Western Auto Associate Store

National Labor Relations Board - Board Decisions

Jul 22, 1963

143 N.L.R.B. 703 (N.L.R.B. 1963)

WESTERN AUTO ASSOCIATE STORE 703
WE WILL, jointly and severally with the above -named employer , reimburse
its employees for dues, fees, and other assessments exacted from them on and
after March 12, 1962.
LOCAL 1325 , RETAIL CLERKS
INTERNATIONAL ASSOCIATION,
AFL-CIO,
Labor Organization.
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, 24 School
Street , Boston , Massachusetts , 02108, Telephone No. Lafayette 3-8100 , if they have
any question concerning this notice or compliance with its provisions.
Dan T. Edwards and Son d/b/a Western Auto Associate Store
and Local 646, International Hod Carriers , Building and Com-
mon Laborers Union of America , AFL-CIO. Case No. 14-CA-
2815. July 22, 1963
DECISION AND ORDER
On February 20, 1963, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in the unfair labor practices alleged in
the complaint and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent and the Charging Party
filed exceptions to the Intermediate Report and supporting briefs.
The Board has reveiwed 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 Inter-
mediate Report and the entire record in the case, including the ex-
ceptions and briefs, and hereby adopts the findings, conclusions, and_
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended ( 61 Stat . 136), herein called the Act was heard before Trial
Examiner Eugene E. Dixon at St. Louis, Missouri , on January 23, 1963 , pursuant
to due notice with all parties being represented by counsel . The complaint , issued
by a representative of the General Counsel for the National Labor Relations Board
(herein called the General Counsel and the Board ) on November 9, 1962, and
based upon charges filed and served on June 25 and 26 , 1962, by Local 646,' Inter-
national Hod Carriers , Building and Common Laborers Union of America, AFL-
143 NLRB No. 82.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, alleged that Respondent had engaged in unfair labor practices in violation of
Section 8(a)(1) and (2) of the Act by rendering unlawful financial assistance and
support to Local 50, Congress of Independent Unions (herein called Local 50) by
paying moneys of its own directly to Local 50 as union dues for and on behalf of its
employee members of said Local 50.
In its duly filed answer Respondent denied the commission of any unfair labor
practices.
On the basis of the entire record herein I make the following:
FINDINGS OF FACT
1. THE BUSINESS INVOLVED
Dan T. Edwards and Son, d/b/a Western Auto Associate Store is engaged in
the business of retailing hardware and sundry items from its store and principal
place of business located in Jerseyville, Illinois. Respondent is a member of Retail
Merchants Association (herein called the Association) which is a trade association
that admits to membership firms engaged in retail sales and services in and about
the city of Jerseyville, Illinois, and which exists in part for the purpose of represent-
ing its members in collective bargaining with labor organizations and which par-
ticipates through designated representatives in the negotiation, execution, and ad-
ministration of collective-bargaining agreements on behalf of its members with
labor organizations including Local 50.
During the 12 months preceding the issuance of the complaint, which period is
representative of all times material herein, members of the Association in the opera-
tion of their businesses sold to customers goods and services valued in excess of
$500,000. During the same representative period members of the Association, in the
operation of their businesses at Jerseyville, Illinois, received supplies and materials
from outside the State of Illinois valued in excess of $50,000.
It is admitted and I find that Respondent as a member of the Association is,
and has been at all times material herein, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS
Local 646, International Hod Carriers, Building and Common Laborers of
America, AFL-CIO, and Local 50, Congress of Independent Unions are labor or-
ganizations within the meaning of Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
As indicated in section I, above, Retail Merchants Association is a trade association
existing in part to represent its members in collective bargaining with labor or-
ganizations. Respondent herein has been a member of the Association from its
inception. Since July of 1961, Respondent's president, Dan T. Edwards, has also
been president of the Association. In 1960 the Association entered into a collective-
bargaining arrangement with the Congress of Independent Unions, Local 50. The
first contract between them was entered into on November 1, 1960, effective to
October 31, 1961. The next and current contract was to be effective from Novem-
ber 1, 1961, to October 31, 1963. Both contracts provided for a union shop and
dues checkoff.
During the period covered by these contracts Respondent had four employees
in addition to members of the Edwards family. These four were comprised of
three clerks or salesmen who were compensated on a commission basis and an office
girl who was paid $40 a week on the basis of 40 hours at $1 an hour. Upon the
signing of this contract, according to Edwards' testimony, he and the employees
"were kidding about the fact" that they would not get a raise under it.' Accordingly,
Edwards told them that he would pay their dues "particularly since they weren't
getting any wage increase." Thereafter Respondent began paying $2.50 per month
'The 1960 contract provided for "a general increase of 5 cents per hour or, the
equivalent thereof, for all employees, meaning all employees of the Association, except
service station employees." The 1961 contract provided that "Starting November 1,
1961, no employee will receive any less than 5 cents an hour increase over his or her
