The Retail Clerks International Association

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