Tanner Motor Tours, Ltd.

TANNER MOTOR TOURS, LTD. 275 Tanner Motor Tours, Ltd. and Tim Warner and Chauffeurs' Union, Local 640, Affiliated With International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Party to the Contract . Case No. 21-CA-1711. April 19, 1955 DECISION AND ORDER On June 21, 1954, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceedings, 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 Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs, and the Respondent, the General Counsel, and the Charging Party also entered into stipulations as to certain facts pertaining to the Board's jurisdiction over the Respondent, which were stipulated to be a part of the record in the case. 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 Inter- mediate Report, the exceptions and briefs, the stipulations, and the entire record in the case. The Board finds that it will not effectuate the policies of the Act to assert jurisdiction in this case, and shall, for the reasons hereinafter stated, dismiss the complaint in its entirety. The Respondent, a California corporation, is engaged in the busi- ness of operating a charter bus and limousine service. The Respond- ent wholly owns Gray Line Motor Tours Company, another California corporation, whose business is similar in nature to that of the Re- spondent. The Respondent, in turn, is itself wholly owned by Tanner Motor Livery, Ltd., also a California corporation. Tanner Motor Livery, Ltd., operates limousines for hire, leases "U-Drive" cars, and operates a taxi service in the area surrounding Los Angeles. The fore- going three corporations are operated from the same Los Angeles offices and have common labor relations policies. Tanner Motor Livery, Ltd., owns substantially all the stock in Tan- ner Motor Tours of Arizona, an Arizona corporation; Tanner Motor Tours of Nevada, a Nevada corporation ; and Lucky Cab Company, It Nevada corporation. The nature of the businesses of Tanner Motor Tours of Arizona and Nevada is substantially the same as that of the Respondent. Lucky Cab Company, as its name implies, is primarily engaged in the taxicab business. The officers of all the foregoing de- scribed corporations, including the Respondent, are the same individ- 112 NLRB No 31 369028_56-vo1 112 19 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uals, except that the vice president and secretary of Lucky Cab Com- pany do not hold positions with any of the other companies. During 1953, the Respondent had total revenue in excess of $1,440,000 from the following sources : Approximately $629,000 was derived from a sightseeing service whereby passengers are picked up by the Respondent's vehicles at hotels or air terminals and taken on pleasure tours, usually lasting about 3 hours, whereupon the passengers are usually returned to the point of pickup ; in excess of $700,000 was received by the Respondent from the operation of schoolbuses and a local charter service; and approximately $200,000 resulted from the operation of a limousine service to racetracks and from buses chartered for conventions and other similar events. The record indicates that $78,661 of this last figure resulted from an operation wherein the Re- spondent carried passengers to San Ysidro on the California border, and the passengers were then left to their own resources to obtain further transportation to the Agua Caliente Race Track in Mexico. During 1953, the gross revenues of the corporations other than the Respondent are as follows : Tanner Motor Livery, Ltd., $3,460,811; Gray Line Motor Tours Company, $212,023; Tanner Motor Tours of Arizona, $394,364; Tanner Motor Tours of Nevada, $393,460; and Lucky Cab Company, $447,610. During 1953, these companies de- rived revenue from services involving transportation of passengers across State lines, totalling less than $13,669, in the following individ- ual amounts: Respondent, $1,020; Tanner Motor Livery, Ltd., less than $5,000; 1 Gray Line Motor Tours Company, $149; Tanner Motor Tours of Arizona, less than $2,500; Tanner Motor Tours of Nevada, less than $5,000; Lucky Cab Company had no such revenue. In the Greenwich Gas and Rollo Transit cases 2 the Board recently established jurisdictional standards for "public transit companies af- fecting commerce." Although the operations of all of the corporations in the instant case involve the transportation of passengers by motor ve- hicles, as in the above-named cases, for the reasons hereinafter set forth, we find that the operations of the Respondent, whether con- sidered alone, or in conjunction with the other corporations as a single employer,3 do not constitute a "public transit company" within the meaning of the Greenwich Gas and Rollo Transit cases. From the facts of the latter cases, as well as the facts of the cases therein cited,4 it is clear that the Board was there concerned only with companies de- riving their revenue either from the interstate transportation of pas- t Tanner Motor Livery's interstate income is derived solely from persons who lease "U-Drive" cars and drive them across the State line 9 The Gi eenwech Gas Company and Fuels, Incorporated, 110 NLRB 564; Rollo Transit Corporation, et at,, 110 NLRB 1623 'In view of our final disposition of the juiisdiction issue herein , it is unnecessary for us to decide whether all of the corporations, in fact, together constitute a single employer. , W. C. King d/b/a Local Transit Lines, 91 NLRB 623; Baltimore Transit Co., 47 :NLRB 109 TANNER MOTOR TOURS, LTD. 277 sengers between fixed termini and on regular schedules, or from serving as a link in such operations, or from providing an essential means of transportation for passengers to or away from defense plants, or in the vicinity of metropolitan industrial centers. Operations like these, providing they meet the minimum standards we have established, have such an impact or effect upon the free flow of interstate commerce as to warrant the assertion of our jurisdiction. Such, however, is not the case with an operation like that of the Respondent's herein. As indicated, about one-half of the Respondent's revenue is derived from its sightseeing pleasure trips of about 3 hours' duration. The