Associated Wholesale Grocery of Dallas, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1957

119 N.L.R.B. 41 (N.L.R.B. 1957)

ASSOCIATED WHOLESALE--GROCERY OF DALLAS, INC. 41
ing membership in the Union , the Respondents have engaged in and are ' engaging.
in unfair labor practices within the meaning of Section 8 ( a) (3) and (4) of the Act_
3. By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a) (1)
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.
5. The Respondents have not engaged in any unfair labor practices by reason of
the termination of employment of Teroy Riggans, C . L. Vinson, Rubin Garza, and
Perfecto Tey.
6. The Respondents have not engaged in any unfair labor practices by reason
of conduct alleged in the complaint to have interfered with, restrained , or coerced
employees except insofar as such conduct has been found hereinabove to have violated
Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.?
Associated Wholesale Grocery of Dallas, Inc. and -Dallas General
Drivers, Warehousemen & Helpers , Local No. 745, AFL-CIO.
Case No. 16-CA-928. October 18, 1957
DECISION AND ORDER
On December 10, 1956, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
,practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed ex-
ceptions to the Intermediate Report. -
The Board has reviewed the rulings made by the Trial Examiner -at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, Respondent's exceptions, and the entire record in
the case,-and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
We agree with the Trial Examiner that Respondent unlawfully
discharged the economic strikers by its letter of August 29, 1956..
The intent of the letter, to advise the strikers that their employment
terminated by their failure to return to work, is clearly apparent,,
despite the attempt to shift the onus of severing the employment
relationship upon the strikers.
We do not expect an employer at the onset of a strike to measure
each phrase in a communication to his strikers against Board prece-
dents, but neither are we disposed to resolve every ambiguity, in-
tentional or otherwise in such a letter, in the employer's favor. Re-
spondent chose to tell its employees that their failure to report for
work meant that their employment was ended. Only a close reading
of the remainder of the letter makes it possible to decide that Re-
119 NLRB No. 9.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent perhaps only meant to intimidate the strikers into returning
to work.
Kerrigan Iron Works, Inc., 108 NLRB 933, in which the Board
refused to find an employer's letter to economic strikers to be a dis-
charge, is distinguishable on its facts.' In the instant case, Respond-
ent made it plain that any employee who did not return by August 29
would be reemployed only upon written application, thus creating an
inference, not present in Kerrigan, that a new employment relation
would be established for those who returned after the deadline date.
Furthermore, the Respondent here effectuated the threat of its dis-
charge letter by paying the strikers off for all work done before the
strike, thereby ensuring that any rehirings would be on a new and
different basis.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Associated Whole-
sale Grocery of Dallas, Inc., Dallas, Texas, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in, or activity on behalf of, Dallas
General Drivers, Warehousemen and Helpers, Local No. 745, AFL-
CIO, or in any other labor organization of its employees, by dis-
charging, refusing to reinstate, or in any other manner discriminating
in regard to hire or tenure of employment, or any term or condition
of employment.
(b) Threatening to discharge employees for engaging in protected,
concerted activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist Dallas General Drivers, Warehousemen and Helpers,
Local No. 745, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to the employees listed in Appendix A, attached hereto,
immediate and full reinstatement to their former or substantially
' While agreeing that the Kerrigan case is distinguishable on its facts, Member Murdock
notes that he found the employer's letter in that case also to constitute a discharge.
ASSOCIATED WHOLESALE GROCERY OF DALLAS, INC. 43
equivalent positions without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay they may
have suffered by reason of Respondent's discrimination against them,
in the manner set forth in the section of the Intermediate Report en-
titled "The Remedy."
(b) Upon request, make available to the Board or its agents for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due and the right of re-
instatement under the terms of this Order.
(c) Post in conspicuous places at its Dallas, Texas, warehouse,
copies of the notice attached hereto marked "Appendix B." 2 Copies
Of said notice, to be furnished by the Regional Director for the Six-
teenth Region, shall, after being duly signed by Respondent's au-
thorized representative, be posted by Respondent immediately upon
receipt thereof, and be maintained by it for a period of sixty (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.
(d) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
MEMBERS RODGERS and BEAN , dissenting :
If our colleagues of the majority, in finding an unlawful discharge
here, had decided to overrule Kerrigan Iron WVorks, Inc., supra, we
would still dissent but we would nevertheless understand the logic of
their position. By distinguishing this case from Kerrigan in most
superficial aspects, the majority not only reaches what we believe to be
an incorrect result, but does so through a rationale which makes it
impossible to predict what the Board will decide in any other similar
situation. Summaries of the facts in these two cases will underscore
their fundamental similarity.
