Teamsters Local Union No. 574

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters Local Union No. 574, affiliated with In- Local Union No. 574, affiliated with International ternational Brotherhood of Teamsters, Chauf- Brotherhood of Teamsters, Chauffeurs, Warehouse- feurs, Warehousemen, and Helpers of America men, and Helpers of America, Cape Girardeau, and Lola Wheeler. Case 14-CA-14589 Missouri, its officers, agents, and representatives, November 19, 1981 shall take the action set forth in the said recom- mended Order. DECISION AND ORDER DECISION BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN STATEMENT OF THE CASE On June 14, 1981, Administrative Law Judge WALTER H. MALONEY, JR., Administrative Law Walter H. Maloney, Jr., issued the attached Deci- Judge: This case came on for hearing before me at Cape sion in this proceeding. Thereafter, Respondent Girardeau, Missouri, upon an unfair labor practice com- filed exceptions and a supporting brief, and the plaint,' issued by the Board's Regional Director for Charging Party filed a brief in response to Re- Region 14, which alleges that Respondent Teamsters spondent's exceptions. Local Union 574, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehousemen, and Pursuant to the provisions of Section 3(b) of the Helpers of America,2 violated Section 8(a)(l), (3), and (5) National Labor Relations Act, as amended, the Na- of the Act. More particularly, the complaint alleges that tional Labor Relations Board has delegated its au- Respondent discriminatorily discharged Lola Wheeler thority in this proceeding to a three-member panel. because of her union activities and her protected con- The Board has considered the record and the at- certed activities, that it unlawfully repudiated its collec- tached Decision in light of the exceptions and tive-bargaining obligations with the labor organization briefs and has decided to affirm the rulings, find- representing its office clerical and building maintenance ings,' and conclusions of the Administrative Law employees and unlawfully withdrew recognition from Judge, to modify his remedy,2 and to adopt his rec- that Union, and that it refused to reinstate unfair labor ommended Order. practice strikers upon their unconditional offer to return to work. Respondent insists that Wheeler is a supervi- ORDER sory employee who is not entitled to the protection of Pursuant to Section 10(c) of the National Labor the Act, that the labor organization with whom a pre- Relations Act, as amended, the National Labor Re- ceding administration at Local 574 had concluded a col- lective-bargaining agreement covering office and janitori- lations Board adopts as its Order the recommended al employees was unlawfully assisted, that the collective- Order of the Administrative Law Judge and bargaining agreement it negotiated is null and void, and hereby orders that the Respondent, Teamsters that the strikers who requested reinstatement were eco- nomic strikers who had been replaced at the time they Respondent has excepted to certain credibility findings made by the noistkeswohdb n repae at e the Administrative Law Judge. It is the Board's established policy not to tendered their applications to return to work. Upon these overrule an administrative law judge's resolutions with respect to credi- contentions, the issues herein were joined.3 bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 'The principal docket entries in this case are as follows: 2 In the remedy section of his Decision, the Administrative Law Judge Charge filed herein by Lola Wheeler against Respondent (herein some- recommended that the backpay for four unfair labor practice strikers times called Local 574 or the Teamsters) on January 12, 1981, and an should commence running 5 days after they first requested reinstatement. amended charge filed on February 13, 1981; complaint issued by the Re- In Drug Package Company, Inc., 228 NLRB 108 (1977), the Board point- gional Director for Region 14 against Respondent on February 19. 1981; ed out that the 5-day period after which backpay for an unfair labor Respondent's answer filed on March 3, 1981; hearing held in Cape Girar- practice striker begins to run exists to provide a reasonable accommoda- deau, Missouri, on March 23 and 24, 1981; briefs filed with me by the tion between the interest of the employees in returning to work as quick- General Counsel, the Charging Party, and Respondent on or before April ly as possible and the employer's need to effectuate that return in an or- 27, 1981. derly manner. On the other hand, if an employer has rejected, attached 2 Respondent admits, and I find, that it is a labor organization which an unlawful condition to, or ignored an unconditional offer to return to represents employees in negotiating wages, hours, and terms and condi- work, the 5-day period serves no useful purpose and backpay will com- tions of employment with employers located in southeast Missouri, and is mence as of the unconditional offer to return to work. Interstate Paper an integral part of the International Brotherhood of Teamsters, Chauf- Supply Company. Inc., 251 NLRB 1423 (1980). In the instant case, Re- feurs, Warehousemen, and Helpers of America. a multistate labor organi- spondent ignored the offer to return to work by the four unfair labor zation. Respondent maintains its place of business at Cape Girardeau. practice strikers. In such circumstances, the Administrative Law Judge Missouri. In the course and conduct of its business, Respondent collects erred by imposing a 5-day period on the tolling of backpay for the four from its members dues, initiation fees, and per capita taxes in excess of unfair labor practice strikers, and, therefore, we have modified the Ad- $50,000 per year and annually remits from Cape Girardeau, Missouri, to ministrative Law Judge's recommended remedy, and we shall direct that the International Headquarters in Washington, D.C., per capita taxes in the backpay for the four unfair labor practice strikers shall commence excess of $50,000. Accordingly, Respondent is an employer within the from their first offer to return to work. For the reasons set forth in their meaning of Sec. 2(2), (6), and (7) of the Act. Office Employees and partial dissent in Drug Package Co., Inc., supra, Members Fanning and Building Maintenance Employees Unit of Teamsters Local Union No. Jenkins would in any event begin Respondent's backpay obligation from 574 is a labor organization within the meaning of Sec. 2(5) of the Act. the date the strikers offered to return to work. Certain errors in the transcript herein have been noted and corrected. 259 NLRB No. 37 TEAMSTERS LOCAL UNION NO. 574 345 FINDINGS OF FACT asked her to remain neutral in the campaign. She assured Prater that she did not want to become involved in the I. THE UNFAIR LABOR PRACTICES ALLEGED campaign. However, as the campaign took shape, Prater, Respondent is a large Teamsters local which has about who was running on an economy platform, became criti- 26,000 members. Its jurisdiction extends to most of cal of the salaries and the performance of the office per- southeastern Missouri. It is affiliated with the Teamsters sonnel. 5 The office staff became increasingly disquieted International, the Teamsters Central States Conference, during the summer months by recurring rumors that they the Mo-Kan Conference, and Teamsters Joint Council would all be fired if Prater were elected. Accordingly, 13. Like most Teamsters locals, its principal operating they decided to organize. head is the secretary-treasurer, who is elected by the In informal conversations among themselves, the office membership for a 3-year term. Other officials who are staff discussed various options open to them. They re- elected at the same time may or may not hold full-time jected a suggestion that they should join a union affili- positions with the Local. When they do, they are em- ated with another international labor organization, be- ployed and paid as business representatives. These elect- cause they did not want to do anything which would ed officials, together with three trustees, constitute the jeopardize the health, welfare, and pension benefits they Local's executive board. enjoyed as members of the Teamsters. They also rejected Charging Party Lola Wheeler has been an employee the idea that they should join Teamsters Local 688, of Local 574 since 1956. Like all of the members of Re- which represents office clerical employees employed by spondent's office staff, she is a dues-paying member of various Missouri Teamsters locals. They felt that Local Local 5744 and reports to the secretary-treasurer. Until 688, which is located in