Gamble-Skogmo, Inc.

In the Matter Of GAMBLE-SKOGMO, INC. and ARCHIE L. ANDERSON AND RAYMOND W. BERRES Case No. 18-C-1285.-Decided January 23, 1948 Messrs. Stephen M. Reynolds andClarence A. Meter, for the Board. Messrs. R. L. Van Fossen and Ernest E. Watson, of Minneapolis, Minn., for the respondent. Mr. Thomas 0. Kachel reacher, of Minneapolis, Minn., for the Union. DECISION AND ORDER On April 11, 1947, Trial Examiner Louis Plost issued his Inter- mediate Report in the above-entitled proceeding, finding that the respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed, as set. forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent and the attorneys for the Board filed exceptions to the Intermediate Report, and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the modifications and exceptions noted hereinafter. We agree with the Trial Examiner that the discharges of employees Anderson and Berres, by the respondent, on May 20 and June 6, 1946, respectively, were not violative of the Act. As detailed in the Inter- mediate Report, the Trial Examiner found, inter alia, (a) that the closed-shop contract of May 3, 1946, pursuant to which Anderson and Berres were discharged, was not entered into by the Union and the respondent with the intent to utilize its closed-shop provisions to effect the discharges of these two employees; (b) that the unit covered by this agreement was appropriate; (c) that the employees concerned had 75 N. L R. B., No. 125. 1068 GAMBLE-SKOGMO, INC. 1069 adequate notice of the closed-shop provisions contained in the May 3 contract; and (d) that the doctrine of the Rutland Court case' is not applicable to the facts presented herein.2 The attorneys for the Board filed exceptions principally to the above findings.' We find no merit in these exceptions. With respect to the alleged collusive intent of the contracting parties, although, as indicated by the Trial Examiner, this matter is not "entirely free from doubt," we are of the opinion that the record tails to establish that the Union and the respondent entered into the agreement with the intent to utilize its closed shop provisions as a means of effecting the discharges of Anderson and Berres. As to the appropriateness of the unit covered by the agreement of May 3, this unit apparently embraced all the respondent's nonsuper- visory warehouse workers and truck drivers. Similar units have fre- quently been found appropriate by the Board; 4 and, while the con- tract involved herein was possibly never effectuated as to the female workers and the latter employees were subsequently placed under a separate collective bargaining agreement, we are not persuaded that such facts demonstrate that the unit covered by the contract in ques- tion was inappropriate in the instant case. With respect to the employees' alleged lack of knowledge of the closed-shop provisions embodied in the May 3 contract, these provi- sions were set forth in express terms in this written agreement which was signed by the exclusive representatives of the respondent's work- ers. In such circumstances, notice to the majority representatives is tantamount to notice to the employees in the unit. Consequently we conclude that Anderson and Berres had adequate notice of the closed- shop requirements contained in the May 3 contract.' And, as to the applicability of the Rutland Court doctrine, we are of the opinion that, for the reasons outlined by the Trial Examiner I Matter of Rutland Con) t Owners. Inc., 44 N. L. R B 587 and 46 N. L R. B 1040. 2 The Intermediate Report contains certain minor misstatements or inadvertences, none of which affects the coriectness of the Trial Examiner 's ultimate conclusions , or our con- currence in those conclusions Accordingly, we note the following corrections • The provi- sions contained in the contract entered into by the Union and the respondent on May 3, 1946 , were comparable to those embodied in contemporaneous agreements covering other sections of the Union, and were not, as found by the Trial Examiner , more favorable to the respondent's workers And Berres ' employment by the respondent began on April 15, 1935, and not on April 15 , 1946 , as inadvertently stated 'The respondent excepted to the Tiial Examiners conclusion that no oral or implied closed-shop agreement was in effect between the Union and the respondent before May 3, 1946 For the reasons set forth in the Intermediate Report, we concur in this finding by the Trial Examiner 4 See, e g , Matter of Sidney Myers, Inc. 74 N L. R B 112, and Matter of Merchants & Manufacturers Warehouse Company, 41 N L R B 979. 5 This case is clearly distinguishable on its facts from Matter of Electric Vacuum Cleaner Company, Inc., 18 N. L R . B. 591 , enf'd in 315 U. S 685, rev'g 120 F. (2d) 611 (C. C. A. 6), relied upon by the Board 's attorneys , which involved an oral closed -shop contract 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the Intermediate Report, the principles enunciated in that Decision are not controlling in the instant case ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein against Gamble Skogmo, Inc., Minneapolis, Minnesota, be, and it hereby is, dismissed. CHAIRMAN HERZOG and MR. JAMES J. REYNOLDS , JR., took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Messrs. Stephen M Reynolds and Clarence A. Meter, for the Board. Messrs. R. L. Van Fossen and Ernest E. Watson, both of Minneapolis, Minn., for the Respondent. Mr. Thomas 0. Kachehnacher, of Minneapolis, Minn., for the Intervenor. STATEMENT OF THE CASE Upon an amended charge duly tiled October 18, 1946, by Archie L Anderson and Raymond W. Berres, herein called