In Kerrigan, the employer sent the following letter during an eco-
nomic strike :
You are hereby notified that work will be available . . . April
23, 1952. You are notified to return on that date and failure to do
so will be deemed an indication on your part that you do not
desire reemployment in our plant, and your employment will
thereupon be permanently terminated.
No discrimination or hard feelings will be held against anyone
and there will be no change in seniority, wage rates, vacation pay,
In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words , "A Decision and Order," the words , "A Decree of
the United States Court of Appeals , Enforcing an Order."
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
holiday pay, or your life insurance and hospitalization for you
and your family. So if you want to work for us, your job will be
here Wednesday for you to report to.
The parties stipulated that the employer treated this letter as a termi-
nation notice to the strikers, and that no other termination notice wasp
issued to those employees who did not return. On or before the dead-
line date, 35 strikers returned to work. After the deadline, 18 strikers
returned, of whom 14, whose jobs had not yet been filled, were. rein-
stated.
In the instant case, Respondent's warehouse employees went out on
strike on August 27, 1956, after negotiations over economic issues
broke down. That day, Respondent sent the following letter to each
of the strikers :
You have walked off your job and refused to work without the
Company's consent.
Unless you return to work at your regular time on Wednesday,
August 29, 1956, your employment with this Company is termi-
nated and your former job will be permanently filled.
None of the strikers had returned by August 29, and on that date,
Respondent sent another letter to its employees reading as follows :
On August 27th the company wrote you that you had walked
off your job without permission and refused to work, and that if
you did not return to work by Wednesday, August 29th, at the
regular time your employment would be terminated and your
former job permanently filled.
You failed to report for work and your employment is termi-
nated. Enclosed find the company's check for work done by you
before you walked off your job. The company will now hire
new employees to permanently fill the job you and others held
with the company before the strike.
If, promptly after the strike ends, or sooner if you desire, you
wish to be re-employed by the company you should make written
application to the company. If, at the time of such application,
your former job has not been permanently filled, the company will
re-employ you to work at your former job upon the same terms
and conditions of your former employment.
Thereafter, on various dates between September 10 and Novem-
ber 13, 1956, the day preceding the hearing herein, 12 of the strikers
returned and, as far as the record shows, were reinstated without
discrimination. The strike was still in effect on the hearing date, but
as of that date, every striker who requested reinstatement had been
reinstated without loss of seniority or other employment rights pre-
viously enjoyed.
ASSOCIATED WHOLESALE GROCERY OF DALLAS, INC. 45
The majority relies on two items which it believes distinguish
Kerrigan from this case. They relate to inferences to be drawn from
the wording of the letters rather than from the total strike situation
of which the letters are a part. Thus, the majority points to phrases
in Respondent's letter of August 29, which imply that the strikers
would only be reemployed after they had made written applications.
We believe that this places an unwarranted emphasis upon a phrase
which can as reasonably be interpreted to mean that when the strike
ends the employees whose jobs had not been permanently filled would
be reinstated. That this is a more logical interpretation of the entire
communication from Respondent, appears from the last sentence. of
the letter in which each striker is told that if his job has not been
permanently filled he will be reemployed "upon the same terms and
conditions" of his former employment. The letter contains no threats
of loss of seniority or of those fringe benefits such as insurance or
hospitalization which are normally disrupted when a break in em-
ployment tenure occurs. Moreover, we note that the letter sent to
the strikers in the Kerrigan case also speaks of permanent termination
upon failure to return as an indication that the strikers do not desire
"reemployment."
Secondly, the majority sees a significant difference between Kerrigan
and this case in that the Respondent here mailed each striker a check
in payment for services performed before the strike. We fail to see
in what respect it is discriminatory to pay strikers what they have
already earned. It would be much more reasonable, in our opinion,
to find that failure to pay the strikers for work already performed
was discriminatory.
