employers had executed contracts
with the Brotherhood subsequent to issuance of the complaint, and ordered
the employers to cease giving effect to these contracts or from recognizing the
Brotherhood as a representative of the employees. The Court noted that there
had been no finding of domination of the Brotherhood in violation of Section
8 (2) of the Act, and that the validity of the contracts had not actually been
litigated In holding that the Brotherhood had "valuable and beneficial interests
in the contracts" and were entitled to notice and hearing before they could be
set aside, it distinguished Pennsylvania Greyhound Lines ( supra ) in the follow-
ing language:
That case, however, is not apposite, as there no question of contract
between the employer and employees was involved. The Board had found
upon evidence that the employer had created and fostered the labor organi-
zation in question and dominated its administration in violation of Section
8 (2). The statement that the "Association" so formed and controlled was
not entitled to notice and hearing was made in that relation , Id. pp. 262,
270, 271. It has no application to independent labor unions such as those
before us:
In discussing the remedial authority of the Board the Court said:
The power to command affirmative action is remedial, not punitive, and
is to be exercised in aid of the Board's authority to restrain violations and
as a means of removing or avoiding the consequences of violation where
those consequences are of a kind to thwart the purposes of the Act. The
continued existence of a company union established by unfair labor prac-
tices or of a union dominated by the employer is a consequence of violation
of the Act whose continuance thwarts the purposes of the Act and renders
ineffective any order restraining the unfair practices. Compare National
Labor Relations Board v. Pennsylvania Greyhound Lines, supra. Here,
there is no basis for a finding that the contracts with the Brotherhood
and its locals were a consequence of the unfair labor practices found by
the Board or that these contracts in themselves thwart any policy of the
Act or that their cancellation would in any way make the order to cease
the specified practices any more effective.
On March 4, 1940, in National Licorice Company v. N. L R. B, 309 U. S. 350,
the Court had to decide whether the Board had authority to order the employer
not to enforce individual employment contracts found to have been procured
in violation of the Act and containing illegal provisions, in the absence of the
PARKER BROTHERS AND COMPANY, INC. 903
employees as parties to the proceeding. The Court, recognizing that no tribunal
had authority to make a binding adjudication of rights in personam of parties
not brought before it by due process of law, pointed out that in the case before
it there was no occasion to consider how far the contract rights of the employees
could be restricted . In this connection the Court said:
As the Board's power can be effectively exercised only on petitioner, the
employees are entitled to notice and hearing only if the statute requires
them to be made parties to the proceeding. Consequently, the only question
we are called upon to decide is wh ether, in the circumstances of this case,
the exercise of the Board's authority is such a departure from accepted
modes of procedure as rightly to be regarded as beyond the power conferred
on the Board by Section 10 of the Act.
In concluding that the Board had not overreached its statutory authority, the
Court pointed out that Board proceedings under the Act are not for the
adjudication of private rights and there is no provision in the Act for the
presence of private parties other than the employer charged with an unfair
labor practice and commented :
In a proceeding so narrowly restricted for the protection and enforce-
ment of public rights, there is little scope or need for the traditional rules
governing the joinder of parties in litigation determining private rights.
The Court found that the right asserted by the Board was not one arising or
derived from the contracts between the employer and the employees, but a
public right vested in a public body charged "in the public interest with the
duty of preventing unfair labor practices." It pointed out that the effect of
the Board's Order was to preclude the employer from taking any benefit of
the contracts
which were procured through violation of the Act, and which are them-
selves continuing means of violating it, and from carrying out any of the
contract provisions, the effect of which would be to infringe the rights
guaranteed by the National Labor Relations Act.
After stating that the Board's Order did not prejudge the employees' rights
under the contracts nor foreclose them from having such rights adjudicated,
the Court found that they were not indispensable parties for the purposes of
the Board's Order!
In N. L. R. B. v. Indiana and Michigan Electric Company, 124 F. 2d 50 (C. A.
6), the facts as set forth in the circuit court's decision were as follows:
The Board had found that the employer had dominated an association of its
employees and entered into a contract with that organization. The Board's
Order directed employer to cease giving effect to the contract and to withdraw
all recognition from and completely disestablish the association. The associa-
tion was not named as a party but filed a motion to intervene in the court
proceeding. Both the association and the employer asked that the Order of the
Board be set aside and that the cause be remanded with directions to permit
the association to introduce proof and cross-examine the Board's witnesses.
In its decision the Sixth Circuit reviewed in detail the three Supreme Court
decisions heretofore referred to and came to the following conclusion :
As we view the three foregoing controlling decisions of the Supreme
Court, none of which expressly overrules the other, the test to be applied
9 In Pittsburgh Plate Glass Company v. N. L. R. B., 313 U. S. 146 , the Court reiterated,
that a union found to be company dominated does not have to be included as a party where
the Board order does not run against it.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to whether the parties to bargaining contracts are necessary parties
to a proceeding under the National Labor Relations Act is (1) if the facts
show the right asserted by the Board is one arising solely out of the con-
tract, the performance of which does not inherently result in a violation
of the provisions of the Act, the beneficiaries of the contract or their
representatives are necessary parties. (2) If the facts show that the
contract is inherently unfair, or its performance will result in the con-
tinuance of unfair labor practices as defined in the Act, the beneficiaries
of the contract or their representatives are not necessary parties, but may
be made parties to the proceedings in the discretion of the Board.
