Esgro, Inc.

ESGRO INC. AND ESGRO VALLEY INC. 285 2. International Union of Operating Engineers , Local 826, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All Respondent's production and maintenance employees and laboratory tech- nicians employed at Respondent's Odessa, Texas, plant, including head operators, head technicians, head craftsmen, and special laborers, but excluding clerical em- ployees, safety inspectors, professional employees , guards, and supervisors as defined by the Act, constitute, and at all times material constituted , a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. International Union of Operating Engineers, Local 826, AFL-CIO, was on February 5, 1960, and at all times thereafter has been, the exclusive statutory repre- sentative of all the employees in the above -described appropriate unit for the pur- poses of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on March 17, 1960, and at all times thereafter, to bargain col- lectively with International Union of Operating Engineers , Local 826, AFL-CIO, as the exclusive statutory representative of the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2( 6) and (7) of the Act. 7. Respondent did not, except as otherwise found above, violate the Act. [Recommendations omitted from publication.] Esgro Inc. and Esgro Valley Inc. and Herbert Rivkin White Front Stores, Inc. and Herbert Rivkin Retail Clerks International Association, Local No. 777, AFL- CIO and Herbert Rivkin . Oases Nos. U-CA-4035, 21-CA-4060, and 921-CB-1564-1. January 15, 196. DECISION AND ORDER On May 4, 1961, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that certain of the Respondents had engaged in and were engaging in un- fair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the Intermedi- ate Report attached hereto. Thereafter, the General Counsel and the Esgro Respondents filed exceptions to the Intermediate Report and briefs. Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. 135 NLRB No 20 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Trial Examiner found that Esgro Inc., Esgro Valley Inc., and Esgro Central Inc., were commonly owned and operated as parts of Francis J. Esgro's joint enterprise. However, because no charge had been filed specifically naming Esgro Central Inc., as a Respond- ent, he concluded that the limitations imposed on him by Section 10(b) and the allegations of the complaint barred a finding that the three Esgro Companies involved were a single employer within the meaning of the Act, and further required the dismissal of the com- plaint as to the discriminations against Rivkin while he was employed at Esgro Central Inc. We do not agree with these conclusions. To the contrary, we find that the complaint sufficiently alleged that the three Esgro Companies were a single Employer; that the record establishes that they are in fact a single Employer for purposes of the Act; and that the conduct alleged in the complaint to constitute unfair labor practices was the subject of charges timely filed and served upon Esgro Inc., and Esgro Valley Inc. In these circumstances, we con- ^clude that Section 10 (b) does not bar the allegations of the complaint based upon conduct of the Esgro Companies, acting through Esgro Central Inc., especially since the violations found were committed by Francis J. Esgro, the sole owner of all three companies. We further find that the Esgro Comapnies are jointly liable for the unfair labor practices of each, and that in these circumstances the failure to name Esgro Central Inc., as a party Respondent is not prejudicial. 2. The Union failed to file exceptions to the Trial Examiner's find- ing that the Union caused one of the Esgro enterprises (Central) to apply the union-security contract less than 30 days after its execution and in so doing to discharge employee Rivkin on February 23, 1960. Accordingly, we adopt his unfair labor practice finding as against the Union. As the Trial Examiner recommended dismissal of the com- plaint against the Esgro Companies, based on this discharge, only be- cause of his erroneous view as to the limitations imposed by Section 10 (b), we further find that by virtue of said discharge the Esgro Com- panies have violated Section 8 (a) (3) and (1) of the Act. 3. We agree with the Trial Examiner that another of the Esgro Companies (Valley), which had meanwhile reinstated Rivkin on March 1, 1960, unlawfully discriminated against Rivkin on June 10, 1960, by transferring him back to Central. In view of Rivkin's testi- mony, credited by the Trial Examiner, we further find, contrary to the Trial Examiner, that by discharging Rivkin from Central on June 19, 1960, the Esgro Companies have further unlawfully dis- criminated' against Rivkin, in violation of Section 8(a) (3), (4), and (1). 4. We also agree with the Trial Examiner that the remaining un- fair labor practice allegations of the complaint have not been established. ESGRO INC. AND ESGRO VALLEY INC. 287 The Remedy As we have found that the Esgro Companies have engaged in un- fair labor practices, in addition to those as found by the Trial Ex- aminer, we shall further order that they make Rivkin whole for any further loss of earnings resulting from the discrimination against him on June 19, 1960, and that they, jointly and severally with the Re- spondent Union, make Rivkin whole for any loss of earnings during the period from February 23 to March 1, 1960. On the basis of the foregoing and the entire record, the National Labor Relations Board hereby rejects the Trial Examiner's conclu- sions of law numbered 1 and 3, and hereby modifies his conclusions of law numbered 4 and 8, to read as follows : 4. Esgro Inc., Esgro Valley Inc., and Esgro Central Inc., are a single employer within the meaning of Section 2(2) of the Act. 8. By discriminating against Herbert Rivkin on February 23, June 10, and June 19, 1960, the Respondent Companies, Esgro Inc., Esgro Valley Inc., and Esgro Central Inc., have violated Section 8(a) (1), (3),and (4) of the Act. 