Los Angeles County District Council of Carpenters

LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS 43 Atlas and Clarksburg together constitute a single employer within the meaning of Section 2 (2), and that a single unit of the office clerical -employees of both companies is alone appropriate. The sole remaining issue concerns the inclusion of the production scheduler, whom the Employers would exclude as a managerial em- ployee. This individual receives production schedules of IIazel- Atlas from the main office at Wheeling, West Virginia, and fits them into the operations of its Lancaster plant. He keeps the main office informed of the daily progress of production and advises it of antici- pated delivery dates of the finished products. His work requires him to deal directly with the plant superintendent and other supervisors in the production departments. He issues production instructions to foremen in the plant and is responsible for the scheduling of produc- tion, including determinations as to the machines to be used therefor. He receives $380 a month. His immediate supervisor is the chief clerk. He works the same hours and in the same room as the office clerical employees, except `then he goes into the plant to check on production. The Board does not regard the function of scheduling material through a plant as necessarily supervisory or as an essential function of management, even though the schedules are mandatory on the plant foremen. This is particularly true where, as in the instant case, the scheduling employee appears to have interests in common with the office clerical employees.' Accordingly, we find that the production scheduler is not a managerial employee within the meaning of the Act, and we shall therefore include him in the unit. We find that all office clerical employees of Hazel-Atlas Glass Co. and Clarksburg Paper Company at their Lancaster, New York, plants, including the production scheduler, but excluding production and maintenance employees, professional employees, guards, all other employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] I The Firestone Tire and Rubber Company, 13 NLRB 691. Los Angeles County District Council of Carpenters , United Brotherhood of Carpenters & Joiners of America, AFL-CIO 1 and Charles H. Crenshaw. Case No. 21-CB-636. January 10, 1956 DECISION AND ORDER On July 6, 1955, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, recommending 1 The AFL and CIO having merged we are amending the identification of the Union's affiliation. 115 NLRB No. 10. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the complaint herein be dismissed for lack of jurisdiction, as set forth in the copy of the Intermediate Report attached hereto. There- after, the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs. To the extent here material, the Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in-the case, and to the extent necessary hereby adopts the Trial Examiner's findings, conclusions, and recom- mendations. The General Counsel contends that there is sufficient basis for find- ing that the Employer, Ellinwood Corporation, is subject to the. Board's jurisdiction and that jurisdiction should therefore be asserted. As the record reveals no separate commerce data on the part of Ellin- wood, the only way in which Ellinwooc iay be made subject to the Board's jurisdiction is through its connection with the Home Builders Institute, an association of large-scale builders and home developers, which is hereinafter referred to as the Association. The only basis for asserting jurisdiction over the Association is the commerce of its members. Of these, the Trial Examiner was of the opinion that the commerce of Myers Brothers and Davies, Keusder & Brown was suf- ficient for jurisdictional purposes. We note, however, that the record does not clearly establish that the latter two concerns participated in multiemployer bargaining at the time the alleged unfair labor prac- tice was committed so as to afford a basis for the assertion of jurisdic- tion over the Association. Assuming, however, that the'record con- tains adequate evidence of commerce at the time of the commission of the alleged unfair labor practice, for taking jurisdiction over the As- sociation, we nevertheless agree with the Trial Examiner's conclusion that the evidence in the case does not preponderate in favor of a finding that Ellinwood had in any manner manifested an unequivocal intent at such time to participate in such multiemployer bargaining so as to warrant the assertion of jurisdiction over Ellinwood. On the basis of the entire record in the case, we find that the asser- tion of jurisdiction herein is not warranted, and we shall therefore dismiss the complaint in its entirety.2 [The Board dismissed the complaint.] 