Von's Grocery Co.

In the Matter of VON'S GROCERY COMPANY and MRS. EDWIN SELVIN In the Matter of AMALGAMATED MEAT CUTTERS AND BUTCHER. WORK- MEN OF NORTH AMERICA , LOCAL 421, A. F. L. and MRS. EDWIN SELVIN Cases Nos. 21-CA-436 and 21-CB-150.-Decided September 06, 1950 DECISION AND ORDER On April 27, 1950, Trial Examiner Martin S. Bennett issued his Intermediate 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. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Members Houston and Styles]. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as stated hereinafter. The Remedy We have found, as did the Trial Examiner, that the Respondent Company discriminated against Dudley Duncan Dorman and that the Respondent Union caused the Respondent Company to discrimi- nate against Dorman. Therefore, as recommended by the Trial Ex- The General Counsel limited his exceptions to the remedial provisions recommended by the Trial Examiner and seeks to have them expanded in scope. 91 NLRB No. 77. 504 VON'S GROCERY COMPANY 505 aminer, we shall order the Respondent Company to offer Dorman immediate reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. As we have found that both Respondents are responsible for the discrimination suffered by Dorman, in accordance with the Trial Examiner's recommendation, we shall order the Respondents jointly and severally to make Dorman whole for the loss of pay that he may have suffered by reason of the discrimination against him. It would, however, be inequitable to the Respondent Union to permit the amount of its liability for back pay to increase despite the possibility of its willingness to cease its past discrimination, in the event that the Respondent Company should fail promptly to offer reinstatement to Dorman. We shall therefore provide that the Respondent Union may terminate its liability for further accrual of back pay to Dorman by notifying the Respondent Company in writing that the Respondent Union has no objection to his reinstatement. The Respondent Union shall not thereafter be liable for any back pay accruing after 5 days from the giving of such notice. Absent such notification, the Respond- ent Union shall remain jointly and severally liable with the Respond- ent Company for all back pay to Dorman that may accrue until the Respondent Company complies with our order to offer him reinstatement.2 We shall also conform the back-pay order recommended by the Trial Examiner with the formula promulgated in F. W. Woolworth Comrpany, 90 NLRB 289, for the reasons stated therein,' by ordering that the loss of pay on the part of Dorman be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent Company's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which Dorman would normally have earned for each such quarter or portions thereof, his net earnings,3 if any, in other employment during that period. Earnings in one particular 2 See Pinkerton'.s National Detective Agency, Inc., 90 NLRB 205. By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the Respondent Company, which would not have been incurred but for the unlawful discrimination and the consequent necessity of his seeking employment elsewhere. See Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal, or other work- ielief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quarter shall have no effect upon the back -pay liability for any other quarter. We shall further order, in accordance with the Woolworth decision, supra, that the Respondent Company, upon request, make available to the Board and its agents all pertinent records. Finally, we believe, as the General Counsel urges in his exceptions and brief, that it would effectuate the policies of the Act (1) to re- quire, in accordance with our usual practice, the Respondent Union to furnish copies of its notice , hereinafter referred to, to the Regional Director, said notice to be posted on company bulletin boards, the Company willing ; and (2 ) to require the Respondent Company, in view of its practice to interchange employees between its various stores, to post its notice, hereinafter referred to, at each of its stores as well as at its Store No. 17, where the unfair labor practices involved herein occurred . We shall so order. The remaining exceptions of the General Counsel have no merit. 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 : 1. The Respondent, Von's Grocery Company, Los Angeles, Califor- nia, its officers, agents, successors , and assigns, shall : (a) Cease and desist from: (1) Recognizing Amalgamated Meat Cutters and Butcher Work- men of North America, Local 421, A. F. L., or any successor thereto, as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until said labor organization shall have been certified by the Na- tional Labor Relations Board; (2) Performing or giving effect to its agreement entered into on or about November 24,1948, with Amalgamated Meat Cutters and Butch- er Workmen of North America, Local 421, A. F. L., or to any modifi- cation, extension , supplement, or renewal thereto, or to any other contract, agreement, or understanding entered into with said labor organization relating to grievances , labor disputes, wages, rates of pay, hours of employment , or other conditions of employment unless and until said labor organization shall have been certified by the Na- tional Labor Relations Board; (3) Encouraging membership ' in' Amalgamated Meat Cutters and Butcher Workmen of North America, Local 421, A. F. L., or in any other labor organization of its employees , by discharging any of its VON'S GROCERY COMPANY 507 employees or discriminating in any other manner in regard to their hire or tenure of employment or any terms or conditions of their employment ; (4) Interrogating employees concerning union membership or in any other manner, interfering with, restraining, or coercing' its em- ployees in the right to engage in or refrain from engaging in any or all. of the activities guaranteed them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Withdraw and withhold all recognition from Amalgamated Meat Cutters and Butcher Workmen of North America, Local 421, A. F. L., as the representative of any of its employees for the pur- poses of dealing with Respondent Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until said labor organization shall have been certified by the National Labor Relations Board ; (2) Offer to Dudley Duncan Dorman immediate and full reinstate- ment to his former, or a substantially equivalent position as meat cutter without prejudice to his seniority or other rights and privileges and jointly and severally with the Respondent Union make him whole in the manner set forth in the section entitled, "The Remedy," for any loss