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 : I. Respondents Esgro Inc., Esgro Valley Inc., and Esgro Central Inc., their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discharging or otherwise discriminating in regard to the hire or tenure of employment of any employees to discourage activities protected under the Act, or because an employee has filed charges under the Act. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act except in the manner permitted in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Herbert Rivkin immediate and full reinstatement to his former, or substantially equivalent position with Esgro Valley Inc. ; make him whole in accordance with the manner of computation set forth in F. ' W. Woolrworth Company, 90 NLRB 289, for any loss of wages suffered by' reason of the discriminations against him on June 10 and 19, 1960; and jointly and severally with Retail Clerks Union Local 777 and its successor, Retail Clerks Union Local 770, make him whole for any loss of wages suffered by reason of the dis- crimination against him on February 23, 1960; all as set forth in the 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD section of the Intermediate Report entitled "The Remedy," as modi- fied herein. (b) Preserve and, upon request, 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 amounts of backpay clue and the right to reinstatement under the terms of this Order. (c) Post at their places of business, including all places where notices to employees are customarily posted, copies of the notice at- tached hereto marked "Appendix A." 1 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, after being duly signed by a representative of said Respondents, shall be posted by the Respondents immediately upon receipt thereof and be maintained by them for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondents to insure that such notices are not altered, defaced, or covered by any other material. (d) Post at the saine places and under the same conditions as in paragraph (c) above as soon as they are forwarded by the Regional Director copies of the Respondent Union's notice attached hereto marked "Appendix B." (e) Mail to the said Regional Director signed copies of the notice marked "Appendix A" for posting by the Respondent Union as here- inafter provided. (f) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. II. Respondent Retail Clerks International Association, Local No. 777, AFL-CIO, and its successor Retail Clerks Union Local 770, its.officers, agents, representatives, and assigns, shall: 1. Cease and desist from : (a) Causing or attempting to cause the Esgro Companies to dis- criminate against any employees in violation of Section 8 (a) (3) of the Act. (b) In any other manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except in a manfler permitted in Section 8 (a) (3) of the Act. 2. Take the. following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with the Esgro Companies make Herbert Rivkin whole for any loss of pay he may have suffered by reason of his discharge by Esgro Central Inc., on February 23, 1960, until his rehire at Esgro Valley Inc., on March 1, 1960. ,I In 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 " ESGRO INC. AND ESGRO VALLEY INC. 289 (b) 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." 2 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by a representative of said Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the sane conditions as in paragraph (b) above, as soon as they are forwarded by the Regional Director, copies of the Respondent Companies' notice attached here- to marked "Appendix A." (d) Alai] to the said Regional Director signed copies of the notice marked "Appendix B" for posting by the Respondent Companies as hereinbefore provided. (e) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint, to the extent that it alleges violations of the Act against White Front Stores, Inc., be, and it hereby is, dismissed. 2 See footnote 1, supra APPENDIX A NOTICE TO ALL EMPLOYEES 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, you are notified that: WE WILL offer Herbert Rivkin immediate and full reinstatement to his former or substantially equivalent position with Esgro. Valley Inc., without prejudice to seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discriminations against him. WE WILL NOT discriminate against any employee because the has. exercised rights protected by the National Labor Relations Act,, or because he has filed charges with the National Labor Relations. Board. WE WILL N07' in any other manner interfere with, restrain, or coerce employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, or to engage in any concerted activities for the purpose 634449-t,2-vol 135-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except in the manner per- mitted in the provisos to Section 8 (a) (3). ESGRO INC., ESGRO VALLEY INC., ESGRO CENTRAL INC., 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 EMPLOYEES 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, you are