But in any event, the distinctions drawn by our majority colleagues
between Kerrigan and this case, invalid as they appear to us, are
nevertheless of little importance when contrasted with the basic
similarity of these two matters. Notwithstanding that the Em-
ployer's letter in Kerrigan referred to permanent termination of the
strikers if they did not return by the deadline date, the majority
decision in that case found that the letter was only one element of the
Employer's conduct, and that its subsequent reinstatement of all
strikers who applied after the deadline, without discrimination,
negates any inferences which the letter may have raised. What the
employer did in Kerrigan, the Respondent did here. From the date
of the strike to the date of the hearing, a period of 21/2 months,
Respondent reinstated every striker who wished to return, without
discrimination. Respondent endeavored to induce the strikers to
return by sending the letters of August 27 and August 29, and insofar
as it was successful, Respondent fulfilled its obligation to reinstate
them upon the terms and conditions previously in effect. Therefore,
because this case, in our opinion, is squarely in accord on its facts
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Kerrigan Iron Works, Inc., and because we cannot attach to
certain phrases of the August 29 letter the paramount importance
which the majority does in overriding Respondent's other conduct,
we would reverse the Trial Examiner's findings and conclusions, and
dismiss the Section 8 (a) (3) allegations of the complaint.
APPENDIX A
(Employees Who Received the Discharge Letter of August 29)
B. R. Watkins Celestus Smith R. M. Taylor
Stanley Prda B. A. Riley J. D. Barnes
Travis Martin J. W. Young Albert Bell
T. W. Jones K. O. Lasater Billy Gene Dugger
Y. G. Lopez John Kennedy C. R. Johnson
Geo. Mikuda Robert E. McCullough Billy Thorp
Herman Moore Chas. L. Reed Earnest Wilpitz
W. B. Neely H. Al. Ables James N. Schoonover
Calvin Perry Forest L. Johnson C. E. Hines
Don L. Poindexter L. D. Folsom Garland Mack
W. L. Headrick Clarence Dodd Alex Smith
Raymond Johnson J. R. Bunch, Jr. Leon Lee, Jr.
John Vargas Clifford Beamon Bobby Jackson
E. P. Ybarra Tommy J. Thomas
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in or activity in behalf of
Dallas General Drivers, Warehousemen and Helpers, Local No.
745, AFL-CIO, or in any other labor organization of our em-
ployees, by discharging, refusing to reinstate or in any other
manner discriminating in regard to hire or tenure of employment
or any term or condition of employment.
WE WILL NOT threaten our employees with discharge for engag-
ing in protected, concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form, join or assist the above-named or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
ASSOCIATED WHOLESALE GROCERY OF DALLAS, INC. 47
or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the following named employees immediate
and full reinstatement to their former or substantially equivalent
positions, without 'prejudice to seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay they may have suffered as the result of our discrimination
against them :
B. R. Watkins Forest L. Johnson
T. W. Jones J. R. Bunch, Jr.
Herman Moore R. M. Taylor
Don L. Poindexter Billy Gene Dugger
John Vargas Earnest Wilpitz
B. A. Riley Garland Mack
John Kennedy Bobby Jackson
H. M. Ables Travis Martin
Clarence Dodd Geo. Mikuda
Tommy J. Thomas Calvin Perry
Albert Bell Raymond Johnson
Billy Thorp Celestus Smith
C. E. Hines K. 0. Lasater
Leon Lee, Jr. Chas. L. Reed
Stanley Prda L. D. Folsom
Y. G. Lopez Clifford Beamon
W. B. Neely J. D. Barnes
W. L. Headrick C. R. Johnson
E. P. Ybarra James N. Schoonover
J. W. Young Alex Smith
Robert E. McCullough
ASSOCIATED WHOLESALE GROCERY OF DALLAS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served , a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National Labor
Relations Board, and an answer having been filed by the above -named Respondent,
a hearing involving allegations of unfair labor practices in violation of Section 8 (a)
(1) and ( 3) of the National Labor Relations Act, as amended , 61 Stat . 136, herein
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Act, was held in Dallas, Texas, on November 14, 1956, before the duly
designated Trial Examiner.
As to the unfair labor practices , the complaint alleges and the answer denies that
the Respondent : ( 1) on August 27, 1956, threatened to discharge all employees who
had joined a strike which began that day; (2) on August 29, 1956, discriminatorily,
and to discourage concerted and union activities , discharged employees listed in
Appendix A, attached hereto; ( 3) by such conduct prolonged the strike of its em-
ployees; and (4) by such conduct interfered with, restrained , and coerced its em-
ployees in the exercise of rights guaranteed by Section 7 of the Act.
At the hearing all parties were represented , were afforded full opportunity to be
heard , to examine and cross -examine witnesses , to introduce evidence pertinent to
the issues , to argue orally upon the record , and to file briefs , and proposed findings
of fact and conclusions of law. General Counsel argued orally. A brief has been
received from the Respondent.
