Distribution Centers, Inc.

DISTRIBUTION CENTERS OF DETROIT, INC. 1 Distribution Centers of Detroit, Inc., a Subsidiary of Distribution Centers, Inc. and Local 337, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Ind.) and Detroit Warehousemen's Local 1970, Party to the Contract. Case 7-CA-8615 May 22, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On October 27, 1971, Trial Examiner Thomas S. Wilson issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order for reasons as set forth below. Background Respondent opened its Taylor facility in June 1970,2 hiring King and Wickenheiser (both of whom were 17 years of age) as its first hourly paid employees. Both were told by Thomas, Respondent's vice president in charge of personnel, that they would be supervised by McClure. On June 9, Thomas suggested to the "boys" that he would like to see a company union started. That afternoon Thomas offered a typed contract purport- ing to be between Respondent and Detroit Ware- housemen's Local 1970 (Local 1970). Both King and Wickenheiser signed the contract. Thomas told the boys they could decide who would be president and who would be vice president. Article II of the contract provided, "as a condition of employment . . . all associates . . . shall become members of the Union on the 91st day after his hire [and] shall remain members . . . during the term of this agreement." The contract also contained the following seniority clause: Section 1. A new associate will not be eligible for union membership and privileges, or company paid benefits, until he has completed a ninety (90) day probationary period. Upon completion of the The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the probationary period his name will be entered onto the seniority list and his seniority date will become his first day worked on a continuous full- time status at Distribution Centers of Detroit, Incorporated. Persons who are the original signers of this are considered to have completed their probationary period and their names will be entered on the seniority list. [Emphasis supplied.] In the latter half of June, McClure arrived at the warehouse and began giving King and Wickenheiser work assignments and instruction with respect to the various tasks. McClure had the job title of group leader and had been transferred by Respondent from its Cincinnati facility to get the Taylor facility properly launched. Although Respondent' s organiza- tional chart called for a general manager, operations manager, office manager, foreman, and group leader, there was no foreman until McClure was promoted to that position on November 30. While assigned as group leader, McClure reported directly to the operations manager. Sometime in August or September, General Man- ager Anderson suggested to Wickenheiser that since Local 1970 had no constitution or bylaws, McClure could bring a copy of the independent union's bylaws from the Cincinnati facility. McClure did so, and said bylaws became the bylaws of Local 1970. Findings of Fact On October 10, within the Section 10(b) period, an election of officers was arranged by McClure, to be held on company time and in the Company's lunchroom. Upon leaving the lunchroom, King was stopped by Anderson and congratulated for being elected vice president. About a week later, Local 1970 began receiving from Respondent initiation fees of $5 and dues of $1 per month under checkoff authorizations provided by Respondent. Ultimately the dues were increased to $5 per month and Respondent, at least in the case of Wickenheiser, made this checkoff retroactive to June. On October 30, Respondent and Local 1970 executed a new contract. Except for the addition of one holiday and a wage increase , the agreement was verbatim the same as the June 9 agreement . McClure was a member of Local 1970's negotiating team during the negotiations leading to the October 30 agreement. Respondent thereafter supplied Local 1970 with stenographic help and Xeroxed documents when needed. Office Manager Highsmith provided assist- resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings. 2 Unless otherwise indicated, all dates are 1970 197 NLRB No. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance in composing grievances on behalf of Local 1970. Although it agreed to pay for Xeroxing, Local 1970 has not in fact done so; indeed, it has paid nothing for any of Respondent's services. On March 16, 1971, Thomas made a speech to the employees in which he stated that Respondent's owner had "very, very strong feelings" about the Teamsters and that Respondent had in the past closed facilities when the Teamsters came in. On April 14, 1971, Thomas told Wickenheiser that if the Teamsters became too strong, Respondent would close the Taylor facility. Conclusions Based on the facts found above, we find that Respondent dominated and interfered with the formation and administration of Detroit Warehouse- men's Local 1970, and contributed financial and other support to it in violation of Section 8(a)(2) and (1) of the Act. Contrary to our dissenting colleague, we do not believe the collection of dues, refusal to sign the October 30 agreement unless the wage clause was left intact, and the expulsion of King cleansed Local 1970 of Respondent's domination. The facts remain that McClure, whom the Trial Examiner found to be a supervisor, assisted in negotiations for the October 30 agreement and executed this agreement, along with Local 1970's newly elected president, on behalf of Local 1970. The October 30 agreement was a verbatim recitation of the June 9 agreement as prepared by Respondent, including the prohibition against employees becom- ing members of Local 1970 prior to completion of a 90-day probationary period and the requirement that employees must become members of Local 1970 on the 91st day after their hire. Thus, Respondent continues to have complete control over Local 1970's membership. Although King had