Retail Clerks International Assn., AFL-CIO

National Labor Relations Board - Board Decisions

Jun 21, 1965

153 N.L.R.B. 204 (N.L.R.B. 1965)

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks International Association, AFL-CIO and Agents
and Organizers Association
Retail Clerks International Association , AFL=CIO and its Locals
698 and 880 and Agents and Organizers Association. Cases
Nos. 2-CA-9082, 2-CA-9082-2 (post 1-CA-4041); 2-CA-9080-3
(post 4-CA-2859), 2-CA-9082-4 (post 13-CA-5412); and 2-CA-
9082-6 (post 8-CA-3239). June 01, 1965
DECISION AND ORDER
On September 10, 1964, Trial Examiner Ramey Donovan issued his
Decision in the above-entitled consolidated proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices within the meaning of the National Labor Relations
Act, as amended, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondents and the Gen-
eral Counsel filed exceptions to the Trial Examiner's Decision and
briefs in support thereof. The Trial Examiner also found that the
Respondents had not engaged in certain other unfair labor practices
and recommended that the complaint be dismissed with respect to such
allegations. No exceptions were filed to such recommendation.'
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and briefs, and the entire record
in these cases , and adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified herein 2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondent, Retail Clerks International Asso-
i In the absence of exceptions thereto , we shall adopt pro forma the Trial Examiner's
recommendations that the allegations of the 8(a) (3) violation involving Rhyne, and
8(a) (1) conduct with respect to Local 698 , be dismissed
2 While it is not clear that the Trial Examiner counted Foley ' s card, we need not count
it in determining the Union ' s majority status Agents and Organizers Association, with-
out regard to Foley ' s authorization card, had a clear majority of the total of the eligible
employees in the Central Division unit in the relevant period
153 NLRB No. 15.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 205
ciation, AFL-CIO, with headquarters in Washington, D.C., its officers,
agents, and representatives, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified :
Delete paragraph 1(a) of the Trial Examiner's Recommended Order
and substitute the following :
"(a) Interfering with, restraining, or coercing its employees, Inter-
national representatives and council organizers, in the exercise of their
rights guaranteed in the Act, and more specifically their right to join
or assist or refrain from joining or assisting the Agents and Organizers
Association, or any other labor organization seeking to represent them
for the purpose of collective bargaining."
2. Delete the last indented paragraph of Appendix A and substitute
the following :
WE WILL NOT interfere with, restrain, or coerce our employees,
International Representatives and Council Organizers, in the
exercise of their rights guaranteed in the Act, and more specifi-
cally in the right to join or assist, or to refrain from joining or
assisting, the Agents and Organizers Association, or any other
labor organization seeking to represent such representatives for
the purpose of collective bargaining.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The charges and amended charges of unfair labor practices in this case were filed
at various dates in January, February, July, and September, 1963, by Agents and
Organizers Association, herein called AOA. The complaint was issued under date
of November 19, 1963, against Retail Clerks International Association, herein called
RCIA, and its Local 880, of Cleveland, Ohio, and Local 698, of Akron, Ohio With
all parties represented, the matter was heard before Trial Examiner Ramey Donovan
in New York, New York, on January 28 to 31, inclusive, and February 5; in Chicago,
Illinois, on February 11 to 14, inclusive; in Cleveland, on February 26 to 27, inclusive,
and in Washington, D.C., on March 30 and 31, and April 1 to 7, inclusive, all in 1964.
Oral argument was heard and the General Counsel and each of the Respondents sub-
sequently filed briefs on July 13, 1964. The parties filed able briefs in support of
their respective positions. Respondents motion to correct the record is granted.
The complaint alleges numerous acts and statements by Respondent, RCIA, and
Locals 880 and 698, in violation of Section 8(a) (1) of the Act; it alleges a refusal to
bargain in violation of Section 8(a) (5) of the Act by RCIA; and it alleges the dis-
charge of George Rhyne by RCIA and Local 698 to be a violation of Section 8(a) (3)
of the Act. Respondents deny the commission of the alleged unfair labor practices
In the case, the principal issues were: whether the alleged 8(a)(1) statements
did as a matter of law contravene that section of the Act; the effect of a requirement
of Respondent that representatives must be members of the Union and that members
cannot be members of another union; whether the AOA was a labor organization
within the meaning of the Act; whether the persons on whose behalf the AOA sought
to bargain were employees within the meaning of the Act; whether the AOA repre-
sented a majority of the employees in the units asserted; whether the units asserted
were appropriate bargaining units; whether Respondent RCIA entertained a good-
faith doubt concerning the AOA's claim that it represented a majority in an appro-
priate unit. Credibility was an issue throughout not only with respect to direct con-
flicts in testimony but also with respect to the evaluation of testimony of numerous
witnesses regarding their duties, functions, and activities. The ultimate issue was, of
course, whether or not the allegations of the complaint had been sustained by a
preponderance of the evidence.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and upon observation of the witnesses and their
testimony , I make the following:
FINDINGS OF FACT
1. THE JURISDICTIONAL FACTS
RCIA is a voluntary unincorporated association and is one of the International
Unions affiliated with the AFL-CIO. The RCIA has chartered approximately 300
local labor unions and approximately 10 district councils composed of varying
numbers of its aforementioned local unions . The International 's office and head-
quarters are in Washington , D.C., and it maintains other offices in the United States,
Puerto Rico , and Canada , including seven regional division offices in the United
States. The membership of the RCIA is approximately 400,000 employees engaged
in the retail trades.
Various employers that employ employees represented by local unions chartered
by, and affiliated with, the International in the United States and elsewhere , purchase
or sell, or purchase and sell, goods in a value in excess of $ 50,000 and cause such
goods to be transported in interstate commerce from or to , or, from and to, persons
outside the State or territory where they are located.
On an annual basis in a representative year, the International , in the course of its
operations , received per capita dues and initiation fees valued in excess of $1 million
at its International offices from its local unions located throughout the United States.
The International employs clerical and other employees in its various offices
aforementioned.
It is found that Respondent International is an employer engaged in commerce
within the meaning of Section 2 ( 2), (6), and (7) of the Act.
Local 880 is a voluntary unincorporated association, and a labor organization with
a substantial membership , chartered by Respondent International and affiliated there-
with. Local 880 has its principal office in Cleveland , Ohio, and it employs clerical
and other employees.
Various of the employers that employ employees represented by Respondent Local
880 are engaged in substantial business operations and each purchases and/or sells
goods in a value in excess of $50,000 , and causes such goods to be transported in
interstate commerce from and /or to persons outside the State in which it is located.1
On a representative annual basis , Local 880 , in the course of its operations, has
remitted to Respondent International at the International offices per capita dues and
initiation fees in excess of $144,000.
It is found that Local 880 is an employer engaged in commerce within the meaning
of Section 2(2), (6), and ( 7) of the Act.
Local 698 is a voluntary unincorporated association , and a labor organization
with a substantial membership , chartered by Respondent International and affiliated
therewith . Local 698 has its principal office in Akron , Ohio, and it employs clerical
and other employees.
Various of the employers that employ employees represented by Respondent Local
698 are engaged in substantial business operations and each purchases and/or sells
goods of a value in excess of $50.000, and causes such goods to be transported in
interstate commerce from and /or to persons outside the State in which it is located.
Local 698 remits to Respondent International at the International offices per capita
dues and initiation fees.
It is found that Local 698 is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
' This allegation appears in paragraph 11(b) of the complaint and the same allegation
appears in paragraph 7(b) thereof with respect to Local 698. In their joint answer to
the complaint , Respondents , in paragraphs 8 and 10 thereof , answer paragraphs 11(b)
and 7 ( b) by stating that the answer thereto is the same as that set forth in paragraph 5
of the answer . The latter states that "respondents admit that some employers which em-
ploy employees represented by local labor organizations chartered by the Retail Clerks In-
ternational Association purchase and/or sell goods of a value in excess of $50 , 000 and
cause said goods to be transported in interstate commerce from or to persons outside
the State, territory and country in which they are located . . . I deem that para-
graphs 11(b) and 7 ( b) of the complaint are admitted ( Section 10220 of the Board's
Rules and Regulations). Indeed, since neither at the hearing nor in their briefs did
Respondents challenge the jurisdiction of the Board from the "commerce" aspect, it
appears. unlikely that there was an intention to do so in the pleadings.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 207
It. THE LABOR ORGANIZATION INVOLVED
The AOA was formed in the first week of December 1962 in Providence, Rhode
Island, by a group of staff personnel of the RCIA and/or of staff personnel of local
RCIA unions. The officers elected at that time were* president, Casey, an RCIA
International representative in the Eastern Division of the RCIA; vice president,
D'eon, a business agent or organizer for an RCIA local union, secretary-treasurer,
Ryan, an organizer for an RCIA local union.
The constitution and bylaws of the AOA, article V, provide that "Eligibility to
membership in this organization shall be limited to business agents and representatives
of local, national, and international labor organizations .." Article IV, sec 1,
states, "the objects of this organization shall be: . (b) to engage in organizing
unorganized employees and to provide services to those who are organized; (c) to
secure improved wages, hours, working conditions and other economic advantages
through organization, negotiations and collective bargaining, through advancement of
our standing in the community and in the labor movement through legal and economic
means, and other lawful methods ...."
The record also shows that the AOA has engaged in organizing activities among
persons in positions eligible for membership in the organization and that it has filed
with the Board unfair labor practice charges, petitions for certification as collective
bargaining representative of employees, and has sought recognition as collective-
bargaining agent, and collective bargaining on behalf of persons in positions eligible
for membership in the organization who have designated it as their bargaining agent.
Reports required under the Labor-Management Reporting and Disclosure Act
have been filed by the AOA with the Bureau of Labor Management Reports of the
Department of Labor. One of the aforementioned reports, as required, lists such
matters as assets, money received during the year, money paid out, names and titles
of officers and disbursements to or for them. The officers listed in the 1963 report
are: president, Arnold, who is an International representative in the RCIA Central
Division, divisional office being in Chicago, Illinois; D'eon, vice president, previously
referred to above; Ryan, secretary-treasurer, previously referred to; Rheuban, record-
ing secretary, a business agent for Local 880, Spiess, "Exec Board," an International
representative in the RCIA Eastern Division, the divisional office being in Phila-
delphia, Pennsylvania.
According to the testimony of Ryan, secretary-treasurer of the AOA, the first
group of officers was elected in 1962 when the organization was formed The names
and positions have been previously described. Casey, the first president, wrote to
the secretary-treasurer of the RCIA, apparently, on or about December 27, 1962, stat-
ing that he was withdrawing from all participation in the AOA; that he was rescinding
the AOA membership application or authorization card he had signed and "As of
27 December 1962, I resign the office of president of the aforementioned associa-
tion." 2 In January 1963, Arnold was appointed president of the AOA.3 Several
months later, according to Ryan, officers were elected, including Arnold as president.
In view of the definition of "labor organization" in Section 2(5) of the Act,4 the
foregoing details concerning an asserted labor organization are not ordinarily and
should not be necessary in a proceeding such as this. However, RCIA has vehemently
contested that the AOA is not a labor organization and has asserted that the Trial
Examiner's granting of a motion to revoke a subpoena duces tecuni served on the
AOA was prejudicial since it prevented Respondent from probing regarding various
asserted aspects of the AOA. For a variety of reasons, the RCIA states that, even if
the AOA is technically a labor organization, its tactics or character is such that it is
not entitled to bargaining rights.
Respondent RCIA, in its brief, in support of its contention that the AOA is not a
labor organization, asserts that there is good reason to believe that the AOA "never
really came into existence since it has not met since June 1963 nor has anyone paid
2 As described later in this Decision, it was during this period that the RCIA's strong,
If not overwhelming, policy of opposition to the AOA was made known, including a policy
pronouncement that tenure in a position with the RCIA and its locals was incompatible
with membership in the AOA.
s Arnold had signed up with the AOA on December 12, 1962. Previously, in 1961,
Arnold appears to have had some association with or knowledge of an abortive attempt at
organization by a group called the Retail Clerks Representatives.
4 " The term 'labor organization ' means any organization of any kind , or any agency or
employer representation committee or plan, In which employees participate and which
exists for the purpose , in whole or in part, of dealing with employers concerning griev-
ances, labor disputes , wages , rates of pay , hours of employment , or conditions of work "
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dues to it for many months." It is then asserted that there is a question of an
"apparent violation of Sec. 401(a) of Landrum-Griffin" since AOA officers have been
appointed rather than elected. Regarding the subpoena duces tecum aforementioned,
the RCIA states that the "subpoena requested the AOA to produce a variety of
documents with respect to the following questions:
"(1) Has the AOA been financed or otherwise supported by one or more of the
RCIA's rivals or enemies?
"(2) Has the AOA been created and/or actually used as a springboard for engag-
ing in political activities within the RCIA?" 5
The RCIA brief then refers to an unsigned and undated letter addressed "to all
Local Unions, Retail Clerks International Association." The letter, inter alia, refers
to forthcoming matters before the Union, including "who will replace" President
Suffridge (the RCIA president) "when he assumes the leadership of the entire AFL-
CIO"; also stated, ". . . our constitution must be revised"; and the third matter to be
faced, according to the letter, is "the fact that Organizers and Business Agents will
unionize ." The letter then endorses a named RCIA regional director and vice presi-
dent for the presidency of the RCIA, presumably when the incumbent ascends as
previously described. Printed or typed at the end of the letter is the name, "The
Membership Committee, Organizers & Business Agents Union." 6 Vice President
Plopper of the RCIA, executive assistant to the president, testified that copies of the
letter were received by the International from various RCIA locals in the early part
of 1963. No signatures or other authentication is in the record other than as stated.
The RCIA as part of its attack upon the AOA as a valid labor organization charac-
terizes the letter as a "flagrant interference with the RCIA's internal political
affairs ...." Respondent also cites testimony of an organizer for Locals 880 and
698, who was an AOA adherent, that he told another staff member that Ryan,
secretary-treasurer of the AOA, planned to be in Chicago at the RCIA convention to
speak to and to seek to influence delegates on behalf of the AOA. Also cited is the
fact that in its letters to the RCIA requesting recognition, the AOA sent copies
thereof to AFL-CIO President Meany and Vice President Reuther Respondent
characterizes this action as "outrageous and officious," calculated "to embarrass the
RCIA, or to bring pressure to bear or some related reason."
In considering the various points raised by the Respondent, RCIA, I do not regard
the fact that the AOA has held no meetings since June of 1963 or that its dues inflow
is minimal or nil as determinative of its status as a labor organization. The AOA is
apparently in a very early stage of development and it appears that the RCIA and
some of its locals have been its first targets for organization. Very strong opposition
has been encountered from the RCIA and, as we shall see, a material factor in the
resignation from the AOA of many of its adherents has been the opposition to the
AOA by the organization for whom these representatives work and from whom they
receive their pay. Even if this were not the fact, neither the modesty of its treasury
nor the paucity of its meetings would be determinative of AOA's status as a labor
organization.
Regarding the asserted "apparent violation of Sec. 401 (a) of Landrum-Griffin,"
the reference is evidently to Title IV, Section 401(a) of the LMRDA, requiring elec-
tion of officers not less often than once every 5 years I have no intention of passing
upon compliance or noncompliance with statutory provisions that are under the
jurisdiction of the Secretary of Labor and the Bureau of Labor Management Reports.
I have set forth the facts in the record regarding the formation of the AOA and the
identity of its officers and the facts relating thereto. For the purposes of this pro-
ceeding, Respondent's reference to and comments regarding Section 401(a) do not
persuade me that, on this aspect, the AOA is not a valid labor organization within the
meaning of Section 2(5) of the Act.
With respect to Respondent's unsuccessful effort to secure and elicit information
regarding the AOA's alleged securing of support and funds from "outside" sources,
the record indicates that this was a suspicion on Respondent's part. There was men-
5 The subpena, with respect to the period from June 1, 1962, and January 1, 1964,
requested all minutes of membership and executive board meetings bearing on (a) the
object and purpose of the AOA; (b) the constitution and bylaws of the AOA; (c) the
officers and affairs of the RCIA. Also, all correspondence, memoranda, leaflets, or litera-
ture issued to representatives of the RCIA ; all correspondence by the AOA seeking funds,
support, or assistance of any kind ; all membership applications , all revocations of applica-
tions ; all records of dues payments ; all receipts of funds , all records of expenditures , and
other similar material.
6 Cf. "Agents and Organizers Association," the name of the AOA.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 209
tion of other suspected unions who were rivals in the organizational field with the
RCIA. Such reference as there was indicated that the suspected rivals were AFL-
CIO affiliates. If Respondent had any tangible evidence on this score it was not
revealed, and in any event, such a matter would appropriately appear to be cog-
nizable, at least in the first instance, by the AFL-CIO jurisdictional body.? If any
support to the AOA from employers was known, it would be cognizable under an
8 (a) (2) proceeding. Finally, the reports filed by the AOA under the Reporting Act,
list assets, income, and outgo. Any errors of falsification in such reports are cog-
nizable by the Bureau with which the reports are filed or by the Secretary of Labor
or Department of Justices
It is by no means established that the AOA was the author of the unsigned and
undated letter described above, in which various views and positions were expressed
regarding RCIA affairs. But this and other rather meager evidence, indicating an
interest in and a possible effort to influence the RCIA people with respect to a more
favorable view toward AOA, do not, in my opinion, invalidate the AOA as a labor
organization. This is also true with respect to opinions or views regarding RCIA
matters, assuming arguendo that the aforesaid letter is attributable to the AOA.