Upon the entire record in the case, and from his observation of the one witness,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Associated Wholesale Grocery of Dallas, Inc ., is a Texas corporation, having its
principal office and place of business in Dallas, Texas, where it is engaged in the
purchase , sale, and distribution of groceries and related products at wholesale.
During the 12-month period immediately before the hearing, the Respondent
purchased such products valued at more than $ 17,000,000, of which total more
than $6,800 ,000 worth were shipped in interstate commerce to its Dallas warehouse
from points outside the State of Texas.
The Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Dallas General Drivers , Warehousemen & Helpers, Local No. 745, AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES 1
During the late summer of 1956 the Respondent and the Charging Party failed
to agree upon terms of a contract . At the beginning of the workday on August 27,
a strike of the Respondent 's warehouse employees began. There is no claim that
the strike was caused by the employer 's unfair labor practices . It is therefore found
that at its beginning the strike was economic in nature, and as such was protected,
concerted activities.
The same day, August 27, the Respondent , by its general manager , J. D. Simril,
sent to each of the striking employees the following letter:
You have walked off your job and refused to work without the Company's
consent.
Unless you return to work at your regular time on Wednesday , August 29,
1956, your employment with this Company is terminated , and your former job
will be permanently filled.
This letter was received by the 36 employees listed in Appendix B, attached hereto.
On August 29, Simril sent the following letter . It was received by the employees
listed in Appendix A, attached hereto.
On August 27th the company wrote you that you had walked off your job
without permission and refused to work, and that if you did not return to work
by Wednesday , August 29th, at the regular time your employment would be
terminated and your former job permanently filled.
You failed to report for work and your employment is terminated. Enclosed
find the company 's check for work done by you before you walked off your
job. The company will now hire new employees to permanently fill the job
you and others held with the company before the strike.
If, promptly after the strike ends, or sooner if you desire, you wish to be
re-employed by the company you should make written application to the com-
' All of the essential facts found in this section were introduced into the record by way
of stipulation of the parties.
ASSOCIATED WHOLESALE GROCERY OF DALLAS, INC. 49
pany. If, at the time of such application, your former job has not been
permanently filled, the company will re-employ you to work at your former
job upon the same terms and conditions of your former employment.
After receipt of the above letter, 12 of the striking employees returned to work.
These 12, and the dates they returned, are listed in Appendix C.
As a witness, General Manager Simril testified, and it is found, that he hired no
new employees, as replacement for the strikers, between August 27 and 29.
Actually, none were hired "permanently" for 45 days after August 27.
There can be little question, it appears to the Trial Examiner, that the employer's
letter of August 27 threatened with immediate discharge all strikers who did not
return by August 29. The language is clear and unmistakable. From it no striker
could reasonably gather that the employer had filled the vacancy caused by his
participating in an economic strike and therefore he might not be able to get his
job back. The deadline is explicit: if he did not report at the time set, he was
"terminated."
Additional proof that the threat was real and not merely a plea is found in the
fact that it was literally carried out an August 29. The employees' final paycheck
was therein enclosed. He was fired. The latter letter also makes it plain that
the employer had not, until that date, hired replacements.
The Trial Examiner concludes and finds: (1) By its letter of August 27 the
Respondent interfered with, restrained, and coerced employees in the exercise of
their right to engage in concerted activities, within the meaning of Section 8 (a) (1)
of the Act; and (2) by discharging employees for engaging in protected concerted
activities, the Respondent thereby discriminated in regard to their hire and tenure
of employment to discourage union and concerted activities, within the meaning of
Section 8 (a) (3) of the Act.
These findings and conclusions appear to find ample support in the case cited
by General Counsel-United States Cold Storage Corp., 203 F. 2d 924, certiorari
denied 346 U. S. 818-wherein the Fifth Circuit Court of Appeals said (at p. 927) :
The Board . . . [held] that respondent's telegram . did not constitute
a mere statement of respondent's right to replace economic strikers but actually
operated as a notice of discharge to the striking employees to be effective 24
hours after its receipt if they had not by then reported back to their regular
jobs. . .
We think the Board was correct in its application of the law to the facts of
the case. By striking in support of economic demands the employees clearly
engaged in concerted activity for "mutual aid or protection" within the intend-
ment of § 7 of the Act. . . They did not by striking in these circumstances
cease to be employees and their discharge for engaging in the strike was ac-
cordingly a violation of § 8 (a) (1) of the Act. N. L. R. B. v. Mackay Radio
& Telegraph Company, 304 U. S. 333, 347, 58 S. Ct. 904, 82 L. Ed. 1381. It
is clear from the authorities that in a situation like the present the employer
is free to hire replacements for the strikers at any time prior to their uncon-
ditional request for reinstatement, but on the other hand the cases uniformly
hold that it is an unfair labor practice to discharge economic strikers prior,
as here, to the time their jobs are filled.
