Union Taxi Corp.

814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact , and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act. 2. Local Union 415, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as above found, the Respondent has engaged in unfair labor practices in violation of Section 8(a)( I) of the Act. 4. Respondent has not engaged in unfair labor practices in violation of Section 8(a)(5) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Board orders was made clear by the United States Supreme Court In N.L.R.B. v. Express Publishing Company, 312 U.S. 426, at 433: It would seem equally clear that the authority conferred on the Board to restrain the practice which it has found the employer to have committed is not an authority to restrain generally all the other unlawful practices which it has neither found to have been pursued nor persuasively to be related to the proven unlawful conduct . . . . We hold only that the National Labor Relations Act does not give the Board author- ity, which the courts cannot rightly exercise, to enjoin violations of all the provi- sions of the statute merely because the violation of one has been found. In a case decided as recently as July 25 , 1960, and In the face of the above decisions, the scope of the Board's order was Increased beyond the recommended order despite the fact that no previous unfair labor practices had been committed by the employer and there was no reasonable grounds for anticipating, on the facts of the case , that future violations would be committed. The caseload of the Board Is sufficient without provoking needless appeals and the issuance of orders which no court will enforce serves no purpose at all. Union Taxi Corporation and Wayne B. Lewis Teamsters Automotive & Chauffeurs Local Union No. 165 and Wayne B. Lewis. Cases Nos. 2O-CA-1586 and 20-CB-668. Feb- ruary 28, 1961 DECISION AND ORDER On February 12, 1960, Trial Examiner Maurice M. Miller issued Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(a) (1) and (3) and 8(b) (1) (A) and (2) of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent Union and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- 130 NLRB No. 97. UNION TAXI CORPORATION 815, tions of the Trial Examiner with the following additions and modifications. We agree with the Trial Examiner that Board should assert juris- diction herein. The Company operates about 70 to 80 taxicabs in and about Sacramento, California. It has by terms of a city ordi- nance been allotted public curb space for its exclusive use close to the Western Greyhound bus terminal in Sacramento. Also, through agreement with the Southern Pacific Railroad, it maintains a cab- stand at the railroad's depot and is granted the exclusive right to load passengers at the nearby curb. Western Greyhound and South- ern Pacific are interstate carriers. In view of the foregoing and es- pecially the franchise-type arrangements described above and the fact, as shown in the record, that Respondent Company's annual gross income is $500,000 or more annually, we find that its operations have a close and intimate relationship to interstate commerce and, conse- quently, affect such commerce within the meaning of Section 2(7) of the Act.' Further, we find that as the Company's operations meet applicable Board standards it will effectuate the policies of the Act to assert jurisdiction in this proceeding? THE REMEDY We agree with the Trial Examiner that the contracts between the Respondent Company and the Union contain union-security provi- sions establishing unlawful closed-shop and preferential employment conditions and that Respondents by maintaining and enforcing such provisions unlawfully encouraged or required employees to acquire and maintain union membership as a condition of employment. Under these circumstances we find, in further agreement with the Trial Examiner, that a Brown-Olds 3 type reimbursement remedy is appropriate .4 However, contrary to the Trial Examiner, we find that the reim- bursement remedy should take effect on August 19, 1958, the begin- ning of the 10(b) period,' rather than as he recommended, on October i See Superior Court v. Yellow Cab Service, 361 U.S. 373, reversing per curiam State v. International Brotherhood of Teamsters . etc, 333 P. 2d 924. 2 Carolina Supplies and Cement Co ., 122 NLRB 88. 8 United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating Corporation ), 115 NLRB 594, 598. 4 Although Member Jenkins concurs in the substantive findings of violations made by the majority , he does not agree for reasons stated in his separate opinion in Shear's Pharmacy, Inc, 128 NLRB 1417, that a Brown-Olds type reimbursement remedy is war- ranted under the facts of this case . Member Jenkins would, therefore, not apply a broad Brown-Olds remedy , but would limit reimbursement to the Charging Party, Lewis, and employee Richard Bragg, who , the record shows, were in fact coerced with respect to their employment rights and union membership in a manner proscribed by the Act. He therefore expresses no opinion with respect to those matters discussed below concerning a broad reimbursement remedy. 5 Section 10(b) of the Act provides that no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2, 1958, when the Board announced the adoption of revised jurisdic- tional standards,' which, unlike the previous standards, brought the Respondent Company within that group of employers over whom the Board would assert jurisdiction. In making its jurisdictional revi- sions in 1958, the Board announced that it would apply the new standards to all pending and future cases even though in unfair labor -practice cases the alleged misconduct may have occurred at a time when it would not have asserted jurisdiction over the company in- volved. The Board stated that it did not believe "that the mere fact -that a respondent had reason to believe by virtue of the Board's an- nounced jurisdictional policies that the Board would not assert juris- diction over it, gave it any legal, moral, or equitable right to violate -the provisions of the Act." I Consequently, we find no warrant for deferring the effective date of the reimbursement remedy until the date of the change in jurisdictional standards. Insofar as material here, the first contract between the Respondents, containing the union-security provisions found unlawful, expired on October 1, 1958. Not until January 16, 1959, did the Respondents enter into a new agreement-one which contained, however, union- security provisions identical to those in the expired contract. The Trial Examiner in effect recommended that reimbursement include the period from October 1, 1958, through January 15, 1959, during which period no contract existed. However, we find that this period of contractual hiatus should be excluded from the reimbursement coverage, for we do not believe that there is sufficient evidence in the record to support a finding that an unlawful arrangement existed between the Respondents as to all employees during that period or that the coercive effects of the expired unlawful union-security provisions -prevailed until the execution of the new agreement.' Our conclusion here does not apply, of course, to the right of the Charging Party or Richard Bragg to reimbursement of moneys paid the Union as a con- ,dition for union clearance necessary to employment, for even though such moneys were paid during the period of the contractual hiatus, specific coercion with respect to their exaction is clearly shown in the -record. Board and the service of a copy thereof upon the person against whom such charge is made . . . " The charges here were filed on February 17, 1959, and served on the other parties on February 19, 1959. 6 See Siemens Mailing Service, 122 NLRB 81. 1Id., at 84. See also, N.L.R.B. v. Pease Oil Company, 279 F. 2d 135 (C.A. 2) ; N.L.R.B. v. Guernsey-Muskingum Electric Cooperative, Inc., 2'85 F. 2d 8 (CA. 6). 8 The Trial Examiner recommended that the Union should be permitted to set off strike benefit payments and relief allotments against its reimbursement obligations. As all such payments and allotments were made during the period of the contractual hiatus and as we have found the reimbursement order should not cover this period, we do not adopt this recommendation, and therefore shall not provide for the recommended setoffs. Tn so concluding, we express no opinion as to whether or not such setoffs would under other .circumstances be appropriate. UNION TAXI CORPORATION ORDER 817 Upon the entire record in this proceeding and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent Company, Union Taxi Corporation, Sacra- mento, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Performing, maintaining, enforcing, or giving effect to its agreement of January 16, 1959, with Teamsters Automotive & Chauf- feurs Local Union No. 165 in respect to union security , or entering into, maintaining, enforcing, or giving effect to any extension, re- newal, modification , or supplement of the aforesaid agreement, or any superseding agreement with the said Union which contains a union- security provision, except one executed in conformity with the re- quirements of Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (b) Encouraging membership in Teamsters Automotive & Chauf- feurs Local Union No. 165 by discharging or suspending employees, or by refusing to hire applicants for employment because they are not members of the said labor organization, or because they have not been hired through the said labor organization, or because they have not obtained approval, clearance, or a job referral from it, or by dis- criminating against them in any other manner in regard to their hire or tenure of employment, or any other term or condition of their em- ployment, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (c) Interfering with, restraining, or coercing employees, or pros- pective employees, in any other manner in the exercise of their right to self-organization , to form, join, or assist labor organizations, to bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purpose of collec- tive bargaining and other mutual aid and protection , or to refrain from any and all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor -Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which, the Board finds will effectuate the policies of the Act : (a) Offer to Wayne B. Lewis immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to the seniority or other rights and privileges previously enjoyed by him. 597254-61-vol. 130-53 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Jointly and severally with the Respondent Union, make whole Wayne B. Lewis for any loss of pay he may have suffered by reason of the 'discrimination practiced against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," as modified by this Decision and Order. (c) ' Jointly and severally with the Respondent Union reimburse its present and former employees for all initiation fees, dues, assess- ments, and other moneys paid to Respondent Union as a condition of employment, liability therefor to begin 6 months prior to the date of filing and service of the charge against each Respondent and to ex- tend to all such moneys thereafter collected except as otherwise pro- vided in the Decision herein. (d) Preserve, upon request, and make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the rights of employment under the terms of this Order. (e) Post at its offices and those places where notices to employees customarily are posted copies of the notice attached hereto marked "Appendix A." 9 Copies of said notice, to be furnished by the Re- gional Director for the Twentieth Region, shall, after being duly signed by representatives of the Respondent Company, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices customarily are posted. Reasonable steps shall be taken by Respondent Company to insure that said not- ices are not altered, defaced, or covered by any other material. (f) Post at the same places and under the same conditions as set forth in (e), above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice herein marked "Appendix B." (g) Mail to the Regional Director for the Twentieth Region signed copies of the notice attached hereto marked "Appendix A" for post- ing by Respondent Union at its offices where notices to members and other persons using its facilities are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after be- ing duly signed by representatives of the Respondent Company, be forthwith returned to the Regional Director for such posting. (h) Notify the Regional Director for the Twentieth Region, in writing, within 10 days from the date of this Decision and Order, as to what steps it has taken to comply herewith. 0In the event that this Order Is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." UNION TAXI CORPORATION 819 B. The Respondent Union, Teamsters Automotive & Chauffeurs Local Union No. 165, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Performing, maintaining, enforcing, or giving effect to its agreement of January 16, 1959, with Union Taxi Corporation in re- spect to union security, or entering into, maintaining, enforcing, or giving effect to any extension, renewal, modification, or supplement of the aforesaid agreement, or any superseding agreement with the Respondent Company which contains a union-security provision, ex- cept one executed in conformity with the requirements of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) Causing or attempting to cause Union Taxi Corporation to discharge, suspend, decline or hire, or otherwise discriminate against employees or applicants for employment because they are not members of the respondent labor organization, or because they have not been hired through the respondent labor organization, or because they have not obtained approval, clearance, or a job referral from it, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959, (c) Restraining or coercing employees or applicants for employ- ment in any other manner in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Send written notice to Union Taxi Corporation, with a copy thereof furnished to Wayne B. Lewis, that it has withdrawn its objec- tion to the employment of the latter, and that it has no objection to his employment or that of any other person, based upon lack of mem- bership in, or lack of clearance from, Teamsters Automotive & Chauf- feurs Local Union No. 165. (b) Jointly and severally with the Respondent Company, make whole Wayne B. Lewis for any loss of pay he may have suffered as a result of the discrimination practiced against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," as modified by this Decision and Order. 820 DECISIONS OF NA?tlIONAL LABOR RELATIONS BOARD (c) Jointly and severally with Respondent Company reimburse present and former employees of Respondent Company for all initia- tion fees, dues, assessments, and other moneys paid to it as a condition of employment, liability therefor to begin 6 months prior to the date of filing and service of the charge against each Respondent and to extend to all such moneys thereafter collected except as otherwise provided in the Decision herein. (d) Preserve and, upon request, make available to the Board and its agents for examination and copying, all membership dues, permit, and other records necessary to compute the moneys illegally exacted from employees of the Respondent Company. (e) Post at its offices, in conspicuous places, including all places where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix B." 10 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by Respondent Union's representative, be posted immediately upon receipt thereof and be maintained by Re- spondent Union for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (f) Post at the same places and under the same conditions as set forth in (e), above, and as soon as they are forwarded by the Regional Director, copies of Respondent Company's notice herein marked "Appendix A." (g) Mail to the Regional Director for the Twentieth Region signed copies of Appendix B for posting by Respondent Company as pro- vided herein. Copies of said notice, to be furnished by the said Regional Director, shall, after being signed by Respondent Union's representative, be forthwith returned to the Regional Director for such posting. (h) Notify the Regional Director for the Twentieth Region, in writing, within 10 days from the date of this Order, as to what steps the Respondent Union has taken to comply herewith. MEMBER RoDGExs took no part in the consideration of the above Decision and Order. 