been expelled from member- ship, Respondent continued to dominate Local 1970 through McClure who, as found above, provided Local 1970 with its bylaws and was instrumental in arranging the election of officers on company time. We find noteworthy the fact that this election took place shortly after a question arose at the plant about the fact that the June 9 contract had been executed on behalf of Local 1970 by two minors. The employees were given only 2 hours' notice of the election, even though the bylaws required such notice to be posted on the company bulletin board 10 working days before the election. One can reason- ably conclude that the only reason for the election was to elect an officer who had reached the age of majority who would then sign what Respondent believed would be a legally binding contract. While it may be true that by the actions mentioned by our dissenting colleague Local 1970 became less dominated, we are of the view that the test of domination should not be one of degree. We further find that Respondent, by threatening to close its Taylor installation if the employees brought in the Teamsters Union and by dominating and interfering with the formation and administration of Local 1970, and contributing support to it, violated Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Distribution Centers of Detroit, Inc., a subsidiary of Distribution Centers, Inc., Taylor, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. CHAIRMAN MILLER, dissenting in part: I find insufficient evidence of domination within the 10(b) period and dissent from that portion of my colleagues' f: - ` ng. It appears to be true, as the majority's recitation of facts indicates, that Local 1970 was at its inception instigated, and perhaps fully dominated, by the Employer. However, after October 6, 1970, the relevant 10(b) date herein, Local 1970 received but minor improper assistance from Respondent, such as the occasional use of company time for the election of officers, the providing of checkoff forms, and some stenographic assistance (the latter, however, being qualified by the fact that the Local agreed to pay for it). On the other hand, also during this same period, the once subservient Local 1970 appears to have become increasingly militant and independent from Respondent's influence. Shortly after October 10, 1970, Local 1970 started collecting dues and indeed still later within the period increased them substan- tially. The purpose of the dues collection was, as the Trial Examiner found, "it had filed three or four grievances which Respondent rejected and . . . the Local could not take the matters to arbitration because it had- no funds." And, during negotiations, Local 1970 was hardly acceding to any "domination" when it resolutely refused to sign an agreement unless Respondent left intact a wage clause in the agreement which Respondent had attempted to delete. Further, it is hardly consistent with the concept of "domination" for the Local to have DISTRIBUTION CENTERS OF DETROIT, INC. expelled the former president, King, from member- ship because he "admitted he had been keeping Respondent's officials informed regarding the inter- nal affairs of Local 1970." I would therefore conclude, from the evidence in this record, that whatever had been the situation at an earlier date, and despite the fact that Local 1970 received certain illegal assistance from Respondent after October 10, 1970, it cannot be said to have been "dominated" after that date. I therefore concur in my colleagues' opinion insofar as it finds, and prohibits, unlawful assistance, but I dissent from that part of the Order requiring that Local 1970 be disestablished. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner: Upon a charge duly filed on April 6, 1971, by Local 337, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Ind.), herein referred to as the Union or Charging Party, the General Counsel of the National Labor Relations Board, herein referred to as the General Counsel' and the Board, respectively, by the Regional Director for Region 7 (Detroit, Michigan), issued its complaint dated June 4, 1971, against Distribution Centers of Detroit, Inc., a subsidiary of Distribution Centers, Inc., herein referred to as the Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (2) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice a hearing hereon was held before me in Detroit, Michigan, on August 30-31, 1971, inclusive. All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence material and pertinent to the issues. At the conclusion of the hearing a short oral argument was had. No briefs were received from any of the parties. Upon the entire record in the case and from my observation of the witnesses, I , make the following. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleged, the answer admitted, and I therefore find: Distribution Centers of Detroit, Inc., a subsidiary of Distribution Centers, Inc., is, and has been at all times material herein, a corporation duly organized under, and I This term specifically includes the attorney appearing for the General Counsel at the hearing 3 existing by virtue of, the laws of the State of Michigan. At all times material herein, Respondent has maintained its principal office and place of business at 20505 Sibley Road, in the city of Taylor, and State of Michigan, herein called the Respondent's place of business. Respondent is, and has been at all times material herein, engaged as a public warehouse in storing and handling manufactured goods and raw materials. Respondent's place of business located at Taylor, Michigan, is the only facility involved in this proceeding. During the year ending December 31, 1970, which period is representative of its operations during all times material herein, Respondent, in the course and conduct of its business operations, had a gross revenue in excess of $50,000, which services were performed for various enterprises