Vaughn BowenDownload PDFNational Labor Relations Board - Board DecisionsApr 4, 195193 N.L.R.B. 1147 (N.L.R.B. 1951) Copy Citation HOLLYWOOD RANCH MARKET 1147 VAUGHN BOWEN and ERNEST KNIGHT LAWRENCE FREDERICK, WILLIAM FREDERICK, AND NATHAN GILBERT, D/B/A HOLLYWOOD RANCH MARKET AND BILLS RANCH MARKET' and FRANK PAREDEZ AND SAM LE PANTE SERBER COMPANY, LTD. and CARL SACKS RETAIL CLERKS UNION, LOCAL No. 770, INTERNATIONAL ASSOCIATION OF RETAIL CLERKS, A. F. OF L. and ERNEST KNIGHT RETAIL CLERKS UNION, LOCAL No. 770, INTERNATIONAL ASSOCIATION OF RETAIL CLERKS, A. F. OF L. and FRANK PAREDEZ AND SAM LE PANTE RETAIL CLERKS UNION, LOCAL No. 770, INTERNATIONAL ASSOCIATION OF RETAIL CLERKS, A. F. OF L . and CARL SACKS. Cases Nos. 21- CA-462, PV-CA-463, 21-CA-464, 21-CB-160, -1-CB-161, and 21-CB-162. April 4,1951 Decision and Order On August 28, 1950, Trial Examiner Frederic B. Parkes, 2nd, issued his Intermediate Report in the above-entitled proceeding, find- ing that Lawrence Frederick, William Frederick, and Nathan Gil- bert, d/b/a Hollywood Ranch Market and Bill's Ranch Market, and Serber Company, Ltd. (herein individually referred to as Respond- ent Hollywood and Respondent Serber, respectively), and Retail Clerks Union, Local 770, International Association of Retail Clerks, A. F. of L. (herein called the Respondent Union), had engaged in and were engaging in certain unfair labor practices, and recommend- ing that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that these Respondents had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of those allegations. The Trial Examiner further recommended that the complaint against Vaughn Bowen (herein called Respondent Bowen)2 be dismissed, because he was not engaged in commerce within the meaning of the Act. Thereafter, the Respondents Hollywood and Serber and the Gen- eral Counsel filed exceptions to the Intermediate Report and support- 'These individuals were designated in the complaint and other pleadings as Hollywood Ranch Market However , the record shows that Hollywood Ranch Market, together with Bill 's Ranch Market, is a partnership consisting of those individuals We have so amended all the formal papers. 2 The Respondents Hollywood , Serber, and Bowen are collectively referred to herein as the Respondent Companies 93 NLRB No. 175. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing briefs.3 The Respondent Union's request for oral argument is hereby denied, as the record and briefs, in our opinion, adequately present the issues and positions of the parties. 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 hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, with the exceptions, modifications, and additions noted below : 1. Respondent Bowen's operations, which are fully set forth in the Intermediate Report, do not meet the minimum requirements for the assertion of jurisdiction as established by the Board's recently announced standards 4 We therefore agree with the Trial Examiner that it would not effectuate the policies of the Act to assert jurisdic- tion over the operations of Respondent Bowen, and we shall dismiss the complaint against him. 2. We also agree with the Trial Examiner that Respondents Serber and Hollywood are engaged in commerce, and that it will effectuate the policies of the Act to assert jurisdiction over them. As fully detailed in the Intermediate Report, Respondent Holly- wood operates supermarkets in Los Angeles and Burbank, California. During the 12-month period ending February 28, 1949, the Employer's total purchases were valued at approximately $3,515,000, of which between $280,000 and $490,000 represented goods received directly from points outside the State, and about $2,000,000 worth orginated outside the State. During 1949, the Employer's total sales, all made. within the State, approximated $4,660,000. Respondent Serber operates a grocery department in a supermarket located in Los Angeles, California. During the 12-month period ending April 30, 1949, it purchased goods having an approximate value of $267,000, of which about $667 represented shipments to it from points outside the State, and about $133,000 worth originated a Apart from the merits , the Respondent Union urges the dismissal of the complaint on the grounds that a jurisdictional dispute between the Teamsters and itself which gave rise to this proceeding has ended and the case is now moot , and that the General Counsel failed affirmatively to establish that the charges were investigated prior to the com- mencement of the hearing we find no merit in there contentions. As to the first contention , effectuation of the policies of the Act requires not only that the effects of uniemedied unfair labor practices be dissipated but also that recurrence of similar unlawful conduct in the future be prevented Cory Corporation, 84 NLRB 972. With the respect to the second contention , neither the Act nor the Rules and Regulations of the Board impose upon the General Counsel the burden which the Respondent Union argued must be satisfied "as a prerequisite to this hearing. 7 The General Counsel 's request , in his supplemental brief , for leave ( 1) to withdraw the exceptions in his original brief to the Trial Examiner's recommendation that the complaint against Respondent Bowen be dismissed for lack of jurisdiction , and (2 ) to strike certain portions from his original brief , is hereby granted 4 Cf. The Rutledge Paper Products, Inc, 91 NLRB 625; Dorn's House of Miracles, Ina, 91 NLRB 632 ; Federal Dairy Co., Inc., 91 NLRB 638. HOLLYWOOD RANCH MARKET 1149 outside the State. During 1949, sales, all made within the State, totaled approxima£ely $320,000. In addition, Respondents Serber and Hollywood are members of Food Employer's Council, Inc., a trade organization comprising more than 200 retail grocery market operators and various other employers engaged in the food industry in the Los Angeles area . Since 1941, the Council's president and a committee selected by members of the Council have negotiated, in behalf of the council members who are retail grocery market operators, master bargaining contracts with the Respondent Union covering retail food clerks .-5 Although the asso- ciation members are not bound to adopt the contracts negotiated by the Council, the retail grocery market operators have almost invari- ably adopted the contracts negotiated for them with the Respondent Union.° In January 1948, September 1949, and January 1950, Re- spondents Serber and Hollywood executed with the Respondent Union contracts identical to the master contracts negotiated by the Council.? The record does not disclose the total amount of business done by members of the Council." However, the Council lists among its mem- bership of retail market owners such chain operators as Safeway Stores, Inc., and The Great Atlantic and Pacific Tea Company, and- - Von's Grocery Company, over which the Board recently asserted juris- diction.9 It is clear that, were we to view the operations of these Respondents apart from their connection with the Council, we would assert juris- diction only over Respondent Hollywood. Thus, Respondent Holly- wood's operations affect interstate commerce both by way of direct and indirect inflow, and its indirect out-of-State purchases alone clearly exceed our jurisdictional minimum of $1,000,000 for such pur- chases,1o while Respondent Serber's operations, which affect commerce only by way of indirect inflow, fall short of that minimum?1 "The Council has also negotiated master bargaining contracts with other labor organiza- tions representing employees of association members. The sole exception disclosed by the record took place in 1949 when one of the members, not a party to this proceeding , refused to accept a contract recommended by the Council. 7 Although these Respondents have been in contractual relationship with the Respondent Union since about 1941, the record does not make it clear whether they were members of the Council before the negotiation by the Council of the 1948 contract. 'The Trial Examiner 's finding that "the total sales of the Council's retail grocer membership totaled appioximately $650,000 , 000 annually " lacks evidentiary support in the record. ' Von's Grocery Company, et al, 91 NLRB 504 The record in that case shows that Von's Grocery Company received at least - : 2,000 ,000 worth of goods from outside the State during 1949 iiDorn's House of Miracles, Inc, supra ii The same conclusion would be required under the Board ' s new policy even were we to agree with the Trial Examiner that the commerce facts as to the two other grocery operations in which Respondent Serber ' s shareholders have an interest must also be considered in deciding whether Respondent Serber is engaged in commerce within the- meaning of the Act Under the circumstances , we need not pass upon the validity of the Trial Examiner ' s finding in this connection. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the relationship of Respondents Serber and Hollywood to the Council is an indispensable part of the entire commerce picture. Thus, as noted above, for at least 9 years an officer of the Council and representatives of the Council's members, who are retail market oper- ators, have met with the Respondent Union to negotiate terms of col- lective bargaining agreements concerning food clerks. Upon the conclusion of these negotiations, all these members have virtually consistently 12 adopted the agreements resulting from such negotia- tions, manifestilig by such action a desire to be bound in their labor relations by joint rather than individual action and to constitute themselves a single employer for bargaining purposes.13 The clear effect of this type of bargaining is the establishment of a relationship whose impact on commerce reaches beyond the confines of any one employer involved in the joint bargaining and is coextensive with the totality of the operations of all the employers so involved. And we have recognized this impact in measuring the facts as to commerce in such cases by considering the operations of all the participants in the Iaultiemployer bargaining, whether or not they were parties to the proceeding.14 It would therefore be totally unrealistic and contrary to Board precedent to disregard the commerce facts of the other par- ticipating employers in appraising the total effect of either Respond- ent Serber's or Respondent Hollywood's operations on commerce, particularly where, as here, the contracts resulting from such joint bargaining, and the implementation thereof by the parties hereto, form the basis of the unfair labor practice allegations in this case. Accordingly, in view of the joint bargaining through the Council, and the additional fact that the alleged unfair labor practices here are the- result of the application of the common labor policy recommended by the Council's bargaining committee and adopted by the interested members, we are of the opinion and find that the Council and its retail grocer membership must be regarded as a single employer for juris- dictional purposes.15 In all these circumstances, and because the combined operations of the Council's members plainly affect com- merce within the meaning of the Act, we further find that it would effectuate the policies of the Act to assert jurisdiction over Respondent Serber, as well as over Respondent Hollywood. 12 See footnote 6. "Epp Furniture Company, et al, 86 NLRB .120; Columbia Marble Company, 89 NLRB 1482 ; Bellingham Automobile Dealers Association, 90 NLRB 374 ; Members of the Cali- fornia State Brewers Institute , Southern Division , et al, 90 NLRB 1747. 14 Carpenter & Skaer, Inc , et at , 90 NLRB 417 ; Federal Stores Division of Speigel, Inc., 91 NLRB 647. In the former case , the Board viewed as immaterial the fact that all the members of the employer association were not parties to the proceeding. *In the latter case , not only was that holding affirmed, but the Board also attached no significance to the fact that the association itself was not a party to the case. 11 See the cases cited in footnote 14. HOLLYWOOD RANCH MARKET 11 51 3. We agree with the Trial Examiner's findings that by enforcing their illegal union-security contracts from November 26, 1948, to Jan- uary 1, 1950, and by executing and enforcing their illegal union- security contracts dated January 1, 1950,16 Respondents Serber and Hollywood violated Section 8 (a) (3), 8 (a) (2), and 8 (a) (1) of the Act, and the Respondent Union violated Section 8 (b) (2) of the Act 17 However, we do not agree with the Trial Examiner's finding that the Respondent Union did not violate Section 8 (b) (1) (A) of the Act by this conduct. For the reasons stated in our recent decision in New York State Employers Association, Inc., et al.,11 we find that the Respondent Union by actually executing illegal union-security contracts which clearly threatened employees with the loss of their jobs if they did not become members of the Respondent Union, vio- lated Section 8 (b) (1) (A) of the Act. 4. We agree with, and adopt, the Trial Examiner's recommendation that the complaint should be dismissed insofar as it alleges that Re- spondent Serber and Hollywood unlawfully discharged Carl Sacks and Sam Le Pante, respectively, and that the Respondent Union unlawfully caused the foregoing discharges. As appears more fully below and in the Intermediate Report, the Teamsters Union, which is not a party to this proceeding, in the course of a jurisdictional dispute with the Respondent Union, picketed the Respondent Companies to force them to hire Teamster members. Although they did not need the services of such individuals, Re- spondents Bowen and Serber concluded an agreement with the Team- sters under which each of them agreed to hire a member of the Teamsters on the condition that he could be discharged, at the Re- spondent Union's insistence. Respondent Hollywood, in a similar situation, reached an agreement with the Teamsters, with the approval of the Respondent Union, which called for the "hire," and then for the "discharge," of one Le Pante. Pursuant to the foregoing agreements, Respondents Bowen, Serber, and Hollywood "hired" Knight, Sacks, and Le Pante, respectively. Shortly thereafter, upon the Respondent Union's insistence, they "discharged" the complain- ants.19 In the Le Pante case, the record amply supports the Trial Ex- aminer's finding of a token hiring and a token firing. As detailed in the Intermediate Report, Le Pante was first "hired" and then "dis- 11 It appears that the earlier agreements became effective on January 5, 1948 , and not January 1, 1948, as the Thal Examiner found. The illegality of all the agreements arises from the fact that they were executed without the benefit of elections conducted under Section 9 (e) (1) of the Act. 11 The exceptions as to these findings are predicated solely on the alleged lack of jurisdiction over the operations involved. is 93 NLRB 127. 14 As already noted , Knight's discharge by Respondent Bowen is not an issue in this case. 