of pay suffered by reason of the discrimination against him; (3) Upon request, make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and 'reports, and all other records necessary for a determination of the amount of. back pay due and the right of reinstatement under the terms of this Order; (4) Post at its main office and at each of its stores in Los Angeles and Van Nuys, California, copies of the notice attached to the Inter- mediate Report and marked Appendix A 4 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent Company's repre- sentative, be posted by it immediately upon receipt thereof, and be maintained by it for a period of at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to ' Said notice is hereby amended by deleting the words, "The Recommendations of a Trial Examiner," and substituting in lieu thereof, the words, "Decision and Order." In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words, "Decision and Order" the words, "Decree of the United States Court of Appeals Enforcing." 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material ; (5) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. 2. The Respondent, Amalgamated Meat Cutters and Butcher Work- men of North America, Local 421, A. F. L., its officers, representatives, and agents, shall : (a) Cease and desist from: (1) Causing or attempting to cause, by threatening strike action, Von's Grocery Company, its officers, agents, successors, or assigns, to discharge or otherwise discriminate against employees because they are not members in good standing of the Respondent Union, except in accordance with Section 8 (a) (3) of the Act; (2) In any other manner causing or attempting to cause Von's Grocery Company, its officers, agents, successors, or assigns, to discriminate against its employees in violation of Section 8 (a) (3) of the Act; (3) Restraining or coercing employees of Von's Grocery Company, its successors or assigns, in the exercise of the right to refrain from any or all of the concerted activities guaranteed by Section 7 of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Jointly and severally with Von's Grocery Company, make Dudley Duncan Dorman whole for any loss of pay that he may have suffered by reason of the discrimination against him in the manner set forth herein in the section entitled "The Remedy"; (2) Post at its office at Los Angeles, California, and wherever notices to its members are customarily posted, copies of the notice attached to the Intermediate Report and marked Appendix B.5 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent Union's representative, be posted by it immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that such notices are not altered, defaced, or covered by any other material ; S Said notice is hereby amended by deleting the words , "The Recommendations of a Trial Examiner," and substituting in lieu thereof, the words , "Decision and Order." In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words, "Decision and Order" the words , "Decree of the United States Court of Appeals Enforcing." VON'S GROCERY COMPANY 509 (3) Forthwith return to the Regional Director for the Nineteenth Region copies of the aforesaid notice, furnished by the Regional Di- rector, after signing such notice as provided in paragraph b (2) above. The Company willing, these notices shall be posted on the Company's bulletin boards where notices to employees are customarily posted, and maintained thereon for a. period of sixty (60) days thereafter; (4) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. INTERMEDIATE REPORT AND RECOMMENDED ORDER Mr. Jerome Smith, for the General Counsel of the Board. Mrs. Edwin Selvin, of Beverly Hills , Calif., for the Charging Party. Mr. Charles P. Scully; of San Francisco, Calif., for Respondent Union. McLaughlin and Casey , by Messrs . James A. McLaughlin and Lawrence P. Casey, of Los Angeles, Calif., for Respondent Company. STATEMENT OF THE CASE Upon charges duly filed by Mrs. Edwin Selvin, an individual , herein called Selvin, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for the Twenty -first Region ( Los Angeles , California), issued his consolidated complaint dated December 8, 1949, against Von's Gro- cery Company, herein called Respondent Company, and against Amalgamated Meat Cutters and Butcher Workmen of North America, Local 421, A. F. L., herein called Respondent Union, jointly referred to as Respondents , alleging that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 ( a) (1), (2), and (3), Section 8 ( b) (1) and ( 2), and Section 2 (6) and ( 7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, the charges and notice of hearing thereon were duly served upon Respondents and Selvin. With respect to the unfair labor practices, the consolidated complaint alleged that. (X) Respondents had entered into and were continuing to give effect to an illegal collective bargaining contract requiring employees of Respondent Company to be and remain members in good standing of Respondent Union; (2) Respondent Union on or about March 31, 1949 , had caused Respondent Com- pany to discharge Dudley Duncan Dorman, herein , called Dorman, under the color of said illegal and invalid collective bargaining agreement because he was not a member in good standing of Respondent Union; and (3) by such acts Respondent Company and Respondent Union have acted in contravention of Section 8 ( a) (1), (2), and (3) and Section 8 (b) (1) and (2) respectively, of the Act. Respondent Company filed an answer wherein it denied that it had entered into any collective bargaining agreement with Respondent Union but admitted that it had terminated the employment of Dorman . The answer alleged affirma- tively that Dorman was discharged because Respondent Union had threatened it with economic reprisals for failure to terminate Dorman's employment and further that on or about July 15, 1949, Respondent Company had offered to reemploy Dorman pending the outcome of this proceeding but that Respondent Union had refused to permit same. Respondent Union filed an answer wherein 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it denied the commission of any unfair labor practices affecting commerce and alleged that the Act was unconstitutional. Prior to the commencement of the hearings, Respondent Union filed a motion for a Bill of Particulars which the undersigned granted in part and denied in part. In accordance with such ruling, the General Counsel submitted certain particulars to Respondents. Pursuant to notice, a hearing was held at Los Angeles, California, from March 7. through March 9, 1950, inclusive, before the undersigned Trial Exam- iner, Martin S. Bennett, duly designated by the Chief Trial