The Retail Clerks International Association

National Labor Relations Board - Board Decisions

May 13, 1949

83 N.L.R.B. 564 (N.L.R.B. 1949)

In the Matter of LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL
ASSOCIATION (AFL), HASKELL TIDWELL, SECRETARY-TREASURER, AND
ALBERT E. MORGAN, BUSINESS AGENT and H. W. SMITH, d/b/a A-1
PHOTO SERVICE
Case No. 01-CB-34.-Decided May 13, 19.49
DECISION
AND
• ORDER
On July 19, 1948, Trial Examiner Isadore Greenberg issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents' had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth-in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondents had not engaged in certain other alleged unfair
labor practices, and recommended dismissal of these allegations of
the complaint. Thereafter, the Respondents and the General Coun-
sel filed exceptions to the Intermediate Report and briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and finds merit in the Respondents' exceptions in the re-
spects indicated below.
The record shows, as set forth in detail in the Intermediate Re-
port, that the Employer, an individual, is sole proprietor of a retail
store at San Pedro, California,2 where he sells photographic equip-
ment and supplies, greeting cards, and stationery. His only regular
employees are three clerks. During the year ending March 31, 1948,
the Employer purchased for his business merchandise valued at $100,-
146.69, approximately 44 percent of which was purchased from whole-
i At the hearing , the Trial Examiner , dismissed the complaint with respect to Respondent
Albert E Morgan . Accordingly , the term "Respondents ," as used herein , refers only to the
Union and Haskell Tidwell
2 The Employer also owns part of a store at Torrance , California ; but only the San Pedro
store is involved in this proceeding.
83 N. L. R. B., No. 86.
564
f
LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL 565
salers located outside the State of California and was delivered to-
him from points outside the State. The rest was purchased locally
and, except for a small amount, was shipped to the Employer from
within the State; a substantial amount, however, originated outside
the State. The Employer's sales during the same period amounted
to approximately $133,000. Except for merchandise valued at ap-
proximately $2,600 sold and delivered to customers outside the State
or to installations of the United States Army and Navy, all sales
were made to retail customers within the State.
Upon these facts, which are not contested, the Trial Examiner con-
cluded that the Employer was engaged in commerce within the mean-
ing of the Act, and that the Respondents' activities had a close, inti-
mate, and substantial relation to commerce and tended to lead to labor
disputes burdening and obstructing commerce. It is clear to us, how-
ever, that the Employer's business is essentially local in nature and
relatively small in size, and that the interruption of his operations by
a labor dispute could have only the most remote and insubstantial ef-
fect on commerce. Recently, we have dismissed several proceedings
involving such enterprises, on the ground that the assertion of juris-
diction would not effectuate the purposes of the Act.-' The Respond-
ents urge that we dismiss this proceeding for the same reason. The
General Counsel, on the other hand, contends that once he has issued a
complaint in an unfair labor practice case, the Board Members have
no authority to decline to assert jurisdiction on policy grounds, if ju-
risdiction in fact exists. For the reasons given below, we find no merit
in this contention.
Under Section 10 of the Act, as amended the Board is "empowered"
to prevent any person from engaging in any unfair labor practice
"affecting commerce ," but it is not directed to exercise its preventive
powers in all such cases. From this, we believe it reasonable to infer,
in the absence of any convincing evidence to the contrary,' that Con-
gress intended the Board to continue to have discretionary authority
to decline to exercise these powers in appropriate cases, as it had under
the Wagner Act. The Board can now exercise this discretionary au-
thority only by dismissing a complaint. We have therefore dismissed
complaints-as we have declined to proceed with representation
cases-when, in our opinion, the assertion of jurisdiction would not
effectuate the policies of the Acts
8 See, for example, Matter of Hom- Ond Food Stores , Inc., 77 N L. R. B 647 ; Matter of
Sun Photo Company, 78 N. L. R. B 1249, Matter of Walter J. Mentzer, 82 N. L. R B.
889.
' Cf. Matter of Local 74, United Brotherhood of Carpenters and Joiners of America,
A. F of L, 80 N L . R. B 532 ; Matter of Samuel Langer, 82 N. L. R. B. 1028.
Matter of Walter J. Mentzer, supra.
84434050-vol 83-37
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel argues that the Board has no authority to take
such action, claiming that : (1) the concept of discretion in the Board
to assert or reject jurisdiction on policy grounds is incompatible with
the General Counsel's "final authority," under Section 3 (d), over
the issuance and prosecution of complaints; (2) it was judicially
decided in the Jacobsen case 6 that the Board has an affirmative duty,
once a complaint has been issued and a hearing held, to determine
whether jurisdiction exists , and if it does exist, to determine the case
on the merits; and (3) the separation of judicial and prosecuting func-
tions under the amended Act precludes the Board from refusing to
assert jurisdiction in complaint cases when jurisdiction in fact exists
under the commerce clause.
It is true that the Board cannot itself issue a complaint; it cannot
compel the General Counsel either to issue or refrain from issuing
one; it cannot review his action in refusing to issue one.7 Further-
more, the legislative history shows that Congress intended the General
Counsel to exercise his authority to issue or refrain from issuing a
complaint independently of any direction, control, or review by the
Board. But after a complaint has issued and a hearing has been held,
the "final authority" of the General Counsel is exhausted, and the case
is then in the hands of the Board. Any action the Board may take
thereafter, either as a matter of policy or on the merits, does not con-
stitute a review of the General Counsel' s "issuance" or "prosecution"
of the complaint, but is the exercise of the Boards judicial powers
hinder the Act. No judicial or quasi-judicial power has been vested in
the General Counsel by statute. To argue that it has been is to argue
against the very theory of separation of functions which gave rise to
congressional establishment of that independent office. He is to
investigate and prosecute, but the Board is to judge.
Nor do we agree with the General Counsel's further contention
that the decision in the Jacobsen case has relevance to the issue before
us. In that case, the Board, although denying the charging parties'
petitions to present additional evidence on interstate commerce, never-
theless dismissed the complaint on the ground that the facts set forth
in the record were not sufficiently developed to afford a basis for de-
termining whether the operations of the employer did affect com-
merce. The Court of Appeals for the Third Circuit remanded the
case to the Board, saying :
0 Jacobsen v. N. L. R. B., 120 F. (2d) 96 (C. A. 3), setting aside and remanding Matter
.of Protective Motor Service Company, 21 N. L R. B. 552.
Section 3 (d) provides, insofar as here relevant, that
The General Counsel of the Board . . . shall have final authority . . in respect
of the . . . issuance of complaints under Section 10 and in respect of the prosecution
of such complaints before the Board. . . .
LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL 567
... The Board, having issued its complaint and proceeded to
hearings, had the duty to decide in limine whether or not the
operations of the Protective Motor Service Company affected
commerce within the meaning of the Act... .
This language may seem, at first glance, to lend some support to the
General Counsel's position. But in the Jacobsen case the Board had
not found that the assertion of jurisdiction would not effectuate the
policies of the Act; consequently, the court did not have before it the
question of the Board's authority to dismiss on that ground. Further-
more, the Jacobsen case arose under the Wagner Act, when, as the
court noted, the Board in its discretion could have refused to issue a
complaint." Even assuming, therefore, that that decision could prop-
erly be interpreted as holding that the Board had no authority to dis-
miss such a complaint for policy reasons, the same court might find it
necessary to reach a different conclusion under the amended Act, which
precludes the Board from exercising discretion at that early stage of
the proceedings. Furthermore, the Supreme Court has indicated that
in some circumstances, at least, the Board does have authority to dis-
miss a complaint on policy grounds. Thus, in the Indiana & Michigan
Electric Company case.9 also decided under the Wagner Act, it said :
The Board might properly withhold or dismiss its own complaint
if it should appear that the charge is so related to a course of
violence and destruction carried on for the purpose of coercing
an employer to help herd its employees into the complaining
union, as to constitute an abuse of the Board's process. (Italics
supplied.)