the complainants, the National Labor Rela- tions Board, herein called the Board, by its Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint dated October 21, 1946, against Gamble-Skogmo, Inc., Minneapolis, Minnesota, herein called the Respond Ent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the Respond- ent and the complainants. With respect to the unfair labor practices the complaint alleged in substance: (a) that on or about May 20, 1946, the Respondent discharged the complainant Archie L. Anderson, and on or about June 6, 1946, the Respondent discharged the complainant Raymond W. Berres, and has since failed and refused to reinstate them because they, and each of them, engaged in collective activity with other employees of the Respondent for the purpose of collective bargaining and other mutual aid and protection ; and (b) that by the foregoing conduct the Respondent has engaged in conduct violative of Section 8 (1) and (3) of the Act. On October 29, 1946, Minneapolis General Drivers Local No. 544, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A F. of L., herein called the Union, filed a motion for in- tervention with the Regional Director of the Eighteenth Region on the ground that the Union was a real party in interest On the same day the Regional Direc- tor granted the Union's motion. 8 Although the amended Act hae had a considerable impact upon the Rutland Court doc- trine, the present case is not affected thereby, inasmuch as the discharges in issue occurred before the changes in the law GAMBLE-SKOGMO, INC. 1071 On October 31, 1946, the Respondent filed an answer in which it admitted that it was engaged in commerce within the meaning of the Act, admitted that it dis- charged the complainants, but averred that the discharges were made under the provisions of a closed-shop contract existing between the Respondent and the Union. Pursuant to notice a hearing was held at Minneapolis, Minnesota, on November 19 to 22, 1946, inclusive, before Louis Plost, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board, the Respondent and the Union were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. The undersigned granted, without objection, a motion by the Respondent to amend the answer in order to correct a typographical error. At the conclusion of the Board's case in chief the Respondent moved to dismiss the complaint. The undersigned denied the motion. An opportunity was afforded all parties to argue orally and to file briefs, together with proposed findings of fact and conclusions of law or both, with the undersigned. All parties argued orally before the undersigned. Briefs have been received from all the parties With its brief, the Respondent filed proposed findings of fact and conclusions of law. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following ; FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, Gamble-Skogmo, Inc., is a Delaware corporation having its principal office and place of business in Minneapolis, Minnesota, where it is en- gaged in the purchase, sale, warehousing, and distribution of home appliances, furniture, hardware supplies, farm supplies, and clothing. The Respondent, in connection with its business, operates retail establishments in various Midwestern and Western cities. During 1946 approximately 80 percent of the merchandise handled by the Respondent at its Minneapolis warehouse came to it from points outside the State of Minnesota. During the first 10 months of 1946, the Re- spondent's sales from its Minneapolis warehouse amounted $6,630,577. Of this amount of merchandise 20 percent was sold and shipped by the Respondent to points outside the State of Minnesota. The Respondent concedes and the under- signed finds that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Minneapolis General Drivers Local No. 544, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., is a labor organization admitting employees of the Respondent to membership.' III. THE ALLEGED UNFAIR LABOR PRACTICES A. The contracts between the Respondent and the Union Since sometime in 1941 the affairs of the Union have been conducted by a trustee appointed by the International Brotherhood of Teamsters, Chauffeurs, Ware- ' The record shoes that the employees of the Respondent who were members of the Union have been transferred to another local with the same national affiliation During all times material herein the Respondent's employees were, however, under the jurisdiction of the Union . 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD housemen and Helpers of America, A F of L This procedure is entirely within the provisions of the Union's constitution and as a matter strictly within the Union, is of no concern to the undersigned except insofar as the situation created by the trusteeship may shed light upon the facts hereinafter discussed. The Union in practice negotiates contracts with various employers through its trustee or officials appointed by the trustee. The contracts entered into between the Union and the Respondent were no exception to this general procedure. Clarence' T Gibson, personnel director of the Respondent, testified that the Respondent has been under contract with the Union since 1935, the contracts being uniformly negotiated with the Union's officials. Prior to 1941 the Union made no request of the Respondent for a closed shop contract ; however, in 1941, at the time the Respondent first negotiated with the present Union trustee a re- quest for the inclusion of a closed shop provision in the contract was made by the Union. The Respondent at that time refused to enter into a closed shop contract with the