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged," pursuant to an agreement reached between the Teamsters, the Respondent Union, and Respondent Hollywood, in Le Pantc's presence, that Respondent Hollywood should "go ahead and hire him and then discharge him." Le Pante's "hiring" was obviously accomplished with no intent on the part of the Employer to put him to work, and without any expectation of work on his part. In this entire procedure, we find, as did the Trial Examiner, that Le Pante "participated in a ritual of ostensibly being hired and discharged," and that he never held an employee status with Respondent Holly- wood.20 Consequently, as no employer-employee relationship arose in the alleged "hiring," the discharge presents no issue cognizable under Section 8 (a) (3), 8 (b) (2),.or (1) (A) of this Act. In the Sacks case, too, the record reveals no more than a token hiring and a token firing. The agreement between the Teamsters and Re- spondent Serber, while not contemplating a ritual on its face, was made with knowledge of the jurisdictional conflict between the Team- sters and the Respondent Union and of the union-security contract between Respondent Serber and the Respondent Union. Indeed, the agreement, by its terms, made provision for the discharge of the Teamster member to be hired thereunder upon the Respondent Union's demand therefor. We therefore find, as did the Trial Examiner, that Respondent Serber and the Teamsters contemplated that the Re- spondent Union would act immediately to force the discharge of the person hired under the agreement. When we add to the foregoing the fact that Respondent Serber had no need for the services of a receiving clerk, the real nature of the understanding between Re- spondent Serber and the Teamsters, as we have found it, becomes manifest. . We are also convinced that Sacks was aware of the fact that his hiring was part of the ritual arranged by the Teamsters and Re- spondent Serber. As more fully noted hereinafter, the Teamsters' efforts to force the Respondent Companies to hire Knight, Sacks, and Le Pante were designed to accomplish a single purpose. In the exe- cution of its plan, it told Knight "all about" the circumstances at- tending his hiring, which were similar to those present in Sacks' case. It concluded the agreement with respect to Le Pante's hiring in the very presence of Le Pante. And, as found by the Trial Examiner, it advised each of the complainants, upon his discharge, to file charges with the Board. In view of these facts, it is clear, and we find, that, in implementing its plan, the Teamsters took Sacks into its confidence, to the same extent that it did Knight and Le Pante, and that it ac- quainted him with the fact that Respondent Serber would hire him 20 Cf Knoxville Publishing Company, 12 NLRB 1209; Cape Cod Trawling Corporation, 23 NLRB 208 . See also N . L R B v. Knoxville Publishing Company, 124 F. 2d 875 (C. A 6). HOLLYWOOD RANCH MARKET 1153 and then discharge him upon the Respondent Union's expected ap- pearance. It follows, therefore, that at no time did Respondent Serber and Sacks intend to or, in fact, become parties to a bona fide employer- employee relationship. Sacks, forewarned by the Teamsters, re- ported for work on May 21 expecting to be quickly terminated at the Respondent Union's insistence. Respondent Serber put Sacks to work, pursuant to its agreement with the Teamsters, also expecting, the Respondent Union quickly to appear and request Sacks' removal, and intending to comply with that request. Both plainly contem- plated only a token hiring. The expected "discharge," occurring about 30 minutes later, thus ended no recognizably legal employer- employee relationship. Under these circumstances, we must reject the General Counsel's contention that the fact that Sacks "actually went to work" of itself conclusively demonstrates that he achieved the status of an employee under the Act. In the light of all the foregoing, we find, as the Trial Examiner did, that Sacks was a party to a token hiring and a token firing and never achieved an employee status with Respondent Serber 2' We are therefore unable to find that Respondent Serbert discriminatorily discharged him or that the Respondent Union unlawfully caused his discharge. We find further, as did the Trial Examiner, that it would con- stitute an abuse of the Board's process to hold that Sacks and Le Pante were unlawfully discharged and were entitled to reinstate- ment. The record establishes that, during the critical period in this case, the Teamsters and the Respondent Union were engaged in a juris- dictional dispute. The type of work in dispute was then being per- formed at the stores of the Respondent Companies, where the Re- spondent Union was the bargaining representative. The Teamsters picketed the operations of the Respondent Companies to force the hiring of its constituents. However, each of the Respondent Com- panies resisted the Teamsters' efforts. The Teamsters thereupon ar- ranged with the Respondent Companies for the "hire" of its mem- bers on the condition that they could be discharged at the Respondent Union's insistence. When the Respondent Union secured their "dis- charges," as the Teamsters expected it would'22 the teamsters advised each of them to file charges with the Board, looking toward a Board order reinstating the "dischargees." On the basis of these facts and the other evidence in the record, we are satisfied that the Board's process has not here been invoked 21 See the cases cited in footnote 20 22Indeed, as already noted, Le Pante was hired pursuant to an agreement , to which the Respondent Union was a party, which expressly provided for his immediate discharge. 943732-51-74 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to secure a remedy for violations of the Act, but for the sole purpose of getting the Board to assist the Teamsters in its scheme, which had, as its ultimate objective, forcing upon the Respondent Companies the employment of Teamsters' members. This attempt to use the Board's processes to further the cause of the Teamsters 23 in its jurisdictional conflict with the Respondent Union constitutes, in our opinion, a palpable abuse of the Board's machinery. The Board may, of course, refuse to allow such advan- tage to be takeli of it. In the words of the Supreme Court, "It is not required by the statute to move on every charge; it is merely enabled to do so. It may decline to be imposed upon or to submit its process to abuse." 24 Under these circumstances we believe that it would serve the public interest to dismiss the allegations of the complaint involv- ing Sacks and Le Pante.25 5. For the reasons set forth in the Intermediate Report, we find, as the Trial Examiner did, that by discharging Frank Paredez on May 23, 1949, Respondent Hollywood violated Section 8 (a) (3) and 8 (a) (1) of the Act; and that by causing Respondent Hollywood to discriminate against Paredez, the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act26 The Remedy We adopt the Trial Examiner's recommendations with respect to the remedy, with the modifications below. As the Respondent Union and Respondents Serber and Hollywood were parties to, and enforced, the illegal contracts of January 1, 1950, we believe it is necessary, in order fully to effectuate the policies of the Act, to order each, of them, and not only Respondents Serber and Hollywood, as the Trial Examiner recommended, to cease giving effect to the whole of their respective contracts.27 "Although the Teamsters Union itself did not file the charges , it caused them to be filed by the complainants. 24 N. L . R B. v Indiana & Michigan Electric Company, et at., 318 U. S . 9. See also Donnelly Garment Company v. N. L R. B., 151 F. 2d 854 (C A. 8). 25 In reaching this conclusion , a majority of the Board, unlike the Trial Examiner, did not consider it necessary to decide whether the Teamsters violated the Act by its activity described herein. member Reynolds, however, in accord with his dissenting views in the Morand case ( 91 NLRB 409 ) would also predicate dismissal of the complaint as to Sacks and Le Pante on the further ground that they participated in the Teamster's patent violation of Section 8 (b) (4) (D) of the Act , thereby forfeiting the statutory protection to which they might otherwise have been entitled. We are not persuaded by the Geneial Counsel's argument that it would better effectuate the policies of the Act to find that Sacks and Le Pante were discriminated against, but to refuse to order their reinstatement. 26 Although the record shows that Paredez was hired by Respondent Hollywood at a time when the Teamsters and the Respondent Union were engaged in their jurisdictional dispute , it does not , as the Intermediate Repoit makes clear, support the Respondent Union ' s contention that his hiring was "part of the same design and pattern " present in the Sacks and Le Pante cases. 27 Nothing in our order herein shall be deemed to require Respondents Serber and Hollywood to vary or abandon any substantive provisions of their agreements, or to prejudice the assertion by employees of any tights they may have acquired thereunder. HOLLYWOOD RANCH MARKET 1155 We are also of the opinion that the commission of other unfair labor practices by the Respondent Union and Respondents Serber and Hol- lywood is to be anticipated from their conduct in the past. Conse- quently, we shall enter a broad cease and desist order against each of the Respondents, and not only against the Respondent Union, as the Trial Examiner recommended. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : 1. Respondent, Serber Company, Ltd., Los Angeles, California, its officers, agents, successors, and assigns, shall: a. Cease and desist from : (1) Entering into, renewing, or enforcing any agreement with Retail Clerks Union, Local No. 770, International Association of Re- tail Clerks, A. F. of L., or any other labor organization, which re- quires its employees to join, or maintain their membership in, such labor organization as a condition of employment, unless such agree- ment has been authorized as provided by the National Labor Rela- tions Act, as amended. (2) Recognizing Retail Clerks Union, Local No. 770, International Association of Retail Clerks, A. F. of L., or any successor thereto, as the representative of any of its employees for the purposes of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment, unless and until said organization shall have been certified by the National Labor Relations Board. (3) Performing or giving effect to its contract of January 1, 1950, with Retail Clerks Union, Local No. 770, International Association of Retail Clerks, A. F. of L., or to any modification, extension, supple- ment, or renewal thereof, or to any other contract, agreement, or understanding entered into with said organization relating to griev- ances, 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. (4) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will 'effectuate the policies of the Act: (1) Withdraw and withhold all recognition from Retail Clerks Union, Local No. 770, International Association of Retail Clerks, 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. F. of L., as the representative of any of the Respondent's employees for the purpose of dealing with the Respondent concerning griev- ances, 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. (2) Post at its operations in Los Angeles, California, copies of the• notice attached hereto as Appendix A.28 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent's representatives, be posted by it immediately upon receipt thereof, and be maintained by it for a period of at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to its em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Twenty-first Region, in writing, within ten '(10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 2. The Respondents, Lawrence Frederick, William Frederick, and Nathan Gilbert d/b/a Hollywood Ranch Market and Bill's Ranch Market, Los Angeles and Burbank, California, their agents, succes- sors, and assigns, shall : a. Cease and desist from : (1) Entering into, renewing, or enforcing any agreement with Retail Clerks Union, Local No. 770, International Association of Retail Clerks, A. F. of L.. or any other labor organization, which requires employees to join, or maintain their membership in, such labor organization as a condition of employment, unless such agree- ment has been authorized as provided by the National Labor Relations Act, as amended. (2) Recognizing Retail Clerks Union, Local No. 770, International Association of Retail Clerks, A. F. of L., or any successor thereto,, as the representative of any of their employees for the purposes of dealing with the Respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em-- ployment, unless and until said organization shall have been certified by the National Labor Relations Board. (3) Performing or giving effect to their contract of January 1,. 1950, with Retail Clerks Union, Local No. 770, International Associa- tion of Retail Clerks, A. F. of L., or to any modification, extension, supplement, or renewal thereof, or to any other contract, agreement, or understanding entered into with said organization relating to 28In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words , "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." HOLLYWOOD RANCH MARKET 1157 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. (4) Encouraging membership in Retails Clerks Union, Local No. 770, International Association of Retail Clerks, A. F. of L., or in any other labor organization of the Respondent's employees, by dis- charging any of their employees or discriminating in any other man- ner in respect to their hire and tenure of employment, or any terms oor conditions of employment, except to the extent authorized by Section 8 (a) (3) of the Act. - (5) In any other manner interfering with, restraining, or,coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by any agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will ,effectuate the policies of the Act : (1) Offer to Frank Paredez immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. (2) Withdraw and withhold all recognition from Retail Clerks Union, Local No. 770, International Association of Retail Clerks, A. F. of L., as the representative of any of the Respondents' employees for the purpose of dealing with the Respondents concerning griev- ances, 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. (3) Post at their operations in Los Angeles and Burbank, Califor- nia, copies of the notice attached hereto as Appendix B.2' Copies of said notice, to be furnished by the Regional Director for the Twenty- first Region, shall, after being duly signed by the Respondents' repre- sentatives, be posted by them immediately upon receipt thereof, and be maintained by them for a period of at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to their employees are.customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced or covered by any other material. (4) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply herewith. 29 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order ," the words, "A Decree of the United States Court of Appeals Enforcing." 