shipping goods directly to Respondent's warehouse from points located outside the State of Michigan or performed $50,000 worth of services on warehousing of products of customers, which products were shipped directly from Respondent's warehouse to points located outside the State of Michigan. Accordingly, I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNIONS INVOLVED Local 337, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Ind.), and Detroit Warehousemen's Local 1970 are labor organizations admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The Facts Respondent opened its Detroit (Taylor) facility in June 1970. At his friend Mitchell King's suggestion Terry Wicken- heiser with King applied to Respondent for work a few days prior to June 9, 1970.2 After being interviewed by Lee Thomas, Respondent's vice president of personnel, and Bob Paff, then Respondent's operations manager at Detroit, the two boys, both 17 years of age and members of the 1970 high school graduating class, were hired as forklift or hi-lo operators. They were told that they would be working under the supervision and direction of one Lester McClure as gang or group leader. McClure was then gang leader at Respondent's Cincinnati facility but was being transferred to Detroit in a week or 10 days. King and Wickenheiser were the first hourly paid employees to be hired at Detroit. June 9 was the first day of work for Wickenheiser and King, then the only two employees. About noon, while eating lunch, Vice President Lee Thomas joined them. The conversation turned to the wages, benefits, etc., of the job. Thomas inquired if anyone had approached them about joining a union. Nobody had. But Thomas said that he wanted to see a company union started and would be 2 All dates herein are in the year 1970 unless otherwise specified. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD willing to put all the facts about wages, benefits, holidays, etc., down on paper for them. The boys could see nothing wrong about that. About 2:30 p.m. Thomas returned with Paff to the two employees. This time Thomas had with him a typed contract purporting to be between Respondent and "Detroit Warehousemen's Local 1970, Ind.," a name which the boys had been allowed to select and which, at King's suggestion, did honor to their recent graduation from high school. Thomas also told them that they could make up their minds which one would be president and which one vice president of "Local 1970." So King became president and Wickenheiser vice president of this newly formed "labor organization." This is a case where the old saying of "all chiefs and no Indians" is definitely applicable. i The five-page document Respondent Vice President Thomas presented to Local 1970 President King and Vice President Wickenheiser purported to be a collective-bar- gaining agreement by and between Respondent and Local 1970. In article I of this agreement Respondent recognized "the Union as the sole and exclusive bargaining agent for the Company's associates [employees] at its Detroit, Michigan, warehouse," such recognition including "associ- ates working as warehousemen" but excluding supervisors. In article II Thomas had provided for a "union shop" whereby "as a condition of employment ... all associates ... shall become members of the Union on the 91st day after his hire as a full-time associate" and would have to remain members thereof "during the term of this [3-year] agreement." As this was King and Wickenheiser's first day of employment, this "seniority" clause appeared to prevent Local 1970 from having any members. However, apparent- ly acting from past experience,3 Thomas had drafted a seniority clause, article X, which read as follows: Section 1. A new associate will not be eligible for union membership and privileges, or company paid benefits, until he has completed a ninety (90) day probationary period. Upon completion of the proba- tionary period his name will be entered onto the seniority list and his seniority date will become his first day worked on a continuous full-time status at Distribution Centers of Detroit, Incorporated. Persons who are the original signers of this are considered to have completed their probationary period and their names will be entered on the seniority list. [Emphasis supplied.] Thus were King and Wickenheiser rewarded for their signatures as officers of Local 1970 onto this collective- bargaining agreement. The remainder of the document provided the usual legal matters contained in an ordinary collective-bargaining agreement: hours, wages, holidays, vacations, and a grievance procedure ending in arbitration which would be paid for equally by Respondent and Local 1970. The two boys were being paid $3.33 per hour on June 9. However the Teamsters Union and the other public warehouses in Detroit were then in negotiations on the question of wages. So in section 2 of article VII entitled 3 Each of Respondent's various facilities had similar independent "unions " "Wage Rates Per Hour" Vice President Thomas had provided as follows: Should the above driver's wage become 20 cents per hour less than the wages paid for equivalent work by competitive Detroit public warehouses the above rates will be adjusted to a competitive level. After Thomas had read the contract over with the two boys, he assured them that it would be all right for them to sign the agreement. With this assurance the two 17-year- old minors, now officers of a "labor organization," signed the agreement as requested. Thomas and Paff signed for Respondent. Thus was Local 1970 born. 1. Growing pains About 10 days or 2 weeks later Lester McClure appeared at the warehouse and began giving the two boys, now joined by a few other young men, their work assignments, showing them how to do the work, signing timecards, and otherwise supervising the work. On one occasion when Wickenheiser objected to the job to which McClure had assigned him, McClure