Florida Mattress Factory, Inc. of Tampa

In the Matter of FLORIDA MATTRESS FACTORY, INC. OF TAMPA and ALFRED P. AGUIAR, AN INDIVIDUAL Case No. 10-CA-726.-Decided October 10, 1950 DECISION AND ORDER On April 21, 1950, Trial Examiner David London issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The request for oral argument made by the Respondent is hereby denied, inasmuch as the record and brief, in our opinion, adequately present the issues and positions of the parties. To the extent here material 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 Intermediate Report, the exceptions and brief, and the entire record in the case, and finds merit in the Respondent's exception that the Board should decline to assert jurisdiction over the business operations involved herein.' As detailed in the Intermediate Report, the Respondent is engaged at its only plant in Tampa, Florida, in the manufacture and sale of mattresses and living room furniture. In the course of its business, the Respondent annually purchases raw materials valued at approxi- mately $250,000, of which about 90 percent is shipped directly to it from points outside the State of Florida. All the Respondent's sales are made within the State of Florida. The Trial Examiner, relying on the fact that the direct inflow of goods annually approximated $225,000, concluded that the Board should assert jurisdiction over the Respondent. However, as the Respondent's operations affect commerce only by way of direct inflow, 1 In view of our disposition of the case, we find it unnecessary to pass upon the Re- spondent's motion to reopen the record to adduce additional evidence on another phase of the case. 91 NLRB No. 132. 772 FLORIDA MATTRESS FACTORY, INC., OF TAMPA 773 and as such inflow is less than $500,000 in value annually, we find, in accord with our recently announced policy,2 that it would not effectu- ate the policies of the Act to assert jurisdiction here. We shall, there- fore, dismiss the complaint. 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- spondent, Florida Mattress Factory, Inc. of Tampa, be, and it hereby is, dismissed, . MEMBERS REYNOLDS and STYLES took no part in the consideration of the above Decision and Order. - INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a second amended charge filed by Alfred P. Aguiar, the General Counsel for the National Labor Relations Board,' by the Regional Director for the Tenth Region (Atlanta, Georgia ), issued a complaint dated January 13, 1950, against Florida Mattress Factory, Inc., of Tampa, herein called Respondent, alleging that the latter had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and ( 7) of the National Labor Relations Act (61 Stat. 136), herein called the Act. Copies of the complaint , the charge, the amended charges, and notice of hearing, were duly served upon the respective parties. With respect to the unfair labor practices , the complaint alleged, in sub- stance, that on or about May 19, 1949, Respondent discharged Alfred P. Aguiar, Sam W. Kesterson , and Joseph W. Baumbaugh , and on or about May 30, 1949, discharged Lawrence Olar, because of their membership in and activities on behalf of District 50, United Mine Workers of America, herein called the Union, and because they engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection. The complaint further alleged that Respondent, through its officers and agents, by means specifically pleaded in the complaint , interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. By an "Answer and Motion" filed on or about January 25, 1950, Respondent denied that it was engaged in interstate commerce within the meaning of the Act, that it had committed any unfair labor practices, and specifically pleaded as follows : Respondent further says that neither said labor organization , nor any of its affiliate or constituent units, nor an individual acting in its behalf, can claim any rights , privileges, or benefits under the National Labor Rela- tions Act as amended, by reason of its failure to comply with Section 9 (h) of the Act; that the charging party herein, to wit: Alfred P. Aguiar, 2 Federal Dairy Co ., Inc., 91 NLRB 638. ' The, General Counsel and his representative at the hearing are' herein referred to as the General Counsel and the National Labor Relations Board as the Board. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is an officer, within the meaning of the Act, of Local No. 13447, an affiliate of said District 50, United Mine Workers of America ; that said Alfred P. Aguiar is "fronting" for said labor organization, and that he is the "alter- ego" of said labor organization, and that he is not entitled as one acting in behalf of, either directly or indirectly, (sic) said union to claim any benefits or rights under the Act, for the reasons stated, and that by reason "of the non-compliance herein before pleaded . . . neither said Union nor its members . . . are entitled to prosecute such complaint." The notice served on Respondent advised it that the hearing on the com- plaint was set for January 31, 1950, at Tampa, Florida. About one-half hour before the hearing was scheduled to open, the undersigned Trial Examiner was served with a restraining order issued by the Circuit Court of Hills- borough County, Florida, in Chancery, in an action brought by the Respondent herein against John Doe (later amended to read David London) as Trial Examiner for the National Labor Relations Board, William J. Rains, Attorney for the Tenth Region, National Labor Relations Board, and Paul L. Styles, Regional Director for the Tenth Region, National Labor Relations Board. By said temporary restraining order, the undersigned was enjoined from proceeding in the hearing herein until the further order of the State court in said Chan- cery action. The undersigned convened the hearing at the time and place scheduled in the notice of hearing afore-mentioned and there announced that he would abide by the order of the State court until the same was dissolved, and that no testimony in the instant proceeding would be taken while said re- straining order remained in effect. At the request of the General Counsel, and with the consent of Respondent, the hearing was postponed. to the follow- ing day so as to permit the General Counsel to take such action as he deemed appropriatd to vacate the restraining order. The hearing herein was thereafter continued indefinitely subject to resumption upon 2 days telegraphic notice to all the parties. On February 21, 1950, the undersigned was advised that the United States District Court for the Southern District of Florida, to which said State court action had previously been removed, had on that day vacated the temporary restraining order issued by the State court and had dismissed said action. All the parties were on the same day notified by telegraph that the hearing in the instant proceeding would be resumed on February 24, 1950, at 10 a. in. Pursuant to the telegraphic notice, the hearing was held in Tampa, Florida, on February 24-27, 1950. The General Counsel and Respondent were represented by counsel and the charging party appeared in person. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded to all parties. At the hearing, the undersigned denied Respondent's motion to dismiss previously filed with the Regional Director and by the latter referred to the Trial Examiner herein. During the hearing, the following motions by Respondent were likewise denied : (1) To postpone the taking of testimony herein until the decision of the United States Court of Appeals for the Fifth Circuit on Respondent's appeal from the afore-mentioned order of the United States District Court vacating the restraining order issued by, and dismissing. the action originally brought in, the Florida State Court. (2) To postpone the taking of further testimony herein and await the ruling of the Board on Respondent's proposed appeal from the undersigned's inter- locutory denial of Respondent's motion to dismiss. FLORIDA MATTRESS FACTORY, INC. OF TAMPA 775 At the close of the hearing, the General Counsel moved to conform the pleadings to the proof relative to formal matters such as names, dates, and places ; there being no objection, the motion was granted. The parties waived oral argument. The time to file briefs was extended to March 27, 1950, during which time a brief was received from Respondent. Upon the entire record in the case and from my observation of, the witnesses at the hearing, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Florida corporation engaged in the manufacture and sale of bedding and living room furniture at Tampa, Florida. In the course and conduct of its business operations during the past year, Respondent purchased raw materials for use in its manufacturing operations, having a value of more than $250,000, approximately 90 percent of which was purchased outside the State of Florida and was shipped in interstate commerce to Respondent at Tampa. During the same period, Respondent manufactured and sold finished products consisting principally of bedding and living room furniture, valued in excess of $500,000, no part of which was sold or shipped to customers outside the State of Florida. Respondent strongly denies here, as it did in the State and Federal court action by which is sought to enjoin the instant proceeding, that it is "engaged in interstate commerce or that the operations of [its business has] any close, intimate or substantial relation to interstate commerce." It not only argues that "the purchase of a substantial amount of raw material in interstate com- merce alone is not sufficient to allow jurisdiction by the" Board, but also takes the more