Upon the evidence, I find that the AOA is a labor organization within the meaning
of Section 2(5) of the Act .9
III. THE ALLEGED UNFAIR LABOR PRACTICFS
A. The demand for recognition
By letter of December 19, 1962, to President Suffridge of the RCIA, the AOA
stated that it represented a majority of the International representatives and council
organizers of the Eastern Division of the RCIA and demanded recognition as
collective-bargaining agent. Excluded from the aforementioned unit were special
agents, special International representatives , International representatives residing
outside the territorial limits of the United States, the director and assistant director of
the division. This letter concluded by stating: "We are prepared to prove our
majority representation by submitting our cards to a mutually agreed upon third
person ...."
Signatories to the letter were Casey, as president of the AOA, and Ryan, as
secretary-treasurer. On December 23 and 24, 1962, two additional letters were sent
to Suffridge. The letters were the same as the December 19 letter, with the exception
of the fact that the December 23 letter claimed representation of the International
representatives and council organizers in the Metropolitan Division of the RCIA, and
the December 24 letter claimed the same categories in the Central Division.
On December 27, 1962, Osterling, vice president and national director of organiza-
tion of the RCIA, replied to the three letters aforementioned. After stating that
Suffridge had referred the AOA letters to him for reply, the writer stated:
We seriously doubt whether the organization referred to actually represents
International Representatives or Council Organizers. Beyond this, we question
the legality or even the proprietly of efforts to represent for collective-bargaining
International Representatives or Council Organizers whose position and employ-
ment is dependent upon continued membership in the International Association
through a local union. There are, of course, offer bona fide considerations,
which on this occasion we deem it unnecessary to discuss.
In view of these circumstances, the request for recognition or a card check
contained in your letters is herewith rejected.
7 The attorney who prepared the constitution and bylaws of the AOA was apparently a
local attorney named Sheehan who had represented the Meat Cutters Union in a matter
in which that union was a rival to the RCIA. It is fairly reasonable to assume that the
incipient AOA organization would find It necessary or wise to consult an attorney. Under
the circumstances , it seems unlikely that an attorney representing the RCIA would be
retained or that such an attorney would be inclined to render his services if requested.
An attorney in the field of labor law on the union side of the fence would appear to be a
logical choice . In any event , I am unable to attach significance to the Sheehan Incident.
8 The rep;. s require a showing of receipts from dues , fees, sales of supplies , investment
Income, loans received , and so forth , plus, "receipts from other sources."
° If, at some future time , the AOA, or any other labor organization dealing with em-
i loyers , should undergo a change in status or functions, the Board is competent to deal
with the situation created at the time.
796-027-66-vol. 153-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also, on December 27, 1962, President Suffridge addressed a letter "To all RCIA
Local Unions, Council and International Representatives," The letter stated that it
was written with reference "to the attempts of the so-called Organizer's and Business
Agent's Union" to represent representatives and organizers and "to clarify the Inter-
national Association's position in this matter, in accordance with the Retail Clerks
International Association's Constitution, laws and established policies." The letter
then stated:
It has always been the policy and practice of the Retail Clerks International
Association to choose only members of the RCIA as International Representa-
tives Local unions in accordance with the RCIA constitution ... are required
to follow the same procedure ....
.. This, then, puts it simply. membership in the RCEA is a prerequisite to
continuing to work at the trade as a Retail Clerks Representative, whether Local,
Council, or International
Any member representative of the Retail Clerks International Association who
joins another union is, under the International Constitution, engaging in dual
unionism and/or attempting to create a rump group within the RCIA and, as
such, is in violation of the RCIA constitution and subjects himself, under the
Constitution to disciplinary action including, but not limited to, membership
suspension 10
B. The sti uctuie and organization of the RCIA, the personnel and
their duties and functions
We have previously described briefly, for jurisdictional purposes, the Respondents
herein. Additional facts will now be considered.
The RCIA, as previously stated, is one of the International unions affiliated with the
AFL-CIO The AFL chartered the RCIA in 1890. Theie is a constitution that
governs the RCIA. Officers of the International are the president, secretary-treasurer;
and 10 vice presidents. The officers constitute the International executive board
Subject to an International convention that is held every 4 years, the supreme govern-
mental powers of the RCIA rest with the president and/or with the executive board.
Constitutionally, the president exercises "supervision over the affairs of the Interna-
tional Association."
At its Washington, D C, headquarters, the RCIA maintains the following
departments: 11
(1) The president's office.
(2) Organizing department, consisting of the International director of orga-
nization and two assistants who are referred to as assistants to the aforementioned
director or as assistant directors of organization, plus clerical employees This
department is in close contact with the seven regional or division directors or
organizing directors, as they are called, who are located in seven regions in
various cities of the United States.
(3) Organizing promotions department, which prepares organizing material
and engages in public relations work.
(4) Collective-bargaining department, which provides contract data and
drafts model contract clauses for use of RCIA representatives and subordinate
bodies.
(5) Research and education department, which engages in economic, statisti-
cal, and education functions.
(6) Advocate department, which prepares the official monthly magazine, "The
Advocate," of the RCIA The president of the RCIA is the editor thereof.
(7) Active ballot club, which sponsors voter registration and other political
activities.
(8) International affiairs department, which deals with the RCIA's interna-
tional activities.
10 Having described the demand for recognition and Respondent's initial response thereto,
we will defer analysis and consideration of that aspect to a later point
11 RCIA has pointed out in its brief that it is not antiunion and that it "believes pro-
foundly in the necessity for collective bargaining . " and, by way of illustration of
its principles, cites the stipulation in the record that at the Washington headquarters it
has, for a number of years, had contracts with the Office Employees Union for a variety of
office and clerical employees there employed ; also that, at the same location, it has con-
tracts with the Building Service Employees Union for building service employees and with
the Operating Engineers Union for personnel of that union.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 211
(9) International secretary-treasurer's office, which deals with financial and
housekeeping functions, including payrolls, receipts, health and welfare and
pension funds, and accounting.
The seven geographic and administrative field divisions of the RCIA, are: North-
western Division; Southwestern; Central, Southeastern; Eastern; Metropolitan New
York; and Southern. As previously stated, the AOA has claimed recognition in each
of three divisions: the Eastern, Central, and Metropolitan. Two of these three divi-
sions, Eastern and Metropolitan, are geographically contiguous but the Southeastern
Division is between the Eastern and Central Divisions. Generally described, the
Eastern Division has its division office, headed by the division director, in Phila-
delphia, Pennsylvania, and includes, roughly, Pennsylvania, Maryland, Delaware,
New Jersey, except a part thereof that is in the Metropolitan Division, New York,
except the metropolitan area, the New England States and Canada, north of New
York and New England. The Metropolitan Division, headed by its division director,
has its office in New York City, and embraces Metropolitan New York, including
parts of New Jersey, and, more recently, also includes the Albany, New Yolk, area.
The Central Division, headed by its division director, has its office in Chicago,
Illinois, and embraces, roughly, Illinois, Missouri, Iowa, Kansas, Wisconsin, Minne-
sota, Nebraska, South Dakota, North Dakota, and Canada, north of North Dakota
and Minnesota.
The division directors are appointed by the International president. They are
customarily also vice presidents of the RCIA, being elected as such by the member-
ship. Of the seven present directors, all are vice presidents except one 12 There are
also assistant division directors or assistants to the division directors who share with
or assist the director in his functions and substantially perform his functions in his
absence.
The areas of the seven divisions are basically stable although the president of the
RCIA may, as circumstances require, make some alteration in boundaries. The
factors entering into allocation of divisional areas are geography, the degree of orga-
nization in the particular area; the degree of necessary service required in an area; the
unorganized potential in the area, and such factors. Flexibility and commonsense
are displayed in such situations as the following- Tom's River, New Jersey, is in the
Eastern Diviison but is only 78 miles from New York City. The Metropolitan Divi-
sion has a contract or contracts with grocery chamstores A for its stores in the
Metropolitan Division; the Eastern Division has a contract or contracts with grocery
chainstores B in its territory; both A and B, open or have a store, respectively, in
Tom's River. The Metropolitan Division then handles the Tom's River store of chain
A and the Eastern Division does the same foi the Tom's River store of chain B. Since
the administrative structuie of employers, with whom the RCIA and its locals deal,
may differ from the RCIA divisions, representative of two divisions, for instance,
may participate jointly in contract negotiations. Thus, a contract negotiation in
Chicago, embracing a large chainstore employer, may be one in which International
officers of the RCIA from Washington, D.C., may participate, together with several
division directors in whose territory all or the bulk of the stores ale located.
Within the aforedescribed seven divisions, the day-to-day production work of the
RCIA takes place This production work is carried on among employees of various
retail enterprises in the divisions, principally among clerk in retail stores. Generally
described, the production work consists of organizing the unorganized and of provid-
ing services to those who have been organized. Those people who perform produc-
tion work in the field for the RCIA and its subordinate bodies are the topic of our
attention herein.
The 1959 constitution of the RCIA provides that the president of the International
"shall employ and fix the compensation and other terms of employment of all orga-
nizers, assistants and other personnel that he deems advisable" for carrying out his
duties and the affairs of the RCIA. It is also provided that the president has authority
"to terminate the employment of such personnel ...." 13 As amended in convention
in June 1963, the constitution provides that the president "shall commission active
members in good standing, who are currently working at the trade, for assignment as
International Representatives on a voluntary basis." 14 In general, it appears to be
the fact that-persons employed as International representatives are individuals who
s2 Evidently McGrath, who was a relatively recent arrival at the director level. McGrath
became director or acting director of the Eastern Division in May 1962, and then became
director of the Central Division in December 1963.
13 Section 12 (M).
14 Section 11(M) 1. This change was made upon advice of legal counsel and occurred
subsequent to the filing of the instant charges.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were working as retail clerks in various stores and that they were and are members of
the Union.15 Although International representatives continue to be members of the
RCIA, they are and are required to be on a full-time basis with the RCIA and have
no outside employment.
In the typical situation, a prospective International representative is initially inter-
viewed by one of the division directors, although he may perhaps have spoken to or
have been spoken to by some International representative or someone else of his
acquaintance in the RCIA organization about the idea of joining the staff. The
director makes a recommendation to the International president concerning the
applicant. A good illustration of the process, and of the relationship of the Interna-
tional representative to the organization and to the division director, is furnished by
the following letter of July 5, 1962, from President Suffridge to a newly hired Inter-
national representative:
This communication will serve as a confirmation of the tentative arrangements
discussed with you recently by Vice President Earl McDavid, Organizing [divi-
sion] Director of the Metropolitan New York Division, relative to your employ-
ment as a representative of our International Association. This office herewith
approves Brother McDavid's recommendation, effective as of July 12, 1962.
Your salary will be $125.00 per week, plus a weekly expense allowance of $35.00
[when the entire work week is in Metropolitan New York] which will be con-
sidered your home area.
Before you received your first assignment from . . . McDavid ... you will
enter into a training period as follows:
On your starting date of employment you will report to ... McDavid, with
whom you will work for your first week of employment. Following that, the
Director [McDavid] will assign you to some Local Union within the ... Division
[for 2 weeks to observe the operation of a local union]. In the near future,
arrangements will be made to have you spend one week at the offices of the
International Association in Washington, D.C., where you will receive first hand
information on the operation of the International Association.
You will be required to file a written report, as well as a progress report, each
Saturday, concerning your activities for the week ending on that day, the origi-
nals of which are to be sent to ... Director McDavid with copies to this office
... you will also include the original and copy of your expense report ....
. McDavid, who has supervision over the division to which you have been
assigned, will acquaint you with the regulations concerning expense allowances
for long distance telephone calls, telegrams, hall rent, printing of circulars, and
the proper way to report such expenses ....
You will be expected to work closely with your ... Director and you will find
that both he and the International office will cooperate in every way to help you
make your employment a success.
[Enclosed are withholding tax and social security forms for completion and
return to the International's payroll department.] While most of your contacts
will be with . . . Director McDavid, please feel free to communicate directly
with this office .... We want to take this opportunity to welcome you as an
employee of the RCIA ....
The foregoing is a form letter and is also to be found in a manual issued to repre-
sentatives. The three reports that International representatives and council orga-
15 There have been a few exceptions to this policy. Medeiros, who was formerly with
District 50 of the United Mine Workers, was an International representative in the
Eastern Division for 61/ years. He had been working for the RCIA as an International
representative for a year before he applied for membership in the RCIA and became a
member. The RCIA local unions also follow the policy of employing people as organizers
and as business agents who are members of the RCIA and who have worked as retail
clerks But, as in the case of Medeiros as an International representative, some flexibility
is displayed in the local unions in applying the policy to their own representatives. Thus,
Rhyne was employed by Local 880 as an organizer from about August 1961 to March 1963,
although he was not an RCIA member. In about March 1963 Rhyne was transferred as
an organizer to Local 698. The chief executive officer of the latter advised Rhyne that
he would first have to work at the trade of a retail clerk and become a member of the
Local union. It was then arranged for Rhyne to work for 23 hours as a clerk in a retail
store under contract with the Union Thereupon Rhyne became a union member and as-
sumed his duties as an organizer for Local 698.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 213
nizers, throughout their careers , are required to file each week with their division
director , with a copy to the Washington , D.C., office, are , as mentioned in the presi-
dent's above letter, a weekly report; a progress report; and an expense report.
The weekly report recounts what the representative did during the preceding week.
He will, for instance , state therein that regarding Company A he "made eleven home
calls Monday and Tuesday nights and although people are hesitant about talking,
due to management pressure , they are generally accepting the fact that they must
have a union to represent them if they are to have any type of job security . To date
we have 62 cards signed out of a possible 1,400 people and have started to formulate
committees within the store . Program developing satisfactorily . Drive began
[date]." 16
The second type of report is the "Weekly Progress Report of Assignments" which
is a printed form of six columns (principally a numerical tabulation ) headed: Name
of firm and type of store ; list store by address and store number and name town;
number of employees in RCIA unit ; [number of] home calls ; [number of] cards
signed this week; [number of] cards signed to date." The expense report is what the
name indicates.
The division director and the assistant division director review these reports as
does the organizing department in the Washington , D.C., office . Most commonly.
the aforementioned division officials comment on these reports to the author thereof
although Washington officials may communicate thereon to the director and the
assistant director or, on occasion, may communicate with the representative directly.
The record contains some examples of the scope of review by a division director
of two different reports by an International representative . Thus, on April 9, 1963,
Director McDavid wrote to an International representative in his division:
Some of your weekly progress reports were not completed , in that you did not
indicate at the bottom the number of days spent during a particular week orga-
nizing and the number of days spent servicing.
The commentary of the same director on another date is as follows:
Upon a review of your present and past records on [Store A], it would appear
that there is a minimum interest in organization among these employees . .
We will discontinue active participation in this program for the present and
keep in touch with these employees on a periodic basis.
In addition to the effective review and supervision that the division director exer-
cises over the personnel in his division through the two aforementioned types of
weekly reports submitted to him, he also reviews and corrects their expense reports.17
With the frequency depending upon geography and other circumstances in the par-
ticular division , at a given time, contact , either face to face or by telephone or letter,
is common between the director and the representatives working in the division. In
addition to conducting employment interviews , the director effectively recommends
hiring, discharge , and salary increases for the International personnel within his
division . He grants time off to his personnel and issues to them their instructions
and assignments . These are the facts with respect to the day -to-day operation of the
division and they are not altered by the fact that officials in the Washington, D.C.,
office are in frequent contact with the director by telephone , letter, and personal
visitation . Nor is the aforementioned situation altered by the fact that the Interna-
tional president has the decisional or final word on hiring , discharge , salary increases,
and other matters, or by the fact that officials from the Washington , D.C., office of
the International visit the divisions and communicate with the personnel therein.
A great deal of the instant record contains testimony regarding the duties and
functions of International personnel who work in the various divisions of the RCIA.
The witnesses were examined and cross -examined at length . Respondent RCIA con-
tends that the aforementioned personnel are managerial and are not employees within
the meaning of the Act . The General Counsel takes the opposite position.
The RCIA has approximately 70 to 100 International representatives in its various
divisions , with the number varying from time to time. Both the General Counsel and
the Respondent RCIA , in their briefs , agree that the International representative is
1e This is an excerpt from the aforementioned manual as illustrative of the contents of
the weekly report.
7International representatives and council organizers in a division submit the same
type of weekly reports to the director , with copies to the Washington office . Organizers
and business agents, who are the personnel employed by local unions in the various
divisions , do not submit such reports to the division director or to Washington.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
primarily an organizer of unorganized retail store personnel and that this function
consumes the greater portion of his time. Generally, the organizing targets are
assigned to one or more International representatives by the division director and
these assignments are followed. Some International representatives have always
organized pursuant to assignment. Others, of perhaps more experience, ability, or
initiative, have initiated organizing targets in their territory. In hearing the testi-
mony regarding the foregoing and in appraising the various witnesses, I am satisfied
that the following is a fair and accurate description synthesis of the organizing phase
of a representative's work.