St. Louis, was too far from Cape January 7, 1981, she was employed without a break in Girardeau to do an effective job of representing them. service under four different secretary-treasurers. Origi- Their only remaining option was to form their own labor nally, she was the only employee on Respondent's cleri- organization and this they decided to do, calling it Office cal staff. As the Local grew in membership and activity, and Building Maintenance Employees Unit of Teamsters three additional clerical positions were added and Local Union 574. Because of her experience and ability, Wheeler assumed the title of office manager. A fifth the other employees looked to Lola Wheeler to serve as member of the office and janitorial bargaining unit is a their spokesperson and she did so. part-time janitorial employee who performs routine Wheeler approached Hurst with the information about cleaning and small maintenance chores. what the office staff intended to do. Hurst expressed the This case arises out of the ashes of a bitter internal po- opinion that they would be better protected if they litical dispute which racked Local 574 throughout 1980. joined Teamsters Local 688 and volunteered to contact joined Teamsters Local 688 and volunteered to contact At a referendum election conducted on December 14, At a referendum election conducted on December 14, Local 688 on their behalf. When Wheeler told Hurst that 1980, incumbent Secretary-Treasurer Donald Hurst was 1980, incumbent Secretary-Treasurer Donald Hurst was the office staff was set on forming their own union, he defeated by a slim margin by David Prater, a longtime said he would recognize and deal with it. member of an insurgent Teamsters group known as PROD. With one exception, Prater's entire slate of can- During the late summer months of 1980, the office didates, which campaigned as "Team 80," defeated the staff drew up a list of proposals and secured contracts incumbent slate headed by Hurst. Because of the issues from other locals to assist them in formulating contract which emerged in the campaign between Hurst and language. They were not at all dissatisfied with existing Prater, the office staff became politically involved in the wages and benefits and incorporated them into their pro- election dispute. They were discharged shortly after posals. Their overriding concern was job security. Prater took office on January 1, 1981. Among other things they proposed a provision prohibit- Because of her long tenure as a member of the office ing Respondent from discharging clerical and janitorial staff and as office manager, Wheeler was well known to employees without just cause. They also proposed a the rank-and-file of Local 574 and had known Prater for grievance and arbitration procedure resulting in final de- many years. In 1977, in her capacity as a member of cisions by a neutral on disputed matters of contract inter- Local 574, she was involved in a floor fight with Prater pretation and application. They also asked for severance at a membership meeting over a change in the bylaws pay, a benefit which they did not currently enjoy. which Prater had proposed. Prater sought a bylaws re- Wheeler had several conferences with Hurst concerning striction which would have limited the wages of office the provisions of the proposed contract. As most of the personnel to $6 per hour. The net effect of this amend- proposals incorporated existing benefits, there were few ment would, at that time, have cut Wheeler's salary in disputes between them. Hurst rejected certain proposals half and would have caused substantial reductions in the relating to paid holidays and vacations but finally agreed pay of the other clerical employees. She was successful in defeating this proposal by an overwhelming majority. 5 The salaries paid to the office and janitorial staff were generous by In June 1980, after the campaign for Local offices was any definition and were as follows: Lola Wheeler, office manager, $555 a her home and week; Louis Borchelt, insurance office supervisor, $435; Christine Gross, well underway, Prater visited Wheeler at her home and dues office supervisor, $390; Linda Greer, office secretary, $300; and De- lores Heisserer, janitor (part time), $190. Included in this figure was any While the collective-bargaining agreement discussed hereinafter con- overtime which might be worked by the members of the office staff. tains a provision requiring office and janitorial employees to be members They had made an agreement with Hurst in 1980 for a pay increase with of Local 574, it is undisputed that this longstanding practice has existed the understanding that they would not receive additional compensation in order that these employees may be eligible to participate in Teamsters for overtime, except by way of compensatory time, and then only with health, welfare, and pension plans. official permission. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to a 19-month contract which he signed on September 2, so that funds would be on hand for this purpose. Hurst 1980. On the union side, the contract was signed not refused, telling her to let Prater worry about it when he only by Wheeler but also by each member of the bar- took over. gaining unit. There was addendum relating solely to the On December 16, Wheeler wrote a letter to Prater janitorial services performed by Heisserer and she signed about ongoing union business, particularly the require- this portion of the contract. ment of an annual audit which would soon fall due. She Hurst told the office employees that it was not neces- recommended to Prater that he continue to retain the ac- sary to submit the contract to the executive board for ap- counting firm which had been handling the books in the proval and asked the employees to keep the contract a past. She also informed him that Hurst would permit secret since he did not want it to become an issue in the Prater to examine the books in the office at his conven- campaign. They agreed to do so. Because he did not ience. Prater spoke with Wheeler on several occasions submit the contract to the Union's executive board for during the transition period. On one such occasion, she approval, this omission caused some concern among the informed him about the delinquency in the payment of bargaining unit members as to its binding effect upon the per capita tax to the International and wrote a letter Local 574 in the event of a change of administration. On to the International, at Prater's request telling the Inter- November 2, they spoke with Clyde E. Craig, the national that the money would be immediately forthcom- Union's attorney, when Craig was in Cape Girardeau, ing after he assumed office. and asked him if he thought the contract was legal and On or about December 30, Hurst wrote a letter to binding. He expressed the opinion that it was binding. Prater outlining the problems and activities of the Union On December 3, Hurst sent Craig a detailed letter which which required his immediate attention and left it on the had been composed by Wheeler and which asked Craig desk in the office which Prater was about to occupy. At- several specific questions about the legality of clerical tached to this letter was a copy of the collective-bargain- unit contract. The contents of this letter will be discussed ing agreement between Local 574 and the Office Clerical infra. The letter mentioned Wheeler by name as a con- Union which Hurst had signed on September 2 tact person and suggested the possibility of a conference Prater took advantage of New Year's Eve and New call to discuss Craig's response to the questions posed. Years Day holidays to go over the books and records of The office staff arranged such a call to Craig on Decem- the Union. He came across Hurst's letter and with it the ber 9 and discussed their concerns with him personally. first information which had come to his attention con- Hurst was a party to this conversation. In response to a cerning the clerical unit contract. On January 2, 1981, question posed to Craig concerning whether it was nec- the first working day of his ter ical unit contract. On anuary 2, 1981, essary to have executive board approval of the contract the first working day of his term of office, Prater held a before it was final and binding on Respondent, Craig meeting with the clerical staff and with incoming Presi- gave a guarded reply, saying that it was not necessary dent Richard Grggs, incoming Vice President Wilbur for the employees to have the contract approved by the Muenche, and Joseph Masterson, a newly appointed executive board since Hurst had the authority to hire business agent. He told the assembled