2Because we are dismissing the complaint upon jurisdictional grounds, we do not pass upon the merits of the unfair labor practice charges INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding involves an alleged violation of Section 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended, herein called the Act, by Los LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS 45 Angeles County District Council of Carpenters, United Brotherhood of Carpenters & Joiners of America, AFL, herein called the Carpenters , in that the Carpenters caused Ellinwood Corporation , herein called Ellinwood, to discharge Charles H. Crenshaw for reasons other than the nonpayment of union dues or initiation fees. A hearing on the duly issued complaint of the General Counsel of the National Labor Relations Board, the latter herein called the Board, was held before a designated Trial Examiner in Los Angeles, California , on May 2, 3, 4 and June 13 and 14, 1955, at which times all parties were represented by counsel , were permitted to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to engage in oral argument upon the record , and to file briefs with the duly designated Trial Examiner. There was argument upon the record and all parties waived the filing of briefs. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE LABOR ORGANIZATION INVOLVED The Respondent Carpenters is a labor organization within the meaning of Section 2 (5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Crenshaw, long affiliated with the Carpenters , was expelled from that organization on July 12, 1954, on the charge of causing dissension among its members. On June 22 he had paid his dues covering the month of July. In late July, after his expulsion from the Carpenters, he made a timely and appropriate tender of dues to the Carpenters and was refused . In the forenoon of August 2, while engaged in car- penter work for Ellinwood , Crenshaw was approached by Kearns , an agent of the Carpenters District Council ; Overstreet, a representative of a local of the Carpen- ters; and Johnson, a foreman of Ellinwood . Kearns told Crenshaw to leave his job and when Crenshaw refused, turned to Foreman Johnson and said, "All right, fire him." Overstreet told Crenshaw that this was the action of the District Council and not of the Local which Overstreet represented. Crenshaw continued to work until about 11 a. m . when the timekeeper presented him with his check. Crenshaw then left the job. On August 4, the business agent of the Local called him and told him that he could return to his job with Ellinwood. Crenshaw replied that he would first have to "investigate," or see his lawyer. On that same afternoon, or the following afternoon , Crenshaw received a letter from the District Council notifying him that pending a decision on his appeal from his expulsion from the Carpenters , he would be permitted to pay his dues and resume work. The same afternoon that he received this letter, Crenshaw visited the Car- penters' office, paid his dues, and on the following morning returned to his job at Ellinwood. Our inquiry stops here because there is no allegation of further unfair labor practices.' It is clear from the foregoing that the Carpenters caused Crenshaw to be removed from his job, for while no words of discharge appear to have been uttered by Ellin- wood, Ellinwood's action in having Crenshaw's time computed and his check issued shows acquiescence in the Carpenters ' demand. Provided the Board has jurisdiction, it is clear that the Carpenters ' action in causing Ellinwood to discharge Crenshaw was violative of the Act, as alleged, because ( 1) it is not shown, as a matter of de- fense, that there was a valid union-shop agreement in existence between the Car- penters and Ellinwood ; and (2) assuming there was, Crenshaw's discharge was caused by reasons other than his failure to tender "periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." ' The explanation proffered by Respondent 's attorney that the whole incident was due to a "misunderstanding ," in that at the time Crenshaw 's tender of dues was re- fused and he was required to leave his job, the Respondent did not know that he had appealed his expulsion from the Carpenters and that upon learning of his appeal his reinstatement on the job was permitted , while interesting does not of course constitute a defense , unless we are persuaded by it and attendant circumstances r The Respondent presented no witnesses and therefore these findings are based on the undisputed testimony of the General Counsel's witnesses, which I have found to be credible. I do not, however, agree with the General Counsel's representative at the hear- ing that undisputed testimony must, perforce, be credited "This is an ancient fallacy which somehow persists despite the courts' nunierous rulings to the contrary " AT L B B. v Howell Chevrolet Company, 204 F 2d 79 (C A 9). 