10 See footnote 9. APPENDIX A NOTICE TO ALL EMPLQYEEs Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT maintain or enforce any provisions in a trade agreement with Teamsters '..utomotive & Chauffeurs Local Union UNION TAXI CORPORATION 821 No. 165, which condition employment on union membership, give preference in employment to union members, or require union clearance as a condition of, employment , except where, and to the extent that, such conditions of employment are lawfully estab- lished by an agreement executed in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT encourage membership in Teamsters Automotive & Chauffeurs Local Union No. 165 by discharging or suspending employees, or by declining to hire applicants for employment be- cause they are not members of the Teamsters or because they have not been hired through or with the approval or clearance of the Teamsters, or by discriminating against them in any other manner in regard to their hire or tenure of employment or any other term or condition of their employment , except where, and to the extent that, such conditions of employment may be lawfully established by an agreement executed in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL NOT interfere with, restrain , or coerce our employees or applicants for employment, in any other manner, in the exer- cise of their right to self-organization , to form, join, or assist Tabor organizations, to bargain collectively through representa- tives of their own free choice , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, jointly and severally with Teamsters Automotive & Chauffeurs Local Union No. 165 , make whole Wayne B. Lewis for any loss of pay he may have suffered by reason of the discrimina- tion practiced against him. WE WILL, jointly and severally with Teamsters Automotive & Chauffeurs Local Union No. 165 , reimburse our present em- ployees, and persons formerly in our employ, for any losses suf- fered by them because they were illegally required to pay initia- tion fees, periodic dues, or any other moneys to the Teamsters as a condition of employment. All our employees are free to become or remain , or to refrain from becoming or remaining, members of Teamsters Automotive & Chauf- feurs Local Union No. 165, or any other labor organization, except to the extent that this right may be affected by an agreement requiring 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. We will not discriminate in regard to hire or tenure of em- ployment, or any other condition of employment, against any employee because of membership in, or activities on behalf of, any such labor organization. UNION TAXI CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF TEAMSTERS AUTOMOTIVE & CHAUFFEURS LOCAL UNION No. 165, AND TO EMPLOYEES OF UNION TAXI CORPORATION Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT maintain or enforce any provision in a trade agreement with the Union Taxi Corporation, which condition employment on union membership, gives preference in employ- ment to union members, or require union clearance as a con- dition of employment, except where, and to the extent that, such conditions of employment may be lawfully established by an agreement executed in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT cause or attempt to cause Union Taxi Corpor- ration to discharge or suspend employees, or to decline to hire applicants for employment because they are not members of our organization, or because they have not been hired through our organization, or because they have not obtained approval, clear- ance, or job referral from our organization, or to discriminate against them in any other manner, except where, and to the extent that, such conditions of employment may be lawfully established by an agreement executed in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WIVE WILL NOT restrain or coerce employees of, or applicants for employment with, Union Taxi Corporation, in the exercise of their right to self-organization, to form, join, or assist labor UNION TAXI CORPORATION 823 organizations, to bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, ,except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. WE WILL send written notice to Union Taxi Corporation and Wayne B. Lewis that we have withdrawn our objection to the employment of the latter, and that we have no objection to his employment or to the employment of any other person, based upon lack of membership in our organization or lack of clear- ance by our organization for employment. WE WILL jointly and severally with Union Taxi Corporation make whole Wayne B. Lewis for any loss of pay he may have suffered as a result of the discrimination practiced against him. WE WILL jointly and severally with Union Taxi Corporation reimburse present employees of the Company, and persons for- merly in its employ, for any losses suffered by them because they were illegally required to pay us initiation fees, periodic dues, or any other moneys as a condition of employment. TEAMSTERS AUTOMOTIVE & CHAUFFEURS LOCAL UNION No. 165, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed-effective February 17, 1959, specifically-and subse- quently served in the name of Wayne B. Lewis, designated as the complainant in this report, the General Counsel of the National Labor Relations Board, in the name of -the Board, caused the Regional Director for its Twentieth Region at San Francisco, California, to issue a consolidated complaint and notice of hearing on May 29, 1959, under Section 10(b) of the National Labor Relations Act, as amended, 61 Stat. 136. Therein, Union Taxi Corporation, designated at the Respondent Company in this report, and Teamsters Automotive & Chauffeurs Local Union No. 165, designated as the Respondent Union herein, were charged with the commission of certain unfair labor practices under Section 8(a) (1) and (3), and Section 8(b)(1)(A) and (2) of the statute, respectively. Copies of the consolidated complaint and notice of -hearing were duly served upon the Respondent Company, the Respondent Union, and other interested parties. In due course, each of the Respondents filed an answer. These answers, essen- tially, challenged this Agency's power to assert jurisdiction in the present consoli- dated case. Certain substantive allegations of the consolidated complaint were 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted; the Respondent Company and the Union, however, denied the commission of any unfair labor practice. Pursuant,to notice, a hearing with respect to the issues was held at San Francisco, California, on July 28, 29, and 30 and September 8, 1959, before the duly designated Trial Examiner. The General Counsel and the Respondent Union were represented by counsel. The president of the Respondent Company also filed an appearance. Each of the parties was afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings and conclusions. At the outset of his presentation, the General Counsel moved a formal amendment of the consolidated complaint; despite objection, the motion was granted. (Prior to this permitted amendment, the Respondent Company and the Respondent Union had been charged with the maintenance and enforcement of a trade agreement which included an illegal union-security clause subsequent to January 16, 1959; the effect of the permitted amendment was to charge each of the Respondents with the main- tenance and enforcement of a trade agreement which included an illegal union- security clause at all times material, for a period beginning 6 months prior to the date on which the initial charges in the present consolidated case were filed.) Upon the completion of each party's testimonial presentation, oral argument was heard. Thereafter, counsel for the Respondent Union submitted a brief. It has been duly considered. Upon the entire record in the case, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION A. Issues As previously noted, both the Respondent Company and the Union have chal- lenged the statutory power of this Agency to assert jurisdiction in the present con- solidated matter. Their contentions, in this respect, have raised several issues: (1) Whether the Respondent Company and another Sacramento, California, taxi- cab enterprise, Yellow Investment Company, may properly be considered a single employer, with respect to the resolution of the jurisdictional issue only, in this con- solidated case. (2) If so, whether these related taxicab enterprises may properly be considered engaged in commerce, or business activity which affects commerce, within the mean- ing of these terms of art. statutorily defined and judicially construed. (3) Finally, whether these enterprises, considered as a single entity, derive a suffi- cient amount of business income from their taxicab operations to warrant the exer- cise of this Agency's statutory powers, under present jurisdictional standards. Each Respondent contends, of course. that these issues should be resolved nega- tively. To their consideration, therefore, this report must now turn. B. Analysis 1. Union Taxi Corporation and Yellow Investment Company The Respondent Company, Union Taxi Corporation, conducts a taxicab business in Sacramento, California, and environs. Incorporated in the State noted, it main- tains an office. garaee, and dispatch facilities at two locations in the State capital. Mrs. Marie Littlefield functions as the firm's president; Frederick Pleines serves as its vice president; and Leonard Grimmett as its secretary and office manager. These officers, toeether with the firm's attorney, John Welsh, make up its board of direc- tors: that board, which meets six or seven times per year. determines the firm's labor relations policy. Mrs Littlefield. I find. holds more than half of the corporate stock; Pleines and Grimmett are the firm's other principal stockholders. There are three additional minor stockholders. however. Yellow Investment Company, previously noted. likewise operates a taxicab busi- ness in Sacramento. California. and environs. It, too, functions as a California cornoration Sometime in l951. I find the firm was nurcbased by Mrs. Tittlefield, Pleines, and two others: in 1957 or 1958. however, Mrs. Littlefield and Pleines ac- quired the interest of the other initial purchasers At all times material, since that reorgani,ation, Mrs. Littlefield has served as Yellow investment Company's nreQi- dent. Pleines as its vice president and Grimmett as its secretary. Mrs. Littlefield and Pleines determine its labor relations nnlirv. Nn information with resnert to the firm's hoard of directors or stockownershin is availnhle. althonnh Mrs. Littlefield, while a witness, identified herself as the firm's principal stockholder. UNION TAXI CORPORATION 825 The Respondent Company maintains a fleet of 60 to 70 taxicabs, approximately. It also maintains and operates a public garage, within which its vehicles are stored, and within which any necessary repair or maintenance work is done. The firm cur- rently has 109 employees, approximately; of this number, about 85 to 95 are drivers. Taxicab service is maintained throughout the week, and around the clock; the drivers, I find, work 83/4-hour staggered shifts. All of the firm's cabs are radio- dispatched. The dispatcher's office is located in downtown Sacramento, immedi- ately adjacent to the Greyhound bus depot; the firm's chief dispatcher, Boyd Hall, performs his functions at that location. (Mrs. Littlefield appears to be the only company official who hires employees; in her absence, however, Hall is also author- ized to hire. I so find.) At the time of the hearing, Yellow Investment Company owned 10 vehicles. When not in use, these vehicles are stored in the Respondent Company's garage; they are also serviced and repaired there. When in use, they are dispatched from established locations by the Respondent Company's dispatcher. The labor relations policies of Yellow Investment, as previously noted, are de- termined by Mrs. Littlefield and Pleines; the employees of the firm are supervised, in every material respect, by the management of the respondent enterprise. Em- ployees of the two firms also are sometimes interchanged. Pursuant to an express, written agreement with the Southern Pacific Railway Com- pany, the Yellow Investment Company maintains a taxicab stand or assembly area immediately adjacent to the Southern Pacific depot. Under the terms of the agree- ment, it is accorded an exclusive right to station dispatchers at the depot entrance while trains are present, to solicit passengers to summon parked taxicabs and load them at the nearby curb. (Taxicabs dispatched by other local enterprises are per- mitted to occupy only certain designated spaces within a nearby parking area, ap- proximately 150 feet from the railway depot's entrance, and their drivers are per- mitted to solicit patronage verbally from that distance. Such competition is con- sidered legitimate.) Taxicabs operated by the Respondent Company are likewise permitted, however to utilize Yellow Investment Company's allotted private curb space at the Southern Pacific depot, both to pick up and discharge passengers. At the Greyhound bus depot in downtown Sacramento, a reciprocal situation pre- vails. By the terms of a city ordinance, the Respondent Company has been allotted public curb space for its exclusive use as a taxi stand, close to the bus terminal. While taxicabs operated by any other Sacramento firm are considered free both to pick up and discharge passengers within the immediate vicinity of the bus facility, Yellow Investment Company cabs are the only taxicabs, exclusive of the Respondent Company's fleet permitted to park and use curb space for this purpose. Throughout the period with which this case is concerned, Yellow Investment Com- pany appears to have been financed, partially at least, by a loan from the respondent enterprise. I so find. And undisputed testimony establishes that Yellow Investment Company profits have routinely been applied to reduce the loan balance. The Respondent Union's counsel argues that the Respondent Company and Yellow Investment Company may properly be considered a single employer-for the pur- pose of determining whether this agency's discretionary jurisdictional standards have been met-only if statutory jurisdiction can be shown to exist, first, with re- spect to each firm separately considered. In this connection, it is asserted that: Lumping revenue figures of firms over which statutory jurisdiction exists to determine whether the purpose of the Act will be effectuated is a vastly different concept from lumping together commerce data from firms over which the Board does not have jurisdiction either because they are totally intrastate commerce or because the maxim of de minimis is applicable to said firms. The former practice involves merely a determination as to whether jurisdiction should be asserted; the latter involves an attempt to create jurisdiction on the theory that two intrastate operations make one interstate operation. No cases have been cited by counsel in support of the contention noted. I find it lacking in merit Chicaeo North Side Newspapers, 124 NLRB 254; Duval Jewelry Company, 122 NLRB 1425; The Family Laundry, Inc., et a!., 121 NLRB 1619; Key- stone Coat, Apron & Towel Supply Company, et al., 121 NLRB 880; Aliens Inc., 120 NLRB 1021. Cf. N.L R.B. v. A. K. Allen Co., Inc., et al., 252 F. 21 37 (C.A. 2) In the light of the available evidence-which clearly reveals the respondent enterprise and Yellow Investment Company to be closely integrated firms, under common ownership and control-the General Counsel's contention that the firms may properly be treated as a single employer, for jurisdictional purposes at least, would certainly seem to be warranted. See the cases previously cited; also see Dearborn Oil and Gas Corporation, et. al., 125 NLRB 645; The Transport Company of Texas, et al., 111 NLRB 884; Metco Plating Company, 110 NLRB 615; Venus Die Engineering Com- 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany, 110 NLRB 336; National Labor Relations Board Twenty-first Annual Report, pp. 14-15, and cases therein cited. I so find. Throughout this report, specifically with reference to the jurisdictional issue, they will be so treated 2. Statutory jurisdiction The Respondent Union's principal argument appears to be that the Board lacks any statutory justification for the assertion of its jurisdiction in this consolidated case. Agency and court decisions have made it abundantly clear, however, that the statutory jurisdiction of the Board presently extends to any commercial enterprise, with intrastate enterprises included, wherein a stoppage of business operations caused by industrial strife would tend to impede or disrupt the free flow of interstate com- merce in normal channels. Specifically, it should be noted that Section 10(a) of the statute has empowered the Board to prevent unfair labor practices which affect commerce. And in Sec- tion 2(7) of the Act, as amended, the statutory term "affecting commerce" has, been defined to mean "in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." [Emphasis supplied.] The sweep of this jurisdictional grant has been judicially noted. Polish National- Alliance, etc. v. N.L.R.B., 322 U.S. 643, 647-648. In the cited case, the Supreme Court observed that the national legislature- in order to protect interstate commerce from adverse effects of labor disputes has understaken to regulate all conduct having such consequences that constitutionally it can regulate. . . Congress . . . left it to the Board to ascertain whether proscribed practices would in particular situations adversely affect commerce when judged by the full reach of the constitutional power of Congress. See also, in this connection, N.L.R.B. v. Fainblatt, et al., 306 U.S. 601, 607; Santa Cruz Fruit Packing Co. v. N.L.R.B., 303 U.S. 453, 467; N.L.R.B. v. Bradford Dyeing Association, 310 U.S. 318, 326; N.L.R.B. v. Denver Building and Construc- tion Trades Council, et al. (Gould & Preisner), 341 U.S. 675, 684. This Agency's statutory jurisdiction, therefore, may properly be said to cover business enterprises, inclusive of those operative within a single State, wherein a stoppage of operations due to a labor dispute would tend to