extreme position that because the discharges involved herein were engaged in production work that did not include the actual handling of goods as they were received from an interstate carrier on Respondent's railroad sidings or platforms, that therefore, the Board is without jurisdiction over complaints involving such production employees. The contention last afore-mentioned is so patently untenable as to require no further discussion. Nor is there any merit to Respondent's position that because it sold no goods in interstate commerce the Board is without jurisdic- tion in this proceeding. In casting the Board's jurisdictional mold, Congress did not make it a condition to the exercise of jurisdiction that an employer be engaged in both the purchase and sale of goods in interstate commerce. It was its intent, expressed in Section 1 of the Act, that the jurisdiction of the Board be invoked to insure that the "free flow of commerce . . . not be interrupted, ob- structed or burdened by industrial strife or unrest," 2 and by Section 2 (7) of the Act, it legislatively determined that interstate commerce is so affected by any conduct which burdens or obstructs such commerce or the free flow of commerce. "It matters little where the obstruction to that free flow of commerce occurs. Here, labor strife in the [Tampa] plant of the company [would] interfere with and obstruct the free flow of raw materials coming into [Florida] from other states, and it is just such an obstruction that Congress intended to prevent by passage of this Act." 3 It has repeatedly been held by both the courts and the Board that a manufacturer who purchases a substantial amount of goods and 2N. L. R. B. v. Van de Kamp's Holland-Dutch Bakers, Inc., 152 F. 2d 818 (C. A. 9). 0 IMd. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD materials outside the State for use in his business is subject to the jurisdiction of the Board, notwithstanding the fact that he ships none, or only an insub- stantial part, of his products in interstate commerce.' I find that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED District 50, United Mine Workers of America, is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and chronology. of events As previously indicated, Respondent is a Florida corporation engaged in the manufacture and sale of bedding and living room furniture. Larry N. Boyd was its "principal owner" and general manager. At the time of the hearing, Respondent employed approximately 100 employees. During. all times relevant, its factory was under the general supervision of one Burdict, the plant super- intendent, and was divided into 3 departments, each under the direction of a foreman or department manager. Dolan was in charge of the furniture department, Rooks of the millroom, and Paul of the mattress department. According to his own testimony, Boyd became aware of union activity among Respondent's employees approximately 6-8 weeks before May 19, 1949. After being so advised, Boyd called a meeting of the employees and told them that he had heard that they "were engaged in some sort of a union, that it would be o. k. with him-to choose any union [they] wanted," and that they could have the unrestricted use of Respondent's assembly room, unobserved by management, to hold a meeting for the purpose of determining whether they "wanted a union or not." The record does not specifically disclose whether the offer of the use of the assembly room was accepted, although there was some testimony indicating that the offer was rejected and that the meeting sub- sequently held occurred at some other place. In any event, the union meeting was held on April 27, 1949, at which time the following officers were elected from among Respondent's employees : Alfred P. Aguiar, President J. B. Edwards, Vice President Lillie Emeterio, Financial Secretary Lawrence Olar, Recording Secretary Sam Kesterson, Treasurer Prior to the time union activities commenced, Respondent had promulgated no rule with respect to talking by its employees during their work hours or on Respondent's premises. During Boyd's talk to the employees, however, he instructed them "not to talk about the union on the job." On or about May 17, 1949, Respondent received a letter from the Union's International Representative at Jacksonville, Florida, in which Respondent was advised of the Union's claimed status as bargaining representative for Respond- ent's employees, and requesting an appointment for an early bargaining confer- ence. On May 19 Respondent discharged Aguiar, Kesterson, and Baumbaugh, followed on May 30 by the discharge of Olar. On June 1 Aguiar filed a charge i Ibid; N. L. R. B. V. McGough Bakeries Corporation, 153 F. 2d 420 (C. A. 5) ; Atlanta Brick and Tile Company, 83 NLRB 828, affirming 79 NLRB 756; Trueman Fertilizer Com- pany, 73 NLRB 1235. FLORIDA MATTRESS