individuals that he office employees and set their wage rates. However, he intended to be boss and was told by the members of the felt that it would strengthen their hand if such approval office staff in response that he would have their full sup- was obtained. port and cooperation. He also said he wanted to elimi- Late in the campaign, the political attacks on the nate some of the tension in the office. He noted that he office employees became so pronounced that the staff was aware that the clerical staff had endorsed his oppo- members felt compelled to reply. They drew up a piece nents during the election but assured them that "politics of campaign literature defending their job performance is over," that the staff and the new officers were going and attempting to justify the pay they were receiving. It to be friends, and that everyone should relax because no was entitled "We've Kept Our Mouths Shut as Long as one was going to be fired. Prater criticized a claim for We Can." In this open letter, they asked the membership wages which had been made by some clerical employees to vote for the Hurst slate and signed it individually. It for their service as poll watcher at the December 14 was then mailed to the entire membership by one of the election and said that the claim would not be honored. Hurst-slate candidates. He also told the employees that he had read the clerical The 2-week transition period between the Prater victo- contract and did not like it but would be bound by it, ry on December 14 and the end of the Hurst administra- adding that if an economic pinch came about, Linda tion on December 31 was marked by considerable ten- Greer, as the most junior employee in the office, would sion in Respondent's office, none of which was alleviated be the first to be laid off. He also outlined certain by the behavior of the defeated officers. Hurst visited the changes in the office procedure, saying that if at any office only once or twice during this period of time. He time he were not in the office, employees should refer refused to speak with Prater when the latter came to the contract interpretations on grievable matters to Griggs, office to discuss union business. Wheeler brought to the new president, rather than answering the questions Hurst's attention the fact that a per capita tax of $3.50 themselves. He also told the office personnel that he was due to the International from Local 574 on Decem- wanted them to adhere strictly to an 8-hour day and did ber 20 and that there was not enough money in the not want them working beyond 4:30 p.m. Union's checking account to meet the payment. She sug- On the following Tuesday, Prater drove to St. Louis gested that Hurst convene a meeting of the executive to confer with the Local's attorney. I credit corroborat- board to authorize the cashing of a certificate of deposit ed admissions from Prater that, during this consultation, TEAMSTERS LOCAL UNION NO. 574 347 his attorneys showed him the letter of December 3, 1980, On the afternoon of January 7, they established a which Hurst had written to Craig requesting Craig's picket line in front of the Teamsters office and carried advice concerning the binding effect of the clerical unit hand-lettered signs which read: "Teamsters Local Union contract.6 On Wednesday morning, Prater arrived at the No. 574 refuses to recognize Office Employees and union office before its scheduled opening hour of 8 a.m. Building Maintenance Employees Unit." They main- When Wheeler arrived for work, he told one of the busi- tained their picket line in front of the union office until ness agents who was on hand to ask her to come into the February 8. At the regular membership meeting which office. When she entered the office, Prater informed her occurred on January II11, the turmoil which had erupted that she was discharged, that he could not work with in the business office on January 7 came to the floor of her, did not trust her, and was not going to employ her the meeting. All the striking office employees, including any longer. Wheeler asked him what was wrong. I credit Wheeler, were present and, as they were union members, her testimony to the effect that Prater then said that he they participated in the meeting. Prater described the had been in St. Louis at the office of the Union's law contents of the clerical contract to the membership and firm and had seen the letter which she wrote to the firm said that he had known nothing of it before taking office. concerning the clerical contract. He insisted that she had He said that the outgoing members of the executive written the letter, even though it bore Hurst's signature, board were also unaware of its existence. He assured the because he felt that Hurst could hardly sign his own members that, if the office employees had transferred name. He then told Wheeler that he did not like the their membership to Local 688 in St. Louis and had ne- letter, felt that she was working against him, and insisted gotiated a contract using the St. Louis local as their bar- that he simply would not have it. He instructed her to gaining agent, the contract would have been valid, but clean out her desk and leave the premises. He also he insisted that it was a conflict of interest for Local 574 voiced the opinion that the clerical contract was illegal. .. out .his time, two other office employes, .,na to act both as employer and as union representative for About this time, two other office employees, Linda the office staff. Prater was asked from the floor why he the office staff. Prater was asked from the floor why he Greer and Christine Gross, arrived for work. They went into Prater's office and were told by Prater that Wheeler had discharged Wheeler. He replied that he could not had been fired and that he was not going to recognize answer onerning the of his attorney. W heeler challenged their contract with Local 574 because Craig had said the contract was illegal. He also said that he had seen a torneys that there was a conflict of interest on the part letter in Craig's office and it had made him very angry. of Local 574 in recognizing the clerical union noting He then gave them the option of working without a con- that his attorney was telling him a different story from tract, but with no reduction in wages or benefits, or of the one the office staff had received from the same walking out with Wheeler. Greer and Gross left the lawyer a few weeks earlier. Prater also insisted that the office to discuss it. contract with the office staff was invalid because it had Before leaving the office, Wheeler phoned fellow em- not been approved by the executive board. The meeting ployee Louise Borchelt, told her that she (Wheeler) had wore on in a bitter wrangle over the events which had just been fired, and asked Borchelt to come immediately transpired on January 7. One member suggested that to the office. After Borschelt arrived, she and her fellow Wheeler be reinstated and another made a formal motion workers had a total of three conversations with Prater. that the clerical contract be recognized. Prater refused to In the course of these conversations, Prater told the recognize the motion, stating that he would not allow three remaining employees that the contract was invalid 300 to 400 members to make the decision for the entire but that they could work if they wanted with the same membership, because he had to represent all of them. pay and benefits they had been receiving. Prater was Prater began to hire replacements for Wheeler and the asked to reconsider his decision to discharge Wheeler, striking employees. On January 23, the strikers wrote but he refused. He told the employees that, if they Prater a letter requesting reinstatement. The letter was walked out, their action would be deemed a voluntary ignored. On February 9, their attorney wrote Prater a quit on their part. They asked Prater what it was in the similar letter offering reinstatement but received no re- contract that he did not like. His reply was that he did sponse. At the hearing, Prater testified that there were not like anything about it and was not going to discuss it no vacancies in the office when these letters were re- because his attorney told him that it was illegal. He was ceived and none have arisen since that time. also asked to reconsider his disavowal of the contract but he refused. After the employees caucused briefly, Prater 1I. ANALYSIS AND CONCLUSIONS spoke with them again but merely to reiterate what he had said before. He argued that the contract was illegal A. The Supervisory Status of Lola Wheeler because he could not act both as their employer and as The parties to this litigation have