Canada Dry Corp.

National Labor Relations Board - Board Decisions

Sep 28, 1965

154 N.L.R.B. 1763 (N.L.R.B. 1965)

CANADA DRY CORPORATION 1763
(b) Post at its plant in Batavia, New York, copies of the attached notice marked
"Appendix." 8 Copies of said notice, to be furnished by the Regional Director for
Region 3 of the Board (Buffalo, New York), shall, after being signed by an author-
ized representative of Respondent, be posted by Respondent immediately upon receipt
thereof, and maintained by it for a period of 60 consecutive days from the date of
posting, 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.
(c) Notify the said Regional Director, in writing, within 20 days from the date
hereof, what steps it has taken to comply herewith .9
8 In the event 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 Exam-
iner" in the notice. In the further event that the Board's Order be enforced by a decree
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".
8If this Recommended Order be 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 Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a 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 refuse to bargain collectively with Local 352, International
Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive
representative of our employees in the bargaining unit described below, by
refusing or failing to furnish said union information and data concerning the
cost of proposed improvements in the pension and group insurance programs
covering the employees in the appropriate unit.
WE WILL NOT in any like or related manner interfere with the efforts of the
employees' exclusive representative to bargain collectively on their behalf.
WE WILL, upon request, furnish the above-named union the costs or estimated
costs of the improvements in the existing pension and group insurance programs
covering the employees in the bargaining unit described below.
The appropriate bargaining unit is:
All production and maintenance employees at our Batavia, New York,
plant, exclusive of all office and clerical employees, foremen's clerks,
designers, technicians, engineers, draftsmen, and guards, professional
employees, and all supervisors as defined in the Act.
SYLVANIA ELECTRIC PRODUCTS, INC.,
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No.
TL6-1782.
Canada Dry Corporation and Joe Benich. Case No. 8-CA.-3671.
September 28,1965
DECISION AND ORDER
On June 24, 1965, Trial Examiner Arthur Christopher, Jr., issued
his Decision in the above-entitled proceeding, finding that the
154 NLRB No. 134.
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
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 brief, and the entire record
in this case, and hereby adopts the findings,' conclusions,2 and recom-
mendations of the Trial Examiner.
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 the Respondent, Canada Dry Corporation,
Cleveland, Ohio, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, as
so modified :
'In the absence of exceptions, we adopt pro forma the Trial Examiner's findings that
the effective date of Benich's discharge was July 3, 1964; that the strike at the Respond-
ent's premises was converted to an unfair labor practice strike when the Respondent
apprised Benich he was discharged because of his refusal to cross the Teamsters' picket
line and report for work ; and that when Benich unconditionally applied for reinstate-
ment on September 14, 1964, he was entitled to reinstatement as an unfair labor practice
striker.
As requested by the Respondent, the Trial Examiner's factual discussion of the status
of Benich is hereby corrected to reflect the record evidence that among others reporting
to Passow, division operations manager, is Kertis, division transportation manager, and
that reporting to Kertis are Murphy, route supervisor ; the night warehouse superin-
tendent; and Benich. This does not, however, affect our affirmance of the Trial Exam-
iner's finding that Benich is not a supervisor within the meaning of the Act.
2 We agree with the Trial Examiner's conclusions that the Respondent's discharge of
Benich and its subsequent refusal to reinstate him violated Section 8(a) (1) of the Act,
but we find it unnecessary to decide whether it also violated Section 8(a) (3), as such a
further finding would not affect the remedy herein. However, in adopting the Trial
Examiner's decision that the Respondent unlawfully discharged Benich, of the cases cited
by the Trial Examiner, we rely only on A. C. Smith Corporation, Granite City Plant, 132
NLRB 339, 400-401 ; Concrete Haulers, Inc., at at., 106 NLRB 690, footnote 11 ; Texas
Foundries, Inc., 101 NLRB 1642, 1683, enforcement denied on other grounds, 211 F. 2d
791 (C.A. 5) ; and Montag Brothers, Inc., 51 NLRB 366, enfd. 140 F. 2d 730 (C.A. 5),
which, as here, involved "sympathetic strikers" who refused to perform their jobs and
joined a strike of employees of their employer. A similar holding was affirmed in
N.L.R.B. v. West Coast Casket Company, Inc., 205 F. 2d 902, 908 (C.A. 9), enfd. 97
NLRB 820. And see the discussion in Truck Drivers Union Local No. 413, Teamsters,
et al., v. N.L.R.B. (Brown Transport Corp.), 334 F. 2d 539, 542-543 (C.A.D C.), cert.
denied , 379 U.S. 916.