The director in the division has certain organizing targets in mind-i.e., specific
stores or specific areas-and he will assign his representatives accordingly and they
will carry out their respective assignments. Depending upon circumstances, the
judgment of the director, and the ability and experience of the representative, the
assignments may be very limited and precise, subject to a relatively prompt reporting
back and rather detailed instructions, or the particular assignment may be broader
and relatively undetailed. No representative is expected to ignore organizing oppor-
tunities that he may encounter or perceive in the course of another assignment or
otherwise. Initiative, experience, and ability will no doubt be important factors. As
far as appears, a representative does not work in a division with no assignment other
than a carte blanche to roam hundreds or thousands of miles in the division to select
some organizing target that may appeal to him. For one thing, there may be certain
potential targets, of which the director of the International office is aware, that are
not deemed ripe for organizing at the time for a variety of reasons including the fact
that a major coordinated campaign has been planned 6 months hence, a fact of
which a freelancing representative might not be aware. In those cases where initia-
tive regarding organizing targets is displayed by a representative, I am convinced
from this record that the matter is either discussed with the director before or shortly
after the initiative is implemented, and, in all cases, the weekly reports bring the
director, as well as higher officials in Washington, directly and closely abreast of the
situation, including the exercise of supervision over the matter.
RCIA in its brief, in support of its contentions, points to various functions per-
formed by International representatives in addition to organizing. The cited func-
tions are: 18
"Demanding Recognition" from employers. Evidence that all representatives do
much of this type of thing is minimal but it occurs, at least in some situations and by
some representatives. In view of the record, I doubt that such demands are made
without at least the awareness of the director and probably after consultation. The
manual that representatives receive provides many types of form letters, including
a demand-for-recognition form letter. "Negotiating contracts." Some representa-
tives have negotiated contracts with employers and some have never done so. There
are standard clauses for contracts and there is a collective-bargaining department at
International headquarters that deals with contract provisions.19 "Directing Strikes
and Picketing." Strikes must be authorized by the International executive board.
An International representative may direct an authorized strike when so assigned.
The pay of nonmember pickets, who are paid pickets, is determined by the local
union that is paying them. The International representative may hire such pickets,
direct them when to report, and give them other directions, and the representative
may participate in the picketing and leaflet distribution. "Processing Grievances and
Arbitrating." Some representatives have been assigned to assist a local union on
handling grievances, including arbitration. Other representatives have not per-
formed these functions. "Handling NLRB Proceedings." Some representatives have
filed petitions for certification, unfair labor practice charges, and objections to elec-
tions with the Board. The Act provides that any person may file a petition or charge.
Any party may file objections to an election. In the light of the record, I am not
persuaded that the foregoing steps are taken normally without the awareness of or
after consultation with the director or other authority, including legal counsel in at
least complex situations.20 "Collecting Dues." He may collect dues for a local
1s The quoted portions are from the brief. The comments are mine.
ze In commenting regarding the various functions performed by representatives, I am
guided by the record. I am convinced that representatives do exercise judgment and
discretion in the course of their work and he has no desire to downgrade their duties and
ability. But the representatives are neither giants nor pygmies and their functions are
to be appraised without maximization or minimization.
w International Representative Arnold testified that he had filed charges with the NLRB
after consultation with his director International Representative Medeiros testified to
the same effect regarding petitions and charges.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 215
union." This may occur under particular circumstances but there is no evidence that
it is the usual function of the International representatives. "Supervising and Advis-
ing Local Unions." An International representative may be assigned to assist a local
union. His mandate is generally one of assistance and cooperation, not supervision,
and he does not issue orders to the local union. Some small local unions may have no
full-time officers or the local people may be inexperienced. An International repre-
sentative may be assigned to assist such locals and may perform a great many func-
tions that a larger local would perform for itself without assistance. "Policing The
Constitution." All members are required by the constitution to conform thereto and
abide therewith. Evidence is cited of an International representative who observed
that a local union was not holding monthly meetings during the summer as required
by the constitution. He called to the local's attention the constitutional requirement.
"Recommending New International Representatives and Local Union Agents." If
an International representative is approached by some individual (usually a clerk in
an organized retail store) about employment with the RCIA, the representative can
and does recommend the applicant to his superiors in the RCIA. This may also
occur if the representative, seeing good qualities in an individual, initiates the discus-
sion of possible RCIA employment. The determining recommendation and decision
is customarily made by the director after interview of the applicant and by higher
officers. "Encouraging Political Action-Voter Education." The "political" line
emanates from a specialized department of the International, and representatives do
speak with members of the RCIA along these lines. A representative may be
assigned to attend meetings of Cope (The political arm of AFL-CIO). "Serving as
Trustee Or Deputy Trustee' of local unions and councils. I do not believe that the
great majority of RCIA local unions and councils are normally under a trusteeship.
The latter is an abnormal situation that arises where there is corruption or pronounced
malfeasance or misfeasance. Many International representatives have never been
designated by the International president to act as trustees and as deputy trustees.
Commonly, when a trusteeship is established, the division director is designated as
trustee and an International representative is designated as deputy trustee. The latter
performs most of the day-to-day work of the trusteeship. "Investigating Local Union
Affairs." A representative may be assigned to investigate a grievance of a local
union member and investigatory work is carried on in trusteeship situations. "Hiring
and Supervising Pickets." This has been discussed above, under "Directing Strikes
and Picketing." "Holding Meetings." Representatives do hold meetings in the
course of their work. "Appointing Committees and Observers," during organizing
campaigns, of employees who are members of the union or who are being organized.
"Substituting For Organizing Director." An International representatives does not
ordinarily substitute for the director. The assistant director performs this function.
In support of the above-quoted proposition in its brief, Respondent refers to one
citation in the transcript of testimony, to wit, Representative Tuohey testified that
once, when his director was going on vacation, the latter said to Tuohey, "If anything
comes up on this side of the river, the New York side, I want you to handle it for
me." The director then said that Vice President Plopper would be back-stopping for
the director and that Plopper should be contacted if something difficult arose. Tuohey
testified that during the director's absence, "I handled nothing" as substitute director.
"Surveying Potential Organizing Targets." This matter has been previously discussed
in considering organizing activities. "Training Local Union Officials." An experi-
enced International representative may be assigned, on occasion, to help break in
and train a local union organizer or business agent. "Attending Conventions and
Meetings." Representatives do attend conventions and meetings. "Installing Local
Union Officers." When local union officers are elected by the membership of the
local, an International representative, who has been servicing the local, does or may
"install" the officers.21 "Foreign Assignments." A few International representatives
serve overseas by appointment of the International president. Medeiros, an experi-
enced International representative in the United States, who speaks Portuguese, is
the only specific example of this type of activity-he has been transferred to the
international affairs department of the RCIA and is apparently going to South
America.
We have seen that when an International representative is hired, the president
assigns him to a particular division and informs him that that division will be "your
home area " The representatives maintain their homes and families within the divi-
sion area where they work. Vice President Plopper, executive assistant to the presi-
21An International representative of 4 years' standing testified credibly that he had
never installed a local union officer.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent, and a man with extensive experience in the organization, testified that a repre-
sentative assigned to a particular division spends practically all his time operating
within the geographical confines of that division. Testimony of representatives at
the hearing confirms this fact. It is true that, from time to time, a representative or
representatives from one division may be assigned to assist in a major or important
organizing campaign in another division. The period of this type of detached service
may range from a few days to many months.22 Some International representatives
of many years' service have never been out of their home divisions on temporary
assignments. Although the president can make permanent involuntary transfers, the
record reveals that such transfers are rare. Permanent voluntary and involuntary
transfers are infrequent and rare and, for the most part, permanent transfers between
divisions usually occur in cases of promotion, and for the convenience of the individ-
ual; e.g., when an International representative in one division is promoted to assistant
director in another division.
There are approximately 8 to 10 district councils, referred to herein also as coun-
cils, in the RCIA. Councils may be established in a particular area by the Interna-
tional within one of the seven divisions of the RCIA. All local unions within the
territory assigned to the council by the International are required to affiliate with the
council and the council is empowered to collect "not less than twenty-five cents a year
from the members of each Local Union." 23 The council collects a per capita tax
per member based on the per capita tax paid to the International. The funds or rev-
enues of the council are maintained in the International secretary-treasurer's office
in Washington, D.C. The accounts are earmarked, and checks upon the account for
council purposes are drawn and signed by the International president and Interna-
tional secretary-treasurer. The council has officers and a constitution, and council
organizers, who are also referred to as council representatives.
The council and council organizers have, as a primary function, the organizing and
servicing functions that local unions in the council's territory are unable to perform
for themselves.24 A large local union will customarily have its own full-time officers
and it will also employ its own organizers and business agents. The organizers will
perform organizing work for the local union and the business agents will service the
members in the various stores that are under contract with the local union. Small
local unions may have no full-time officers and generally will not be able to employ
organizers or business agents. Council organizers will fill the organizing and servicing
gap for several small local unions. There are also, of course, the International repre-
sentatives who are working in the division. As we have seen, they perform organizing
work and servicing work. The International representatives are paid by the Inter-
national from Washington, by International checks, drawn on the general funds of
the International which are derived principally from per capita taxes from all local
unions. Council organizers are paid by the same International checks in Washington
but the checks are drawn on earmarked council funds, derived as has been described
above. International representatives and council organizers perform essentially the
same type of work within the division. Instead of the International paying both the
aforementioned personnel from general funds derived from all 300 local unions, the
general funds are used to pay the International representatives; and local unions, in
a council eseablished by the International in a particular division, supply additional
special funds to pay council organizers who particularly benefit the local unions con-
stituting that council. Both the International representatives and the council orga-
nizers file the same type of weekly reports with the division director and both are sub-
ject to his supervision. Organizers and business agents employed by local unions do
not file these reports with the director and they are directly responsible to the officers
of the local union who pay them from local union funds with local union checks.
International representatives and council organizers carry the same International
credentials.
There is a District Council 20 in the metropolitan division. At the time of the
instant hearing, the metropolitan division had no council organizers, although, at
one time, there apparently was one such organizer employed for a short period. The
evidence is that this council organizer worked on the same assignments and performed
the same work as the International representatives.
22 Testifying regarding his periods of detached service in other divisions, Representative
Arnold stated that during these periods he continued to send a weekly report to his "home"
division director, a copy to Washington, and a copy or a report to the individual in charge
of the particular organizing campaign in which he was engaged
21 Section 23 of the RCIA constitution.
u Councils also have their own annual conventions, in addition to the International
convention.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 217
In the eastern division, there is District Council 11 and it has two council orga-
nizers. They performed the same work as the International representatives.
The Central Division has District Council 1 , in Southern Illinois, and District
Council 14, in Wisconsin . The evidence concerning these two district councils is
considerably greater than that pertaining to the district councils in the two other
divisions aforementioned and, in the absence of evidence to the contrary , I believe
that the testimony of present and former officers of these councils and testimony of
a council organizer is fairly representative concerning the councils and the council
organizers . The evidence here, also, is that the work of International representatives
and council organizers is essentially the same.
As mentioned , the district council has its own officers, such as president , vice presi-
dent, secretary-treasurer , and recorder . It has a board of directors which usually
is composed of the officers and others . The officers are elected at an annual conven-
tion. The executive board meets from three to six times a year depending on circum-
stances and the matters requiring its attention . The secretary-treasurer is the chief
executive officer of the council and his is a full-time paid position . The other council
officers do not function on a full-time paid basis.
Arnold had been a business agent and an officer of a local union in Illinois. In
1958 he was appointed secretary -treasurer of District Council 14 by the International
president upon the recommendation of the division director . Subsequently , the coun-
cil elected Arnold as secretary -treasurer . Four years later, upon his own request,
Arnold, after resigning his secretary -treasurership , was appointed an International rep-
resentative in January 1962 by the International president.25
In addition to handling the paperwork of the council, the secretary -treasurer per-
forms organizational and service work for local unions affiliated with the council.
Based upon his experience as an International representative and as an officer of the
council, Arnold stated that the work of the International representative and council
organizers was the same.
Eiden is the present secretary -treasurer of District Council 14. He first applied
for a position with the International in September or October 1960. He was inter-
viewed at the time by the division director of the Central Division and was then hired
as a council organizer at the convention of the council in October 1960.2E Eiden
believes, and I regard it as a reasonable reference , that Eiden was hired by the council
upon the director's recommendation . The circumstances support the foregoing infer-
ence, including the fact that there is no evidence of any prior application by Eiden to
the council for employment. When Eiden stated that he was hired at the convention,
it evidently means that the executive board of the council adopted the division direc-
tor's recommendation and the convention voted to approve or adopt the action of the
Board, and , in that sense , Eiden was elected as a council organizer by the convention.2-7
In its brief Respondent , in arguing against the unit alleged to be appropriate by
the General Counsel, places considerable stress upon its contention that council
organizers are elected at the council's convention. This is true, in a sense, but the
uncontroverted evidence regarding Arnold and Eiden discloses the significant role of
the division director in the process . There is also the uncontroverted testimony of
Falk, secretary-treasurer of District Council 1, regarding the employment of Wen-
grod, one of the two present council organizers of that council. Wengrod came to
Falk for employment . Falk told him that he would have to fill out an application
that would go to the division director . Wengrod filled out an application and Falk
forwarded it to the director with Falk's own favorable recommendation . Although
the record does not contain other details, I am satisfied that the director interviewed
Wengrod, recommended him as a council organizer , the executive board approved,
and the council convention subsequently elected him to that position . The matter
was similar to that described by Eiden , above. Subsequently, in the course of his
testimony , Falk stated that in 1952 when he himself first became a council organizer
he was elected at the convention . No details concerning the circumstances appear
"Arnold had initially discussed the matter with the division director.
11 In 1961 Elden became secretary -treasurer of the council.
27 Romeo , who had formerly been an International representative in the Central Division,
testified that subsequently he became a council organizer for District Council 14 and that
his "status as a Council Organizer was approved by the Executive Board ." Presumably,
this action was later affirmed by vote at the council convention There is an intertwining
aspect in this matter of appointment and election Thus, a man is appointed organizer
or secretary-treasurer by the director or, more legalistically , the director recommends and
the executive board appoints or, in effect , ratifies the choice At the convention , the fore-
going situation is ratified by the delegates by means of a vote , an election , and the orga-
nizer or secretary-treasurer is elected.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but presumably he had been interviewed by the division director, with whom he sub-
sequently filed weekly reports during his tenure with the council as council organizer
and later as secretary-treasurer of the council.
In the sense aforediscussed, the council organizers are elected at the annual council
convention. Their salaries are also established by the convention, subject to the
approval of the International president. It is likely that the practical application of
this authority to approve is exercised, in the first instance, by the division director by
way of recommendation to the president with respect to the appointment and the
salaries of council organiers. As we have seen, the director passes upon putative
council organizers as well as upon the chief executive officer of the council, the
secretary-treasurer, who runs the day-to-day affairs of the council.28
In the course of their employment, as mentioned before, the council organizers
as well as the council's secretary-treasurer, file the same weekly reports with the
director as do the International representatives. The secretary-treasurer is in fre-
quent, if not daily, contact with the division director. None of these people file
weekly reports with the council. Falk testified that his weekly assignments, as well
as those of the council organizers, came principally from the director, although Falk
received some assignments directly from Washington.29
Respondent contends that the International is not the employer of the council
organizers since the latter work for a different legal entity, the district council. In
this connection, Respondent asserts that "a serious procedural defect" in the General
Counsel's case is that the AOA did not send letters demanding recognition to the
district councils involved and that the General Counsel did not name District Coun-
cils 1, 11, and 14 as respondents, or serve them with notice of this proceeding.
Based on the evidence in this case, I am of the opinion that the district council is,
at most, the employer in name only of the council organizers. The International is
the effective and determining employer of the council organizers. The council is set
up in territory allocated to it by the international and local unions in that territory
are required, by the International constitution, to affiliate with the council. The
council, in turn, under the aforesaid constitution, is empowered to collect no less
than 25 cents a year from the members of each local union aforementioned.
As far as the record shows, the principal activities of the council are to assist its
affiliated local unions in organizing; to provide service to affiliated local unions; and
to hold an annual council convention. The full-time paid officer of the council is
the secretary-treasurer and he performs the organizing and servicing work aforemen-
tioned, as well as such paperwork as is necessary. The most important paperwork
of the council, in its day-to-day operations, the keeping of books and records of
receipts, disbursements, and deductions, is performed by the International in Wash-
ington, D.C. The funds of the council are earmarked per capita taxes from the local
unions and these funds are in Washington, D C. Where there are no council orga-
nizers, as in the Metropolitan Division's district council, the council's secretary-treas-
urer presumably performs all the council organizing and servicing. In councils where
there are council organizers they, as well as the secretary-treasurer, perform the
organizing and servicing. In addition, within the division in which the council is
located, there are the International representatives who are also performing the same
type of work, the organizing and servicing, to assist the local unions in the division.
as As observed, the convention meets once a year and the executive board meets irregu-
larly, perhaps 3 to 6 times a year. The convention approves, at least with rare excep-
tions, what the executive board has done in the past year and during the year the execu-
tive board has approved, at the intervals when it meets, what the full-time secretary-
treasurer has been doing
29 Falk has been secretary-treasurer of district council for over 11 years. In addition
to his functions as chief executive officer of the council, he performs the organizing and
service work that council organizers and International representatives perform Sonic of
his testimony bears on the nature and responsibility of these jobs which we have consid-
ered earlier in this Decision Falk testified that he assisted local unions in contract
negotiations and that he, as well as the International, approved contracts of local unions
When questioned further about the foregoing, the witness testified that before and during
negotiations there is daily contact with the division headquarters and that he secures the
opinion of the division regarding various matters for negotiation. He also stated that
the International has approved various contract clauses and provisions and when he and
the local union negotiate a contract with such clauses, he recommends the approval of the
contract, since the International has already approved. It was in this sense that the
witness stated that both he and the International approved local union contracts
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 219
There is no significant difference between the work of the council organizers and
the International representatives. All the above personnel are paid by a check of
the International, signed by the International's president and secretary-treasurer. The
check received by the International representatives is drawn on general International
funds derived from per capita taxes of local unions; the checks received by the coun-
cil organizers and the secretary-treasurers of the councils are drawn on funds derived
from per capita taxes of local unions affiliated with the council and earmarked as
council funds. It is as if the Federal Government paid some agricultural agents from
general tax revenues and, as to some counties, it set up a district county council;
required an extra tax from counties in the council area to be paid to the council;
maintained these tax revenues in Washington but earmarked them for the district
county council; and paid some agricultural agents, servicing counties in the area of
the district county council, from these earmarked funds. Both categories of agents,
performing the same types of functions, would be Federal employees.