vigorously contested their union representative. He also advised them, as their the issue of whether Wheeler was either a supervisor union representative, not to go on strike. At this point, within the meaning of Section 2(11) of the Act or a man- all of the employees, including Wheeler, left the office agerial employee who lacks the protection of the Act, and went to consult an attorney. and they have offered a great deal of evidence and argu- ment in support of their respective contentions. The ' Since the letter was in the hands of the Union's attorneys, Prater had ment in support of their respective contentions. The at least constructive knowledge of its contents, but it is clear from the strongest indications pointing to her supervisory or man- record that, despite protestations to the contrary, he had actual knowl- agerial status are that, as the office staff grew from a edge as well. one-woman operation, Wheeler took on the title of office 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager and was paid a salary at the time of her dis- organizing literature, unfair labor practice charges, and charge of $555 per week, plus fringe benefits. On the arbitration cases. Because of this expertise and experi- other hand, the record establishes that her daily duties ence, she also assisted in training new employees on the were both clerical and administrative in character. She rare occasions when new employees were hired. kept the Union's books, distributed incoming mail, han- The bargaining unit here in question was composed of died filing and typing for business agents, and performed five individuals, including Wheeler. It is undisputed that other related chores. It is also clear from the record that they all reported to the secretary-treasurer, who is the she did not hire or fire anyone. On one or two occasions, officer empowered by the Union's bylaws to employ she participated in the interviewing or recruitment of a office personnel. Most secretary-treasurers were neces- couple of clerical employees, and on one occasion gave a candidate for employment a typing test at the request of they could usually be reached in emergencies. One or Respondent's secretary-treasurer. 7 Respondent's office more business agents, some of whom held union office, staff was small and was made up of capable, experienced more business agents, some of whom held uion office, women who required little, if any, supervision in the were normally present i the office during office hours. daily performance of their duties. There was rarely if At the time of Wheeler's discharge, all office personnel ever any need to administer discipline. The responsibility were under strict orders from Prater to refer all ques- for doing so reposed in the secretary-treasurer. I The only tions involving contractual interpretations to himself or, direction which Wheeler gave to other clerical personnel in his absence, to the Union's new president, Griggs, was to parcel out extra or overflow typing work which rather than answer a member's inquiry directly. It is un- had been given to her by business representatives. In disputed that, before this time, Wheeler might, in the ab- such instances, she would assign the work to whichever sence of the secretary-treasurer, attempt to answer a clerical employee was caught up with her regular duties member's inquiry on a contract question if there was an and was available for additional work. Wheeler made applicable precedent to guide her. While Wheeler attend- routine purchases of office equipment and supplies and ed executive board meetings, it was only in the capacity maintained a log showing which business agents were of a clerical employee who was assigned to take and pre- out of the office and where they could be reached. Re- pare minutes. spondent observed a policy of flextime with respect to its The official reports are replete with Board and court clerical employees, all of whom were expected to work cases on the subject of what constitutes a supervisor or a overtime without additional compensation when their managerial employee, yet no area of the law better illus- duties required. If one of these employees desired time trates the Holmesian dictum that "general principles do off for a personal errand, they would inform Wheeler not decide concrete cases." 9 The criteria for establishing that they were leaving. supervisory responsibility are set forth in Section 2(11) of Most of the clerical employees had their own basic the Act and there is ample decisional authority for the specialized assignments and Wheeler was not free to proposition that the existence of any one of these ele- change these assignments. Because of their expertise in ments is sufficient to designate an employee as a supervi- their areas of responsibility, other employees were some- sor."' However, the sporadic or occasional exercise of times referred to as supervisors although they had no one to supervise. This supervisory status referred to their supervisor. It Nor is the mere existence of a title, ployee a supervisor. " Nor is the mere existence of a title, responsibility for particular work, such as pension bene- fts or dues payments, rather than to any power which ch may connote supervisory or managerial authority, sufficient in and of itself to warrant a finding that the they might exercise over the tenure or job performance sufficient in and o itself to warrant a Hending that the of another individual. The same was basically true of holder of the title is a supervisor.12 Hence, titles such as of another individual. The same was basically true of 14 Wheeler. The difference in her case was that she had 25 "assistant director of nursing"' "personnel manager,"1 years of experience in Respondent's office, was intimate- assistant personnel manager,"" "assistant branch man- ly familiar with every facet of the Union's activities, and ager," 16 or "office manager" 17 have been found not to be could answer questions and perform services pertaining conclusive of supervisory authority. "Titles and symbols both to the work of office clericals and business repre- without the possession and exercise of supervisory power sentatives as well. Hence, she was called upon repeatedly do not constitute a person a supervisor."' 8 Hence, the for advice or assistance by other personnel relating to fact that Wheeler bore the title of office manager at Re- matters in their areas of responsibility. She excelled in spondent's office and used this title from time to time in English composition and was regularly relied on to write letters, provide business agents with proposed contract 'Lochner v. New York, 198 U.S. 45, 75, 76 (1905). language, and draw up documents such as grievances, Henry Colder Company, 163 NLRB 105 (1967); N.L.R.B. v. Ohio language, and draw up documents such as grievances, PowerCompany, 176 F.2d 385 (6thCir. 1949). Power Company, 176 F.2d 385 (6th Cir. 1949). " G. K. Chevrolet, Inc., 176 NLRB 416 (1969); J. J. Newberry Co., a 7The clerical contract has an unusual provision which entitles clerical wholly Subsidiary of McCory Corporation, 249 NLRB 991 (1980): Oregon employees to notification and an opportunity to recommend candidates to State Employees Association, 242 NLRB 976 (1979). fill any vacancies which might arise in the office staff. Because of the " N.L.R.B. v. Harmon Industries, Inc., 565 F.2d 1047 (8th Cir. 1977). generous pay and allowances accorded to office employees, there has "3Milford Manor. Inc. 233 NLRB 1283 (1977). been very little turnover and few vacancies have ever arisen. " J. J. Newberry Co., supra. I There is testimony that several years ago Wheeler criticized employ- "' Maremont Corporation. World Parts Division. 