CANADA DRY CORPORATION 1765
1. Amend paragraph 1(c) of the Trial Examiner 's Recommended
Order so that it commences : "( c) In any like or related manner ..." 8
2. Add the following as paragraph 2(b) to the Trial Examiner's
Recommended Order, the present paragraph 2(b) and those subse-
quent thereto being consecutively relettered :
"(b) Notify Joe Benich if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal
Military Training and Service Act of 1948, as amended , after dis-
charge from the Armed Forces."
3. Amend the third indented paragraph of the Appendix attached
to the Trial Examiner's Decision to commence as follows :
WE WILL NOT in any like or related manner ...
4. Amend the final paragraph of the Appendix attached to the Trial
Examiner 's Decision so it reads as follows :
All our employees are free to become or remain, or to refrain
from becoming or remaining , members of any labor organization
of their choice , except to the extent that this 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, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
8 Contrary to the Trial Examiner , we do not find that the violations herein warrant
application of the broad order which he recommends.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Arthur Christopher, Jr., in Cleve-
land, Ohio, on February 15, 1965, on complaint of the General Counsel and answer
of Canada Dry Corporation, herein called the Respondent.' The issues litigated were
whether the Respondent violated Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended. At the hearing the General Counsel and the Respondent
were represented by counsel and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to present evidence . At the close of the
hearing the General Counsel and the Respondent argued orally and thereafter the
Respondent submitted a brief.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, with its principal office and place of business
located in New York, New York, is engaged in the manufacture, sale, and distribution
,of soft drinks. Only the Cleveland, Ohio, plant is involved herein. Annually in the
course of its business enterprise, the Respondent caused to be purchased, transferred,
and delivered to its Cleveland plant goods and materials valued in excess of $50,000,
which represents the value of goods and materials transported to that plant directly
from States other than the State of Ohio.
1 The charge herein was filed by Joe Benich, an individual, on November 4, 1964.
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is admitted, and I find, that the Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and that it will effectuate he
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted, and I find, that International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Teamsters Union, Local 293, hereinafter
called the Teamsters, and Cleveland Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, hereinafter called the Brewery Workers, are labor
organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The principal issue in this proceeding is whether the Respondent violated Section
8(a) (3) and (1) by its discharge of Joe Benich on July 3, 1964,2 and its later refusal
to reinstate him because of his alleged failure to cross a picket line and work during
an economic strike. In essence, the main issue to be resolved herein is whether the
alleged action of an unrepresented employee in honoring a lawful picket line estab-
lished by the bargaining agent of certain of his fellow employees who comprise a
separate, appropriate unit is protected, concerted activity or unprotected activity. A
second issue raised is whether Benich, the alleged discriminatee, is a supervisor within
the meaning of the Act. Because a resolution of the latter issue may be dispositive of
the other issue, I shall first consider whether Benich is a supervisor.
B. The facts
1. The alleged supervisory status of Benich
As stated above, the Respondent is engaged in the manufacture, sale, and distribu-
tion of soft drinks at its Cleveland plant. It employs approximately 40 to 45 produc-
tion and maintenance employees at this plant, represented by the Brewery Workers;
approximately 25 truckdrivers, represented by the Teamsters; and an undisclosed
number of unrepresented employees, including office and clerical employees, sales-
men, and automobile mechanics. All the foregoing employees worked under the
general supervision of William Passow, division operations manager, who also served
as managing agent for the plant. Reporting to Passow, among others, were Division
Transportation Manager Edward Kertis and Route Supervisor Gene Murphy. The
parties stipulated that both Kertis and Murphy are supervisors within the meaning of
the Act.