remaining portion of the Respondent's revenue comes from buses char- tered for conventions, for horse races, and other local events and from the operation of the Respondent's vehicles as schoolbuses. It appears that in most instances the Respondent's passengers are returned to the point from which they originally departed several hours earlier. Thus it can be seen, that the Respondent's operations are almost completely concerned with local pleasure tours. This is entirely different from transporting passengers traveling from point to point directly in inter- state commerce, or employees shuttling back and forth to their places of employment at defense plants or in large industrial centers. Obvious- ly, any strike or work stoppage of the Respondent's employees resulting in the cessation of the Respondent's services would have little or no impact upon the free flow of interstate commerce. Accordingly, as noted, we find that local, charter, pleasure tour op- erations like the Respondent's herein, are not within the meaning of the term "public transit company," as referred to in the Greenwich Gas and Rollo Transit cases, and that to assert our jurisdiction over such operations would not effectuate the policies of the Act.' The same result obtains if Gray Line Motor Tours Company, Tanner Motor Tours of Arizona, and Tanner Motor Tours of Nevada, together with the Respondent are considered to be a single employer. These corporations all derive their entire income from operations similar to that of the Respondent's, and the foregoing discussion, therefore, ap- plies with equal force to them. Nor is the situation altered by con- sidering Tanner Motor Livery, Ltd., in conjunction with the other cor- porations. Tanner Motor Livery, Ltd., is essentially a taxicab opera- tion over which, for the reasons set out in the Checker Cab 6 case, we will not assert our jurisdiction. Indeed, the nature of the operations of all the corporations herein involved appears, if anything, to be most like that of a taxicab operation. Moreover, the impact on interstate commerce of these corporations appears, we believe, to be even less than that of the usual taxicab operation. For example, in the Checker Cab 5 To the extent that Rose City Tours, Inc, 92 NLRB 1254 , is inconsistent with our find- ing herein, that case is overruled. 6 Checker Cab Co and Baton Rouge Yellow Cab Co , lnc, 110 NLRB 683 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case approximately 31 percent of the taxi company's gross revenue was derived from trips to and from regular interstate passenger carrier terminals. On the other hand, although it appears that the sightseeing business of the Respondent, and some of the other corporations, may occasionally involve the pickup and delivery of passengers at such terminals, it is clear that such transportation is related directly to the sightseeing tours, and, in contrast to the taxicab companies, only inci- dentally related to transporting passengers in the stream of commerce. Our dissenting colleague contends that the effect of the Board's Checker Cab decision was to "reinstate-the old rule"' requiring us to assert jurisdiction over taxicab companies making trips across State lines and operating in more than one State. Such was not our inten- tion and any implications to the contrary which may be read into the Checker Cab case are herewith overruled. In view of all of the foregoing, and as no other basis exists under the Board's jurisdictional standards for asserting jurisdiction, we shall not assert our jurisdiction herein. Accordingly, we shall disniiss the complaint in its entirety. [The Board dismissed the complaint.] MvMBxn Mu1 DOCIK, dissenting : I do not agree with the majority's conclusion that the Respondent's business does not constitute a "public transit company" within the meaning of the Greenwich Gas case. In my opinion the Respondent's operations fall within the concept of a "public transit system" as that term was used under the 1950 plan and carried over into the present jurisdictional plan by the Greenwich Gas case. Judged by the Board's jurisdictional standard for such enterprises, the $3,000,000 gross re- ceipts test for local transit systems is met and jurisdiction should there- fore be taken. As admitted by the Respondent in its answer to the complaint, Respondent is a wholly owned subsidiary of Tanner Motor Livery, Ltd., and itself wholly owns Gray Lines Motor Tours Company. Tanner Motor Livery, Ltd., also owns a majority interest in Tanner Motor Tours of Nevada, and Tanner Motor Tours, an Arizona cor- poration. The first three corporations named above, are all Cali- fornia corporations, operate from the same business address in Los Angeles, and have common labor relations policies. They have the same officers, who are also the officers of the Nevada and Arizona cor- porations. Though the general managers of the latter two corpora- tions negotiate collective-bargaining agreements, they consult with the general manager of the California corporations for advice with reference to labor relations because of his greater familiarity with such matters. The five corporations together applied to the Inter- TANNER MOTOR TOURS, LTD. 279 state Commerce Commission for a certificate, designating the Re- spondent as the recipient of the certificate, thereby holding themselves out as a single entity which the commission found them to be. In making its finding, the commission found that "the equipment of the corporation is interchanged between the respective applicants accord- ing to the need therefor." In view of the foregoing I find that the five corporations constitute a single employer operating in three States and should so be treated for jurisdictional purposes. I shall here- after use the term Employer as embracing all five. I note that nay colleagues now claim that the Greenwich Gas case did more than simply add a $3,000,000 gross receipts test for local transit systems to the old jurisdictional standard-that from the "facts" in it and Rollo Transit' and cited cases it was "clear" that the Board meant to limit the concept of a local transit system to "transportation for passengers to or away from