251 NLRB 1617 (1980). ee Soma O. Jauch because she breached office policy by accepting a " Fall River Savings Bank, 246 NLRB 831 (1979). phone inquiry from a member during the lunch hour. I regard this event " Saladmaster Corporation, 216 NLRB 769 (1975); Empire Gas. Inc. of as both remote and isolated and having little probative value as to Wheel- Denver, 254 NLRB 626 (1981). er's power and authority as of September 1980 or January 7, 1981. " Saldamoster Corporation. supra at 773. TEAMSTERS LOCAL UNION NO. 574 349 correspondence or interoffice memoranda does not by managerial employee and hence was excluded from the itself make her a supervisor. protection of the Act. The Board has already held that One of the principal arguments advanced by Respond- Teamsters business agents are not managerial employees, ent in support of its contention on this point is that even though they are charged with the responsibility for Wheeler assigned work to other employees in the office. executing union policies and representing the Union in However, the record is void of proof that she responsi- dealings with employers and its membership. Truck Driv- bly directed employees in the performance of their duties ers, Oil Drivers, Filling Station and Platform Workers or that she exercised independent judgment in making Union, Local No. 705, International Brotherhood of Team- these assignments. The work in question was routine sters, Chauffeurs, Warehousemen and Helpers of America, typing which she gave to other clericals who did not 244 NLRB 794 (1979). It has repeatedly come to the happen to be busy at the moment. Such assignments do same conclusion with respect to union field representa- not invest supervisory authority in the individual making tives, both at the International and local level, regardless the assignment. '9 The Board has also held repeatedly of what titles might be assigned to them by their princi- that the deferral by employees to the statements or pals.24 In the instant case, one of the principal functions advice of another employee because of his or her exper- performed by Wheeler and the other personnel in the tise, ability, or experience does not amount to evidence of supervisory authority. 20 In this case, Wheeler was cer- Union's business office was to assist business representa- tainly a talented and experienced employee and it is no tives in the performance of their various duties. Since suprise that others looked to her for assistance or advice these representatives are not managerial employees, it in the day-to-day operation of the Union's business follows that their assistants, including Wheeler, should office. This recognition of ability should not be confused not qualify for this designation either. Accordingly, in with supervisory power, which reposed in the secretary- light of the above-recited factors, I conclude that Lola treasurer of Respondent. Wheeler was neither a supervisor nor a managerial em- One factor which strongly supports the employee ployee and was entitled to enjoy the protections pro- status of Wheeler is the ratio of supervisors to employees vided by Sections 7 and 8 of the Act. 25 which would result if she were found to be a supervi- sor.21 There were five employees in the office, including B. The Clerical Employees Union and Its Contract a part-time janitor, who reported to the secretary-trea- With Respondent surer, resulting in a ratio of 5 to 1 if Wheeler should be Respondent admits that Office Employees and Build- deemed to be a rank-and-file employee. Were she found ing Maintenance Unit of Teamsters Local Union No. 574 to be a supervisor, there would be four employees to is a labor organization, in that it meets the statutory cri- two supervisors, a ratio which suggests an inordinate teria set forth in Section 2(5) of the Act. However, Re- Colpreponderance of supervisory personnel b See Rexart spondent insists that this Union is an unlawfully assisted union and hence the contract which it concluded with supra. Other factors relied on by Respondent in support of its argument that Wheeler is a supervisor are com- Respondent paratively minor and have been addressed by the Board 24 See Oregon State Employees Association, supra: Retail Store Employees adversely to Respondent's contention in other cases. The Union Local 444, Retail Clerks International Association, AFL-CIO. 153 fact that Wheeler made routine purchases of office sup- NLRB 252 (1965); Retail Store Employees Union. Local 428, AFL-CIO, plies and equipment does also not evidence of supervi- 163 NLRB 431 (1967); Grand Lodge International Association of Machinists sory authority on her part 2 2 nor does the fact that she and Aerospace Workers. AFL-CIO, 159 NLRB 137 (1966); American Fed- had access to confidential information warrant a different eration of Labor and Congress of Industrial Organizations, 120 NLRB 969 (1958); International Ladies' Garment Workers' Union AFL-CIO v. conclusion.2 3 Indeed, it appears that all the office clerical VL.R.B., 339 F.2d 116 (2d Cir. 1964). employees had access to confidential information as part 25 The General Counsel argues, in the alternative, that even if Wheeler of their daily duties. is found to be a supervisor or a managerial employee, her discharge Respondent argues in the alternative that, if Wheeler is would still violate Sec. 8(aXl) of the Act because of its impact on other employees who do enjoy the protections of the Act. Beginning with not a supervisor in the statutory sense, she is at least a Better Monkey Grip Company, 115 NLRB 170 (1956), enfd. 243 F.2d 836 (5th Cir. 1957), cert. denied 353 U.S. 864, the Board has held, in an " Dynalectron Corporation, 231 NLRB 1147 (1977); Ohio State Legal almost consistent line of cases, that an employer violates Sec. 8(aXI) of Services Association, 239 NLRB 594 (1978); W C McQuaide. Inc. v. the Act when it discharges a supervisor for union-related considerations N.LR.B., 552 F.2d 519 (3d Cir. 1977). because of the interference this discharge causes with the rights of other " Oregon State Employees Association. supra; Dawson Metal Products, employees. Alamo Express Inc., and Alamo Cartage Company, 127 NLRB Inc., 183 NLRB 191 (1970); Rexard Color d Chemical Co., Inc., 246 1203 (1960); Miami Coca Cola Bottling Company doing business as Key NLRB 240 (1979). West Coca Cola Bottling Company, 140 NLRB 1359 (1963); Murray Golub. " There is little basis here for applying a standard often used by the Selwyn Golub. and Albert Golub d/b/a Golub Bro. Concessions, 140 NLRB Board in finding supervisory status; namely, the suggestion that Wheeler 120 (1962); Dal-Tex Optical Company. Inc., 137 NLRB 1782 (1962); Oil was in complete charge of the office during the frequent absences of the City Brass Works, 147 NLRB 627 (1964); Ideal Baking Company of Ten- secretary-treasurer. Not only was the Union's principal official normally nessee, Inc., 143 NLRB 546 (1963); Fairview Nursing Home, 202 NLRB available by phone in the event of an emergency, but it is also clear that 318 (1973); Carter Lumber. Inc., 207 NLRB 391 (1973); Donelson Packing one or more business agents, some of whom were elected officials, were Co.. Inc. and Riegel Provision Company, 220 NLRB 1043 (1975); VADA of normally present in the office, even when the secretary-treasurer was Oklahoma, Inc., 216 NLRB 750 (1975); Trustees of Boston University, 224 absent. There was no need for Wheeler to step in and fill the shoes of NLRB 1385 (1976); Fort Vancouver Plywood Company, 235 NLRB 635 this official while he was away. (1978); cf. L d S Enterprises. Inc., 245 NLRB 1123 (1979). However, be- ' Barnes and Noble Bookstores, Inc., 233 NLRB 1326 (1977); Dynalec- cause of the above finding relating to the status of Wheeler, it is not nec- tron Corporation, supra; cf. Simplex Industries. Inc.. 243 NLRB I 11 (1979). essary to address this contention of the General Counsel and I do not do '" Maremont Corporation, supra. so. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges against the clerical union and no complaint has obtaining employee benefits, not a vehicle for obtaining been issued seeking to disestablish it or to nullify the collective-bargaining representation. The employees had contract which it concluded. Indeed, it would appear designated their own Union as their bargaining repre- that such an attack might well be barred at this point be- sentative and Respondent had recognized and dealt with cause of limitations. However, this contention is made by it as such until January 7, 1981. When this representative way of defense to the complaint issued against it. For entered into a contract with Local 574 which required Respondent to prevail on this point, it would have to membership in Local 574, it was not abridging any of the make a confession of error and then ask the Board to legal rights of the members of the clerical union. There permit it to profit from the fruits of its own wrongdoing. is no statutory reason why such a provision might not be Such a position has few equities and less support in the included in their contract under the facts and circum- record. ~~~~~~~~~record. ~stances of this case. See Retail Store, Employees Union, The clerical union in question was formed as the result Local 428 AtL-CIO supra. of an option which was freely and intelligently exercised by all of the members of the office staff when confronted Respondent points to the way in which Hurst negoat- with the situation which faced them in the summer of ed the contract with Wheeler as evidence to support its 1980. Prater admitted that, had they joined a sister local, contention that the clerical union was unlawfully assist- the