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Respondent, Retail Clerks Union, Local No. 770, Interna- tional Association of Retail Clerks, A. F. of L., its officers, representa- tives, agents, successors, and assigns, shall: a. Cease and desist from : (1) Giving effect to the contracts of January 1, 1950, or to any extension, renewal, modification, or supplements thereto, or to any superseding contracts, between it and Serber Company, Ltd., its suc- cessors or assigns, and between it and Lawrence Frederick, William Frederick, and Nathan Gilbert, d/b/a Hollywood Ranch Market and Bill's Ranch Market, their successors or assigns, except in accordance with the proviso to Section 8 (a) (3) of the Act. (2) Causing or attempting to cause the afore-mentioned Respond- ents, their officers, agents, successors, or assigns, to discriminate in any manner against employees in violation of Section 8- (a) (3) of the Act. (3) Restraining or coercing employees of the afore-mentioned Re- spondents, their successors or assigns, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring-membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Notify, in writing, Lawrence Frederick, William Frederick, and Nathan Gilbert, d/b/a Hollywood Ranch Market and Bill's Ranch Market, that it has no objection to their employment of Frank Paredez and request them to offer him immediate and full reinstatement to. his former or substantially equivalent position, without prejudice to, his seniority or other rights and privileges. (2) Post in conspicuous places in its business office, and all places where notices to its members are customarily posted, copies of the notices attached hereto as Appendix C and Appendix D.30 Copies of said' notices, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by an official representative of the Respondent, be posted by it immediately upon receipt thereof and be maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (3) Mail to the Regional Director for the Twenty-first Region signed copies of the notices attached hereto as Appendix C and Ap- 90 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order ," In each of the notices, the words , "A Decree of the United States Court of Appeals Enforcing" HOLLYWOOD RANCH MARKET 1159 pendix D, for posting, the respective Respondents therein named will- ing, in places where notices to their employees are customarily posted. The notices shall be posted for a period of sixty (60) consecutive days thereafter. Copies of said notices, to be furnished by the Regional Director for the Twenty-first Region, shall, after being signed as pro- vided in paragraph 3 (b) (2) of this Order, be forthwith returned to the Regional Director for said posting. (4) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 4. Respondents Lawrence Frederick, William Frederick, and Na- than Gilbert, d/b/a Hollywood Ranch Market and Bill's Ranch Mar- ket, their agents, successors, and assigns, and Respondent Retail Clerks Union, Local No. 770, International Association of Retail Clerks, A. F. of L., its officers , representatives , agents , successors , and assigns, shall jointly and severally snake whole Frank Paredez for any loss of pay he may have suffered because of the discrimination against him, in the, manner set forth in the section of the Intermediate Report entitled "The Remedy." Upon request, the afore-mentioned employer shall make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under this Order. IT IS FURTHER ORDERED that the complaint , insofar as it alleges vio- lations of the Act different from those found in this Decision and Order, be, and it hereby is, 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, as amended, we hereby notify our employees that : WE WILL NOT enter into, renew, or enforce any agreement with RETAIL CLERKS UNION, LOCAL 770, INTERNATIONAL ASSOCIATION OF RETAIL CLERKS, A. F. OF L., or any other labor organization, which requires our employees to join, or maintain their membership in, such labor organization as a condition of employment , unless such agreement has been authorized as provided by the National Labor Relations Act, as amended. WE WILL withdraw and withhold all recognition from RETAU CLERKS UNION , LOCAL No. 770, INTERNATIONAL ASSOCIATION OF 0 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RETAIL CLERKS, A. F. OF L., as the representative of any of our em- ployees for the purpose of dealing with us 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 as the bargaining representative. AVE WILL cease performing or giving effect to cur contract of January 1, 1950, with RETAIL CLERKS UNION, LOCAL No. 770, IN- TERNATIONAL ASSOCIATION OF RETAIL CLERKS, A. F. OF L., or to any modification, extension, supplement, or renewal thereof, or to any other contract, agreement, or understanding entered into with said organization relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, unless and until said organization shall have been cer- tified by the National Labor Relations Board. `VE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to become, remain, or refrain from becom- ing or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. SERBER COMPANY, LTD., Employer. By----------------------------- (Representative) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix B 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 Re- lations Act, as amended, we hereby notify our employees that : WE WILL NOT enter into, renew, or enforce any agreement with RETAIL CLERKS UNION, LOCAL No. 770, INTERNATIONAL ASSOCIA- TION OF RETAIL CLERKS, A. F. OF L., or any other labor organiza- 40 HOLLYWOOD RANCH MARKET 1161 tion, which requires our employees to join, or maintain their membership in, such labor organization as a condition of employ- ment, unless such agreement has been authorized as provided by the National Labor Relations Act, as amended. WE WILL withdraw and withhold all recognition from RETAIL CLERKS UNION, LOCAL No. 770, INTERNATIONAL ASSOCIATION OF RETAIL CLERKS, A. F. of L., as the representative of any of our employees for the purpose of dealing with us concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organi- zation shall have been certified by the National Labor Relations Board as the bargaining representative. WE WILL cease performing or giving effect to our contract of January 1, 1950, with RETAIL CLERKS UNION, LOCAL No. 770, IN- TERNATIONAL ASSOCIATION OF RETAIL CLERKS, A. F . OF L., or to any, modification, extension, supplement, or renewal thereof, or to any other contract, agreement, or understanding entered into with said organization relating to 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. WE WILL NOT encourage membership in RETAIL CLERKS UNION, LOCAL No. 770, INTERNATIONAL ASSOCIATION OF RETAIL CLERKS, A. F. of L., or in any other labor organization of our employees, by discharging any of our employees or- discriminating in any other manner in regard to their hire or tenure of employment, or any terms or conditions of employment, except to the extent au- thorized by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected .by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to Frank Paredez immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights or privileges previously enjoyed, and we will make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become, remain, or refrain from be- coming or remaining, members of any labor organization, except to 1162 DECISIONS OF NATIONAL LABO ( RELATIONS BOARD the extent that this right may be affected by an agreement in con- formity with Section 8 ( a) (3) of the Act. LAWRENCE FREDERICK, 117"ILLIAM FREDERICK, AND NATHAN GILBERT , D/B/A HOLLYWOOD RANCH MARKET, AND BILL'S RANCH MARKET, Employers. By --------------------------------------------------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix C NOTICE TO ALL MEMBERS OF RETAIL CLERKS UNION, LOCAL No. 770, IN- TERNATIONAL ASSOCIATION or RETAIL CLERKS, A. F. or L., AND TO ALL EMPLOYEES OF SERBER COMPANY, LTD. 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, as amended, we hereby notify you that : WE WILL NOT restrain or coerce employees of SERBER COMPANY, LTD., its successors or assigns, in the exercise of the rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. AVE, WILL NOT give effect to our contract with SERBER COMPANY, LTD., its successors or assigns, or to any extension, renewal, modi- fication, or supplements thereto, or to any superseding contract, except in accordance with the proviso to Section 8 (a) (3) of the Act. AVE WILL NOT cause or attempt to cause SERBER COMPANY, LTD., its officers, agents, successors, or assigns, to discriminate in any manner against employees, in violation of Section 8 (a) (3) of the Act. RETAIL CLERKS UNION, LOCAL No. 770, INTERNATIONAL ASSOCIATION OF RETAIL CLERKS, A. F. or L., Labor Organization. By ------------------------------------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. HOLLY WOOD RANCH MARKET 1163 Appendix D NOTICE TO ALL MEMBERS OF RETAIL CLERKS UNION, LOCAL No. 770, IN- TERNATIONAL ASSOCIATION OF RETAIL CLERKS, A. F. OF L., AND TO ALL EMPLOYEES OF LAWRENCE FREDERICK, WILLIAM FREDERICK, AND -NATHAN GILBERT, D/B/A HOLLYWOOD RANCH MARKET AND BILL'S -RANCH MARKET 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, as amended, we hereby notify you that: WE WILL NOT restrain or coerce employees of LAWRENCE FREDERICK, WILLIAM FREDERICK, AND NATHAN GILBERT, D/B/A HOLLYWOOD RANCH MARKET AND BILL'S RANCH MARKET, their successors or assigns, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL NOT give effect to our contract with LAWRENCE FREDERICK, WILLIAM FREDERICK, AND NATHAN GILBERT, D/B/A HOLLYWOOD RANCH MARKET AND BILL'S RANCH MARKET, their successors or assigns, or to any extension, renewal, modification, or supplements thereto, or to any superseding contract, except in accordance with the proviso to Section 8 (a) of the Act. AVE WILL NOT cause or attempt to cause LAWRENCE FREDERICK, WILLIAM FREDERICK, AND NATHAN GILBERT, D/B/A HOLLYWOOD RANCH MARKET AND BILL'S RANCH MARKET, their agents, suc- Lcessors, or assigns, to discriminate in any planner against em- ployees, in violation of Section 8 (a) (3) of the Act. WE WILL make Frank Paredez whole for any loss of pay he may have suffered because of the discrimination against him. RETAIL CLERKS UNION, LOCAL N6. 770, INTERNATIONAL ASSOCIATION OF RETAIL CLERKS, A. F. OF L., Labor Organization. By ------------------------------------------------------- (Rep resentative) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report George H O'Brien, Esq., for the General Counsel. James A. McLaughlin, Esq., and Lawrence P. Casey, Esq., of Los Angeles, Calif., for the Respondent Companies. 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alexander H. Sdhullnian, Esq., of Los Angeles, Calif., for the Respondent Union. STATEMENT OF THE CASE Upon charges duly filed by Ernest Knight, Frank Paredez, Sam Le Pante, and' Carl Sacks, individuals, herein collectively called the Complainants, the General Counsel of the National Labor Relations Board; by the Regional Director of the Twenty-first Region (Los Angeles, California), issued his consolidated com- plaint dated January 13, 1950, against Vaughn Bowen,' Hollywood Ranch Mar- ket, and Serber Company, Ltd.,3 herein individually referred to as Respondent Bowen, Respondent Hollywood, and Respondent Serber, respectively, and some- times collectively called the Respondent Companies, and against Retail Clerks Union, Local No 770, International Association of Retail Clerks, A. F of L.,4 herein called the Respondent Union,' alleging that the Respondents had engaged and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), and (3), Section 8 (b) (1) (A) and 8 (b) (2), 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, complaint, and notice of hearing were duly served upon the Respondent Companies, the Respondent Union, and the Complainants. With respect to the unfair labor practices, the consolidated complaint alleged that (1) on various dates in 1948 and 1949, the Respondents entered into a col- lective bargaining agreement containing illegal union-shop provisions and have enforced and given effect thereto since about January 1, 1948, ( 2) on various dates in May 1949, the Respondent Companies discriminatorily discharged the Complainants and thereafter failed and refused to reinstate them, thereby en- couraging membership in the Respondent Union, and (3) on various dates in May 1949, the Respondent Union caused or attempted to cause the Respondent Companies to discharge the Complainants in violation of Section 8 (a) (3) of the Act. The complaint alleged that by the foregoing conduct, the Respondent Companies have engaged in unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the Act and the Respond- ent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) and Section 2 (6) and (7) of the Act. Pursuant to notice, a hearing was held on May 9 and 10, 1950, at Los Angeles, California, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented by counsel at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the outset of the bearing, the Respondents moved that the six cases of the instant consolidated proceeding be severed and tried separately and that the complaint be dismissed . Grounds urged for dismissal of the complaint included, inter alia, (1) the Board was without jurisdiction; (2) the Complainants were not bona fide employees , having been hired and discharged by the Respondent Companies under coercion and having knowledge prior to their employment that they would The General Counsel and the attorney representing him at the hearing are herein referred to as the General Counsel The National Labor Relations Board is herein called the Board 2 The complaint and other pleadings erroneously referred to Vaughn Bowen as Franks Market During the course of the bearing , a motion to amend the pleadings so as to set forth correctly the name of Vaughn Bowen was granted. 9 The name of Serber Company , Ltd , appears here in accordance with a motion to amend the pleading so as to set forth its correct name. ' The pleadings were also amended to set forth the correct name of this labor organization. 5 The Respondent Union and the Respondent Companies are at times collectively referred to herein as the Respondents. HOLLYWOOD RANCH MARKET 1165 be promptly and summarily discharged; (3) the discharges of the Complainants resulted from a jurisdictional dispute between the Respondent Union and Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Teamsters, and since the jurisdictional dispute has been settled, the cases were moot; (4) the General Counsel made no investiga- tion prior to issuance of the complaint herein; and (5) the Sections of the Act as applied to the facts of the proceeding were unconstitutional. The under- signed denied the motions for severance and for dismissal. At the conclusion of the hearing, the motion of the General Counsel that the pleadings be conformed to the proof in respect to minor variances such as names and dates was granted. At the same time, the motions of the Respondents that the complaint be dis- missed were renewed and ruling thereon was reserved. Those motions are dis- posed of in accordance with the findings of fact and conclusions of law made below. Upon the conclusion of the hearing, the undersigned advised the parties that they might argue before, and file briefs or proposed findings of fact and con- clusions of law, or both, with the Trial Examiner. The Respondent Companies and the General Counsel engaged in oral argument. The Respondent Companies, the Respondent Union, and the General Counsel each filed a brief with the under- signed. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANIES A. Vaughn Bowen At the time in question, Vaughn Bowen, an individual, operated the grocery departments in three supermarkets in Los Angeles at the following addresses : 1559 E. 103rd St, with which operation the instant proceeding is concerned, 6015 N. Figueroa St.,6 and 5829 S. Compton Ave. Other departments of the super- markets, such as those dealing in meat, vegetables, and bakery items, were oper- ated by other individuals. A statement dated July 5, 1949, supplied to the Board by Bowen in respect to the purchases and sales of his business operations esti- mated that the gross purchases for his three grocery department operations for the year 1948 were approximately $806,265.63, and the gross sales were approxi- mately $957,202.85. According to the statement, none of the purchases was shipped directly to Bowen or originated from points outside the State of Cali- fornia. None of the merchandise sold was shipped directly or indirectly outside the State of California. Bowen testified that he made no purchases directly from outside the State of California and that his principal source of merchandise was Certified Grocers of California, Limited, herein called Certified, from whom he purchased approxi- mately 60 percent of his merchandise. The remaining 40 percent of his pur- chases was made through local jobbers. Bowen also testified that at the time in question, the gross sales of the grocery operation at 1559 E. 103rd St. averaged about $35,000 a month and that he employed 9 employees at such operation and 12 or 13 employees at the other 2 operations. B. Hollywood Ranch Market Lawrence Frederick, William Frederick, and Nathan Gilbert are partners doing business as Hollywood Ranch Market, at 1248 North Vine St., Los Angeles, and 6 Bowen sold this grocery operation in January 1950. 