defense plants, or in the vicinity of metropolitan industrial centers." Whatever it may now be claimed that the majority meant to do there, it is plain that the Greenwich Gas decision itself gave not the slightest hint of any such limitation or qualification. In the first place, on its facts, that case didn't even involve a transit system but a public utility selling gas. Local public utilities and transit systems had a single standard applicable to both under the 1950 plan, announced in the Local Transit Lines case. Greenwich Gas also announced a single standard for both. After stating their judgment that "the jurisdictional standard established by the Local Transit Lines decision should be revised," the majority in Greenwich Gas then said precisely how: "We have cletei mined that in future cases the Board will assert jurisdiction over local public utility and transit systems affecting commerce whose gross value of business is $3,000,000 or more per annum." A footnote cited and overruled the Local Transit Lines case and cases relying thereon only "to the extent . . . inconsistent with our decision here- in." Plainly the only inconsistency between the standard for local public utilities and transit systems laid down in Local Transit Lines and cases relying thereon, and the standard for these enterprises an- nounced in Greenwich Gas, was the imposition in the latter of the $3,000,000 gross receipts requirement. Thus, only to that extent was the 1950 local transit standard changed. It is noteworthy that in Rose City Tours, Inc.," decided only 3 months after Local Transit Lines, and in reliance thereon, the Board took jurisdiction over the c I see no reason foi the majority to bung the later Rollo Transit case into this discus- sion That case simply set up a less rigid gross Ieceipts test ($100,000) for concerns de- rning that amount of u;ceuue fiout niterstafe tIansportation of pas5Cngets I do not sug- gest that such test is met here We are now concerned only with the text applicable to local public transit systems sshich are not engaged in interstate transportation of pas- sengers 8 D_ NLRB 1254 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operator of a sightseeing enterprise in Portland, Oregon, having 5 buses and 2 limousines, as a "public transit system." The majority now overrules this decision. I thought the Board had retreated too far when it imposed the stiff $3,000,000 gross receipts test for public utilities and transit systems in Greenwich Gas in place of the 1950 de minimis test.' But now it is retreating even further when it engages in latter day whittling down of the concept of what constitutes a public transit system in order to dismiss a multimillion dollar enterprise which meets the former concept and the new dollar volume requirement as laid down in Greenwich Gas. The lack of realism in the majority's conclusion "that the nature of the operations of all the corporations herein involved appears, if anything, to be most like that of a taxicab operation" is vividly illus- trated by a comparison of the Employer's operations to that of a taxicab enterprise. The Interstate Commerce Commission granted the Respondent a certificate authorizing the Employer to operate one- way and round trip sightseeing and pleasure tours to points in Ari- zona, California, and Nevada, and one-way and round trip charter operations to points in Arizona, California, Nevada, New Mexico, Oregon, and Washington. Operating under this certificate, the Em- ployer conducted sightseeing tours, which included the pickup and delivery of sightseers to hotels and air and rail terminals, the trans- portation of passengers to racetracks, the operation of charter buses for conventions and, as part of its regular operations, a tour from Los Angeles to San Ysidro at the Mexican border, where most of the passengers take other carriers to a Mexican racetrack. The Re- spondent received in excess of $700,000 for schoolbus and local charter service. From its California operations alone, Respondent received in excess of $1,440,000 in 1953 while Tanner Livery, Ltd., its parent company, received in excess of $3,000,000. I cannot conceive of a multimillion dollar enterprise in the sight- seeing field not having a basic quota of regularly scheduled tours and operating only on a "catch as catch can" basis. Moreover, Respond- ent's schoolbus operations must necessarily be on a regularly sched- uled basis if school children are to be transported to school on time. In any event, it is clear that the Employer does operate buses regu- larly to fixed destinations. In this respect it is clearly unlike taxicab operations whose basic distinguishing characteristics are that they have no regular routes or fixed destinations but cabs may be hired as they roam the streets and the passenger driven wherever his desire dictates. U See my dissents in Greenwich Gas Company and Fuels, Incorporated, 110 NLRB 564, and Charleston Transit Co., 111 NLRB 1214 TANNER MOTOR TOURS, LTD. 281 But even assuming arguendo that the Employer is properly treated as a taxicab operation, it is one that operates in three States, and transports passengers across State lines. Under these circumstances, I believe that the Board is bound to assert jurisdiction in accordance with the principle of the Checker Cab case. In that decision the majority stated : Before the 1950 jurisdictional plan was promulgated, the Board itself, in a series of decisions issued August 15, 1950, found that the policies of the Act would not be effectuated by assuming juris- diction over taxicab companies operating within the confines of a single state, because of their essentially local character. [Emphasis supplied.] And after a statement of the rule as changed by the Cambridge Taxi 10 case the majority declared: In our view, the Board's original rule, established after 15 years of administrative experience was correct and should again be controlling. [Emphasis supplied.] In view of the majority's declared belief in the soundness of the original rule and the conviction that it should once again be control- ling, it is readily obvious that the concluding finding in the Checker Cab case that Accordingly, we shall refuse to assert jurisdiction over taxicab companies, and the Cambridge decision is hereby overruled. had the effect of merely reinstating the old rule. Under that rule the Board, though declining to assert jurisdiction over taxicab enter- prises operating in a single State," did assert jurisdiction over taxi- cab companies which made trips across State lines.12 Thus, even accepting the majority's conclusion that Respondent is essentially a taxicab business, it should assert jurisdiction herein, because the Re- spondent operates in three States, and transports passengers across State lines. In accordance with the foregoing, I find that it would effectuate the policies of the Act to assert jurisdiction herein under existing Board jurisdictional standards. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. 10 The Cambridge Taxi Company, 101 NLRB 1328. 11 Yellow Cab Company of California, 90 NLRB 1884; Skyview Transportation Go, 90 NLRB 1895 ; Brooklyn Cab Corporation, 90 NLRB 1898. 12 See footnotes 1, 3, and 1 , respectively, of the cases cited above , wherein the Board distinguished the cases involving taxicab companies which transported passengers across State lines , and over whom the Board had asserted jurisdiction 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Tim Warner, an individual, and thereafter duly sewed, the General Counsel for the National Labor Relations Board issued a complaint and an amended complaint against Tanner Motor Tours, Ltd., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein called the Act. In respect to unfair labor practices, the complaint alleges that, the Respondent entered into and abided by a contract with Chauffeurs' Union, Local 640, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, providing for an unlawful closed- shop arrangement affecting drivers; dominated , assisted, and interfered with the administration of the Union; and discharged Tim Warner because he was not a member of the Union in good standing , because the Union demanded such action, and because of an illegal invalid closed-shop agreement. The Respondent by answer and amended answer, denies the jurisdiction of the Board to entertain the complaint and denies the commission of unfair labor practices. Pursuant to notice a hearing in the matter was held before the duly designated Trial Examiner in Los Angeles, California, on May 17 and 18, 1954. The Re- spondent and the General Counsel appeared and were afforded opportunity to examine and cross-examine witnesses and to introduce evidence pertinent to the issues. Motions made in behalf of the Respondent to dismiss the complaint on jurisdictional grounds and on the merits are hereby denied for reasons which will be set forth and discussed below. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT In respect to jurisdictional facts the complaint as amended alleges and Respon- dent's answer admits: Tanner Motor Tours, Ltd., a California corporation, hereinafter called the Respondent, is a wholly owned subsidiary of Tanner Motor Livery, Ltd., a California corporation, and, in turn, owns Gray Line Motor Tours Company, a California corporation, all three of which are located at the same business address in Los Angeles, California. Tanner Motor Livery, Ltd., also owns a majority interest in Tanner Motor Tours, an Arizona corporation; Tanner Motor Tours of Nevada, a Nevada corporation; and Lucky Cab Company, a Nevada corporation. The officers of all these companies are the same individuals except that the Vice-President and Secretary of Lucky Cab Company do not hold positions with any other of the companies as officers. The Respondent received, during the 12-month period ending December 31, 1953, approximately $1,020 in revenue for trips across the state lines. It is a "charter bus line," and is engaged in taking passengers on sight-seeing tours. It picks up passengers at hotels or air terminals and takes them on pleasure tours which usually last in excess of 3 hours, and then delivers the passengers to the point of pickup, or delivers them to a hotel or air terminal. Total gross revenue of the Respondent during the past year was in excess of $1,440,000, of which approximately $629,000 was received from the sight-seeing services described above, and in excess of $700,000 for school bus and local charter service. In addition, the Respondent operates limousine service to race tracks and charters buses for conventions and other similar events for which it received approximately $200,000 in revenue. The Respondent's purchases of equip- ment and supplies were approximately $110,000, of which approximately $5,000 was shipped directly from outside California. The Respondent leases its rolling stock having abandoned the policy of the purchase of rolling stock some years ago. As part of its regular operations the Respondent advertises a tour from Los Angeles to Tijuana, Mexico. In practice, the Respondent conducts the tour to San Ysidro at the California border where it turns the passengers over to Mexican carriers. Another tour is advertised to Las Vegas, Nevada; during TANNER MOTOR TOURS, LTD. 283 1953 this tour was conducted by the Respondent but has been discontinued as a conducted tour. In addition, the Respondent advertises trips from Las Vegas, Nevada, to the Utah National Parks, and another from Las Vegas, Nevada, to the North or South Rim of the Grand Canyon, and also advertises a trip from Tucson, Arizona, to Nogales, Mexico. These tours are conducted by either Tanner Motor Tours of Nevada or Tanner Motor Tours, an Arizona corporation. The Respondent has been granted a certificate by the Interstate Commerce Commission, authorizing one-way and round-trip sight-seeing and pleasure tours to points in Arizona, California and Nevada, and one-way and round-trip charter operations to points in Arizona, California, Nevada, New Mexico, Oregon and Washington. The Commission, having found that the five corpora- tions described above (all those described herein, but excluding Lucky Cab of Nevada) were "commonly owned and operated corporations performing a single business as a common carrier by motor vehicle, in interstate or foreign commerce," granted the