We have seen from the testimony of Arnold, Eiden, and Falk, above, that the
International's division director exercises, for all practical purposes, the determining
role in the employment of council organizers and the council secretary-treasurer.
The director, as agent of the International, interviews and passes upon the applicants
and candidates for these positions. Throughout their subsequent careers, the council
organizers and secretary-treasurers, like the International representatives, receive their
assignments and their supervision from the division director. They will all file
detailed weekly written reports with the director and the director will comment upon
their work and direct their activities. There is, in fact, as we have shown, no other
full-time person working for the council except the secretary-treasurer and the council
organizers The secretary-treasurer does not supervise the council organizers and, of
necessity, and, in fact, both are under the division director. The council's executne
board meets infrequently and irregularly, and while it is, on paper, the highest group
in the council except for the convention, it is apparent that it is the International,
through the division director, and not the executive board of the council, who is the
effective and actual Employer and supeivisor of the council organizers, including the
secretary-treasurer 30 This conclusion is not altered by reason of the fact that, of
course, the council organizers and the secretary-treasurer cooperate with the council's
executive board and by the fact that the executive board receives and approves reports
on which a secretary-treasurer customarily needs approval and that the annual coun-
cil convention adopts or approves the reports of the executive board. Nor is the con-
clusion altered if the convention and the executive board, at their periodic meetings,
pass upon various matters before them.
The election of a council organizer or a secretary-treasurer, and the fixing of their
pay by the council convention, must be understood in the context of the other facts
heretofore described. The substance is more important than the form. In substance,
a group of local unions make per capita payments, as they are required to do, to a
body known as a council. The payments constitute council funds. These funds are
turned over to the International for purposes of administration. The functions of
the council, the organizing and servicing of local unions, are also turned over to the
International for administration The selection and the supervision of the only full-
time paid employees of the council are effectively controlled and administered by the
International, principally through the division director. The council, in effect, agrees
to provide, for instance, $200 a week for a council organizer or a secretary-treasurer
and thereafter the matter is handled by the International through the division director
and through the International officers who draw and sign the International paychecks
on council funds to pay the council organizer and secretary-treasurer of the council
Confirmation of the conclusion that the International was the employer of the
council organizers is to be found in section 12(m) of the International constitution
that was in effect during the relevant period. That section provides that the Interna-
tional president-
shall employ and fix the compensation and other terms of employment of all
organizers, assistants and other personnel that he deems advisable for the pur-
pose of carrying out the duties of his office, and to effectively administer the
affairs of the International Association. Such personnel shall work under the
supervision of the International President. He shall have the authority to termi-
nate the employment of any such personnel .... [Emphasis supplied ]
It will be noted that the term "International representative" is not used in describing
whom the president can employ and for whom he may fix the compensation. Since
ii The officers of the council, constituting the executive board, except for the secretary-
treasurer, have other full-time jobs from which they derive their income.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is clear that International representatives are employed by the president and that he
fixes their compensation, it is apparent that the term "all organizers," which was used,
is a broader term and that it includes not only International representatives but others.
Both International representatives and council organizers are "organizers." In view
of other evidence previously discussed, it is clear that the relationship between the
International's division director, an agent of the International and of its president,
and the International representatives is the same as that as between the director and
council organizers. We are of the opinion, therefore, that the above section of the
constitution indicates that both "organizers," International representatives and coun-
cil organizers, are employees of the International and that the International employed
them pursuant to section 12(m) of the constitution. The council's selection of
council organizers and fixing of their compensation, in the light of the evidence, were
more formal acts than they were realities and more acts of ratification than of
initiation 31
Not only is it the International alone that exercises substantial control over the
employee status of the council organizers and council secretary-treasurer, but the
International alone initiates , interprets, administers, and controls the labor relations
policy applicable to such personnel. The International president's letter of Decem-
ber 27, 1962, above, set forth the RCIA policy regarding representatives' membership
in a union such as the AOA. This letter was addressed to "All RCIA local unions,
Council and International Representatives." In effect, the local unions were recog-
nized and addressed as entities . The local unions, then, through their own officers,
as the record shows, transmitted to and implemented to local union employees, such
as local business agents and organizers, the RCIA's aforementioned policy. Because
the International was not the employer of local union business agents and organizers,
the president's letter was not addressed directly to them but was addressed to their
employer, the local union. But the International president did not also address the
letter to the district councils as entities who would then transmit and implement the
policy to council employees, such as the council organizers.32 Instead, "Council and
International Representatives" were addressed directly in the letter and the individuals
received copies thereof. We submit that the reason for the foregoing differences is
that "Council and International Representatives" were employees of the International
and the International addressed them directly as their employer. The councils,
unlike the local unions (who were the employers of local organizers and business
agents) were not addressed because the councils were not the employers of council
and International representatives.
Additional reasons for the conclusion that both council organizers and Interna-
tional representatives are not employees of the councils but are employees of the
International and, hence, representatives of the International, is a letter written by
Respondent RCIA's counsel during the General Counsel's investigation of this case.33
The letter was in response to the General Counsel representative's request for a list
of "International Representatives" in the RCIA's Central Division, as of Decem-
ber 27, 1962. Respondent's letter, in reply, referred to and enclosed a list of "Inter-
national Representatives" as of that date. The list included, without distinction,
differentiation or separate designation, the names of both International representa-
tives and council organizers, and they were all, it is clear, the International representa-
tives (employees of the International) insofar as Respondent was concerned.
When the RCIA, on December 27, 1962, replied to the AOA demand to be recog-
nized as the representative of International representatives and council organizers,
it refused recognition on two grounds; (1) doubt that the AOA represented a majority
31 It is interesting that, in June 1963, after the instant charges were filed the above
constitutional provision was amended, to read that the president-
shall commission active members . . . for assignments as International Representa-
tives . . . . Such International Representatives shall carry out their responsibilities
and duties under the direction and supervision of the International president . . .
To be noted is the fact that, under the amendment , the president commissions and super-
vises only International representatives . Nothing is said about either commissioning
or employing "organizers," the broad term previously used. The fact rather than the
word is controlling, however, and we believe that both International representatives and
council organizers are employees of the International in essential respects and that both
are International representatives.
as The secretary-treasurers no doubt received copies of the president's letter but they
were not supervisors of council organizers as contrasted with local union officers who
were supervisors of local union organizers and business agents There is no instance of
a council secretary-treasurer dealing with council organizers about the AOA and the
president 's letter.
31 General Counsel Exhibit 63, July 12, 1963.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 221
of the above-described personnel; (2) questioned the legality or propriety of the
AOA representing the aforesaid personnel because of the RCIA membership require-
ment regarding representatives. "Other [unnamed] bona fide considerations" were
also said to be involved. I believe that it is unusual for an employer in such circum-
stances to raise questions of majority or the membership factor concerning the unit,
if the unit, as Respondent now contends in its brief, included personnel-council
organizers-who were not employees of the Employer. The questions of majority
and other questions have relevancy only if both parties are speaking about the par-
ticular employer's employees. Ordinarily, an employer in such circumstances as we
are here discussing has neither knowledge nor concern about majority or other ques-
tions that apply to some other employer's employees. The first and obvious response
to an AOA request for a unit, that the RCIA now contends included council orga-
nizers who were not International employees, would be that the International was not
the employer of the council organizers. But this response was not made and there
was at least a tacit admission that the International was responding to the AOA
request in the International's capacity as the employer of those specified in the AOA
demand. As the Employer, the International responded on the merits and without
raising its now-alleged nonemployer-status argument with respect to council orga-
nizers. The phrase, in the RCIA letter, that there were also other unspecified reasons
for not recognizing the AOA would hardly seem the way of covering such a basic
defense regarding the council organizers as Respondent raises in its brief, to wit, that
the International is not the employer of such personnel. We believe that the brief
has belatedly resorted to a legal effort to establish that the council organizers are not
employees of the International and we are of the opinion that the evidence, including
the prior positions of the Respondent, show that the council organizers were in fact
employees of the International and that the International and others involved so
considered them.
Membership-Political Considerations
We have described at some length the duties and functions of International repre-
sentatives and council organizers, and their relationship to the International and its
subordinate bodies. Before stating our ultimate conclusions, it is appropriate to
discuss in this portion of the Decision another facet of the RCIA's contention that
International representatives and council organizers must be or are excluded from the
category of "employees" under the provisions of the Act.
The RCIA asserts that the aforedescribed personnel are not only "managerial" but
that they have "membership-political rights" that exclude them from the category of
"employees." We have previously referred to the fact that customarily or generally
the personnel whom we are considering are members of the RCIA and that member-
ship is a requirement for persons attaining or holding such positions.34 The
"membership-political" aspect, therefore, now receives our attention.
As members of the RCIA, the membership being in a local union of the Interna-
tional, the representatives 35 enjoy the rights of members. They can vote; be elected
as delegates to conventions when so elected by the local membership; run for office;
and, when they are in the area and can do so, they are encouraged or expected to
attend local union meetings. As a "dramatic example of the use of political power,"
Respondent points to the effort of Rhyne, an organizer employed by Local 880, to
become a member of the local union. Rhyne came to a membership meeting of the
local with 30 to 40 members whom he knew and who knew him in the course of his
work as an organizer . These members evidently were sympathetic to Rhyne's efforts
to attain membership in the local and be brought them to the meeting to support his
efforts to attain membership.36
As I understand Repondent's argument regarding the foregoing, it is not that one
member of an organization cannot seek the assistance of fellow members in internal
affairs of the organization to which they belong. Democratic organizations envisage
membership participation and interaction in various combinations. What Respondent
appears to be saying is that if representatives have the status of employees under the
Act, then as employees of the RCIA they will be in a position to influence the cus-
as Although the record does show some minor deviation, I will consider that the custom
or the rules are as stated by the Respondent
"We use this term in referring to International representatives and council organizers.
39
Rhyne had been a manager in a store that the local union had sought to organize.
Rhyne assisted the local in its organizing efforts and lost his job with the store. He there-
after secured a job as clerk in various stores as an undercover paid organizer for the local
union It is not clear why Rhyne was not qualified for union membership or why Local 880
hired and retained him as an organizer when he was not a member. Rhyne became an AOA
member.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomers or clients ( the members ) of the RCIA with whom the representatives deal in
the course of their employment as representatives . The RCIA, of course, contem-
plates that the representatives exert influence over the members ( the customers or
clients ) in the interest of the RCIA but characterizes such activity as political if it
might happen that a representative would seek to enlist the assistance or sympathy of
fellow members ( the RCIA clients ) in the representatives ' efforts, as employees of the
RCIA, to bargain with the employer , RCIA.37 The premise is , of course , that such
bargaining is not in the best interests of the RCIA or that it is inconsistent with the
representatives ' relationship with the RCIA.
Assuming , arguendo , the above premise, it is also the premise of many company
employers that recognizing and bargaining with a union is not in the best interests of
the employer . Companies , of course , have employees . The employees in many
instances deal with clients and customers of the employer and are expected to and
do influence the customers or clients on behalf of the employer. In varying degrees,
the employees of the company by virtue of their positions may have considerable
influence over the customers or clients , including personal factors. When the employ-
ees seek to deal with their employer through a union, the employer may regard this
as inconsistent with the employees ' obligations as employees and as opposed to the
employer's interests , particularly so because the bargaining power of the employees
rests in their ability to affect the normal relationship between the employer and his
customers . The essence of a strike , the ultimate weapon , is the appeal to employer
customers by the unionized employees . The foregoing factors do not disqualify the
employees-i .e., those who are on the payroll and perform the work of the em-
ployer-from being considered employees.38
Respondent asserts that representatives as members of the RCIA "owe an exclusive
loyalty and commitment to the RCIA as an institution which is inherently inconsistent
with their belonging to and being represented by another labor organization . Presi-
dent Suffridge 's letter called this `dual -unionism.' "
Under a marginal caption or annotation of "Dual Membership ," section 7(H) of
the International constitution provides that no member "shall be permitted to retain
membership and pay dues in any local union while working under the jurisdiction of
another, and no local union shall receive dues as aforesaid ." The same provision
appears in the constitution , as amended in June 1963 , but under the marginal caption
or annotation of "Conflicting Membership." It may well be that the foregoing provi-
sions relate to membership in two local unions of the RCIA We note that another
section of the constitution ,39 dealing with "Violations of Duties and Obligations" of
officers or members, lists as proscribed conduct the encouragement "in any manner
or form, the separation of a subordinate body from the International ..." or the
encouragement of "anyone to become a member of any dual or other organization
which is antagonistic or in conflict with the objectives , activities and policies of juris-
diction of the International Association ." The use of the word "dual" and the con-
duct described in this section conform to what, in my opinion , is customarily referred
to as dual unionism . That is to say, dual unionism is membership in two rival or
antagonistic unions operating in the same industrial field and competing for the
allegiance of the same types of employees employed by employers in the same field,
e.g., the retail store field . Be that as it may, the president of the RCIA is empowered
by the organization to interpret the constitution and he has interpreted it in a par-
ticular way regarding dual unionism.
Respondent has pronounced a policy that its representatives are not allowed to be
members of a union that may seek to bargain for representatives as employees of the
RCIA. This policy, which Respondent has described in terms of membership-
political aspects of the representatives ' job, is used to support the argument that the
representatives are not employees within the meaning of the Act. The term "dual
unionism" is used and the policy pronouncement is, in effect, in syllogistic form,
to wit:
To be a representative of the RCIA you must be a member of the organization;
but a member cannot join any union other than RCIA; therefore, a member-
representative ( the only type of representative allowed ), who joins another
union, places in jeopardy his membership and, consequently , his job.
There is a legitimate standard of loyalty to an organization and the standard can
properly be applied to situations such as were found in the Boeing Airplane Company
37 The evidence is extremely limited on this point and rests on the Rhyne incident.
38 In considering this aspect of Respondent ' s argument , we cannot assume as a premise
to the argument that the representatives are not employees since we are seeking to analyze
Respondent ' s "political " argument why the representatives are not "employees
39 Section 44 ( B) (5), in the 1959 constitution and in the 1963 constitution.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 223
and Local 1229, IBEW cases 40 If RCIA representatives were openly or covertly
representatives of a rival labor organization, and organizing on its behalf, they might
quite properly come within the framework of disloyalty, dual unionism, and breach
of fiduciary responsibility. But there are no such facts in this case and the AOA is
not engaged in organizing retail clerks in competition with the RCIA
It is evident that an employer has a basic right to make his own rules regarding the
acquisition or retention of employment. But it is elementary that this right is subject
to the provisions of the Act and the employer's own rules or standards are subor-
dinated to the Act when applicable. Employer policy, even when implemented by a
solemn contractual undertaking between the employer and employees, whereby the
latter agree that they will not join a union, cannot prevail in the face of the Act.41
The RCIA as an employer has the right, like other employers, to make its own
rules regarding the acquisition and retention of employment. Also, like other
employers, the foregoing right is subject to the provisions of the Act. An employer's
rules do not prevail over the Act in the employer-employee relationship. It it was
intended, in Section 2(2) of the Act, to permit labor organizations as employers to
make their own rules regarding the employer-employee relationship, the section, we
believe, would have so stated If such a provision had been inserted in Section 2(2),
it would have been an anomaly since there would be little point in referring to a labor
organization as an employer under the regulatory statute if, at the same time, this
particular type of employer was granted a general mandate to make its own rules
regarding its employees.
In its capacity and function as a labor organization, the RCIA may make its own
membership rules.42 The proviso in the cited section appears in the 8(b) portion of
the Act dealing with labor organizations as labor organizations and not as employers.