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as Bill's Ranch Market in Burbank, California The instant proceeding is con- cerned with their operations at Hollywood Ranch Market, which is a supermarket and which employs between 120 and 130 employees. The partnership operates all departments of the market except the bakery department. At Bill's Ranch- Market the partnership operates all departments except the bakery department, lunch counter, and a 5 and 10 cent store, all of which are leased to other indi- viduals In connection with the operations of Hollywood Ranch Market is a large warehouse for the storage of groceries, meats, and peiishable goods. Dur- ing the year 1949, the retail sales for Hollywood Ranch Market totalled $3,400,707 21 and those for Bill's Ranch Market were $1,267,276.70. A statement dated July 1, 1949, supplied to the Board by Lawrence Frederick in regard to the purchases and sales of the partnership estimated that during the 12-month period ending February 28, 1949, the joint purchases of the partnership for their Holly- wood Ranch Market and Bill's Ranch Market totalled approximately $3,515,000. According to the statement, between 8 and 14 percent of the value of these pur- chases was shipped directly to the partnership from points outside the State of California and approximately 60 percent of these purchases, in terms of value, originated outside the State of California. During the same period, the total sales of the partnership at its 2 operations were estimated at approximately $4,320,000, none of which was shipped to points outside the State of California. According to the credible testimony of Lawrence Frederick, the goods shipped directly to the partnership from out-of-State represented purchases of apples, soap, and bananas made from local California brokers, to whom payment was made for such merchandise. These items were shipped to the partnership from out-of-State in carload lots. The partnership buys an undisclosed amount of its merchandise from Certified Grocers of California, Limited. C. Serber Company, Ltd. Serber Company, Ltd., is a California corporation and its officers and stock holders are Sam Serber, Yetta Serber, and Max Seiff. Serber Company, Ltd., operates the grocery department in Hollymont Market, wherein other individuals or concerns operate other departments each confined to a particular type of food, such as vegetable department, meat department, and bakery department. A statement dated June 29, 1949, supplied to the Board by Serber Company, Ltd., in regard to its purchases and sales estimated that the gross purchases for the 12-month period ending April 30, 1949, were approximately $266,802, of which approximately one-fourth of 1 percent was shipped directly to it from points out- side the State of California and of which approximately 50 percent originated outside the State of California. During 1949, the total sales of Serber Company, Ltd., totalled approximately $319,958 69, according to the credible testimony of Sam Serber. None of the merchandise sold was shipped directly or indirectly outside the State of California. The Company employed seven employees. The Serbers and Seiff are also the incorporators of Valley Foods, Incorporated, a California corporation, which holds the master lease on a food market at 6014 Van Nuys Boulevard, Los Angeles, California. Valley Foods, Incorporated, op- erates the grocery department but leases the other departments, dealing in var- ious food items, to other individuals. During the year 1949, the total sales of Valley Foods, Incorporated. amounted to $516,909.81. Sam Serber and Yetta Serber, a copartnership doing business as Serber's Forum Market, have the master lease on a food market at 4000 West Pico, Los Angeles, California. They operate the grocery department but lease the other departments in the market to various individuals. During the year 1949, the sales of their grocery department at West Pico totaled $448,200.05 HOLLYWOOD RANCH MARKET 1167 Sam Serber and Yetta Serber, a copartnership doing business as Serber's Foods, hold a master lease on Southgate Public Market at 12616 Santa Ana Street, Los Angeles, California. They operate the grocery department but lease the other departments in the market to various individuals. The bakery department at this and the Van Nuys operations is leased to and operated by Van de Kamp's Holland-Dutch Bakers, Inc, over which the Board asserted jurisdiction in another proceeding.' During the year 1949, the sales of Serber's Foods totalled $428,212.20. The four grocery departments in which the Serbers are interested were operated separately, each making its own purchases and keeping its ac- counts. In 1949, the total sales of the four grocery operations amounted to $1,713,280 75 The record does not reveal the total purchases However, if the relation of total sales to total purchases of the four operations was the same as that between the sales and purchases for Serber Company, Ltd , the total purchases for the four operations would be approximately $1,422,022.8 According to Serber, most of the purchases of staple groceries is made from Certified Grocers of California, Limited, of which Respondent Serber is a member. D. Cetttfled Grocers of California, Limited As above indicated, the Respondent Companies are members of Certified and buy merchandise through that organization. Certified is a retailer-owned cor- poration, buying merchandise for its members only There are approximately 1,200 members, some of whom operate more than 1 store, and genet ally speaking, the membership is confined to the Southern California area, although there are some members who operate outside the State of California. Each member holds 10 shares of common stock of Certified and the profits of Certified's operations are returned to the shareholders. The purchases of Certified for its members were in excess of $100,000,000 during 1949, representing staple grocery mer- chandise and perishable frozen food. The point of origin of this merchandise is not shown by the record. However, Randolph Price, secretary-treasurer of Certified, testified that 2 or 3 years ago a study of the purchases of Certified was made and "it was found that between 65 and 70 percent of the merchandise purchased by our organization was processed or manufactured out of the State of California." Certified buys principally from local brokers and sales repre- sentatives, has no purchasing agents outside the State of California, and makes no purchases through brokers located outside the State of California. However, it does buy directly from manufacturers who are located outside the State of California. E. Food Employers Council, Inc. Respondents Hollywood and Serber are members of Food Employers Councih Inc., hereinafter referred to as the Council . Respondent Bowen is not a member of the Council . The purposes of the Council , a California corporation, as set forth in its Articles of Incorporation are, inter alia, the following : 1. To encourage the establishment and maintenance of fair and reasonable wages and working conditions in the food manufacturing , processing , whole- 7 Van de Kamp's Holland -Dutch Balers, Inc, 56 NLRB 694. 8 Counsel for the Respondent Companies contends that the jurisdictional issue as to Serber Company , Ltd, must be determined upon the commerce facts relating to that company alone without iegard to the commerce data relating to the other grocery opera- tions in which the Serbers are interested The undersigned finds the contention to be without merit foi the Board has stated that "In determining whether or not jurisdiction of the Board attaches in any given case, we have held that the totality of the Employer's operations and its effect on commerce may properly be considered " Sun Ray Drug Com- pany, 87 NLRB 2b8 . See also Tanner-Brice Company , 82 NLRB 477. 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD saling and retailing business, including all classes of employment incident to, or connected with, such businesses,-and by the establishment and main- tenance of harmonious and peaceful industrial relations between employer and employees, to promote dependable and efficient service in the public interest. 2. To recommend to its members policies in all matters relating to em- ployment in the food manufacturing, processing, wholesaling, and retailing business, and to render assistance as requested by members 3. To render such assistance as requested by members, in matters relating to the employment of all classifications of workers as may be employed by, or in connection with, the manufacturing, processing, wholesaling and retailing of food products. 4. To assist, represent, and act in behalf of any members, upon their specific request, in connection with any violations of agreements relating to all classifications of workers as may be employed by or in connection with the manufacturing, processing, wholesaling, and retailing of food products to the end that all such agreements shall be faithfully performed by all parties thereto. 5. To collect, compile and distribute information and statistics relating to any of the matters herein, and in all other respects to perform services and provide educational facilities with respect to matters relating to em- ployment, employees' organizations and employers' organizations. 6. To act when requested, on behalf of its members in the development, establishment and maintenance of proper working conditions and rules ielat- ing thereto. A negotiating committee chosen from the Council's membership has negoti- ated master collective bargaining contracts with various labor organizations since 1941. After the negotiation of the master-contract by the committee, it is executed by the individual members and the labor organization involved. The Council acts also as a clearing house for information regarding labor matters of interest to its members and distributes a monthly bulletin and a quarterly bulletin to the membership. More than 200 retail grocery market operators, numerous wholesale grocers, 7 preservers, 6 manufacturers of potato chips, mayonnaise, peanut butter, and pretzels, 6 biscuits, cracker, and cookie bakers, 10 wholesale fish dealers, 2 wholesale egg and poultry dealers, 4 retail drug stores, 1 frozen food manu- facturer, and 1 cigar manufacturer comprise the membership of the Council. The board has held that numerous of these members are subject to thq Board's jurisdiction. O. G. Lawton, president of the Council, estimated that the total sales of the Council's retail grocer membership totalled approximately $650,000,000 annually. Lawton further testified that the Council has negotiated a master contract annually with the Respondent Union since 1941. On January 5, 1948, the Coun- cil and the Respondent Union completed the negotiations for a collective bargain- ing contract, which was subsequently signed by all retail-grocer members of the Council in the Los Angeles area. On September 5, 1949, an amendment to that contract was negotiated to be effective until December 31, 1949. That agree- ment, as amended, was supplanted by another contract whose effective date was from January 1, 1950, until April 1, 1951. It too was signed by the mem- bers of the Council engaged in the retail grocery operations in the Los Angeles area and the Respondent Union. Respondents Hollywood and Serber, who were members of the Council, executed these contracts with the Respondent Union. Although Respondent Bowen was not a member of the Council, he had signed these contracts with the Respondent Union. In respect to the signing of his HOLLYWOOD RANCH MARKET 1169 first contract with the Respondent Union, Bowen testified credibly and without contradiction as follows : Q. Did you have any negotiations with the Clerks Union before you signed that contract? A. No, I didn't. They had had a contract-they left a contract with me from December , '43, until '46, but I got by without signing it . So when I opened this Slauson and Compton store , I had to sign it. They just brought it down and said , "We want a contract ," and that is all. So I signed it. F. Conclusions At this point , it would be helpful to a discussion of the jurisdictional issue to set forth in tabular form the commerce data, on an annual basis , referred to above. Company Purchases Direct inflow of pm- chases in commerce Indirect inflow of pur- chases in commerce Sales-all intrastate 1. Bowen ---------------------- $806,265 None - ----------------- 39% or $314.443 °_______ $957, 202 2 Serber Co Ltd______________ 266, 802 0 0025 or $667---------- 50% or $ 133,401 ________ 319,958 All 4 Serber operations --------- 1,422,022 0 0025 or $3,555________ 50% or $711,011 ________ 1,713,280 3. Total Frederick operations- 3,516,000 8 to 14% of $281,200 to 60%a or $2,109, 000------ 4,667,983 $492,100. Hollywood________________ 102,550,530 8 to 14% or $204,042 to 60% or $1,530,318______ 3,400,707 $357,074. Considering the operations of the Respondent Companies individually, it seems clear, upon the basis of the Bettendorff case ," that Respondent Hollywood 9 This figure is reached by the following calculations Bowen testified that 60 percent of his purchases was made from Certified , such purchases would amount to $ 483,759 in value As found above , between 65 and 70 percent of the goods sold by Certified was shipped to it from points outside the State Sixty -five percent of Bowen's purchases from Certified amounts to $314,443 in value , representing merchandise originating from points outside the State and ultimately purchased by Bowen. This figure is approximately 39 percent of Bowen's total purchases 10 The record reveals the total purchases for both Hollywood Ranch Market and Bill's Ranch Market but does not show the division of the purchases between the two operations. This figure is arrived at by assuming that the relation between the sales and purchases for Hollywood Ranch Market is the same as that between the total sales and total pur- chases of the partnership 11 Bettcederf7's Select Foods, Inc , 85 NLRB 919 In that case , the employer's purchases totalled $1 , 873,000 . Of such purchases , goods valued at $ 138,000 were shipped directly to it in commerce and products valued at more than $700 ,000 were purchased locally but originated at points outside the State . The sales totaled approximately $ 2,000,000. The Respondents rely upon Hom- Ond Food Stores, Inc, 77 NLRB 647, and also upon Tom Thumb Stores, Inc, 87 NLRB 1062 In the Honi-Ond case , the employer operated 13 stores in Texas and purchased annually $3 , 000,000 worth of goods from local whole- salers and distributors . Apparently none of the goods was shipped directly to the employer from out of the State . Goods valued at $750,000 originated outside the State. Sales totalled $ 4,000,000 The Tom Thumb case involved an employer with 8 grocery stores in Texas Over a 13-week period, the employer purchased pioducts valued at $761,814 78. Of these purchases $ 33,323 11 was for products shipped directly to the employer from out of the State. The record did not reveal the amount of the purchases which although made fiom withui -the-State sources, originated outside the State. (Cast on an annual basis for the purpose of comparison to the facts in the instant proceeding, the total purchases would be $3 ,047,25816 and the direct inflow would be $133 , 292.12 or 4 percent of the total purchases ) The undersigned believes that the Hom-Ond and Tom Thumb cases are distinguishable on their facts from the Bettendorff case In the Hom-Ond case, no products were shipped directly to the employer from sources out of the State and in the Tom Thumb case, the iecord did not reveal the amount of the indirect inflow of products--that is, the amount of products which though purchased fiom local wholesalers originated out of the State. In the Bettendorff case both of these factors were shown , as they are in the instant proceeding The undersigned accordingly finds that the Bettendoiff case is controlling on the jurisdictional issue herein. 943732-51-75 1170 DECISIONS OP NATIONAL LABOR RELATIONS BOARD is engaged in commerce. Although the facts concerning the total grocery opera tions of the Serbers are not identical to those in the Betten.dorff case, 12 never- theless, the undersigned is persuaded that that case is authority for finding that the Serbers operations are in commerce and that Respondent Serber is indi- vidually subject to the Board's jurisdiction. 13 Although the matter is not free from doubt, the undersigned is of the opinion, on the basis of present precedent that, considered individually, the operations of Respondent Bowen, while not wholly unrelated to interstate commerce, are of the type which the Board has held to be essentially local in character, and over which the Board in the exercise of its discretion has determined that it would not effectuate the policies of the Act to assert jurisdiction. 