Union. Gibson testified that sometime in 1941 he was told by the Union's trustee and officers that the Union would expect all the Respondent's employees within iits jurisdiction to become members of the Union or the Respondent "would have to face the consequences." Upon being so informed Gibson replied, "There isn't much we can do about it if you insist that all employees must be members of the Union." However each year after 1941 until May 3, 1946, the date of the signing of its last contract with the Union, the Respondent refused to include a closed shop clause in its agreements. Gibson further testified that the Respondent's president was strongly opposed to the principle of the closed shop and the Re- spondent's policy With respect to such a contract was shaped by him. Gibson's above-related testimony was not contradicted and was corroborated by Stephen Nehotte, the Union's president from June 16, 1942, until September 18, 1946, who testified that sometime in the fall of 1941, he told Gibson that "If they [the Respondent's employees] don't belong to the union they don't work." At this time, as herein' found, the Respondent was under a sole bargaining contract with the Union, which contained no closed shop provision. Nehotte testified that when he made the above statement to Gibson the latter replied, "what can we do about it?" Nehotte further testified that the Union took the position that regardless of the provisions of its contract with any employer all employees coming within the jurisdiction of the Union were required to become members of the Union; that all employers admitted the existence of such a closed shop because of the Union's claim that it in fact existed. and that despite the written provisions of its various contracts with the Respondent, the Union had a closed shop understanding with the Respondent through direct conversations with Gibson and Clarence H. Parelius. the manager of the Respondent's warehouse. There is evidence, however, that from 1936 until 1942, an employee, one C C. Jilson, who was within the appropriate unit, did not become a member of the Union and was permitted to work in the Respondent's plant through "a special agreement concerning him with the union " The undersigned is convinced and finds that prior to the signing of the con- tract between the Union and the Respondent, on May 31, 1946, despite the Union's claim that a "practical" closed shop contract was in effect between it and the Respondent, because of its threats to the Respondent and its ability to enforce a closed shop provision at will, and despite the fact that the record is replete with testimony that the Respondent stood in fear of the Union's ability to com- pletely paralyze the Respondent's operations both in Minneapolis and through- out the country, no closed shop contract was in effect which bound the Respond- GAMBLE-SKOGMO, INC. 1073 ent either actually by written agreement or by implication through custom, usage, or oral understanding. It is an elementary rule of contract law that a contract between two parties must be predicated on the meeting of the minds of the parties. It is clear that prior to the final contract between the Respondent and the Union there was no such meeting of the mind regarding a closed shop. The contract between the Union and the Respondent with the expiration date of May 31, 1946, could by its terms be opened only for discussion on wage ad- justments prior to its expiration and was so opened by the parties. At this time the Respondent desired to stock an additional line of goods in its Minne- apolis warehouse. This merchandise was customarily handled by female em- ployees and the Respondent who had never before employed women as regular help (although some women had been employed during a previous Christmas season), desired to employ women to handle it. The Respondent consulted with the Union, through its trustee, regarding the employment of female help in its warehouse. The negotiations apparently extended over a considerable period. Gibson testified "I wouldn't have dared to put a woman to work in that ware- house without consulting the union-the union officials." Gibson further testi- fied that as the situation then existed between the Union and the Respondent if "the officials of Local 544 had told us to discharge the women or have them sign up we would have-we would have given the women the choice of one or two things, of losing their job or of signing up with the union." It must be borne in mind that at this time the Respondent had not signed a closed shop contract with the Union and none in fact was in effect between the Union and the Re- spondent. During the course of the negotiations the Union gave the Respondent per- mission to employ women, and did not request that these employees be required to join the Union. On May 3, 1946, the Respondent and the Union signed a new contract, which superseded the agreement whose expiration date was May 31, 1946. This new contract provided that only members of the Union, and newly hired employees not members, who were required to become, members, should be employed in the Respondent's warehouse in receiving, shipping, and stocking mer- chandise. All truck drivers and their helpers were also included. On its face therefore the contract was a closed shop contract. Simultaneously with the execution of the May 3 contract, the parties thereto agreed orally that the wage rate to be put into effect was not to apply to the female employees. Gibson testified that the Union's trustee insisted on a closed shop contract in order that there would be "something he could show to the women in writing so that