notified that : WE WILL NOT cause or attempt to cause the Esgro Companies to discriminate against any employees in violation of Section 8(a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except as permitted in Section 8(a) (3). WE WILL make Herbert Rivkin whole for any loss of earnings sustained by him from February 23 to March 1, 1960. RETAIL CLERKS UNION LOCAL 770 (SUCCESSOR TO RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL No. 777, AFL-CIO), 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 by Herbert Rivkin , an individual, the General Counsel of the National Labor Relations Board issued a consolidated complaint alleging the commission of unfair labor practices , within the meaning of the National Labor Relations Act, as amended, 29 U.S .C. Sec. 151, et seq., herein called the Act, on the part of Esgro Inc., Esgro Valley Inc., White Front Stores, Inc:, herein called White Front, and Retail Clerks International Association , Local #777, AFL-CIO, herein called Retail Clerks #777. ' In essence the consolidated complaint alleges that White Front by maintaining and enforcing a collective-bargaining agreement with Retail Clerks #777, and ESGRO INC . AND ESGRO VALLEY INC. 291 simultaneously maintaining and enforcing licensing agreements with Esgro Valley Inc., and Esgro Central Inc., has engaged in unfair labor practices ; that Esgro Inc., Esgro Valley Inc., and Esgro Central-Inc., by licensing agreements with White Front; and by executing, maintaining, and enforcing a collective-bargaining agree- ment with Retail Clerks #777 and by discharging Herbert Rivkin, has committed certain unfair labor practices; and that Retail Clerks #777, by maintaining and enforcing a collective-bargaining agreement with White Front, by executing, main- taining, and enforcing collective-bargaining agreements with Esgro Valley Inc. and Esgro Central Inc., and by demanding the discharge of Rivkin , has engaged in other unfair labor practices. This matter came on for hearing before me in Los Angeles, California, from December 28 through December 30, 1960, with all parties represented.' Briefs from all counsel have been received and considered. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE OPERATIONS OF THE RESPONDENTS Esgro Inc. is a California corporation wholly owned by its president, Francis J. Esgro . Esgro Inc., from a location in Los Angeles, purchases jewelry, cameras, and other goods to a value in excess of $50 ,000 annually from suppliers located outside the State of California. Esgro Inc. warehouses this merchandise and supplies it to Esgro Valley Inc., Esgro Central Inc., and other retail outlets. Esgro Valley Inc. and Esgro Central Inc. are California corporations . Francis J. Esgro is the president of each of these latter corporations and owns all of the stock in each. Esgro Valley Inc., herein called Valley, is a retail camera and jewelry enterprise doing a retail business in space provided by White Front on the latter's premises in the San Fernando Valley area of Los Angeles County. Valley obtains its entire stock from Esgro Inc. and sells annually at retail more than $500,000 in merchandise. Esgro Central Inc., herein called Central, operates a retail business on the premises of a White Front store on Central Avenue in Los Angeles, California. Central purchases all of its merchandise from Esgro Inc. and its annual sales at retail exceed $500,000 in value. White Front Stores, Inc., herein called White Front, is a California corporation engaged in the business of operating retail department stores. In 1959 White Front sold merchandise having a value in excess of $500,000. Stock for its stores valued at more than $50,000 was shipped directly to it from points located outside the State of California. - Retail Clerks #777 entered into a collective-bargaining contract with White Front covering White Front employees and on a later date entered into collective- bargaining contracts with Valley and with Central covering the respective employees of the latter corporations . Subsequent to the execution of these bargaining agree- ments on about April 1, 1960, Retail Clerks #777 became merged with Retail Clerks Union, Local 770, herein called Retail Clerks 770, and thereafter had no separate identity. I find that White Front, Esgro Inc., Valley, and Central are each engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the operations of each satisfy the Board 's jurisdictional criteria.2 I find that Retail Clerks #777 at all times material herein was a labor organiza- tion within the meaning of Section 2(5) of the Act; that Retail Clerks Union, Local 770 is also a labor organization within the meaning of that Section, and that on April 1, 1960, Retail Clerks #777 became merged with Retail Clerks 770. Although the operations of Central are such as to enable the Board to assert jurisdiction, a question arises concerning the power of the Board to make findings -of-unfair labor practices against that corporation or to remedy any such violations should they be found. In respect to Esgro Inc., Valley, and Central, the complaint alleges that they "constitute a single integrated business enterprise ." Bracketing the three corporations under the designation "Respondent Esgro," the complaint asserts that they constitute "an employer" engaged in commerce . - As had been noted, 1 No appearance was entered for Retail Clerks #777 However counsel for Retail Clerks 770 answered the complaint against Retail Clerks #777 and participated fully in the hearing 2 As to Valley and Central this finding is based in part , upon , the inference that some part of the imports of Esgro,Inc. are sold to Valley and Central. Thus each indirectly receives goods from - points beyond the California borders. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Francis J. Esgro, an individual, is the sole owner of the three corporations. Esgro• Inc. is the sole supplier of the remaining two. Business records of the three corpora- tions are kept at the office of Esgro Inc. by an individual in the employ of the last corporation. Francis J. Esgro selects managers and sometimes other personnel for Valley and for Central. The managers in turn sometimes hire or discharge em- ployees at their respective locations. On the basis of the entire record it is obvious and I find that all hirings and discharges are subject to the approval of Francis J. Esgro. Valley and Central have collective-bargaining agreements identical in form and content covering employees at the two locations. The contracts were executed in behalf of each corporation by Francis J. Esgro. Obviously Francis J. Esgro as an individual is in complete control of the three corporations, but this control derives obviously from his office as president of each and from his stockownership. No one of the corporations is by reason of stockownership in position to control another. Each of the retail outlets is dependent upon Esgro Inc. as a supplier of merchandise and neither purchases elsewhere. However as between Valley and Central there is no interdependency. Each is operated separately from the other. They are in separate trading areas and there is no policy of employee interchange. Employees of Valley are carried on payrolls peculiar to that enterprise and the same is true in respect to Central. On the occasion when an employee is moved from one retail store to another he is shown as terminated at the store from which he is removed. It appears that these changes are made by Francis J. Esgro and not by the store managers. No charge was filed against Central and this corporation is not named as a respondent in the caption of the complaint. However, because the three corporations are wholly owned by Francis J. Esgro and because he is the active and effective operating head of each, the complaint alleges that they constitute a single respondent and that an unfair labor practice committed at any of the operations is an unfair labor practice committed by a single employer. Because no one of the corporations has a stock interest in or control over another, because Francis J. Esgro, an indi- vidual, has not been charged with the commission of any unfair labor practices, and because in the circumstances it is my opinion that a corporation may not be the subject of a complaint based upon a charge naming another corporation even though both may be commonly owned, I will make no finding of unfair labor practices in respect to Central. There are situations when it is appropriate, neces- sary, and permissible to "pierce the corporate veil." However, in all cases where such a device is invoked and separate corporate identities are put aside there is some showing that the corporate form was adopted or used to accomplish a forbidden end or to frustrate statutory policy. In such situations a court may look behind the corporate sham to bring the real defendant to bar. Here there is no suggestion that the separate corporations were formed upon other than legitimate business con- siderations. The separate and distinct existence of these corporations as employers cannot. I think, be ignored and the absence of a charge alleging the commission of any unfair labor practices on the part of Central requires the dismissal of the complaint against it. II. THE UNFAIR LABOR PRACTICES On January 10, 1958 , Central and Valley entered into separate but identical agreements with White Front in which White Front licensed Valley to operate a camera and jewelry department in White Front's San Fernando Valley store, and licensed Central to operate a similar department in White Front's Central Avenue store . The agreements have since been renewed and were in effect at the time of the hearing. The complaint alleges that paragraph 18 of each such agreement con- flicts with the Act when considered along with another and different agreement run- ning between White Front and Retail Clerks #777. The paragraph reads: Agreement with Union. In order to have complete harmony in the operation of the Licensoi'a busi- ness, Licensee agrees that in the event it is requested to enter into an agreement with an organized union with whom Licensor has an existing agreement covering its employees, it will enter into a agreement with said organized union cover- ing salary and other working conditions for its employees. The agreement between White Front and Retail Clerks #777 dated July 24, 1959, reads in Section XI(i) : Any new lease agreement or renewal of an existing lease agreement entered into between the Employer and any concessionaire subsequent to the date of execution of this 'agreement shall provide that the concessionaire shall employ his retail store employees at the same wages, hours and working conditions as ESGRO INC. AND ESGRO VALLEY INC. 293 provided by this Agreement and that the lease agreement shall be cancellable upon forty-eight (48) hours' notice by the Employer in the event that the concessionaire is picketed or threatened with picketing as the result of a bone fide labor dispute. . . . On November 18, 1959, all employees of Valley and of