FACTORY, INC., OF TAMPA 777 with the Board , served on Respondent on June 3, alleging that Respondent had violated Section 8 (a) (1) and Section 8 (a) (3) of the Act by making the dis- charges afore-mentioned , and by "other acts and conduct , [had] interfered with, restrained, and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act."' The complaint was issued on January 13, 1950, and served on Respondent on the same day.' B. Interference, restraint, and coercion' Sometime after Boyd's speech to the employees, Foreman Rooks asked Baum- baugh if he knew anything about the Union and asked another employee, Herbert Bolton, whether he had joined the Union. About a week after Boyd's speech, Burdick and Rooks asked Kesterson on three or four occasions "how the Union was going." During the same period, Superintendent Burdick frequently asked Lawrence Olar why he joined the Union and made repeated inquiries of Vera Olar, the wife of Lawrence Olar, also employed by Respondent, as to "how the Union was coming along." After Aguiar was discharged on May 19, Boyd told Lawrence Olar he was "going to get rid of all the fellows that talked about the Union." At about the time of the Boyd meeting, Foreman'-Dolan asked Joseph Alonso and several other unidentified employees whether they belonged to the Union. After Aguiar was discharged, Respondent's Vice President McNab,' in discussing that discharge with Vera Olar, told her that Respondent was "just not going to have [the Union], that is all out of the question, there is going to be no union. Mr. Boyd will fire everyone in the plant before he has it." There was no denial of the foregoing incidents by Boyd, Burdick, Rooks, Dolan or McNab. By the conduct afore-mentioned, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed. in Section 7 of the Act, and thereby violated Section 8 (a) (1) thereof .9 C. The discriminatory discharges 1. Alfred P. Aguiar Aguiar was first employed by Respondent in November 1947, "to run the planer, the ripsaw, and the cutoff saw in the millroom" at 70 cents an hour. Two weeks later he was raised to 75 cents and about a month following to 80 cents an hour. Thereafter, he performed work in other departments and was a "general flunkey" about the plant. Although other employees were on occasion laid off because of 5 This charge also alleged that Respondent had discriminatorily discharged Johnnie Oilzer on May 19, 1949. The complaint, however, made no mention of the latter's discharge. ° Respondent in its brief (p. 14) states that "the law . . . requires the complaint to be filed within 6 months from the occurrence of acts making up the charge." There is no such. requirement. Section 10 ( b) of the Act merely prohibits the issuance of a complaint "based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the persons against whom such charge is made." That requirement was fully complied with in the instant case. .7 The findings in this paragraph are based on the credited and undenied testimony of Kesterson, Baumbaugh, Lawrence Olar, Vera Olar, Herbert Bolton," and Joseph Alonso. So identified in Respondent's brief at p. 33. ° Siandard-Coosa-Thatcher Company, 85 NLRB 1358. 10 The following findings pertaining to all four discharges are based on their credited and undenied testimony and that of Vera Olar and J. B . Edwards. Respondent offered no testimony as to why the men were discharged. Its self-serving letter to the Board, dated June 10, 1949, admitted into evidence without objection , at best can serve only as a statement of Respondent's position as to why the men were discharged. It cannot be considered as substantial evidence to prove that the men were lawfully discharged. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lack of work, Aguiar suffered no such loss from the time he was first employed until he was discharged on May 19, 1949. There was no evidence that Aguiar had ever been disciplined or criticized for his work or conduct. As Aguiar returned to his work after lunch on May 19, the following conver- sation took place between him and Vera Olar concerning supplies she needed to resume her work : OLAR. Alfred, you had better hurry, I'm going to need 3 nets. AGUTAR. Now? OLAR. No; but I'll need them in a few minutes. AGUTAR. O. K. Nothing further was said and the conversation apparently lasted only a few seconds. Foreman Paul approached Aguiar almost immediately thereafter, while the latter was engaged in preparing the material for Vera Olar, and said to him : "I'm sorry, I have been told to fire you." As Aguiar was about to leave his post, he encountered Superintendent Burdick and told him he had been fired. Burdick answered, according to Aguiar, "Well you all brought it upon yourselves, [you] worked in secret, instead of taking the offer that Mr. Boyd had made about the assembly room." Mrs. Olar, who overheard the