Finally, we find nothing in the amended Act, or in the legislative
history to support the General Counsel's contention that the separation
of the judicial and prosecuting functions of the agency precludes the
Board Members from declining to assert jurisdiction if commerce is in
fact affected. The separation of functions was accomplished by creat-
ing the statutory office of General Counsel, with the specific duties and
authority set forth in Section 3 (d). In other respects, the powers
possessed by the Board under the Wagner Act, insofar as here relevant,
remain unchanged. In our opinion, Section 3 (d) cannot be interpreted
$ The court said :
It will be noted that the jurisdiction of the Board is not a compulsory jurisdiction.
Assuming that all circumstances looked to by the Board are in existence , none the
less we are of the opinion that the Board does not have to cause a complaint to be
issued or proceed to prohibit any unfair labor practices complained of The course
to be pursued rests in the sound discretion of the Board and is the concern of expert
administrative policy.
N. L. R . B. v. Indiana d Michigan Electric Company, 318 U. S. 9.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to deprive the Board of the power to determine its own policies for
effectuating the purposes of the Act.lo
For the above reasons, we find, contrary' to the General Counsel's
contention, that the Board has discretionary authority to dismiss com-
plaints for policy reasons, even though commerce is affected." More-
over, we believe that, in the absence of special circumstances, it is a
proper exercise of such discretion to dismiss cases in which, as here, the
business involved is so small and so local in nature that the interrup-
tion of operations by a labor dispute could have only a remote and
insubstantial effect on commerce. Consideration of such cases would be
disruptive of our main function, which is to concentrate upon promot-
ing the full flow of commerce, and therefore would not serve to
effectuate the policies of the Act. We shall therefore dismiss this
complaint in its entirety.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Re-
spondents, Local 905 of the Retail Clerks International Association
(AFL) and Haskell Tidwell, Secretary-Treasurer, be, and it hereby
is, dismissed.
INTERMEDIATE REPORT
Eugene M. Purver, Esq ., for the General Counsel.
Alexander H. Schullnzan, Esq., and Morris J. Pollack, Esq., both of Los Angeles,
Calif., appearing specially for the Respondents.
Gibson, Dunn and Crutcher, by John Bilikley , Esq., of Los Angeles, Calif., for
the Employer.
STATEMENT OF THE CASE
Upon an amended charge dated April 5, 1948, filed by H. W. Smith, doing busi-
ness as A-1 Photo Service, San Pedro, California, herein called the Employer, the
10 Nothing in the Act or in the legislative history indicates that the Congress concluded
that only the General Counsel had the wisdom to determine what «ould and what would
not effectuate, the statutory policy. It is clear that the General Counsel alone was to
exercise discretion as to the issuance of complaints, but it is equally clear that the
General Counsel' s judgment was not to control the Board at the decisional stage of any
proceeding Separation of functions was evidently intended to bar judges from being
"prosecutors " , surely Congress was not seeking , by the same provision , to convert prose-
cutors into judges
"The Board likewise dismissed unfair labor practice allegations for policy reasons in
other circumstances : for example, on the ground that the charging party had not attempted
to utilize the machinery established by a collective bargaining contract (Matter of Con-
solidated Aircraft Corp., 47 N L R. B 69 ), or that the respondent had abided by a
proper settlement agreement (Matter of Godchaux Sugars, Inc, 12. N L. R B 568;
Matter of Wickwire Brothers , 16 N. L. R. B. 316; Matter of Midwest Piping and Supply
Co , Inc., 63 N L. R. B. 1060, 1074). Similarly , the Board sometimes followed the admin-
istrative practice of issuing no findings or order where a respondent complied with the
recommendations of an Intermediate Report to which no exceptions were filed.
LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL 569
General Counsel of the National Labor Relations Board,' by the acting Regional
Director for the Twenty-first Region (Los Angeles, California), issued a com-
plaint dated April 7, 1948, against Local 905 of the Retail Clerks International
Association (AFL), Haskell Tidwell, Secretary-Treasurer, and Albert E. Morgan,
Business Agent, herein called the Respondents, alleging that the Respondents had
engaged in and were engaging in unfair labor practices affecting commerce within
.the meaning of Section 8 (b) (1) (A), ( 2) and ( 3), and Section 2 (6) and (7) of
.the Labor Management Relations Act, 1947,2 herein called the Act. Copies of the
complaint, amended charge, and notices of hearing, were duly served upon the
Respondents and the Employer.
With respect to the unfair labor practices , the complaint alleges in substance
that:
1. The Employer , who is engaged in the business of photo finishing and the
sale of photographic equipment and supplies , causes a substantial amount of
such merchandise to be transported and delivered to him in interstate commerce,
and likewise causes quantities of his finished products to be transported to his
customers in interstate commerce , and is therefore engaged in commerce within
-the meaning of the Act ;
2. Since before November 1,• 1947 , the Respondent Union has been the duly
designated collective bargaining representative of the Employer's clerical em-
ployees, who constitute a unit appropriate for the purposes of collec-
tive bargaining ;
3. Although duly requested by the Employer, the Respondent Union has at all
times since November 1, 1947, refused to bargain collectively in good faith with
the Employer ;
4. The Respondent Union , and its officers , agents, organizers , and represent-
atives, including Respondents Tidwell and Morgan, have since November 1, 1947,
restrained and coerced employees of the Employer by: (a) refusing to bargain
collectively with the Employer in good faith ; (b) attempting to impose and impos-
ing upon such employees requirements that they obtain and maintain membership
in the Respondent Union as a condition of employment ;
5. The Respondents have since November 1, 1947, attempted to cause the Em-
ployer to discriminate against his employees by insisting and seeking to compel
the Employer to establish and maintain a closed shop ;
6. By the aforesaid acts the Respondents have engaged and are engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A), (b) (2) and
(b) (3) of the Act.
The Respondents did not file an answer to the complaint. Pursuant to notice,
a hearing was held at Los Angeles, California, on April 21, May 3, and May 4,
1948, before the undersigned Trial Examiner, duly designated by the Chief Trial
Examiner. All parties were represented by counsel, were afforded full opportunity
to participate in the hearing, to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues. The Respondents appeared
specially through counsel, who, at the opening of the hearing, filed a written
motion, supported by a memorandum of law, to dismiss the complaint on the
grounds that since, as Respondents contend , the Employer is not engaged in com-
merce within the meaning of the Act, the Board has no jurisdiction over the
' The General Counsel and the attorney appearing as his representative at the hearing
are referred to herein as the General Counsel ; the National Labor Relations Board, as
the Board
2 The National Labor Relations Act, 49 Stat . 449, as amended by Public Law 101, Chapter
120, 80th Congress , First Session ( 61 Stat 136).
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents or the subject matter herein involved ; and that the Act is uncon-
stitutional, being in derogation of the First, Fourth, Fifth, Tenth, Thirteenth, and
Fourteenth Amendments to the Constitution of the United States. Insofar as the
motion to dismiss was founded on the asserted lack of jurisdiction of ,the Board,
it was denied with leave to renew it after introduction into evidence of the General
Counsel's case with respect to the business operations of the Employer. Insofar
as the motion to dismiss was based on the asserted unconstitutionality of the Act,
the undersigned stated for the record that as agent of an administrative agency,
he would conform to the Board's policy of assuming the constitutionality of the
Act.3 The motion to dismiss was, therefore, denied. The undersigned also denied
motions to strike certain paragraphs of,the complaint made by counsel=for the
Respondents on the ground that the said paragraphs stated merely conclusions
of law. '
A demand for a` bill of particulars submitted orally by counsel for the Respond-
ents was granted in part. Pursuant to such ruling, the General Counsel furnished
the additional information-ordered, on the record. - ,• *V' - ,
Before the completion of the General Counsel's case with''respect, to the inter-
state commerce aspects of the business of the Employer, counsel for the Respond-
ents, on behalf of his clients, withdrew from further participation in the hearing,
after making a statement for the record'setting forth his reasons for doing so'
Thereafter the hearing proceeded to its conclusion in the absence of the Respond-
ents and their representatives.