Central met with Fran- cis J. Esgro and a representative of Retail Clerks #777. At this meeting a ma- jority of the employees in each store indicated their desire for representation by Retail Clerks #777. There is evidence of a persuasive character to the effect that Esgro told the employees that unless they joined Retail Clerks #777, nis license with White Front would not be renewed when it expired February d, 1960. Indeed, Esgro himself, although testifying that he told the employees the decision was one for them to make, admitted that he said if they did not join this union there might .be another concessionaire in the White Front stores. Even if it be true that Esgro on this occasion said only that a failure to designate Retail Clerks #777 might give rise to a possibility of a change in concessionaires, I think it unreal to suppose that the employees hearing this did not make the obvious connection between the duration of Esgro's license and the security of their employment. I think it amply clear that the designation of Retail Clerks #777 by the employees of Valley and Central was made in circumstances which induced a reasonable belief that their continued employment required them to take such action. However, the first charge in this proceeding was filed on June 2, 1960. November 18, 1959, being a date more than 6 months preceding the filing of that charge, no unfair labor practice finding may be based upon the happenings at this meeting and none will be After negotiations, Francis Esgro acting for Valley and Central, on January 26, 1960, entered into separate but identical collective-bargaining agreements with Retail 'Clerks #777. Nothing in the provisions of these agreements is alleged per se to be unlawful. It is argued, however, in support of the complaint that Retail Clerks #777 on the date of the execution of these collective-bargaining agreements did not represent an uncoerced majority of employees at either store The short answer to this argument is that the burden of showing a coerced majority or coercion in any respect has not been met by the General Counsel. The happenings at the meeting on November 18 are barred from consideration on this point by Section 10(b) of the Act. I find that the execution of the said agreements on January 26, 1960, has not in any respect been established to be a violation of the Act. It is further argued by the General Counsel that the licensing agreement running between White Front on the one hand and Valley and Central on the other forced the two licensees to accept Retail Clerks #777 as the bargaining representative of the affected employees. The argument runs that if Valley and Central did not enter into a contractual relationship with Retail Clerks #777, White Front was bound not to renew the licenses at the Valley and Central stores. I find no illegality in paragraph 18 of the licensing agreements. Apart from the fact that the language of that paragraph does not in terms appear to require the licensees to enter into an agreement with any union other than one entitled to recognition, it is also the fact that there is a complete lack of evidence tending to show that White Front at any time within the period beginning 6 months before the filing of the first charge by any overt act sought to force either licensee to enter into any sort of agreement with Retail Clerks #777. In a much divided opinion (Northern California Chap- ter, The Associated General Contractors of America, Inc, et al., 119 NLRB 1026) a Board majority has held that such contract language without more does not con- stitute a violation of the Act. I consider that decision to be controlling here and will therefore dismiss that aspect of the complaint. Herbert Rivkin came to the employ of one of the Esgro corporations in 1956 as a salesman . Until his final discharge on June 19, 1960, from Central, he had worked at each of the stores and once for a period of several weeKs in the warehouse of Esgro, Inc. Rivkin seems to have been a competent salesman and to have had some qualities as an employee which Francis Esgro found to be attractive. He was discharged by the manager of Valley on one occasion but shortly thereafter was rehired by Esgro and put to work at the Central store. There is evidence that Rivkin was a somewhat better than average salesman but that for about the last year of his employment he busied himself in rearranging counter displays and in devising in- Nentory systems somewhat to the disadvantage of sales. Rivkin lived in a location near Valley but removed by about 35 miles from Central. In February 1960 Rivkin was working at Central although he had on many occa- sions sought to be transferred to Valley, urging upon Francis Esgro the considera- tion that the latter location was much more convenient for him. About mid-Feb- ruary Rivkin was told by Julius Derge, the manager of Central, that the contract with Retail Clerks #777 required that Rivkin join that union in order to continue employment. On February 23, Derge told Rivkin that if he did not join he could 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not come to work the next day. Rivkin consulted by telephone with Francis Esgro and verified that he was indeed required to become a member if he wanted to continue at work. Rivkin did not join and did not appear for work on February 24. Francis Esgro testified that an agent for Retail Clerks #777 had informed him about February 15 that Rivkin was one who had not yet joined and that Rivkin must do so if he desired to continue