conversation, testified that Bur- dick told Aguiar he had been fired "for speaking about the union." I find no inherent inconsistency in the underlying meaning of the two versions of Burdick's statement. Significantly, Burdick was not called to testify by Respondent to give his version of the conversation. Respondent's failure to produce Burdick, or any of the other witnesses to whom violative conduct was attributed, raises a presumption that, if produced, such witnesses would refute the unsubstantiated claim" Mrs. Olar's version of the subject of her conversation with Aguiar stands undenied and is credited. Not a scintilla of evidence was offered to prove that after Boyd's speech either Aguiar, or any of the other dischargees, engaged in union activity or talked otherwise than was necessary for the perform- ance of their work while "on the job." The foregoing, coupled with Respondent's failure to offer any proof why Aguiar was discharged, its hostility to the Union as heretofore found, its knowledge of Aguiar's position as president of the Union, '2 his record of steady employment, the timing and summary discharge on the day following receipt of the Union's demand for recognition and a bargaining conference, compel the conclusion that Aguiar was discharged because of his union activity and I so find. 2. Sam W. Kesterson and Joseph W. Baumbaugh Within an hour after Aguiar was discharged, Baumbaugh was given a "rush" job to be completed within 10 to 15 minutes. To do the work, Baumbaugh required some lumber from a station approximately 10 to 15 feet from his post. While on his way to secure the lumber, Baumbaugh passed Kesterson's station and asked him whether he knew that Burdick and Rooks were watching them. Kesterson did not answer and both men continued with their work, practically without interruption. Rooks approached Kesterson immediately and told him to draw his time, that he was "fired." Kesterson asked Burdick why lie was discharged and was told that Rooks "saw him talking." He went to the office and asked Boyd if he was fired because he was a union officer and was told that 'IN. L. R. B. v. Ohio Calcium Company, 133 F. 2d,721, 727; N. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862, 868. 12 Commencing about a week or two after the election, Foreman Dolan constantly saluted Aguiar as "Mr. President" FLORIDA MATTRESS FACTORY, INC., OF TAMPA 779 he (Boyd) was "going to get rid of all of them." Baumbaugh asked Burdick why he was fired and was told that he "talked too much." Kesterson was first employed by Respondent on October 1, 1948, and prior to the date of his discharge had never been criticized for talking. Baumbaugh has been in Respondent's employment since August 1945 when he was engaged as a band saw operator at 50 cents an hour. His work was apparently satisfactory, for at the time of his discharge he was receiving 85 cents an hour. He was the first employee to join the Union and enlisted Aguiar's membership therein among others. Except for Kesterson's and Baumbaugh's testimony as to what Rooks assigned as the reason for their discharge, no evidence was offered to prove that either men had violated the rules imposed by Respondent, or indeed, why they were so summarily discharged. Consideration of all the testimony compels the conclusion that the reason assigned by Rooks for these two discharges, viz, exces- sive talking, finds no support in the record. Rather, it can only lead to a judg- ment that the reason assigned was a mere pretext and that the real reason for the terminations was because of Kesterson's and Baumbaugh's union member- ship and activities and for the purpose of discouraging such membership and activities by the remaining employees. That conclusion is based on Respondent's hostility to the Union as heretofore found ; its knowledge of, the dischargees' union affiliation and activities as evidenced by Boyd's statement to Kesterson that he was "going to get rid of all [the officers]," and by Rooks' questioning of Baumbaugh about the Union ; by the summary manner and timing of the dis- charges ; by the apparently good work-record of both men and the complete lack of proof by Respondent of any valid reason for the discharges. Accordingly, I find that Respondent violated Section 8 (a) (1) and (3) of the Act by discriminately discharging Kesterson and Baumbaugh on May 19, 1949. 