Section 8(a), of course, deals with unfair labor practices of employers, including
labor organizations when acting as employers, and the instant proceeding is under
the 8(a) portions of the Act
RCIA's dual capacity of employer and labor organization, in an important sense,
means that the two aspects are distinct. When acting as an employer, RCIA is sub-
ject to Section 8(a) of the Act, and when acting as a labor orgnization, it is subject
to Section 8(b). As a labor organization under Section 8(b), Respondent organizes
and represents employees of other employers and as a labor organization it does not
represent its own employees for purposes of bargaining with itself as employer.43 As
an employer, however, RCIA does have employees and it is only as an employer that
it does have employees. In this employer-employee relationship, the provisions of
Section 8(a) of the Act apply and no employer's internal rules may prevail over the
rights and obligations of the Act. No employer by its own rules or requirements may
defeat the right of employees to join labor organizations of their own choosing 44
I am not persuaded that "membership-political" factors remove the representatives
from the category of "employees." In this connection, the evidence discloses that
the AOA is a labor organization and is not a competitor or rival of the RCIA in
organizing retail sales personnel of industrial firms. Employers frequently contend
that union membership is a divisive element and detracts from loyalty to the employer
but this contention is disposed of by the policy and provisions of the Act. It is the
4° Boeing Airplane Company v N L.R.B., 238 F. 2d 188 (C A 9), where a professional
engineer employed by Boeing was acting as an employment agent or recruiter of engineers
and scientists on the Boeing staff in behalf of Boeing's competitors , N.L R.B. v Local
1229, International Brotherhood of Electrical Workers (Jefferson Standard Broadcasting
Company), 346 U S 464, involving an attack on the quality of the employer's products by
certain employees.
'i The reference is, of course, to the so-called "yellow dog" contract.
42 Section 8(b) (1) (A). Even when acting as a labor organization and not as an em-
ployer, a union's internal membership rules may not prevail over the public policy expressed
in the Act. Local 138, International Union of Operating Engineers, AFL-CIO (Charles S.
Skura), 148 NLRB 679; H. B Roberts, Business Manager of Local 925 etc. (Wellman-
Lord Engineering, Inc ), 148 NLRB 674
41 If it did so, Section 8 (a) (2) of the Act would apply
44 Section 2(2) manifests that labor organizations when functioning as labor organiza-
tions , i e , organizing and representing employees of other employers, were not employers,
but that labor organizations were employers with respect to their own employees. Satis-
fied that labor organizations did function as employers under certain situations, Congress
made it clear that in their normal function as labor organizations, unions were not em-
ployers, for otherwise, the customary activity of unions regarding employees would run
afoul of Section 8(a) (2) of the Act (otherwise "the provisions of the bill which prevent
employers from participating in the organizational activities of workers would extend to
labor unions as well"). S. Rept. No 575 on S. 1958; Leg. Hist. of the NLRA, 2305
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denial of the right to organize that leads to conflict and strife and "there is no incom-
patibility between the faithful performance of duty and enjoyment of benefits under
the Act." 45
All employees, in a sense , are members of an employer's industrial family. Through
stock ownership and profit-sharing plans they also participate in ownership and an
essential aspect of ownership, a voice in internal affairs of the employer, and partici-
pation in the profits of the enterprise. But the foregoing does not disqualify an
employee from his status and rights under the Act.46
Delegates to conventions are selected by the union members and the possibility
that representatives may be among the delegates, as some have been in the past, is
not a disqualification, regardless of the fact that some of the representatives may be
members of the AOA 47 Section 101(a) (1) and 101(a) (2) of the Labor-Manage-
ment Reporting and Disclosure Act of 1959 (LMRDA) guarantee to members the
right to engage in intraunion political activity and Respondent has emphasized that
the representatives as members have full membership rights48 The possession of
such rights by representatives, in our view, does not place them in some limbo with
respect to the provisions of the NLRA. The rights guaranteed under the NLRA and
the LMRDA are not incompatible and one need not forfeit the rights under one Act
to enjoy the rights under the other Act.49
45 American Federation of Labor and Congress of Industrial Organizations, 120 NLRB
969, 970-971.
4e Brookings Plywood Corporation, 98 NLRB 794, 798; Cab Services, Inc d/b/a Red
and White Airway Cab Company, 123 NLRB 83, 85; Alderwood Products Corpoiation, 81
NLRB 136, 138; Union Furniture Company, 67 NLRB 1307, 1309-1310.
47 Textile Workers Union of America, 138 NLRB 269, footnote 2.
4s "Sec. 101(a) (1) EQUAL RIGHTS.-Every member of a labor organization shall have
equal rights and privileges within such organization to nominate candidates, to vote in
elections or referendums, . . . to attend membership meetings, and to participate in the
deliberations and voting . . . subject to reasonable rules and regulations . . . .
"(2) FREEDOM OF SPEECH AND AssEMBLY.-Every member of any labor organization
shall have the right to meet and assemble freely with other members ; and to express any
views, arguments, or opinions ; and to express at meetings . . . his views, upon candidates
in an election of the labor organization . . . subject to the organization's established and
reasonable rules pertaining to the conduct of meetings , Provided, That nothing herein
shall be construed to impair the right of a labor organization to adopt and enforce reason-
able rules as to the responsibility of every member toward the organization as an Institu-
tion and to his refraining from conduct that would interfere with its performance of its
legal and contractual obligations."
While employee rights, or any rights, are subject to reasonable rules and regulations,
It is doubtful that the reference to such rules and regulations, in the above sections of
the LMRDA, was intended to confer the power on a labor organization to enact or apply
rules and regulations that would nullify employee rights guaranteed by both the NLRA
and the LMRDA. On the theory that Section 101(a) (1) and (2) of the LMRDA was
adopted to strengthen internal union democracy, one Federal court had refused to exclude
from the coverage of the above sections officer-members, since this would deny protection
to those best equipped to keep union government vigorously and effectively democratic.
Grand Lodge of International Association of Machinists v. King, 335 F. 2d 340 (CA. 9),
cert. denied 379 U.S. 920. There Is no Hatch Act applicable to employees of labor orga-
nizations , and, unlike the Federal government, labor organizations are not excluded from
the definition of "employer" under the NLRA. Even employees subject to the Hatch Act
are not debarred from membership and participation in labor organizations for purposes
of bargaining with their employer. Moreover, the political restrictions of the Hatch Act
do not prevent political voting, expression of opinion on all political subjects and can-
didates, petitioning members of Congress, signing petitions, attending political rallies and
joining political clubs, being a member of a faction or party, and so forth.
w Most unions in their administration appear to be quite stable and well established and
the Union as an organization Is not endangered by difference of opinions at conventions
or otherwise. Respondent, In its brief, has cited and quoted from the book of Jack
Barbash, "The Practice of Unionism." Respondent has referred to this book as a "re-
spected study of unions " Although Respondent cites Barbash's statement that a union
organizer's job requires salesmanship and idealism, the General Counsel, in his brief, quotes
the same book with respect to union conventions and the Respondent's argument regarding
political roles of representatives. Barbash states: "In most instances the union conven-
tion is an expertly managed affair designed to give the delegates, and through them the
membership, a sense of the union's importance . . . the convention provides an oppor-
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 225
Conclusions
1. International representatives and council organizers are
"employees" of RCIA
I find that the RCIA is an employer within the meaning of Section 2(2) of the Act
and that its International representatives and council organizers are its employees.50
The same finding is made with respect to Locals 880 and 698 as employers of their
business agents and organizers.
The above findings are made without here repeating the evidence and the analysis
made thereof earlier in this Decision. In finding that the International representatives
and council organizers are employees under the Act, both the instant evidence and
the precedents cited above have persuaded me that the aforesaid personnel are not
managerial or supervisory employees. Nor are they confidential employees since they
do not have access to confidential information concerning RCIA's own labor rela-
tions policy with its employees.51 Respondent's internal labor relations policy is
within the ambit of the International president and the International executive board.
The membership-political contention advanced by Respondent has been considered
above in this Decision and, in our opinion, the personnel involved in the instant case
are not removed from the category of "employees" under the Act by reason of the
membership-political factor.
2. The appropriate bargaining unit
The General Counsel contends that the three separate units alleged in the com-
plaint are appropriate. Each of these units, consisting of International representa-
tives and council organizers, exclusive of supervisors, is a division unit, with one being
the Metropolitan Division; the second, the Eastern Division; and the third, the Cen-
tral Division.
The RCIA's position is that only a nationwide unit of International representatives
is appropriate. It contends that council organizers should not be combined with
International representatives because they work for different legal entities. Alterna-
tively, RCIA states, an appropriate unit might consist of International representatives,
council organizers, and local union representatives; or, International representatives,
council organizers, and local union representatives in a single division. Respondent
also claims that the simultaneous demands of the AOA upon the RCIA, with respect
to three divisions, was, in effect, a demand for a unit of three divisions and that
AOA's unit or units are based upon extent of organization.
We are not called upon to determine whether a unit or units other than that sought
by the AOA would be appropriate. No other union is seeking to represent RCIA
employees in a unit different from the AOA unit. It is possibly true that a nation-
wide unit of the employees of employers who operate nationwide is an appropriate
unit. But such a proposition is not diapositive of the issue whether the instant AOA
unit is an appropriate unit. Nor is it a determining factor that other units, different,
in internal composition, from the AOA unit, might be appropriate.
I am of the opinion that the division unit is an appropriate unit and that each of
the units sought by the AOA, aforementioned, is an appropriate unit. The evidence
reveals that the seven divisions of the RCIA are operational and administrative units
that are headed and supervised by the division director and the assistant division
director. The contacts, between the division and its personnel with the headquarters
of the RCIA in Washington, D.C., do not alter the fact that each division is a normal
operational and administrative unit with respect to affairs and personnel in the division.
The International representatives and the council organizers in each division are the
employees of the International; they perform the same type of work; they are super-
vised and directed by the division director; they both carry the same official credentials
tunity for a few men from each local to have what approximates a good time at the
Union's expense . . . . When dissension comes out at convention session, it may not be
unusual for somebody to weaken the dissenter's position by saying that the open criticism
of the Union's policies can only give 'aid and comfort' to the Employers" (pp. 60-61).
60 Office Employees International Union v. N.L R B., 353 U.S. 313, 316; Air Lines Pilots
Association, International, 97 NLRB 929 ; International Ladies' Garment Workers' Union,
131 NLRB 111; American Federation of Labor and Congress of Industrial Organizations,
120 NLRB 969; Textile Workers Union of America, 138 NLRB 269.
si Air Lines Pilots Association , International , supra, at 930-931 ; Republic Steel Corpo-
ration, 94 NLRB 1294.
796-027-66-vol. 153-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as International representatives; and their normal working areas are confined to the
division. They are not the employees of the local unions or of any other local body
within the division.
There are, of course, similarities between the business agents and organizers
employed by local unions affiliated with the RCIA and the International representa-
tives and council organizers. As a matter of fact, everyone connected with the RCIA
is engaged in a program to organize unorganized employees and to service these
employees when they become organized and members of the RCIA. The business
agents and organizers are employed, paid, and supervised by the local union for whom
they work. In the law, local unions have quite generally been recognized as legal
entities separate and distinct from the International union with which they are affili-
ated. We believe, therefore, that there is a reasonable basis for concluding that a
division unit confined to International representatives and council organizers is an
appropriate unit. In reaching this conclusion, we have not based it upon extent of
organization and the latter has not been a controlling factor.52
C. The majority of the AOA
As we have seen, the AOA, by three letters of December 19, 23, and 24, 1963,
respectively, claimed that it represented a majority of the International represent-
atives and council organizers in the Eastern, Metropolitan, and Central divisions,
respectively.
1. Metropolitan Division
The employees in the appropriate Metropolitan Division unit as of December 23,
1963, and at all relevant times thereafter, were Barry, Lloyd, McLaughlin, and
Tuohey, all International representatives. Zaretsky, an International representative,
did not come with the Metropolitan Division until sometime in January 1964. The
division had no council organizers and the division director was a supervisor under
the Act.
Lloyd signed an AOA application for membership card on December 11, 1962.
Tuohey signed his AOA card on December 22, 1962. McLaughlin signed an AOA
card on December 12, 1962. Barry did not sign an AOA card.
Respondent, in its brief, asserts that there is no proof that the above-mentioned
cards, or that the cards secured in the Eastern and Central divisions, were delivered
to the AOA prior to its demand for recognition. Respondent, although admitting
that "our research on this problem suggests that it might be novel," then advances the
proposition that failure to prove delivery of authorization cards is fatal to an 8(a) (5)
allegation.
There is no requirement in the Act regarding delivery of cards or any other delivery.
Section 9(a) provides that "Representatives designated or selected for the purposes of
collective bargaining by a majority of the employees in a unit appropriate for such
purposes, shall be the exclusive representative of all the employees in such unit for
the purposes of collective bargaining. . ." Section 8(a)(5) proscribes a refusal by
an employer "to bargain collectively with the representatives of his employees, sub-
ject to the provisions of Section 9(a)."
52 Metropolitan Life Insurance Company, 138 NLRB 512; Metropolitan Life Insurance
Company, 147 NLRB 69; Quaker City Life Insurance Company, 134 NLRB 960, The
Western and Southern Life Insurance Company, 138 NLRB 538; Metropolitan Life In-
surance Company, 138 NLRB 565; The Great Atlantic and Pacific Tea Company, 132
NLRB 799, Winn-Dixie Stores, Inc., 124 NLRB 908; Food Fair Stores, Inc., 114 NLRB
521; Sov-0n Drugs, Inc., 138 NLRB 1032, N.L.R B. v Quaker City Life Insurance Com-
pany, 319 F. 2d 690, 693-694 (CA. 4) ; Metropolitan Life Insurance Co. v. N L R.B.,
328 F. 2d 820, 826-827 (C.A. 3) ; Texas Pipeline Company v. N L R.B., 296 F. 2d 208
(C.A. 5).
Although not raised initially, the Respondent, in the course of the hearing, stated that
its seven divisions also included Canadian representatives and that the latter should be
part of the unit or units. Respondent never produced its payrolls, and aside from that,
the precise situation as to the Canadian representatives never became clear in the record.
As well as I can determine, there may be four RCIA representatives in Canada. It is
not clear under what divisions these people operate. The four aforementioned probably
are within the territory of the Eastern, Central, and one or two other divisions but this
is by no means clear. In any event, we believe that the Canadian representatives should
be excluded from the appropriate units. Detroit & Canada Tunnel Corporation, 83 NLRB
727, 731-732; Textile Workers Union of America, 138 NLRB 269
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 227
By signing AOA cards, the representatives , in our opinion , did designate and select
the AOA as their bargaining representative . The representatives ' own work and
experience in securing authorization cards from employees of industrial employers,
for the purpose of designating and selecting the union as bargaining representative,
made them particularly aware of the significance of signing an AOA card.
Perhaps if there was affirmative evidence that the card signer immediately tore up
the card after he signed it or engaged in other contemporaneous conduct as to the
card that might raise a question of whether he had in fact designated or selected the
Union, we might feel obligated to pursue the matter . But such is not the instant case.
We are also of the opinion that, in the absence of affirmative evidence to the con-
trary, there is a presumption and an inference that a card signer who voluntarily
signs a designation or authorization card intends to make a designation and to com-
municate timely that fact to the organization designated . There is in fact a presump-
tion and inference of communication and delivery . This is particularly true in the
instant case where, a week after three out of four eligible employees signed AOA
cards, the AOA made known to the employer that it represented a majority of the
employees in the unit ; requested recognition as bargaining agent; and offered to prove
its majority "by submitting our cards " to be checked and verified To say the least,
it is extremely unlikely that the AOA had not been advised that three out of four
representatives had signed cards and that the AOA did not have such cards in its
custody. Although not agreeing with the legal or procedural proposition advanced
by Respondent , I, in any event , feel fully justified and compelled to draw the inference
that the cards were delivered in timely fashion to the custody of the AOA.53
It is found that on December 23, 1962, when the AOA requested recognition from
Respondent , and on December 27, 1962, when Respondent refused recognition, the
AOA represented a majority of the employees in an appropriate unit, the Metro-
politan Division.
2. Eastern Division
The employees in the appropriate Eastern Division unit as of December 19, 1962,
and at all relevant times thereafter , were Casey ,54 Grace, Jaffe , Lagasse, Lee,
Medeiros ,5 5 Sloan , Spiess, all International representatives .56 The two council
organizers in the Eastern Division during this period were Kudla 57 and Stebbins.
The total in the unit is 10. The division director and Lowthers , assistant division
director, are supervisors within the meaning of the Act. Lowthers, as assistant
director, performs the same or substantially the same functions as the director and
the performance of such functions is not limited to periods when the director is absent.
Casey signed an AOA card on December 11, 1962. Grace signed an AOA card
on December 15, 1962.58 Jaffe signed on December 12, 1962; Lagasse signed on
December 9; Lee, on December 10; Medeiros , on December 15; Spiess , on Decem-
ber 9. The AOA thus represented 7 employees in a unit of 10.
53 Respondent , of course , said nothing about lack of delivery of cards in its response to
the AOA's letter claiming representation and requesting recognition . The record also
shows that pursuant to Respondent 's policy and position that its representatives could
not be members of the AOA, it procured various representatives who had signed AOA cards
to write the AOA demanding return of the allegedly undelivered cards
61 This individual has been referred to throughout without the "Jr." which is appar-
ently the accurate designation . It is Earl D. Casey, Jr , but, for convenience , we will
continue to refer to him as Casey.
15 Also a Junior
56 Barna apparently did not become an International representative until June 10, 1963,
and resigned November 23, 1963.