Contrary to the contention of counsel for the Respondent in his able brief, the
Trial Examiner does not consider that the cases therein cited are in point sufficiently
to govern.
It is further found that, with the exception of employees named in Appendix C,
the employees discharged on August 29 have remained on strike up to and in-
cluding the time of the hearing. Ample evidence supports General Counsel's
allegation, and it is found, that the strike on and after August 29 was because of
the discriminatory discharges on that date, and was prolonged by the Respondent's
unfair labor practices. Sufficient and timely notification of the Union's claim in
this respect is contained in the original charge in this case, filed on August 31 and
immediately served upon the Respondent. In short, the strike, theretofore economic
in nature, was on August 29 converted by the Respondent's illegal conduct on that
date into an unfair labor practice strike.
IV. 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 Respondent 's operations described in section 1, above, have a close,
476321-58-vol. 119--5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intimate , and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act.
The policies of the Act require that the strikers who have not abandoned the strike
and have not returned to work be offered immediate reinstatement with back pay.
Because they continued on strike after they were discharged, the discharged strikers
are entitled to back pay only from the date when they have indicated their desire
to return to work under the conditions existent at the beginning of the strike by
abandoning the strike or otherwise, rather than from the date of their discriminatory
discharges, on the theory that the loss of wages could not conclusively be attributed
to the discharges until the strikers have indicated their willingness to return to work.
(See United States Cold Storage Corporation, 96 NLRB 1108, 1112.) There is
no evidence in the record that, up to the date of the hearing in this matter, the
aforementioned conditions for an award of back pay were present.
The Trial Examiner will therefore recommend that the Respondent offer the
strikers listed in Appendix A immediate and full reinstatement to their old or sub-
stantially equivalent jobs, without loss of seniority or other rights and privileges,
dismissing, if necessary to provide employment for the discharged strikers, any
employees hired after August 29, 1956. (This offer should be made to all listed
in Appendix A, despite the fact that, on various dates, those listed in Appendix C
returned to work. The present state of the record does not disclose whether or not
the former strikers, listed in Appendix C, were in fact reinstated to their former
or substantially equivalent jobs, without loss of the rights abovementioned.)
The Trial, Examiner will also recommend that the Respondent make whole the
strikers listed in Appendix A for any loss of pay suffered by them by paying to
each of them a sum of money equal to that which each normally would have earned
from the date of the abandonment of the strike to the date of the Respondent's offer
of reinstatement, less his net earnings during said period, and in a manner consistent
with Board policy as set out in F. W. Woolworth Company (90 NLRB 289) and
Crossett Lumber Company (8 NLRB 440).
It will further be recommended that the Respondent, upon reasonable request,
make available to the Board and its agents all payroll and other records pertinent
to an analysis of the amount due as back pay.
Since the violations of the Act which the Respondent committed are persuasively
related to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is to be anticipated from the Respondent's conduct in the
past, the preventive purposes of the Act will be thwarted unless the recommenda-
tions are coextensive with the threat. In order to make more effective the inter-
dependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair
labor practices, and thereby minimize industrial strife which burdens and obstructs
commerce, and thus effectuate the policies of the Act, it will be recommended that
the Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record as a
whole, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Dallas General Drivers, Warehousemen & Helpers, Local No. 745, AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of em-
ployees, as found herein, thereby discouraging membership in, and activity on behalf
of, the above-named labor organization, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) 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.
[Recommendations omitted from publication.]
ASSOCIATED WHOLESALE GROCERY OF DALLAS, INC.
APPENDIX A
(Employees Who Received the Discharge Letter of August 29)
51
B. R. Watkins Celestus Smith R. M. Taylor
Stanley Prda B. A. Riley J. D. Barnes
Travis Martin J. W. Young Albert Bell
T. W. Jones K. O. Lasater Billy Gene Dugger
Y. G. Lopez John Kennedy C. R. Johnson
Geo. Mikuda Robert E. McCullough Billy Thorp
Herman Moore Chas. L. Reed Earnest Wilpitz
W. B. Neely H. M. Ables James N. Schoonover
Calvin Perry Forest L. Johnson C. E. Hines
Don L. Poindexter L. D. Folsom Garland Mack
W. L. Headrick Clarence Dodd Alex Smith
Raymond Johnson J. R. Bunch, Jr. Leon Lee, Jr.