Before closing the hearing the undersigned granted a motion of the General
Counsel to conform the pleadings to the proof with respect to such formal matters
as the spelling of names, dates, and the like. A motion by the General Counsel to
dismiss the complaint with respect to Albert E. Morgan as a party Respondent
was granted without objection 6 All parties present having been afforded oppor-
tunity at the close of the hearing to be heard in oral argument, the General
Counsel was so heard. The undersigned allowed all parties 15 days from the clos-
ing date of the hearing within which to submit briefs and proposed findings of
fact and conclusions of law. Counsel for the employer has filed a brief and
proposed conclusions of law.
Upon the entire record in the case, and from his observation of the witnesses, the
undersigned makes the following:
FINDINGS OF FACT'
• I. THE BUSINESS OF THE EMPLOYER
Henry Wilbert Smith, the Employer and charging party herein, is the sole
proprietor of a retail photographic supplies store located in San Pedro, California,
8 See Matter of Rite-Form Corset Co, Inc , 75 N. L R. B. 174.
Respondents ' counsel asserted that since "this Board patently . . . has no juris-
diction" because "this is purely and exclusively and admittedly a retail store , having
three employees . . ., it appears there would be no purpose served on the part of
Respondents to continue this hearing any further , having reserved their right to objec-
tions and to a copy of the transcript , and to file , if necessary , at the time , as it may
occur, any objection to the intermediate report. . . .
" Since, as above described , the complaint has been dismissed insofar as it joins Morgan
as a party Respondent , the undersigned will hereinafter refer to the Union and the Re-
spondent Tidwell as "the Respondents."
6 Since the Respondents withdrew from the bearing shortly after the General Counsel
began to introduce evidence in support of the allegations of the complaint , the findings
of fact herein made are based on evidence standing undenied in the record . From the
LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL 571
which he operates under the assumed name and style of A-1 Photo Service. He
is engaged , in this business , in buying, and selling at retail, photographic equip-
ment and supplies, greeting cards, and stationery. During the period from April
1947 through March 1948, both inclusive, the Employer purchased merchandise
for his aforesaid business of a value of $100,146.69. Of this amount, merchandise
of a value of $44,406.63 was purchased from wholesalers located outside the
State of California, and delivered to the Employer' s aforesaid store in San
Pedro, by mail or common carrier, from States of the United States other than
the State of California. The rest of the merchandise purchased by and delivered
to the employer during the same period, of t: value of $55,740.06, was purchased
from sellers located in the State of California. Most of the merchandise so pur-
chased from establishments in the State of California, was delivered to the em-
ployer from within the said State. A small proportion, however, although ordered
from local jobbers or local branch offices of national companies, was shipped to
the Employer's store from points outside California. Of the merchandise de-
livered to the Employer by local wholesale dealers from within California, a sub-
stantial proportion originates, i. e., is shipped to the local suppliers, from outside
the State of California.'
During the calendar year 1947, the Employer's sales at his San Pedro store
totaled $133,715.51. The total of his sales for the period from April 1947 through
March 1948, was approximately the same. The Employer's aforesaid annual
sales consisted entirely of merchandise sold and delivered to retail customers
within the State of California except merchandise valued at approximately $600,
which was delivered to customers outside that State, and merchandise valued
at approximately $2400, sold and delivered to installations of the United States
Army and Navy.
statement made by counsel for the Respondents at the time they withdrew from further
participation in the hearing , and from the motion to dismiss the complaint filed on their
behalf before their withdrawal , it would appear that they base their defense solely on
their contentions : 1. That the Act is unconstitutional , and 2. That the Board lacks juris-
diction over the parties and the subject matter.
7 The above finding is based on the testimony of the -Employer, Smith, and on that.of
Sunderman , purchasing agent of one of the Employer 's local suppliers . Smith "esti-
mated," on the basis of his experience in the photographic equipment business , that ap-
proximately 90 percent of the merchandise sold and delivered to him locally, was re-
ceived by his local suppliers from factories located outside of California. He testified that
this estimate was based upon statements made to him by some of his local suppliers, as
to the origin of the merchandise they sold to him , and the fact that to his knowledge,
some of the manufacturers of the merchandise sold to him by local dealers , had plants
located exclusively in States other than California. Were this the only evidence in the
record as to the origin of the merchandise in question , the undersigned would be dubious
as to its probative value. However, Sunderman, purchasing agent for Craig Movie Sup-
ply Co., one of the local wholesalers selling merchandise to Smith , testified in convincing
detail, on the basis of records , that Smith purchased from Craig during the year, mer-
chandise comprising a "rough cross section of [ Craig's ] entire line," and that approxi-
mately 90 percent of the merchandise handled by Craig is shipped to it from outside
the State of California . Since Sunderman 's testimony , which was based on first-hand
knowledge of Smith's and Craig's purchases, corroborated Smith's testimony, the under-
signed is persuaded that sufficient basis is afforded by the record to support the finding
made above . There was no specific corroboration of Smith's estimate with respect to the
origin of the merchandise purchased locally from suppliers other than Craig; therefore
the undersigned does not feel that he can make a ,finding as to the percentage of such lo-
cally purchased merchandise which originated outside of California . It is a fair conclu-
sion, however , from the evidence as a whole , that a substantial proportion of all of the
merchandise purchased by and delivered locally to Smith, was shipped from points outside
the State of California to the California wholesalers who sold it to Smith.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondents contest the jurisdiction of the Board on the asserted ground
that the Employer is not engaged in commerce within the meaning of the Act.
Their argument is, in brief, that the business operated by the Employer is purely
a local, retail enterprise, employing only three clerks," and that a labor dispute
involving his employees would not have such a direct and substantial effect upon
interstate commerce as to be cognizable under the Act.
The Employer, in the course of his business operations, regularly receives a
substantial volume of merchandise, comprising about 44 percent of his total
purchases, directly through the channels of interstate commerce. In addition,
a substantial proportion of the merchandise delivered to him from points within
the State of California originates from outside that State. It is too well-
settled to require citation of authority that the operation of such a business
involves and affects interstate commerce to such an extent as to bring it under
the jurisdiction of the Board. On occasion the Board has declined to exercise
its jurisdiction over retail enterprises similar to that of the Employer, but such
action has been based on policy considerations not properly within the province
of the undersigned. The sole issue confronting the undersigned is whether the
Board has jurisdiction over the case at bar, not whether, as a matter of public
policy, it should assert it.
It is found that the Employer, H. W. Smith, doing business as A-1 Photo
Service, is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 905 of the Retail Clerks International Association (AFL), is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. History of bargaining between the Employer and the Respondent Union
The Employer hired the first clerk for his San Pedro store during the latter
part of 1944. Informed by the clerk that she was a member of the Respondent
Union (hereinafter called the Union), the Employer signed a collective bar-
gaining contract with that organization, covering the clerk's wages, hours, and
working conditions. Shortly before the expiration of the aforesaid contract
on January 31, 1945, the Employer joined the San Pedro Business Men Asso-
ciated, Inc. (hereinafter called the Associated), which, as its name implies, is
an organization composed of business men of the San Pedro area, and which,
among other activities, bargains collectively with the Union on behalf of those
of its members who employ clerical workers. The Associated negotiated a
master-contract with the Union, which was effective for a year beginning Feb-
ruary 1, 1945, and the Employer became a party thereto by ratifying it. There-
after the Employer, through his bargaining representative, the Associated,
entered into contracts with the Union from year to year, the last such contract
becoming effective on February 3, 1947, for a term expiring January 31, 1948.
Shortly after entering into his second contract with the Union in February
1945, the Employer hired an additional clerk ; about a year later, he employed
a third clerk. Since then, he has continuously had three clerks in his employ
" Smith testified without denial, and the undersigned finds, that he regularly employs
three clerks at his San Pedro store, sometimes, during certain rush periods, adding a fourth
clerk to his sales staff.
LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL 573
at his San Pedro store. During periods of increased business such as occur
at the Christmas season and during the summer months, he temporarily adds
an extra clerk to his sales staff. Included in all the aforesaid contracts to which
the Employer and the Union have been parties, were clauses providing that the
Employer "employ only members in good standing with" the Union, and that
"after a new employee is hired and prior to going to work, said employee shall
obtain a Clearance Card from the office of the Union immediately." Pursu-
ant to such contracts, the Employer has, since 1944, hired as clerks only mem-
bers of the Union, who submitted to him a "clearance card" issued by the Union,
indicating that the new employee was a member of, and approved by, the Union
for employment in the Employer's store. .
B. Bargaining between the parties since the effective date of the Labor
Management Relations Act, 1947
Certain provisions of the Labor Management Relations Act, 1947, amending
the preceding National Labor Relations Act, went into effect on August 22,
194V Among other changes effected by these amendments , is one making the
"closed shop" illegal.
The last contract in effect between the Union and the employers represented by
the Associated provided that it was to "continue until January 31 , 1948, and
from year to year thereafter , subject to alteration or amendment by written notice
given by either party thirty days prior to each January 31st ." The contract also
embodied clauses reading as follows :
1. After a new employee is hired and prior to going to work, said employee
shall obtain a Clearance Card from the office of the Union immediately.
2. The [ Employer ] agrees to employ only members in good standing with
[the Union].
In a letter dated November 29, 1947 , and delivered by registered mail on De-
cember 1, 1947, the Associated notified the Union that it did not desire to renew,
alter, or amend the aforesaid contract , but that it did desire that the agreement
terminate by its terms "as of midnight January 30 , 1948." The letter also in-
formed the Union that the Associated had been designated as collective bargaining
representative of the employer-parties to the contract , for the purpose of "meet-
ing, conferring, and negotiating a new contract with representatives of your
union at reasonable times on and after December 1, 1947." The Associated never
received an answer to the aforesaid letter. A few days later , however, on or
about December 3, Smith and other employers represented by the Associated 10
received mimeographed letters, addressed to "Business Men and Women of the
'The new Act was enacted on June 23, 1947. Pursuant to Section 104 thereof, the
amendments contained in Section 8 (a) (3), and 8 (b) (1), (2 ), and (3 ), which are
involved in this proceeding, became effective 60 days thereafter.
'('There is in evidence an authorization card dated December 4, 1947 , signed by Smith
and delivered by him to the Associated , wherein he designates the Associated as his
representative "for the purpose of meeting , conferring and negotiating a new contract with
the representatives of Local 905 at reasonable times hereafter ; provided that any nego-
tiations or agreements between [the parties ] shall not be binding on the undersigned
Employer until such time as the Employer shall have ratified and signed the agreement."
The above authorization card was apparently signed in order to extend the Associated's
authority to represent the Employer, which , as is apparent from the findings heretofore
made, it possessed sinte^the latter part of 1944 The undersigned. finds that at all times
material herein, the Associated was the duly designated collective bargaining representa-
tive of the Employer, with authority to negotiate on his behalf , subject to his ratification,
collective bargaining contracts with the Union.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harbor District," and bearing the typed signature of Respondent Tidwell, as
secretary of the Union, appealing to the employers to "reconsider the action"
taken by the Associated, and to "withdraw the notice of termination of our work-
ing agreement and to continue for another year the present agreement that we
have." The letter also stated that the members of the Union had "voted unani-
mously at their last meeting not to ask for any increase or to make any change
in the present working agreement for another year." It went on to say that
the attorneys for the Associated had advised "many of the business men that the
present contract is a violation of the Taft-Hartley Law," but that "this is not
true. Any attorney who is not looking for business will tell you that the National
Labor Relations Board has never taken jurisdiction over any retail establishment,
except very large stores that are engaged in interstate commerce." The letter
predicted that "if these lawyers are going to talk the Business Men into reopening
the contract, an economic struggle which will be disastrous to the community
will develop. . . ."
On December 5, 1947, the Associated mailed a proposed new contract to the
Union, and in a covering letter requested the Union to set a date for a meeting
with the negotiating committee and attorneys of the Associated,' for the pur-
pose of negotiating a new agreement. Pursuant to arrangements made over
the telephone between President Malone of the Associated and Secretary-
Treasurer Tidwell of the Union, Tidwell appeared at the offices of the Associated
on December 9, 1947, where the negotiating committee of the Associated and
its attorneys were waiting to meet with him. Tidwell met the acting secretary
of the Associated in an outer office, and asked to see Malone. Malone, and
Neary, one of the Associated attorneys, left the inner office, in which the repre-
sentatives of the Associated were gathered, and after some time returned to
the group and announced that Tidwell had left, refusing to meet with them
because of the presence of the attorneys.
In a letter addressed to Tidwell as secretary of the Union, dated December
10, 1947, the Associated reiterated its request for a meeting to negotiate an agree-
ment. No answer was received by the Associated to this letter.
On December 31, 1947, the Associated mailed a letter to the Director of the
Federal Mediation and Conciliation Service, notifying him, pursuant to the
requirements of Section 8 (d) (3) of the Act, that a dispute existed between
itself and the Union, arising out of "the failure and/or refusal of the Union to
bargain collectively with the [Associated] who are the duly authorized collective
bargaining representatives of approximately 67 retail stores in San Pedro,
Wilmington and Torrance." A copy of this letter was mailed to the Union.
On January 20, 1948, for the first time since the Associated had requested con-
ferences to discuss a new contract for 1948, committees representing the Union
and the Associated met. Present for the Union were Tidwell and two other
representatives. Attorneys Neary and Binkley, and several members of the
negotiating committee of the Associated, excluding Smith, represented the latter
organization. Neary outlined the proposals of the Associated with respect to
a new contract, taking the position that the employers could not renew the
agreement then in effect as was demanded by the Union because it contained
a closed shop provision. Neary also proposed that the new agreement include
an arbitration clause. To this Tidwell replied that "under no circumstances
would he change one comma, one period, or one word in the contract as it had
ss The negotiating committee of the Associated consisted of H. W . Smith , the charging
Employer herein, W. T. Grace, and President B. M. Malone of the Associated. Its legal
counsel were the same as those appearing for the Employer at the hearing.
LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL 575
existed from 1947 to 1948." A discussion ensued during which Neary suggested
that the first two paragraphs of the 1947 contract (which have been set forth
above) might possibly be interpreted as constituting "union shop" rather than
"closed shop" provisions-especially in view of the language of the first para-
graph-and that if so interpreted, such a provision "would be permitted under
the Labor Management Act." Tidwell objected to any such interpretation, stat-
ing that "no employer in San Pedro is going to hire any employees except mem-
bers of my union. And they haven't hired any except members of my union."
Neary then asserted that on occasion, when employers had sought to hire extra
help for rush periods, the Union had refused to issue clearance cards to non-union
members who had been offered such employment, and who had applied for mem-
bership in the Union, in order to become eligible to accept the offered employ-
ment. Tidwell admitted that this was true, explaining that the Union would not
accept new members so long as existing members were not employed. In response,
Neary contended that this constituted a "closed union," and that "a closed union
together with a closed shop . . . was illegal under the laws of California." "
Tidwell closed the discussion by remarking, "Mr. Neary, if you want to fight this
out, you fight it out in the Courts with Mr. Schullman [counsel for the Union].
And I will fight it out with blood on the streets with the employers of San Pedro."
A week later, on January 27, 1948, the negotiating committee of the Associated
(without its attorneys), met with Tidwell and two other representatives of the
Union. On this occasion the representatives of the Associated again requested
that the closed-shop clause of the old contract be eliminated, and that the new
contract contain provisions for arbitration and a no-strike guarantee. Tidwell
offered to enter into a contract with the Associated on the latter's own terms,
on condition that the Associated persuade the management of certain J. • C.