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD established in the evidence that we are here dealing with an isolated incident which threatens neither repetition nor multiplication and is itself so remotely related to commerce that the maxim de minimis is properly applied. M. DE MINIMIS? I know of no case in which the de minimis doctrine 2 has been applied to unfair labor practices with respect to their effect on commerce. In one of the earlier cases arising under the Act the Supreme Court said, "Examining the Act in the light of its purpose and of the circumstances in which it must be applied we can perceive no basis for inferring any intention of Congress to make the operation of the Act de- pend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis." N. L. R. B. v. Fainblatt, 306 U. S. 601. Therefore, theoretically at least, there exists, or could exist, an area in which the maxim de minimis would be applicable with respect to the Board's jurisdiction. In language noted from the Fainblatt case, the court was primarily concerned with the volume of the respondent's business as affecting commerce, but in later cases the nature and scope of the labor dispute itself were weighed with respect to impact on commerce and, where the labor disputes as isolated phenomena were of doubtful impact, the courts observed that "the power to regulate is not lost because of the small size of any individual contribution" 3 and "The power to protect . . . may be exercised [where] the activities . . when multiplied into a general practice . could reasonably exert adverse effect calling for preventive regulation." United Brotherhood of Carpenters & Joiners of America v. Sperry, 170 F. 2d 863 (C. A. 10). Following this reasoning, an unfair labor practice giving rise to, or tending to give rise to, a labor dispute, no matter how small its dimensions, may fall within the Board's jurisdiction if it is susceptible of being "multiplied into a general practice" which would exert an adverse effect upon commerce. It is noted that the Board's decisions uniformly recite that the found unfair labor practices, regardless of their scope or the isolated character of their occurrences, "tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce," even in situations where the milieu in which they occur is a local operation, without proven effect on commerce, though linked by ownership with the respondent's overall operations which, considered in their entirety, affect commerce within the meaning of the Act. Paul W. Speer, Inc., 94 NLRB 317, 318, and cases cited therein. In short, in asserting jurisdiction it appears that the Board looks to the combined business interests of the employer for their effect on commerce, and if the jurisdic- tional standards are there met, it is assumed that the unfair labor practice, regard- less of its scope and character, tends to lead to labor disputes "burdening and obstruct- ing commerce and the free flow of commerce." In this context it is difficult to visualize a situation in which the maxim de minimis, as applied to an unfair labor practice, would lie so as to deprive the Board of jurisdiction. Certainly, it would not apply here, for though we are dealing with a single isolated offense, without any attending circumstances to indicate that it either followed or would likely give rise to a "pattern" of unlawful conduct,4 if left unremedied the potential of repetition and multiplication is inherent in the situation. Apparently, this is all that is required. While the de minim is maxim has not, so far as I know, been applied to unfair labor practices with respect to their effect on commerce, there is a growing body of cases in which the Board, because of the "isolated" character of the incident alleged to constitute an unfair labor practice, finds that no remedial measures need be taken in order to effectuate the policies of the Act, and accordingly dis- misses the complaint. This might be called, I suppose, an application, by analogy, of the de mimmis maxim. In Gillcraft Furniture Company, 103 NLRB 81, 82, the Board found that a foreman's statement to an employee, binding upon the employer, that the employer had said he would shut down his business or move it in event the employees became organized, was violative of Section 8 (a) (1) of 3 "De minimiis in the law has always been taken to mean trifles-matters of a few do]- Jars or less." Suburban Lumber Company, 121 F. 2d 829, 832 (C. A. 3), cert. denied 314 U. S 693 3 Shore v. Building & Construction Trades Council, 173 F. 2d 678 (C. A. 3). 4 There is no evidence that the labor organization involved had engaged in, or would be likely again to engage in, conduct of the same or like character, and the haste with which it corrected its "mistake" gives some coloration of authenticity to counsel's statement that Respondent's action was due to a "misunderstanding." - LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS 47 the Act, but that the incident being of an "isolated character"-i. e., there being no other unfair labor practices found-it would not effectuate the policies of the Act to issue a remedial order. The Board did not in that case, nor has it in earlier and later cases of the same category, explained just why and wherein a remedial order fails to effectuate the policies of the Act where there is a proven