Examiner. . The General Counsel and Respondents were represented by counsel, the charging party appeared pro se, and all participated in the hearing. Full opportunity to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. During the hearing, the undersigned denied portions of a motion to dismiss by Respondent Union based upon the alleged unconstitutionality of the Act and upon the merits of the case; ruling was re- served on the remainder of the motion to dismiss which alleged that the business operations of Respondent Company did not affect interstate commerce and it is denied for the reasons set forth hereinafter in Section I. At the conclusion of the hearing, the undersigned granted without objection a motion by the General Counsel to conform the pleadings to the proof with respect to purely formal matters. The parties waived the. opportunity to argue orally at the close of the hearing, but were granted time to submit briefs and/or proposed findings of fact and conclusions of law. Briefs have been received from the parties. 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 RESPONDENT COMPANY Respondent Company, Von's Grocery Company, is a California corporation maintaining its principal office at Los Angeles, California. It is engaged in the retail marketing of foods, food products, meats, and miscellaneous products from 17 stores and 2 warehouses located in Los Angeles and nearby communi- ties.' In the year 1949, Respondent Company purchased foods, food products, meats and miscellaneous products valued at $22,076,108. During the same period, its sales of these products were valued at approximately $27,000,000, all of which was sold locally. The General Counsel introduced in evidence a summary of Respondent Com- pany's merchandise purchases broken down into tabulations reflecting (1) direct interstate purchases and (2) indirect interstate purchases. This summary was compiled specially for the instant hearing from countless original records of Respondent Company which were not introduced in evidence. However, Re- spondent Company's comptroller, under whose supervision the summary was prepared, testified as to the method of its preparation by several employees under his express instructions. This summary indicates that at least 9.8 per- cent of Respondent Company's total merchandise purchases in 1949, valued at $2,160,078, was shipped directly to its 2 warehouses or to local bonded ware- houses at the request of the Company from points outside the State of California. ' Although an official of Respondent Company credibly and uncontrovertedly testified that it operated 17 stores in the Los Angeles area , a list of stores introduced by, the General Counsel identified only 16.. In either event the conclusions herein would be identical. VON'S GROCERY COMPANY 511 This figure was arrived at by an inspection and tabulation of the 1949 invoices of 25 to 30 of its chief suppliers and reflects purchases from those suppliers only. In addition to the above, certain other business operations are conducted on its premises by Van De. Kamp's Holland-Dutch Bakers, Inc., a concern previously found by the Board to be engaged in commerce in 56 NLRB 694, enf'd 152 F. 2d 818 (C. A. 9). This latter concern leases bakery concessions in 15 of Von's stores. These concessions are situated physically within the market proper, do not have separate entrances apart from- those of the market, and are operated by personnel of the bakery concern. During the year 1949, Van De Kamp's sold bakery products valued at $1,178,544 to customers of these markets. Dur- ing the year 1948, Van De Kamp's purchased raw materials valued at $5,481,363, of which $1,653,866 or 30.17 percent was received directly. in shipments from points outside the State of California ; furthermore, an additional 29 percent of said purchases consisted of materials originating outside the State of California but purchased locally. The. 1949 figures and percentages of Van De Kamp's purchases and.sales are substantially similar to those of 1948. In view of the above, the undersigned believes that the business operations of Respondent Company, as well as those of its concessionaire Van De Kamp's, require a large and substantial amount of imports from outside the State so as to warrant the exercise of jurisdiction by the Board over this chain of retail stores. Cf. The Great Atlantic and Pacific Tea Company, 81 NLRB 1052, and particularly footnote 1 thereof at pp. 1052-3. See also Schaffer Stores Co., Inc., 88 NLRB 1446; Bettendorff's Select Foods, Inc., 85 NLRB 919; Tanner-Brice Company, 82-NLRB 477; Providence Public Market Company, 79 NLRB 1482, and Margaret Ann Supermarkets, Inc., 78 NLRB 852. It is believed that this case falls within the exception to the decision in Tom Thumb Stores, Inc., 87 NLRB 1062., cited by Respondent Union, where the Board in declining to exercise juris- diction over retail chain stores located in a single State excepted those "where there are conspicuously large amounts of imports from outside the State." The undersigned finds that Respondent Company, as it in effect admits, is engaged in commerce within the meaning of the Act. [Emphasis added.] 2 IT. THE ORGANIZATION INVOLVED Respondent Union, Amalgamated Meat Cutters and Butcher Workmen of North America, Local 421, A. F. L., is a labor organization admitting to member- ship employees of Respondent Company. III. THE UNFAIR LABOR PRACTICES A. Introduction 1. The issues The issues treated herein are as follows: (1) Did Respondent Company enter into and give effect to an allegedly illegal and invalid collective bargaining 2 In arriving at these conclusions , the undersigned has not placed reliance upon other portions of the tabulation proffered by the General Counsel which indicate additional direct interstate purchases by Respondent Company valued at $1,147, 957, constituting 5.2 percent of its total merchandise purchases, and indirect interstate purchases received from local warehouse stocks of out-of- State manufacturers and suppliers totaling $4,415 , 221, con- stituting approximately 20 percent of the total merchandise purchases . The record indi- cates that these latter figures represent solely the estimates of Respondent Company's buyers , who did not testify herein , as related to the comptroller and testified to by the latter, but not substantiated by any study of invoices or shipping records. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement with Respondent Union which required it to employ only members in good standing of Respondent Union, and (2) Did Respondent Union, under the color of said illegal and invalid collective bargaining agreement, cause Respond- ent Company to discharge Dudley Duncan Dorman because he was not a member in good standing of Respondent Union. 