67 Also a Junior.
69 Grace testified that he signed the card with the provision that the AOA was to act
within the RCIA "family." He stated that when a copy of the AOA letter to the
president of the RCIA requesting recognition ( December 19, 1962 ) was sent to Reuther
and Meany of the AFL-CIO, he resigned The record shows that Grace 's letter of resigna-
tion was dated December 29, 1962, which was subsequent to the RCIA pronouncement
that a representative of the RCIA could not continue as such if he was a member of an-
other union such as the AOA Based upon my appraisal of the witness and the other
evidence in the case , I conclude that while Grace may have objected to or not approved
the sending of a copy of the AOA letter to AFL-CIO officials, it was the RCIA policy
pronouncement that principally motivated his resignation and, under all the circumstances,
it is proved that on December 15, 1962, and through December 27, 1962, Grace had
designated and selected the AOA as his bargaining agent and that his card is to be counted
as such.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is found that on December 19, 1962, when the AOA requested recognition from
Respondent, and on December 27, 1962, when Respondent refused recognition, the
AOA represented a majority of the employees in an appropriate unit, the Eastern
Division.
3. Central Division
The employees in the appropriate Central Division unit as of December 24, 1962,
and at all relevant times thereafter, were 59 Arnold, Benson, Callahan, Colaizzi,
Eberhart, Galbraith, Jones, Pleyte, Schreiber, Witcher, Romeo, all International repre-
sentatives.60 The council organizers in the Central Division during the same period
were Foley (District Council 14) and Stewart (District Council 1).
A report filed with the Bureau of Labor Management Reports lists only Stewart as
council organizer with District Council 1 during the relevant period. Falk, secretary-
treasurer of Council 1, testified that Wengrod became a council organizer in
Council 1 in 1963. There is no convincing contrary evidence. Wengrod, therefore,
is not found to be an employee in the Central Division unit during the relevant period.
Falk and Eiden each holds the office of secretary-treasurer in District Councils 1
and 14, respectively. Although they perform, i nter alia, the duties of council orga-
nizers and are subject to the supervision of the division director, and are not super-
visors of council organizers or international representatives, they are officers of the
district council; in fact, the only full-time paid officers. I am of the opinion that
Falk and Eiden are properly excluded from the appropriate unit in the Central
Division.61
The division director and Cadwell, assistant division director in the Central Divi-
sion, are supervisors and excluded from the unit.
Eli Mosesso has the title and is referred to as Chicago organizing director or
Chicago director of organization. His office is in the Central Division's headquarters
in Chicago. Mosesso has held his position for about the past 6 years. The October
1962 issue of the "Advocate," official publication of the RCIA, edited by the Inter-
national president, describes a meeting at which the organizing (division) directors
and "Chicago Organizing Director" Mosesso reported to the International president
and the International executive board. Callahan, an International representative in
the Central Division for 7 years, testified credibly that she filed a weekly report with
McGrath, the division director, and that she reports twice daily by telephone to
Mosesso, the Chicago organizing director. Mosesso gives her her assignments and
the twice daily reports to him are about her progress on these assignments. Mosesso
gives her instructions concerning tactics and other matters pertaining to her work.
Eberhart, another International representative in the Central Division, testified to
substantially the same effect regarding Mosesso and his relationship with Mosesso
as the Chicago area director. Having considered the foregoing and other evidence,
including that of Respondent's witnesses, it is found that Mosesso, as Chicago orga-
nizing director, is a supervisory employee and therefore outside the unit. He is, in
effect and in function, a sort of assistant division director in charge of the Chicago
metropolitan area of the Central Division.
Brzezinski was an Inteinational representative employed in the Central Division
since August 1959. In 1961 the RCIA instituted an organizing campaign of unusual
magnitude in Milwaukee. The campaign was designated "Saturation City," since it
involved a saturation-type approach. All the usual media of propagandizing were
used, plus an intensive use of such media as radio, television, billboards, and other
advertising. The objective was to organize the Gimbel-Schuster Department Store
in Milwaukee as well as practically every other retail store in the area. Carter, an
assistant International director of organization from the Washington, D C., office,
was in charge of the campaign, with the designation of coordinator, and he took
steps to initiate and implement the aforementioned campaign and the various media
59 Although the General Counsel subpenaed Respondent ' s payroll records and repeatedly
requested their production during the course of the hearing , such records were never pro-
duced. Through the testimony of witnesses and various other documents the constituencies
of the three divisions have been reconstructed but the Central Division presented more
problems in this area than was the case in the other divisions.
65 On July 12 , 1963, in response to a request for a list of International representatives
in the Central Division as of December 27, 1962, Respondent , inter alma , listed Romeo. At
the hearing, the latter testified that he had been an International representative in the
Central Division from about June 1962 and held that position in December 1962 and until
March or April 1963 when he became a council organizer for District Council 14 in the
Central Division.
° Eiden had signed a timely AOA card on December 21, 1962. Falk did not sign a card
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 229
used therein. There were approximately 12 to 14 International representatives,
including Brzezinski, and some local representatives of the RCIA Milwaukee local
union engaged in the campaign under Carter.
Carter left the Milwaukee campaign project in January 1962 and Brzezinski was
made coordinator of the campaign. The latter continued in this capacity until the
spring of 1963. During this period when Brzezinski was serving as coordinator, the
number of International representatives still assigned to the project was considerably
less than had been the case during the earlier phase under Carter.
The position or title of coordinator is not uncommon in the RCIA. Thus, if one
representative has established contact among employees of a particular store, and
it is decided by the director that one or two additional representatives should be
assigned to organizing the store, the first man will generally be designated as coordi-
nator of the campaign. This is principally due to the fact that he has been in "on
the ground floor," so to speak, and is most familiar with the situation. The capability
or potential capability of some particular representative may also be the factor that
determines that he, rather than some other representative, be designated coordinator
of the project.
The title or designation of coordinator pretty well defines the functions of a
coordinator. He coordinates the campaign and the activities of the representatives
involved, including himself. Generally, the coordinator and the other representatives
discuss among themselves who will make which house calls, which area each will
cover, and so forth. The coordinator is in charge mainly in the sense that he is
the group leader. It is in this sense that he may make assignments and give instruc-
tions to his fellow workers and he is a participant himself in the actual organizing
legwork of the campaign.
With a few exceptions-e.g., one man was made New England coordinator as a
regular assignment-the designation as coordinator is an ad hoc assignment and a
representative who is coordinator on one campaign may be without designation on
the next campaign and may work with or under a coordinator who was part of the
team when the other representative was coordinator.
Prior to the Milwaukee campaign, Brzezinski had not been a coordinator and fol-
lowing that campaign he worked on another organizing project where another Inter-
national representative was the coordinator. Brzezinski received no increase in
salary when he acted as coordinator of the Milwaukee campaign or, as far as appears,
thereafter.
While the Milwaukee project was an important one and while Brzezinski suc-
ceeded a highly placed RCIA official as coordinator, he was not, in my opinion, a
supervisory employee. He did make assignments, give instructions, and so forth, to
the people working on the campaign and he was in charge of the day-to-day orga-
nizing that was in a basically routine pattern. His "authority" and function, as I see
it, was that of a group leader rather than that of a supervisor. Contrary to the Gen-
eral Counsel's contention, it is found that Brzezinski is included in the Central Divi-
sion unit.
Copeland, in 1962, was employed in the Gimbel-Schuster Department Store in
Milwaukee. This store was one of the Milwaukee campaign targets. Brzezinski had
suggested to Copeland that he come to work for the International. After Brzezinski
discussed the matter with Copeland, the latter was interviewed by the division
director and was hired. The director said that Copeland was being hired as an
International representative. Copeland then received a letter from the International
office in Washington, D.C., stating that he was employed as an International repre-
sentative and enclosing International credentials. About 5 days later, Brzezinski
informed Copeland that there was some change in procedure and he secured the
aforementioned documents from Copeland, saying that he would send them back
to Washington. Thereafter Copeland received a letter from the division director
stating that Copeland would receive another letter from the International president
that would cancel the prior arrangement. The director stated that until the new
letter from the president was received, Copeland should contact Secretary-Treasurer
Stadelmann of Local 444 (the Milwaukee local union of the RCIA). Copeland
never received a second letter from the International as predicted by the director
and there is no contention that such a letter was sent.
When Copeland showed Brzezinski the aforementioned letter from the director,
he was told not to pay any attention to it but to report to and work with Brzezinski
on the Milwaukee "Saturation City" campaign. From July 1962 to April 1963
Copeland reported to Brzezinski and received all his assignments from him. Copeland
had no contact with Stadelmann or any other officer of the local union until he
was terminated. During his employment Copeland received all his instructions and
directions from Brzezinski, coordinator for the International of the Milwaukee cam-
paign. Copeland, throughout his employment, filed weekly reports with the division
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
director of the International, as did all other International representatives. He filed
no reports with the local union. The only connection between Copeland and the
local union throughout his employment was that his paychecks were drawn on the
local union .62 In view of all the foregoing, including the consistent control exercised
by the International over Copeland throughout his employment, it is found that he
is properly included in the Central Division unit as an International representative.
Eddy, like Copeland, above, had been an employee in the Gimbel-Schuster Mil-
waukee store. Copeland had recommended to Brzezinski that Eddy be hired by the
Union. Following interviews by Brzezinski and then by the division director, Eddy
was employed on December 16, 1962. Thereafter, Eddy worked on the Milwaukee
"Saturation City" campaign. He received all his work assignments and instructions
from the coordinator, Brzezinski. Eddy filed weekly reports with the division director,
as did International representatives. During this period, December 16, 1962, to
March 4, 1963, Eddy received his salary in checks drawn by Local 444, Milwaukee,
and signed by Stadelmann, secretary-treasurer of the local union. Other than the
check aspect, Eddy had no dealings with Stadelmann or other local union officers.
However, this situation changed on March 4, 1963, when Stadelmann informed Eddy
that, from that point on, Eddy would report directly to Stadelmann for assignments.
Eddy followed this instruction and thereafter received his assignments from, and
reported to, Stadelmann.
I conclude that until March 4, 1963, Eddy was working as an International repre-
sentative under the control of International personnel, namely, the division director
and the coordinator, Brzezinski. As such a representative, during the relevant period,
it is found that Eddy is properly included in the Central Division unit.
Haines was a business agent of Local 444 in Milwaukee. When the International
commenced the "Saturation City" campaign, Stadelmann, the chief executive officer
of Local 444, advised Haines that he was being assigned to the aforementioned cam-
paign. In 1962, until February 1963, therefore, Haines worked in the "Saturation
City" campaign. During that period he received his assignments from Brzezinski.
Thereafter, Haines resumed his duties as business agent for Local 444 under Stadel-
mann. Subsequently, he was discharged by Stadelmann.
I find that Haines was an employee, a business agent, of Local 444 who had been
loaned temporarily to the "Saturation City" campaign. During that campaign he
worked under the control of the International and then reverted to the Local. In
view of Haines ' clear status as a Local 444 employee, it is found that his temporary
assignment to the Milwaukee campaign should not place him in the Central Division
unit. He is , therefore, excluded from the unit
The total of the eligible employees in the Central Division unit in the relevant
period is 16.63 The following signed timely AOA cards: Arnold, Callahan, Benson,
Eberhart, Jones, Pleyte, Romeo, Copeland, Eddy.64 The AOA therefore represented
a majority in the appropriate Central Division unit as of December 24, 1962, and
through December 27, 1962.
D. The Section 8(a)(1) evidence
In its brief, the RCIA has rather aptly stated that practically all the alleged 8(a) (1)
violations are " `variations on a theme by Suffridge.' " The reference was of course
to the RCIA president's letter of December 27, 1962, set forth earlier in this Decision.
The official RCIA policy, as described in the letter, was further projected, articulated,
and emphasized by various officials of the RCIA and local unions in their dealings
with RCIA representatives, including representatives who were employees of RCIA
local unions.
62 This fact was apparently attributable to the circumstances that in the Milwaukee cam-
paign some representatives were hired pursuant to a so-called back-to-back program. This
meant that with respect to Copeland, the International was paying half his salary and
the local union was paying half, although the employee received only one paycheck
63 Arnold, Benson, Callahan, Colaizzi, Eberhart, Galbraith, Jones, Pleyte, Schreiber,
Witcher, Romeo, Foley, Stewart, Brzezinskl, Copeland, and Eddy.
64 Foley was in the hospital at the time of hearing. The General Counsel had an AOA
card, purportedly signed by Foley, marked for identification. When the card was offered,
I rejected the card as not properly identified by a witness. The General Counsel in-
troduced a Federal income tax withholding certificate bearing Foley's signature but I
still declined to receive the Foley AOA card. In retrospect, and looking at the signature
on the tax certificate, General Counsel's Exhibit No. 55A, and the signature on the au-
thorization card, General Counsel's Exhibit No. 55B, for identification, there is no question
in my mind but that the signatures are the same
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 231
We have, at an earlier point, considered the policy of the December 27 letter.
Although resorting to a strained construction of dual unionism and institutional
loyalty, the policy comes down to a proposition that a representative must be a
member of RCIA and a member, even though he may be an employee, cannot be a
member of any union except RCIA, and, therefore, any representative who joins the
AOA or similar organization, places his job as representative in total jeopardy. The
formula is a simple one and by adopting it and enacting rules that all its employees
must be members and that no member may join another union, every labor organiza-
tion could remove all its employees from the protection of the Act and remove itself
as an employer subject to the Act. For the reasons set forth previously, it is our
opinion that the RCIA policy as propounded on December 27, 1962, and thereafter,
constituted a violation of Section 8 (a) (1) of the Act.
The individual instances in the record of 8(a)(1) conduct as observed above,
involved the personalized application of the aforementioned RCIA policy. There
is so much testimony by various witnesses on both sides that no useful purpose is
served by describing all such instances since in substantial respects the incidents and
the conclusions based thereon are cumulative.
In December 1962, when the AOA was signing up RCIA representatives or had
signed up various representatives, the International became generally aware of the
situation. Shortly prior to President Suffridge's letter of December 27, various divi-
sion directors were aware that the International considered membership in the AOA
as dual unionism and that an official policy pronouncement thereon was forthcom-
ing 65 The president's letter, thereafter, was sent to the local unions and to the
individual International representatives and council organizers, as well as to the
division dii ectors.
Lloyd, an International representative in the Metropolitan Division, testified cred-
ibly that in the latter part of December 1962, McDavid, at that time the Metro-
politan Division director and a vice president of the RCIA, called him to his office.
Toward the end of a conversation on business matters, McDavid asked Lloyd if he
had anything to do with the men in Rhode Island who were starting the AOA.
Lloyd acknowledged that he had signed a card. McDavid said that this was dual
unionism and was looked upon with disfavor.66 McDavid said that Lloyd could
resign from the AOA if he wished. A day or so later, Lloyd wrote a letter of
resignation to the AOA.
A few weeks later, McDavid again spoke to Lloyd in McDavid's office. He gave
Lloyd a typewritten paper containing resignation language, telling him to use it if
he wished. Therefore, Lloyd again wrote to the AOA requesting the return of his
card Pursuant to McDavid's suggestion, Lloyd sent copies of his letter to McDavid
and the Board's Regional Office.
Barry, another International representative in the Metropolitan Division, was sub-
jected to similar interrogation by McDavid when alone in the latter's office. Although
Barry had not signed an AOA card and so advised McDavid, the latter laughed at
this statement. He asked Barry for the names of the representatives in the division
who had signed and Barry told him. McDavid referred to the president's letter and
remarked, in the context aforementioned, that, as the letter explained, there could
be no such thing as dual unionism and that it was contrary to the constitution.
Although Barry had not signed an AOA card, McDavid still suggested that he write
to the AOA disavowing any authorization. He gave Barry some suggested language
for the letter as well as the AOA address and suggested that a copy be sent to
Attorney Arlook of the Board's Regional Office. Barry complied with these
suggestions.
International Representative McLaughlin, also in the Metropolitan Division, who
had signed an AOA card, was interrogated by McDavid thereafter, on several occa-
sions, in this December-January period. The letter asked about Metropolitan Divi-
sion men signing up in the AOA: admonished McLaughlin that dual unionism was
contrary to the constitution; suggested that McLaughlin resign from the AOA; and
furnished sample resignation language. McDavid reiterated to McLaughlin the
contents of the president's letter of December 27, 1962.
65 For instance, a conversation between McDavid, division director of Eastern Division,
with Osterling, International director of organization, and with Plopper, vice president and
executive assistant to President Suffridge. McGrath, another director, had a similar con-
versation with Osterling.
08 The representatives were, of course, fully aware that the designation or stigma of
dual unionism was a serious matter. If there was any doubt on the score, the president's
letter made the offense crystal clear, including its consequences.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spiess, an International representative in the Eastern Division, signed an AOA
card on December 9, 1962. Shortly before Christmas 1962, McGrath, at the time
division director of the Eastern Division, telephoned Spiess at his home. McGrath
said that he had heard about the AOA movement and asked Spiess if he had signed
up. Spiess said he preferred not to go into the matter. McGrath said that since
Spiess did not deny signing, he was assuming that Spiess had signed. McGrath asked
if Spiess had read the constitution about dual unionism and the conditions for par-
ticipation in the RCIA retirement (pension) plan.67 He admonished Spiess to make
sure that he knew the consequences of his action. Sometime later, Spiess received
a copy of the president's December 27 letter. In January, Spiess wrote a letter of
withdrawal from the AOA and sent it to McGrath. The latter said that he was not
the one to whom it should he sent and he explained that the other men had sent
their resignation letters to Ryan (secretary-treasurer of the AOA). There is con-
siderably more credible testimony by Spiess regarding various incidents in which
pressure was exerted to have him resign from the AOA. The circumstances of these
various incidents, in the context of other evidence, points rather clearly to an
organized campaign by Respondent against the AOA. However, it appears unneces-
sarily cumulative to detail these various events.