at work. Esgro conceded that be passed this information on to Manager Derge and to Rivkin. No witness for Retail Clerks #777 testified to this point. I find that on or about February 15, 1960, Retail Clerks #777 demanded the discharge of Rivkin if he did not become its member.3 On February 29, Rivkin came to Esgro's office at Esgro Inc. and talked with Esgro about employment. As a result Rivkin agreed to join Retail Clerks #777 and Esgro agreed to put him to work at Valley. Each kept his agreement and Rivkin became a salesman at Valley on March 1. Apparently resentful of the necessity for joining Retail Clerks #777 and believing that the employees of Valley and Central were coerced into designating that organization as bargaining representative, Rivkin ex- pressed that opinion to other employees. On two occasions, however, Rivkin invoked provisions of the collective-bargaining agreement to secure overtime pay from his employer. After returning to work at Valley, Rivkin continued to devote a portion of his time to nonselling activities with the result that his sales fell off. On at least two occasions Francis Esgro told Rivkin that he wanted the latter to devote his time to selling rather than to attempts to reorganize the department. On several occasions during this period Francis Esgro told Rivkin that he was needed at Esgro Central because he felt that Rivkin could increase diamond sales. When Esgro asked Riv- kin to transfer to the Central store, Rivkin answered that the Valley store was more convenient for him and that he was doing valuable work in "rejuvenating" the department. On June 2 Rivkin filed the first charge in this proceeding against Valley, alleging that he was discharged unlawfully on February 23. On June 4 a copy of the charge was served by registered mail to the address of Valley in the White Front store and was accepted by an individual purporting to sign for White Front. The precise date on which this charge was received by Valley is uncertain. On June 7 Esgro told Rivkin that his sales were about one-half those of another salesman in the department. Rivkin said that he had been doing work other than selling. Later in the day Esgro said that he wanted to transfer Rivkin to Central to sell diamonds. No mention was made during these conversations concerning the filing of the charge. In the evening, June 8, Esgro telephoned Rivkin at Valley. The following ac- count of the conversation which ensued is based upon the credited and uncontra- dicted testimony of Rivkin. Esgro said that he had just received a letter from the Board and asked if Rivkin had been to the Board's office. Rivkin admitted that he had and Esgro asked him to explain his motive. Rivkin said that he wanted to be paid for the days he had lost from work in February. Esgro said that Rivkin was "getting many involved" and that Esgro was being put "on the defensive." Adding that he perhaps should have discharged Rivkin in February, Esgro said that he had been overpaying Rivkin for some time. Rivkin mentioned that he had joined the Union upon Esgro's agreement that he would be put to work at Valley. Esgro answered that he was running the business and would decide where an employee could best be used. June 9 was an off-day for Rivkin. Late in the evening he received a telephone call from Manager Derge of Central telling him to come to work at Central on June 10. Speaking to Esgro in the morning of June 10, Rivkin asked why he was not permitted to stay at Valley. Esgro answered that he was under no obligation to explain but that the change was made for business considerations. When Rivkin sought to argue the merits of the matter, Esgro told him to report to Central or to consider himself terminated. Rivkin went to work at Central. Manager Derge conceded that Esgro had spoken to him about Rivkin's visit to the offices of the Board. After a searching cross-examination on the point, Derge ad- mitted that in the same conversation Esgro said that he was going to transfer Rivkin from Valley to Central. On redirect, Derge said that he could not recall whether this conversation with Esgro took place before or after the transfer and finally, that it happened after Rivkin had begun his last span of employment at Central. In his testimony Esgro said that he did not believe he was aware of the filing of the charge 8I infer that this was a demand for immediate discharge . There is no testimony in behalf of Local #777 to suggest otherwise. The contract was signed January 26 but effective January 15 This may have given officials of Local #777 the thought that the 30 day grace period began running on the earlier date. ESGRO INC. AND ESGRO VALLEY INC. 295• when the transfer was made. Upon consideration of the somewhat conflicting bits of evidence I credit the testimony of Rivkin to the effect that the filing of the charge was mentioned by Esgro to Rivkin on June 8 . 