In the case at bar, the Board found that respondent caused the Associa-
tion to be organized and dominated it in the performance of the bargaining
contract. It therefore follows that it is controlled by the Greyhound Lines
and National Licorice Company cases and the Association was not a neces-
sary party to the proceedings 8
In the instant case support of the Independent is found not only in the execu-
tion and enforcement of the illegal provisions of the contract, but also by other
independent acts of coercion to the detriment of the rival Teamsters.
The Respondent in its brief cites it number of cases to support its position
that the Independent was an indispensable party. Most of these cases have
to do with the protection or assertion of private rights. But, as the Supreme
Court said in National Licorice (supra),
The proceeding authorized to be taken by the Board under the National
Labor Relations Act is not for the adjudication of private rights (citing
cases). It has few of the indicia of a private litigation and makes no re-
quirement for the presence in it of any private party other than the employer
charged with an unfair labor practice. The Board acts in a public capacity
to give effect to the declared public policy of the Act to eliminate and pre-
vent obstructions to interstate commerce by encouraging collective bar-
gaining and by protecting the "exercise by workers of full freedom of
association, self organization, and designation of representatives of their
own choosing, for the purpose of negotiating the terms and conditions of
their employment . . ." Section 1. The immediate object of the proceeding
is to prevent unfair labor practices which, as defined by Sections 7, 8, are
practices tending to thwart the declared policy of the Act. To that end the
Board is authorized to order the employer to desist from such practices,
and by Section 10 (c) it is given authority to take such affirmative remedial
action as will effectuate the policies of the Act.
Here the right asserted by the Board is not one arising upon or derived
from the contracts. The Board asserts a public right vested in it as a
public body, charged in the public interest with the duty of preventing un-
fair labor practices. The public right and the duty extend not only to the
prevention of unfair labor practices by the employer in the future, but to
the prevention of his enjoyment of any advantage which he has gained by
violation of the Act, whether it be a company union or an unlawful contract
with employees, as the means of defeating the statutory policy and purpose.
In N. L. R. B. v. Sterling Electric Motors, 109 F. 2d 194, the Ninth Circuit Court
of Appeals on January 9, 1940, refused to enforce a Board Order disestablishing
8 This decision of the Sixth court was affirmed by the Supreme Court in 318 LT S 9, but
the question of whether the association was an indispensable party was not raised before
that tribunal.
11AFFENREFFER & CO., INC. 905
a company-dominated employees' association that had a contract, because the
association had not been served. As will be noted, that circuit court of appeals
decision was before National Licorice, supra, had been decided by the Supreme
Court. At a rehearing where National Licorice was considered the circuit
court adhered to its original opinion in refusing to order the association dis-
established, but referred the matter for further testimony on an issue of fraud
(112 F. 2d 63). The Board petitioned the Supreme Court for a writ of cer-
tiorari. While this was pending the circuit court set aside its decree (114 F.
2d 738). Thereafter the Board filed in the circuit court additional evidence
taken by it pursuant to the Court's direction, additional findings, and a recom-
mendation that its original order be set aside. In granting this request of the
Board the circuit court made the comments quoted in Respondent's brief (118
F. 2d 893). I find that dicta of no assistance here in the light of the decisions
of the Supreme Court heretofore referred to.
In the case before me, as previously noted, the Respondent supported and
assisted the Independent in violation of Section 8 (a) (2) not only in executing
the contract and carrying out its provisions, but also by other independent acts.
I therefore find, consistent with the above decisions of the Supreme Court, that
the Independent was not an indispensable party for the purpose of starting this
proceeding insofar as the 8 (a) (2) allegations in the complaint are concerned.
I further find that the procedural defect in failing to name and serve the In-
dependent as a party at the first hearing has been cured by the Board's remand
order and the later service on the Independent together with the opportunity
afforded it to cross-examine witnesses and present proof at the rehearing.
I therefore deny the Independent's renewed motion to dismiss as to it, and
find that it has been properly joined as a party, afforded an opportunity to be
heard, to cross-examine all witnesses who testified at the original hearing,
and otherwise participate in the proceeding.
[Recommendations omitted from publication in this volume.]
HAFFENREFTER & Co., INC. and THOMAS M. BROOKS
LOCAL No. 14, INTERNATIONAL UNION OF UNITED BREWERY, FLOUR,
CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, C. I. O.
and THOMAS M. BROOKS. Cases Nos. 1-CA-1043 and 1-CB-166.
December 9,1962
Decision and Order
On May 20, 1952, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in this proceeding, finding that the Respondents had
not engaged in unfair labor practices as alleged in the complaints and
recommending that the complaints be dismissed, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
General Counsel filed exceptions to the Intermediate Report and a
supporting brief, and the Respondents filed briefs in support of the
Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
101 NLRB No. 160.