infraction, and therefore we are left to our own resources in accounting for this phenomena and the de minimis doctrine comes in handy for that purpose. I had thought that equities peculiar to the Gillcraft case, such as the fact that the employer never made the threat attributed to him by the foreman in question, ex- plained the finding that no remedial action was required, but in a more recent case the Board, while finding that a threat made by an employer's president to one of its employees that the latter would be discharged if he engaged in concerted activities, was violative of the Act, because of the isolated nature of this remark "it would not serve any useful purpose to issue a cease and desist order based thereon." Atlas Storage Division, P ct V Atlas Industrial Center, Inc., 112 NLRB 1175, citing The Frohman Manufacturing Co., Inc., 107 NLRB 1308, 1315. Unless we are to assume that there are mitigating circumstances peculiar to this case also- and it is an assumption that I do not make-it now appears that an employer may with impunity threaten an employee with discharge if he avails himself of privileges guaranteed in Section 7 of the Act, provided he makes the threat only once and to only one employee and does not engage in other unfair labor practices. I had thought otherwise when I recently recommended a remedial order directed at a labor organization whose sole alleged and proven offense was a threat by its business agent that employees who passed through its picket line to their jobs in a certain plant would be denied employment elsewhere where the labor organiza- tion involved had established contractual relationships.5 Had I had the Atlas decision before me at the time I might probably have concluded that no remedial order was required, for the business agent had no authority to carry out his threat, such as was vested in respondent's president in the Atlas case, but as stated in my Intermediate Report in the case, "The most that he could do would be to petition the parent body of the Local to take action coextensive with his threat, and before that body it is assumed that his recommendations would carry weight much in the manner of a minor trusted supervisor of an employer." 6 Otherwise, the chief difference in the two cases is that in one the threat was made to only one employee, whereas in the other it was directed against an assemblage of employees, but I have never supposed, and do not now assume, that a threat to deprive an employee of his rights under the Act loses substantiality merely because it is addressed to a single employee.? Under such an assumption, and a logical extension of it, an individual employee would have no rights under the Act and that could hardly be said to represent the intent of Congress. The preceding discussion, which may appear meandrous, is actually an attempt to isolate the "isolated incident" doctrine the better to understand its implications, for although I know of no Board decision in which it has been applied to respond- ent labor organizations this is of course mere happenstance. As we all know "what's sauce for the goose is sauce for the gander," 8 and, by the same token, "what's sauce for the gander is sauce for the goose." And the isolated incident doctrine has, in fact, been applied by a court to absolve a labor organization from the condemnation of a remedial order. In such a case the court in denying enforcement of the Board's order because it, the court, found only an isolated incident established, said: "Even if this isolated incident did occur, to predicate a cease and desist order upon it is to magnify the inconsequential to the point where the action became an abuse of discretion." [Emphasis supplied.] N. L. R. B. v. Amalgamated Meat Cutters etc., Local 127, 202 F. 2d 671 (C. A. 9). Unfortunately, perhaps, in a given case opinions as to what is inconsequential may well differ, but that is one of the reasons why we have reviewing bodies, and in this decision we are at least furnished a criterion for determining what properly constitutes an isolated incident requiring no remedial order. 5 Lumber and Sawmill Workers Union, Local No 2892, et al, Case No 20-CB-343 (not reported in printed volumes of Board Decisions and Orders) The Trial Examiner's recom- mendations weie complied with 6 An inquiry germane to the substantiality of the threat Iloiievei, only on a multiple employee theoiy can Rupp Equipment Company,' 112 NLRB 1315, be distinguished from Atlas in its "CB" aspects 8 N L R B v Peter Cailler Kohler Swiss Chocolates Co, 130 F. 2d 503, 506 (C. A 2) ; Davis Fun nitui e Company v N L. R B, 205 F 2d 355 (C A 9). 