Joe Benich, who was described as head mechanic by several of Respondent's wit-
nesses, nevertheless was carried on its records simply as a mechanic and, together
with Hosie Tramble, his helper, and Larry Vivian, a gasser-washer, worked under
Transportation Manager Kertis. Benich was employed by the Respondent in January
1951 and worked continuously until June 30, 1964. Benich credibly testified he was
employed on an hourly basis as a truck mechanic, and his rate of pay was higher than
Tramble's. He performed all the repair work on the frontends, differentials, and
transmissions of the Respondent's fleet of trucks. In addition, Benich was responsible
for ordering some of the spare parts. He was assisted in his repair work by Hosie
Tramble whose work he "sometimes" directed. He also gave instructions to Larry
Vivian, the gasser-washer, who worked only at night after the trucks had returned
from deliveries. Benich testified, however, that very little latitude existed for the
direction of the other two workers as Respondent's instructional bulletins issued from
its New York City main office such as the PM (preventive maintenance) and the
safety check sheets "practically controlled the work you're going to do." Benich
further testified that when maintenance or greasing work was not properly done, he
reported such deficiencies to Transportation Manager Ed Kertis. Hosie Tramble's
credible testimony substantially corroborated Benich's description of repair shop pro-
cedure. Tramble also credibly testified that he "always took orders from Benich."
Benich told him what trucks he was to check despite the existence of PM and other
instruction sheets.
Benich testified that during his employment he never attended any meetings with
Respondent's supervisors dealing with labor relations or "employee morale" matters.
He also testified that he was never told by any management official or supervisor that
he possessed the authority to hire new employees or that he held any of the other
2 All dates shown are 1964 except where otherwise Indicated.
CANADA DRY CORPORATION 1767
indicia of supervisory authority within the meaning of the Act. In this respect, Benich
testified that he recommended the hire of Tramble after he had asked Kertis if he
could give him some help. Transportation Manager Kertis testified that Benich's
duties involved those of a combination head mechanic and mechanic, and that he
was responsible for the general maintenance of the truck fleet and cars. He accom-
plished this by seeing that Tramble and Vivian properly performed their duties.
Kertis further testified that on a number of occasions Benich called his attention to
alleged deficiencies in performance of these employees as a result of which Kertis
"followed through." He also testified that Benich assisted in the interviewing of
applicants seeking truck maintenance-type jobs and made recommendations as to
whether the applicants should be employed. Kertis stated that such applicants were
principally individuals seeking temporary employment. Kertis testified about one
individual named Crack who was employed on a temporary basis because of Benich's
recommendation. However, Crack was an acquaintance of Benich's who had personal
knowledge of his qualifications for the particular temporary job that was open. Kertis
testified that he exercised the final determination as to whether employees such as
Crack were hired. Benich denied that he interviewed any job applicants and stated
that he talked to them in order to ascertain whether they possessed the mechanical
ability required in the position to be filled. In the factual circumstances outlined
above, I find it unnecessary to resolve the several apparent conflicts in testimony.
Even accepting Kertis' testimony concerning the authority of Benich as being the more
reliable and trustworthy than Benich's in this regard, I am convinced that the types
of recommendations and directions involved are not those of a supervisor but those
exercised by the more experienced employee with respect to several who are less
skilled. Accordingly, I find that Benich's direction of, and his recommendations
concerning, the other shop employees do not constitute responsible direction, or the
making of effective recommendations, respectively, within the meaning of the statute.
I therefore find and conclude that Benich is not a supervisor within the meaning of
the Act .3
2. The discharge of Benich
Division Operations Manager Passow, who had participated in contract negotia-
tions between Respondent and the other soft drink distributors on the one hand and
the Teamsters on the other, decided sometime in June that Respondent's approxi-
mately 50 percent nonunion employees should be advised as to the possibility of a
strike. On or about June 28 he called a meeting of department heads at the Cleveland
plant, and instructed them to inform the nonunion employees about the strike possi-
bility and ascertain whether there were any employees who would not report for
work in order that preparation might be made for them. Thereafter department
heads reported back to Passow that all Respondent's nonunion employees had indi-
cated they would report for work in the event of a strike.