Penney stores, formerly operated in San Pedro and nearby towns, to reopen its
said stores, and to observe union conditions with respect to the clerks employed
therein. As an alternative, Tidwell proposed, the Union would make the afore-
said concession with respect to a new contract, if the Associated would publish a
statement in a newspaper denouncing the Penney management for refusing to
pay the union wage sale.18 After putting forward these proposals, Tidwell left,
saying that if the Associated would comply with the aforesaid conditions,
another meeting could be arranged to discuss a new contract. The Associated
did not accede to the Union's aforesaid proposal with respect to the Penney
Company 34 The next day, Attorney Binkley had a telephone conversation with
Tidwell, during which he asked Tidwell whether he was insisting that the
employers renew the old contract without any changes. Tidwell answered that
that was correct. BinI ley then asked, "Wouldn't that leave us, then, with noth-
ing but a straight closed shop?" To this Tidwell replied, "I don't care what
you call it." Binkley asked, "Will you modify that closed shop in any way if
we can submit evidence to you that some of our employers are in interstate
commerce?" Tidwell's answer to this was, "We won't modify a damn thing."
The conversation closed with Binkley asking when the Union would be willing
ss The findings as to the discussion at the above -described meeting are based on the
credited testimony of Attorney Binkley, which was corroborated by that of the witness
Grace. In his brief , counsel for the Employer urges that a finding be made that the Union
is a "closed union," in violation of Section 8 (b) (2) of the Act. The undersigned makes
no such finding, since he does not deem that issue to have been raised by the complaint
or to have been litigated at the hearing. In any event, the evidence in the record is not
viewed by the undersigned as sufficient upon which to base a finding.
13 The Penney Company was not a member of the Associated.
14 The above findings are based on the credited testimony of Smith and Grace.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to "meet and negotiate further," and Tidwell answering, "We won't. We are
through." 16
On February 3, 1948, the negotiating committee and counsel for the Asso-
ciated, and three representatives of the Union, including Tidwell, met with
mediators representing the Federal Government and the State of California.
At the suggestion of the Federal mediator, counsel for the Associated outlined
the background of the dispute; indicating that the two points of difference be-
tween the parties were : (1) The Union's insistence on the retention of the
closed-shop provision in the contract, and the employers' contention that this was
prohibited by law; and (2) The proposal of the Associated that arbitration and
no-strike clauses be added to the contract, and the Union's refusal to accept
this proposal. Tidwell then spoke for the Union, asserting that he had never
had trouble in the past in reaching agreements with employers of the San Pedro
area ; that the Union had always been able to resolve disputes with employers
without an arbitration provision ; and that the closed-shop clause was a neces-
sary protection for the membership of the Union, which he would not consent
to eliminate. He concluded with the statement that the Union would make no
change whatsoever in the old contract. When the mediator suggested that ar-
rangements be made for further meetings. Tidwell said that he "would meet
and meet and meet until hell freezes over, but that he would not make any
changes in the old contract." The mediator then asked Tidwell to promise to
refrain from taking any economic action against any employer represented by
the Associated, in order to compel the employer to sign up individually with the
Union.- Tidwell refused to make any such promise, saying that he would take
whatever action the members of the Union voted for. Tidwell then asked to
be excused, and the meeting concluded."
During the few days immediately preceding the above-described meeting with
the mediators, namely on January 30, 31, and February 2, 1948, the charging
Employer herein received telephone calls from Tidwell, in which the latter
asked the Employer to sign for another year the contract which had just ex-
pired. The Employer told Tidwell that he had authorized the Associated to
negotiate a contract for him, and that he would not individually sign an agree-
ment with the Union. Tidwell argued that the old contract was not illegal, and
that the Employer "was practically the only one who had not signed it." The
Employer stated that he had been advised by counsel that a closed-shop contract,
was illegal, and that he would not sign such a contract."
1s The above findings are based on' Binkley's credited testimony ; the detailed quotations
were recollected by the witness with'the aid of an affidavit with respect to the conversa-
tion, based on notes taken by him at the time the conversation took place.
16 The above findings are based on the'credited testimony of Binkley, Smith, Grace, and
DeLaney, whose recollections as to the discussion were in substantial agreement.
14 Based on the credited testimony of Smith
Charles E. Williams, operator of a furniture store in' San Pedro, testified that although
he is a member of the Associated, he was approached by Tidwell several times prior to the,
expiration of the 1947 contract, and was requested to sign a new contract with the Union
as an individual employer. When Williams inquired why he was being asked to enter-
into an agreement by the Union prior to negotiations with the Associated, despite the
fact that he had authorized that organization to bargain for him, Tidwell answered that
"he was operating this year in a different manner," and that if Williams "didn't want any
trouble," he "better sign it, because we never could reach an agreement through any
lawyer that the [Associated] could employ." Williams finally acceded to Tidwell's
demand , and on January 31, 1948, signed a contract with the Union, effective from Feb-,
ruary 1, 1948, to January 31, 1949, which contained identical terms as those incorporated
In the preceding agreement . The undersigned credits Williams' testimony with respect
to the foregoing , and finds that the incidents occurred as above summarized.
LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL 577
On or about April 1, 1948, the Central Labor Council of San Pedro and Wil-
mington notified the Employer that at the request of the Union, it had placed
the Employer's "firm on [its] official We Don't Patronize List." 1B
Since the events hereinabove summarized, the Union has requested no further
collective bargaining conferences with the Associated or with the employer, and
on such meetings between representatives of the parties has been held.19
0. Concluding findings
1. The refusal to bargain
(a) The appropriate unit
The complaint alleges that "all clerical employees excluding supervisors em-
ployed by the Employer at his place of business in San Pedro, California, con-
stitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9 (b) of the Act. . . ." That allegation stands undenied in
the record. Moreover, the evidence establishes, and the undersigned finds, that
the only employees employed in the San Pedro store of the Employer are three
regular sales clerks, a fourth clerk added temporarily to the sales staff during
seasonal rush periods, and a part-time public accountant. The Employer him-
self, and his wife, act as supervisors. Since 1944, when the Employer hired his
first clerk, rntil the expiration of the contract between himself and the Union
on January 31, 1948, he has been a party to collective bargaining contracts with
that organization, covering the wages, hours, and working conditions of the
clerks in his employ. These agreements, being in the form of master-contracts
negotiated between the Associated and the Union, and to which the employers
represented by the Associated became parties by their ratification thereof, did
not describe the units in any of the enterprises covered by the contracts, but
merely listed the classifications of employees so covered. Smith's testimony,
4owever, makes it clear that it was understood between the parties that the unit
consisted of the clerks in his employ at his San Pedro store. Since, so far as
appears, the unit thus agreed upon satisfactorily served the parties as a basis
for collective bargaining throughout the history of their relationship, the under-
signed concludes and finds that all clerical employees, excluding supervisory em-
ployees and the public accountant employed on a part-time basis, by the Employer
at his place of business in San Pedro, California, constitute, and at all times
material herein constituted, a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
(b) Representation by the Uweon of a majority of employees in the appropriate
unit
Smith testified that in accordance with the contracts between himself and
the Union, he had never hired as clerks anyone except members of the Union,
11
At a meeting of the Central Labor Council held on or about March 22, 1948, Secretary
Tidwell of the Union had presented to the Council his organization 's complaint that the
Employer had refused to sign a contract with it , and counsel for the Employer had stated
his client's version of the dispute . The findings with respect to this incident are based
on the testimony of Smith and Binkley , and on communications from the Council to
Smith, which are in evidence.
11 Based on the credited testimony of Smith and Binkley.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who presented to him a clearance card from that organization attesting to their
membership therein. He testified further that so far as he knew all of the
clerks in his employ were still members of the Union since none had ever indi-
cated that he or she had withdrawn therefrom. The record thus makes it clear,
and the undersigned finds, that at all times since November 1, 1947, the Union
has been the duly designated representative of all of the employees in the appro-
priate unit above defined, and that, by virtue of Section 9 (a) of the Act, it has
been and is now the exclusive representative of all the employees in sucn unit
for the purposes of collective bargaining in respect to rates of pay, wages, hours
of employment, or other conditions of employment.
(c) The Respondents' refusal to bargain in violation of Section 8 (b) (3)
of the Act
Section 8 (b) (3) of the Act makes it an unfair labor practice for a labor
organization or its agents "to refuse to bargain collectively with an employer, pro-
vided it is the representative of his employees subject to the provisions of
Section9 (a)."