they would know they would have to join the Union." Nehotte testified that the Union insisted on a closed shop contract with the Respondent because it expected trouble having these people [the women employees] join the Union as women "are harder to convince" and that the organization could not "always combat a situation" with a female employee in the same manner as with a male. Nehotte also testified that all contracts prior to May 3, covered only male em- ployees and that the contract of May 3 was never effectuated as to the female employees either as to wages or Union membership. On November 5, 1946, the Respondent signed a closed shop contract with Warehouse Employees Union Local No. 359, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L. On September 18, 1946, the membership of the Union had been transferred to Local 359 and the Respondent had been duly notified of the transfer. On or about September 1, the female employees were solicited for membership in Local 359. Apparently they had been solicited for membership in the Union 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before this date but had not been compelled to join the Union. Membership in Local 359 is enforced as a condition of employment. Nehotte testified that at a date undisclosed by the record, but which was after the signing of the contract and the later transfer of the employees covered thereby to Local 359, at a meeting of the Respondent's male employee members of the Union wherein it was voted to accept the female employees into membership in the Union, the Union attempted to impose the general wage scale on the Respond- ent as to its female employees, despite the previous oral agreement with the Respondent to the effect that the wage scale did not apply to the female employees. The Respondent refused to be bound by the written agreement "as far as women were concerned" and it was again agreed to negotiate the question, of the women's wage rate separately. Following this, a wage scale was negotiated for the Respondent's female employees and all the Respondent's employees within the unit were transferred to the new local. Archie L. Anderson testified without contradiction, and the undersigned credits his testimony, that at a Union meeting on May 8, 1946, the Union's officers an- nounced that the contract of May 3 had been signed, but that its terms, including the fact that it had been changed to a closed shop contract covering both male and female employees of the Respondent, were not disclosed to the membership. Anderson further testified, also without contradiction, that the first official knowledge the Respondent's employees had of the contents of the contract was on June 12, at which time the contract was brought to the Respondent's plant. B. The alleged discriminatory discharge of Archie L. Anderson and Raymond W. Berres Archie L. Anderson was continuously employed by the Respondent for 12 years, with the exception of the period from July 1943 until November 1945, during which time he served in the United States Army. Anderson was one of the first of the Respondent's employees to join the Union; he was very active in its affairs; had served as job steward ; had been a candidate for secretary treasurer of the Local, and served on the Union's shop committee. In December 1945, the Union began negotiations for a wage increase with a committee representing all employers who maintained warehouses and operated trucks in the area. The negotiations extended into February 1946. During the course of the negotiations the Union filed a strike notice and the Governor of Minnesota appointed a fact finding committee to meet with the parties and make recommendations on wages. The Governor's fact finding committee made recommendations which were accepted by the F lion's trustee and all the sub- divisions of the Union except the Gamble-Skogmo section, which consisted en- tirely of the Respondent's employees. The Union had approximately 6500 mem- bers, the Gamble-Skogmo section had approximately 150 members. Anderson led the opposition within the Gamble-Skogmo section. At a meeting of the Gamble-Skogmo section held in February 1946, Anderson and Raymond W. Berres spoke against accepting the wage recommendations of the fact finding committee, and succeeded in blocking their acceptance by the section membership. Anderson, corroborated by Berres, testified that shortly after the meeting above referred to, Iver Hauberg, a foreman in the Respondent's warehouse, told him that for his own "good" and that of Berres, the two men should not carry on conversations in the warehouse ; that Anderson and Berres were being watched ; that the "heat was on," and that the management was "trying to get something on" them. GAMBLE-SKOGMO, INC. 1075 Berres testified that after Anderson left the group Hauberg then told Berres that Hauberg "didn't think it was right that Union officials should come to the company and discuss what a couple of men did and said at that meeting or any meeting." Later in February at another meeting of the section, the Union officials proposed a strike vote. Anderson and Berres opposed the proposal and criticized their Union officers and the methods used in the negotiations. A motion was pre- sented that the shop committee of the Gamble-Skogmo section be present at future negotiations with the Respondent On the assurance of the Union officials that the shop committee would be present at future negotiations the motion was withdrawn. The committee was not called to any future negotiations with the Respondent but a higher wage rate and more favorable working conditions were obtained by the Gamble-Skogmo