Apparently as a consequence of Passow's instructions, Transportation Manager
Kertis held a meeting on June 30 in his office, attended by Bryan Sequain, office clerk,
Gene Murphy, day supervisor and, as found above, an admitted supervisor within
the meaning of the Act, Hosie Tramble, and Joe Benich. Benich testified that Kertis
told the assembled group that it "looked like a strike was coming off" which he had
hoped would be averted. According to Benich, Kertis stated "we could come if we
wanted to, or go out and nothing would happen to you if you chose to stay out." On
cross-examination Benich admitted that he did not state at the June 30 meeting that
he was not going to report for work the following Monday. He further testified that
he had made up his mind as early as June 1 that he would not work during the strike
and "everyone in management" knew of his intention to honor the Teamsters' picket
line. In this connection, Benich testified, without contradiction, that on or about
June 1 4 he had a conversation with Ed Kertis in the transportation office, while the
two were alone, about the question of reporting for work in the event a strike occurred.
At that time Benich told Kertis that he would not work during a strike whereupon
Kertis told him to work and there would be nothing to fear. Kertis testified that he
did not recall telling the four men at the June 30 meeting that they did not have to
report for work in the event of a strike. He testified that within his recollection "it
would be the other way." He further testified that he told the group there would be
work to be done and the Respondent expected them to report for work irrespective of
a strike. Hosie Tramble testified that he did not recall everything that was said but
he did recall that he was expected to report and his impression was that all present
were expected to report for work. In view of my disposition of the issue concerning
s Southern Illinois Sand Co., Inc ., 137 NLRB 1490 , 1492 , and case cited therein.
*Benich initially testified the date was July 1, but in later testimony changed it to
June 1.
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Benich's discharge, I find it necessary to resolve the conflict between Benich's testi-
mony and that of Kertis as to whether the latter told the four nonunion workers at
the June 30 meeting that they could remain off the job if they chose and would not be
penalized if they followed that course.
Benich did not report for work on July 1 or 2 and spent those days "out in front
with the fellows . . . in the line." On July 3, Benich talked with Night Supervisor
Gerald Daum, Route Supervisor Gene Murphy, and Transportation Manager Kertis,
who came to Benich's room. Daum asked Benich if he planned to work the next day.
Further conversation ensued and Daum, after Benich's rejoinder that he would come
in the next day for his paycheck, stated, "I am warning you." Benich replied, "Didn't
you say we could stay out if we wanted to?" Daum replied, "Forget what I said,"
Benich answered, "I can't cross the line." Daum stated that he could not see why
Benich would not work as other employees were working, obviously referring to
Tramble and the other nonunion workers who were working despite the strike.
Benich thereupon stated that he had given his word to the striking drivers and could
not cross the picket line. Kertis at that point said, "Well I am warning [you]," and
asked Murphy to "verify something" which Benich did not recall. The foregoing is
based upon Benich's uncontroverted testimony.
Operations Manager William Passow credibly testified that Kertis, who had been
directed by Passow to look for Benich and ascertain the reason why he was absent
from work on July 3, reported back the same date that Benich did not report for
work because he did not want to cross the Teamsters' picket line. Passow determined
at that time to discharge Benich because Respondent had work for him to perform
and he had refused to report for work. Benich was not officially notified of his dis-
charge until July 13 or 14 because, Passow testified, the Respondent's policy was not
to discharge an employee by letter but to explain to him in person the reasons for his
termination.
A day or two later Benich had another conversation with Kertis in the latter's car
parked at the rear of a parts store while Bryan Sequain was present. In response to
a message from Kertis, delivered by Sequain, that Kertis wanted to see him, Benich
went to the latter's car where Kertis told him he was "through." Benich asked Kertis
if he were certain as to the discharge, and the latter replied in the affirmative. There-
upon Benich reminded Kertis of prior conversations, stating, "Eddie, you told us it
didn't make any difference. Now you are telling me something else." Kertis replied,
"Everybody else is working. You just don't want to or something." Benich credibly
testified that he told Kertis he did not want to cross the Teamsters' picket line for the
purpose of working.