14 The conclusions that Respondents Serber and Hollywood are engaged in com- merce within the meaning of the Act are further impelled by a consideration of their relation to the Council. The General Counsel contends that the fact that the Respondent Companies' "labor relations are carried on with respect to an appropriate baigaining unit consisting of the employees of a number of retail enterprises, including several over which the Board has asserted jurisdiction, should persuade the Board nol. to decline jurisdiction in this case." In support of his position, the General Counsel relies upon several representation cases involving a multiple-employer bargaining unit wherein the Board has held as follows in respect to the juris- diction issue : The totality of the operations of petitioner members clearly has an impact on interstate commerce. Without determining whether or not the Board would assert jurisdiction as to each member-employer were it before the Board individually, we find, and the Petitioner admits, that for the purposes of this proceeding, the Employers are engaged in commerce within the mean- ing of the Act.' 12 The total purchases and sales of the four Serbei operations are comparable to those in the Bettendorfff case The principal distinction is that the direct inflow of purchases in commerce in the Serber operations totalled only $3,493 77 as contrasted to the $138,000 worth in the Betteiidorff case Howevei, the bakery departments at two of their supermarkets ai e subleased by the Set bers to a company over whom the Board has asserted jurisdiction 13 In reaching these conclusions as to the affect of the opeiations of the Respondent companies individually upon commerce, the undersigned has considered the cases cite.' by the Respondents and their arguments based thereupon in regard to retail operations in other fields over which the Board has declined to assume juusdiction Thus, consider- ing the Respondent Companies individually, it seems clear that the Board would not take jurisdiction in this proceeding had the Respondent Companies been engaged in the bakery business (Fehr Baking Company, 79 NLRB 440), sold furs rather than groceries (Evans For Company and Evans Apparel Company, 88 NLRB 1095), operated drug stores rather than grocery stores (Jacobs Pharmacy Co, Inc, 87 NLRB 309), confined their operations to a 5 and 10 cent store (Quigley's Department Store, 89 NLRB 381), sold lumber rather than gioceries (Hawkeye Lumber Company, 89 NLRB 1515), or operated a specialty clothing store instead of food markets (Volk Bros. Company, 90 NLRB No 68). These consideiations apparently do not apply to the retail food industry , the Board still follows the Bettendorff case and its rationale See The Liberal Market, Inc., 90 NLRB No 126. 14 The fact that the Respondent Companies were members of Certified Grocers of C.ilifornia, Limited, and bought much of their merchandise from that organization does not, in itself, establish the Board's jurisdiction See Bert and Betty Millage, 87 NLRB 248, Hyde Pail, Cooperative Society, Inc, 73 NLRB 1254 15 Coeur D'AIlene Grocers Association, 88 NLRB 44 See Air Conditioning Company of Southern Califoinia, et at, 79 NLRB 1396, 81 NLRB 946; The Everett Automotive Jobbers Association, et at, 81 NLRB 304, Epp Furniture Company, et at, 86 NLRB 120. HOLLYWOOD RANCH MARKET 1171- The Respondent Companies, on the other hand, deny that the line of cases re- lied upon by the General Counsel is "authority for the Board taking jurisdiction of the proceeding because of the fundamental difference between a representa- tive proceeding and an unfair labor practice charge proceeding In a represen- tative proceeding, the Board has the association and all of the members before it and determines what the bargaining unit for the industry will be. The entire membership of the association is taken under the jurisdiction of the Board or none of it is " In view of a recent decision of the Board, the undersigned feels constrained to conclude that the General Counsel's contentions must be accepted on this issue and the Respondents' argument rejected. The recent Carpenter & Shaer case 16 was an unfair labor practice proceeding, being a consolidation of several cases against a labor organization and several employers. As in the instant case, an employer-association on behalt of its members had negotiated a contract with the labor organization. In determining that jurisdiction should be asserted as to the employer members of the Association involved in the proceeding, the Board made the following statement : Consistent with our well-established policy in representation cases (Citing Indianapolis Cleaners and Launderers Club, 87 NLRB 472, reversing 85 NLRB 1198; TCvrts Distributing Co, et al, 82 NLRB 669 ; All Conditlonintf Company of Southern California, et al., 81 NLRB 946), we find that in pass- ing upon the jurisdictional issue herein, the Association and its members must be regarded as a single enterprise. That the totality of the operations, in volume and character, of all members of the Association has a substantial effect on interstate commerce is apparent. The fact that we might not assert jurisdiction as to each member if before the Board individually or that this proceeding does not directly involve all its members is not here material, because the alleged unfair labor practices are attributed to the Association itself and are the result of the application of a common labor policy by the Association on behalf of its members, including those involved herein. The only distinguishing features between the instant proceeding and the Carpenter & Skier case are that in the latter the employer association was a party thereto and the facts as to its operations were adduced. The Council is not a party litigant herein and the record does not detail the operations of its membership to the fullest extent However, these distinctions do not compel the rejection of the rationale of the Carpenter & Shaer case as applied to the facts of the instant proceeding insofar as the jurisdictional issue is concerned. As in that case, the Council herein negotiated a master contract with the Re- spondent Union and all its retail grocer members, with the possibly exception of one, executed the contl act with the Respondent Union. The contracts herein are alleged in the complaint to contain unlawful provisions and are, as in the Carpenter & Shaer case, "the result of the application of a common labor policy by the Association on behalf of its members, including those involved herein."" 16 Carpenter if Skaer, Inc , et al , 90 NLRB 417 14 It is to be noted that these factors distinguish this case from Glaziers' Union Local No. 27 of the Brotherhood of Painters, Decorators and Paper Hangers of America, et at. (Joliet Contractors Association, et al ,) 90 NLRB 542 The latter pioceeding was con- cerned with an alleged secondary boycott by a labor organization against several employers who were members of an employer-association There, the Board held that the jurisdic- tional issue turned upon the individual operations of the employers against whom the alleged unfair labor practice was diiected and declined to consider the totality of operations of all members of the employer association 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the totality of the operations of the Council's members and the fact that several have been held subject to the Board's jurisdiction, it seems clear that the operations of the Council's membership have a substantial effect on interstate commerce. Since the Council has bargained with the Respondent Union on a Council-wide basis for a unit of all employees of the retail grocer members and since the operations of the total membership of the Council have a substantial effect on commerce, the undersigned concludes that these factors, viewed in conjunction with the considerations above set forth in connection with the impact upon commerce of the Respondent Companies' operations indi- vidually, impel the conclusion that Respondents Hollywood and Serber are engaged in commerce within the meaning of the Act, thereby dispelling any doubt which might exist as to the assertion of the Board's jurisdiction if their operations were viewed in isolation. There remains for consideration the further contention of the General Counsel that since Respondent Bowen signed the contract which the Council had nego- tiated with the Respondent Union, he, too, fell within the Council's bargaining unit and the above considerations apply equally to his operations so far as the jurisdiction issue is concerned. The undersigned is of the opinion that this argument of the General Counsel must he rejected. Respondent Bowen was not a member of the Council and consequently cannot be said to have been represented by the Council in its negotiations with the Respondent Union. He signed the contract without any semblance of collective bargaining. The undersigned notes in the Carpenter & Skaer and Air Conditioning Company 18 cases, the Board considered individually the jurisdictional facts relating to employers who were not members of the employer-association. Therefore, the undersigned finds that the earlier conclusions reached as to the operations of Respondent Bowen are not affected by the fact that he executed a contract negotiated by the Council with the Respondent Union and accordingly that Respondent Bowen's operations are preponderantly local in character and of the type over which the Board does not assume jurisdiction. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local No. 770, International Association of Retail Clerks, A F. of L., is a labor organization admitting employees of the Respondent Com- panies to membership. III. THE UNFAIR LABOR PRACTICES A. The contracts Respondents Serber and Hollywood first executed contracts with the Respond- ent Union about 1941. As above related, Respondent Bowen entered into a collective bargaining contract with the Respondent Union in December 1946. Each of the Respondent Companies executed a contract negotiated by the Coun- cil with the Respondent Union effective January 1, 1948. It appears that this contract was enforced by the parties thereto for a 2-year term The contract contained the following provisions : Section II. EMPLOYMENT OF UNION MEMBERS: (a) The Employer shall employ only members of the Union in good stand- ing and through the office of the Union, provided however, that in the event the said Union cannot meet the request of the Employer for an employee, as hereinafter set forth, the Employer may hire a person not affiliated with 1s Air Conditioning Company of Southern California, et at, 81 NLRB 946. HOLLYWOOD RANCH MARKET 1173 the Union. The Employer shall have the right to request that a steward be appointed by the Union in each store and in such cases the Employer may be permitted to hire food clerks without calling the Union office. In such in- stances the market steward shall be notified. In the event that the mean- ing of this paragraph is abused the Union shall have the right to rescind that part of this paragraph which does not require the Employer to call the Union for Union members. (b) The employee shall file an application to become a member of the Union within six (6) days from the date of his employment. The Union shall not initiate said employee within thirty (30) days from date of his employment unless approved by the Employer. (c) The Employer shall, within seven (7) days after written notice from the Union discontinue the employment of said person, if said person has not filed said application and has not become a member of said Union as set forth above. (d) The Employer shall pay said person so employed during the period said person is not a member of the Union. at the regular Union wage pro- vided for in this agreement for the class of work said person is doing and shall in all other respects require said person to work under and live up to all Union rules and regulations covering the employment as set forth in this agreement. 11 Section XII. SUSPENDED OR EXPELLED MEMBERS OF THE UNION : When any member of the Union is suspended or expelled, the Employer shall and hereby agrees to discharge such member within seven (7) days after receiving written notice from the Union of such suspension or ex- pulsion. The agreements were supplanted by others between the Respondent Companies and the Respondent Union for a term beginning January 1, 1950, and ending April 1, 1951. The union-shop provisions of each of the new contracts were sub- stantially identical to the provisions of the former contracts, set forth above. The record shows that the Respondents enforced the contracts. ' No election has been conducted by the Board among the Respondent Com- panies' employees subject to the above contracts for the purpose of authorizing the Respondent Union to negotiate contracts with the Respondent Companies, requiring membership in the Respondent Union as a condition of employment, and the Respondent Union has never been certified as being authorized to enter into agreements covering employees of the Respondent Companies and containing union-security provisions, pursuant to the provisions of Section 9 (e) of the Act. B. The alleged discriminatory discharge of Complainants Knight, Sacks, and Le Pante 1. The facts as to Knight The activity of the Teamsters which precipitated the events alleged in the com- plaint to have constituted discrimination in respect to the hire and tenure of employment of Knight, Sacks, and Le Pante commenced, so far as the record herein shows, at the grocery operations of Respondent Bowen" 19 In view of this fact, the undersigned finds It necessary to resolve the conflicts in evidence and set forth the facts In respect to events Involving Respondent Bowen. However, inasmuch as it has been found that Respondent Bowen is not engaged In Interstate commerce, a dismissal of the complaint's allegations that Respondent Bowen engaged In unfair labor practices will accordingly be recommended. 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Early in May 1949, two representatives of the Teamsters, one for a local of dairy truck drivers and the other for a local of "Warehouse Deliveryinen," came to Bowen's office at 6615 North Figueroa, Los Angeles, Califoinia, and told him that "they were intending to put a back room man in every grocery store in Los Angeles" and that he would be required to hire a "receiving teamster" or re- ceiving clerk Bowen replied that he did not know how he "was going to do that" and informed them that he had a contract with the Respondent Union covering his employees The representatives of the Teamsters replied, "Well, it is going to have to be done . . . we are going to do it all over town and you are going to have to put one in." When Bowen suggested, "Well, will you wait a while and see what the others do?" the teamsters' representatives said, "We will be back in a couple of weeks." A fortnight later, on a Friday in May, the same representatives of the Team- sters called upon Bowen again at his office and demanded, "We want a man in the back room." Bowen remonstrated, "Well, I can't put a man in the back room because I will just start a lot of trouble with the" Respondent Union. The Team- sters replied, "We can't help that. We intend to have a man in your back room." Bowen requested, "Will you give me time-L will work with you if you will give me time and see what happens . . . I will follow the crowd, whatever they do I will do . . . Don't single me out alone Let's get together" The Teamsters replied, "That is the way we have to work." Bowen stated, "There is nothing I can do. I can't hire one of your men." The Teamsters replied, "Well, we will see about it," and left. When Bowen came to work the following Monday, he was met by seven representatives of the Teamsters who said, "Unless you hire a man, we intend to stop all your deliveries." Bowen replied, "Well, I can't hire a man " Where- upon, the Teamsters formed a picket line, patrolling the front and rear entrances at one of Bowen's grocery operations. 