section. Apparently the Gamble-Skogmo section was the only section of the Union which obtained such better wages and con- ditions. Berres testified that a few days after the first February meeting herein referred to, Hauberg told him that Clarence H Parelius, manager of the Respondent's warehouse asked him (Hauberg) "How can we get rid of Archie Anderson?" Hauberg testifield that he often told employees that they were being watched in order to obtain better work from them and that at the time he told Anderson that the "heat was on" Clifford E. Nordberg, the Respondent's traffic manager, had complained of lax conditions in the plant and therefore Hallberg warned employees "for their own good," paying special attention to Anderson and Berres because "they were the center of attraction." Nordberg testified that the Respondent's president had complained of the operations of the plant and that in turn, Nordbeig warned the supervisors including Hauberg. Hauberg denied telling Berres that Parelius had asked "how to get rid of Anderson." Hauberg admitted talking to Berres about the Union meeting at which the fact finding committee's recommendations were voted down and testified that he told Berres he "was very much disappointed " Hauberg did not impress the undersigned as a truthful witness From his observation of the witness and from the entire record the undersigned does not credit Hauberg's denials of the statements attributed to him by Anderson and Berres as above set out and finds that Hauberg made the statements attributed to him by Anderson and Berres Anderson testified that on March 12 he was informed by employee George Hirsh that Anderson's truck was being watched Anderson's truck was in fact followed. On a trip which began March 25, he was followed for 17/_r days by a man in an automobile. During the course of the trip Anderson com- plained to the sheriff of one of the communities through which he passed and requested the sheriff to stop and inters sew the man following him. This the sheriff did, but apparently satisfied by the explanation and credentials of the man in the automobile made no arrest Upon his return from this trip Anderson asked to be transferred to the warehouse and was so transferred on March 27. Anderson testified that shortly after the above-related incident he had a con- versation with Hauberg who told him Parelius had asked Hauberg some time before if there was not "some way" to get rid of Anderson and Berres and that Hauberg also remarked to Anderson, "I don't think your union leaders should come down and tell the company what you say in a membership meeting." Hauberg denied the conversation. The undersigned credits Anderson. 7 66972-4S-vol 75-69 1076 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD J. Emmett Hannon testified that he operated a private, detective agency which was engaged by the Respondent to shadow truck runs made by the Respondent's drivers. Hannon testified that the agency was furnished only with the truck numbers and did not know who were the drivers of the trucks. Operatives assigned to follow the truck submitted reports of all checks made. In all, five truck runs were followed. Of these five runs, two were of trucks driven by Anderson, and of the remaining three runs, one was a run previously assigned to Anderson, but which he (lid not make because of illness. Anderson reported his illness and inability to drive after the detective agency had been given the number of the truck to be followed Nordberg testified that as the Respondent's traffic manager he had the trucks followed as part of a general survey of traffic handling; that the detective agency was not given the names of drivers to be followed; that the truck runs to be followed were chosen before the driver to handle the run was selected and that the survey was abandoned because the detective agency was not able to make the survey to the Respondent's satisfaction. This was the first time such a survey was made by the Respondent. Nordberg further testified that no employee was disciplined or discharged as a result of the survey On May 6, 1946, Anderson was notified by the Union that charges had been filed against him alleging that he had violated his oath to the Union! There is evidence that in 1941 Anderson had been brought before the Union's official body on charges but was exonerated s Prior to the 1941 hearing the Union's trial body ordered Anderson not to work pending trial ; however, he ignored the order but on the demand of the Union the Respondent did not permit him to work (although it had let him make one trip), until he was cleared by the Union On May 8, the Gamble-Skogmo Section of the Union held a regular meeting, part of the business being the election of members of the shop committee Anderson was a candidate for the office. The Union officials announced that as Anderson was under charges by the Union the election would not be held; however, after a stormy meeting, the membership voted to override the Union officials ; the election was held and Anderson was elected.4 On May 17, Anderson was tried according to the procedure set up in the Union's constitution. found guilty as charged, and expelled from membership On May 18, the Union notified the Respondent of Anderson's expulsion and demanded that he be discharged In its letter to the Respondent, the Union did not refer to the existing closed shop contract but did make reference to the reason for Anderson's expulsion. On May 20, the Respondent discharged Anderson. The Respondent contends that it discharged Anderson under the provisions of the May 3 contract Nordberg and Gibson both testified that Anderson was "an above average employee" ; that the Respondent had no cause, other than the Union's request, to discharge him; that the Union had never before requested the Respondent to discharge an employee, but had there been no closed shop contract the Respondent would have in any event discharged Anderson at the Union's request. 