told Wickenheiser to either do the job "or hit the clock." Wickenheiser did the work assigned. Although, according to Vice President Lee Thomas, a group leader had no authority to initial timecards of employees, McClure did so at Detroit. McClure apparently was listed on Respondent's payroll as a "group leader." At first McClure was only temporarily assigned to Detroit from Respondent's Cincinnati facility in order to get the Detroit facility properly launched. During this period of time he commuted weekly from his home in Cincinnati. During this period McClure worked a short day on Mondays due to his drive to and from Cincinnati. McClure would check in about 10 o'clock on Mondays but was paid from the beginning of the day at 8 o'clock. The other Detroit employees objected. They were overruled. A few weeks later McClure's assignment to Detroit became permanent. Thereafter and during the rather lengthy period it took McClure to sell his Cincinnati home, purchase a Detroit home, and move his family to Detroit, Respondent continued to pay him board and room while in Detroit, as well as mileage to and from Cincinnati, and pay him full time as a group leader even though working short days.4 Respondent's Detroit organizational chart calls for a warehouse general manager (Peter Anderson), an opera- tions manager (Robert Paff), an office manager (Charles Highsmith), and a foreman in the warehouse and under him a group leader (Lester McClure). During none of McClure's tenure as "group leader" was there ever a foreman at the Detroit facility. McClure at all times reported directly to the operations manager. So that at all times McClure was the only individual between the rank- and-file "associates" (employees) and the operations manager. By August or September McClure's seniority came into question by Local 1970. The question was whether McClure's seniority dated from his first employment with 4 Thomas explained that it was Respondent's policy that "there should be no financial sacrifice for this type of reassignment." DISTRIBUTION CENTERS OF DETROIT, INC. 5 Respondent in Cincinnati some 7 years before or from his first date of employment at Detroit. General Manager Anderson decided to permit the Union to decide that problem on its own. After all, it was clearly an academic matter under the circumstances. At or about this same time General Manager Anderson called Wickenheiser's attention to the fact that Local 1970 had no constitution or bylaws. Anderson suggested that, perhaps, McClure could bring a copy of the independent union's bylaws from Cincinnati. McClure not only could but, in fact, did. And so it was that, by the substitution of the name of Local 1970 and its officers, the bylaws of the Ohio Valley Warehouse Employees Locals became the bylaws of Detroit Warehousemen's Local 1970. It is noteworthy that these bylaws provided, inter aka, as follows: An election notice giving time, date and place of election must be posted on the Company bulletin board 10 working days before the election. The Officers of this local will set time, date and place of all meetings and elections. On September 10, it was stipulated, Local 1970 was certified as the bargaining agent at the Respondent's installation in Detroit as a result of a consent-election agreement entered into by and between Local 1970, Respondent, and the Regional Director. It was also stipulated that the eligibility list for this consent election contained the names of nine full-time regular employees as those employees entitled to vote. McClure was not included on this eligibility list purportedly because he was still on temporary duty at Detroit. It was stipulated that Respondent and Local 1970 certified nine employees to be eligible voters in the September 10 consent election. If these parties had considered the union-shop clause of their June 9 contract to be valid, there would have been only two eligible voters for the consent election, to wit, King and Wickenheiser. They were the only ones who had passed their probation- ary period as of the time of the election. It would seem then that, if either Respondent or Local 1970 had had any confidence in the legitimacy of-Local 1970 or the legality of the so-called bargaining agreement dated June 9 between it and Respondent, this consent election would never have been sought by either party. In view of the complete naivete of the Local 1970 officials about labor matters, it is a fair assumption, here made, that the motivating force to secure the September 10 consent election came from Vice President Thomas and/or his advisers. The only discernible purpose for the holding of this consent election would appear to be to give Local 1970 the aura of legitimacy and a veneer of respectability from having participated in a Board-conducted election. At this point the facts disclose Local 1970 to be one of the most completely employer-dominated labor organiza- tions this Trial Examiner has ever seen. One would have to revert to the 1930's in order to find another as completely dominated by an employer as Local 1970 has been in the instant case However, Respondent's attorney maintained at the hearing that Respondent had a perfect defense to the 8(a)(2) and (1) violation in that the charge here was not filed until April 6, 1971, and so the events occurring prior to October 6, 1970, could not, under Section 10(b) of the Act, be held to be unfair labor practices. For purposes of this case then we will assume that Respondent's statement of the law is correct and that, due to the time element imposed by Section 10(b) of the Act, Local 1970 was legitimatized on October 6, 1970. 