question of unlawful assistance would not exist and ed. The question of unlawful assistance does not turn on the contract of September 2 would be legal and binding. whether a union was given a hard time or an easy time Indeed, Hurst expressed a similar opinion relating to in negotiating a contract. The question of assistance goes Local 688 when Wheeler first approached him about the to the manner in which a union comes into being and desire of the clerical staff to organize. There is no doubt achieves initial recognition. What follows from that point that the Union, informally organized though it was, en- is simply the fortunes of war. No one in authority in Re- joyed the unanimous support of the members of the bar- spondent's organization in any way assisted in the forma- gaining unit, as is evidenced by the signatures contained tion of the Union or suggested that it be formed. Indeed, on the contract in question. There is also no doubt that the contrary suggestion was made. No one in authority the initial impetus toward the formation of this Union in Respondent's organization influenced the decision on and the decision to take this route toward collective bar- this point on the part of any bargaining unit member. gaining sprang from the desires of the employees, who When the independent clerical union achieved majority came to their conclusion with no prompting or sugges- status, Respondent had no legitimate reason for denying tion from Respondent's officers. Inasmuch as Wheeler it recognition or for refusing to bargain with it. Accord- has been found to be a rank-and-file employee, any con- ingly, the defense that an assisted union entered into a tention of vicarious sponsorship because of her activities sweetheart contract finds no support whatsoever in the must perforce fail. record in this case. Respondent points to a provision in the September 2 With respect to Hurst's authority to negotiate the con- contract which requires employees to join Local 574 tract in question, it is clear that Hurst, as secretary-trea- within 30 days of their employment. From this premise it 3d ohpremise i surer, had authority under Respondent's bylaws to hire argues that, by joining Local 574, an employee desig- office employees and to fix their compens bylaws tohis isre nates Respondent as its bargaining agent. Since Respond- sufficient authority to permit him to establish wages, ent cannot be both an employee's employer and bargain- ing agent, a conflict of interest has been created which hours, and terms and conditions of employment on a col- should permit the Respondent to escape the contractual lective basis as well as on an individual employee basis. obligations it undertook on September 2. The contention In determining such authority, the Board is not bound by is frivolous, technical rules of contract law or by the strictures of It is undisputed that all the members of the office staff common law concepts of principal and agent. Adams of Local 574 had long been members of that Union and Iron Works, Inc., 221 NLRB 71 (1975). Respondent's had joined in order to be eligible to participate in the legal counsel informed the employees in the unit that the Teamsters health, welfare, and pension benefits. Because secretary-treasurer had authority, without executive of the peculiar though not unique posture of this case- board approval, to conclude the contract in question, and involving, as it does, a labor organization acting as an such a representation, in and of itself, should estop Re- employer rather than as a collective-bargaining repre- spondent from reneging on the contract after it was con- sentative-the action of its employees in seeking and ob- cluded. Therefore, I conclude that Respondent was taining membership takes on a different character than it bound by the terms of the September 2 agreement. would if they were employed by a commercial enterprise When, on January 7, 1981, it repudiated both the agree- and had joined the Teamsters to secure its services as ment and the underlying collective-bargaining relation- their bargaining agent. For employees of Respondent's ship upon which the agreement was based, it violated office staff, membership in Local 574 is analogous to the Section 8(a)(1) and (5) of the Act. C & S Industries, Inc., situation which would exist if a commercial enterprise 158 NLRB 454 (1966); Detroit Cabinet and Door Co., 247 were to ask or insist that its employees also be corporate NLRB 1415 (1980); Nedco Construction Corp., 206 NLRB stockholders. It was Respondent who paid the employees 150 (1973); Home Roofing Co., Inc., 211 NLRB 910 here in question and who asked for services in return. It was their employer and there can be no quibble on this (1979) point. Membership in Local 574 was simply a means of TEAMSTERS LOCAL UNION NO. 574 351 C. The Discharge of Lola Wheeler Wheeler was assertedly there in violation of his instruc- tions but said nothing to her. His afterthought--that he Wheeler's leadership in her relationship to other office clerical employees was well recognized by Respondent. was ust lyig i wait to see if she would obey his Indeed, it is an element of Respondent's argument that orders-has an ominous and discriminating ring to it, if it Wheeler was not an employee at all but a supervisor. It has any meaning at all. Likewise, Wheeler's asserted was Wheeler who negotiated the clerical union contract slowness in getting out a mailing to shop stewards during with Hurst and who also composed the letter which the days immediately preceding her discharge have no Hurst sent to his attorneys in early December seeking standing as the precipitating cause of that decision, inas- legal advice on the validity of that contract. Her name much as Prater testified that he had decided to fire appears in the text of Hurst's letter. Prater strongly sus- Wheeler before learning of the alleged lateness of the pected that Wheeler drafted the letter and told her so at mailing, something he did not discover until the morning the time he discharged her. of the termination and just a few moments before speak- There is no dispute that Wheeler as well as the rest of ing to Wheeler. the clerical staff were political opponents of Prater The key to the discharge of Wheeler is the December during the election campaign which culminated in a 3 letter from Hurst to Craig which Prater first learned "Team 80" victory on December 14. Prater had experi- about on January 6, the day before he fired Wheeler. enced run-ins with Wheeler during the time he was a Upon visiting his attorney's office for the first time since rank-and-file member and relies on these events, rather becoming secretary-treasurer, Prater was shown a letter than on her efforts on behalf of the clerical employee written by his bitter nemesis in an attempt to preserve bargaining unit, to lend substance to his decision to fire the jobs of the office staff. He rightly judged that the her. He also points to the embarrassment he suffered by letter originated with the discriminatee. The text of the reason of the delay in transmitting the December per letter is in the record. It recites a meeting between Hurst capita tax to the International office in Washington as a and Craig on November 2 in Hurst's office and sets forth basis for her discharge, although it is difficult to see how Craig's oral opinion, rendered at that time, that the cleri- this problem, overblown though it was, could be laid at cal contract (a copy of which was enclosed) would be Wheeler's doorstep. This delinquency was directly attrib- binding both on Hurst and any successor who might be utable to Hurst's refusal to put money in the checking elected. The Hurst-Wheeler letter goes on to recite that account with which to meet the payment, all of which Prater's slate had threatened to fire the office staff and stemmed from Hurst's desire to embarrass a political op- that, under great provocation, the staff abandoned its ponent who had just defeated him. Given this set of neutrality. It spoke of "a great many false statements" facts, there was no way that Prater could have paid the about incumbent officers which the "Team 80" slate had tax until after he and his slate took office on January 1 circulated, as well as the threat of the Prater slate to re- and assumed the legal authority to cash the certificate of place them. deposit which was used to pay the bill. Prater admits The letter then posed to Craig a number of specific that Wheeler had no responsibility for paying the tax, so questions, including whether it was necessary to obtain any problems in this regard were simply irrelevant to the executive board ratification of the clerical contract