3. Lawrence Olar'a Olar was hired in December 1947 as a mill hand at 80 cents an hour. Four months later, he was transferred to the garnett room and raised to 85 cents ; 6 weeks thereafter, he was given another 10 cents increase. He joined the Union in mid-April 1949, and was elected its recording secretary on April 27. Com- mencing 2 or 3 days later, Burdick "almost daily" talked 'to him about the Union, inquired why he joined the Union, and told him he "didn't know what he could get out of the Union." On May 30, 1949, all the employees were assembled for the purpose of listening to a speech "about the Union" by J. Tom Watson, Respondent's attorney. Accord- ing to Olar's summary of the speech, Watson told the employees that the Union "was putting things" in their heads, that it wouldn't do them "any good." As Watson concluded his speech, Boyd announced "that would be all," and left the assembly room with Watson, as did most of the employees. Olar, in the presence of his wife, Vice-President McNab, a shipping clerk, and a salesman remarked : "Well he must have got $300.00 for that speech." Olar then returned to his work. He was there about 3 minutes when he was called to the office by Burdick. Upon reaching there, he found his pay envelope fully prepared and containing the money due him as wages. Boyd said to him "I overheard what you said. I can't have any thing like that around here, I will have to let you go." Fully realizing that the burden of proving that Olar's discharge was dis- criminatory rests on the General Counsel, I am convinced that that burden has 11 Based on Olar's credited 'and undenled testimony. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been sustained. A more difficult problem might be presented were Olar's dis- charge the only one effected that month. However, in the light of Boyd's uncon- tradicted threat to Kesterson that he was going to get rid of all the Union's officers, Olar's discharge cannot be so isolated 14 Against the background of Respondent's illegal conduct as described in the preceding portions of Section III herein, Respondent's indignation at Olar's remark cannot be accepted as the true reason for has discharge. Though Respondent apparently contends that the remark was derogatory of its attorney and therefore justified Olar's dis- charge, I cannot agree either with the characterization or that it justified the discharge. Olar, being a union officer, could understandably be of the opinion that the arguments advanced by Watson as Respondent's attorney might not be objectively sound and were perhaps influenced by the liberal fee suggested in his comment. While it is true that there was no impropriety in Watson's speech, it would be utterly unrealistic to assume, and indeed it is not claimed, that the speech was an objective analysis of the problem which then faced both management and the employees. At most, Olar's remark was intended to convey the impression that, in his opinion, Watson's arguments should be meas- ured as those of a well-paid advocate. Viewed in that light, Olar's remark was protected no less than Watson's speech. In any event, Olar's remark certainly could not offend Watson for it was made outside his presence. When, therefore, consideration is given to Olar's good work record and to Respondent's established anti-union animus and threats, it becomes clear that Respondent here, as in the case of Aguiar, Kesterson, and Baumbaugh, seized upon the first available pretext to rid itself of the union officers and adherents. Accordingly, I find that Olar was discharged because of his union activity and membership, and for the purpose of discouraging further union membership and activity by its remaining employees in violation of Section 8 (a) (1) and (3) of the Act. 4. Aguiar's alleged "fronting" for a noncomplying union The defense upon which Respondent placed the greatest emphasis both at the hearing and in its brief, is that the Union which was the object of the employees' activities herein, and of which Aguiar was the president, had not complied with Section 9 (h) of the Act requiring its officers to file the non-Com- munist affidavit required by that section.15 Respondent further urges that Aguiar is "fronting" for said Union, is its alter ego, and that neither Aguiar nor any member of the Union is entitled to relief herein by reason of the Union's non- compliance with Section 9 (h). While Congress, in enacting this section, took effective action to curb com- munistic influence in the exercise of leadership in the labor movement by de- priving noncomplying labor organizations of certain rights and the use of the Board's enforcement machinery," it did not withdraw from the protective guarantees of the Act the basic rights assured to individual "employees" in Section 7 thereof, notwithstanding membership in a noncomplying union. "The effect of the discharge of three union officers is not destroyed by Respondent's failure to discharge two other officers. Clearly, a complete housecleaning of union officers is not essential to a finding that some employees have been discriminated against. Stewart Warner Corporation, 55 NLRB 593, 610; Wooster Brass Company, 82 NLRB 514. Nor is it necessary to speculate what further retributive action Respondent might have taken had not the unfair labor practice charge been filed on June 1, 1949. 