2. Events after October 6, 1970 So it was that Local 1970 assumed the appearance of a legitimate labor organization through its participation in the consent election of September 10. Despite this legitimization of Local 1970 thereby, it retained its same two minors as its officers, to wit, King and Wickenheiser, together with its same 3-year collective-bargaining agree- ment dated June 9 by which Respondent granted it recognition, etc. Nothing, therefore, had changed except the aura and the veneer. A question arose at the plant about the fact that the June 9 collective-bargaining agreement was executed on behalf of the Union by two minors. So about noon on October 10, it was announced to the employees that Local 1970 would hold an election of officers after the 2 p.m. break period in the company lunchroom. When asked about using the lunchroom at this time, McClure answered that that would be all right with Respondent. The facts proved McClure to be right about this. As of October 10 there were in Respondent's employ five employees who had completed Respondent's 90-day probationary period of employment and were thus on the seniority roster and, under the union-shop provision of the June 9 agreement, were also members of the Union. These employees were King, Wickenheiser, Lawrence Gallagher, Kenneth Thompson, and Lester McClure. Under Local 1970's new bylaws, adopted from Respon- dent's Cincinnati installation, Local 1970 was to have four elected officers: a president, a vice president, a secretary- treasurer, and an alternate. On October 10 this election, as arranged by McClure, was held in Respondent's lunch- room during working hours for about one-half hour for which Respondent paid the attending employees. Law- rence Gallagher was elected president; Mitchell King, vice president; Thompson, secretary-treasurer; and Wicken- heiser, the alternate. According to the testimony at the hearing, McClure refused nominations for any office on the ground that his "religion" forbade it. As the five voting employees were leaving the lunchroom following the election, Anderson stopped King about 5 feet from the door thereof and congratulated him on his election. About a week after the October 10 election, Local 1970 began collecting initiation fees of $5 and dues of $1 per month from its members by means of a checkoff. Respondent supplied Local 1970 with prepared forms for such checkoff authorizations. Local 1970 decided on the 5 Apparently the name of the independent union at Respondent's Cincinnati installation 6 DECISIONS OF NATIONAL LABOR RELATIONS BOAicu necessity of dues because it had filed three or four grievances which Respondent rejected and then the Local could not take the matters to arbitration because it had no funds. Ultimately the dues, which are checked off by Respondent, were increased to $5 a month. Respondent, in the case of Wickenheiser, at least, made this checkoff retroactive to the month of June by checking off $8 dues from his paycheck. Local 1970 at the time of the hearing had approximately $200 in the bank after having spent some $50 on a beer party. On October 30 Local 1970 and Respondent executed a new contract. The agreement was signed on behalf of Local 1970 by Lawrence Gallagher, Lester ,6 and Mitchell King in that order and on behalf of Respondent by Anderson, Paff, and Highsmith. Except for the addition of one new holiday and an hourly rate increase of 43 cents resulting from the negotiations between the Teamsters Union and the other Detroit public warehousemen, the October 30 agreement was verbatim the same as the June 9 agreement. However the evidence indicates that two negotiation sessions were held before agreement was reached. The negotiating teams for the Union, consisting of Gallagher, Lester McClure, and King, resisted efforts by Respondent to eliminate article VII, section 2, quoted supra, regarding the adjustment of wages when they fall 20 cents below competitors' wages. When Local 1970 refused to sign an agreement without article VII, section 2, Anderson said he really did not care if the new officers signed or not as he already had a signed contract with Local 1970, to wit, the June 9 agreement. However Anderson ultimately agreed to leave article VII, section 2, in to get the new officers' signatures on the October 30 agreement. During its lifetime Local 1970 has required some typing of grievances and other documents and has also required the Xeroxing of a number of such documents. It is undisputed in this record that Respondent has supplied Local 1970 stenographic help as well as having Xeroxed a number of documents for Local 1970. In some instances, in fact, Office Manager Highsmith has assisted Union Secretary-Treasurer Thompson in composing certain docu- ments including grievances for and on behalf of Local 1970. It is also undisputed that, whereas there is in Respondent's file a document signed by Local 1970 secretary and treasurer that Local 1970 would pay Respondent 10 cents per copy for Xeroxing, Local 1970 has paid Respondent nothing for that or any other of the services rendered to it by Respondent to the date of the hearing. About November 24 Gallagher spoke to Office Manager Highsmith about the fact that the Respondent was leaving Mitchell King in charge of the warehouse and said that the employees "were not pleased" about this and had been thinking of going to the Teamsters Union. Highsmith answered that Respondent "had shut down a warehouse because they had trouble with the Teamsters." After McClure became foreman on November 30, King was promoted by Respondent to be group leader. In 6 The last name is pretty much of a scribble but could be "McClure" especially as McClure was one of Local 1970's negotiating team and McClure was the only "Lester" mentioned in the record January 1971 Local 1970 expelled Mitchell King from membership when King admitted that he had been keeping Respondent's officials informed regarding the internal affairs of Local 1970. On March 16, 1971, Vice President Thomas was host at a dinner for all of Respondent's employees at the Colonial Inn. Thomas, as host, made an after-dinner speech in which he mentioned that "It was our company's habit to hold dinner meetings with employees approximately twice