John Vargas Clifford Beamon Bobby Jackson
E. P. Ybarra Tommy J. Thomas
APPENDIX B
(Employees Who Received the Letter of August 27)
Albert Bell Tommy J. Thomas John Kennedy
Clifford Beamon Billy F. Thorp K. O. Lasater
J. R. Bunch, Jr. B. R. Watkins Y. G. Lopez
Clarence Dodd Earnest Wilpitz Robert E. McCullough
L. D. Folsom J. W. Young George Mikuda
W. L. Headrick Charles L. Reed Travis H. Martin
C. E. Hines Stanley Prda Herman Moore
C. R. Johnson H. M. Ables W. B. Neely
Forest L. Johnson Raymond Johnson Calvin Perry
B. A. Riley T. W. Jones Don L. Poindexter
Celestus Smith Leon Lee, Jr. John Vargas
R. M. Taylor J. D. Barnes E. P. Ybarra
APPENDIX C
(Strikers and Dates of Return to Work)
B. R. Watkins____________ 11- 5-56 Billy Thorp______________ 9-15-56
T. W. Jones______________ 9-14-56 Leon Lee, Jr-------------- 9-10-56
W. L. Headrick ---------- 9-13-56 Bobby Jackson____________ 9-10-56
Raymond Johnson --------- 9-13-56 Calvin Perry_____________ 11-13-56
L. D. Folsom ------------ 9-24-56 J. W. Young______________ 9-15-56
J. R. Bunch, Jr----------- 9-14-56 H. M. Ables_____________ 10- 1-56
APPENDIX D
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Re-
lations Act , as amended , we hereby notify you that:
WE WILL NOT discourage membership in Dallas General Drivers, Ware-
housemen & Helpers, Local No. 745, AFL-CIO, or in any other labor organiza-
tion of our employees , by discriminatorily discharging , refusing to reinstate, or
in any other manner discriminating in regard to hire or tenure of employment,
or any term or condition of employment.
WE WILL NOT threaten with discharge or other reprisal our employees for
engaging in protected, concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor or-
ganizations , to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized • in
Section 8 (a) (3) of the Act.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to the following named immediate and full reinstatement to
their former or substantially equivalent positions , without prejudice to seniority
or other rights and privileges previously enjoyed, and make them whole for
any loss of pay they may have suffered as the result of our discrimination
against them:
B. R. Watkins Stanley Prda Travis Martin
T. W. Jones Y. G. Lopez Geo. Mikuda
Herman Moore W. B. Neely Calvin Perry
Don L. Poindexter W. L. Headrick Raymond Johnson
John Vargas E. P. Ybarra Celestus Smith
B. A. Riley J. W. Young K. 0. Lasater
John Kennedy Robert E. McCullough Chas. L. Reed
H. M. Ables Forest L. Johnson L. D. Folsom
Clarence Dodd J. R. Bunch, Jr. Clifford Beamon
Tommy J. Thomas R. M. Taylor J. D. Barnes
Albert Bell Billy Gene Dugger C. R. Johnson
Billy Thorp Earnest Wilpitz James N. Schoonover
C. E. Hines Garland Mack Alex Smith
Leon Lee, Jr. Bobby Jackson
ASSOCIATED WHOLESALE GROCERY OF DALLAS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Montgomery Ward & Co. and Retail Clerks International Asso-
ciation, Local Union 345, AFL-CIO, Petitioner. Case No. 8-RC-
1815. October 18, 1957
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
On March 28, 1957, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the Third
Region among employees in the agreed appropriate unit. Following
the election, the Regional Director served upon the parties a tally of
ballots, showing that 16 votes were cast against, and 13 for, the
Petitioner.
On April 2, 1957, the Petitioner filed objections to the election. On
April 25, 1957, the Acting Regional Director issued and served upon
the parties his report on objections, recommending that the objections
be overruled because not sufficiently specific under the Board's Rules
and Regulations. On June 24, 1957, the Board issued its Decision
and Direction, remanding the case to the regional Director for investi
gation of the issues raised by the objections.'
On July 29, 1957, the Regional Director issued and served upon
the parties a supplemental report on objections, recommending that
the objections be overruled and that the Board issue a certification of
1 118 NLRB 310.
119 NLRB No. 3.