2. History of bargaining The findings which follow are based primarily upon the credited and un- controverted testimony of Walter Von Der Ahe, who is assistant secretary, personnel director, and labor relations director of Respondent Company. He has been connected with Von's Grocery Company in various capacities since 1937, save for military service from 1942 to 1.946. In large measure the facts herein are not in dispute, the primary controversy arising asto the conclusions to be drawn therefrom. Von's has enjoyed a collective bargaining relationship with Respondent Union since approximately 1939, although the nature of the earlier contracts and the number of stores initially covered are not disclosed. The last written contract between them was entered into in November 1947 and terminated on October 31, 1948. Insofar as this proceeding is concerned, the salient feature of that con- tract was the union-security provision contained in Article I thereof which provided: (a) . .. the Employer agrees to employ as meat market managers, meat cutters, salesmen, apprentices, sausage makers, cashiers and wrappers, only members in good standing and who keep themselves in continuous good standing with Local Union No. 421. a * • * m x (c) If the Union is unable to furnish men, then nonmembers may be hired and must become members of Local No. 421 before going to work..', [Emphasis added.] Negotiations for a new agreement were not initially successful and a strike of Respondent Company's meat department employees commenced on or about November 1, 1948, and lasted until approximately November 29, 1948. B. The 1948 negotiations 1. The facts Respondent Company is a member of Food Employers Council, Inc.. which is a trade association set up to service various segments of the food industry in the Los Angeles area, including retailers, wholesalers, and manufacturers, in their relations with labor organizations. For the purposes of negotiating labor con- tracts, a negotiating committee is selected from among members of the association. and headed by O. G. Lawton, president of the Council. The custom is for the committee to negotiate a contract, copies of which are then distributed to the respective members of the association for approval and signature. Contracts are not signed by the Council which is generally not authorized to sign for or commit an employer in the absence of authority to the contrary. The negotiating committee, whose members included Walter Von Der Ahe, commenced negotiations with the Union in the fall of 1948. These negotiations began prior to the expiration of the 1947 contract on October 31, 1945, but, as stated, met with no success and a strike followed. During the month of Novem- VON'S GROCERY COMPANY 513 her a number of employer-members of the association , not including Respondent Company, accepted the terms of the Union and the strike was abandoned with respect to them . Shortly before November 24, 1948, the negotiating committee and Respondent Union arrived at a stage where they were very close to agree- ment. , At this point of the negotiations , the major issue that separated the parties from agreement was a $10 per week salary increase sought by the Union for the various classifications of butcher workmen. There was further disagree- ment on one or two minor issues such as job descriptions . It was immediately thereafter, according to the General Counsel , that an oral agreement was arrived at which is the agreement attacked by the complaint herein. Respondent Union counters with the claim that there never was a contract . As will be seen below, the undersigned is of the belief that a preponderance of the evidence supports the position of the General Counsel herein which is also that of Respondent Company. According to the uncontroverted and credited testimony of Von Der Ahe, the parties on or about November 24, 1948, were able to come to an agreement on all issues that separated them , including wages, save for one or two minor issues the provisions of which were understood but whose language was to be worked out. The industry members, who had not yet agreed to the union terms , on that occa- sion informed the union representatives that their demands were accepted and that business would be resumed on the basis of said terms . The respective employers, including the Company, resumed business pursuant to said terms and the members of the Union returned to work on that basis . President Lawton was authorized to work out the language of the one or two minor items referred to above and resolve them without referral back to the respective employer -members, contrary to the usual practice. The procedure then to be followed was to print the contract in a final draft . That the group of employers , including Respondent Company, considered they had arrived at an agreement is shown by the fact that on November 24 Council President Lawton wrote to the Union as follows : Mr. George M. Swan, Secretary Butchers Union, Local 421 and Mr. George P. Veix, Sr. .Butchers Union, Local 587 GENTLEMEN : . This is to. advise you on behalf of the Employers represented by the signatory Associations that we will enter into an agreement with your Unions with a wage adjustment of $10.00 per week in excess of the weekly wage rates on all classifications of butcher workmen as set forth. in the previous contract. The remaining issues are to be accepted by both the Union. and the Employers on the basis of the agreements entered into on the final meeting before the Commissioner of Conciliation in the Federal Building on Friday, October 29, 1948. It is further agreed that the jurisdiction clause shall remain status quo pending a decision of jurisdiction as between the Retail Clerks and Butchers Unions, and the matter of floor coverings shall be 8 The precise jurisdiction of Local 587 is not disclosed herein ; apparently its participation In the strike was directed against other employers inasmuch as the latter is signed by both Lawton as president of Food Employers Council, Inc., and the secretary-manager of the Meat Dealers Association of Southern California. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determined by State, County, or City ordinances, according to the location of the market. Butchers are generally to report to work on Monday, November 29, 1948.... As stated in the letter, the strike was terminated and the men reported for work on November 29, 1948, at the increased salary for which they had struck. Specifically, it may be noted at this point that Respondent Union and the bar- gaining members of Food Employers Council were in agreement to continue in effect Article I Section (a), (c), and (d) of the previous contract, portions of which have been quoted above.4 As is apparent, that article required the hiring of union members only, maintenance by them of continuous good stand- ing, and that any nonmembers hired were required to join the Union before reporting for work. There is no evidence that an election had been conducted under the provisions of Section 9 (e) (1) of the Act in order to authorize the Union to enter into an agreement requiring membership in the Union as a condition of employment, and even if such an election had been conducted, it is apparent that the language of the previous contract established more rigid union-security provisions than those permitted by the proviso to Section 8 (a) (3) of the Act. On or about March 31, 1949, galley proofs of the contract were submitted to, Lawton by the Union; the contract was printed in due course but never signed. Save for a wage increase, more liberal vacation benefits, and minor changes, it was substantially identical with the previous one which had expired on October 31, 1948. The reason for not signing the printed contract is not clear although it may well be that it stemmed from certain litigation in the California State courts, whence a temporary restraining order issued on April 2, 1949, upon complaint filed April 1, 1949, by Kold Kist, Inc., enjoining both Respondent Union and Respondent Company, named as defendants, inter aiia, from com- mitting acts in restraint of trade and enjoining them from entering into any agreement providing for restraints on the sale of frozen meats, poultry, and fish. Respondent Company claims, however, that it is currently honoring and operating under the oral agreement with the Union allegedly entered into on or about November 24, 1948. 2. Conclusions Respondent Union appears to place reliance upon a letter sent to it by Lawton on May 6, 1949. The latter reads as follows : Answering your inquiry of May 4, 1949, I have to advise you that there is no existing agreement between Meat Cutters Union 421 or Meat Cutters Union 587 and the retail food industry at the present time. I have to advise you further that the Industry has placed the handling of the employers' position in regard to the Kold Kist et al. action in the hands of our attorney, Mr. James A. McLaughlin, and all procedure in that connection is being left entirely to his judgment. In view of the developments arising out of third party intervention through the Kold Kist case and the effect of the Temporary Injunction upon both the Unions and the major market operators, I wish to state that we will be glad to sit down with the Union representatives, at any mutually convenient time, to attempt to resolve a contract in the light of these circumstances. * It was agreed to delete Article I Section (b) of the earlier agreement . Its provvisiona are not material to the present issue. VON,'S GROCERY COMPANY 515 Respondent Union's position appears to be that the above letter constitutes a disclaimer by Lawton in behalf of Respondent Company as well as other employers that a contract was in existence. However, although the record does not supply a precise explanation, the text of the letter reveals that it deals with the Kold Kist injunction suit and its effect upon Respondent Company and Respondent Union.` And, in view of-the earlier letter sent.by Lawton on November 24, 1948, announcing acceptance of Respondent Union's demands, the testimony of Von Der Ahe on the subject set forth above, and the ensuing return to work, the under- signed can only conclude that the later letter refers, whether with the Kold Kist temporary restraining order in mind or not is unnecessary for determination, to the absence of a written agreement between Respondent Union and members of the food industry. Accordingly, as testified by Von Der Ahe and contended by the Company, the undersigned finds that an oral agreement was reached by Respondent Company and Respondent Union on or about November 24, 1948, when the struck employer- members informed the Union that its terms were accepted and that the men were to return to work on November 29, 1948, as they subsequently did.' This is but- tressed by the fact that Respondent Company as of the date of the hearing still considered itself bound by the contract and, as appears in more detail below in the discussion of the discharge of Dorman, has operated under the contract by interrogating job applicants as to their good standing with the Union and requir- ing them to clear with it. Further, Respondent Union itself, in demanding Dor- man's discharge, clearly revealed that it too was of the belief that at the very least a union-shop contract existed between it and Respondent Company. It is ac- cordingly found that'not only was an oral agreement arrived at between the Respondents but that Respondent Union availed itself of the benefits of the agreement and at no time manifested an intent not to be bound by it. It may be claimed that an oral contract such as this is not violative of the Act, but this is not available as a defense in an unfair labor practice proceeding. See Conway's Express, et al., 87 NLRB 972, and cases cited therein, where the Board held that an oral collective bargaining agreement may constitute a defense to certain unfair labor practice charges. Applying the same standard, it follows that an oral collective bargaining agreement which is violative of the Act may then be the basis of unfair labor practice charges and, as recently stated by the Court of Appeals for the Ninth Circuit, "The Act . . . does not require contracts between employer and the union to be in any particular form, or that they be reduced to writing. Compare Matter of United Fruit Co., 12 NLRB 404." N. L. R. B. v. Scientific Nutrition Corporation, d/b/a/ Capolino Packing Corporation, 180 F. 2d 447 (C. A. 9). As the agreement between Respondents contains provisions for union security which were not sanctioned by a union-shop election conducted under Section B The inquiry of Respondent Union on May 4, 1949, as to whether there was an agree- ment in effect is indeed intriguing, particularly in view of its previous conduct, set forth hereinafter in the discussion of the case of Dorman , which is consistent only with a belief on the part of Respondent Union that there was an existing agreement. e Respondent Company's answer , prepared and signed by its attorney, and verified by Von Der Ahe to have been read by him and to be true, denies that Respondent Company had entered into any collective bargaining agreement . As stated, Von Der Abe testified herein that he had arrived at an oral agreement . He further testified that he had verified the answer prepared by his counsel without discussing it, that there was a question in his mind when be signed it, and that he at the time felt that it called for a legal conclusion he was not qualified to supply. Despite the allegation in the answer, the evidence heavily preponderates in favor of a finding that there was an oral agreement, as found above, and as Respondent Company herein contends. 