impede or disrupt the free, normal flow of- commerce. When called upon to define, specifically, the minimal volume of business properly subject to the Board's cognizance, the interruption of which would tend to- impede or disrupt the free flow of interstate commerce, the Supreme Court has de- clined. See N.L.R.B. v. Fainblatt, et al., supra. In the cited case, it observed that: 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 infering any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis. Since the decision noted, the Supreme Court has done little more than adumbrate- its views with respect to the specific business level for which the maxim cited would- be considered applicable, through opinions in particular cases and determinations- with respect to certiorari writs which tend to affirm this Agency's jurisdictional determinations or those of State tribunals. See International Brotherhood of Elec- trical Workers, Local 501, et al. v. N.L.R.B. (Samuel Langer), 181 F. 2d 34, 36-37 (C.A. 2), affd. 341 U.S. 694; N.L R.B. v. Suburban Lumber Company, 121 F. 2d 829 (C.A. 3), cert. denied 314 U.S. 693; Pennsylvania Labor Relations Board v. Napoli, 150 A. 2d 546, cert. denied 361 U.S. 823; Pennsylvania Labor Relations Board v. Friedberg, 148 A. 2d 909, cert. denied 361 U.S. 2, in this connection. Within the limits, then, established by the statutory language noted and the generalized judicial gloss with which it has been invested, the existence of statutory jurisdiction in the present case must be established. In an October 2, 1958, press release, the Board declared its intention to assert jurisdiction over retail concerns, taxicab companies included, with $500,000 gross- volume of business annually. This jurisdictional standard was subsequently estab- lished, specifically, in a representation case. Carolina Supplies and Cement Co., 122 NLRB 88. The Agency declared in the cited case, that: The Board has decided that it will assert jurisdiction over all retail enterprises [taxicab companies included] which fall within its statutory jurisdiction and' which do a gross volume of business of at least 500,000 per annum. The UNION TAXI CORPORATION 827 Board will apply this standard to the total operations of an enterprise whether it consists of one or more establishments or locations, and whether it operates in one or more States. [Emphasis supplied.] With respect to retail enterprises, therefore, evidence sufficient to sustain a conclu- sion that legal or statutory jurisdiction exists must be produced before an inquiry with respect to gross business income may be considered relevant or essential. In the cited case, this requirement is clearly made explicit rather than implicit. Cf. International Longshoremen & Warehousemen's Union, et al. (Catalina Island Sight- seeing Lines), 124 NLRB 813. And under the circumstances, reference to basic principles would seem to be required in the present consolidated matter. Preliminarily, of course, some determination must be made as to the manner in which the operations of the Respondent Company and Yellow Investment affect commerce. Their direct participation in interstate passenger transportation would seem to be minimal. (The relevant testimony of Secretary Grimmett merely sug- gests that cabs operated by the Respondent Company are used to carry passengers to Reno, Nevada-approximately 150 miles distant-less than once per month, and possibly no more than one or two times each year. While the fare charged for such trips does not appear, reason would seem to compel a conclusion that fare income thus earned would represent an infinitesimal part of the Respondent Company's total annual revenue.) And the extent to which the respondent enterprise may purchase taxicab equip- ment and supplies, directly or indirectly, from out-of-State sources-clearly a relevant factor in connection with any determination as to the respondent enterprise's in- volvement in commerce-has not been clearly established. (Each year, apparently, the firm purchases about 12 Plymouth automobiles to replace obsolescent or wornout taxicabs. These are purchased from a local automobile distributor. While the amount expended by the Respondent Company for this purpose, annually, may be substantial, the distributor's source of supply must be considered uncertain. Grim- mett's testimony establishes his opinion that some of the cars purchased, at various times, by the Respondent Company may have been assembled at the Chrysler Corporation's California assembly plants. Others may have been assembled else- where and shipped to the State of California for sale. The secretary of the respondent enterprise was permitted to speculate, on the basis of common knowledge, that many Plymouth parts conceivably utilized by the California assembly plants of the Chrysler firm are routinely fabricated elsewhere and shipped to such plants; nQ information with respect to the extent of the practice, however, has been provided for the present record. The radio transmitter and the receivers utilized by the Respondent Company for its radio-dispatched cabs appear to have been purchased many years ago. I so find. The available evidence establishes that they will soon be replaced, and that several designated radio equipment manufacturers, with pre- sumptive national distribution, have been invited to submit bids for the replacement contract. No purchases, however, have thus far been made. The respondent enter- prise uses recapped tires exclusively. These are purchased, after being recapped, from a Sacramento dealer, the State of their original manufacture does not appear to be known. Finally, the record establishes that the Respondent Company pur- chases its gasoline and oil from a local Standard Oil Company distributor; nothing in the record would warrant an inference as to the location of his refinery source, but official notice that the oil company involved maintains extensive production and refinery facilities within the State of California would seem to be justified. I have taken official notice of the fact indicated, and I so find.) Upon the present record, therefore, the operations of the Respondent Company and Yellow Investment can only be said to affect commerce, significantly, by virtue of their relationship to the transportation of interstate passengers. The carriage of inbound interstate passengers from various Sacramento railroad and bus terminals to local destinations, for example, would seem to establish the Respondent Com- pany and Yellow Investment as important, though not indispensable, adjuncts of interstate travel. And their carriage of passengers from various city points to the aforementioned railroad and bus terminals certainly deserves characterization as a service intended to greatly facilitate interstate travel. I so find. (Although the Respondent Company is not authorized to pick up inbound passengers at the Sacremento airport, its cabs, I find, are utilized-to an extent not clearly specified- for the transportation of outbound airline passengers to the airport.) Such services presumably cannot be viewed, legitimately, as services performed in interstate commerce; they certainly may be characterized, however, as services which affect such commerce, in a very real and practical sense. See N.L.R.B. v. White Swan Company, 313 U.S. 23, 27, for significance of this distinction. With respect to this aspect of the Respondent Company's operation, the record 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD establishes the existence of two Sacramento railroad depots , those of the Southern Pacific and Western Pacific Railroad Company , respectively. At the Western Pacific depot, throughout the 1958-59 period with which this case is concerned, trains operated to provide interstate service arrived and departed , I find, four times daily; this figure reflected the inbound arrival of the California Zephyr from Chi- cago, Illinois, the arrival of the Zephyrette from Salt Lake City, and the arrival and departure of their outbound counterparts . At the Southern Pacific depot there were eight comparable arrivals and departures daily; these included the in- bound arrival and departure of the City of San Francisco and the San Francisco Overland from the Midwest, the arrival and departure of their outbound counter- parts, two bus departures arranged to provide outbound connections at Davis, California, with the northbound Shasta Daylight and the Cascade , en route to Port- land, Oregon, and two bus arrivals from Davis with passengers from the south- bound counterparts of each designated train . At the Sacramento terminal of Western Greyhound Lines, 13 buses inbound from Nevada, Utah , and points east arrive and depart daily; additionally , 12 buses eastbound across the California border arrive and depart each day. Seven buses northbound from Los Angeles, routed to various Oregon and Washington communities , passed through Sacra- mento daily during the period with which this case is concerned . An equivalent number also passed through Sacramento , southbound, routed from various points north of the California border. (In this connection, I have taken official notice of the various passenger service schedules routinely published and posted by the inter- state carriers noted; these are matters of public record , and information with respect to the bus and train arrivals and departures which the schedules purport to an- nounce is widely disseminated.) Common experience would seem to justify inference that , within the Sacra- mento metropolitan area, many travelers will require and utilize taxicab service, such as the Respondent Company furnishes , for transportation to and from rail- road and bus terminals . I so find. The hardship and inconvenience which inter- state travelers-most likely to be burdened with baggage-would experience from a disruption of taxicab service may be readily visualized . Curtailment of the service, therefore, would necessarily tend to cast a burden on interstate travel. Even if an assumption might be warranted that the service could not be viewed as involving a business activity in commerce , the provision of such service would certainly seem ,to deserve characterization as a business activity which affects commerce. The Board, under the statute, is clearly authorized to extend its protection to such operations. It has been observed by the Supreme Court , that Congress, in the statute now under consideration , has explicitly regulated not merely transactions or goods in interstate commerce but activities which , considered in isolation , might be deemed to be merely local but in the interlacings of business across State lines adversely affect such commerce. Polish National Alliance v. N L.R.B., sunra. Thus it is well settled , for example , that local transit concerns are subject to the Board 's juris- diction. Amalgamated Association of Street , Electric Railway & Motor Coach Employees of America, et al. v. Wisconsin Employment Relations Board, 340 U.S. 383; N L R.B. v. Baltimore Transit Company, et al., 140 F. 2d 51, 53-54 (C.A. 4), cert. denied 321 U.S. 795; NL.R.B. v Fort Worth Transit Comnanv, 187 F. 2d 792 (C A. 5); N.L.R.B v. El Paso-Ysleta Bus Line, Inc, 190 F 2d 261 (C.A. 5). Judicial affirmation of the Board's jurisdiction over such enterprises has rested anon acceptance of its conclusion that a disruption of their service, as a result of .labor strife, would seriously hinder and impede the operation of other businesses engaged in interstate commerce, whose workers actually depend upon the transit systems, cars, and buses for transportation . By the same token , the Board's jurisdiction may he said to extend to taxicab enterprises. Additionally, it should be noted that the preferential arrangements under which the Respondent Comnanv and Yellow Investment operate-whether or not they may be considered exclusive in character-are not uncommon in.the taxicab transpor- tation system of the country. The immediate situation. therefore, may very well he characterized as representative of many others throughout the country , the total incidence of which. if left unchecked , may well become far-reaching in its harm to commerce Polish National Alliance v. N.L R B , supra. I so find. When the Board announced its present jurisdictional standards , it clearly indicated its intention to exercise statutory jurisdiction over taxicab operations . Although it has, upon certain occasions , refrained from the assertion of luricdiction over such enterprises. the abstention of the Board has been prompted by policy consider- atinns rather than by any doubt with resnect to the existence of A"enc" newer. Before 1950, the Board exercised jurisdiction over taxicab companies which did UNION TAXI CORPORATION 829 some business across State lines. Taxicabs of Cincinnati, Inc. (Ferguson Division), 82 NLRB 664; B. Royce, et al., Yellow Cab Company, 88 NLRB 282; Louis Dix, d/b/a Hickey Cab Company, 88 NLRB 327. During the latter year, the Agency did decline to assert jurisdiction over particular taxicab companies operating within a single State, on the ground that their operations, while not entirely unrelated to interstate commerce, were "essentially local in character," so that it would not effectuate the policies of the Act, in the Board's view, to assert jurisdiction in particular cases. Yellow Cab Company of California, 90 NLRB 1884; Lillian Jacobs, et al., d/b/a Skyview Transportation Co., 90 NLRB 1895; Brooklyn Cab Corporation, 90 NLRB 1898. However, before the end of the year, the Board modified its position and began to exercise jurisdiction over local taxicab companies which serviced interstate passengers. Red Cab, Inc., 92 NLRB 175. Noting that taxicab enterprises service terminals handling interstate traffic, pursuant to exclusive franchises, the Board found that the operation of such enterprises might properly be regarded as an essential link in the service performed by the interstate carriers. Red Cab, Inc., supra, at 177. See also Lillian Jacobs, et al., d/b/a Sky view Trans- portation Company, 92 NLRB 1664, 1665; Rite Rate Cab Company, Inc., 95 NLRB 1302, 1304-1305; Cashman Auto Company, 98 NLRB 832, 833, enfd. 200 F. 2d 412 (C.A. 1); Charman Service Corporation, 99 NLRB 534. Between 1952 and 1954, jurisdiction was asserted over matters involving local taxicab companies if the firm involved (1) was either the sole concern in the area serving instrumentalities of commerce, or was licensed by such an instrumentality, and (2) derived a sub- stantial part of its income from providing this service. Cambridge Taxi Company, 101 NLRB 1328; New Taxi Dispatch Corp. et al., 101 NLRB 1327; Rose Acker- man, et al., Taxi Transit Company, 102 NLRB 45; Yellow Cab Company, et al., 103 NLRB 394; Checker Taxi Company, 107 NLRB 266. Between 1954 and 1958, the Board declined to exercise jurisdiction overy any local taxicab companies. Checker Cab Co., et al., 110 NLRB 683; Union Cab Company, 110 NLRB 1921. As previously noted, however, the Board has indicated its intention to assert juris- diction over local taxicab companies under current jurisdictional standards. The power of the Agency to assert its jurisdiction in the premises-which as not, previously, been successfully challenged-cannot be considered extinguished merely by virtue of the Board's 1954-58 failure to exercise its jurisdiction; nor can any possible lack of consistency in the Board's policy, I find, argue against the existence of its power in the premises. Any disposition on the part of the Respondent Union to rely upon a Supreme Court decision that local taxicab enterprises which are not involved in "through- passenger" transportation may not be considered subject to Sherman Act prosecu- tion, would be misplaced. United States v. Yellow Cab Company, 332 U.S. 218. The Court, therein, did conclude that any local taxicab service, utilized to convey interstate train passengers between their homes and the railroad station, in the nor- mal course of their independent local service, does not constitute an integral part of interstate transportation, so that a restraint imposed upon that general local service, without more, could not be said to call for Sherman Act prosecution. But the Court did not hold that local cab company activities could have no effect on commerce, and that such activities were beyond the reach of the congressional power to regulate commerce. On the contrary, it expressly disclaimed its purpose: to establish any absolute rule that local taxicab service to and from rail- road stations is completely beyond the reach of federal power or even beyond the scope of the Sherman Act. . A conspiracy to burden or eliminate transportation of passengers to and from a railroad station where interstate journeys begin and end might have sufficient effect upon interstate commerce to justify the imposition of the Sherman Act or other federal laws resting on the commerce power of Congress. The Court decided, essentially, that, under the statute before it, a demonstration that taxicab companies had engaged in monopolistic practices or restraints as such would not be sufficient to justify an exercise of the Federal Government's proscriptive powers; additionally, these practices or restraints would have to be affirmatively related to some part of interstate commerce itself. Under the National Labor Rela- tions Act, however, Agency jurisdiction cannot be said to rest on the actually alleged and demonstrated