certificate to the Respondent because it was designated by the applicants to be the recipient of the certificate. The Interstate Com- merce Commission, in considering the application, made a finding that "the equipment of the corporation is interchanged between the respective applicants according to the need therefor " Tanner Motor Livery, Ltd, Tanner Motor Tours, Ltd, and Gray Line Motor Tours Company, are all operated from the same Los Angeles, California locations and have a common labor policy. Tanner Motor Livery, Ltd., re- ceived in excess of $3,000,000 in revenue from sales and services during the same period, all of it from points within the State of California; Gray Line Motor Tours Company received approximately $212,000 in revenue of which $149.76 represented out of state sales, the balance being payment for sales and services within the State Responsibility for the operation of Tanner Motor Tours, an Arizona corporation, and Tanner Motor Tours of Nevada and Lucky Cab Company is vested in the management of each of these companies. The local management in each instance negotiates collective bargaining agreements The local managements call upon Bruce Whited, general manager of the com- panies located in Los Angeles, for advice with reference to labor relations from time to time because of his greater familiarity with such matters Bruce Whited, Respondent's manager, testified at the hearing that during 1953 the Respondent received a total revenue of about $1,700 for transporting passengers from California to points without that State, that the Respondent did not advertise a tour from California points to San Ysidro at the Mexican border, such advertising being done by the Agua Caliente Race Track to promote attendance, and that Respondent carries passengers, most of whom are bound for the Agua Caliente Race Track in Mexico, to San Ysidro at the border in California, the passengers then using other carriers to complete the journey to that track. It was stipulated at the hearing that in 1953, the Respondent received a revenue of approximately $50,000 for transporting persons from Los Angeles and San Diego to San Ysidro. For the reason that the Respondent in carrying passengers in the circumstances given to San Ysidro is performing a transportation service which is an essential link in foreign commerce and as its revenue from this service is substantial, I conclude that Respondent's operations are in commerce and affect commerce within the meaning of the Act and that the Board has jurisdiction.' H. THE ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of the Respondent III THE UNFAIR LABOR PRACTICES An agreement between the Respondent and the Union dated October 17, 1952, and effective for 1 year from September 1 of that year, provides in part Article I 1. The Company shall employ no drivers other than members of Local 640 in good standing, and it is hereby agreed that the Union shall be the sole judge of good standing. It is also agreed that the Company shall take out of service any and all drivers not in good standing in Local 640 upon request of the Business Agent of Local 640. 1 For further and different bases for assertion of jurisdiction see The Borden Company, 91 NLRB 628 , and Rose City Tours , Incorporated, 92 NLRB 1254 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. In the event that the Union is unable to furnish the Company with com- petent drivers, the Company shall have the privilege of hiring drivers of their own choice. The Company shall require all drivers so hired to fill out and sign the official application blank of the Union and shall immediately forward such application blank to the office of the Union. Drivers so hired shall, within 30 days become and remain members of the Chauffeurs' Union, Local 640. 3. The Company before hiring new drivers, shall first call the office of the Union to ascertain if there are eligible drivers unemployed, and if such is found to be the case, the Company agrees to give preference to such drivers. The same article, with the same provisions, had been incorporated in the agreements of 1948, 1949, 1950, and 1951. On November 22, 1948, the Union wrote the Respondent: It is hereby agreed that Article I of the Tanner Motor Tours Contract will not be effective until it has been decided whether or not said contract comes under the provisions of the Taft Hartley law. In apparent recognition of the applicability of the Act to Respondent's operations and seemingly in an effort to conform to the Act's requirements, article I was amended effective September 1, 1953, to require that all drivers become and remain members of the Union after 30 days of employment. Even as amended, the union- security clause would seem not to allow employees 30 days from its effective date before union membership became a condition of employment and to that extent may be said to impose upon those employees hired before its execution who were not on September 1 members of the Union, a condition beyond that which the Act authorizes. However, the General Counsel makes no claim of illegality concerning the 1953 agreement and no question of its conformity to the Act was litigated. Bruce Whited, Respondent's general manager, at first testified that the 1948 letter from the Union meant to him that article I of the 1948 agreement, and of those agree- ments in the following years up to September of 1953, "was subject to revision or adjustment at any time during the period mentioned if we determined or learned from any source that it was not proper or legal, it would immediately become the subject of necessary adjustments." This testimony strongly suggests that article I of the 1952 agreement as set out above, was in truth the effective agreement of the parties to the contract subject to revision only in the event of its adjudication as un- lawful. But Whited went on to testify that the Respondent throughout the entire period employed drivers of its own selection and but rarely through the Union. At some date after hiring, according to Whited, new drivers became affiliated with the Union. Whited testified that Respondent did not feel itself bound to follow the hiring provisions of