performance of her duties. Hperformance of her dutiese. mtes rewlkono whether such approval prior to election day would carry However, all of these matters were well known to Prater when, on January 2, he held a harmony meeting greater weight than approval granted after that date, and Pawith Wheneler and tJanuahe heotherharmony memieten whether the office staff should inform Prater or Davis, another candidate, of the existence of the contract before cal staff for the purpose of enlisting their support for his another candidate, of the exence of the contract before new administration He told them on this occasion that or after January 1, in the event that either of them was new administration. He told them on this occasion that bygones would be bygones and that politics would be a elected to replace Hurst. The letter went on to ask de- thing of the past. He expressly stated that no clerical em- tailed legal advice as to how an employee should pro- ployee would be fired. Accordingly, any reliance on ceed to vindicate her rights in the event that the Hurst events or actions which predated this statement as a basis slate lost and she should be discharged. It asked whether for discharging Wheeler is plainly pretextual. The moti- aggrieved clerical employees could picket the Teamsters vating cause for his action necessarily lay in something building, whether a civil suit would lie in the event of an which occurred thereafter. unjust discharge, and whether Craig or his firm could Prater said that one of the reasons he fired Wheeler represent any clerical employee who needed legal assist- was that she worked overtime in violation of his instruc- ance in such matters. The letter concluded with the ex- tions. The additional hours in question which she worked pressed hope that Hurst would be reelected and with the involved services actually performed for Respondent and request that Craig contact either Wheeler or himself to did not impose upon Respondent any additional cost, let them know when he could contact them to discuss unless it voluntarily elected to grant her compensatory the questions raised. time off. Indeed, her diligence in this regard could be at- When Prater saw this letter, he became angry and de- tributed only to a desire to please a new boss and to get cided to discharge Wheeler. It is clear from the record her work done. As a defense to a discriminatory dis- that it is the contents of the letter which had just been charge complaint, this pretext is probably unique in the brought to Prater's attention that sealed Wheeler's fate annals of Board history. As an actual motivating cause and it is the character of this letter which determines the for the events that followed, it is nonsensical, in that lawfulness of the discharge. There is a great deal in the Prater was present at the office during the hours that letter which suggests partisan politics and a high degree 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of political coordination between Hurst and Wheeler Upon the foregoing findings of fact, and upon the against Prater and Prater's slate. It is understandable that entire record herein considered as a whole, I make the Prater should have become incensed upon receiving this following: information, since it establishes that at least in one re- spect his political adversaries were plotting against him. CONCLUSIONS OF LAW However, the basic thrust of the letter is to protect the 1. Respondent Teamsters Local Union No. 574, affili- fruits of collective bargaining and the protected concert- ated with International Brotherhood of Teamsters, ed activities and union activities of employees which Chauffeurs, Warehousemen, and Helpers of America, is antedated collective bargaining. The effort of the office now and at all times material herein has been an employ- employees, even though they were acting in conjunction er engaged in commerce within the meaning of Section with Hurst, in calling upon Craig for advice and assist- 2(2), (6), and (7) of the Act. ance concerning their contract was in and of itself a pro- 2. Office Employees and Building Maintenance Em- tected concerted activity and a union activity, inasmuch ployees Unit of Teamsters Local Union No. 574 is a as it was a collective effort to assure the continuation of labor organization within the meaning of Section 2(5) of their employment status. When Prater fired Wheeler for the Act. engaging in this activity, he was firing her for something 3. All full-time and regular part-time office employees more than taking part in political activity designed to and building maintenance employees employed at Re- prevent him from becoming her employer. He was firing spondent's Cape Girardeau, Missouri, office, excluding her because of activities which she undertook, in con- business representatives, guards, and supervisors as de- junction with other employees, relating to wages, hours, fined in the Act, constitute a unit appropriate for collec- and terms and conditions of employment and in deroga- tive bargaining within the meaning of Section 9(b) of the tion of her right to form and support the clerical em- Act. ployee union. Accordingly, the discharge violated Sec- 4. Since on or about September 1, 1980, Office Em- tion 8(a)(1) and (3) of the Act. ployees and Building Maintenance Employees Unit of Teamsters Local Union No. 574 has been the exclusive D. The Clerical Unit Strike of January 7, 1981 collective-bargaining representative of all of the employ- The precipitating causes of the strike by the office ees in the unit found appropriate in Conclusions of Law clerical unit were twofold-the discharge of Wheeler 3 for the purpose of collective bargaining within the and the repudiation by Prater of their contract and their meaning of Section 9(a) of the Act. Union. Prater informed all the office staff on the morn- 5. By withdrawing recognition from Office Employees ing of January 7 that he had been advised by his attor- and Building Maintenance Employees Unit of Teamsters ney that the September 2 contract which Hurst had Local Union No. 574 as the exclusive collective-bargain- signed was illegal. He also told them they could continue ing representative of its employees in the bargaining unit to work under existing wages and benefits but without found appropriate in Conclusions of Law 3 herein; and the protection of the agreement. One of those protec- by repudiating the provisions of a collective-bargaining tions was a grievable provision preventing discharge agreement concluded with said labor organization on or except for just cause. After a brief caucus among them- about September 2, 1980, Respondent herein violated selves, the office staff came to the conclusion that, if Section 8(a)(5) of the Act. Prater repudiated their contract, they had no more pro- 6. By discharging Lola Wheeler because of her mem- tection than did Wheeler so they decided to strike. As bership in and activities on behalf of Office Employees noted above, the repudiation of this agreement and of the and Building Maintenance Employees Unit of Teamsters collective-bargaining relationship which gave rise to it Local Union No. 574; and by refusing to reinstate Louis was an unfair labor practice. Accordingly, when the Borchelt, Delores Heisserer, Christine Gross, and Linda office staff walked out and established a picket line in Greer upon their unconditional offer to return to work, front of the building, they were acting to protest not one Respondent herein violated Section 8(a)(3) of the Act. but two unfair labor practices. Hence, their strike was an 7. By the acts and conduct set forth above in Conclu- unfair labor practice strike, sions of Law 6 and 7; and by telling employees, includ- On January 23, and again on February 9, the office ing Lola Wheeler, that Lola Wheeler had been dis- employees requested reinstatement, and sought it uncon- charged because of her union and protected concerted ditionally. On both occasions, their request went unheed- activities, Respondent herein violated Section 8(a)(1) of ed. An employer is under a legal obligation to reinstate the Act. unfair labor practice strikers upon their unconditional re- 8. The aforesaid unfair labor practices have a close, in- quest, and it is no defense that it has hired others to take timate, and adverse effect on the free flow of commerce their places. The failure to honor such a request is an within the meaning of Section 2(2), (6), and (7) of the unfair labor practice, in and of itself. National Tape Cor- Act. poration, 187 NLRB 321 (1970); Abingdon Nursing THE REMEDY Center, 197 NLRB 781 (1972); ABCO Engineering Corp., 201 NLRB 686 (1973). When Prater failed to reinstate