2 Anderson was charged with being an adherent of the Communist party. The under- signed excluded all testimony offered relating to the evidence presented at the Union's trial proceeding 3 The charge on this occasion was also adherence to the Communist party 4 As previously found it was at this meeting that the signing of the contract of May 3 was announced by the Union's officials GAMBLE-SKOGMO, INC. 1077 Raymond W. Berres was employed by the Respondent in various capacities in its warehouse from April 15, 1946, until June 6, 1946. From June 1945 until the (late of his discharge Berres was a working. foreman. Berres was very active in Union affairs, serving as a shop steward and on the shop committee. He partici- pated with Anderson in the three union meetings heretofore discussed and appar- ently was equally responsible with Anderson in persuading the Gamble-Skogmo section of the Union to override its officials and obtain a more favorable contract from the Respondent. At the time of the May S Union meeting, Berres who was also under charges of having violated his Union obligations ° and slated to be tried was nevertheless retained on the shop committee over the objection of the Union officials. As has been found herein, following the February 1946 Union meeting, Hauberg told Berres that he and Anderson should not be seen talking together, and that Hauberg (lid not consider it right for the Union officials to report to the Respondent on what members said at Union meetings. It has also been found that after these meetings Hauberg told Berres that Parelius had asked "how to get rid of Anderson." Berres testified that on the day following the Union meeting at which the employees rejected the proposals of the tact finding committee, Parelius told him that the company was "disappointed" and as a result of the membership's action might abandon its plan to expand its Minneapolis business. Parelius admitted speaking to Berres about the meeting but testified that he (lid not remember what was said, except that he might have said that he was disappointed. The undersigned is persuaded and finds that Berres' account of the conversation is substantially accurate and credits his testimony. Berres testified that on March 16 e lie was called to Nordberg's office and offered a position as a supervisor in the Respondent's Chicago warehouse. Berres ad- initted that he had previously indicated to the Respondent that he would accept a transfer to Chicago. He was given a pay raise and told that his duties would be of a supervisory nature. On the next clay he reported to Chicago. The Respondent provided him with quarters in a first rate hotel Berres reported to the plant but the warehouse manager put him at ordinary labor and gave him no supervisory duties. On March 30, after having complained to the Respondent's Chicago superintendent, Berres was ordered to return to Minneapolis. On his return he found that his previous job as a working foreman had been filled He was given a "hit and miss" job at no reduction in pay Nordberg testified that Berres was sent to Chicago to act in a supervisory ca- pacity, but due to a clash of personality between Beires and the Chicago ware- house superintendent a situation developed which prevented the plan being carried,out and necessitated Berres' return. He admitted that Berres (lid no supervisory work in Chicago. On May 6, Berres was notified by the Union that he was charged with viola- tions of its constitution and that he would be tried on May 17. In 1941 Berres had been called before the Union's executive board, at which time lie was admonished, but not formally tried on any charges At the same time Anderson was also called before the Union's board for trial, as hereinbefore EBeires like Anderson was charged by the Union with being an adherent of the Com- munist party 6 On March 15, Anderson s truck was first followed in the traffic survey. 'Maich 27 was the day Andeison asked for transfer to the warehouse following the shadowing of his truck runs. 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD related. Apparently both men were charged with the same violation growing out of their joint activity. Berres testified that on Friday, May 31, which was a regular pay day, he was handed two checks, one of which was his regular pay check and the other rep- resented all sums for overtime, pay held back, etc, and would indicate that he was being discharged. Berres took the checks to the office where he was told a mistake had been made. The checks were cancelled and kept by the clerk. Later in the day Berres returned to the office and persuaded the clerk to return the checks to him. He then told Parelius of the occurrence. Parelius demanded the return of the checks, which Berres refused. On the following Monday Pa- relius again demanded the return of the checks and Berres then returned them. Gibson testified that on May 28 he received a telephone call from the Union's trustee who informed him that Berres was to be tried that day by the Union and if found guilty, Berres must be discharged immediately and that the trustee further suggested that Berres' checks be made ready at once. Gibson ordered the checks prepared, but was informed later in the day by the Union's president that official notification would take several