the article. R. C. Wilson, secretary-treasurer of the Union, testified that in 1948, after the passage of the amendments to the Act, in the belief that the union-security clause in the 1948 contract with the Respondent was in conflict with the Act's provisions, the letter of November 22 was written. According to Wilson, by virtue of that letter all union-security provisions in the 1948 contract were cancelled and similar pro- visions in the contracts of succeeding years to September 1953 were similarly affected. However, the only expression in writing by either party to any of the con- tracts of an intention to give no effect to union-security provisions is contained in the 1948 letter. But there is the testimony of William Morphus who in March 1953 was in the employ of the Respondent as a dispatcher and who was responsible according to General Manager Whited for "The direction of the activities of the other dispatchers under the supervision of our Los Angeles manager, and it included the hiring of personnel, directing their activities either directly or through the other personnel in the office." Morphus testified that drivers were under a compulsion to join the Union after a probationary period of 30 days. Whited in his testimony made no reference to compulsion but said that drivers took out membership in the Union after being hired. Counsel for the Respondent asserted at the hearing that prior to September 1953 the hiring practices of the Respondent were the same as after that date-membership in the Union being a condition of employment 30 days after hire. One is struck by the incongruity of the Respondent and the Union solemnly affix- ing signatures year after year to collective-bargaining contracts containing unlawful closed-shop provisions if neither had the intention to make the provisions operative. It is easily understood how afterthought in November 1948 might have suggested to the Union the propriety of making ineffective the closed-shop clause negotiated a month earlier. Why the clause was continued without change in succeeding con- tracts is not quickly to be apprehended . But until March 1953, at least, there is no TANNER MOTOR TOURS, LTD. 285 evidence that the closed-shop condition was given effect and the testimony of Whited and Wilson is that it was not. It also is true that no matter what the agreement of the parties was on any date when contracts were signed, the execution of none of them mentioned in the complaint occurred within 6 months before the filing of a charge in this proceeding. Thus no unfair labor practice finding may be made based upon the fact that the contracts were negotiated and signed and the allegation in the complaint that the Respondent dominated and interfered with the administra- tion of the Union by entering into the agreement of October 17, 1952, must fail. It is nowhere alleged in the complaint that the mere existence of a collective- bargaining contract between the Respondent and the Union which by its terms im- poses unlawful restraints upon employees constitutes an unfair labor practice although there is considerable support in Board decisions for that contention? The position of the General Counsel (not voiced in this record) may be that an allegation of un- lawful assistance to the Union by "abiding by the agreement" is a sufficient predicate for a finding of unlawful restraint. There is no dispute as to the language incorpo- rated in the contract in effect to September 1953 and the Respondent was on notice that the General Counsel, because of the union-security provision, asserted the con- tract to be an unlawful one. Whether the Act was violated by the existence of the contract or by "abiding" by it, or both, would seem to be an academic consideration as long as "existence" is unquestioned. Respondent's defense even if established, that the clause was not given effect does not exculpate it. As the Board said in the Port Chester decision, supra: We agree with the Trial Examiner that the Respondent Company and the Respondent Union respectively violated Section 8 (a) (1) and 8 (b) (1) (A) of the Act by retaining an unlawful closed-shop provision in their contract, which they neither intended to, nor did in fact, enforce. Such an unlawful provision serves no less as a restraint on employees' right to refrain from joining an organ- ization than if the parties intend to enforce it where, as here, there is no evidence that the employees were informed that the closed-shop clause, which theretofore had been in effect, would no longer be operative. There is no evidence that the employees of the Respondent were informed that the closed-shop provision was not effective in 1953. There is evidence, set forth above, in the testimony of Morphus, that they must join the Union after hire in order to re- tain employment I find that by the existence of the closed-shop language in the contract of Octobei 17, 1952, the employees of the Respondent on and after De- cember 11, 1953,3 were subjected to an unlawful restraint and that by the existence of the agreement the Respondent interfered with, restrained, and coerced its employees in the exercise of their right to refrain from joining the Union in violation of Section 8 (a) (1) of the Act. The next question to arise concerns the allegation that the Respondent abided by the offending language in the union-security clause. Principally involved is the termi- nation of the employment of the Charging Party, Tim Warner, but of importance too is the testimony of Morphus that drivers were under compulsion to join the Union after 30 days' employment and the assertion (or admission) of Respondent's counsel that union-shop conditions prevailed. For a short time in 1951 Warner worked for the Respondent as a driver and in early 1953 was rehired in the same capacity. At one time Warner had been a member of the Union but sometime before his last employment with the Respondent had transferred his membership to a sister local, one not having any contractual relation with the Respondent. According to Warner, on the evening of March 2, 1953, at the conclusion of his day's work, he noticed that he was not on the assignment list of drivers who were