present rate." The General Counsel points out that the contracts called for considerably
more than the $2.50 a month dues paid on behalf of the employees and that therefore it
cannot be said that the dues were paid in lieu of a wage Increase.
WESTERN AUTO ASSOCIATE STORE 705
to Local 50 on behalf of each of the four employees charging the payments on its
books as a business expense and listing the expenditures as payment of dues.
Respondent continued such payments until the charges were filed herein. When
the Board's field examiner had informed Respondent that its conduct "was fouled
up," Respondent ceased paying the dues. In lieu thereof Respondent gave the
employees a wage increase of $2.50 per month. Edwards explained that in the
beginning he "could have simply raised [the employees'] pay or given them the
money and let them pay [the dues] themselves but they enjoyed having the book-
keeper just pay it, they didn't have to fool with it. It was an easy system for both
sides."
Conclusions
Pointing to the fact that both contracts provided for dues checkoff "upon receipt
of a signed authorization of the employee involved," and to the further fact that no
such authorizations were obtained by Respondent, the General Counsel contends,
chiefly on the authority of Dixie Bedding Manufacturing Company,2 121 NLRB
189, that Respondent has violated Section 8(a) (2) of the Act.
I agree and so find. See ABC Machine and Welding Service, 122 NLRB 944
where the Board 3 found an 8(a ) (2) violation that the Trial Examiner had refused
to find where the agreement to pay the dues had resulted from the bargaining process,
the payment was a substitute for a wage increase and had occurred after the Union
had obtained a majority and had been recognized.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section II, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it take certain affirmative action designed to
effectuate the policies of the Act
The General Counsel while asking for an appropriate remedy, apparently would
not have Respondent cease recognizing the Union here .4 This position the Gen-
eral Counsel takes (and rightly so I believe) because the charge herein was filed
against the Association and its constitutent members and as the General Counsel
points out, "the Association was lawfully certified in 1960, and other than the
single instance of Edwards' violative conduct, conduct attributable to Edwards
as an individual employer and not attributable to the Association, there has been no
substantial evidence of any other illegal conduct by the Association." According-
ly I shall not recommend the usual cease recognizing order here. Although I shall
not recommend the usual 8(a)(2) order, I will recommend the customary posting
of a notice which among other things will indicate that Respondent will not resume
the illegal payment of employees' dues to Local 50 or to any other union. In this
connection I reject Respondent's contention in its brief that this matter is de minim is.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Local 646, International Hod Carriers, Building and Common Laborers Union
of America, AFL-CIO, and Local 50, Congress of Independent Unions are labor
organizations within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
5In essence Dimie Bedding stands for the proposition that payment of dues by an em-
ployer without authorization from the employees constitutes assistance within the mean-
Ing of Section 8(a)(1).
$iCiting Dixie Bedding Manufacturing Company, supra, among other cases.
4 Louis and Helen Goren, d/b/a City Window Cleaning Company , 114 NLRB 906;
Lykes Bros. Ino., of Georgia, 128 NLRB 606, 611.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By assisting and contributing support to Local 50, Congress of Independent
Unions, Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
record herein, it is recommended that:
Dan T. Edwards and Son, d/b/a Western Auto Associate Store, Jerseyville,
Illinois, its officers, agents, successors, and assigns, shall:
(1) Post at its store in Jerseyville, Illinois, copies of the notice attached hereto
marked "Appendix." 5 Copies of such notice, to be furnished by the Regional
Director for the Fourteenth Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted by the Respondent immediately upon
the receipt thereof and be maintained by it for a period of 60 consecutive days there-
after in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(2) Notify the Regional Director for the Fourteenth Region, in writing, within 20
days from the date of the receipt of this Intermediate Report, what steps it has
taken to comply with the terms of the Recommended Order.6
It is further recommended that, unless within 20 days from the date of the receipt
of this Intermediate Report the Respondent notifies the Regional Director in writing
that it will comply with the terms of the Recommended Order contained in this
report, the Board may issue an order requiring the Respondent to take the action
aforesaid.
5 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a deciee of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order "
a In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order what steps the Respondent has taken to comply herewith."
APPENDIX
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 contribute support or assistance to Local 50, Congress of
Independent Unions, by resuming the illegal payment of our employees' dues
to it or to any other labor organization
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the rights guaranteed them in the National
Labor Relations Act as amended.
DAN T. EDWARDS AND SON, D/B/A
WESTERN AUTO ASSOCIATE STORE,
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, 4459
Federal Building, 1520 Market Street, St. Louis, Missouri, 63103, Telephone No.
Main 1-8100, Extension 2142, ifthey have any question concerning this notice or
compliance with its provisions.