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus far, all cases applying the isolated incident doctrine that I have noticed have involved words and no acts,9 but this does not necessarily define the doctrine's limitations, for we have it on respected authority that the old adage "sticks and stones may break my bones, but words will never harm me" is more expressive of "childish bravado than manly truth," and, depending "upon the intrinsic worth of the ideas they express, words . . . may be powerful weapons in the struggle for the minds of men." 10 We may assume, therefore, that isolated acts also can find immunity from a remedial order though violative of the Act, provided their character is such that the Board concludes that "it would not serve any useful purpose to issue a cease and desist order based thereon." Does the incident here involved fall into this category? I think not. Whatever may be one's personal views on applying the costly and sometimes cumbersome machinery of governmental regulation to an offense which in its monetary aspects involves no more than 2 or' 3 days' back pay, I think the breach of public policy enunciated by the Act is substantial and, whether due to a misunderstanding or otherwise, requires a remedial order, providing juris- diction is established. IV. JURISDICTION The jurisdictional base, if any, is Ellinwood's affiliation with The Home Builders Institute, hereinafter HBI. HBI is a trade association of large-scale home builders and land developers, with a membership consisting of individuals, partnerships, and corporations. There are approximately 135 "builder" members." On or about November, 1953, HBI's board of directors passed a resolution authorizing HBI to negotiate a master labor agreement applicable to its builder members. The board of directors is HBI's governing body vested with authority, it appears, to bind its members. In directing the negotiation of a master labor agreement, however, the board of directors specifically provided that written author- izations by its builder members be executed as a condition precedent to making such builder members parties through the HBI to such master labor agreement. In short, while presumably the authority of the board of directors was sufficient for it to have negotiated a master contract binding on all its builder members without their spe- cial authorization, it saw fit not to exercise its full authority but to make it optional with its builder members whether or not they designated the HBI, in their behalf, to negotiate such a labor agreement and bind them by it. On or about March 1954, the HBI, together with several other trade organizations, began contract negotiations with various labor organizations representing employees of the building trades, including the Carpenters, and an agreement was reached on or about August 1. The contract was actually executed on August 17 but was dated May 1, presumably being given retroactive effect to that date. HBI had not been a party to any prior master labor agreement nor had it previously negotiated with any labor organization for its members, though most of its builder members may have been, and very likely were, covered by labor contracts individually ne- gotiated and executed with various labor organizations. Coming now to the matter of jurisdiction, the Board will assert its jurisdiction over a member of an association through the business of that member alone does not satisfy the Board's money formula for asserting jurisdiction, where the associa- tion is functioning on behalf of its members, including the member charged with unfair labor practices, in the capacity of employer vis-a-vis a labor organization, and its members in the aggregate are engaged in commerce in an amount that satisfies the Board's formula. In other words, the Board will consider "all association mem- bers who participate in multiemployer bargaining as a single employer for jurisdic- tional purposes." [Emphasis supplied.] Insulation Contractors of Southern Cali- fornia, Inc., et al., 110 NLRB 638, and cases cited therein. Obviously, in this line of cases, membership in an association or society, such as the SPCA-to engage in a reductio ad absurdum-does not confer jurisdiction over the offending member merely because the business of the members in the aggregate satisfies the jurisdic- tional formula. To go beyond the business of the employer charged with the un- fair labor practice for a jurisdictional base, the association with which he is affiliated ° 1 (1o not refer to that category of cases where remedial measuies have been modified or omitted because of misconduct of those who would benefit thereunder i°Renraiks of Guy Farmer, Chan man, before the New York School of Industrial and Labor Relations, Cornell University, Ithaca, New York, by press release dated April 13, 1955. In addition to builder members , HBI has associate members such as suppliers and manufacturers LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS 49 must be engaged in "multiemployer bargaining as a single employer " and the mem- ber employer charged with the unfair labor practice must be a participant in the said multiemployer bargaining. Here, we are afforded no evidence on the amount and scope of Ellinwood's business and therefore there is no basis for asserting jurisdiction over it as an indi- vidual employer, or of assuming that the Board, has, or had, at any time, such jurisdiction. If the Board has jurisdiction it is because, inter alia, certain members of HBI other than Ellinwood singly or in the aggregate are engaged in commerce to a degree that satisfies the Board's formula. That that is the fact I have no doubt. 