a year" and that it was done in the interest of good employer-employee relations.7 Then after philosophizing about the "X-Y" theories of one Douglas McGregor about labor management relations and stating that for a while employers had too much power but now labor unions were getting too much power which was not good, Thomas mentioned the fact that Kenneth Ackerman, Respondent's owner and president, has "very, very strong feelings" about the Teamsters Union, even as Thomas admitted he himself had. Thomas then described an episode at one of Respondent's Ohio facilities where Ackerman was physi- cally assaulted on the head by some Teamsters member during a strike which caused Respondent to close down that facility. Thomas made it clear that Respondent had in the past closed facilities when the Teamsters came in. On April 14, 1971, Wickenheiser was in Columbus, Ohio, for a profit-sharing meeting. Before that meeting began he ran into Vice President Lee Thomas in the corridor of the building. Thomas invited him into the office. In the office Thomas told Wickenheiser that this was a warehouse which Respondent had closed before the Union got too strong and added that Respondent was keeping the Detroit facility open but that, if the Union got too strong, they would close that facility down because they could make more money leasing the building than by running it. After a short chat along this line, Wickenheiser went to the profit-sharing meeting. For a period between November and April Local 1970 held regular meetings, many of them at Thompson's home. Local 1970 has not met regularly on or off company premises since April 1971. B. Conclusions It is difficult to even imagine a labor organization more completely employer dominated than Local 1970 during 1970. In fact the only thing about Local 1970 which actually emanated from Respondent's employees was the name and number of the local which Vice President Lee Thomas permitted his two minor employees to select in honor of their graduation year from high school. Otherwise the evidence conclusively proved that, in the words of the complaint, "on or about June 9, 1970 Respondent by its agents, Lee Thomas and Robtrt Paff, did initiate, form, sponsor and promote and did recognize Local 1970 as the representative" for collective bargaining for its employees. In fact the suave Vice President Thomas actually had to persuade the two minors that it would be all right for them to sign the alleged collective-bargaining contract he had prepared as "officers" of Local 1970. More complete 7 The March 16 dinner is to date the only such dinner meeting Respondent has held for the Detroit employees DISTRIBUTION CENTERS OF DETROIT, INC. 7 domination of an alleged labor organization consisting at the time of these two minor employees is almost impossible to conceive. At the conclusion of the hearing, when queried about what possible defense Respondent could have, Respon- dent's attorney declared that he had a perfect defense: (1) There was no evidence of domination on or after October 6, 1970 (6 months before the charge herein was filed on April 6, 1971); and (2) Lester McClure (who had acted as part of the Local 1970 negotiating team at the "negotia- tion" and execution of the October-30 contract) was not a supervisors Under Section 10(b) of the Act it is true, as counsel apparently contends, that the events of June 9 cannot be found to be unfair labor practices unless the violation there happens to be a continuing violation. See Local Lodge No. 1424, IAM [Bryan Manufacturing Co.], 362 U S. 411. In this case we have such a continuing violation, unlike the Bryan case, because the union-security clause and the seniority clause of the June 9 contract are not legal in that, in the instant case, these two Respondent-drafted clauses interfere with internal union matters, to wit, both clauses forbid Local 1970 to grant membership therein to anyone who is not a Respondent employee who has completed his required 90-day probationary period of employment with Respondent. Thus Respondent completely controls at all times the membership of Local 1970. Respondent Employ- er has no legal right to control union membership as Respondent has done in the instant case. By the two articles referred to above in the alleged collective-bargain- ing agreement, Respondent has abrogated unto itself complete and absolute control over membership in Local 1970 whereby it controls who can become a member and then, on the other hand, after Respondent has permitted that employee to complete his 90-day probationary period forces that employee into such union membership. Finally through its power of discharge Respondent controls the duration of any employee's membership in said local. Thus Respondent dominates the membership of Local 1970 so long as these contract clauses remain extant in violation of Section 8(a)(2) and (1) of the Act. Actually this question of continuing violations as to the June 9 contract is academic because the October 30 contract "negotiated" by Local 1970 with Lester McClure as part of its negotiating team contains the same exact clauses giving Respondent the same life and death control over Local 1970 membership. These clauses in the October 30 contract, being verbatim with those in the June 9 contract, are equally illegal and violative of Section 8(a)(2)-and, in addition, are not affected by the time limitations of Section 10(b). Hence whether the 6-month period of Section 10(b) actually legitimizes, as Respondent here appears to contend, an obviously employer-dominated labor organi- zation need not bother us here as we have the same illegalities within 6 months of the filing of the chaige. Also Respondent brought out in evidence the fact that the Regional Director had certified Local 1970 as the bargaining representative for Respondent's employees "exclusive of supervisors" after a consent election on September 10. Apparently Respondent considers