20 The next day, Bowen's attorney ob- tained from a State court a temporary restraining order against the Teamsters' picketing, and although it was served upon the Teamsters, they did not cease their picketing of Bowen. On Wednesday or Thursday the Teamsters extended their picketing activities to all three of Bowen's grocery operations, thereby stopping all deliveries of merchandise to Bowen. The receiving work which the Teamsters desired to be done by their members was customarily performed by Bowen's regular staff of clerks in conjunction with their normal duties. In view of the size of his grocery operations, Bowen had no need for a full-time employee working as a receiving clerk or warehouseman On Friday, Bowen and his attorney conferred with John C Stevenson, coun- sel for the Teamsters, at the latter's office. According to Bowen, the following colloquy with Stevenson occurred : Well, I went through the same procedure, telling him that I couldn't put on a man Ile wanted me to put on a man and I says, "I can't because I am going to cause the Retail Cleiks to start picketing me They already told me they would" He-said, "I will tell you what you do . . . For our records, if you will put on a man and if the Clerks start picketing you, . . , you get some witnesses that they demand this man to be discharged and . . . you can let him go and we will leave you alone " I said, "Well, under those conditions I will do it," because. I says, "I am trying to get out of this. I am in the middle and I can't turn either way. If I turn one way, 20 This occurred appaiently at Respondent Bowen's operations at 6015 North Figueroa, Los Angeles, California. HOLLYWOOD RANCH MARKET 1175 the Clerks are on me " At the time the Teamsters were riding- me So that was all there was to it He says, "I will send a man down the next morning at 9 o'clock." 21 On the same Friday, after the conference between Bowen and Stevenson, rue Teamsters removed their pickets from Bowen's stores The following morning, apparently about May 19 or 20, 1949. Ernest J Knight, a member of Grocery Warehousemen Local 595 of the Teamsters, reported for work at Bowen's grocery operation at 1559 East 103rd Street, Los Angeles, California, pursuant to instructions from the Teamsters In fact, George Coutant, a representative of the Teamsters' Local 595, called for Knight at the latter's home that morning and took him to Bowen's store in Coutant's automobile. Bowen testified that when Knight appeared, he stated that Stevenson "had sent him down " Bowen asked, "[Do you] understand what this is all about? I am supposed to hire you until the Clerks start picketing and then I am supposed to discharge you " According to Bowen, Knight replied, "I under- stand that Mr Stevenson told me all about it " Knight did not specifically deny Bowen's testimony However, Knight denied that lie had any knowledge of the acreenient between the Teamsters and Bowen as to the jurisdictional question and that Coutant said anything to him about the situation Upon the entire record, including the undersigned's observation of the witnesses on the stand, the nuclei signed does not credit Knight's testimony when at variance with that of Bowen, who appeared to be a most reliable and sincere witness Knight commenced to work at 9 a in and received and stored merchandise as it was delivered While he was working, three representatives of the Re- spondent Union approached him and asked whether he belonged to a union. He informed them that lie was a member of Local 595 of the Teamsters, and they replied, "If you work here, you have to join the Retail Clerks." According to Knight, lie replied, "Well, I don't know anything about that " At about 11 a un, representatives of the Respondent Clerks established a picket line around Respondent Bowen's grocery operation where Knight was emplo,ed, protested his hiring by Bowen, and demanded that Bowen discharge Knight Thereupon, Bowen summoned Knight and discharged him. The picket line of the Respondent Union continued for the remainder of the day, in an effort, according to liowen, "io get me to sign a supplemental agreement, which I didn't sign." The pickets slid not appear the following day or thereafter. On May 23, 1940, Knight filed with the Board unfair labor practice charges in Cases No 21-CA-402 and 21-CB-160 On the sanne clay, the other Com- plainants filed their charges. Unlike the other Complainants, Knight denied that the Teamsters suggested that he file charges with the Board. However, lie also testified, "No one told me to go to the Labor Board, only it was men- tioned around, like it I wanted to file a complaint, I could do so if I wanted to " He was unable to recall who had "mentioned that" to him. As set forth above, Knight did not impress the undersigned as a reliable witness. His tes- timony in this regard is not credited. Upon the entire record, including the fact that the Teamsters suggested to the other Complainants that they file in- dividual charges with the Board and the fact that all Complainants filed charges on the same day, the undersigned infers and finds that the Teamsters also sug- gested to Knight that he file charges with the Board. 21 The findings in this and the preceding 3 paragraphs are based upon the uncontroverted and credible testimony of Bowen. 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The facts as to Sacks On May 18 or 19, 1949, the Teamsters commenced to picket all of the Serbers' grocery operations except that of Serber Company, Ltd., cutting off all deliv- eries of merchandise. On May 20, Sam Serber, accompanied by counsel, con- ferred with Stevenson, counsel for the Teamsters, and reached the same agree- ment that Bowen had made with the Teamsters earlier Namely, the Teamsters were picketing the Serber operations in order to persuade Serber to hire a. member of the Teamsters as a receiving clerk According to the understand- ing reached with Stevenson, Serber would hire a member of the Teamsters at his Serber Company, Ltd, operation and in the event that the Respondent Union protested such hiring or picketed in turn, Serber would be free to discharge the member of the Teamsters. On the same afternoon that the agreement was - reached with Stevenson, the Teamsters removed their pickets from Serber's operations. According to the credible testimony of Serber, he did not have need for, and in fact had never employed, a warehouseman at any of his grocery operations. His clerks received the merchandise as it was delivered, stored it, and in addition performed other duties. On the morning of May 21, 1949, Carl Sacks, a member of the Teamsters' Local 595, appeared at the operations of Serber Company, Ltd., pursuant to in- structions from the Teamsters' dispatching office. According to Sacks, he had no knowledge of the jurisdictional conflict be- tween the Teamsters and the Respondent Union, aside from a brief account in the daily press. Upon the entire record, including the agreements between the Teamsters and the Respondent Companies in respect to the latter's- hiring members of the Teamsters and then discharging them upon request of the Re- spondent Union, the fact that the Complainants were all sent out to the Respond- ent Companies from the Teamsters' central dispatching office, the findings herein that Complainants Knight_ and Le Pante had actual knowledge of the agree- ment between the Teamsters and the Respondent Companies as to their hiring, and the subsequent advice of the Teamsters that the Complainants file indi- vidual charges of unfair labor practice with the Board, the undersigned does not credit Sacks' denial that he had no knowledge of the jurisdictional conflict between the Teamsters and the Respondent Union. The record and the factors above related support the inference, which the undersigned makes, that Sacks, like Complainants Le Pante and Knight, had knowledge, when he reported at Serber Company, Ltd., of the jurisdictional conflict and of the agreement between it and the Teamsters that he should be hired and then discharged upon protest by the Respondent Union. Shortly after he was hired at 9 a. m. and had started to work receiving merchandise, representatives of the Respondent Union appeared and demanded to see his "union book." When he showed them his identification as a member of Local 595, they said, "That book is no good for the job." Pickets from the Respondent Union appeared at the store and representatives of the Respondent Union demanded that Sacks be discharged. Thereupon, Serber acceded to their request. Sacks was hired and discharged within a 30-minute period. Upon his discharge, the Retail Clerks removed their picket line and the Teamsters never reestablished theirs. After his discharge, Sacks conferred with the Teamsters and, according to his testimony, "they told me to go over to the National Labor Relations Board, this building, turn my case over to them." HOLLYWOOD RANCH MARKET 3. The facts as to Le Pante 1177 Lawrence Frederick. one of the three partners doing business as Hollywood Ranch Market, testified that on the morning of May 23, 1949, the following occurred • The manager of the Hollywood Ranch Market telephoned Frederick and informed him that the Teamsters were picketing the delivery entrance of the market. Frederick drove to the market immediately and when he arrived, he was met by approximately 10 representatives of the Teamsters and 8 repre- sentatives of the Respondent Union. Three trucks had stopped at the entrance and "were waiting for notice whether to deliver or not." The representatives of the Teamsters demanded that Frederick employ one of their members in the warehouse and pointed to Complainant Sam Le Pante, who was with them, as the member they desired Frederick to hire. When Frederick inquired as to the basis for their request, they told him that Ralph's, a large grocery operation in the Los Angeles area, employed members of their organization in its warehouse. Representatives of the Respondent Union protested that "that was under differ- ent circumstances." The Teamsters, however, said "it didn't make any differ- ence, or something to that extent, that [Frederick] had to hire them." Repre- sentatives of the Respondent Union suggested that Frederick hire Le Pante "and then discharge him " When this proposition was submitted to the Team- sters, they acceded thereto. Throughout the discussion Le Pante was among the group of Teamsters. Thereupon, Frederick hired Le Pante and "told the manager to toss him an apron." At that point, the representatives of the Respondent Union said, "You can fire him now. Let him go." Frederick told Le Pante that he was discharged. In addition, Frederick testified that he had no need for an additional employee, since he already had employees performing the work connected with his warehouse operations, and that he hired Le Pante in order to remove the Teamsters' picket line. Le Pante did not specifically deny Frederick's testimony in regard to the hiring of Le Pante. However, his version of the events was somewhat at vari- ance with that of Frederick. According to Le Pante, he was sent to take a job at Hollywood Ranch Market by the central dispatching office of the Teamsters and when he arrived there on the morning of May 23, 1949, he reported to "Mr. Morrie" a who took his social security number, gave him an apron, and told him to go to work in the warehouse as a receiving clerk and stock boy. Shortly thereafter a representative of the Respondent Union asked to inspect-Le Pante's "union book." A few minutes later Morrie came to Le Pante and said, "I have to discharge you . . . You belong to the wrong Local." Le Pante denied that he had any knowledge of the jurisdictional issue until he reported to the office of Local 595 of the Teamsters after his discharge. At that time, Coutant ex- plained the situation and "told me where to go. He said to go to the National Labor Relations Board and fill out my application there and that was all there was to it." Upon the entire record and his observation of the witnesses, the undersigned credits the testimony of Frederick. Le Pante's testimony is not credited to the extent that it is at variance with that of Frederick. More specifically, Le Pante's testimony that he had no knowledge of the jurisdictional conflict until sometime after his discharge when he talked to Coutant at the offices of Local 595 is not credited Complainant Paredez' testimony, hereinafter considered, placed Coutant at the scene of the picketing of Hollywood Ranch Market on May 23, and according to Frederick's credible testimony set forth above, Le Pante was present throughout the discussions and negotiations as to his hiring. n The record does not reveal the identity of Mr. Morrie. Joe Parsons was manager of the Hollywood Ranch Market. 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Conclusions The Respondents urge the dismissal of the complaint on various grounds- Principally, they contend that these three Complainants were never bona fide employees of the Respondent Companies, and to quote from the Respondent Companies' brief, that the proceeding is "a collusive action which should not be decided by a juridical tribunal," since "the hiring and firing of Sacks, Le Pante and Knight was arranged by the Teamsters Union and the three employees, for the very purpose of providing a ground for filing an unfair labor practice charge." That is, "the Teamsters, in attempting by means of picketing to force the hiring of Teamster members for jobs done in the past by the Clerks, would be in violation of Section 8 (b) (4) (d) To accomplish the same end which the law has declared illegal, the Teamsters have resorted to these collusive actions." The Respondent Companies also argue that the action taken by them in respect to these Complainants was done under duress, and accordingly that they should not be held to have violated the Act. In addition, the Respond- ent Union asserts that the jurisdictional conflict between it and the Teamsters having been settled, the case is now moot. The General Counsel argues that these three Complainants were bona fide employees, that they had no knowledge of the agreement between the Teamsters and the Respondent Companies, that, in any event, the Board is not bound by such an agreement in processing the instant charges, that the Teamsters did not agree that charges would not be filed, that the action of the Teamsters did not constitute a violation of Section 8 (b) ((;) of the Act, and that the economic pressure exerted by the Respondent Union did not excuse the action of the Respondent Companies as to the three Complainants In the undersigned's opinion, the contentions of the parties as to these three" Complainants raise two vital issues upon which turn the complaint's allega- tions as to the three Complainants in question; namely, (1) whether Knight, Sacks, and Le Pante were bona fide employees and (2) whether as to them, the allegations of the complaint are so related to an unlawful course of conduct on the part of the Teamsters as to warrant a dismissal of such allegations on the ground that they constitute an abuse of the Board's process 23 In view of these two crucial issues, the undersigned has previously set forth the facts relating to the alleged employment of the three Complainants.2i In summation, these facts are, in essence, identical. On sucessive dates in May 1949, the Teamsters demanded that each of the Respondent Companies employ a member of the Teamsters as a receiving clerk or warehouseman and in support of its de- mands, established a picket line at the operations of the Respondent Companies, thereby stopping the deliveries of merchandise None of the latter needed these additional employees. Although Bowen obtained a State court temporary injunction restraining the action of the Teamsters, the latter did not comply 23 Since the resolution of the issues of the proceeding turn upon these principal issues, it is unnecessary for the purpose of this Repomt to consider other contentions of the parties. 