12 The matter then to be determined is whether Ellinwood, at times material herein, participated in HBI's multiemployer bargaining at such times as to justify the application of the Board's jurisdictional formula. Ellinwood's president and principal stockholder is Harry Kissel. He is also the president and principal stockholder of numerous other enterprises devoted to home development and construction work. On June 25, 1953, under the firm name of Seaboard Construction Corp. and over his signature, he applied for membership in HBI. This application was accepted. At that time Seaboard Construction Corp. was his principal business. At some later date, not developed in the evidence, Ellinwood came into existence and in 1954 it was Kissel's principal construction enterprise. The evidence is somewhat sketchy as to whether Ellinwood was ever a member of HBI, and there is no documentary evidence that it was, although there is no question that Kissel, as an individual, was a member from the date of his initial application. George O. Prussell, executive vice president of HBI, declined to testify from memory that Kissel was a member under the firm name of Ellinwood and no documentary evidence was sought, while Kissel himself repeatedly testified that his membership was in his capacity as an individual.13 At one point, however, he admitted that he considered himself with his "whole operation" in the HBI for the purpose of furthering his building operations, and as will be seen hereinafter, when in April 1955 he signed an authorization for the HBI to negotiate a master labor agreement he signed as an individual only, though obviously in doing so he intended to have the contract apply to his building operations. It seems only reasonable and commonsensical to infer, as I do, that it was in his capacity as president and principal stockholder of Ellinwood and his other construc- tion enterprises that Kissel was affiliated with HBI. Accordingly I find that at all times material herein Ellinwood was a "builder member" of HBI. The question that remains is whether Ellinwood was a member under such circumstances that the Board may rely on the business operations of members other than Ellinwood in asserting jurisdiction, and it may so rely only if during an appropriate period Ellinwood was participating in multiemployer bargaining conducted by HBI. 12 The evidence established that Myers Brothers, general contractors affiliated with HBI, engaged in multistate operations and during 1953 and 1954 were engaged on a construc- tion project at the Davis-Monthan Air Force Base in Tucson, Arizona, at a contract price in excess of $600,000 Respondent's counsel objected that it was not shown that the con- tract price was actually paid out of Government funds, but I think that is reasonably Inferred from the contract itself, executed on behalf of the Government by the Contract- ing Officer of the United States Corps of Engineers. Inasmuch as this was a joint venture by Myers Brothers and another construction firm, the exact amount of Myers Brothers' involvement in the contract is not ascertainable from the evidence, but it is reasonably assumed that it was substantial The evidence further established that Davies, Keusder i&a Brown, HBI member, during a period appropriate to the matter of jurisdiction, engaged- in construction for the Douglas Aircraft Company, in the State of California, at a con- tract price of approximately $1,800,000, and that the Douglas Aircraft Company is a multistate operation which during 1954 shipped in excess of $100,000 in value of parts from its California plant to purchasers outside the State. By these two items alone, or either of them, the Board's formula for asserting jurisdiction over members of HBI at such times as HBI was engaged in multiemployer buying on their behalf, is met. 13 "More or less," Kissel testified, "my affiliation is an individual to get together with other builders and find out what they are doing and it may help my own operations bet- ter by knowing what's doiicg as a group. Moi o or less like any-other trade association I would assume, get together at, the monthly meetings and talk to builders. . . . Get me literature from the Association, The Washington Letter, different bulletins that keel) vie posted, and what's going on in regard to V A. Housing, FHA Housing" Obviously, HBI was not in business for the sole or necessarily principal purpose of bargaining for its members. Cf. Insulation Contractors, supra 390609-56-vol 115-5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There was one way, and only one way, in which Ellinwood could participate in the multiemployer bargaining of HBI which began about March 1954 and culminated in a contract