15 The General Counsel conceded at the hearing that the Union had not complied with Section 9 (h) of the Act. 10 Andrews Company, 87 NLRB 379. FLORIDA MATTRESS FACTORY, INC., OF TAMPA 781 The Board, in its recent decision in the Andrews case, summarized the impact of Section 9 (h) as follows: "In dealing with a noncomplying union, [the Board] is forbidden to take the following steps : (a) it may not investigate a question concerning the representation of employees or certify the union as the statutory bargaining representative; (b) it may not entertain the organization's petition under Section 9 (e) for a union-shop election; and, finally, (c) it may not issue a complaint pursuant to a charge filed by the organization." In the same decision however, the Board pointed out that "this section clearly shows that by its enactment, Congress was directing its legislative powers toward the rights and privileges of labor organizations as opposed to the rights and privileges of individual employees." [Emphasis supplied.] Thus, Section 7 still unconditionally guarantees to "employees" the basic right to self-organiza- tion and the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Significantly, however, the exercise of those rights is not conditioned upon membership in, or activity in behalf of, a complying union. To make effective the guarantees just described, Section 8 (a) proscribes as unfair labor practices the conduct of an employer which interfere with the free exercise of such rights. Accordingly, Section 8 (a) (1) makes it unlawful "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed, in Section 7," and Section 8 (a) (3) out- laws discrimination "to encourage or discourage membership in any labor organi- zation." And, in providing a remedy against the practices prohibited by Section 8 (a), Section 10 (b) permits "any person"" to file an unfair labor practice charge, regardless of the state of Section 9 (h) compliance by the labor organiza- tion involved. The clear language of the Act unconditionally guaranteeing to all employees the rights enumerated, coupled with the unfettered right to the exercise of the remedies provided by the Act for the violation thereof, compel the conclusion "that employees who have engaged in union activities in behalf of a noncomply- ing Union are still protected by the Act ... and that Section 9 (f), (g), and (h) relate to union rights only, thus leaving unaffected the rights guaranteed in Section 7 to individual employees." 18 [Emphasis supplied.] I am likewise of the opinion that because Aguiar, the charging party, was president of the admittedly noncomplying union involved herein, he is not thereby precluded from filing an unfair labor practice charge in behalf of himself and other employees.19 The mere fact that the Union "might derive an incidental benefit from a finding that unfair labor practices were committed in the case is immaterial." 20 Furthermore, though Respondent strenuously urges that the ban of Section 9 (h) should be imposed because of Aguiar's testimony that he filed the charge herein at the request of a noncomplying union, I conclude, as did the Board in the Olin Industries case just cited, that such fact "is imma- terial." A contrary holding would not only bar Aguiar, the employee, from the relief to which he is entitled under the Act, but would now, by reason of the limitation imposed by Section 10 (b) of the Act,21 also foreclose considera- tion of the wrongs inflicted upon Kesterson, Baumbaugh, and Olar, the other 17 Section 203.9 of the Board's Rules and Regulations so interprets Section 10 (b) of the Act. 18Andrews Company, supra, fn. 4; Augusta Chemical Company, 83 NLRB 53. 19B. F. Goodrich Company, 88 NLRB 550. 99 Olin Industries, Inc., 86 NLRB 155, fn. 2. "No complaint shall issue based upon any unfair labor practice occurring more than six mnths prior to the filing of the charge with the board. . . . 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three discriminatorily discharged employees, as well as the rights of all other employees who are entitled to relief from Respondent's alleged unlawful restraint, coercion, and interference. Accordingly, I conclude that neither the failure of the Union to comply with Section 9 (h) of the Act, nor the fact that Aguiar was its president and filed the instant charge at its request, bars consideration of the complaint on its merits?' CONCLUSIONS OF LAW 1. District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the tenure of employment of Alfred P. Aguiar, Sam W. Kesterson, Joseph W. Baumbaugh, and Lawrence Olar, thereby discouraging membership in and actively on behalf of District 50, United Mine Workers of America, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. '3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] 22 Globe Wireless, Ltd., 88 NLRB 1262.