24 In determining the existence of an employer-employee ielationship, the Board stated in Seattle Post-Intelligeneer Department of Hearst Publications, Inc, 9 NLRB 1262, "Public interest in the administration of the Act permits an inquiry into the material facts and substance of the relationship " The Board fin ther stated in respect to the definition of the term employee, in Stockholders Publishing Company, Inc, et at, 28 NLRB 1006, 1023, " In cases where the status of an individual was challenged, we have indicated that the statutory definition of the term `employee' embraces all employees in the conventional as well as legal sense, except those by express provision excluded and that the primary consideration in the determination of the applicability of the statutory definition is whether effectuation,of the declared policy and purposes of the Act com- prehend securing to the individual the lights guaranteed and protection afforded by the Act." HOLLYWOOD RANCH MARKET 1179 therewith ' Bowen and Serber protested that acquiesence to the Teamsters' demands would bring objections from the Respondent Union, whose contracts covered all their employees:- When the demand was made upon Frederick of Hollywood Ranch Market, representatives of the Respondent Union were pres- ent and personally registered their protest to the Teamsters' demands. In each instance, an agreement was reached by the Teamsters and the Respondent Com- panies that each of the latter should employ a member of the Teamsters, and that upon the request of the Respondent Union for discharge of the members of the Teamsters or upon the establishment of a picket line by the Respondent Union in protest of the hiring of members of the Teamsters, the Respondent Companies might discharge the warehousemen supplied by the Teamsters. Ac- cording to Bowen, the Teamsters stated that this procedure would satisfy "our records." In each instance, as soon as this agreement was reached, the Team- sters ceased its picketing activities. That the Respondent Union was aware of the Teamsters' initial demands is clear from Bowen's testimony, and in view of the prompt action taken by the Respondent Union in each instance, it seems clear, and the undersigned finds, that it too was aware of the agreements ulti- mately reached by the Teamsters and the Respondent Companies. It has also been found that Complainants Knight, Sacks, and Le Pante had knowledge of the jurisdictional dispute and the agreement between the Respondent Companies and the Teamsters, namely, as testified to by Bowen, "I am supposed to hire you until the Clerks start picketing and then I am supposed to discharge you " On May 19 or 20, 1949, Knight was allegedly hired by Respondent Bowen and discharged within 2 hours upon demand of the Respondent Union and the es- tablishment of a picket line by it. As to Sacks, the same incidents occurred at Respondent Serber's operations on May 21, 1949, within a 30-minute period. At Respondent Hollywood these rites were repeated with Le Pante as the Team- ster member involved on May 23, 1949, within even a shorter period of time. On May 23, 1949, at the advice of the Teamsters, Knight, Sacks, and Le Pante filed individual charges with the Board, alleging that the Respondent Companies had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act and that the Respondent Union had violated Section 8 (b) (1) (A) and8 (b) (2) of the Act Upon the foregoing, the undersigned is of the opinion that the Respondents' contentions that these three Complainants were never bona fide employees have merit and that the General Counsel's contentions in this regard must be rejected. In view of the fact that Bowen had no need for a warehouseman and the agree- ment between the Teamsters and Bowen that the latter should employ a member of the Teamsters and then discharge him in the event that the Retail Clerks protested such employment, it seems clear that when Knight appeared for work, with knowledge of the arrangement, that he had little if any expectation for active or continued employment by Bowen. At best, his employment was on a contin- gent basis. The Respondent Union promptly demanded his discharge and within 2 hours from the time he reported to duty. his alleged employment ceased. Sacks and Le Pante, whose incidents occurred subsequent to that of Knight, patently had even less expectancy of continued employment in view of the prompt action taken by the Respondent Union in the earlier incident of Bowen's operations and of the fact that neither Respondent Serber nor Respondent Hollywood had need for their services. Since all parties, including Knight, Sacks, and Le Pante, had 25 Part 3, division 2, chapter 7 of the California Labor Code relates to jurisdictional strikes which are declared unlawful See Meyers et at v Cleaners cC Dyers Union, Local No. 268, CIO, et at ., (Cal. Superior Court) 25 LRRM 2426; Voelta v Bakery & Confec- tionery Workers International Union of America, et al, 25 LRRM 2461 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knowledge of the jurisdictional dispute between the Teamsters and the Respond- ent Union and of the arrangements or agreements between the Respondent Com- panies and the Teamsters whereby the Teamsters "records" would be satisfied and the withdrawal of its pickets at the Respondent Companies' operations would be assured, and since there were no jobs for these Complainants, the undersigned finds that Sacks and Le Pante had no real expectation of entering the employ of Serber Company, Ltd., and Hollywood Ranch Market, respectively, that they merely participated in a ritual of ostensibly being hired and discharged pursuant to the agreement, and that consequently they were never bona fide employees L8 Since a bona fide employer-employee relationship never existed between Sacks and Serber Company, Ltd., and between Le Pante and Hollywood Ranch Market and since Sacks and Le Pante were never hired, it follows that the complaint's allegations to the effect that these Respondent Companies "discharge[d] and ha[ve] since failed and refused to reinstate" Sacks and Le Pante "to encourage membership in Respondent Union" in violation of Section 8 (a) (1) and (3) of the Act have not been sustained. These same reasons compel the rejection of the complaint's allegations that the Respondent Union has "caus[ed] or attempt[ed] to cause" these Respondent Companies to discharge Sacks and Le Pante, "all in violation of Section 8 (a) (3) of the Act," and have engaged "in unfair labor practices within the meaning of Section 8 (b), subsections (1) (a) and (2) of the Act." As to the second issue, whether the complaint's allegations as to Sacks and Le Pante constitute an abuse of the Board's processes, the undersigned is of the opinion that the record amply supports the contentions of the Respondents. Initially, the Teamsters demanded that the Respondent Companies hire its members to perform warehousing work. The Respondent Companies had no need for such additional employees, inasmuch as the warehousing work was being done by employees already in their employ and presumably members of the Respondent Union. When the Respondent Companies resisted the Teamsters demands, the Teamsters established picket lines at the operations of the Re- spondent Companies, stopping all deliveries. The General Counsel contends in his brief, that at most the situation was "a disagreement between the Team- sters Union and the Employers as to whether or not a full time man was needed on the back dock" and was "similar to the situation where a union is insisting that a relief driver be carried on an over the road truck." The undersigned is of the opinion that the picketing of the Teamsters exceeded the limits of the General Counsel's comparisons and in fact fell within the proscription of Section 8 (b) (4) (D) of the Act which provides It shall be an unfair labor practice for a labor organization or its agents . . . to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is . . . forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work. . . . 26 Cf. Montgomery Hardwood Flooring Company, Inc., 72 NLRB 113, at 113 and 127. HOLLYWOOD RANCH MARKET 1181 On the facts of the instant proceeding, it would appear that by picketing the Respondent Companies, the Teamsters was, in effect, seeking to require the Re- spondent Companies to assign the receiving and warehousing work to its members rather than to members of the Respondent Union. Had charges of violation of Section 8 (b) (4) (D) been filed by the Respondent Companies and a proceeding by the Board under Section 10 (k) ensued, it seems clear that the facts presented by the instant record would have justified the Board in a determination of the dispute to find, that the Teamsters was not lawfully entitled to force or require the Respondent Companies to assign the receiving and warehousing work to mem- bers of the Teamsters rather than to the employees who had been doing the work and who were members of the Respondent Union n The fact that the con- tract of the Respondent Union might be illegal under the Act would apparently not deter such a determination.28 Viewing the case in this posture, the conclusion is reached that the initial action of the Teamsters was unlawful and that upon the determination of the jurisdictional issue, it was not entitled to force the Respondent Companies to employ its members as warehousemen. However, if in the instant proceeding, initiated it is true not by charges of the Teamsters but by charges of individuals acting on the advice of the Teamsters , it should be found that the Complainants in question were bona fide employees and if it should be held that they were dis- criminatorily discharged and were entitled to reinstatement, the realistic result would be that the object of the initial unlawful action of the Teamsters would have been accomplished in a legal manner by this proceeding. In the under- signed 's opinion , the result reached from sustaining the complaint's allega- tions as to these Complainants would constitute an abuse of the Board's processes 29 27 In oral argument , the General Counsel pointed to the fact that none of the Respondents filed such charges or sought the protection of the Act from the activities of the Teamsters, but counsel for the Respondent Companies asserted that they have always taken the position , urged in the instant proceeding , that they were not engaged in commerce and therefore could not file such charges . Regardless of the fact that no charges were filed, in the opinion of the undersigned the arguments of the Respondents on this phase of the case must nevertheless be considered , since the complaint 's allegations of unfair labor practices as to these Complainants are closely allied both in time and sequence to the initial demands and picketing of the Teamsters The facts and situation herein are obviously distinguishable from those cases wherein one party thereto has sought to excuse his violations of the Act upon the fact that the other party to the proceeding had also violated the Act, and the Board has found no merit in such a defense . E. g. Cory Corporation, 84 NLRB 972. 281rwin-Lyons Lumber Company, 82 NLRB 916. Cf. LeBaron v. Los Angeles Building and Construction Trades Council at al, 84 F Supp. 629. 29 Cf. N. L. R. B . v. Indiana & Michigan Electric Company, et al., 318 U. S. 9 , wherein the Court stated : While we hold that misconduct of the union would not deprive the Board of jurisdiction , this does not mean that the Board may not properly consider such misconduct as material to its own decision to entertain and proceed upon the charge . . . It is not required by the statute to move on every charge; it is merely enabled to do so. It may decline to be imposed upon or to submit its process to abuse. 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. Contentions of the Respondents that bad faith or "unclean hands" of the Complainants in filing the charges vitiates the entire proceeding is found to be without merit. Their arguments in this respect , however, are pertinent to, and have been considered in, a discussion of the merits of the complaint 's allegations in respect to- these Complainants. 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing and the entire record, the undersigned concludes that the Respondents have not engaged in violations of Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and 8 (b) (2) as alleged in the complaint in regard to the purported discharge of Sacks and Le Pante.°0 C. Conclusions as to the contacts of the Respondent Union with Respondents Serbei and Hollywood 31 The complaint alleged that by executing and enforcing their '1948 and 1950 contracts, the Respondent Companies violated Section 8 (a) (1), (2), and (3) and the Respondent Union violated Section 8 (b) (1) (A) and (2) of the Act"2 These contracts contained provisions, set forth previously, for union security -which were not sanctioned by union-shop elections conducted under Section 9 (e) (1) of the Act, and which, in any event, could not have been ratified by such elections inasmuch as they provided for a greater degree of union security than is permitted by the proviso to Section 8 (a) (3) of the Act. As found above, the contracts were enforced by the parties thereto The undersigned finds that ao If Respondent Bowen had been found to be engaged in interstate commerce, similar findings would have been made as to the complaint's allegation that Respondent Bowen discriminatorily discharged Knight at the unlawful request of the Respondent Union of If Respondent Bowen had been found to be engaged in interstate commerce, the conclusions reached in this section of the Intermediate Report would also apply to Respondent Bowen g2 The charges filed by the Complainants herein did not specifically allege that the Respondents by this conduct engaged in these violations of the Act, although such allegations may have been inherent in the matter charged to be unfair labor practices The complaint's enlargement upon the charges and inclusion of unfair labor practice allegations other than those contained in the charges were clearly legal under the doctrine of Cathey Lumber Company, 86 NLRB 157. The Respondents' aigunient in respect to Complainants Knight, Sacks, and Le Pante, set forth above, was also extended to this phase of the case In addition, the Respondent Companies in then beef state that if it is found that they committed unfair labor practices, "the Board would order the companies to refuse any recognition of [the Respondent Union] until [it was] certified as the baigaining agent This luting would give the Teamsters the opportunity of arcomplishng what they, could not do legally They would then be tree to invade the jurisdiction of [the Respondent Union] by stiikeis, picketing, etc and would be flee under the protection of an order of the Boaid to inflict on the employers the same damage of a jurisdictional conflict which the present law sought to avoid " Insofar as the Respondents' contentions are based upon the theory that the charging parties lielein are within the interdiction of the equity doctrine of "unclean hands" or have filed the charges in bad faith with the consequence that the entire complaint should be dismissed, the undersigned finds no merit to their arguments. These factors, as previously mentioned, are relevant only to the consideration of the merits of the cases of the chaiging parties. As the Court stated in the Indiana if Michigan case, The charge is not proof. It merely sets in motion the machinery of an inquiry When a Boaid complaint issues, the question is only the truth of its accusations The charge does not even sere the purpose of a pleading Dubious character, evil or unlawful motives, or bad faith of the informer cannot deprive the Board of its jurisdiction to conduct the inquiry. The undersigned is unable to agree with the Respondent Companies' argument that the usual recommended order in such cases, that is, for the Respondent Companies to withdraw recognition of the Respondent Union as the statutory representative of the Respondent Companies' employees and to cease enforcement of their contracts with the Respondent Union, would result in granting legal sanction to the initial unlawful action of the_ Te,unsteis, previously referred to Although such an order might afford some measure of benefit to any organization which might desire to oiganize the Respondent Companies' employees, it does not necessarily follow that the result would be that presumed by the Itespondent Companies in their brief In any event, no finding herein with respect to the contract issues would preclude kny of the Respondents from resort to the Board or State courts for the protection of their rights under the Act or local California statutes, respectively. HOLLYWOOD RANCH MARKET 1183 by enforcing the 1948 contract, containing illegal union-shop provisions, from November 26, 1948, to January 1, 1950,n and by executing and enforcing the 1950 contract, which also contained unlawful union-security provisions, the Respond- ents Serber and Hollywood restrained their employees in the exercise of the rights guaranteed by Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. Moreover, by assenting to the illegal union-security