Before Christmas 1962 McGrath spoke to Lee, another International representative
in the Eastern Division. McGrath said that he understood that an organization
known as the AOA was soliciting membership. Among other things, the director said
that he understood that Lee had signed a card. Lee acknowledged the fact. McGrath
asked Lee if he had read the constitution and if he was aware that signing up in the
AOA was in violation of the constitution because it was dual unionism. Lee also
refers to other incidents and his testimony is corroborative of much of Spiess' testi-
mony in the areas which were not detailed above. This is also true with respect to
the testimony of Lagasse, an International representative in the Eastern Division.
International Representatives Jaffe and Lagasse, aforementioned, of the Eastern
Division, were interrogated separately by McGrath on the AOA subject and were
reminded that joining the AOA was dual unionism and in violation of the constitution.
McGrath admitted that he had spoken to all the representatives of the division on
this subject.
Arnold, an International representative in the Central Division, received a tele-
phone call at his home on January 2, 1963, from Cadwell, assistant division director
of the Central Division. After discussing various organizing matters, Cadwell referred
to an unsuccessful attempt that had been made in 1961 to organize the representatives.
Arnold had been active in that matter and Cadwell was aware of the fact. On
January 2 Cadwell said to Arnold that there was now another attempt similar to the
former. Arnold replied that he assumed as much in view of President Suffridge's
letter. Cadwell said that the current group attempting to organize might have the
backing of Reuther of the UAW or of the group within the AFL-CIO that was
backing Reuther and wanted to make Suffridge look bad. Cadwell said some of the
men who had signed cards in the AOA had withdrawn them so as not to throw a
bad light on the International He also stated that Vice President Plopper, Inter-
national Director of Organization Osterling, and Central Division Director Morris
were aware that Arnold had been one of the leaders in the prior attempt to organize
the representatives.
On January 8 or 9, 1963, Director Morris held a meeting or gathering. Present,
in addition to Morris, were Cole, assistant International director of organization from
the Washington, D.C., office, International Representatives Arnold and Jones of the
Central Division, and a few local union representatives. Cole asked Arnold what
he thought of President Suffridge's letter. Arnold replied that he saw no conflict
between the AOA and the constitution. During the same session, Morris asked Jones
if he had received the president's letter and Jones said he had. Morris asked Jones
if the AOA had contacted him and received a negative answer. Morris advised Jones
to call him promptly if Jones was contacted by the AOA.68 Between January 9 and
15 there were several conversations between Cole and Jones. On one occasion, Cole
asked Jones if he knew Ryan (of the AOA). At another time, Cole asked Jones if
he had signed an AOA card and Jones said "no." Later, Cole asked Jones if he was
sure that he had not signed an AOA card. Cole told Jones to punch Ryan in the
67 With respect to the pension plan, the constitution provides that, as to participating
employees, they shall be "disqualified" If they engage "in activities considered by the
International Executive Board to be dual or competitive or antagonistic in nature to the
activities or jurisdiction of the International . .. Section 47, (j)4.
08 Jones was a recent hire as an International representative, having been employed in
November 1962.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 233
nose if the latter even contacted him. During a discussion about President Suffiridge's
letter, Cole stated that the letter "meant just what it said, that we could be fired for
joining another union."
About the latter part of December 1962, Morris telephoned Benson, an Interna-
tional representative in the Central Division, at the latter's home. Morris asked
Benson if he had heard of the AOA or if he had been contacted by that organization.
Benson said that he had signed an AOA card. Morris expressed some critical com-
ments about the AOA and advised Benson that, while Benson could do as he wished,
"I [Morris] don't believe I would have signed a card, and, if I had, I would ask for
it back." On the following day, Benson wrote to the AOA requesting return of
his card.
Stadelmann was secretary-treasurer and chief executive officer and head of RCIA
Local 444 in Milwaukee. Beginning shortly before Christmas 1962, and into January
1963, Stadelmann conducted a series of meetings with the business agents and orga-
nizers who were employed by Local 444. Initially, Stadelmann stated that he was
aware of the AOA activity among those present but that the business agents and orga-
nizers were free to ado as they wished. At a subsequent meeting Stadelmann said that
the AOA matter was under a cloud since it appeared to be dual unionism but that a
clear policy or a determination had not yet been reached. At another meeting,
Stadelmann read President Suffridge's letter to those assembled and announced that
this confirmed the fact that the AOA activity was dual unionism and against the
constitution. According to Stadelman, some of the men thereafter asked him how
they could get out of the AOA. This may be the fact but other evidence, which is
credited, also shows that Stadelmann said that he was placed in a bad light with the
International because of the AOA activity among the local union's agents, and he
told the men, on several occasions, that they should send in resignation letters to
the AOA.69
Housewright, International vice president and Southeastern Division director at
the time, held a meeting of the "lead" representatives of the division in February
1963. He referred to the president's letter and remarked about dual unionism and
the requirement that a representative must be a member of the RCIA and AOA
membership was incompatible with the constitution. He also told the representatives
that they should make certain that everyone had the president's letter so that the
policy would be clearly understood. Housewright admittedly instructed one repre-
sentative to forward to him any information received about or from the AOA.
Local 880 in Cleveland, Ohio, is within the Southeastern Division territory. Dun-
lap is president of Local 880 and McDonald is secretary-treasurer. They are full-time
paid officers and, in effect, run the local union. Dunlap is the headman but McDon-
ald is a close participant in the day-to-day affairs of the Union. The AOA engaged
in organizational activity among Local 880 business agents and organizers and filed
a representation petition with the Board in January 1963. Although neither Dunlap
nor McDonald appears to have been personally opposed to a union among the staff
representatives, the RCIA president's letter of December 27, 1962, was accepted as
establishing binding policy. Dunlap, for instance, testified that as chief executive
officer of Local 880 he did not have authority to recognize a union of the representa-
tives and that such authority would have to come from the International.
There is considerable conflicting testimony between Dunlap and McDonald, on
the one hand, and Rheuban and Rhyne, local union representatives, on the other.
I find that at a staff meeting around January or February 1963, McDonald read
President Suffridge's letter. Dunlap then discussed a possible contract with a union
representing agents and organizers. He dwelt particularly on the fact or the asser-
tion that such a contract would have, as far as he was concerned, standards of job
performance and enumerated reasons or standards for discharging representatives.
With such provisions for discharge, Dunlap said that he might be better off since it
would be easier to discharge personnel than under the existing no-contract setup.
ee In his testimony Stadelmann mentioned that he had pointed out , on one occasion, to
the business agents and organizers that the AOA activity would be harmful to the RCIA
in its organizing campaigns . Elsewhere in the record this same statement had been made
to other RCIA employees by those opposed to the AOA. On these other occasions the
record showed no explication of the aforementioned argument or theory. Stadelmann,
however, explained , as he testified , not only the argument but the reasoning thereof.
"Here are people that are asking other people to join their organization and they deny
an organization or are not happy about their own people joining a labor organization."
He said that it was hard to get across the idea that the explanation was that the RCIA
employees were "officers " and not rank and file.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I regard the foregoing as, in effect, a statement that employment conditions would
be more onerous and more detrimental to the employees if they were represented by
a union under a contract than would be the case without a union. It is also found
that on this or on another occasion during this period, Dunlap stated that the Inter-
national would not agree that the representatives had a right to union representation.
I credit the testimony of Rhyne, then an organizer for Local 880, that in January
1963 he informed McDonald that he had joined the AOA. McDonald told Rhyne
that it would hurt Rhyne and would not do him any good. On another occasion
during this period, McDonald told Rhyne that the AOA did not have a majority and
even if there was an election; the AOA could not win because McDonald would have
18 people out to vote as agents and organizers, including everyone from the local's
education director down to the janitor (who would all be called agents and organizers
for voting purposes).
The RCIA policy of total opposition to the AOA and to the efforts of representa-
tives to avail themselves of their rights under the Act, as expressed in the president's
letter of December 27, 1962, was "consistently maintained" at all times thereafter.70
The acts and conduct of subordinate officials simply implemented and carried out a
policy that was binding upon them and it is apparent that they were expected to so
implement the policy.
It is found that the Inteinational by the aforedescribed policy and its implementa-
tion and maintenance violated Section 8(a)(1) of the Act. Local 880 was also
named as a respondent. Its conduct, described above, is found to be violative of
Section 8(a)(1) of the Act: No independent 8(a)(1) conduct is found with respect
to Local 698.71
E. The refusal to bargain
In its reply to the AOA letters requesting recognition, the Respondent expressed
doubt as to the AOA's majority; it questioned the "legality" or "propriety" of member-
representatives being represented by a union; and stated that there were other
unnamed considerations; all of the foregoing being why Respondent stated that it
refused recognition.
Respondent's conduct, heretofore found to be in violation of the Act, negates, in
my opinion, its good-faith defense. One of the "essential prerequisites" for a good-
faith doubt defense is "that it must not have been raised in a context of illegal anti-
union activity" designed to undermine the Union.72
Aside from the foregoing consideration, I am of the opinion that an employer's
asserted good-faith belief that its personnel are not "employees" within the meaning
of the Act, or other positions of a similar nature adopted by the Employer, are taken
at its peril. There are, for instance, many cases where employers have refused to
bargain because of their good-faith belief that certain of their employees were inde-
pendent contractors and not "employees." Such a position is obviously one that is
taken at the risk of the employer and it is no defense that he has not refused to bar-
gain if, in fact, and in law, the employees are found to be "employees" and not inde-
pendent contractors. Presumably some employers in the past have refused to bargain
about pensions and other matters because in good faith they did not believe that
pensions were "wages" or a bargaining subject. The good faith is no defense. As
the Court of Appeals for the Third Circuit observed: 73
It is argued that the representatives of the Company acted in good faith in the
honest belief that they had a right to adopt the job assurance plan .... We are
of the view that good faith, based upon an erroneous interpretation of the law, is
not available as a defense [citing cases]. An employer who pursues a course of
conduct later determined to be an unfair labor practice does so at his peril.
70 The International executive board, in February 1963, voted that "the position of the
Retail Clerks International Association be consistently maintained as outlined in the
December 27, 1962, letter . . . .
7i There is evidence of a Rhyne-Hennigin conversation about the AOA but, under the
circumstances described, the incident, in our opinion, was not violative of Section 8(a) (1)
of the Act.
72 N L R.B v. Henry Heide, Inc., 219 F. 2d 46, 48-50 (CA 2 ) , cert. denied, 349 U S
952; N.LR.B. v. Irving Taitel, d/b/a. I. Taitel and Son, 261 F 2d 1, 4-5 (CA. 7), cert.
denied, 359 U S 944; Whitelight Products, etc v. N L R B , 298 F. 2d 12 (C A 1), cert.
denied, 369 U S. 887; N.L R.B. v Dahlstrom Metallic Door Company, 112 F 2d 756, 757
(C A. 2) ; NLRB. v. Southeastern Rubber Mfg. Co, 213 F. 2d 11, 15-16 (C A. 5).
73IUE, Local 613 (Erie Technological Lab) v. N.L.R B., 328 F. 2d 723.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 235
Respondent has particularly urged in its brief that it had a good-faith doubt con-
cerning the AOA's majority as well as about the appropriateness of the unit.74 In
addition to what has been said above, it is pertinent to note that Section 8(a) (5) of
the Act says nothing about good faith. But the Board and the courts have recognized
good-faith doubt as to majority to be a defense to a refusal-to-bargain charge. I
believe that this is so because a question of majority is a question of fact. In the
typical uncomplicated case, a union organizes the employees of an employer. The
latter may in good faith doubt the claim of majority support. If there are no contrary
factors in the case, an election is the best method of determining majority. Moreover,
if the employer was held to have doubted majority at his peril, the fact that the union
might have won a subsequent election would not necessarily establish that the union
had had a majority on the occasion, prior to the election, when the employer refused
to bargain. Be that as it may, doubt as to appropriateness of unit is another matter.75
The determination of unit is ultimately a matter for the Board and appropriate unit
is a conclusion of law or a conclusion of fact and law 76 Both the employer and the
union act at their peril in the matter of unit. If a union demands bargaining and then
strikes and files charges upon the employer's refusal to bargain, the union's entire
position crumbles if the unit is ultimately found to be inappropriate. Not only has
there been no refusal to bargain under the Act but the strike is not an unfair labor
practice strike and the jobs of the strikers may be lost as a consequence. It is believed
that the employer assumes the same risk when he refuses to bargain on the ground
that the unit is not appropriate, if, in fact and in law, the unit is determined to be
appropriate. This is particularly true where the employer has not filed an RM peti-
tion to resolve the unit and other questions.77
It is found that Respondent has refused to bargain in each of the appropriate units
in which the AOA represented a majority, as heretofore determined, and that by such
refusals Respondent has violated Section 8(a) (1) and (5) of the Act.
F. The discharge of George Rhyne
Earlier in this Decision, I have had occasion to refer to Rhyne in other connections.
Rhyne had lost his job as a manager in a retail store apparently because of or related
to an organizing attempt by Local 880 among the store employees. The Local
Union's secretary-treasurer, McDonald, hired Rhyne as an organizer for the Local
Union around August 1961. Thereafter Rhyne worked in that capacity in the Cleve-
land area In the course of his work, Rhyne secured employment in various stores,
where he also acted as an undercover organizer for the Union. For various periods,
while on Local 880's payroll, Rhyne was loaned to Local 698 in Akron, where he
worked as an organizer over a period of weeks and months for Local 698.
Although Rhyne testified that he had made efforts to become a member of Local
880, he was never successful in this endeavor. It is not clear why this was so, particu-
larly in view of union policy that organizers and other representatives were required
to be members of the Union. A day or two before Christmas 1962, Rhyne signed an
AOA card at the home of Rheuban, a Local 880 business agent. That day and the
next, Rheuban, who had also signed an AOA card, and Rhyne, accompanied Ryan,
secretary-treasurer of the AOA, in visits to the homes of other Local 880 agents and
organizers in an effort to secure adherents.
Rhyne had been working in the Akron area before Christmas, on the Clarkins
campaign, for Local 698. Right after the Christmas holidays, Rhyne was again
assigned to the Clarkins project where picketing was being conducted. One day,
apparently the latter part of December 1962, Ryan, of the AOA, came to the area of
74 Realistically, Respondent's prompt and widespread campaign of interrogation and
coercion hardly bespeaks a genuine doubt that the AOA represented a majority It rather
indicates that the AOA and its claim was taken very seriously and that Respondent de-
termined that drastic measures were immediately necessary. Moreover, to take one
example of another approach to the asserted doubt-as-to-majority, the Respondent knew
positively through individual interrogation that the AOA represented three out of four
in the Metropolitan Division and apparently Respondent was skeptical of the fourth man's
denial that he had not signed an AOA card
75 The appropriateness of the unit was not raised unless the catchall phrase, "other
bona fide considerations," in Osterling's letter of December 27, 1962, is deemed sufficient to
cover all contentions that Respondent raised subsequently at the hearing and in its brief.
"See Section 9(b) of the Act. Cf. Sections 9(a) and 8(a) (5).
77 Cf. Tom Thumb Stores, Inc, 123 NLRB 833, 834-835, and the statement in Safeway
Stores, Inc., 110 NLRB 1718, and in Chalet, Inc., 107 NLRB 109, that the Board over-
ruled in Tom Thumb. Similar language is found in United Butchers Abattoir, Inc., 123
NLRB 946, 957.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Clarkins picketing. The evidence indicates that this was pursuant to prearrange-
ment with Rhyne. I gather that Ryan talked to the agents aforementioned about the
AOA and these conversations evidently took place somewhat away from the picket
line area. Rhyne testified that Hennigin, organizing director for Local 698, and a
supervisor, came up to Rhyne and that some of the pickets and Marcaletti, a Local
698 organizer, were with Hennigin in the latter's car. Hennigin then came over and
spoke to Rhyne alone. According to Rhyne, Hennigin asked him why he had sent
Ryan down to talk to his men and later, in the same conversation, asked Rhyne if he
had signed an AOA card. Rhyne said he had signed a card and then Hennigin stated
that it would not work for the RCIA people to belong to another union.
Marcaletti had been called as a witness by the General Counsel and he testified
before either Rhyne or Hennigin had been called by the General Counsel and
Respondent, respectively. Marcaletti states that he and Hennigin were on the
Clarkins campaign and were at the picket line in the latter part of December 1962.
A short time before, evidently a matter of days, Marcaletti had received a telephone
call from Rhyne to the effect that a majority of the Cleveland men had signed up
and that an AOA organizer was coming to see the Local 698 men. Thereafter, as
aforementioned, when Marcaletti and Hennigin were at the Clarkins picket line,
Ryan came up to them, explained about the AOA, gave AOA cards to both Marcaletti
and Hennigin, and asked Hennigin for a list of Local 698 representatives. According
to Marcaletti, Hennigin gave Ryan such a list.
I credit Marcaletti's testimony. In considering the testimony of Rhyne, Marcaletti,
and Hennigin, it is my belief that Hennigin probably did speak to Rhyne alone after
Hennigin's conversation with Ryan. Apparently some of the pickets had complained
about the absence of the Local 698 representatives from the picket line activities.