effects on commerce of the specific action challenged as an unfair labor practice. It may rest, instead, upon findings as to the nature of the employer's business, and the potential threat to interstate commerce implicit in any labor dispute or work stoppage. Counsel for the Respondent Union argues that the Respondent Company has not been established as the possessor of any exclusive franchise, and that Board de- terminations, with respect to the assertion of jurisdiction over taxicab enterprises as 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD essential links in the chain of interstate commerce have invariably been concerned with the existence of exclusive franchises or contracts between any taxicab company before the Agency and some interstate carrier; it is contended that evidence with respect to the existence of such exclusive contracts ought to be considered essential to any determination that statutory jurisdiction exists. No administrative or judicial decisions reasonably calculated to support this contention have been cited, however. Upon due consideration , it must be rejected. The existence of an exclusive franchise or contract may well serve to establish, prima facie, that the services rendered by any taxicab company as an essential link in interstate passenger transportation are sub- stantial ; the absence of proof with respect to the existence of such an exclusive franchise or contract, however, cannot, logically, require a contrary conclusion. Counsel for the Respondent Union has raised a question as to whether the avail- able evidence will support a determination-under the jurisdictional test suggested in the Fainblatt case, previously noted-that the operations of the Respondent Company and Yellow Investment as essential links in the chain of interstate passenger trans- portation involve something more than minimal service, insufficient to require Agency attention. It has been judicially noted that the legal concept, de minimis, has always been taken to mean trifles-matters of a few dollars or less. N.L.R.B. v. Suburban Lumber Company, 121 F. 2d 829, 832 (C.A. 3), cert. denied 314 U.S. 693. Compare International Brotherhood of Electrical Workers, Local 501, et al. v. N.L.R.B. 181 F. 2d 34, 36-37, affd. 341 U.S. 694, wherein the Court of Appeals for the Second Circuit held that a labor dispute which involved a New York contractor, whose construction work on a particular Connecticut house was valued at $325 only, fell within the Board's statutory jurisdiction. While the record in this case cannot be said to provide a substantial clue as to the gross income derived by the Respondent Company from the transportation of interstate travelers , to and from Sacramento railroad stations and bus terminals , logic and experience would seem to compel an inference that the respondent enterprise-together with its associate company, by far the largest taxicab enterprise of the eight operative in the State capital-provides more than minimal service for travelers inbound or outbound across State lines. While the General Counsel 's inability to provide specific gross income figures, with respect to this relevant aspect of the Respondent Company's business, necessarily requires that a determination of the issue now under considera- tion be made upon reasonable inference only, no conclusive impediment to a de- termination is thereby presented. As the court of appeals in the Suburban Lumber Company case observed: We are concerned here with the utilization rather than the extent of the com- merce power. The National Labor Relations Act uses what have been described as words of art to indicate the fullest employment of this congressional au- thority. The selection of the word "affect" is of recent origin. . . That the word has the widest conceivable scope is apparent both from its dictionary defi- nition and its judicial interpretation . . In this view, percentages and such mathematical formulae are manifestly irrelevant except possibly in one respect. Using the commonly accepted water-course metaphor, a thimble affects a brook, a bucket affects a stream and a spillway affects a river. Here, despite the General Counsel's failure to establish that the Respondent Com- pany and Yellow Investment derived a substantial portion of their gross annual revenue as taxicab operations from the carriage of interstate travelers to and from railroad stations and bus terminals, an inference that the portion of their consolidated yearly income derived from such operations was more than minimal, throughout the period with which this case is concerned, would certainly seem to be warranted. Cf. Plant City Welding and Tank Company, 123 NLRB 1146; Tropicana Products, Inc., 122 NLRB 121. I so find. Also, as the Court of Appeals for the Third Cir- cuit observed, statutory jurisdiction may be considered established when the record will support a conclusion that the participation of any business enterprise , regardless of its size, as a link in the chain of commerce exceeds a minimum amount in relation to the total amount of interstate commerce involved. In the present case , certainly, there can be no reason for doubt that the Respondent Company and Yellow Invest- ment provide local transportation service utilized by a substantial number of inter- state travelers, inbound and outbound from the State capital, whatever the total volume of such interstate travel. And I so find. 3. Gross volume of business As previously noted, this Agency has declared its intention to assert discretionary jurisdiction over all retail enterprises (taxicab companies included) which fall within its statutory jurisdiction and do a gross volume of business of at least $500,000 per UNION TAXI CORPORATION 831 annum. Carolina Supplies and Cement Co., 122 NLRB 88. In the cited case, the Agency declared that it would apply its indicated jurisdictional standard to the total operations of the enterprise involved, whether it consisted of one or more establish- ments or locations, and whether it operated in one State or more. In the light of the available evidence, which the Respondent Union has not chal- lenged, there can be no doubt that the Respondent Company and Yellow Investment, considered as a single employer, derived gross income from their 1956-57 con- solidated operations greater than the amount now declared to be prerequisite to an assertion of Agency jurisdiction. During the 1958 calendar year, however, actual consolidated gross income appears to have fallen below $500,000, primarily because of an 8-week strike, from October 26 to December 19, during which the operations of both firms-together with those of every other unionized taxicab company in the Sacramento area-were entirely suspended. The relevant figures follow: ITEM 1956 1957 1958 Gross income--Union Taxi----------------------------------- $600,946 89 $477, 488 10 $413, 071.71 Less Charges paid by Yellow Investment-------------------- -7,954 99 -12,133 84 -10,241 32 Adjusted gross income-Union Taxi Corp-------------- 592, 991.90 465,354 26 402,830 39 Gross income-Yellow Investment------------------------ 53,207 79 62,496 66 48, 067.20 Consolidated gross income------------------------------ 646,199 69 527,850 92 450, 897.59 Note that these figures differ somewhat from those supplied for the record by Secre- tary Grimmett of the Respondent Company, and the General Counsel's representa- tive. The dollar volume figures supplied for the 3-year period reflect certain com- putation errors. Correctness of the basic data supplied on behalf of the Respondent Company has been assumed, but my summary of the information, embodied in this report, has been based upon adjusted arithmetical computations. The records of the Respondent Company and Yellow Investment thus reveal their combined business volume, during 1956 and 1957 operations, to have been greater than the amount now deemed necessary to justify the assertion of Board jurisdiction. And the failure of their consolidated operation to achieve the $500,000 gross income level during the 1958 calendar year, because of the strike previously noted, cannot justify or require a refusal by the agency to assert its powers. When an employer's business has suffered a strike interruption, the Agency customarily projects over a full-year period whatever figures on gross business volume are available, to deter- mine whether Agency jurisdiction should be asserted. Hygienic Sanitation Com- pany, 118 NLRB 1030; Essex County and Vicinity District Council of Carpenters, AFL, et al. (Fairmount Construction Company), 95 NLRB 969, 971. Such a pro- jection made in the present case-with due allowance for an estimate that average weekly business volume for taxicab enterprises during the fall and winter season normally exceeds average weekly business volume during earlier periods of the year- fully warrants a conclusion that the combined operations of the Respondent Com- pany and Yellow Investment, during the 1958 calendar year, would have equaled or exceeded the Board's minimum business volume requirement for retail enter- prises, absent the strike. I so find. Additionally, it may be noted that the Respondent Company has been able to supply consolidated gross income figures for the first 6 months of 1959 during which its operations, together with those of its associated enterprise, suffered no interrup- tion. These figures follow: Total income-Union Taxi________________________________ $224,016.43 Total income-Yellow Investment__________________________ 33, 770. 25 Consolidated gross income__________________________ 257, 786. 68 When an employer's business is newly established, and the record necessarily fails to provide information with respect to the scope of its annual operations, the Board has asserted its jurisdiction if the available figures for a shorter period can be pro- jected in such a manner as to create some "reasonable expectation" that the estab- lished yearly minimum business volume deemed prerequisite to the exercise of Agency power would be achieved with the passage of time. Coast Aluminum Com- panv, 120 NLRB 1326; General Seat and Back Mfg. Corp., 93 NLRB 1511. Such a projection in the present case, again, would certainly seem to warrant a conclusion 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the consolidated enterprise with which we are now concerned may reasonably be expected to derive more than $500,000 gross income from Sacramento taxicab operations, during the 1959 calendar year. And it is so found. C. Conclusions In the light of the considerations noted, I have found that the respondent enter- prise and Yellow Investment Company may properly be considered a single em- ployer-specifically with respect to the resolution of the jurisdictional issue in the present consolidated case-within the meaning of Section 2(2) of the Act, as amended. I have found that, throughout the period with which this case is con- cerned, the Respondent Company and its enterprise have been engaged in business activities which affect commerce, within the meaning of Section 2(6) and (7) of the statute. With due regard for the jurisdictional standards which the Board pres- ently applies-outlined in Stemons Mailing Service, 122 NLRB 81; Carolina Supplies and Cement Company, supra, and related cases-I now find that assertion of the Board's jurisdiction in this case would be warranted and necessary to effectuate the statutory objectives. II. THE RESPONDENT UNION Teamsters Automotive & Chauffeurs Local Union No. 165, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits employees of the Respondent Company to membership. III. UNFAIR LABOR PRACTICES A. Issues In his consolidated complaint, the General Counsel has charged the Respond- ents herein with two distinct unfair labor practices. Primarily, it is alleged that the Respondent Company and the Union have, at all times material, maintained and effectuated trade agreements with union-security clauses more restrictive of em- ployee rights than the statute, as amended, permits. (The relevant articles of the trade agreement can be construed, arguably, to establish closed-shop conditions with respect to the employment of taxicab drivers, chauffeurs, and other employees, by the Respondent enterprise. They may also be open to constriction as commitments by the Respondent Company to prefer available union members for employment. The General Counsel, however, has only charged, expressly, that the agreement establishes an exclusive referral arrangement, subject to the Respondent Union's control, which must be considered illegal in the absence of certain specific con- tractual provisions, together with consistent practices, deemed essential to fore- stall the discriminatory effectuation of such arrangements.) The Respondents, severally, concede the maintenance and effectuation of trade agreements with the challenged union-security provisions. They also concede their failure to restrict the discretion of the Respondent Union, contractually, with respect to the effectuation of the exclusive employment referral arrangement estab- lished by the agreements, in certain designated ways. Any failure, on their part, however, to maintain and effectuate the exclusive employment referral arrangement noted within limits considered- essential by this Agency to forestall discrimination statutorily proscribed is denied. Secondarily, the Respondent Company is alleged to have terminated the em- ployment of Wayne B. Lewis, the complainant herein, upon the Respondent Union's demand made pursuant to the provisions of the challenged agreement. The complainant's termination, under the circumstances, is alleged to have involved an unfair labor practice on the Respondent Company's part, with the Respondent Union as its causative agent. The Respondents, severally, concede the termination of Lewis at the Respondent labor organization's request, but deny that the course of conduct attributable to them was undertaken pursuant to the provisions of their trade agreement. The issues posed as a result of these substantive contentions must now engage our attention. B. Contracts and employment practices 1. The union-security agreements In October 1956, the Respondent Company and the Union executed their "Taxi Aereement" with an October 1, 1957, expiration date. Its termination clause pro- vided for the agreement's automatic renewal from year to year thereafter, absent UNION TAXI CORPORATION 833 timely written notice by either party of a desire for modification . Identical agree- ments appear to have been executed by four or five other unionized taxicab enter- prises operative in the State capital . (The available evidence establishes that the Respondent Union negotiated and separately executed a similar 1956-57 agreement with Yellow Investment Company for its drivers . For present purposes , however, no definitive conclusion wth respect to the execution or effectuation of such an agreement need be reached.) During 1957, various Sacramento taxicab enterprises-the Respondent Employer among them-pleaded their inability to effectuate a wage increase for the year to follow. On October 1, 1957, therefore, the current 1956-57 trade agreements be- tween these enterprises-the Respondent Company included-and the Union were automatically renewed for the 1957-58 contract year. The union-security clauses of the renewed agreement , I find, read as follows: Article I Jurisdiction: (a) All employees of the Employer who are engaged in driving cabs, lim- ousines, sightseeing buses, ambulances, funeral cars, U Drive cars , owner drivers, dispatchers, supervisory dispatchers, emergency starters, and automotive main- tenance men and whether working full or part time as drivers or operators or in a dual or combination capacity , shall be and at all times during their employ- ment shall remain members of Local Union #165 in good standing. (b) Employment of Men: The Company or party of the first part agrees that in the employment of men in the class of work herein mentioned at all time [sic] to employ none other than members of this Union while this Union is in a position to furnish same. The Company before hiring new men not members of the Union shall first call the Union to ascertain if there are eligible men on the unemployed list and if eligible men are on the unemployed list, Employers shall give preference to the Union Men on the unemployed list. No man previously discharged for drinking, dishonesty, or proved incompetency shall be regarded as eligible . All new men to be employed shall obtain O.K. Cards from the Union on day of employment. Article VII Delinquents: The Employers, upon notification of the Business Agent agrees [sic] to with- hold from service any Employee who is delinquent in his Union dues on forty- eight (48) hours notice. In due course , negotiations for the revision and modification of the 1957 -58 agree- ment were initiated . These negotiations, however, finally deteriorated to an impasse in October of the latter year, and a strike resulted . It began, I find, at 12 : 01 o'clock on the morning of October 26, 1958, and lasted until the afternoon of December 19, just slightly less than 8 weeks. (All of the Sacramento taxicab enterprises pre- viously under contract with the Respondent Union were struck. The available evi- dence suggests that the firms involved in negotiations before the strike had been bargaining, jointly, for a uniform agreement which each of them expected to execute separately . Since the history of the negotiations cannot be considered germane for present purposes, however, no conclusions with respect to their scope or prospective goal need be aritculated.) On December 19, 1958, an informal agreement to settle the strike was reached. Pursuant to its terms , the drivers in the employ of each struck taxicab company, the respondent enterprise and Yellow Investment included , reported directly for work thereafter. Ultimately, the agreement reached to terminate the strike was formalized in a new form "Taxi Agreement" dated and executed by the various taxicab enter- prises on January 16, 1959. The agreement with which this consolidated case is concerned was executed by the Respondent Company and the Union , at least, on the indicated date. It provided, specifically, for the retroactive effectuation of a minimum wage scale and maximum workday, starting December 31, 1958; health and welfare provisions calling for employer payments in a designated amount were declared effective retroactively as of January 1 , 1959, with an initial payment due 1 month later. No other provisions of the agreement were made effective retroactively. By its terms, the agreement was to be effective until December 31, 1959; it was to be subject to automatic renewal thereafter , absent timely written notice by either party of a desire to negotiate modifications. The union-security provisions of the new agreement recapitulated those of the previous agreement , noted, without change. In the formal answer of each Respondent, it is conceded that their 1959 agreement fails to incorporate standards of criteria for preference in referral ; that it fails to incorporate explicit provisions with respect to the nondiscriminatory selection of 597254-61-vol . 