As appears from the findings hereinbefore made, the Employer, through the
Associated, his duly designated collective bargaining representative, repeatedly
requested the Union, which was the collective bargaining representative of
his employees in an appropriate unit, to bargain with him concerning a new
contract to replace that expiring in January 1948, and the Union through its
agent, Tidwell, adamantly insisted that the old contract be renewed without
any change whatsoever. The only occasion on which the Union indicated any
willingness to reach an agreement not identical with the one previously in
effect between the parties, was on January 27, 1948, when Tidwell stated that
he would accept a contract on the Employers' terms, provided the Associated
induce the J. C. Penney Company to pay the union scale of wages to its em-
ployees, or, in the alternative, publicly denounce the Penney Company for its
refusal to do so. When the Associated refused to accede to this condition,
the Union resumed, and thereafter unswervingly adhered to its position that it
would sign no'contract with the Employer except one incorporating the exact
terms of the old one. The Employer was under no obligation to interfere in
a labor dispute to which he was not a party, and the Union had no right to
make such interference on his part a condition of reaching an agreement By
insisting that it would sign no contract which in any way departed from the
terms of the preexisting agreement, the Uniou took the position that any contract
negotiated between itself and the Employer must provide for a closed shop, for,
as we have seen, such a clause was written into the previous contract, and was
enforced by the parties. The issue arising from this posture of the facts
is whether the unyielding insistence on the part of the Union and its agent,
Tidwell that the Employer sign a closed-shop contract, constitutes, on their part,
a refusal to bargain within the contemplation of Section 8 (b) (3) of the Act.
The General Counsel contends that since the Act prohibits a closed-shop con-
tract, the Respondents' aforesaid conduct constituted a refusal to bargain in
good faith. The undersigned finds it unnecessary to pass on the good faith
of the Respondents. There is nothing in the record which casts doubt on the
good faith of the Respondents in contending to the Employer throughout the
negotiations between them, and before the undersigned at the hearing, that the
business operated by the Employer is not engaged in commerce within the mean-
ing of the Act, and that, therefore, the, prohibitions of the Act do not apply
LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL 579
to the relationship between the Union and the Employer. But the good faith
of their belief that the Act has no application to the present controversy, affords
the Respondents no defense. The Act outlaws the closed shop, and the Em-
ployer was therefore entitled to refuse to entertain any proposals from the
Union providing for such an arrangement. As a corollary, the Union and its
agent cannot be said to have been bargaining within the contemplation of the
Act when they steadfastly refused to agree to any contract not containing that
illegal provision. Although the Respondents based their insistence on a closed-
shop contract, which is prohibited by the Act, on their assumption that the
Employer's business operations are of such a nature as to render inapplicable
the prohibitions of the Act, they took the risk that this assumption was incor-
rect. That issue having been resolved against them, it follows that regardless
of the bona fides of their belief, their conduct has constituted a violation of
their statutory duty to bargain with the Employer. On the basis of the fore-
going, and the entire record, the undersigned concludes and finds that on or about
December 3, 1947,20 and at all times since, the Union, and the Respondent Tidwell
as its agent, refused, and have continued to refuse to bargain collectively with
the Employer, as representatives of the latter's employees in an appropriate
unit, in violation of Section 8 (b) (3) of the Act 21
(d) Alleged restraint and coercion of the Employer's employees by the Respond-
ents, in violation of Section 8 (b) (1) (A)
The complaint alleges that by "refusing to bargain collectively in good faith
with the Employer . . . [and) attempting to impose and imposing upon employees
of the Employer certain conditions of employment requiring said employees as a
condition of employment to obtain and maintain membership in [the Union] in
contravention of the Act," the Respondents, in violation of Section 8 (b) (1) (A)
of the Act, restrained and coerced the said employees in the exercise of the rights
guaranteed in Section 7. The latter section reads as follows :
Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, and shall
10 On the above date, following the first request of the Associated that the Union
negotiate a new agreement with it, the Union, through Tidwell, mailed letters to the
employers represented by the Associated, taking the position that it wished to renew the
old contract without any change
21 Some question may be raised as to the propriety of the above finding with respect
to the Respondent Tidwell. It might be argued that the Union, not Tidwell, bore the
obligation to bargain, since it, not he, was the bargaining representative of the employees
Since no duty to bargain rested upon Tidwell, this line of reasoning would go, no finding
may be made that he engaged in conduct violative of that duty. The record establishes
that Tidwell was at all times herein material an officer, to wit, secretary, of the Union,
and that he represented the Union in all its dealings with the Employer. His role as
agent of the Union is thus beyond question It was through Tidwell that the Union
engaged in the conduct which constituted the refusal to bargain Tidwell s conduct as
agent of the Union, was, in other words, violative of the Union's duty to bargain The
undersigned is persuaded that in undertaking the role of agent of the Union, Tidwell
assumed the obligation resting upon his principal to bargain collectively with the Em-
ployer The'language of the Act seems to answer in the affrrmatide the question whether
an agent of a labor organization may be held answerable for acts committed by him in his
representative capacity. Section 8 (b) reads: "It shall be an unfair labor practice for a
labor organization or its agents ( to engage in the conduct thereinafter defined )." [ Em-
phasis supplied.]
11
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also have the right to refrain from any or all of such activities except to
the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized in
Section 8 (a) (3).
It is the contention of the General Counsel that the conduct of the Respondents
which has been found to constitute a refusal to bargain with the Employer, had
the effect of restraining and coercing his employees in the exercise of their rights
as above set forth . This theory , it seems to the undersigned, can be sustained
only if it is found as a fact that the Union is not the freely chosen collective bar-
gaining representative of the Employer 's employees , acting on their behalf, and
executing their wishes , but that in its negotiations with the Employer it was
seeking to impose on him terms to which the employees, as well as the Em-
ployer, were ' opposed . The record contains nothing on which to base such a
finding. It will be remembered that all of the employees of the -Employer are
members of the Union , and that , consequently , the Union has been found to be
their duly designated agent for purposes of collective bargaining . Indeed, that
finding was urged by the General Counsel in his complaint , and it was an indis-
pensable element of his case with respect to the refusal of the Respondents to
bargain. In the absence of evidence indicating that the Union , the freely chosen
agent of the employees , has conducted itself contrary to the instructions of its
principals vis a vis the Employer , the allegation of the complaint that the Re-
spondents restrained and coerced the employees must necessarily fall unless
there is some rule of law creating a presumption that , in the circumstances of
this case , the Respondents ' conduct was contrary to the desires of the employees.
The undersigned is aware of no such legal principle.
Counsel for the Employer has submitted a brief urging that conduct in viola-
tion of Section 8 (b) (3) of the Act is automatically in contravention of Sec-
tion 8 (b) (1) (A ). He points out that a refusal to bargain on the part of an
employer , in violation of Section 8 (5) of the old Act ( Section 8 (a) (5) of the
Act as amended ) has always been considered to constitute a violation of Sec-
tion 8 (1) of the old Act, and Section 8 (a) (1) of the Act as amended. "Is it
rational , then , and consistent," be asks, "to say that what is an unfair labor
practice by the employer under 8 (a) (1) is not an unfair labor practice by the
Union under 8 (b) (1) (A)?"