917572-51-vol. 91-34 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9 (e) (1) of the Act, and which, in any event could not have been ratified by such an election inasmuch as they provide for a greater degree of union security than is permitted by the proviso to Section 8 (a) (3) of the Act, it is found that Respondent Company by entering into said agreement has restrained its employees in the exercise of the rights guaranteed by Section 7 of the Act and has thereby violated Section 8 (a) (1) thereof. Moreover, it is further found that by assenting to unlawful union-security provisions, Respondent Com- pany has lent its support to Respondent Union in recruiting and maintaining its membership, thus coercing employees of Respondent Company to become or remain members of the Union in violation of Section 8 (a) (2) of the Act. Julius Resnick, Inc., 86 NLRB 38, 24 LRRM 1581? It is further found that by interrogating applicants for employment con- cerning their good standing and membership in the Union, Respondent Company has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by the Act. Standard-Coosa-Thatcher Company, 85 NLRB 1358. As the complaint does not allege that the mere agreement upon the terms of the illegal contract was, per se; independently of the carrying out of its pro- visions, a discrimination against employment within the meaning of Section 8 (a) (3) of the Act, no such finding is made. Cf. The Great Atlantic & Patine Tea Company, et al., supra. I The complaint does allege that by entering into the illegal agreement, together with causing the discharge of Dorman thereunder, Respondent Union has en- gaged in conduct violative of Section 8 (b) (1) (A) and (2) of the Act. With reference to entering into the illegal agreement, per se, the Board has held that such conduct is not violative of Section 8 (b) (1) (A) of the Act. National Maritime Union of America, 78 NLRB 971, and Perry Norvell Company, 80 NLRB 225. Accordingly, the undersigned will recommend dismissal of this portion of the allegation. The remainder of the, allegation, namely, that by causing Respondent Company to discharge Dorman, Respondent Union has engaged in conduct violative of Section 8 (b) (1) (A) and (2) of the Act, is treated below. C. The discharge of Dudley Duncan Dorman 1. The facts 8 On March 23, 1949, Dorman called at the office of Walter Von Der Ahe, per- sonnel director of Respondent Company, related the extent of his experience as a meat cutter and applied for work in that capacity. Von Der Ahe inquired whether Dorman was in good standing with Respondent Union and Dorman re- plied that he had formerly been a member of the Union and anticipated no diffi- culty in obtaining a clearance. Dorman, who in fact was an experienced meat cutter, had belonged to another local of the parent international union elsewhere in California, prior to entering the armed services during the war. Von Der Ahe decided that Dorman would make a desirable employee, hired him on a full- ° Even if it be found that agreement was not reached concerning the one or two minor items which were agreed upon in principle but not in precise language, nevertheless oral agreement was reached on all other items which included union-security , wages, hours, and all basic aspects of an employment contract , and these provisions were put into effect when the employees returned to work on November 29, 1948. Cf. N. L. If. B. v. Scientific Nutri- tion Corporation, supra. 8 Findings herein are based upon the credible and uncontroverted testimony of Von Der Abe and Dorman , which is in substantial agreement. VOWS GROCERY COMPANY 517 time.basis, and instructed him to report for work at Respondent Company's Store No. 18. Dorman worked at that store on March 25 and 26, was given Sunday and Monday, March 27 and 28, as his regular days off, and resumed work on Tuesday and Wednesday, March 29 and 30. At that time, Respondent was about to open a new store, Store No. 17. Von Der Abe, who on hiring Dorman had earmarked him because of his experience for such an assignment, arranged on March 30 for Dorman's transfer to Store No. 17, and Dorman was instructed to report to that store on the following day, March 31. Dorman reported for work at Store No. 17 on March 31, as directed, and shortly thereafter was approached by Kenneth Olson, who is supervisor of the meat departments of several of Respondent Company's stores, and a supervis- ory employee, within the meaning of the Act. Olson inquired whether Dorman was in good standing with the Union and asked to see his union book. Dorman replied that he was not a member of Respondent Union, that he had not as yet seen any official of the Union, as was the fact,.but that he was willing to belong. Olson replied initially that Dorman would have to cease work because he was not in good standing with Respondent Union, but then changed his mind and stated that Dorman could continue his work inasmuch as a representative of the Union was expected at the market within an hour. Approximately 1 hour later, Assistant Business Agent Lake Ward 9 appeared on the scene and asked to see Dorman's union book. Dorman exhibited a book which he had carried during his prior membership in another local of the parent international, Local 144, at San Luis Obispo ; informed Ward that he wished to join Respondent Union; and asked if he could then and there pay him the neces- sary fees. Ward replied that Dorman could not work unless he was a paid-up member of Respondent Union, and that he would have to report to union head- quarters to arrange that. Olson reappeared on the scene at this point and in- structed Dorman to proceed to union headquarters as stated by Ward and return to work as soon as possible. Dorman forthwith proceeded to the union office which was located some miles distant. There he presented Ward's business card and, as instructed by Ward, asked to see Assistant Business Agent Ryan Clark. -After a wait of 11/2 to 2 hours, Dorman was sent in to Clark's office. He started to introduce himself whereupon Clark intervened and stated he was aware that Dorman had been taken off the job at Store No. 17: Dorman displayed his union book, pointing out that he had been in good standing with Local 144 when he had entered the armed services, that he wished and expected