The absences evidently were due to the conversations that Ryan was having with
the representatives about the AOA. In context, it is not found that Hennigin's con-
versation with Rhyne was illegal. The inquiry about signing an AOA card came up
in the course of a conversation about the merits of the AOA. Hennigin, inter alia,
was being solicited to sign an AOA card. Hennigin's opinion about the RCIA and
the AOA, in context, does not impress me as illegal interrogation or as a threat.
Sometime in the first 2 weeks of January 1963, Rhyne went to McDonald's office
in Cleveland and informed him that he had signed an AOA card. Rhyne explained
that the move was not directed against Dunlap and McDonald personally. The
testimony of Rhyne and McDonald from this point on differs. I believe that
McDonald said in substance that joining the AOA would not help Rhyne but would
hurt him but said that if Rhyne did his work and if Local 880 had work for Rhyne,
it would be given to him and if not there would be no work for him.
At a membership meeting of Local 880, in the early part of February 1963, Rhyne
came to the meeting with 30 to 40 members from stores where he had worked as an
organizer. Rhyne spoke from the floor demanding to know why he was not a member
of the Local. Dunlap, who was presiding, told Rhyne that the meeting was not the
proper place to discuss the matter but that Rhyne should speak to Dunlap and
McDonald the next day.
The conversation that took place the next day is a subject of considerable conflict-
ing testimony between Rhyne, Dunlap, and McDonald. I am not satisfied with the
completeness or the accuracy of any one of the three versions. In my opinion, what
occurred is substantially as follows: Rhyne was asked what he intended by his per-
formance on the previous night and there was a discussion about the matter and how
convincing or unconvincing it was for an organizer to bring a large group of members
to a meeting. Strangely enough, the precise issue of Rhyne becoming a member was
not brought up, as such, by any of the three men aforementioned and nothing was
apparently said as to whether Rhyne would or would not secure membership or the
reasons therefor. The conversation was long, having started in the Local 880 office
and continuing through lunch at a restaurant. The AOA was discussed and it was
said to Rhyne that the matter being handled by the AOA should have been handled
within the AFL-CIO setup. It was said to Rhyne that Rheuban and others were
issuing misinformation and that he should stay away from Rheuban. I have a sub-
stantial doubt that Rhyne was told that Rheuban was going to be discharged as soon
as "they got" something on him. It was said that even if the AOA secured an election,
it would not win because everyone from the educational director to the janitor would
be called an organizer and would vote in the election.
In the same conversation Rhyne asked about a rumor that he was to be transferred
permanently to Local 698 in Akron. He was told in substance that he was being
terminated shortly by Local 880; that he had been hired on a temporary basis and
Local 880 had no work for him. Rhyne was informed that Dunlap and McDonald
would try to keep him on with Local 880 as a business agent if possible, since they
had no work for him as an organizer, or that they would try to secure a job for him
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 237
with Local 698. It is a fact that throughout this entire conversation Rhyne was not
antagonistic on the AOA subject, nor did, he express opposition to what was said to
him and indicated a desire to stay with Local 880.
I am doubtful about Rhyne's version that everything said to him about possibly
retaining him in Local 880 was made contingent upon his being "a good boy and
keeping his nose clean." In my opinion, Rhyne's job status had never been particu-
larly secure. When he was hired, it was in an indefinite or temporary capacity. He
was paid less than other organizers. For some reason, even well before the AOA
appeared, Rhyne had never secured membership in Local 880. While on the Local
880 payroll, particularly in the period prior to this February 1963 conversation,
Rhyne had worked for months in the Akron area, assisting Local 698 It appears
unlikely that if Local 880 had sufficient organizing work of its own the foregoing
would have been the situation. There is no evidence that any other Local 880 orga-
nizer was similarly farmed out?8
Rhyne was terminated by Local 880 in March 1963, and was then placed on the
Local 698 payroll as an organizer. This transfer was arranged by Local 880, Dunlap,
with Radabaugh, secretary-treasurer of Local 698. Dunlap and McDonald, as we
have seen, were aware of Rhyne's AOA connection and it also appears that Radabaugh
was aware of AOA activity and quite probably of Rhyne's connection therewith since
Hennigin had reported to him in December about the previously described Clarkms
picket line incident involving the AOA solicitation of Local 698 representative.
Radabaugh, chief executive officer of Local 698, impressed me as a reliable wit-
ness. He states that he had arranged with the International, through Division
Director Housewright, to launch a back-to-back program in Local 698. Under this
program two organizers were to be hired by the Local, Bartlett and Horton. The
local would pay for Bartlett and the International would pay for Horton 79 Just
shortly after the foregoing arrangements, Dunlap called Radabaugh and said Local
880 was reducing its staff and laymg off Rhyne and could Radabaugh take Rhyne
Radabaugh said that he would try to do so through the back-to-back program but
he would have to talk to Housewright about substituting Rhyne. Radabaugh went
to considerable trouble, with Housewright and Vice President Plopper of the Inter-
national , to substitute Rhyne for Horton on the program.
Thereafter, Radabugh informed Rhyne that he was being hired by Local 698 pur-
suant to the back-to-back program. Rhyne was told by Radabaugh that the maximum
of the program was 1 year and that it was reviewed on a quarterly basis and that
Radabaugh hoped to keep it going. Radabaugh also said that it was a "crash" pro-
gram for the Local; that the Local was in the red and was going into the red but
hoped to reverse the trend through the program. He advised Rhyne not to move his
family from Cleveland to Akron because of the uncertainty of the situation but told
Rhyne that his work on a back-to-back program would bring him to the attention of
the International and would help him. Rhyne testified that Radabaugh said that
Rhyne would thereafter get a job with the International. I doubt that it was said this
way. It is my opinion that the possibility was expressed.
Rhyne worked as an organizer for Local 698 from March to about June 15 or 17,
1963 80 Sometime prior to June 15, 1963, Housewright informed Radabaugh that
the International was going to discontinue the back-to-back program with Local 698
because it was not proving to be successful. Radabaugh protested and expressed the
view that the tide would turn if more time was given. He told Housewright that the
latter should tell the men of the decision since it was not Radabaugh's decision.
Thereafter, on Saturday, June 15, 1963, Lewis, assistant division director under
Housewright, came to the Local 698 office and informed Radabaugh that the decision
to terminate the program was final . Radabaugh called in Hennigin , Bartlett, and
Rhyne. All the Local people argued against the decision but Lewis said that it was
78 Apparently Local 880 had authorized the hiring of two representatives but the evidence
is that they were never hired. We do not know the date-of such authorization but it was
apparently prior to the February 1963 conversation that we are discussing. Rhyne had
never been told that he was to fill one of these jobs nor is there any indication that he
did fill one of the jobs . There is some indication that the jobs were business agent jobs
as distinguished from that of an organizer . A local business agent primarily services
organized units while an organizer deals primarily with unorganized situations.
7e A letter from President Suffridge to Radabaugh , February 21, 1963, states that begin-
ning February 25 the International will contribute $ 620 every 4 weeks to Local 698 "for
a period of twelve weeks , if necessary."
80 Radabaugh told Rhyne he would have to become a member of Local 698 . Radabaugh
secured a store clerk ' s job for Rhyne where the latter worked a day or two and he was
then qualified and became a member of the Local.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
final. Radabaugh then said that he was going to keep Bartlett on the Local 's payroll
and let Rhyne go. As explained , Radabaugh said that he decided to keep Bartlett
because he was a member of the Local for some years and was on leave from one of
the stores under contract with the local Radabaugh considered both Bartlett and
Rhyne to be competent organizers Rhyne was accordingly terminated.
Radabaugh testified that during the program the Local had not gained membership
but had lost 300 members . There is no testimony or evidence impugning the fact
that the Local was losing members . Neither Rhyne nor any other witness even hinted
that they knew of such and such a number of new members that had been signed up
or even that they had the "impression" that the facts were contrary to what Radabaugh
stated . 81 Moreover , in the meeting with Lewis , although all the Local people
opposed the decision to end the program , no one used the argument , an obvious one
if it existed , that the program had in fact been successful The only contention was
that the program would or might be successful if continued 82
A careful consideration of the evidence regarding Rhyne raises a suspicion that he
may have been terminated by Respondent because of his AOA activity However,
on the evidence as a whole , the General Counsel has not, in my opinion , established
the Section 8(a)(3) allegation by a preponderance of the evidence Dismissal of the
allegation regarding Rhyne is recommended.83
IV. THE REMEDY
Having found that Respondent RCIA and Respondent Local 880 have engaged in
certain unfair labor practices , it will be recommended that they cease and desist
therefrom and take certain affirmative action which will effectuate the policies of
the Act.
Since what we have found to be an illegal policy, as expressed in the president's
letter of December 27, 1963, has been circulated to all local unions, International
representatives and council organizers , we shall recommend , inter a /ia, comparable
circulation of the remedial notice.
CONCLUSIONS OF LAW
In the course of making findings of fact, above , I have also made conclusions of
law. Briefly reiterated , the conclusions of law are that : The Respondents are
employers within the meaning of the Act , the International representatives and
council organizers are employees within the meaning of the Act; local union busi-
ness agents and organizers are employees within the meaning of the Act; the RCIA
and Local 880 have violated Section 8 ( a)(1) of the Act by policy and statements
that asserted that representatives joining the AOA thereby jeopardized their jobs;
the RCIA has violated Section 8(a)(5) of the Act by refusing to bargain with the
AOA as exclusive collective -bargaining representative with respect to the Metro-
politan New York Division , an appropriate unit, and with respect to the Eastern
Division , an appropriate unit; and with respect to the Central Division , an appro-
priate unit. The foregoing unfair labor practices affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
Si It is to be noted that Rhyne , in my opinion , was a very articulate person , mentally
quick and resourceful , but even he makes no claim that he sought to rebut Lewis regard-
ing the lack of success of the program.
sz The General Counsel objected to Radabaugh 's testimony about loss of membership,
claiming that the "best evidence" was the records of the Local The best evidence is not
necessarily the only evidence that may be used except in certain areas, such as the con-
tents of a document or direct testimony in preterence to hearsay . If Radabaugh had
simply testified that the program had not been successful because of determined opposition
by certain employers , the best evidence of that fact would probably be the testimony of
organizers who had engaged in the actual organizing and who had encountered employer
opposition Would we then say that the testimony of Radabaugh and the organizers was
objectionable because the best evidence of employer opposition would be the testimony
of individual employees from various stores who had been threatened and coerced by their
employers ? The "best evidence" is splendid but it is not the only permissible evidence
The decision as to admissibility and weight depends on the circumstances
83 I believe that Radabaugh was in error in stating that the back -to-back program ended
on May 18, 1963 . President Suffridge 's letter states that the International will begin
contributions for the week of February 25, and every 4 weeks thereafter The fifth week
would begin on June 10 . Apparently Radabaugh had been informed of the termination
of the program before June 15, but because of his resistance thereto, the actual announce-
ment to the employees was not made until the end of that week , June 15.
RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO 239
RECOMMENDED ORDER
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 National Labor
Relations Act, as amended, it is recommended that:
A. Respondent Retail Clerks International Association, with headquarters in
Washington, D.C., its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of Agents and Organizers
Association, or any other labor organization seeking to represent representatives
who are employees of the Retail Clerks International Association or of local unions
or other subordinate bodies of the Retail Clerks International Association, by main-
taining, applying, interpreting, or proclaiming a policy, practice, rule, law, or con-
stitutional provision whereby representatives who are employees are interfered with,
restrained, or coerced, or aie discriminated against in any manner in regard to their
hire and tenure of employment or any term or condition of employment.
(b) Interrogating in an unlawful manner representatives who are employees
regarding their union interests and activities.
(c) Threatening representatives who are employees with loss of jobs or other
economic reprisals because of their union interests or activities.
(d) Refusing to bargain collectively with the Agents and Organizers Association
as the exclusive bargaining representative of its employees in each of the following
appropriate bargaining units:
All International representatives and council organizers in its Eastern Division,
exclusive of supervisors as defined in the Act; all International representatives and
council organizers in its Metropolitan New York Division, exclusive of supervisors
as defined in the Act; all International representatives and council organizers in its
Central Division, exclusive of supervisors as defined in the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Agents and Organizers Associa-
tion as the exclusive representative of employees in the aforementioned appropriate
units, and if understandings are reached embody such understandings in signed
agreements.
(b) Post at its office in Washington, D.C., and in all its division offices, the notice
attached marked "Appendix A." 84 Copies of said notice, to be furnished by
the Regional Director for Region 2, shall, after being duly signed by an authorized
representative of Respondent, be posted by Respondent immediately upon receipt
thereof and maintained by it for 60 consecutive days thereafter in conspicuous places,
including 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. Mail copies of said notice to all its local unions,
International representatives, and council organizers.
(c) Notify the Regional Director for Region 2, in writing, within 20 days from
receipt of this Decision 85 what steps it has taken to comply herewith.
B. Respondent Local 880, RCIA, with headquarters in Cleveland, Ohio, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from interfering with, restraining, or coercing its employees,
representatives of the local union, in the exercise of their rights guaranteed in the
Act and more specifically their right to join or assist or to refrain from joining or
assisting the Agents and Organizers Association or any other labor organization
seeking to represent such representatives for the purpose of collective bargaining.
2. Take the following affirmative action to effectuate the policies of the Act
(a) Post at its office in Cleveland, Ohio, the attached notice marked "Appendix
B." 86 Copies of said notice, to be furnished by the Regional Director for Region 2,
shall, after being duly signed by an authorized representative of Respondent, be
posted by it for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
84 If this Recommended Order is adopted by the Board, the words "a Decision and Order"
shall be subr+ituted for the words "the Recommended Order of a Trial Examiner" in the
notice. If the Board's Order is enforced by a decree of a United States Court of Appeals,
the notice will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order"
es If this Recommended Order is adopted by the Board, this provision shall be modified to
read: "Notify the Regional Director for Region 2, in writing, within 10 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
16 See footnote 84.
240 DECISIONS Ob NATIONAL LABOR RELATIONS BOARD
steps shall be taken by Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 2, in writing, within 20 days from
receipt of this Decision , what steps it has taken to comply herewith.87
87 If this Recommended Order is adopted by the Board, this provision shall be modified
to read. "Notify the Regional Director for Region 2, In writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with Agents and Organizers Asso-
ciation as the exclusive representative of all employees in the bargaining units
described below with respect to wages, hours of employment, and other condi-
tions of employment , and if an understanding is reached , we will embody such
understanding in a signed contract . The bargaining units are:
All International representatives and council organizers in the Eastern
Division, exclusive of supervisors as defined in the Act.
All International representatives and council organizers in the Metro-
politan New York Division, exclusive of supervisors as defined in the Act.
All International representatives and council organizers in the Central
Division exclusive of supervisors as defined in the Act.
WE WILL NOT interfere with the rights of our employees or of the employees
of local unions to exercise the rights guaranteed to them under Section 7 of the
Act.
WE WILL NOT discourage membership in or activities on behalf of Agents and
Organizers Association or any other labor organization seeking to represent
representatives who are employees of the RCIA or of local unions or of other
subordinate bodies of the RCIA by maintaining, k,pplying, interpreting, or pro-
claiming a policy, practice, rule, law, or constitutional provision whereby rep-
resentatives who are employees are interfered with , restrained , or coerced or
are discriminated against in any manner in regard to their hire, tenure of
employment, or any teim or condition of employment.
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 745 5th
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any ques-
tion concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce our employees, the business
agents and organizers, in the exercise of their rights guaranteed in the Act and
more specifically their right to join or assist or to refrain from joining or assist-
ing Agents and Organizers Association or any other labor organization seeking
to represent such representatives for the purpose of collective bargaining.
LOCAL 880, RCIA,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
UNITED STATES PLYWOOD CORPORATION 241
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.
Employees may communicate directly with the Board's Regional Office , 745 5th
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any ques-
tion concerning this notice or compliance with its provisions.
United States Plywood Corporation and International Woodwork-
ers of America, AFL-CIO. Case No. 11-CA-P2543. June 21,
1965
DECISION AND ORDER
On March 5, 1965, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in certain unfair labor practices as alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision. There-
after, the General Counsel filed exceptions to the Trial Examiner's
Decision 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 powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Exam-
iner's Decision, the exceptions and brief, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.l
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the complaint herein be, and it hereby is, dismissed in its entirety.
MEMBER BROWN , dissenting :
The Trial Examiner found that the Respondent lawfully discharged
Woddie Lofton on October 1, and refused to reinstate him along with
i The General Counsel, with whom our dissenting colleague appears to agree, has ex-
cepted to the Trial Examiner's credibility findings . We do not agree that Dr. Childs'
testimony is self-contradictory on whether Lofton was intoxicated , and Dr. Watson, who
examined Lofton several hours later, testified that he did not make any effort to deter-
mine whether Lofton had taken any liquor. Moreover , Lofton was in fact convicted of
a breach of the peace arising from this episode . In these circumstances , we see no reason
to depart from our established policy of not overruling a Trial Examiner 's resolutions
with respect to credibility unless the clear preponderance of all the relevant evidence con-
vinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 , enfd. 188 F . 2d 362 (C.A. 3).
153 NLRB No. 23.
796-027-66-vol. 153-17