to report for work the next day. Warner asked Jack Hamar, a driver and then assistant dispatcher, why he was not listed. Hamar answered that he had been ordered to take Warner's name off the assignment sheet until the latter "got straightened out" with the Union. The next morning, still according to Warner, he went to the union hall and then, returning to Respondent's place of business, reported to Morphus that the Union had refused to accept his transfer of membership. Morphus answered that he could do nothing and suggested that Warner speak to Whited. Warner testified that as best he recalled, he told Whited that the Union had taken him off the job and that Whited sent him on to see Sidney Epstein, Respondent's branch manager. To Epstein, Warner again said that the Union had taken him off the job and had refused to accept his transfer of member- 9 Port Chester Electrical Construction Corporation, et at., 97 NLRB 354, 355 ; Jandel Furs, 100 NLRB 1390, 1391 8 The beginning of the 6-month period antedating service of the charge. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship . Epstein replied, still in the words of Warner , that there was nothing he could do, that Epstein could not chance having a picket line about the garage by putting Warner back to work. Hamar testified that on March 2, when he was assistant dispatcher, Morphus told him to remove Warner's name from the seniority roster until further notice. Hamar asked for a reason and was told by Morphus that Warner was having trouble with the Union . Hamar complied with Morphus' direction , the result of which was to deprive Warner of further employment with the Respondent. Whited testified that he recalled talking to Warner on one occasion when the latter was attempting to get work with the Respondent but denied any recollection of discussing with Warner any difficulty which involved the Union Epstein testified that he knew nothing about Warner's termination , that discharges are subject to his approval, that no one mentioned to him that Warner was being discharged, and denied flatly that Warner had spoken to him about a discharge or that he ever mentioned the possibility of a picket line to Warner Morphus testified that on March 2 he gave Hamar a message to be relayed to Warner that the latter should communicate with the Union . Upon receipt of this message, according to Morphus , Warner asked , and was granted time off the next morning to see someone at the union hall. The next morning, Morphus testified. Warner telephoned to say that he was resigning; that his prospect for continued employment with the Respondent did not extend beyond a few weeks and it thus would be impracticable for him to transfer into the Union for that short period Morphus denied that he discharged Warner. The conflict in testimony is sharp and it is obvious that if Warner and Hamar are telling the truth , some of Respondent's witnesses are not. Warner, Whited, Morphus, 'and Epstein have an interest in the outcome of this litigation and their testimony must be scrutinized with that in mind. No such interest as a basis for possible bias exists as to Hamar. I am not satisfied, because of the phrasing of his testimony, that Warner has a clear recollection of advising Whited concerning his difficulty with the Union. For that reason , I do not find that Whited was advised on March 3 by Warner that the latter had been taken off the job by the Union . That there was some question concerning a transfer into the Union by Warner appears in the testimony of Secretary -Treasurer Wilson. According to Wilson, he understood that Warner was resisting making a transfer into the Union but that this occasioned no real difficulty for the transfer could have been made without Warner 's consent This tends to establish that the Union may have placed some importance upon the question of transfer but it does not constitute evidence that the Respondent did. One point evidenced in the testimony of both Warner and Morphus is that Warner believed that he must transfer in order to continue working and that Morphus either shared that belief or refrained from telling Warner that it was erroneous 4 Because of the impressions gained in observing the witnesses as they testified, because I cannot credit the explanation of Morphus , and because of the apparent disinterest of Hamar in the resolution of the question, I credit the testimony of Hamar and Warner to the effect that Warner was discharged 5 and that his discharge 4 The testimony of Morphus contains some inconsistem ies and improbabilities which tend to detract from the credit it might otherwise merit. On direct examination , Morphus said that he had no recollection of talking to Warner concerning the reason for the latter taking time off on the morning of March 3 but asserted that Warner was given permission to do so On redirect , lie said that Warner asked for time off in order to see "them ," mean- ing the Union The chionologv of events is such that it is almost certain that Warner made no request of Morphus in that connection but probably did so of Hamar , Morplius having left the garage on the evening of March 2 before Warner repotted in at the end of his day's work Although Morplius testified that Wainer quit at about 11 a in on March 3, no explanation was offered by Morphus concerning the omission of Warner's name from the list of work assignments foi that day The list was prepared on March 2, Morphus testified that either lie or 1-lanmr made it, and if the latter , Morphus approved it The undisputed testimony of Warner and Damar is that on the evening of March 2, Warner's name was not listed 5 Testiinon } by Warner that after his discharge lie was required to wait for unemploy- ment compensation only for that peuod applicable to a discharged employee rather than 'fot the longei period obtaining foi those who have quit or have been discharged for cause, has been considered along with the countervailing testimony of Respondent's controller, William Knight , that the Respondent was never notified by the California Department of Employment of any claim on the pait of Warner that the latter had been discharged The opposing inferences which might