130-54 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applicants for referral; that it fails to incorporate provisions with respect to the employer's right to reject applicants pursuant to its terms, and that it does not provide for the posting of notices containing all provisions relative to the functioning of the exclusive referral arrangement which it establishes. I so find. 2. Employment practices The testimony of Secretary Grimmett of the Respondent Company, and Business Agent Milonich of the respondent labor organization-which the General Counsel has made no effective effort to contradict-establishes that, despite the union-security provisions of their agreement, representatives of the respondent enterprise do not routinely solicit the Respondent Union to refer applicants for employment. (Undis- puted testimony, which I credit, establishes that, for a period of 2 years at least, and possibly longer, most unemployed men interested in taxi driver work have not been applying to the Respondent Union for referral. The record establishes Mrs. Little- field's awareness of this fact, as the Respondent Company's employing head; Business Agent Milonich, frequently in contact with her, appears to have kept her so advised.) Under the circumstances, I find, the contractual obligation of the Respondent Company to call upon the Union, for the purpose of ascertaining the presence of eligible men on the labor organization's unemployed list before hiring new men not union members, has been more often breached than observed during the period indicated. In the case of the Respondent Company, applicants for driver employ- ment have routinely called upon Mrs. Littlefield, or other company representatives authorized to hire. They have not been questioned, I find, with respect to their membership in the respondent labor organization. If thereafter employed, however, they have been directed to the Respondent Union's office for clearance. (The record is silent as to whether newly hired employees are advised, expressly, of their obliga- tion, under the trade agreement previously noted, to perfect or maintain member- ship throughout their employment. Grimmett merely testified, without contradic- tion, that newly hired employees are "naturally" told to visit the Union's office, and to "find out" whatever the organization will require of them. Available evidence will support an inference, however, that newly hired drivers thus referred to the Respondent Union fully understand their obligation to secure clearances, and to perfect and maintain union membership as a condition of their employment. I so find.) At the offices of the Respondent Union, newly hired drivers referred for clearance are requested to execute an application for membership in the Respondent Union, if not already members. Upon the completion of their application, they receive clearance cards, for presentation to the Respondent Company or any other firm privy to a similar union-security arrangement. Their clearance cards may or may not be presented to the Respondent Company after their issuance. The testimony of Secretary Grimmett establishes that about 50 percent of the newly hired drivers cleared for employment by the Respondent Union present clearance cards upon their return. With respect to others, the Re- spondent Company may be advised of clearance by a telephone call from some representative of the respondent labor organization; in other cases, no clearance card or telephone call may be received. Grimmett's testimony establishes, absent con- tradiction, that the Respondent Company makes no routine effort to check each employee's compliance with the contractual union-security requirements noted; if no report with respect to the clearance of some particular employee is received, the Respondent Company assumes the employee's compliance with clearance require- ments, in the absence of notice to the contrary from the Respondent Union, pur- suant to their trade agreement. C. Wayne B. Lewis 1. Employment Essentially, the circumstances under which Wayne B. Lewis acquired employment with the Respondent Company are not disputed. The available evidence establishes that after a previous period of employment as a driver for City Cab Company, he sought employment on October 20, 1958, as a taxi driver with Mrs. Littlefield of the respondent enterprise. She advised him that he would be put to work if he secured union clearance; he was, in fact, instructed to secure a clearance document. Later that day, Lewis visited the Respondent Union's office and reported to a secretary that Mrs. Littlefield had told him he should go to work if he procured a union clear- ance; he asked what he had to do to secure such a document. Pursuant to routine "normal" practice, Lewis was asked to execute an application for union membership. This he did. He was advised that he would be expected to pay a $25 initiation fee, UNION TAXI CORPORATION 835 plus $9.75 for dues and various assessments; $34.75 was thus fixed as his total financial obligation. Lewis reported his inability to pay the full amount immediately, proffered a $4 payment on account, and received a union clearance. He was advised that a further sum, sufficient to complete a $14.75 payment, would be due within 2 weeks, and that his $34.75 obligation would have to be satisfied within 31 days. On October 21, 1958, pursuant to a suggestion of the Respondent Union's office secretary, he submitted his clearance to Secretary Grimmett, and began work for the respondent enterprise. 2. Participation in the strike When the drivers in the employ of the Respondent Company, among others, struck on October 26, 1958, Lewis ceased work. Neither Yellow Investment Com- pany nor the respondent enterprise maintained cab operations. (The complainant did not, however, participate in any picket line activity.) Approximately 1 month later, while the strike was in process, he went to work for another taxicab enterprise, City Cab Company, with North Sacramento headquarters. This firm had not been privy to any prior agreement with the respondent labor organization. Lewis also worked, during the strike period, for a West Sacramento taxicab enterprise, which continued operations. In the middle of December, about 1 week before the end of the strike, Lewis observed Mrs. Littlefield seated in a parked automobile, and halted the taxicab be was driving-plainly marked as a "City Cab" vehicle-to converse with her. His corroborated report with respect to their conversation, which I credit, reads as follows: Well, I pulled up alongside of her and I said, "Hi, Mom," and she said, "Hi, Kid." Speaking of Marie Littlefield, we all called her "Mom." . . She says, "How're you doing?" And I said, "Best 'Spects'." And I asked her about going back to work after the strike was over with. . And she says, "Sure, you can have your job back." And I told her that I have heard rumors that since I was driving a non-union cab that I wasn't going to get cleared through the union to drive for Mrs. Littlefield. She said, "Well, don't worry about that, I will try-" that "I will get you cleared to go to work for me after the strike is over with." And I drove off. When the strike ended, most of the drivers previously on strike-if not all of them-appear to have reported for work and to have resumed work immediately with their respective employers. In the absence of evidence to the contrary, I so find. Lewis, however, did not report for work or resume work as a driver for the Respondent Company automatically; he continued to drive a City Cab Company vehicle, I find, for 1 day-the 19th of the month. Within a few days after the strike ended, however, he reported, initially, to the Respondent Union's office and requested a clearance to resume work. The complainant's decision that he would have to secure a new clearance before any resumption of work for the respondent enterprise appears to have been made on his own initiative. I so find. He was ad- vised by Business Agent Milonich that no clearance could be issued for him until everyone previously on strike had resumed work; specifically, I find, Lewis was ad- vised that one man would have to be restored to employment by the Respondent Company before he could receive a clearance. He decided to wait. (The com- plainant's testimony, at this point, indicates that he met Mrs. Littlefield while in the vicinity of the union office, and that he apprised her of his desire to resume work. She is reported by the complainant herein to have said that she would see about getting him back. Mrs Littlefield, however, could not recall this conversation. I find the suggested testimonial conflict unnecessary to resolve.) After a short wait, Lewis was advised by Milonich that Mrs. Littlefield had rehired the driver whose un- employment had held up his clearance. A clearance to work for the Respondent 'Company was thereupon issued to him; December 22, 1958, is shown as its date of issuance. Upon receiving his clearance, Lewis was again advised that he would be allowed a 2-week grace period within which to pay $14.75 toward his initiation fee, current dues, and other union charges; the secretary of the business agent also advised him again that he would be allowed 31 days from the day of his clearance to pay the .$34.75 total due. (Lewis could recall no discussion with the secretary in which At was indicated that his previous $4 payment had been forfeited. The available evidence establishes, however, that his initial membership application had included a notation that "all money left on deposit for initiation shall be considered forfeited if initiation is not completed within thirty days." And the complainant's testimony does not establish that this possibility had been called to his attention by the secretary An the Union's office, at the time of his initial application. His financial obligations- 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fixed as of the date of his second clearance=suggest that his previous payment had, indeed, been considered forfeited by the respondent labor organization.) Lewis. took the clearance to Secretary Grimmett of the Respondent Company, and resumed work. On January 5, 1959, he paid $14.75 to the respondent labor organization; its records establish the allocation of this sum as follows: $5 as partial payment of the $25 initiation fee; $4.50 for December 1958 dues; $2.50 for an assessment; $2.50 for a second assessment; and $.25 for a strike fund contribution. Sometime after January 26-presumably on the following day-Secretary Grim- mett of the Respondent Company, with the concurrence of Mrs. Littlefield, showed Lewis a letter which the firm had just received from Business Agent Milonich of the respondent labor organization. The letter, addressed to Mrs. Littlefield's at- tention, read as follows: This is to inform you that under the provisions of Section 7 of the present working Agreement between your Company and this Local Union, we are requesting that "WAYNE LEWIS and RICHARD BRAGG" be withheld from service until they have completed their obligation to this Local Union. Grimmett, pursuant to Mrs. Littlefield's instructions, advised Lewis personally, I find, that he would have to see a union representative; the testimony of the com- pany secretary that he notified the firm's dispatcher to deliver such a message to Lewis is rejected. When questioned by the General Counsel's representative as to whether Grimmett-in the course of their conversation, herein found-had said that he was suspended by the Respondent Union, and that he would not be able to work, therefore, until his obligation to the Union had been cleared, Lewis de- murred, partially at least. His recital with respect to Grimmett's statement, which I credit despite the secretary's contrary testimony, reads as follows: "He said that he [1] had to see the Union before I went back to work to get this straightened up before I do go back to work." The record does not establish any remark by Grimmett indicative of his knowledge as to the nature of the complainant's problem requiring settlement or adjustment. (In passing, it may be noted that Grimmett's remarks to Bragg, also cited in the letter from the Respondent Union as a presumptive delinquent, appear to have been of similar tenor. I so find.) Immediately after receiving the advice noted, Lewis went to the union office and spoke to Business Agent Milonich. He requested the assistance of the latter to get "this mess" adjusted so that he could resume work; Milonich, however, said that he would have to confront the executive board of the Respondent Union, approxi- mately 1 week thereafter, to secure a clarification of his status. (Lewis, I find, told the business agent that he had in his pocket money sufficient to pay his initiation fee and dues, Milonich, however, refused to accept it, prior to his appearance be- fore the Union's executive board, whose determination with respect to the com- plainant's status would be final.) Subsequently, on February 4, 1959, Lewis appeared before the Respondent Union's executive board. Seven members were present, two of them employees of the respondent enterprise. Immediately prior to his conference with the executive board, Lewis was advised by Richard Bragg-the o'her driver designated, in the letter previously noted, as delinquent in his obligation to the respondent labor organization-that he had been cleared to resume employment, if he proved able to produce the money necessary to complete the payment of his initiation fee with- in a short time. (Bragg, I find, did resume work as a driver for the Respondent Company on February 5, 1959, thereafter, after having been withheld from service since January 27, previously. He paid the $20.50 balance due on his initiation fee within 1 to 2 days.) The complainant was then summoned to confront the board. His testimony with respect to their discussion, which I credit, reads as follows: Well, I recall when I went in; I don't know how the conversation started out that they were kicking me out of the union. It isn't because I haven't paid my initiation fee or nothing. It is because-that I drove a non-union cab dur- ing the strike.... Well, I don't rermember who said it. Seven of them were taking part in saying this and that.... I told him, "What do you expect me to do?" I said, "You stayed on strike just about a month and he [Milonichl helped me out a little and then this comes up here and you are kicking me out." And, "Well, what can I do, starve or go down on skid-row or something like that or live, whatever it is." They said, "You could have got a job digging ditches or something like that." I said, "Where can you get a job digging a ditch without joining the union?" They Said, That is your tough luck." UNION TAXI CORPORATION 837 At the end of the discussion, Lewis was told that he would not be cleared. ,On the following day, however, he spoke to Vice President Pleines of the respondent enterprise. The latter, I find, made an unsuccessful effort to persuade at least one member of the Respondent Union's executive board that complainant's conduct during the strike provided insufficient justification for the Respondent Union's de- cision to reject his membership application ; at the close of his telephone conversa- tion with the executive board member, Pleines advised the complainant to see an attorney. On February 6, 1959, Lewis dispatched a $34.50 money order to the respondent labor organization , by mail, to satisfy his financial obligations . The money order was returned, and Lewis was advised that he would not be accepted as a union member. Thereafter, on February 17, 1959, Lewis filed his charges in the present consolidated matter. Questioned