Having found that Respondent herein has engaged in the striking clerical employees in late January and early certain unfair labor practices, I will recommend that it February, Respondent violated Section 8(a)(1) and (3) of be required to cease and desist therefrom and to take the Act. certain affirmative actions which are designed to effectu- TEAMSTERS LOCAL UNION NO. 574 353 ate the purposes and policies of the Act. Since the viola- (d) Refusing to recognize and bargain with the afore- tions of Section 8(a)(1) of the Act found herein are seri- said labor organization as the exclusive collective-bar- ous and pervasive, I will recommend to the Board a so- gaining representative of all of its full-time and regular called broad 8(a)(1) order designed to suppress any and part-time office clerical and janitorial employees, exclu- all violations of that Section of the Act. Hickmott Foods, sive of guards, business representatives, and supervisors Inc., 242 NLRB 1357 (1979). I will also recommend that as defined in the Act, and refusing to give full force and Respondent be required to offer full and immediate rein- effect to a collective-bargaining agreement which it con- statement to Lola Wheeler, Louis Borchelt, Delores cluded on or about September 2, 1980, with the aforesaid Heisserer, Christine Gross, and Linda Greer, and to labor organization. make them whole for any loss of earnings which they (e) By any other means or in any manner interfering may have sustained by reason of the discriminations with, restraining, or coercing employees in the exercise practiced against them, in accordance with the Wool- of rights guaranteed to them by Section 7 of the Act. worth formula,26 with interest thereon at the adjusted 2. Take the following affirmative action designed to ef- prime rate used by the Internal Revenue Service for the fectuate the purposes and policies of the Act: computation of tax payments. Olympic Medical Corpora- (a) Recognize and, upon request, bargain collectively tion, 250 NLRB 146 (1980); Isis Plumbing & Heating Co., with Office Employees and Building Maintenance Em- 138 NLRB 716 (1962). In the case of Lola Wheeler, ployees Unit of Teamsters Local Union No. 574 as the backpay shall commence running as of the date of her exclusive collective-bargaining representative of all of discharge. Abilities and Goodwill, Inc., 241 NLRB 27 Respondent's full-time and regular part-time office cleri- (1979). In the case of the four unfair labor practice strik- cal and janitorial employees, exclusive of guards, busi- ers, backpay shall commence running 5 days after they ness representatives, or supervisors, as defined in the first offered to return to work. I will recommend that Act. Respondent be required to recognize Office Employees (b) Give full force and effect to a collective-bargaining and Building Maintenance Employees Unit of Teamsters agreement which Respondent concluded with the afore- Local Union No. 574 as the exclusive collective-bargain- said labor organization on or about September 2, 1980. ing representative of its office clerical and janitorial em- (c) Offer to Lola Wheeler, Louis Borchelt, Delores ployees and to give effect to the collective-bargaining Heisserer, Christine Gross, and Linda Greer full and im- agreement which it concluded with this labor organiza-statement to their former or substantially tion on or about September 2, 1980. C & S Industries equivalent employment, without prejudice to their se- Inc., supra; J & L Painting Contractors, Inc., 239 NLRB niority or to the rights which they previously enjoyed, 867 (1978). I will also recommend that Respondent be re- and make them whole for any loss of pay or benefits quired to post the usual notice, advising its employees of which they have suffered by reason of the discrimina- their rights and of the results in this case. tions found herein, in the manner described above in the Upon the foregoing findings of fact, conclusions of section entitled "The Remedy. law, and upon the entire record herein considered as law, and upon the entire record herein considered as (d) Preserve and, upon request, make available to the whole, and pursuant to Section 10(c) of the Act, I make Board or its agents, for examination and copying, all the following recommended: payroll and other records neccesary to analyze the ORDER 27 amount of backpay due under the terms of this Order. (e) Post at its Cape Girardeau, Missouri, office copies The Respondent, Teamsters Local Union No. 574, af- of the attached notice marked "Appendix."28 Copies of filiated with International Brotherhood of Teamsters, said notice, on forms provided by the Regional Director Chauffeurs, Warehousemen, and Helpers of America, for Region 14, after being duly signed by Respondent, Cape Girardeau, Missouri, and its officers, trustees, busi- shall be posted by Respondent immediately upon receipt ness representatives, agents, successors, and assigns, shall: thereof, and be maintained by Respondent for 60 con- 1. Cease and desist from: secutive days thereafter, in conspicuous places, including (a) Telling employees that an employee has been dis- all places where notices to employees are customarily charged for engaging in union activities and in protected posted. Reasonable steps shall be taken by Respondent to concerted activities. insure that said notice is not altered, defaced, or covered (b) Refusing to reinstate unfair labor practice strikers by any other material. upon their unconditional request for reinstatement. (f) Notify the Regional Director for Region 14, in (c) Discouraging membership in or activities on behalf writing, within 20 days from the date of this Order, what of Office Employees and Building Maintenance Employ- steps Respondent has taken to comply herewith. ees Unit of Teamsters Local Union No. 574 or any other IT IS FURTHER ORDERED that, insofar as the complaint labor organization by discharging employees or other- alleges matters that have not been found herein to be wise discriminating against them in their hire or tenure. violations of the Act, the said complaint is hereby dis- 2"F. W. Woolworth Company, 90 NLRB 289 (1950). missed. 27 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the 22 In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX include the right to form, join, or assist labor orga- nizations, to bargain collectively through repre- NOTICE To EMPLOYEES sentatives of their own choosing, and to engage in POSTED BY ORDER OF THE other concerted activity for their mutual aid and NATIONAL LABOR RELATIONS BOARD protection An Agency of the United States Government WE WILL recognize and bargain collectively with Office Employees and Building Maintenance Em- Teamsters Local Union No. 574 is posting this notice to poes Unit of Teamsters Local Union No. 574 as comply with an Order of the National Labor Relations the exclusive collective-bargaining representative of Board, which was issued after a hearing in a case in which we were found to have violated certain provisions all of our full-time and regular par-time office cleri- of the National Labor Relations Act. cal and janitorial employees, exclusive of business representatives, guards, and supervisors as defined WE WILL NOT announce to employees that an in the Act, and WE WILL give full force and effect employee has been discharged for engaging in union to a contract which we concluded with that labor activities or in protected concerted activities. organization on or about September 2, 1980. WE WILL NOT refuse to reinstate unfair labor WE WILL offer to Lola Wheeler, Louise Bor- WE WILL offer to Lola Wheeler, Louise Bor- practice strikers upon their unconditional applica- chelt, Delores Heisserer, Christine Gross, and Linda tion to return to work. ~tion to return to work. Greer full and complete reinstatement to their WE WILL NOT discharge employees or otherwise discrimtWE WILL NOT discharge employees or otherwise former or substantially equivalent positions, and WE discriminate against them in their hire or tenure in order to discourage their membership in or support WILL make them whole for any loss of earnings of Office Employees and Building Maintenance Em- they may have suffered by reason of the discrimina- ployees Unit of Teamsters Local Union No. 574, or tions practiced against them, with interest. any other labor organization. WE WILL NOT in any other manner or by any TEAMSTERS LOCAL UNION No. 574, AF- means interfere with, restrain, or coerce employees FILIATED WITH INTERNATIONAL BROTHER- in the exercise of rights guaranteed them by Section HOOD OF TEAMSTERS, CHAUFFEURS, 7 of the National Labor Relations Act. These rights WAREHOUSEMEN, AND HELPERS OF AMER- ICA