have been drawn in these circumstances are, in my opinion, predicated upon speculation to such an extent as to suppoi t no conclusion TANNER MOTOR TOURS, LTD. 287 was occasioned by the fact that he was in some sort of dispute with the Union. There is no evidence that the Union requested the Respondent to take such action but nothing turns on that point. I believe that Epstein , despite his denial, told Warner that his continued employment might result in picketing by the Union and that this fear motivated the discharge . Whether Morphus made the discharge on his own initiative or after consultation with Epstein is of no moment . Morphus effectively deprived Warner of employment by causing the removal of his name from the roster If the Respondent and the Union were on March 2 parties to a valid union-shop contract, the discharge might have been justified But they were not. Either the closed-shop provisions of the 1952 contract were in effect or they were not. If they were, which Respondent denies, then the provisions were unlawful and could not justify the discharge . If they were not, then there was no union-security agreement which could serve to validate a discharge for failure to have union membership No matter which of these two situations existed the discharge of Warner because he was not a member of and could not transfer into the Union was an act of assistance to the Union which in the circumstances given , the Act forbids. I find that Warner was discharged by the Respondent on March 2, 1953 , because he was not a member of the Union , that on that date there was in existence no valid union-security agreement permitting or requiring such a discharge , and that by the discharge the Respondent encouraged membership in the Union in violation of Section 8 ( a) (3) of the Act. By the discharge of Warner for nonmembership in the Union , the Respondent con- tributed support to the Union and thereby violated Section 8 (a) (2) of the Act By the discharge of Warner , by contributing support to the Union, and by being a party to and permitting to exist a collective -bargaining agreement containing un- lawful union-security provisions , the Respondent has interfered with, restrained. and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby violated Section 8 (a) (I) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IIi, above , occurring in con- nection with its operations described in section 1, 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 obstructing commerce and the free flow thereof. V THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices. it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respond- ent discriminated in regard to the hire and tenure of employment of Tim Warner, it will be recommended that Warner be made whole for any loss of earnings suffered because of his discharge and that the Respondent offer to him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges Loss of earnings shall be computed on a quarterly basis in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289. Having found that the Respondent has unlawfully assisted the Union and has for a period of time subsequent to December 11, 1953 , remained a party to and per- mitted the existence of a collective -bargaining contract containing unlawful union- security provisions , it will be recommended that the Respondent cease and desist from contributing such support to the Union As it appears that the contract containing the unlawful union-security provisions is no longer in effect, it will be recommended that the Respondent refrain in the future from entering into any such agreement with the Union except in conformity with the provisions of the Act Upon the basis of the foregoing findings of fact , and upon the entire record in the case , I make the following CONCLUSIONS OF LAW 1. Chauffeurs' Union , Local 640, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. By discharging Tim Warner because he was not a member of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (3) of the Act 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By that discharge the Respondent has contributed support to the Union named in paragraph numbered 1, above, and has thereby violated and is violating Section 8 (a) (2) of the Act. 4. By the discharge, by the contribution of support, and by being a party to and permitting the existence of a contract containing unlawful union -security provisions, the Respondent has interfered with , restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Carpenter Baking Company, Inc. and Bakery & Confectionery Workers Local Union No. 205 of The Bakery & Confectionery Workers International Union of America , AFL, Petitioner. Case No. 13-RC-4185. April 19,1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Joseph Cohen, hearing officer. The hearing officer's rulings made at the hearing are free from prejudi- cial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act.' 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. On December 17, 1954, the Petitioner filed the petition in this pro- ceeding requesting a production and maintenance unit. At the hear- ing the Employer agreed with the Petitioner that only a production and maintenance unit is appropriate. International Union of Operating Engineers, Local 311, AFL, referred to herein as Operating Engineers, intervened and requested a separate unit of all maintenance depart- i The Employer is engaged at its Milwaukee, Wisconsin, plant in the manufacture and wholesale of bakery goods During the first 20 weeks after the Employer purchased the plant in July 1954, it bought supplies which were shipped direct to it from out of the State valued at $299,366. On the basis of this figure projected over a 1-year period, the Employer estimates its yearly out-of-State purchases as $778,352. We therefore find, con- trary to the contention of Bakery Sales Drivers Local Union No. 344, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein re- ferred to as Teamsteis, intervenor, that the Employer is engaged in commerce and it will effectuate the policies of the Act to assert jurisdiction. Jonesboro Gratin Drying Coopera- tive, 110 NLRB 481. 112 NLRB No. 42.