1 am convinced that the admission of Derge on cross-examination that the charge was mentioned by Esgro in the con- versation relating to transfer reflects accurately what happened. I find therefore that among the considerations leading to the move of Rivkin from Valley to Central was the fact that he had filed a charge against Valley. On June 19, Esgro came to Central and spoke with Rivkin. Esgro said that Rivkin had complained about not being paid for overtime and had filed a charge with the Board. Mentioning that Rivkin's sales in May were low, Esgro said that unless he gave up such activities as complaining to the Union about overtime payments and filing charges with the Board, he would have to leave the company. After an argu- ment about whether Rivkin would quit or whether Esgro would discharge him. Esgro finally told Rivkin that the latter was fired. This account of the happenings on June 19 derives from the testimony of Rivkin. Without particular reference to the con- versation with Rivkin on June 19, Esgro testified that he at no time told Rivkin that he was discharged because of the filing of a charge . The discharge took place, accord- ing to Esgro, because Rivkin's sales were poor and because he spent too much time in nonselling activities. Derge who was present on this occasion testified that there was no mention of the Board. On June 20 Rivkin spoke to Esgro at the latter 's office. Esgro said that Rivkin was fired because of his poor sales record. On June 23 Rivkin met with Esgro and with a representative of Retail Clerks 770. According to Rivkin, on this occasion, Esgro said that he was discharged because of poor sales and because he had talked to other employees about the Board and the Union. Samuel Matelson, a business representative of Retail Clerks 770, testified that he was present and that Esgro at- tributed the discharge to incompetence as a salesman and mentioned nothing about union or Board activity. Derge testified that there was no mention of the Board at the June 23 meeting. Esgro denied that he made any such statement to Rivkin on this occasion. I have set forth above and given consideration to the testimony of several wit- nesses concerning statements made by Esgro in conversations with Rivkin after the transfer to Central because this testimony has probative value in connection with the transfer from Valley. Because no charge was filed on or served upon Central, a finding of unfair labor practices against Central will not be made. It may be of course argued that in his conversations with Rivkin at Central, Esgro was speaking for one of the corporations named as a respondent in the complaint. There is little rational basis for such a conclusion . Neither Esgro, Inc. nor Valley as corporations had any control over Central. Esgro's authority to discharge Rivkin from Central derived from his position as president of that corporation. There is no reason to suppose that on the occasion when he spoke to Rivkin after the transfer he wag speaking to him in any other capacity. I credit Rivkin's testimony as to the content of the conversation with Esgro on June 19, and I find therefore that Esgro mentioned as one of the reasons for discharge his displeasure with Rivkin because of his enlist- ment of union aid in obtaining pay for overtime and because of the filing of a charge with the Board . I do not believe that Esgro would have mentioned such considera- tions in the presence of Matelson on June 23 . I find that Rivkin is mistaken in his, recollection that Esgro did so. Concluding Findings The terms of the collective-bargaining agreement between Esgro Central and Retail Clerks #777 requiring employees to become members of that organization 30 days after employment or 30 days after the effective date of the agreement are lawful. Thus after February 26, 1960, Rivkin could lawfully have been required to apply for membership to Retail Clerks #777 and to tender the requisite dues and initiation fees. However, the demand that he comply with this requirement was made by Retail Clerks #777 about February 15 and Rivkin was discharged for failure to do so at the close of business on February 23. As noted no charge was filed against Esgro Central at any time and a finding of unfair labor practices against that corporation may not be made. However, Esgro Central is an employer and it was caused by Retail Clerks #777 to discharge Rivkin unlawfully. By this circumstance, Retail Clerks #777 has caused an employer to discharge Rivkin in violation of Section 8(a)(3) of the Act and has thereby violated Section 8 (b)(2) of the Act. By causing his discharge, Retail Clerks #777 has restrained and coerced Rivkin in the exercise of rights guaranteed in Section 7 of the Act and has thereby violated Section 8(b)(1) (A) of the Act. _ 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When on June 10, Esgro told Rivkin to report to Central on penalty of discharge Rivkin was terminated at Valley. Why? There is much testimony to the effect that Esgro had long desired to use Rivkin's talents as a salesman at Central and that only because Rivkin opposed such a move was he permitted to remain at Valley. I .am convinced also that Rivkin was one prone to involve himself with detail not essential to sales and that this proclivity annoyed and antagonized the managers under whom he worked. Rivkin thought he knew best how to handle his job and he was not easily diverted from his concepts by his superiors. Thus I find it to be a fact =that Esgro before the filing of any charge desired to move Rivkin to Central and .that Esgro had reason to find dissatisfaction with Rivkin in that Rivkin neglected sales work to favor other activity. Yet Esgro until June 9, perhaps unwillingly, kept Rivkin at Valley. When Rivkin was told to report to Central it was after Esgro had questioned him about the filing of a charge, after Esgro had expressed unhappi- ness over this development, and after Esgro had told Rivkin that on account of the charge he was unsure that he could trust Rivkin in the future. The question posed .at the opening of this paragraph can hardly be answered with absolute conviction that the correct result has been