as to whether he had subsequently had any conversations with Mrs. Littlefield about the situation, Lewis replied in the affirmative. His testimony with respect to her comments , which I credit, reads as follows: She always told me that if I ever got cleared through the union to go to work she would take me back whether it was day or night, that she would take me back, I always had a job waiting whenever I was cleared through the union. Since January 27, 1959, however, the complainant has performed no services as a taxi driver for the respondent enterprise. D. Conclusions 1. Contracts and employment practices Upon the entire record, considered in the light of established decisional doctrine, there can be no doubt that the trade agreements executed and effectuated by the Respondents, throughout the period with which this consolidated case is concerned, ,established conditions of employment proscribed by the statute. By the terms of their first article, which purported to define the employee group involved, the agree- ments provided that all of the employees they covered "shall be and at all times dur- ing their employment shall remain" members in good standing of the respondent labor organization . Additionally, the agreements clearly established preferential employment conditions . By their terms, the Respondent Company was obligated to give the Respondent Union first call, before it could consider itself free to undertake the employment of new men not members of the designated organization; if ap- prised that eligible men were available for work, enrolled for that purpose on the Respondent Union's list of unemployed men, the Respondent Company was obli- gated to give preference in employment to members of the Respondent Union on the designated list, and to employ members of the Respondent Union only, while that organization was in a position to furnish them for employment. Finally, to effectu- ate these provisions of the first article found in their trade agreements , the Respond- ents contracted that all new men employed would be required to obtain union clear- ance cards on their first day of employment, and that the Respondent Company, upon appropriate notice, would withhold from service any employee delinquent in dues to the respondent labor organization. Neither of the Respondents has challenged the General Counsel's factual allega- tions with respect to the execution or effectuation of the trade agreements which embodied these provisions . Their only response, indeed, appears to be a contention that the contractual terms in question have not been strictly observed. Any such argument, however, if pressed, would have to be reiected as immaterial. The mere existence of contracts which contain closed-shop and preferential employment provi- sions, apart from their actual enforcement, has been held to threaten the rights of employees statutorily guaranteed, and to encourage membership in a labor organiza- tion by "discrimination in regard to hire" on the part of the employer involved; the agreements themselves , shortly, have been held to fall squarely within the statutory prohibition. Eichleay Corporation v. N.L R.B, 206 F. 2d 799, 803 (C A. 3); N.L.R.B. v. F. H. McGraw and Company, 206 F. 2d 635, 641 (C.A. 6); Katz et al., d/b/a Lee's Department Store v. N.L.R.B., 196 F. 2d 411, 415 (C.A. 9); Red Star Express Lines of Auburn, Inc. V. N.L.R B. 196 F. 2d 78, 81 (C.A. 2). See also Nassau and Suffolk Contractors' Association, Inc., et al., 123 NLRB 1393; Jandel Furs, 100 NLRB 1390, 1391 . And since the respondent labor organization involved in the present consolidated case necessarily participated in the execution of the successive agreements which embodied the improper provisions noted , it would seem to follow that the organization must be held to have caused the Respondent Com- pany to discriminate against employees in violation of Section 8(a) (3) of the statute. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent Union thus itself became involved in the commission of a statutory unfair labor practice. N.L.R.B. v. National Maritime Union of America, et al., 175 F. 2d 686, 689 (C.A. 2), cert. denied 338 U.S. 954. I so find. These conclusions, as previously noted, rest upon a determination that the express terms of the trade agreement with which we are now concerned establish closed-shop and preferential-employment conditions. Such union-security arrangements have uni- formly been held subject to administrative proscription, since the passage of the statute, as amended. Under the circumstances, therefore, I find it unnecessary to de- termine whether, as the General Counsel's consolidated complaint alleges, the con- tractual union-security arrangement between the Respondent Company and the Union, now under consideration, might likewise be subject to interdiction on the ground that it authorizes the latter organization to exercise exclusive control over employee hire within the given contract unit, without the safeguards which this Agency has found necessary to negate the inherent tendency of such agreements to encourage union membership unlawfully. See Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 893. Such a determination, made at the General Counsel's request, would merely provide supplementary justi- fication for a recommendation and order otherwise demonstrably appropriate. In this connection, however, it may be noted that the record will fully support a determination with respect to the actual effectuation of certain contractual union- security provisions by the Respondents herein. While the available evidence may not warrant a finding that the Company regularly sought men for employment as drivers initially through the union office, or that the firm accorded established union mem- bers preference in hire, it will clearly support a determination that all of the Com- pany's newly hired employees, covered by the agreement, were routinely directed to obtain union clearance. (The fact that the Respondent Company may have neg- lected postdirection enforcement of this requirement by failing to require the subse- quent production of clearances for all of the employees thus instructed, cannot vitiate the significance of the directions given.) And the record made with respect to the treatment accorded Lewis and Bragg by responsible officials of the respondent enterprise would certainly seem to provide sufficient justification for a conclusion that the firm actually enforced the contractual closed-shop provision. I so find. Note, however, should be taken of the fact that the union-security provisions of the 1957-58 agreement-subject to challenge in this case, under the statute, for the last 11/2 months of the agreement's term-became effective by virtue of the auto- matic renewal of a previous agreement with an October 1956 execution date. And both of these trade agreements, counsel for the Respondent Union has observed, were negotiated and effectuated during a period, noted elsewhere in this report, when the Board, pursuant to an established policy, was declining to exercise its statutory juris- diction over local taxicab enterprises. In the light of this circumstance, counsel has suggested that a decision with respect to the legality of the 1957-58 union-security arrangement, reflective of a determination to assert legal jurisdiction for the purpose of deciding that question on the basis of present jurisdictional standards, would be arbitrary and constitute an abuse of discretion. N.L.R.B. v. Guy F. At- kinson Company, et al., 195 F. 2d 141, 149 (C.A. 9). The observations of counsel in this connection reflect a contention that this Agency may not properly utilize the sanctions within its power to proscribe statutory violations if the unfair labor prac- tices found are shown to have occurred only at a time when the Board allegedly would not have considered the Respondent Company's business operations subject to Agency jurisdiction. Established decisional doctrine requires the rejection of this contention as de- ficient in substantive merit. Whenever the Board has revised its jurisdictional standards, it has announced its intention to apply its newly enunciated criteria to all of the cases already before it, as well as future cases. Edwin D. Wemyss, d/b/a Coca-Cola Bottling Company of Stockton, 110 NLRB 840, 843; Siemons Mailing Service, 122 NLRB 81. Newly announced jurisdictional standards have, therefore, been applied-and unfair labor practice determinations have been made-when the statutory violations involved demonstrably occurred during a period in which the business of the respondent enterprise would not have been considered sufficient to warrant the Board's exercise of jurisdiction under standards then applicable. The Board has observed that its discretionary abstention from the exertion of jurisdiction under such previously effective standards cannot be relied upon by Respondents as a bestowal of immunity against prosecution under the Act, as amended. Siemons Mailing Service, supra. The decision cited includes an observation that: . the Board does not believe that the mere fact that a respondent had reason to believe by virtue of the Board's announced jurisdictional policies that the Board would not assert jurisdiction over it, gave it any legal, moral, or equitable UNION TAXI CORPORATION 839 right to violate the provisions of the Act.. . . In the final analysis what is conclusive with us is the fact that any other policy would benefit the party whose actions transgressed the provisions of the Act at the expense of the victim of such actions and of public policy. This view has been approved by the Court of Appeals for the Second Circuit. N.L.R.B. v. Gottfried Baking Company, 210 F. 2d 772, 781. Answering an em- ployer's complaint that the Board's assertion of jurisdiction over its operation was inconsistent with previous Board policy, the court stated that: "We do not see how clauses which are invalid under the Act would become valid merely because the Board chose not to assert jurisdiction." Other courts have. also upheld the Board's determination to apply, in cases already pending, revised jurisdictional standards promulgated subsequent to the occurrence of the unfair labor practices charged. Local Union No. 12, Progressive Mine Workers of America, District No. 1 (Rawalt Coal Co.) v. N.L.R.B., 189 F. 2d 1, 4-5 (C.A. 7), cert. denied 342 U.S. 868; Optical Workers' Union Local 24859 v. N.L.R.B. (Rogers Brothers Wholesalers), 229 F. 2d 170, 171 (C.A. 5), cert. denied 351 U.S. 963; N.L.R.B. v. Kartarik, Inc., 227 F. 2d 190, 192 (C.A. 8). N.L.R.B v. Stanislaus Implement and Hardware Company, Ltd., 226 F. 2d 377, 379 (C.A. 9). Hence my observation that established decisional doctrine dictates the rejection of the Respondent Union's contentions that such an Agency determination would be arbitrary and constitute an abuse of discretion. In the light of the course of decision noted elsewhere in this report-specifically with respect to the Agency's assertion of jurisdiction over taxicab enterprises before the 1954-58 abstention period-the Respondent Company and the Union cannot legitimately claim to have been ignorant of some possible justification for the Board's assertion of jurisdiction over such enterprises. Nor can they claim any real lack of knowledge with respect to the possibility of a Board determination as to their legal inability to engage in conduct statutorily proscribed. The fact that they may have believed, when they executed their 1957-58 trade agreement, that the Board would not assert its jurisdiction and compel their compliance with the law, cannot be said to constitute either a legal or equitable defense to statutory transgressions. Compare N.L.R.B. v. Guy F. Atkinson, supra, wherein the court, under the peculiar factual situation there present, characterized the impact of retroactive policy deter- minations upon a respondent innocent of any conscious statutory violations as in- equitable. Even the possible applicability of the Atkinson decision, however, appears to have been limited by the Court of Appeals for the Ninth Circuit in cases sub- sequently decided. N.L.R.B. v. Forest Lawn Memorial Park Association, Inc., 206 F. 2d 569, 571 (C.A. 9), cert. denied 347 U.S. 915; N.L.R.B. v. Charles E. Daboll, Jr., et al., 216 F. 2d 143, 144 (C.A. 9), cert. denied 348 U.S. 917; N.L.R.B. v. W. B. Jones Lumber Company, Inc., et al., 245 F. 2d 388-391. Its applicability-upon the present record-would certainly seem to be questionable. I find it inapposite now. The formal answer of the Respondent Company includes an admission with respect to the receipt of advice from the Respondent Union that it could not employ Wayne B. Lewis, and a further admission that the complainant's employment was terminated. And the Respondent Union, pleading in turn, has admitted the termina- tion of Lewis by the Respondent Company, pursuant to its request. Each Respond- ent, however, has denied the General Counsel's contention that the employment of the complainant by the Respondent Company was terminated, specifically, pursuant to the provisions of their trade agreement. Obviously, the denials of the Respondent Company and the Union in this con- nection must be rejected. The letter by which the Respondent Union requested that Lewis be "withheld from service" expressly noted that the request of the labor organization was being made under the provisions of section 7 of the trade agree- ment then in force, discussed previously in this report. And the testimony of Grim- mett establishes that, but for the Respondent Union's letter and its aftermath, Lewis would have continued in the Respondent Company's employ. In the absence of evidence, therefore, sufficient to sustain any conclusion that the Respondent Com- pany was otherwise motivated, a determination that Lewis was actually withheld from service after the firm's receipt of the respondent labor organization's written request, pursuant to the contractual obligation established by the trade agreement provisions challenged in this case, would seem to be obligatory. I so find. The contractual union-security arrangement involved was, clearly, the one embodied in the trade agreement executed by the Respondents after the 8-week strike. My conclusion that this union-security arrangement established closed-shop and preferential-employment conditions, contrary to statutory requirements, has already been noted. It is well established now, as the General Counsel's representative has observed, that a discharge requested and effectuated pursuant to an invalid union-security 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requirement must, itself , be considered violative of the statute . Such a discharge clearly has been established in this consolidated case. The fact that Lewis con- ceivably could have been terminated legally, absent some proscribed motivation, pursuant to a union-security provision carefully drawn to meet statutory requirements, cannot be relied upon by the Respondents to exculpate themeslves. (Since the request which the Respondent Union addressed to the Company was that Lewis and a fellow employee be "withheld from service" until they completed their obligation to that labor organization, no determination has been made that the Respondent Company suspended or terminated the complainant's employment pursuant to a belief that his membership in the Respondent Union had been denied or terminated for some reason other than his failure to tender the periodic dues and initiation fees uniformly required by that organization as a condition precedent to the acquisition or retention of membership. And my conclusion, with respect to the nature of the unfair labor practice committed in this connection, has not been bottomed upon a determination that the Respondent Union actually demanded the withdrawal of Lewis from service primarily because of his demonstrated willingness to drive a taxicab for a nonunion firm during the strike. Upon the entire record, such a de- termination might well be warranted; its relevancy and materiality, however, would seem to be questionable. The General Counsel, it may be noted, has challenged the termination of the complainant as an unfair labor practice merely because of its effectuation, pursuant to the respondent labor organization's request, under the con- tractual union-security arrangement herein found to be improper.) Upon the entire record, therefore , I find that the complainant 's termination on January 27, 1958, when he was suspended from service by the Respondent Company until he could make his peace with the respondent labor organization , pursuant to a mandate of the union-security provisions embodied in the trade agreement then effective, involved discrimination by the Respondent Company with respect to his employment tenure, reasonably calculated to encourage membership in the respondent labor organization ; it was also reasonably calculated , I find, to inter- fere with, restrain, and coerce employees in the exercise of rights statutorily guaranteed. (Counsel for the Respondent Union suggests that the record contains no evidence indicative of an effort by Lewis to achieve reinstatement with the respondent enterprise , after the refusal of the Union's executive board to permit the completion of his membership application . In the respondent labor organi- zation's behalf, counsel argues primarily that the refusal of its executive board to permit the complainant's achievement of membership status cannot be held to have established that body's opposition to his continued employment; secondarily, it is argued that the Respondent Company cannot be said to have effectuated his dis- charge These contentions, however, must be rejected. Whether or not repre- sentatives of the Respondent Union or the Company apprised Lewis, expressly of their disinclination to sanction his continued employment , it is clear that his initial suspension from employment was requested by the labor organization and that it was effectuated pursuant to that request, by the Respondent Employer. Under the circumstances, also, the complainant could logically assume that he would not be permitted to resume work until his contractual "obligation" to perfect union membership was satisfied ; he could also assume , legitimately , that any attempt to resume work, after his resection as a membership applicant by the Union 's execu- tive Board, would be futile. The available evidence with respect to his subse- quent conversations with Pleines and Mrs. Littlefield-indicative of a tacit acknowl- edgement on their part that his return to employment could not be effectuated in the face of Respondent Union's disapproval-clearly established the validity of his assumptions. In substance , Lewis was effectively apprised , by the conduct at- tributable to the company and union representatives , that his temporary suspension by the respondent enterprise had been transmuted into one of indefinite duration, specifically because of the Respondent Union's unwillingness to accept him for membership.) By its demand, therefore, that Lewis be withheld from service, pursuant to the union-security provisions herein found improper, the Respondent Union clearly caused the Company to discriminate against him in violation of the statute , regard- less of motive, and thereby itself committed an unfair labor practice. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of the Respondent Company and the Respondent Union set forth in section TIT, above, since it developed in connection with the operations of the Respondent Company described in section I, above, has a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and, if UNION TAXI CORPORATION 841 continued, would tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Since it has been found that Respondents engaged and continue to engage in unfair labor practices, it will be recommended that they cease and desist there- from and take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended. It has been found, specifically, that the union-security provisions of the two most recent trade agreements negotiated and executed by the Respondent Company and the Union exceeded permissible limits. In the light of this determination, it will be recommended that the Respondent Company and the Union cease and desist from the maintenance, effectuation, or enforcement of the union-security pro- visions herein found to be improper. Additionally, it will be recommended that each of these Respondents cease and desist forthwith from the execution, main- tenance, or enforcement of identical or similar union-security provisions embodied in any agreement negotiated to extend, renew, modify, or supplement the recent trade agreement with a January 16, 1959, execution date. It will also be recom- mended that the Respondents refrain hereafter from the execution of any contract with union-security provisions similar to those herein found to be improper. Additionally, it has been found that the Respondent Company discriminated with respect to the employment tenure of Wayne B. Lewis to encourage union membership, in violation of Section 8(a)(3) of the Act, as amended, and that its employees were interfered with, restrained, and coerced thereby, in the exercise of rights statutorily guaranteed. The Respondent Union has been found to have caused the Company to engage in the proscribed conduct noted. It will be recom- mended, therefore, that the Repondent Union send some sort of written notice to Wayne B. Lewis and the Respondent Company that it has withdrawn its objection to his employment by the firm. Any such notice addressed to the respondent enterprise should include a request that the latter offer Lewis immediate and full reinstatement to his former or substantially equivalent position, in the manner set forth hereinafter, without prejudice to his seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827, for a definition of the phrase "former or substantially equivalent position" as here used. With respect to the Respondent Company, also, it will be recommended that Lewis be offered immediate and full reinstatement to his former or substantially equivalent position, defined in the manner set forth above, without prejudice to his seniority or other rights and privileges. Also, it will be recommended that the Respondents, jointly and severally, make Lewis whole for any loss of pay or other incidents of the employment relationship which he may have suffered as a result of the discrimination practiced against him, by the payment to him of a sum of money equal to the amount he normally would have earned in the Respondent Company's employ, between the January 27, 1959, date on which discrimination was practiced against him and the date of any unconditional offer of reinstatement of employment made by the Respondent Em- ployer herein pursuant to the recommendations noted elsewhere in this report, less his net earnings during the period indicated. Crossett Lumber Company, 8 NLRB 440, 497, 498; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7. The pay losses for which it is recommended that Lewis be made whole should be computed on a quarterly basis, pursuant to the formula which the Board now utilizes. F. W. Woolworth Company, 90 NLRB 289, 291-294; N.L.R.B. v. Seven-Up Bottling Com- pany of Miami, Inc., 344 U.S. 344. In this connection, it would clearly be inequitable to permit the amount of the Respondent Union's liability to increase, despite the possibility of its willingness to cease, past discrimination; the Respondent Union, therefore, should be free to terminate its liability for further backpay accruals by dispatching written notice to the Respondent Company, with copies to the complainant herein, noting the with- drawal of the organization's objection to the employment of the latter, in the manner recommended elsewhere in this report. In that event, the Respondent Union should not be considered liable for any backpay accruals after the passage of 5 days subsequent to the date on which the notice is mailed. The Englander Company, Inc, 108 NLRB 38, 40, overruled 109 NLRB 326, with respect to an issue not involved in the present consolidated case. Absent such notice, the Respondent Union should remain liable with the Respondent Company, jointly and severally, for all backpay that may accrue. In this connection also, it will be recommended that the Respondent Company, in order to make possible the expeditious compliance of the Respondents with the 842 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD recommendations made above in regard to backpay , preserve and, upon request, make available to the Board and its agents, all pertinent payroll and other records. The conduct of the Respondents with respect to the maintenance and enforcement of the contractual union-security provisions herein found to be improper indicates a general purpose, attributable both to the respondent enterprise and the respondent labor organization, to limit the lawful rights of employees and applicants for employment. I am persuaded that such practices are potentially related to similar unfair labor practices, the future commission of which may reasonably be antici- pated, in view of the course of conduct attributable to the Respondents herein. The preventive purposes of the statute will be thwarted unless remedial action in this consolidated case, and any necessary order, can be made coextensive with the threat. In order, therefore, to make the interdependent guarantees of Section 7 effective, prevent a recurrence of the unfair labor practices found , minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the statute, it will be recommended that the Respondents cease and desist from infringe- ment, in any other manner, upon the rights guaranteed by the aforesaid statutory provision. As previously noted, the General Counsel's consolidated complaint includes an allegation that, during the 6-month period prior to the service of charges upon them, and at all times since then, the Respondent Company and the Union have required employees and job applicants to pay dues, fees, assessments and fines to the respondent labor organization as a condition of employment . Little direct evidence with respect to this allegation was proffered. Nevertheless, the record establishes, I find, that employees covered by the 1957-58 agreement were permitted to deposit voluntary checkoff authorizations, which the Respondent Company honored for the duration of the agreement in question . It also establishes that applicants for employment with the Respondent Company were referred to the Respondent Union routinely for clearance, pursuant to the union-security arrangement embodied in the trade agreements with which this consolidated case is concerned, and that the Respondent Union routinely required employment applicants, referred under these circumstances, to execute membership applications as a condition precedent to clearance. The obligation of the Respondent Company's employees to seek member- ship in the Respondent Union and to maintain it without impairment thereafter, as a condition of employment, may be considered patent in the light of the contractual union-security provisions governing their hire and employment tenure; the continued viability of these provisions throughout the period with which this case is concerned, despite the arguments advanced by the Respondent Company and respondent labor organization to the contrary, may be considered established, in view of the available evidence with respect to the ,treatment Lewis and Bragg received. The Respondent Company and the Union have adduced no evidence whatever reasonably calculated to impair the validity of the inferences legitimately to be drawn from the evidence noted. In this consolidated case, the General Counsel 's notice of hearing included a special notice which read as follows: SPECIAL NOTICE is hereby given that the General Counsel in these proceed- ings will request the Board, in addition to any other remedy otherwise ordered, for reimbursement by Respondent Union and Respondent Employer, jointly and severally, of all monies, dues, fees, fines and assessments collected and received by Respondent Union from all applicants for employment and all employees dispatched by Respondent Union to or for jobs with Respondent Employer for the six-month period prior to the filing and service of charges upon said Respondents and continuing thereafter. Since the initial charges in this consolidated case were filed on February 17, 1959, the General Counsel's reimbursement request would appear to cover a period with its inception in the middle of August 1958. As previously noted, it would cover the last 11h-month period of the 1957-58 agreement maintained and effectuated by the Respondents And the General Counsel has also indicated that a reimbursement recommendation and possible order is sought with respect to all sums surrendered by the Respondent Employer's employees and applicants for employment to the Respondent Union for dues, fees, fines, and assessments between the expiration date of the 1957-58 agreement and the execution of the January 16, 1959, agreement with union-security provisions likewise herein found improper. There can be no doubt, of course, that the General Counsel's reimbursement remedy would also cover sums collected and received by the Respondent Union from the Respondent Company's employees and applicants for employment after the execution date of the 1959 trade agreement. UNION TAXI CORPORATION 843 With respect to the first portion of the 6-month period covered by the General Counsel's reimbursement request, such a remedial recommendation, however, would not appear to be warranted. This Agency has recently affirmed its previously an- nounced determination to exercise administrative discretion , with respect to remedial orders within its power , to absolve Respondents of any reimbursement obligation affecting dues payments and other money coercively collected from employees, under illegal union-security clauses, while the parties privy to such contractual ar- rangements had reason to believe that Agency jurisdiction would not be asserted over the enterprises involved . Baltimore Transit Company , et al., 47 NLRB 109, 112-113, enfd. 140 F. 2d 51 (C.A. 4); cf. Mike Trama (F/V Sandy Boy), 125 NLRB 151. In the Baltimore Transit case, the Board rejected a contention that, because of a Regional Director 's dismissal of charges previously filed against the respondent therein, for lack of jurisdiction, the Agency lacked the power to find the respondent guilty of unfair labor practices, at least until after the Regional Director's prior "adjudication" with respect to the jurisdictional issue had been reversed. The decision, however, included a determination that: . .. in the exercise of our administrative discretion as to the remedy most appropriate in the circumstances, we find that it will best effectuate the policies of the Act if the provisions in our Order, that the respondents reimburse em- ployees for dues checked off from their wages on behalf of the Independent .. . are limited to the period since June 2, 1942, the date on which the complaint herein was issued, since upon the issuance of the complaint the respondents were placed on notice that the Board's prior administrative determination was no longer in effect. Due regard for this indication of the manner in which the Board has chosen to exercise its administrative discretion would seem to compel a conclusion that any unfair labor practice determination with respect to the contractual union-security provisions in the 1957-58 agreement would not warrant a reimbursement recom- mendation or order. Since the Board 's present jurisdictional standards were publicly announced October 2, 1958, the Respondent Company and the Union cannot, legitimately, claim ignor- ance of the Board's readiness to assert jurisdiction over taxicab enterprises after that date. Between October 1, 1958, and January 16, 1959, however, the prior trade agreement having expired by its terms, no contractual union -security provision rea- sonably calculated to coerce employment applicants and employees into the acqui- sition or retention of union membership was effective. Conceivably, this change in the situation could be said to have some relevance with respect to the scope of any reimbursement remedy. It is argued, in the General Counsel's behalf, that effective reimbursement of any money collected and received by the Respondent Union from employees and employment applicants during this contractual interregnum should, nevertheless, be recommended-and, if necessary, ordered-because payments made to the re- spondent labor organization throughout the period in question can legitimately be attributed to the coercive thrust of the improper union -security provisions found in the 1957-58 agreement, newly expired. After due consideration , I have found merit in this contention. While the express language of the defunct agreement cannot be said to have re- tained the power to coerce, despite the agreement 's lapse, there can be no doubt that the Respondents-pursuant to some consensus, tacit or otherwise-continued to effectuate their contractually established union-security arrangement for a major part of the interregnum period . (Obviously, no such arrangement could have been maintained or effectuated during the 8-week strike period previously noted.) As a matter of law, conditions or circumstances proven to exist throughout some designated period may be presumed to have continued thereafter, absent evidence sufficient to warrant or require an inference to the contrary. Wigmore on Evidence, § 437. In the absence of evidence, therefore, sufficient to establish that the Re- spondent Company's driver employees were advised that the contractual union- security arrangements established pursuant to the 1957-58 agreement would be discontinued, their persistent viability after October 1, 1958, certainly may be pre- sumed. In this case, however, any determination that the respondents actually did continue to maintain and effectuate previously established preferential employ- ment conditions need not be rested upon inference alone. The testimony of Lewis and Bragg with respect to the circumstances of their October employment by the Respondent Company and a competitor, respectively, clearly establishes the con- tinued effectuation, by the Respondent Company and the Union, of previously established clearance requirements reasonably calculated to encourage union mem- bership. Finally, the renegotiation of contractual union-security provisions for 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 1959 trade agreement , identical in terms with those found in the terminated 1959 trade agreement, identical in terms with those found in the terminated 1957-58 contract, would certainly seem