dated May 1, 1954 (but actually executed August 17, 1954), and that was by signing the authorization provided by HBI's governing body. Such an authoriza- tion was executed by Kissel on April 4, 1955, and I have found that Ellinwood was covered by such authorization. If there was a prior authorization, oral or otherwise, or an understanding of the parties that Ellinwood' was bound by the master labor agreement of August 17, 1954, or was in fact bound at any time prior to April 4, 1955, there is no evidence of it. True, Kissel testified that he had dealt with the Carpenters on behalf of his employees since 1950, but, obviously, prior to the negotiation of the master agreement by HBI in 1954 such dealings did not involve HBI, and so far as we are permitted to know from this record, HBI was in no way involved in Ellin- wood's contractual arrangements with the Carpenters, if any, at any date prior to April 4, 1955. So far as we know, Ellinwood's individually negotiated contracts with the Carpenters may have been effective and controlling until that date. It is imma- terial that the master labor agreement executed August 17, 1954, was or may have been given retroactive effect to May 1, the date appearing on the contract, because this is not shown to have in. any way involved Ellinwood during a period prior to Ellin- wood's execution of the April 4 authorization. It is also immaterial that HBI's gov- erning body had the authority to bind Ellinwood to the master contract, without Ellinwood's specific consent, because it did not exercise that authority. The jurisdictional issue is thus narrowed and sharpened to this proposition: Can the Board make Ellinwood's participation in the multiemployer bargaining of HBI, initiated by Kissel's authorization dated April 4, 1955, relate back to August 2, 1954, the date on which the alleged unfair labor practice occurred, in such manner as to use the business operations of members of HBI other than Ellinwood as a basis for asserting jurisdiction. I think it can not. It must be borne in mind that there is not a scintilla of evidence that Ellinwood itself is or ever was engaged in commerce within the meaning of the Act. As previously stated, we can only assume therefore that the Board has not nor ever has had jurisdiction over Ellinwood as an entity separate and distinct from HBI. When the incidents here complained of occurred, insofar as we are concerned Ellinwood's business had no effect on commerce within the meaning of the Act. The incidents complained of could not therefore have constituted an unfair labor practice unless by some legerity in the application of legal formulas with which I am not acquainted and could not in any event understand, what was lawful when it occurred became unlawful 8 months later because Ellinwood then elected to become a part of HBI's multiemployer bargaining. I see no analogy between this case and the multitudinous cases in which the business of employers fluctuates in its effect on commerce so that as a matter of practical ad- ministration the Board is required to look at a representative period of operations in determining the matter of jurisdiction. Paul W. Speer, Inc., supra. A truer analogy would be presented in a situation where an employer regularly and wholly engaged in a business which does not affect commerce, commits certain acts which if jurisdiction existed would be violative of the Act, some 8 months later so expands his business operations or acquires such additional interests that for the first time the Board's jurisdictional standards are met, and is then charged with an unfair labor practice based on the earlier incidents. If the Board has asserted jurisdiction in such situa- tions the cases have escaped my notice. Of course it is possible to argue that inasmuch as Ellinwood chose ultimately to bind itself to an agreement which was being negotiated, or had been negotiated at the time the alleged unfair labor practices occurred, jurisdiction may run with the con- tract and relate back to the period of its negotiation, on the theory that HBI was then acting as an employer for all its members, whether or not they had actually signed the required authorizations. To adopt such a theory, however, it would be necessary to regard the authorizations as a mere formality, without substance, but if that is the fact its evidentiary basis is dehors the record of this proceeding, with the possible qualification that the master labor agreement itself purports to have been executed by HBI on behalf of all its "eligible" members. I think under the evidence of this case this language can no more than establish the intent of binding all members of HBI upon their respective executions of the authorization§. In short, and insofar as jurisdiction is concerned, I think the situation here is precisely as if Ellinwood had no affiliation whatever with HBI prior to and until April 4, 1955, at which time Kissel signed the authorization and thereby became a participant in HBI's multiemployer bargaining.