to belong to Respond- ent Union, and that he was prepared to pay the necessary initiation fee and dues. He displayed $40, which he understood to be the initiation fee, and offered that sum to Clark. The latter did not accept the money and informed Dorman "It is just a tough break, fellow. . . . We just don't have any room for you. We can't take. your application and we can't allow you to work in this area . . . There are other men out of work besides you." Dorman left and returned by streetcar to Store No. 17 where, on arrival, he found both Clark and Ward. He immediately informed Olson of his inter- view with Clark and that he was not to be permitted to work because of his 9 No officials of Respondent Union testified herein. It was stipulated by the parties that George Swan is secretary and business agent of Respondent Union ; that he has a number of assistant business agents, all of equal rank, who are field men and handle various terri- tories assigned to them ; that these assistant business agents include Ryan Clark and Lake Ward ; and that at the time Ward was devoting the major part of his time to duties at the union office. ,518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lack of good standing in Respondent Union. Olson forthwith took Dorman over to Clark and Ward and asked if it was true that they would not permit Dorman to work at the store. Either Clark or Ward replied that such was the case because Dorman was not in good standing with the Union. Olson then instructed Dorman to telephone Walter Von Per Abe for further instructions. Dorman did so and told Von Per Ahe of his interview with Clark at the union hall; he was instructed by Von Der Ahe to inform Olson that he, Dorman, was to be put to work. Dorman related these instructions to Olson, but the latter commented that it was almost 3 p. in. and instructed Dorman to leave and return in the morning ready for work. Dorman did so and returned to work on the following morning, April 1. Von Per Ahe was present at the store on April 1, as were Clark, Ward, and Olson. Clark informed Von Der Ahe that Dorman was not a member in good standing with the Union, that he would not be permitted to work, and that if lie were put to work "all the meat cutters would be pulled off the job .. . effective immediately." Von Per Ahe then informed Dorman that, despite what- he had told him on the previous day, the Union was threatening to remove all its butchers if Dorman were put to work and that the Company could not as- sume this risk at a time when the new market, employing from 100 to 125 workers, was due to open. Von Der Ahe asked Clark to repeat to Dorman what he had said to Von Per Ahe, but Clark refused. Von Per Ahe then asked Clark if he intended to "pull" the butchers if Dorman were put to work and Clark replied in the affirmative. At this point, Von Per Ahe advised Dorman that he regretted the situation but that there was no alternative but to refuse him employment in the meat department. He proceeded, however, to offer 2 days' employment on April 1 and 2 as a temporary worker for the opening in the grocery department, which Dorman accepted. This department was not within the jurisdiction of the Union, was not represented by it, and apparently no protest was made as to Dorman's employment there. Dorman worked in the grocery department April 1 and 2 and, his period of employment ended, left Respondent Company's employ. Company records were then marked to read, "not a union member. Do not rehire." Some months later Dorman found himself in need of employment and again sought work with Respondent Company. He was rehired on or about October 15, 1949, was assigned to duties in the grocery department of another market, and is currently employed there. His present salary is below that paid to meat cutters doing the work for which he was originally hired, as was his rate of pay for the 2 days worked on April 1 and 2, 1949. 2. Conclusions Dorman was hired by Respondent Company on March 23, 1949, and commenced work on March 25. Supervisor Olson, pursuant to the union-security provision of the agreement entered into in November 1948, instructed Dorman on March 31 that he could not work unless he put himself in good standing with the Union, and Assistant Business Agent Ward also told him that he could not work as he was not a paid-up member of the local. Immediately thereafter, Olson instructed him to stop work and proceed to the union hall to put himself in good standing. However, as stated above, Dorman was denied membership in the Union, despite his willingness to pay an initiation fee and dues and his proffer of'a sum of money for same. Not only did Supervisor Olson fail to return Dorman to work on March 31, thus laying him off, but on the following day, April 1, Dorman was VOWS GROCERY COMPANY 519 informed by Von Der Ahe that he would not be permitted to work as a meat cutter because the representatives of the Union had demanded his discharge and accompanied the demand with a threat to strike the store if Dorman was not discharged. It has been found that Respondents agreed upon a contract containing union- security provisions without an election having. been held pursuant to Section 9 (e) (1), as required by the Act, and which, in any event, provided for a greater degree of union security than is permitted by the proviso to Section 8 (a) (3) of the Act. Consequently, by laying off Dorman on March 31 and by discharging him on April 1 because he was not a member in good standing of Respondent Union, Respondent Company has discriminated with respect to the hire and tenure of his employment in order to encourage membership in a labor organ- ization, has restrained and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, and has thereby engaged in conduct violative of Section 8 (a) (1) and (3) of the Act.10 That Respondent Company would not have discharged Dorman but for the pressure exerted by Respondent Union is not a defense. It is well established that an employer is under the duty to resist domination of his right to employ and he is not relieved of responsibility for his discrimination because of economic necessity or the exigencies of the moment. N. L. R. B. v. Fred A. Weissman Co., 170 F. 2d 952 (C. A. 6), cert. den. 336 U. S. 972, and N. L. R. B. v. Star Publishing Co., 97 F. 2d 465 (C. A. 9). Furthermore, inasmuch as Respondent Union caused Respondent Company to discriminate against Dorman, who patently had been denied membership in the Union for grounds other than his failure to tender dues and initiation fees, and in violation of Section 8 (a) (3) of the Act, it follows that Respondent Union has engaged in conduct violative of Section 8 (b) (2) of the Act. H. M. Newman, 