sufficient to buttress soundly any determina- tion that practices consistent with- the provisions in question had been followed during the contractual interregnum. Upon the entire record, I so find. In the light of this conclusion, the contentions of the General Counsel with re- spect to the propriety of a reimbursement recommendation or order, with respect to sums collected from employees after October 1, 1958, by the respondent labor organization, must be considered meritorious. Virginia Electric and Power Com- pany v. N.L.R.B., 319 U.S. 533, 539; United Association of Journeymen & Ap- prentices of Plumbing & Pipefitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing and Heating Corporation), 115 NLRB 594, 598. The record establishes that, by the maintenance, effectuation, and enforcement of certain union-security arrangements consistent with those pre- viously embodied in a trade agreement, the respondent labor organization improperly caused the Respondent Company to encourage its driver employees and employ- ment applicants to acquire and retain union membership, as a condition precedent to their employment and the retention of their employee status. J. W. Saltsman, d/b/a Saltsman Construction Company, 123 NLRB 1176; Union de Soldadores, Mecanicos, Montadores de Acero, Auxiliares y Ramas Anexas, Local 1839, et al., 122 NLRB 1603. And after January 16, 1959, when the Respondents executed their new trade agreement for the 1959 calendar year, the maintenance and effectuation of the contractual union-security provisions, previously found in this report to ex- ceed permissible limits in scope, was clearly calculated to achieve the same ob- jectives. As a result of the course of conduct thus attributable to the Respondents, these employees were inevitably coerced to pay moneys, dues, and initiation fees to the respondent labor organization. It would defeat the purposes and policies of the statute, this Agency has held, to permit the retention of these payments, unlaw- fully exacted from employees. To expunge the effect of the exactions, found un- lawful under Board decisional doctrine, it will be recommended that the Respon- dents, jointly and severally, refund to the Respondent Company's employees the initiation fees, dues, or any other moneys unlawfully exacted from them. Broderick Wood Products Company, 118 NLRB 38, enf'd. 261 F. 2d 548 (C.A. 10). Such reimbursement by the Respondents should cover a period beginning with the date on which their 1957-58 agreement lapsed by termination-since the Respondents were thereafter on notice, legally, that continuation of their prior closed-shop and preferential-employment policies would subject them to proscriptive action- and should include all moneys thereafter collected. Each of the Respondents, however, should clearly have the right to set off against any sum which they may be required to refund, pursuant to this recommendation, moneys previously returned or refunded to such union members. Honolulu Star- Bulletin, Ltd., 123 NLRB 395; News Syndicate Company, Inc., 122 NLRB, 818; Houston Maritime Association, Inc., et al., 121 NLRB 389, 394, 407. And, under the circumstances of this case, the right of the Respondent Union particularly, to set off sums previously refunded or returned to members of the organization, others, and, specifically, to the complainant herein, in the computation of its reimbursement obligation, would seem to be worthy of acknowledgement. In that connection, obviously, due consideration should be given to available evi- dence with respect to the ultimate disposition of the sums which the respondent labor organization routinely collected from employment applicants and employees covered by its agreement with the respondent enterprise. The record establishes, inter alia, that the Respondent Union collects $25 as an initiation fee; of this sum, $24 is retained by the Respondent Union, the $1 balance being remitted to its parent organization. Additionally, the Respondent Union requires members to pay $9.75 for their first month of membership. Of this amount, $4 50 represents local dues; as such, the amount paid falls into the Respondent Union's treasury, subject only to the $0.40 monthly per capita levy of the Union's parent organization. The balance of the payment required during any member's first month of membership, I find, is routinely handled as follows: Of the total amount, $2.50 is designated an assessment for the benefit of a local relief fund, utilized-subject to the discretion of the Re- spondent Union's executive board-to assist members confronted with some financial emergency; additionally, $2.50 of the amount paid represents an additional assess- ment for a local organizational fund; and, finally, the last $0 25 of every member's payment for his first month of membership, is regularly allocated and remitted to a strike fund maintained and administered by the Western Conference of Teamsters, with which the respondent labor organization is affiliated. After their first month of membership, members are expected to pay $4.75 monthly. Of this amount, $4.50 UNION,TAXI CORPORATION 845', represents dues; the Respondent Union each month allocates and remits the addi- tional $0.25 to the Western Conference strike fund previously noted. During the 8-week-long strike noted elsewhere in this report, strike benefits of $35 per week were paid. I find, to every paid-up member of the Respondent Union on strike-including those in the Respondent Company's employ-under the auspices of the respondent labor organization. (The available evidence indicates that the funds utilized for this disbursement came partially from the general funds of the Respondent Union's parent organization and partially from the Western Conference strike fund. Business Agent Milonich testified credibly that $20 of each member's weekly strike benefit was provided from the Western Conference fund, and that the balance was derived from a contribution by the international organization. About $46,000 appears to have been paid out for strike benefits during the Respond- ent Union's 8-week strike.) Additionally, I find, the complainant herein received an outright grant of $20 from the Respondent Union's emergency relief fund on November 11, 1959, pre- sumably on the basis of a hardship plea since he could not then qualify for regular strike benefits as one of the Respondent Union's members. Similar relief allotments may have been paid to members of the respondent labor organization, or other ap- plicants for membership; with respect to any such payments, however, the present record is silent. Under the circumstances of this case, the Respondent Union's con- tention with respect to its right to set off strike benefit payments and relief allot- ments at least against its reimbursement obligation would seem to be equitably justified. (There is evidence that the Respondent Union also sets aside a fixed per- centage of its monthly dues collection to facilitate the payment of its share of the yearly premium required to maintain a group insurance program, purchased jointly by a number of labor organizations with Western Conference affiliation. Under the program, benefits varying in amount are payable to members in good standing of each labor organization in the event of death, total or partial disability of a perma- nent nature, and temporary disability resulting from sickness or injury. For these benefits, I find, the Respondent Union currently remits $0 71 per member per month as its premium share. It may be arguable that the Respondent Union's right to set off these amounts against reimbursement obligation should also be recognized. Upon the present record, however, no such determination would seem to be required.) As previously noted, this Agency has already acknowledged the right of respond- ent employers and labor organizations to set off against any reimbursement obliga- tion moneys which may have been previously "returned or refunded" to the persons entitled to reimbursement. Houston Maritime Association, Inc. (International Long- shoremen's Association, Independent, Local No. 1273), supra. In the cited case, available evidence with respect to the so-called rebate practice of the respondent labor organization was considered sufficient to warrant recognition of that organiza- tion's right to set off, against any reimbursement required, amounts previously re- turned or refunded to the organization's members from funds "derived" through exactions found unlawful. In the light of the evidence proffered in this case, the relief allotment made by the Respondent Union to the complainant herein, and possibly to others similarly situated, certainly can be considered money returned from funds derived through an unlawful exaction. The strike benefits alloted to paid-up members by the Respondent Union, however, appear to have been paid from funds to which members of other labor organizations contributed. The funds in question-namely the Western Conference strike fund and the general fund of the Respondent Union's parent organization-derive, obviously, from strike assessments levied by the various locals affiliated with the Western Conference, on the one hand, and from the monthly per capita levy of the Respondent Union's parent organization, on the other. The fact, however, that members of the Respondent Union may have received benefits divided from a fund to which members of other local labor organizations con- tributed cannot equitably be held to affect the setoff rights of the respondent labor organization. The benefits in question clearly appear to have been distributed under the aegis of the respondent labor organization. And they represent the fruit of par- ticipation in a program sponsored and supported by that organization, together with its affiliates. Previously, this Agency has refused to recognize any setoff rights for unions, based upon some evaluation of the benefits received by the employees involved from their employer, pursuant to trade agreements negotiated by the labor organization cited in the case. The considerations which have impelled such determinations, however, cannot be considered applicable, in my opinion, when a labor organization claims the right to set off against its reimbursement obligation benefits directly provided for members under union-sponsored and wholly union-supported programs. (As 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counsel for the Respondent Union has observed, contract benefits received from an employer, arguably because of a union's collective-bargaining activity , differ in kind from benefits which may become payable to an individual solely because of his union membership status. Contractual benefits must be distributed without discrimination, to every employee within the bargaining unit covered by the agreement involved, but union-administered benefit programs , not established through trade agreements, need only be conducted for the benefit of the organization's membership.) In a somewhat analogous situation the Court of Appeals for the Fourth Circuit has considered the right of a respondent employer to set off, against his backpay obligation, the amount of any workman's compensation award calculated to compensate the discrimina- torily discharged employee for a period of disability directly traceable to the em- ployer's antecedent unfair labor practice. N.L.R.B. v. Moss Planing Mill Co., 224 F. 2d 703-704 (C.A. 4). Contrasting the workmen's compensation payment, at issue in the case , with unemployment compensation payments-previously held not to be deductible from a backpay award-the court observed that: Unemployment compensation is paid by the State itself from taxes and is an obligation imposed on the public. . The employer participates only as a taxpayer... . There is no contractual relationship between him and the re- cipient. . . [A]ny benefit that the recipient of unemployment compensation receives is collateral to the fact that he was working for a particular employer. .. . [However] The State is not the instrumentality through which [workmen's compensation ] payments are made. On the other hand, payments come from the employer himself through the medium of his agent, his insurance carrier. The workmen's compensation payments made here were so directly derived from the employer that we feel a back pay allowance for the period during which these payments were made would make the employee more than whole at the expense of the employer . [Emphasis supplied.] This Agency has indicated its reluctance to accept the court's determination that workmen's compensation awards, generally , must be considered deductible from gross backpay. Moss Planing Mill Company, 119 NLRB 1733, 1735, footnote 8. But the court's observation that an employee may be made more than whole, at his employer's expense, by this Agency's failure to recognize the deductibility of specific payments or other forms of compensation derived directly from the employer in- volved, would appear to be sound in principle. Under its statutory mandate, the Board is authorized to require respondents to take affirmative action, reasonably calculated to effectuate the statutory objectives. It has been judicially noted , however, that this legislative provision cannot be con- strued to vest the Agency with "virtually unlimited discretion" to devise or require measures properly subject to characterization as punitive, and that the affirmative action which the Agency is authorized to require of respondents , to effectuate the statutory objectives, must be limited to remedial acts. Republic Steel Corporation v. N.L.R.B., 311 U.S. 7, 10-12; Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 197-200. In this case, clearly, denial of the Respondent Union 's right to set off, against its reimbursement obligation , sums paid to union members and other employees directly, pursuant to union-maintained benefit programs would certainly result in making such members or employees more than whole, at the expense of the respondent labor organization. In the light of the foregoing findings of fact, and upon the entire record in this consolidated case, I make the following: CONCLUSIONS OF LAW 1. Union Taxi Corporation, designated as the Respondent Company herein, is an employer within the meaning of Section 2(2) of the Act, engaged in business ac- tivities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Teamsters Automotive & Chauffeurs Local Union No. 165 is a labor organiza- tion within the meaning of Section 2(5) of the Act, as amended, which admits employees of the Respondent Company to membership. 3. By its participation in the execution , maintenance, and enforcement of trade agreements with union-security provisions invalid under the Act, as amended-and by specific discrimination , pursuant to the requirements of the most recent of those trade agreements, with respect to the hire and employment tenure of Wayne B. Lewis, the complainant herein-reasonably calculated to encourage membership in the re- spondent labor organization, Union Taxi Corporation did engage in and continues to engage in unfair labor practices within the meaning of Section 8(a)(3) of the Act, as amended. ADRIAN STEEL CO. 847 4. By its course of conduct in this respect , Union Taxi Corporation has also inter- fered with , restrained, and coerced employees and applicants for employment in the exercise of rights guaranteed in Section 7 of the Act; it has thereby engaged in and continues to engage in unfair labor practices within the meaning of Section 8(a) (1) of the Act, as amended. 5. By its participation in the execution , maintenance, and enforcement of trade agreements with union-security provisions invalid under the Act, as amended-and by its action in causing Union Taxi Corporation to discriminate against employees, applicants for employment, and Wayne B. Lewis in particular, in violation of Section 8(a)(3) of the Act, as amended-Teamsters Automotive & Chauffeurs Local Union No. 165 did engage in and continues to engage in unfair labor practices within the meaning of Section 8(b) (2) of the Act, as amended. 6. By its course of conduct in this respect, Teamsters Automotive & Chauffeurs Local Union No. 165 has also restrained and coerced employees and applicants for employment in the exercise of rights guaranteed in Section 7 of the Act; it has thereby engaged in and continues to engage in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act, as amended. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act, as amended. [Recommendations omitted from publication.] Adrian Steel Co. and International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, UAW-AFI,-CIO. Case No. 7-CA-2751. February 28, 1961 DECISION AND ORDER On December 7, 1960, Trial Examiner Earl S. Bellman issued his Intermediate Report in this case, 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. The Trial Examiner also found that the Respondent had not engaged in an unfair labor practice alleged in the complaint, and recommended that such allegation be dismissed.' Thereafter, the Respondent filed exceptions to the Intermediate Report and a support- ing brief. 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 Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Adrian Steel Co., Adrian, Michigan, its officers, agents, successors, and assigns, shall: I No exceptions were filed to this recommendation , and we therefore adopt it pro forma. 130 NLRB No. 104.