The undersigned is persuaded that the foregoing question must be answered
in the affirmative . Reference to the language of the Act discloses that Section 8
(a) (2), (3 ), (4) and ( 5) are merely particularized definitions of some types
of employer-conduct having the effect, generally described in Section 8 (a) (1),
of interfering with , restraining , and coercing employees in the exercise of their
rights as guaranteed in Section 7. The logical conclusion from these facts is that
any conduct by an employer which is prohibited by Section 8 (a) (2), (3), (4)
,or (5), necessarily constitutes a violation of the employer 's obligation, as formu-
lated in Section 8 (a) (1), to refrain from interfering with , restraining, or co-
-ercing his employees in the exercise of their statutory rights. However, this
nine of reasoning cannot be applied mechanically to acts committed by a labor
- organization .(or its agent ), which are violative of Section 8 (b) (3) of the Act,
lbecause the -same interrelationship between such acts and those proscribed by
.Section 8 0) (1) (A) does not exist as between employer-conduct violative of
ithose,subsections of 8 (a ) other than 8 (a) (1) and the latter. When an employer
,commits'anyfunfair labor practice , such conduct on his part constitutes a viola-
tion of Section,8 ((.a) (1) because that section is a formulation in general terms
LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL 581
of the various specific forms of employer-conduct defined as interference with,
restraint , or coercion of the employees' rights. But when employees, acting
through their chosen bargaining agent, elect to engage in conduct which consti-
tutes a refusal to bargain as defined in Section 8 (b) (3), it is not logical to con-
clude that they thereby restrained and coerced themselves in violation of Sec-
tion 8 (b) (1) (A).
Counsel for the Employer contends in his brief that there is a presumption
that the Respondents herein, by insisting on a closed-shop contract, were acting
-contrary to the wishes of the membership of the Union, because, as he asserts,
the law will presume that "the members of a Union have authorized their agents,
in this case the Respondents, to do that which is legal, namely, to bargain with
the employer as required by the provisions of the Act. No authority is cited
in support of this proposition. So far as appears from the record, none of the
employees herein involved has ever revoked the authority of the Union to act
as his collective bargaining representative, nor is there any showing that any
member has ever repudiated the Union's authority to demand, on his behalf, a
renewal of the closed-shop contract." Unless we are to presume that the member-
ship of the Union has no voice in the determination of its policies, which the
undersigned has no warrant to believe, it must be concluded that the Union and
its agent, Respondent Tidwell, were authorized by the membership to take the
position they did in their negotiations with the Employer. As a matter of fact,
the labor organization herein involved is not unique in contending that the
employers with which it has bargaining relationships are not engaged in com-
merce, or that, for some other reason, the prohibitions of the Act against the
closed shop do riot apply to them, and in insisting, therefore, that its demands
for closed-shop agreements are perfectly proper. A number of cases arising out
of such contentions are presently awaiting final determination by the Board and
the Courts. In these circumstances, it would not be surprising if the member-
ship of the Union herein involved, as well as of the others mentioned, had
authorized their bargaining agents to seek a test before- the proper tribunals,
of their aforesaid contentions.
The undersigned, for the foregoing reasons, will recommend that the complaint
be dismissed insofar as it alleges that the Respondents' conduct in demanding
a closed-shop contract was violative of Section 8 (b) (1) (A) of the Act:21
22 For whatever help they may be to an analysis of this issue, the undersigned refers
to the following recognized principles of the law of agency : An agent ' s apparent powers
are considered to be his real powers, and the expression , "apparent authority" is defined
as connoting that authority which a principal holds his agent out as possessing, under
such circumstances as to estop the principal from denying its existence ( 2 Corpus Juris
Secundum, Agency, Sec. 96 (a) and (b) ). The authority which the principal intended
that the agent have may be implied from the principal's acquieseense in the exercise by the
agent of his powers. (Ibid., Sec 99 (a) ).
"In answer to the argument of counsel for the employer that they were restrained
from so doing by reason of the closed-shop conditions under which they were employed,
it may be pointed out that the closed-shop contract in effect between the Union and the
employer expired at the end of January 1948, and has never been renewed; that the
hearing herein ended on May 4, 1948; and that despite the announced firm intention of
the employer to refuse to agree to a renewal of a closed-shop contract , no member of the
Union has been shown to have repudiated the authority of the Union to represent him,
or to take the position taken by that organization with respect to its demand for a
closed-shop contract.
sa Counsel for the employer advances the argument in his brief that the Respondents'
"boycott to force the employer to threaten his employees with discharge if they do not
remain members of the Union is in itself a restraint upon the employees in the exercise
of their rights under Section 7." This reference to a boycott is undoubtedly to the listing
844340-50-vol. 83-38
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Alleged attempts by the Respondents to cause the Employer to discriminate
against his employees , in violation of Section 8 (b) (2) of the Act
Section 8 (b) (2) of the Act prohibits a labor organization or its agents from
causing or attempting to cause "an employer to discriminate against an employee
in violation of subsection (a) (3) or to discriminate against an employee with
respect to whom membership in such organization has been denied or terminated
on some ground other than his failure to tender the periodic dues and initiation
fees uniformly required as a condition of acquiring or retaining membership."
[Italics supplied.]
The complaint alleges and the General Counsel contends that the Respondents'
conduct in insisting that the Employer sign a closed-shop agreement constituted
an attempt to cause the Employer to discriminate against his employees, in
violation of Section 8 (b) (2).
In support of the aforesaid contention of the General Counsel, counsel for the
Employer argues in his brief that "if it is an unfair labor practice under 8 (a) (3)
for an employer to sign a closed-shop agreement, and an unfair labor practice
under 8 (b) (2) for a union to attempt to cause an employer to violate 8 (a) (3),
it is an unfair practice under 8 (b) (2) for the Union to attempt to cause an
employer to sign a closed-shop contract." This argument is based on the stated
assumption that "it is an unfair labor practice under 8 (a) (3) for an employer
to sign a closed-shop agreement." To the extent that this statement implies
that the argument fails if the assumption upon which it is founded is shown
to be incorrect, the undersigned finds himself in agreement with it. The perti-
nent provisions of Section 8 (a) (3) make it an unfair labor practice for an
employer to discriminate in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any labor
organization. The commonly accepted definition of the word, "discriminate,"
in the sense in which it is used in this section, is, "to make a difference in
treatment or favor of one as compared with others." 25 To hold that the mere
signing of a contract by an employer, in which he agrees to discriminate against
non-members of a union, constitutes the act of discrimination, would be unduly
to distort the plain meaning of the word. The undersigned is convinced that
discrimination does not take place within the meaning of Section 8 (a) (3) until
the employer actually treats an employee, or applicant for employment, differ-
ently from others in respect to hire or tenure or some term or condition of
employment, based on his membership or non-membership in a labor organization.
Since what the Respondents were attempting to cause the Employer to do, namely
to sign a closed-shop contract, would not in itself constitute discrimination as
prohibited by Section 8 (a) (3), their said conduct should not be found to have
been in violation, of Section 8 (b) (2). This is not to say, as counsel for the
Employer argues, that the prohibition of the Act against closed-shop contracts
can be enforced "only after the performance of such illegal contract . . .
[which] will tend only to encourage and facilitate violations of the Act, add to the
difficulties of enforcement, and frustrate the intent and purposes of Congress."
While a threat or promise to discriminate, on the part of an employer, does not
of the employer on the "unfair list" of-the Central Labor Council, which action was
taken at the request of the Respondents. For the same reasons as above stated, the
undersigned sees no merit in this contention. We are called upon to presume, without
supporting evidence, that the action initiated by the employees themselves, through their
Union, had the effect of restraining themselves in the exercise of their rights under the Act.
u Webster's Collegiate Dictionary, Fifth Edition (G. &-C. Merriam Co.).
LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL 583
constitute discrimination, it is undoubtedly true that such a threat does have
the effect of restraining or coercing his employees, and prospective employees, in
the exercise of their right to join or refrain from joining a labor organization.
Consequently the signing by an employer of a closed-shop contract would con-
stitute a violation of Section 8 (a) (1) of the Act. Thus, in a proper case, the
remedial powers of the Board would be available to enjoin the execution or per-
formance of such a contract even before any acts of discrimination had taken
place.'s But in the present proceeding we are not faced with this problem, since
the Employer has refused to sign the closed-shop contract tendered by the Union.