George Brentar, employed by Respondent as a delivery driver and steward for the
Teamster local at the Respondent's plant, credibly testified that the strike began on
July 1 and on that day Benich volunteered to assist the strikers. Alhough his services
were not utilized on July 1 or 2, Benich remained at the strike headquarters which
was located in the rear of a tavern across the street from Respondent's plant. Although
Benich did no actual picketing after the strike commenced,5 Brentar testified that he
always was within the strike area.
Benich credibly testified that on September 14 he reported for work at 7 45 a.m.
(his usual starting time was 8 a.m.). Later, upon Kertis' arrival, Benich asked him
if he had a definite starting time for him in mind. Kertis replied that he was "all
caught up," and would call Benich if he needed him. Benich was not subsequently
contacted by the Respondent and told when to report for work. Again on Novem-
ber 2, the first workday after the strike ended, Benich reported to the plant at 7 45 a.m.
As Benich did not find his timecard in the rack he asked Murphy about it. Murphy
told him to see Kertis about it. He thereupon saw Kertis who told him "I can't use
you." I find that Benich made an unconditional offer to reutrn to work on Septem-
ber 14 and again on November 2 immediately after the strike ended.
C. Concluding findings
In its brief , Respondent asserts as its primary affirmative defense that Joe Benich
was a supervisor and not entitled to the protection of the Act As noted hereinabove,
I have found and concluded that Benich was not a supervisor within the meaning of
the Act as his relationship with his alleged subordinates was that of a more experienced
employee with respect to his less skilled helpers
5 There were no strikers carrying picket signs at the plant gate during the strike. The
picket signs were posted on the adjacent fence and posts. A picket force of at least three
or four strikers was maintained, however, at all times. The strike ended about Novem-
ber 1, and work was resumed on November 2.
CANADA DRY CORPORATION 1769
The Respondent further contends that Benich was discharged because he breached
his individual contract of employment asserting that he worked under a contract
terminable at will, out of which arose an implied promise on his part to refrain from
striking as an individual and to report for work each day. It also argues that Benich,
as a nonunit employee, was legally precluded from striking over economic conditions
or issues raised by employees within a unit of which he was not a member, as the
purpose of the activity of such nonunit employee would not be for his mutual aid
and protection. The Respondent finally argues that even if it were to concede that
Benich engaged in picketing or other concerted activity, the same occurred after his
discharge.
The General Counsel argues that the Respondent, by its discharge of Benich on
July 3, violated Sections 8(a)(3) and (1), asserting that Benich honored the Team-
sters' picket line, was present with the striking employees frequently at the plant gate
thereby constituting him a sympathetic striker. He furher urges that even if
Respondent was uncertain of, or had no knowledge of, Benich's status as a striker,
such a good-faith belief would not deprive him of his status as a striking employee.
He contends further that as Benich was in fact on strike, the Respondent was under
a statutory obligation not to discriminate against him. The General Counsel finally
urges that the Respondent's discharge of Benich because of his failure to cross the
picket line and report for work and its later refusal to reinstate him constitute a viola-
tion of the statute.
I find and conclude that the Respondent's defense that Benich breached an individ-
ual contract containing an implied promise on his part to refrain from striking is
untenable. It warrants no further comment except to quote briefly from the Supreme
Court's opinion in J. I. Case Company v. N.L.R.B., 321 U.S. 332, 337, where
Mr. Justice Jackson, speaking for the Court said:
Wherever private contracts conflict with ... [the Board's] functions, they obvi-
ously must yield or the Act would be reduced to a futility.
As found hereinabove, the Respondent discharged Benich on July 3 because he,,
failed to report for work during the strike. Likewise as found hereinabove, Benich's
absence from work was due to his participation in strike and other protected, con-
certed activities. The Act guarantees employees the right to engage in such activities.