85 NLRB 725. There remains for disposition the question of whether by the above conduct Respondent Union has violated Section 8 (b) (1) (A) of the Act which protects employees in the right to self-organization and to join or assist labor organiza- tions as well as the right to refrain from engaging in such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as permitted by the proviso to Section 8 (a) (3) of the Act. As, in effect, there was no valid agreement requiring Dorman to be a member of Respondent Union as a condition of employment, he was entitled to refrain from engaging in concerted activities without restraint or coercion from -Respondent Union. The Board has decided that conduct of the nature engaged in by Respondent Union herein, falls within the exception to the rule handed down in the National Maritime Union case, supra, in that it is directed primarily 'at compelling employees to forego the rights which Section 7 protects and is hence violative of Section 8 (b) (1) (A) of the Act. In the present case, it involves union conduct which was directed primarily at compelling Dorman to forego the right to refrain from engaging in concerted activities. Accordingly, the undersigned further finds that by causing Dorman to be discharged, Re- spondent Union has restrained and coerced him and the employees of Respondent Company in the exercise of the rights guaranteed under Section 7 of the Act, and has thereby violated Section 8 (b) (1) (A) thereof. Clara-Val Packing Company, 87 NLRB 703; Union Starch d Refining Company, 87 NLRB 779. 10 Even if there were no agreement in effect, the layoff and discharge of Dorman on demand of the Union would be equally violative of Section 8 (a) (3) and 8 (b) (2) of the Act. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in Section III, above, occurring in con- nection with the operations of Respondent Company set forth in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents, and each of them, have engaged in. and are engaging in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent Company assented to an unlawful union- security clause in an agreement with Respondent Union whereby it lent its support to the Union in recruiting and maintaining membership. The Board has held that Sections 8 (a) (3) and (9) (e) were included in the Act to prevent just such conduct and that it would not effectuate the purposes of those sections merely to order eradication of the illegal provisions from the agreement and permit a labor organization to continue to enjoy a representative status strengthened by virtue of these illegal provisions. Julius Resnick, Inc., supra. Accordingly, it will be recommended that Respondent Company be ordered to, withdraw recognition from Respondent Union and cease giving effect to the oral agreement of November 24, 1948, with that organization, or to ' any modi-. fication, extension, supplement, or renewal thereof, unless and until Respondent Union has been certified by the Board. Nothing in this 'recommended order, however, shall be deemed to require Respondent Company to vary or abandon those wage, hour, seniority, or other substantive features of its relation with its employees established in performance of said agreement, or to prejudice the assertion by employees of any rights they may have under such agreement. See Julius Resnick, Inc., supra. It has been found that Respondent Company, upon the demand of Respondent Union on March 31, 1949, laid off and on April 1, 1949, discriminatorily dis- charged Dudley Duncan Dorman because he was not a member in good standing of Respondent Union and that the latter thereby restrained and coerced Dorman and the employees of Respondent Company in the exercise of the rights guaran- teed by Section 7. It will therefore be recommended that Respondent Company offer Dorman immediate and full reinstatement to his former position as meat cutter, or to one substantially equivalent, without prejudice to his seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. It will further be recom- mended that Respondents jointly and severally make him whole for any loss of pay he may have suffered by reason of the discrimination against him by pay- ment to him of a sum of money equal to that which he normally would have earned from the dates of his discriminatory lay-off and discharge from the position of -meat cutter (March 31 and April 1, 1949, respectively) to the date of Respondent Company's offer of reinstatement, less his net earnings during said period. See H. M. Netiaman, supra. Respondent Company contends however that, in any event its liability for back pay should not extend beyond July 15, 1949, on which date it proposed to Selvin, the charging party and Dorman's representative, that Dorman be reinstated. It is admitted on the other hand that said offer was conditioned upon its approval C T 'S GROCEEY COMPANY 521 by Respondent Union . Furthermore , it was the Company's position at all times after Dorman's discharge that his reinstatement was subject to approval by the Union. It is well established that an offer of reinstatement must be clear and unconditional in order to serve to shed responsibility for back pay. Such was not the case here and accordingly the contention lacks merit . See e. g. Quest- Shon Mark Brassiere Co., 80 NLRB 1149. 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. Respondent Union, Amalgamated Meat Cutters and Butcher Workmen of North America, Local 421, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent Company has en- gaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By contributing support to Amalgamated Meat Cutters and Butcher Work- men of North America, Local 421, A. F. L., Respondent Company has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4. By discriminating with respect to the hire and tenure of employment of Dudley Duncan Dorman, thereby encouraging membership in Respondent Union, Amalgamated Meat Cutters and Butcher Workmen of North America, Local 421, A. F. L., Respondent Company has engaged and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (3) of the Act. 5. By causing Respondent Company to discriminate against an employee in violation of Section 8 (a) (3) of the Act, and who was denied membership in Respondent Union for grounds other than his failure to tender periodic dues and initiation fees, Respondent Union has engaged and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing employees in the exercise of the rights guaran- teed by Section 7 of the Act, Respondent Union has engaged and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) 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. [Recommended Order omitted from publication in this volume.]