provisions, Respondents Hollywood and Serber lent their support to the Respondent Union in recruiting and maintaining its membership, in violation of Section 8 (a) (2), as well as Section 8 (a) (1) of the Act By these violations, Respondents Serber and Hollywood discriminated in regard to the terms and conditions of employment of their employees, thereby encouraging membership in the Respondent Union, in violation of Section 8 (a) (3) and (1) of the, Act"i It is further found that by enforcing the 1948 contracts with Respondents Serber and Hollywood from No- vember 26, 1948, to January 1, 1950, and by negotiating, executing, and enforcing the 1950 contracts with Respondents Serber and Hollywood, the Respondent Union has violated Section S (b) (2) of the Act" In view of the Board's de- cision in National Alai itinie Union of Aniet ica, 78 NLRB 971, it is not found that by this action the Respondent Union violated Section 8 (b) (1) (A) of the Act D. The discharge of Frank Paredez- About May 16, 1949, Frank Paredez entered the employ of Respondent Holly- wood, having been hired a day or two earlier by Sam Needles, buyer and man- ager of the produce department for Respondent Hollywood. Paredez was a receiver in the produce department, checking deliveries of produce, such as vegetables and fruits, and storing such commodities. When he reported to work on the morning of May 23, 1949, he observed a picket line of the Teamsters at the Hollywood Ranch Market. Since lie was a member of Local 595 of the Team- sters, which was engaged in the picketing activities, lie first obtained permission from George Coutant, representative of Local 595, to pass the picket line before going to work Later in the morning, Needles and a representative of the Re- spondent Union appeared in the vicinity where Paredez was working, and talked briefly. Needles pointed towards Paredez. The representative of the Re- spondent Union left and Needles, according to Paredez, "come down and told me I had to leave the job because I was with the Teamsters, that that was a clerk's job " Patedez remonsuated that lie was not working as a'clerk but Needles told him to punch out his time card Paredez then conferred with Cou- tant. After the latter talked to Needles, l'aredez was told to return to work by Needles. A little later in the morning, the representative of the Respondent Union came to Paredez and tool him that he had to join the Respondent Union 94 As the charges herein were filed May 23, 1949, and served on the parties on May 26, 1949, Section 10 (b) extinguishes liability for acts which occurred earlier than about November 26. 1948 Pot the purposes of this Report, it is unnecessary to determine whether by executing the 1948 contract about January 1, 1948, the Respondents engaged in unfair labor practices The Great Atlantic and Pacific Tea Company, 81 NLRB 1052; Johns Resnick, Inc, 86 NLRB 38 . Salant ii Salant, Inc, 88 NLRB 816. 35 Pacific American Shipou hers Association. 90 NLRB 1099, Waterfront Eniployei s Association of the Pacific Coast, 90 NLRB 1021 sa The undersigned has noted the Board ' s decision in Pacific Maritime Association et al, 89 NLRB 894, in which theie is an indication that the Board might be inclined to reverse its prior holding that execution by a labor organization of a contract with illegal union- security provisions was not perne violative of Section 8 (b) (1) (A). Pending an actual reversal of the Board ' s prior holding , the undersigned deems the National Maritime case to be controlling 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in order to continue working for the Respondent Hollywood. Paredez told him that he was not interested in the Respondent Union because he was a member of the Teamsters and had been for several years, and, furthermore, he was not per- forming the work of a clerk. The representative of the Respondent Union then conferred with Needles, who was standing nearby. Needles then came to Paredez and informed him that he "was through." Paredez inquired whether he was discharged because of inefficiency. Needles replied that Paradez' work was sat- isfactory but that he was obliged to join the Respondent Union in order to work for the Respondent Hollywood37 Since Paredez entered Respondent Hollywood's employ before the jurisdic- tional conflict between the Teamsters and the Respondent Union arose at the operations of Respondent Hollywood, it iS clear that the arguments of the Re- spondents, and the findings of the undersigned, in relation to Le Pante and his connection with the Teamsters' picketing are inapplicable to Paredez. So far as the record shows, he was a bona fide employee, having been hired a week be- fore the jurisdictional conflict arose. He continued to work until May 23, 1949, the day on which the incident involving Le Pante occurred At that time, he declined to join the Respondent Union at its request, the latter demanded that Respondent Hollywood discharge Paredez, and Respondent Hollywood complied with such demand. Since the contract between Respondent Hollywood and the Respondent Union was illegal, containing unlawful union-security clauses, it follows that by discharging Paredez because he was not a member of the Re- spondent Union, Respondent Hollywood has discriminated with respect to the hire and tenure of his employment, thereby encouraging membership in the Re- spondent Union and has accordingly engaged in conduct violative of Section 8 (a) (1) and (3) of the Act. Furthermore, inasmuch as the Respondent Union caused Respondent Hollywood to discriminate against Paredez in violation of Section-8 (a) (3) of the Act, the undersigned finds that the Respondent Union has engaged in conduct violative of Section 8 (b) (2), as well as Section 8 (b) (1) (A) of the Act.33 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents Hollywood and Serber and the Respondent Union set forth in Section III, above, occurring in connection with the opera- tions of the Respondents Hollywood and Serber 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 burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union and the Respondents Hollywood and Serber engaged in unfair labor practices, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that Respondent Hollywood has discriminated in re- gard to the hire and tenure of employment of Frank Paredez, it will be recom- mended that Respondent Hollywood offer Paredez immediate and full rein- 37 These findings are based upon Paredez' uncontroverted testimony, which the under- signed credits Frederick testified that Paredez quit on May 23. Frederick, however, was not present at the time He further testified that Paredez was hired by the produce manager. The latter was not called as a witness. In view of this state of the record. Frederick's testimony that Paredez quit is not credited. 38H M. Newman, 85 NLRB 725; Clara-Val Pack-mg Company, 87 NLRB 703. HOLLYWOOD RANCH MARKET 1185 statement to his former or substantially equivalent position 39 without prejudice to his seniority or other rights and privileges. Having further found that the Respondent Union has caused Respondent Hollywood to so discriminate in regard to the hire and tenure of employment of Paredez, the undersigned will recommend that the Respondent Union notify Respondent Hollywood, in writing, that it has no objection to his employment and that it request Respondent Hollywood to offer him immediate and full reinstatement to his former or substantially equivalent position, without preju- dice to his seniority and other rights and privileges. Since it has been found that the Respondent Union and Respondent Hollywood are responsible for the discrimination suffered by Paredez, it will be recommended that they jointly and severally make him whole for the loss of pay he may have suffered by the reason of the discrimination against him from the date of his discharge. Consistent with the Board's new policy in the method of computing back pay,90 it will be recommended that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by de- ducting from a sum equal to that which Paredez would normally have earned for each quarter or portion thereof, his net earnings,41 if any, in other employ- ment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. It will also be recom- mended that Respondent Hollywood make available to the Board upon request payroll and other records to facilitate the checking of the amount of backpay - due." ° However, it would be inequitable to the Respondent Union to permit the amount of its liability for back pay to increase despite the possibility of its willingness to cease its past discrimination, in the event that Respondent Hollywood should fail promptly to offer reinstatement to Paredez In accordance with the Board's policy, the undersigned will accordingly provide that the Respondent Union may terminate its liability for further accrual of back pay to Paredez by notifying Respondent Hollywood in writing that it has no objection to his reinstatement. The Respondent Union shall not thereafter be liable for any back pay accruing after 5 days from the giving of such notice. Absent such notification, the Re- spondent Union shall remain jointly and severally liable with Respondent Holly- wood for all back pay to Paredez that may accrue until Respondent Hollywood complies with the recommended offer of reinstatement. It has been found that by enforcing the 1948 contracts with the Respondent Union, by entering into the 1950 contracts with the Respondent Union and by enforcing such agreements , Respondents Hollywood and Serber have engaged 30 In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wherever possible , but if such position is no longer in existence , then to a substantially equivalent position ." See The Chase National Bank of the City of New York, Sam, Juan, Puerto Rico Branch, 65 NLRB 827. 'OF. W. Woolworth Company , 90 NLRB 289. 41 By "net earnings" is meant earnings less expenses , such as for transportation, room and board , incurred by an employee in connection with obtaining work and working elsewhere , which would not have been mcuired but for this unlawful discrimination, and the consequent necessity of his seeking employment elsewhere. Crossett Lumber Company, 8 NLRB 440 Monies received for work performed upon Federal , State, county , municipal, or other work-relief projects shall be considered earnings . Republic Steel Corporation v. N. L.R.B,311U.S 7. 42 F. W. Woolworth Company, 90 NLRB 289 843732-51-76 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of the Act . As the Board has held, the ettect of such coercive conduct would not be eradicated were Respondents Hollywood and Serber permitted to afford the Respondent Union the privilege of enjoying a representative status strength- ened by virtue of the illegal union -shop contract . Accordingly , the undersigned will recommend that Respondents Hollywood and Serber withdraw iecognition from the Respondent Union and cease giving effect to their contracts of January 1, 1950 , with the Respondent Union , or to any nuxhfication , extension, supple- ment, or renewal thereof , unless and until, the Respondent Union has been certi- fied by the Board . Nothing in these recommendations , however , shall be deemed to require Respondents Hollywood and Serber to vary or abandon those wage, hour , seniority , or other substantive featuies of their relations with their employees , established in perfoi im ince of said contracts , or to prejudice the assertion by the employees of any rights they may have under such agreements. Since the Respondent Union has violated Section 8 ( b) (2) by enforcing its 1948 contracts with Respondents Serber and Hollywood , by negotiating and executing the 1950 contracts with Respondents Seiber and Hollywood, and by enforcing such agreements , containing illegal union -shop provisions , it will be recommended that the Respondent Union cease and desist from giving effect to the unlawful union -security provisions in their contracts of January 1, 1950, with Respondents Serber and Hollywood. and from in any like or related manner causing , or attempting to cause, Respondents Serber and Hollywood to discrimi- nate against employees in violation of Section 8 (a) (3) of the Act Having found that Respondent Bowen is not engaged in commerce within the meaning of the Act , it will be recommended that the complaint's allegations in respect to the alleged discharge of Knight and to the contracts between the Respondent Union and Respondent Bowen be dismissed Since the complaint's allegations as to Carl Sacks and Sam Le Pante have not been sustained, the undersigned will recommend that such allegations of the complaint be dismissed On the basis of the above findings of fact and the entire record in the case, the undersigned makes the following CONCLUSIONS OF LAW 1 The operations of Hollywood Ranch -Market and Serber Company, Ltd , constitute trade, traffic, and commerce among the several States within the meaning of Section 2 (6) and (7) of the Act. 2. The operations of Vaughn Bowen do not constitute trade, traffic, and commerce among the several States within the nieanin(- of Section 2 (6) and (7) of the Act. 3 Retail Clerks Union, Local No 770, International Association of Retail Clerks, A F. of L, is a labor organization within the meaning of Section 2 (5) of the Act. 4. By interfering with, restraining, and coercing its employees in the ex- ercise of the rights guaranteed in Section 7 of the Act, Respondents Holly- wood and Serber have engaged and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 5. By contributing support to the Respondent Union, Respondents Holly- wood and Serber have engaged and are encagring in unfair labor practices within the meaning of Section S (a) (2) of the Act G. By enforcing the 1948 contiacts with the Respondent Union, by enter- ing into the 1950 contracts with the Respondent Union, and by enforcing such agreements, Respondents Hollyxiood and Serber have engaged and are en- WARREN PAPER PRODUCTS CO. 1187 gaging in unfair labor practices within the meaning of Section 8 (a) the Act (3) of 7. By discriminating in regard to the hire and tenure of employment of Frank Paredez, thereby encouraging membership in a labor organization, Respond- ent Hollywood has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 8 By enforcing its 1948 contracts with Respondents Hollywood and Serber, by negotiating and executing the 1950 contracts with Respondents Hollywood and Serber, and by enforcing such agreements, thereby causing them to dis- criminate against employees in violation of Section 8 (a) (3), and by caus- ing Respondent Hollywood to discriminate in regard to the hire and tenure of employment of Frank Paredez in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 9. By restraining and coercing employees of Respondent Hollywood in the exercise of their right to refrain from any and all of the concerted activities guaranteed by Section 7 of the Act, the Respondent Union has engaged and is engaging in unfair labor practices within the meaning of `Section 8 (b) (1) (A) of the Act. 10 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 11. Respondent Serber and the Respondent Union have not engaged in un- fair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and 8 (b) (2) as alleged in the complaint in respect to the discharge of Carl Sacks. 12. Respondent Hollywood and the Respondent Union have not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and 8 (h) (2) as alleged in the complaint in respect to the discharge of Sam Le Pante. [Recommended Order omitted from publication in this volume ] WARREN PAPER PRODUCTS Co. and INTERNATIONAL BROTHERHOOD OF BOOKBINDERS, A. F. L. WARREN PAPER PRODUCTS Co. and INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS' UNION OF NORTH AMERICA, A. F. L. Cases Nos. 13-RC-158 and 13-RC-1583. April 4,1551 Decision , Direction of Election , and Order Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John P. von Rohr, hearing officer. The hearing officer's rulings made at the hearing are free trom prejudicial error and are hereby affirmed. 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 [Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record, the Board finds : 93 NLRB No. 200. Copy with citationCopy as parenthetical citation