The invasion of that right constitutes a violation of the statute. The fact that Benich
was not primarily and directly involved in the disagreement that gave rise to the strike
affords no defense to the Respondent. His refusal to come to work while the strike
was in progress constituted an act of assistance to the Teamsters, the labor organiza-
tion conducting the strike, within the meaning of Section 7 of the Act. His refusal to
report for work amounted to "concerted activities" for "mutual aid and protection"
within the meaning of that section. He had a substantial and legitimate interest in the
successful prosecution of the strike because of the possible reciprocal effect improved
conditions in the truckdrivers bargaining unit might have on his own conditions of
employment.6 In the Texas Foundries, Inc. case,7 the Board, in a case analogous to
this proceeding said: 8
The Board has consistently accorded the protection of the Act to employees who
by refusing to work during the course of a strike or by other lawful means have
lent sympathy and support to striking employees, even though their strike activity
was being conducted in furtherance of a labor organization's aims in another
bargaining unit.
The foregoing principle applies irrespective of whether the sympathetic striker was
represented by the striking labor organization or was unrepresented as in the case of
Benich 9 Moreover, it is immaterial in my view whether Benich prior to the com-
mencement of the strike, had indicated his lack of sympathy in its aims , or had been
told that his absence from work because of the strike would not be excused.
I find and conclude that the work of Joe Benich ceased on June 30 as a consequence
of, and in connection with, the then current labor dispute between the Teamsters
and the Respondent; that Benich, by aligning himself with the Teamsters and by
ceasing to work during the strike, assisted the Teamsters and joined the strike and the
other protected, concerted activities of his fellow employees who were within the
8 See N.L R.B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc, 130 F. 2d 503,
505 (C.A. 2).
7101 NLRB 1642, 1683, reversed on other grounds in 211 F. 2d 791 (C A. 5).
8 See also A. C. Smith Corporation, Granite City Plant, 132 NLRB 339, 400-401, and
Montag Brothers, 51 NLRB 336, enfd 140 F. 2d 730 (C.A. 5).
0 Concrete Haulers, Inc ., et al., 106 NLRB 690, footnote 11.
1770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining unit of truckdrivers represented by the Teamsters; that Benich joined the
strike from its beginning on July 1 and not after his July 3 discharge, as alleged by
Respondent; that the strike, although of economic origin in its inception, was con-
verted to an unfair labor practice strike when the Respondent apprised Benich he was
discharged because of his refusal to cross the Teamsters' picket line and report for
work.
On the basis of all the foregoing, I conclude and find that by discharging Joe Benich
on July 3, 1964, the Respondent discriminated against him within the meaning of
Section 8(a)(3) of the Act and also violated Section 8(a)(1) of the Act.i° When,
on September 14, 1964, Benich unconditionally applied for reinstatement, he became
entitled to reinstatement as an unfair labor practice striker to his former or substan-
tially equivalent position. For reasons stated hereinabove concerning the invalidity
of Benich's discharge, the Respondent may not justify its failure to reinstate him
because he had been replaced while on strike." It is therefore further concluded
and found that the Respondent, by failing on September 14, 1964, to reinstate Joe
Benich, further violated Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities as set forth in section III, above, occurring in connection
with the operations of Respondent set forth in section I, 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 commerce and the free
flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policy of the
Act. The nature of the violations found evinces a hostility on Respondent's part to
the right of employees to engage in legitimate concerted activities for purposes of
mutual aid and protection. Accordingly, I believe a broad order enjoining all forms
of unlawful interference with rights guaranteed employees by Section 7 of the Act is
also appropriate here in order to make the remedy coextensive with the threat of
future unfair labor practices.
Having found that the Respondent discriminatorily discharged Joe Benich on
July 3, 1964, and thereafter discriminatorily refused reinstatement to Benich on
September 14, 1964, I shall recommend that the Respondent be ordered to offer Joe
Benich immediate and full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights and privileges, dismissing,
if necessary, any person hired on or after July 3, 1964, to provide a place for him.