days. When it was discovered that the checks had been given to Berres their return was ordered. Berres was tried by the Union on May 28, and notified of his expulsion on June 5. Berres testified that on June 6, he was called from his work, and told by Parelius and Ferch, Nordberg's assistant, that he was being discharged at the request of the Union. Ferch remarked at the time that although the Respondent did not have a closed shop contract with the Union "there isn't just anything we can do about it." Ferch was not called. The undersigned credits Berres The respondent contends that Berres was discharged under the terms of the -closed shop agreement of May 3, 1946. Nordberg testified that Berres was an above average employee. Gibson testi- fied that regardless of the existence or nonexistence of a closed shop contract "we would have discharged the employees at any time we were ordered to by the union." C. The Board's contention The Board contends in its brief that the contract entered into between the Respondent and the Union on May 3 was not a valid closed shop contract because the closed shop clause was entered into secretly, without the presence or knowl- edge of the shop commmttee, despite a previous promise by the Union's official that the committee would be present at the negotiations, and that it was never publi- cized to the Respondent's employees ; that the closed shop clause was collusively entered into between the Respondent and the Union officials to further the desire of both parties to rid themselves of Anderson and Berres, the Respondent's motivation being Anderson's and Berres' concerted activity within the Union, which resulted in a higher wage scale and more favorable conditions, costly to the Respondent. The Union officials' motivation being the same plus the fact that the two men openly and effectively challenged their authority. The Board further contends that the circumstances surrounding the trailing of Anderson's truck runs and the transfer of Berres to Chicago are clear proof of the Respond- ent's motivation, and that the signing of the closed shop contract was merely a pretented act in an entire scheme to discharge the two men who had become undesirable to the Respondent and the Union officials by reason of their activities within the Union ; the Board also contends that the activities of Anderson and GAMBLE-SKOGMO, INC. 1079 Berres constituted such concerted activities as to afford them the protection of the Act under the Rutland Court doctrine.' The record discloses that the Respondent had full knowledge of the activities of Anderson and Berres within the Union and was aware of the fact that the revolt of the Gamble-Skogmo section's membership against the Union's officials, resulted in a more favorable contract for the Gamble-Skogmo section. 'The fact that following the February Union meetings the Respondent began a "traffic survey" in which Anderson's truck was followed on two runs out of a total of five checks and had Anderson not been prevented from making another run because of illness, not disclosed to the Respondent until after the run had been picked for survey, three of the five checks would have been made against Ander- son's runs, coupled with the fact that on the day following the first trailing of Anderson's truck, the Respondent arranged to send Berres out of the city, and the fact that Berres was recalled from Chicago (where he had received ad- verse treatment by the Respondent) immediately after the traffic survey was discontinued and Anderson had asked to be relieved as a truck driver, are all suspicious circumstances. However, the fact remains that Anderson was trans- ferred to the warehouse at his request and Berres was returned to Minneapolis. Although Berres was not returned to his former job he suffered no loss of pay and apparently was not given more arduous work. Neither man was disciplined, reprimanded or discharged as a result of the "traffic survey" or the Chicago transfer fiasco. If by its action the Respondent was seeking a plausible excuse to discharge Anderson and Berres or cause them to quit their employment, and the motive therefor was the Union activity of the men, the design was never carried out ; moreover, the Respondent did not seek to force Anderson to continue as a truck driver or refuse to return Berres to Minneapolis. The record does not show that the Respondent and the Union's officials planned the "traffic survey" or the Chicago transfer as a means of ridding either the Union or the Respondent, or both, of Anderson and Berres. The evidence relating to the two incidents above referred to when' considered in the light of the entire record, including the statements found to have been made by the Respondent's officials to Ander- son and Berres is not sufficient to establish that the Respondent and the Union's officials collusively sought the discharge of Anderson and Berres, but also it is not entirely free from doubt. At the time the Respondent and the Union entered into the closed shop contract signed on May 3, 1946, the Union clearly represented all the employees within an appropriate unit. As a matter of fact all the male employees within the unit were and had been members of the Union for a long period of time, and understood that unless they became and remained members of the Union they would not be permitted to continue in the Respondent's employ. That the Respondent recognized the Union's right to represent all the employees within the unit is shown by the fact that it would not employ female help within the unit until it first obtained permission of the Union to do so. The fact that the Respondent appears to have agreed to a closed shop provision because of its fear of the Union, does not of itself brand the contract as one entered into under such duress as to invalidate it. Neither does the fact that the Union did not choose to use the closed shop provision as a means of enforcing membership of the women until some time after the contract was signed, invalidate the contract. The evidence shows that the contract was negotiated by the Union officials and that the Union members had no committee representation at the negotia- 8 Rutland Court Owners, Inc., 44 N. L. R. B. 587 and 46 N. L. R. B. 1040. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions The record is clear that such representation was promised the members of the Union by its official, and that the promise was not kept. It is also clear however, that the Union's contracts were customarily negotiated by the Union officials and that the members of the Union had no part in the negotiations. Since it was generally known among the male employees both before and after the execution of the May 3 contract that continued employment by the Respondent was predicated on Union membership and as the May 3°contract was executed in the normal manner under the provisions of the Union's consti- tution it cannot be said that these employees had no notice that a closed shop agreement was in existence. The facts in this case are clearly distinguishable from the Electric Vacuum Cleaner Co., Inc. case.' In that case a closed shop contract was executed secretly in order to favor one of two rival unions thereby granting illegal aid to one of two unions contending for membership among employees The record herein does not show such illegal support nor does it show that the Respondent and the Union entered into the contract for the purpose of utilizing its closed shop provisions as a means of effecting the discharge of Berres and Anderson. The undersigned therefore concludes that the contract entered into between the Union and the Respondent on May 3, 1946, was a valid closed shop contract. Contrary to the contention of the Board, the undersigned does not believe that the Union activities of Anderson and Berres fall within the protected area of the Rutland Court doctrine Under this doctrine the Board will extend the protection of the Act to.employees who are under a closed shop contract, if the employees whose discharge is sought by the Union party to the contract on the ground that the employees have been expelled from the Union were so expelled for engaging in concerted activities in an effort to change their bargaining agent at a time when a new election was proper under Board proceeding and the employer has knowledge of the reason for the expulsion This was not the case here Ander- son and Beires were not seeking to change their bargaining agent. They were engaged in a struggle with the officials of their Union, which did not involve any change in the bargaining agent Moreover, while the record shows and the undersigned finds that the Respondent had knowledge of the intro-union activities of Anderson and Berres, it does not establish by a preponderance of evidence that the Respondent discharged Ander- son and Berres because of such activities 'On the contrary, the undersigned is persuaded that the Respondent discharged Anderson and Berres on the demand of the Union and because of its closed shop agreement with the Union, and as it has been found that the closed shop contract was a valid one, the said discharges were not violative of the Act That the Union may have utilized its closed shop agreement with the Respondent to rid itself of members it considered undesirable, is not the proper concern of the undersigned inasmuch as it is not established that the discharges were collusively arrived at between the Union and the Respondent. The undersigned accordingly will recommend that the complaint be dismissed.1° 0 Matter of Electric Vacuum Cleaner Cc , Inc , 18 N L R B. 591, 614, enforced in 315 U S 685, reversing 120 F (2d) 611 ( C C A. 6). 10 The Respondent submitted Proposed Findings of Fact, together with Conclusions of Law for the consideration of the undersigned Of the Proposed Findings of Fact so submitted the undersigned adopts those numbered 1, 2, 3, 4 , 5, 6, 7, 10, 12, 14 , 15, 16, 17, and 18. The undersigned does not adopt the Proposed Findings of Fact numbered 8, 9, 11, and 13. The undersigned adopts the Conclusions of Law submitted by the Respondent. GAMBLE-SKOGMO, INC. 1081 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Minneapolis General Drivers Local No. 544, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F of L ; is a labor organization within the meaning of Section 2 (5) of the Act. 2 The Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act 3 The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. RECOMMENDATIONS On the basis of the foregong findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the complaint against the Respondent, Gamble-Skogmo, Inc., Minneapolis, Minnesota, be dis- missed in its entirety As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 2.03 38 of said Rules and Regulations, file with the Board, Rochambeau Building. Washington 25, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof, and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report Immediately upon the filing of such statement of exceptions and/oi briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further provided in said Section 203.39, should any party desire permission to ai gue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. LOUIS PLOST, Trial Examiner. Dated April 11, 1947