that this certification legitimizes Local 1970 in some fashion. In Bisso Towboat Company, Inc., 192 NLRB No. 116, second par. in part 3, the Board had this to say of a somewhat similar situation: "While securing a majority of the employees' votes in a Board-conducted election does not by itself insure the legality of a labor organization, it does lend some dignity to its status" The facts in the instant case indicate that it is highly questionable whether the consent election here lent "some dignity" to Local 1970 status or, on the other hand, amounted to an abuse of the Board's processes. It must be noted that at the heanng Respondent's counsel invited and accepted a stipulation that the eligibility list for this consent election contained the names of nine regular employees (exclusive of McClure who was said to be still on temporary duty in Detroit at this time) 9 as eligible to vote. It just so happens that on September 9 King and Wickenheiser would have been the only two employees who had completed their 90-day probationary period and thus the only "regular employees" of Respondent, at least under the terms of the existing June 9 contract between Respondent and Local 1970-if the parties had apprised the Regional Office of the existence and the terms of the June 9 agreement. Either the existence of the June 9 agreement was not disclosed or, at least, its terms were not applied in that consent election. The evidence indicates that there were two "negotia- tions" leading to the execution of the October 30 agreement which apparently replaced the June 9 agreement because somebody thought that this agreement ought to be executed by someone besides two minors. The Union's negotiating team for the October 30 contract was com- posed of its newly elected President Gallagher, Vice President King (who may have attained the age of 18 by this time), and Lester McClure. McClure also had been active in the holding of and voting in the October 10 election in the Respondent's cafetena during working hours. At this election McClure is said to have refused election to office because of his religion. Actually he had a better excuse: He was at all times material herein a supervisor within the meaning of the Act having the power and authority to supervise and control employees, to discharge, and to initial timecards. The employees had been informed that they were to be working under the supervision and control of Lester McClure and they did so work under his direction and control. In opposition Respondent presented evidence from Vice President Thomas that McClure was a "gang" or "group leader" at Detroit until promoted to foreman on Novem- ber 30, 1970, and that, while "foremen" had supervisory duties, "group leaders" did not. Consequently, according to Thomas, McClure was not a supervisor at Detroit. Admittedly Thomas did not know what duties McClure actually performed at Detroit. All Thomas could testify to 8 Counsel apparently still feels the same way because on October 1, 1971, conclusion of the heanng, counsel well knew that my feelings then were to he wrote the Trial Examiner explaining that he would be unable to file a the contrary Further study of this case has served merely to strengthen my brief herein due to his heavy schedule The second and last sentence of this then opinion epistle read "However, the lack of merit to the Complaint is so obvious that 9 Vice President Thomas had previously testified that McClure had been a brief is probably not necessary " After my frank remarks to him at the permanently assigned to Detroit in early August 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is what Respondent's organizational chart showed-which was that a foreman was a supervisor whereas a group leader was not. Thomas was thus testifying according to theory and not according to fact. Furthermore Thomas conveniently forgot the fact that, whereas McClure may well have been on Respondent's payroll as a group leader, there was during none of McClure's tenure any foreman above him as required by Respondent's same organization- al chart. Without such a foreman over him, McClure necessarily had to perform the duties of such foreman, whether being paid as a foreman or as a group leader. Hence Thomas's testimony here is worthless, particularly in view of the duties which the evidence showed that McClure actually performed. Furthermore Respondent failed to call any of his Detroit supervisors who would have known McClure's authority or to call McClure himself who was not shown to be unavailable. The inference to be drawn from the absence of these witnesses is that, if called, the evidence of these witnesses would not have been favorable to Respondent's contention. I here draw that inference. It is to be recalled that General Manager Anderson deliberately got McClure involved with the Union when he suggested to Wickenheiser that McClure could, would, and did provide the necessary bylaws for Local 1970 from the independent local union at Cincmnati.10 From that time on, at least, Supervisor McClure became and remained very active in Local 1970 with Respondent's knowledge, consent, and cooperation in violation of Section 8(a)(2) and (1) of the Act. Because of the actions above found I am convinced and, therefore, find that Respondent dominated and interfered with the formation and administration of Detroit Ware- housemen's Local 1970, and contributed financial and other support to it in violation of Section 8(a)(2) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship 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. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, as alleged in the complaint, I shall recommend that it cease and desist therefrom and that it take the necessary affirmative action to effectuate the policies of the Act. Having found that Respondent has illegally dominated and interfered with the formation and administration of 10 It should be pointed out here that McClure actively assisted in violating those same bylaws when he assisted and participated in the election of October 10 because those bylaws required a 10-day notice of such election to be posted on Respondent's bulletin boards prior to the holding of any such election This provision was conveniently forgotten with the concurrence of Respondent Detroit Warehousemen's Local 1970 and has contributed financial and other support to it, I will recommend that Respondent permanently withdraw and withhold all recognition from, and completely disestablish, Detroit Warehousemen's Local 1970, or any successor thereto, as a bargaining representative of any of its employees. Because of the coercive effect of the "union shop" and "seniority" clauses in the June 9, 1970, and the October 30, 1970, agreements, I will order Respondent to reimburse each of its employees by a sum of money equal to the initiation fees and dues checked off from each by Respondent to Local 1970 with interest thereon at 6 percent per annum. Because of the type of the unfair labor practices engaged in by Respondent, I sense an opposition by Respondent to the policies of the Act in general and I deem it necessary to order Respondent to cease and desist from in any manner infringing on the rights guaranteed its employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Distribution Centers of Detroit, Inc., a subsidiary of Distribution Centers, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 337, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Ind.), and Detroit Warehousemen's Local 1970 are labor organizations within the meaning of Section 2(5) of the Act. 3. By dominating and interfering with the formation and administration of Local 1970 and by contnbuting financial and other support to it, Respondent has violated and is violating Section 8(a)(2) and (1) of the Act. 4. By threatening to close the Respondent's Detroit installation if Respondent's employees bring in the Teamsters Union and by dominating and interfering with the administration and formation of Local 1970, Respon- dent has violated and is violating Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 11 ORDER Respondent, Distribution Centers of Detroit, Inc., a subsidiary of Distribution Centers, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dominating or interfering with the formation or administration of Detroit Warehousemen's Local 1970 or 11 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes DISTRIBUTION CENTERS OF DETROIT, INC. any other labor organization of its Detroit (Taylor), Michigan, warehouse employees, or from contributing financial or other support to Detroit Warehousemen's Local 1970 or any other labor organization. (b) Giving effect to any contract or agreement between it and Detroit Warehousemen's Local 1970 covering its Detroit (Taylor), Michigan, warehouse employees; provid- ed, however, that nothing herein shall be construed to require Respondent to vary or abandon those wages, hours, or other substantive features of its relations with its employees, established in performance of such contract or agreement, or to prejudice the assertion by the employees of any rights they may have thereunder. (c) Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act by dominating or interfering with the administration or formation of Local 1970 or by threatening to close the Detroit facility if the employees go to any other union. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Withhold and withdraw all recognition from, and completely disestablish, Detroit Warehousemen's Local 1970 as the representative of the Detroit (Taylor), Michi- gan, warehouse employees for the purpose of dealing with Respondent concerning wages, rates of pay, hours of employment, or other terms and conditions of employ- ment. (b) Reimburse each of Respondent's Detroit warehouse- men for all the initiation fees and dues checked off from him by Respondent for Local 1970 with interest thereon at 6 percent per annum. (c) Post at its facility in Detroit (Taylor), Michigan, and in its home office at Columbus, Ohio, copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.13 IT IS FURTHER RECOMMENDED that, unless the Respon- dent notifies said Regional Director within 20 days from the receipt hereof that it will take the action here recommended, the Board issue an order directing Respon- dent to take the action here recommended. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 11 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read- "Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 9 WE WILL NOT dominate or interfere with the formation or administration of Detroit Warehouse- men's Local 1970 or any other labor organization of our Detroit (Taylor), Michigan, warehouse employees, and we will not contribute financial or other support to Detroit Warehousemen's Local 1970 or any other labor organization. WE WILL NOT give effect to any contract or agreement between us and Detroit Warehousemen's Local 1970 covering our Detroit (Taylor), Michigan, warehouse employees. WE WILL permanently withdraw and withhold recognition from, and completely disestablish, Detroit Warehousemen's Local 1970, or any successor thereto, as a bargaining representative of any of our employees. WE WILL NOT threaten to close our Detroit ware- house if our employees become interested in a labor organization. WE WILL reimburse each of our employees a sum of money equal to the initiation fees and dues which we checked off from him with interest thereon at 6 percent per annum. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist any outside union, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity. All our employees are free to become or remain, or refrain from becoming or remaining, members of any outside labor organization. DISTRIBUTION CENTERS OF DETROIT, INC., A SUBSIDIARY OF DISTRIBUTION CENTERS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.