As Benich is an unfair labor practice striker and it is clear that he would have aban-
doned the strike on September 14 when he made an unconditional offer to return to
work, I believe the period for which backpay should be awarded him should begin
from that date when he first indicated to Respondent his availability for employment.12
Accordingly, I shall recommend that Respondent be further ordered to make Benich
whole for any loss of pay he may have suffered by reason of the Respondent's dis-
crimination against him, by payment to him of a sum of money equal to that which
he normally would have earned as wages during the period starting September 14,
1964, to the date of the Respondent's offer of reinstatement, less his net earnings dur-
ing such period, in accordance with the formula prescribed in F. W. Woolworth Com-
lU The Respondent's argument that the decision of the Seventh Circuit Court of Ap-
peals in N.L R.B. V. Illinois Bell Telephone Co., 189 F. 2d 124 (C A. 7), cert. denied, 342
U.S. 885, is controlling and requires a result different from that reached herein, is not
appropriately addressed to me. As the Board has continued to adhere to the principle
set forth in Illinois Bell Telephone Company, 88 NLRB 1171, which was reversed by the
U.S. Court of Appeals in the above-cited case (see, e.g., Redwing Carriers, Inc. and Rock-
ana Carriers, Inc., 137 NLRB 1545, 1546, 1547), I have no alternative but to follow
Board precedent until the Board or the Supreme Court holds to the contrary. Insurance
Agents' International Union, AFL-CIO (The Prudential Insurance Company of America),
119 NLRB 768, 773; Iowa Beef Packers, Inc., 144 NLRB 615, 616-617.
11 The record reveals that the respondent did not replace Benich during July 1964.
In Its brief it states that he subsequently was replaced.
12 Cf. Mooney Aircraft, Inc., 132 NLRB 1194, 1208-1209, and case cited therein.
CANADA DRY CORPORATION 1771
pany, 90 NLRB 289, together with interest on such sums, such interest to be com-
puted in accordance with the formula prescribed by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716.
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. Respondent is an employer engaged in commerce within the meaning of the Act.
2. The Unions are labor organizations within the meaning of the Act.
3. By discharging Joe Benich on July 3, 1964, because of his participation in strike
and other concerted activity and his refusal to cross the picket line, Respondent vio-
lated Section 8(a) (3) and (1) of the Act.
4. By failing and refusing, upon request, to reinstate Joe Benich to the same or
substantially equivalent position held by him before the strike, Respondent further
violated Section 8 (a) (3) and (1) of the Act.
5. 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 basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that Respondent, Canada Dry Corporation,
Cleveland, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization by discriminatorily dis-
charging any of its employees because of their participation in a strike, other concerted
activities protected by the Act, and their refusal to cross a picket line.
(b) Discouraging membership in any labor organization by discriminatorily failing
and refusing to reinstate any of its employees or by discriminating in any other
manner in regard to their hire or tenure of employment or any term or condition of
employment.
(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 labor organiza-
tions, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activity for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer Joe Benich immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority or other privileges pre-
viously enjoyed, and make him whole for any loss of pay he may have suffered by
reason of his discharge, in the manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other rights under the terms of this
Recommended Order.
(c) Post at its operation at Cleveland, Ohio, copies of the attached notice marked
"Appendix." 13 Copies of said notice, to be furnished by the Regional Director for
Region 8, shall, after being duly signed by Respondent, be posted immediately upon
receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Decision, what steps the Respondent has taken to comply herewith.14
zs In the event that this Recommended Order is 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 is enforced
by a decree 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".
14 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."
1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 discourage membership in any union by discharging any of our
employees because of their participation in a strike, other concerted activities
protected by the Act, and their refusal to cross a picket line.
WE WILL NOT discourage membership in any union by failing and refusing
to reinstate any of our employees or otherwise discriminating in regard to hire
or tenure of employment of any employee.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activity for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any or all
such activities.
WE WILL offer Joe Benich immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other
privileges, and make him whole for any loss of pay he may have suffered by
reason of his discharge together with interest at the rate of 6 percent.
All our employees are free to become or remain members of any labor organization.
CANADA DRY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify Joe Benich if serving in the Armed Forces of the United
States of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465.
Alva Allen Industries, Inc. and International Brotherhood of
Electrical Workers, Local Union 814, AFL-CIO. Case No. 17-
CA-2411. September 29,1965
DECISION AND ORDER
On October 29, 1964, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its en-
tirety, 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, and the Respondent filed an answer-
ing brief.
154 NLRB No. 132.