reached. Esgro must have regarded Rivkin as a salesman who had value in his organizations for he agreed to let him work at Valley `beginning March 1 at a time when he preferred to have him at Central. That Esgro had reason for dissatisfaction with Rivkin in certain respects is also clear. But Rivkin's personality with whatever quirks it entailed was a familiar one to Esgro The change to Central did not promise to bring about a change in Rivkin. I conclude .that Rivkin was permitted to stay at Valley until June 9 because Esgro on balance ,preferred to accommodate Rivkin as against having him in a store where his services would have been of more value to Esgro. I think that the evidence fairly establishes that when Esgro learned that a charge had been filed he decided that he would no longer give preferential treatment to an employee who had by filing the charge dis- played no such consideration for him. The charge, I find, tipped the balance bringing about the termination of Rivkin at Valley and the move to Central. By terminating Rivkin at Valley because he had filed a charge Vally discriminated .against Rivkin in violation of Section 8(a) (4) of the Act. It is so found. By the dis- ,charge Valley interfered with, restrained, and coerced Rivkin in the exercise of rights .guaranteed in Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. The evidence does not present a violation of the Act on the part of Esgro Inc., Esgro Central Inc., or White Front Stores, Inc. The complaint against the corpo- rations will be dismissed. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices found occurring in connection with the operations of 'Esgro Valley Inc and Esgro Central Inc ., set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and -the free flow of commerce. IV. THE REMEDY Having found that Respondent Esgro Valley Inc., had engaged in certain unfair labor practices and that Respondent Retail Clerks #777 has engaged in certain other unfair labor practices it will be recommended that each cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Retail Clerks Local 770 as the successor to Retail Clerks #777 will, of course, be required to remedy unfair labor practices of the latter. As to Esgro Valley Inc., it will be recommended that it offer immediate and full reinstatement to Herbert Rivkin to his former or substantially equivalent position .and that it make him whole for any loss of earnings sustained by him from June 10, 1960, to the date of the offer of reinstatement less his net earnings during that period. As to Retail Clerks #777 and its successor Retail Clerks Local 770, it will be recommended that both make Rivkin whole for any loss of earnings sustained by him -for the period from February 23 to March 1, 1960, less his net earnings during that period. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The evidence does not establish a violation of the Act in any particular by !Esgro Inc. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 297 2. The evidence does not establish a violation of the Act in any particular by White Front Stores, Inc. 3. By reason of the fact that no charge was filed or served upon Esgro Central Inc., no finding of unfair labor practice is made as to that corporation and no order is recommended against it. 4. Esgro Valley Inc. and Esgro Central Inc. are employers within the meaning of Section 2(2) of the Act. 5. Retail Clerks International Association . Local No. 777, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 6. Retail Clerks Union, Local 770. is a labor organization within the meaning of Section 2 (5) of the Act and is the successor to Retail Clerks International Associ- ation, Local No. 777, AFL-CIO 7. By causing an employer to discharge Herbert Rivkin in violation of Section 8(a) (3) of the Act on February 23, 1960, Retail Clerks #777 has violated Section 8(b)(2) and 8 (b)(1)(A) oftheAct. 8. By discharging Herbert Rivkin on June 10, 1960, Respondent Esgro Valley Inc. has violated Section 8(a)(1) and (4) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] American Federation of Television and Radio Artists, AFL-CIO and L. B. Wilson, Inc. (Radio Station WCKY) Cincinnati Local, American Federation of Television and Radio, Artists, AFL-CIO and L. B. Wilson, Inc., (Radio Station WCKY). Cases Nos. 9-CC-131 and 9-CC-132. January 15,1962 ORDER DENYING MOTION On October 31, 1961, the Board issued a Supplemental Decision and Amended Order (133 NLRB 1736), pursuant to remand of the United States Court of Appeals for the Sixth Circuit (285 F. 2d 902). On November 16, 1961, the Charging Party filed a motion for re- consideration. On November 27, 1961, the Respondents filed a memorandum in opposition. The motion for reconsideration argues principally that the Board exceeded the scope of the court remand, and the Supplemental De- cision was therefore void and without effect on the original Decision and Order (125 NLRB 786). More particularly, the argument is that the court remand only authorized the Board to make findings of fact upon the evidence exclusive of the testimony of witnesses Thorn- burgh and Sheppard, and did not authorize the Board to modify its original decision. We find merit in the Respondents' argument, in opposition, that the court remand necessarily included authority for the Board to render a new decision based upon its findings of fact. The Board having duly considered the matter, IT IS HEREBY ORDERED that the Charging Party's Motion for Re- consideration be, and it hereby is, denied. 135 NLRB No. 27._`