Moreover, it having been found that the Respondents' insistence on this illegal
contract constituted a violation of Section 8 (b) (3), an order designed to remedy
the effects of that unfair labor practice, and enjoining such conduct on their part
in the future, will be recommended. Since to find a violation of Section 8 (b) (2)
on the part of the Respondents, based on the same conduct, would necessitate a
strained interpretation of the language of the statute, and since the policies of
the Act will in any event be fully effectuated by the order directed against the
8 (b) (3) violation, the undersigned will recommend that the complaint be dis-
missed insofar as it alleges that the Respondents' insistence upon a closed-shop
contract constituted a violation of Section 8 (b) (2) 27
IT. 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 business operations of the Employer, described in Section
I above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Union, and the Respondent Tidwell, as
its agent, have refused to bargain within the meaning of Section 8 (b) (3) of
the Act, and in order to effectuate the policies of the Act, the undersigned will
recommend that they cease and desist therefrom and, upon request of the Em-
ployer, or his duly designated representative, bargain with him.
The undersigned will also recommend that the Respondents post appropriate
notices to the membership of the Respondent Union, which it is found, will
effectuate the policies of the Act.
20 See, for example, the following Board decisions, in which the Board has adhered to a
consistent policy of refusing to find that an employer's conduct in entering into a dis-
criminatory contract constituted a violation of Section 8 (3) of the old Act, but in which
it has pointed out that its remedial order directed against the 8 (1) violation adequately
effectuated the policies of the Act : Matter of Palmer Fruit Co., 51 N. L. R B. 924, 925;
Matter of Worthington Creamery and Produce Go, 52 N. L. R. B. 121, 122; Matter of
Flotall Products, Inc., 70 N. L. R. B. 119, 122; Matter of G. W. Hume Co., 71 N. L R. B.
533, 534.
27 Although the complaint contains no such allegation, counsel for the Employer con-
tends that "there is evidence in the record that Respondent Haskell Tidwell has, by his
own admission" discriminated against employees by denying them membership in the
Union on grounds other than their failure to tender the dues and initiation fees uniformly
required as a condition of acquiring membership, thus causing them to be refused employ-
ment. He argues that this conduct by Tidwell constituted a violation of Section 8 (b) (2.).
As has'been above found with respect to a similar contention advanced by counsel for the
Employer, the undersigned does not deem this issue to have been properly raised, nor
does he regard the evidence in the record as adequate to support a finding.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAW
. 1. H. W. Smith, doing business as A-1 Photo Service, at San Pedro, California,
is engaged in commerce within the meaning of Section 2 (6) and (7) of the
.Act.
2. Local 905 of the Retail Clerks International Association (AFL) is a labor
organization within the meaning of Section 2 (5) of the Act.
3. Haskell Tidwell, secretary of the Respondent Union, is, and at all times
material herein was and acted as, an agent of the said Union for the purpose
of collective bargaining with the Employer.
4. All clerical employees, excluding supervisory employees and the public
accountant employed on a part-time basis, by the Employer at big ---,---e of
business in San Pedro, California, constitute, and at all times material herein
constituted, a unit appropriate for the purposes of collective bargaining, within
-the meaning of Section 9 (b) of the Act.
5. Local 905 of the Retail Clerks International Association (AFL) was at
all times material herein, and now is, the exclusive bargaining representative of
-the employees in the aforesaid unit for purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
6. By refusing to bargain collectively with the Employer, the Respondent
Union and the Respondent Tidwell as its agent, have engaged in and are engag-
ing in unfair labor practices within the meaning of Section 8 (b) (3) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
.commerce within the meaning of Section 2 (6) and (7) of the Act.
8. By their aforesaid conduct the Respondents have not engaged in unfair
-labor practices within the meaning of Section 8 (b) (1) (A) or Section 8 (b)
'(2) of the Act2B
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that Local 905 of the Retail Clerks International Asso-
ciation (AFL), Haskell Tidwell as its agent, and its other officers and agents
:shall : '
1. Cease and desist from refusing to bargain collectively with H. W. Smith,
doing business as A-1 Photo Service, of San Pedro, California, or with his duly
designated collective bargaining representative, as the exclusive representative
of the said Employer's clerical employees, excluding supervisory employees
and the public accountant employed by him on a part-time basis, at his said
-place of business in San Pedro, California, with respect to rates of pay, wages,
hours of employment, and other conditions of employment ;
2. Take the following affirmative action, which the undersigned finds will
,.effectuate the policies of the Act :
(a) On request, bargain collectively with the aforesaid Employer or his duly
designated collective bargaining representative, as the exclusive representative
.of the employees composing the unit above found to he appropriate for the pur-
28 In his brief, counsel for the Employer submitted proposed conclusions of law Con-
sistent with the conclusions of law hereinabove made, the undersigned rules as follows
upon the proposed conclusions filed by counsel for the Employer : Those numbered I
through V, and that numbered VIII, are accepted. Those numbered VI and VII are
]rejected
LOCAL 905 OF THE RETAIL CLERKS INTERNATIONAL 585-
pose of collective bargaining, with respect to rates of pay, hours of employment,
or other conditions of employment, and if an agreement is reached, embody such
agreement in a signed contract ;
( b) Post in a conspicuous place or. places at the business offices and/or
meeting hall of the Respondent Union, or whatever place or places notices or
communications to members are customarily posted, a copy of the notice
attached hereto as "Appendix A," and furnish copies thereof to each member
of the Respondent Union who is employed by the Employer, either by mailing
or by hand ; copies of the said notice to be supplied by the Regional Director of
the Board for the Twenty-first Region. The aforesaid notices shall be posted
and distributed to members immediately upon their receipt, and shall remain
posted as above recommended for a period of 60 days thereafter. Reasonable
steps shall be taken by the Respondents that the posted notice be not altered.
defaced , or covered by other material ;
(c) Notify the Regional Director of the Twenty-first Region in writing within
twenty (20) days from the receipt of this Intermediate Report what steps the
Respondent Union, and the Respondent Tidwell, as its agent, have taken to-
comply herewith.
It is further recommended that, unless the said Respondents shall within
twenty (20.) days from the receipt of this Intermediate Report notify the said
Regional Director in writing that they will comply with the foregoing
recommendations, the National Labor Relations Board issue an order requiring
them to take the action aforesaid.
It is recommended that the complaint be dismissed insofar as it alleges that
the Respondents have engaged in unfair labor practices within the meaning
of Section 8 (b) (1) (A) or Section 8 (b) (2) of the Act.
As provided in Section 203 46 of the Rules and Regulations of the National-
Labor Relations Board-Series 5, effective August 22, 1947, any party may
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Rochambeau Building, Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report and Recommended Order or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in support thereof ; and. any
party may, within the same period, file an original and six copies of a brief in
support of the Intermediate Report and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing
the same shall serve a copy thereof upon each of the other parties. Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.46,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
If no statement of exceptions is filed as provided by the aforesaid Rules and
Regulations , the findings , conclusions, recommendations and recommended order
herein shall , as provided in Section 203.48 of said Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and all
objections and exceptions thereto shall be deemed waived for all purposes.
ISADORE GREENBERG,
Dated July 19, 1948. Trial Examiner,.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE
To MEMBERS OF LOCAL 905 OF THE RETAIL CLERK S INTERNATIONAL ASSOCIATION
(AFL)
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act of 1947, we hereby notify our members that :
WE WILL bargain collectively upon request with H. W. SMITH, doing business
as A-1 PHOTO SERVICE, of San Pedro, California, or with his duly designated
representative, in our capacity as exclusive representative of all the em-
ployees in the bargaining unit described below, with respect to rates of pay,
hours of employment, or other conditions of employment and if an under-
standing is reached, embody such understanding in a signed agreement. The
bargaining unit is:
All clerical employees, excluding supervisory employees and the public
accountant employed on a part-time basis, by the above-named Employer
at his place of business in San Pedro, California.
LOCAL 905 OF THE RETAIL CLERKS-
INTERNATIONAL ASSOCIATION (AFL),
Labor Organization.
By -----------------------------------------
(Agent or Representative) (Title)
HASKELL TIDWELL
As agent of LOCAL 905 OF THE RETAIL
CLERKS INTERNATIONAL ASSOCI-
ATION (AFL)
Dated --------------------
This notice must remain posted for sixty (60) days from the date hereof, and
must not be altered, defaced, or covered by any other material.