Crescent Wharf and Warehouse Co.

National Labor Relations Board - Board Decisions

May 8, 1953

104 N.L.R.B. 860 (N.L.R.B. 1953)

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record clearly shows that the Respondent had reasonable grounds for believing that
the Union had lost its majority, but nevertheless after consulting counsel and learning that
it was obligated to bargain at least for the balance of the year following certification it
continued to bargain and thereafter signed a written agreement covering a period ending 1
year after the date of certification. Moreover, the record also shows that over a period of
years this Respondent recognized its obligation to bargain with labor organizations and that
many unions including the Charging Union herein were parties to contracts with the Respond-
ent The record further fails to show that the Respondent was responsible for the disaffec-
tion expressed by a majority of its employees toward the Union herein.
In view of the fact that the Respondent had reasonable grounds for believing that the Union
had lost its majority representation in the certified unit, I am of the opinion that under all
the circumstances shown herein , the Respondent was justified in refusing to bargain with the
Union after the end of the year following its certification as bargaining representative,
unless and until the question concerning the present status of the Union as majority repre-,
sentative is resolved in favor of the organization. After all, the Act is primarily concerned
with protecting the self-organizational rights of employees. 19
In respect to the second issue raised by the Respondent, I cannot agree that it was, in
effect, denied due process by my rulings quashing the subpenas mentioned above The
obvious purpose for serving the subpenas duces tecum on the persons named above was
clearly an attempt to litigate the question concerning compliance by the Union with the filing
requirements of Section 9 (f), (g), and (h) of the Act.
Under the Board's established policy approved by the courts this question of compliance
may not be litigated at a Board hearing, 20
It is true, in view of the principles enunciated by the United States Supreme Court in U. S. v.
Morgan, 304 U. S. 1, pertaining to the record upon which a decision is based following an
administrative hearing , that the Respondent is entitled to more information than appears in
the formal record of this case regarding compliance with the filing requirements of Sec-
tion 9 (f), (g), and (h) of the Act by the Union. The record, however, fails to show that the
Respondent attempted to obtain such information from the affidavit compliance office set
up by the Board to furnish such information, but rather sought to consume much time at a
formal Board hearing in litigating the issue of compliance. It must be considered that the
Board operates under a limited budget and should the issue of compliance be litigated in all
representation and complaint cases heard by Board agents it would impede and delay the
hearing processes to a material degree resulting in the unnecessary expenditure of large
sums of money by the Government and the parties Since a means of securing such infor-
mation is presently available to interested parties, such parties are not precluded from
controverting the original conclusions reached by Board agents in respect to compliance be-
fore the Board itself , thus affording the parties a fair hearing on the issue involved.
Consequently, there is no question pending before me which, in my opinion, would warrant
a finding that the Respondent was denied proper information concerning the compliance status
of the Union.
Upon the basis of all the foregoing and the entire record. I recommend that the complaint
herein be dismissed.
It is further recommended that unless on or before twenty (20) days from the date of this
Intermediate Report and Recommended Order, the parties or either of them file exceptions
thereto , the Board issue an -order dismissing the complaint.
19 N. L. R. B. v. Globe Automatic Sprinkler Company, 199 F. 2d 64 (C A. 3).
20N. L. R. B. v. Greensboro Coca Cola Bottling Company, 180 F. 2d 840 (C. A. 4);
N. L. R. B. v. Red Rock Co., 187 F. 2d 76 (C. A. 5).
CRESCENT WHARF AND WAREHOUSE COMPANY AND ITS
SUCCESSOR, WEST COAST TERMINALS CO., INC. and
JAMES R. McLACHLAN. Case No. Z1 -CA-1398. May 8, 1953
DECISION AND ORDER
On January 8, 1953, Trial Examiner Wallace E. Royster
issued his Intermediate Report in the above -entitled proceeding,
finding that Respondent Crescent Wharf and Warehouse Com-
104 NLRB No. 106.
CRESCENT WHARF AND WAREHOUSE COMPANY 861
panyl had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (3) and (1) of the National
Labor Relations Act and recommending that said Respondent
Crescent cease and desist therefrom and take certainaffirma-
tive action as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, Respondent Crescent and the
General Counsel filed exceptions to the Intermediate Report
and supporting briefs.!
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 Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Ex-
aminer, only insofar as they are consistent with our decision
herein.
We do not agree with the Trial Examiner that the record
establishes that Respondent Crescent, in violation of Section 8
(a) (1) and (3) of the Act, discharged the employees because
they had threatened concertedly to resign unless their wages
were increased or that the discharges were motivated by such
concerted activity. In reaching this conclusion, the Trial
Examiner found that the activity of the six employees in writing
and signing the letter of April 3, 1952, was protected activity
within the meaning of Section 7 of the Act. For reasons here-
inafter stated, we believe that the Trial Examiner erred in so
finding. Moreover, we find, contrary to the conclusions of the
Trial Examiner, that the issue as to whether or not the activ-
ity of the employees of Crescent was protected depends for
its resolution upon whether the letter of April 3 is to be
interpreted as merely a threat to resign or whether it is to
be regarded as a present resignation and abandonment of
employment.
The difference in result, so far as protection under the Act
is concerned, between a statement intended as a notice of
abandonment and a statement not intended to have such effect,
is clearly apparent from Board decisions dealing with the sub-
ject and consequences of abandonment. The Board has held that
the act of abandoning employment is unprotected activity,
whether undertaken individually or in concert.3 In conformity
with this principle, a voluntary, unconditional notice of resigna-
tion to take effect in the future, as distinguished from a con-
ditional threat to resign in the future if conditions are not
met," is a complete act, in that nothing more is contemplated
by the parties other than to await the running of time. As no
1 Hereinafter called Respondent Crescent.
!As the record and the exceptions and briefs fully present the issues involved herein and
the positions of the parties , the Respondent Crescent's request for oral argument is denied.
SStibbs Transportation Lines, Inc., 98 NLRB 422; Carthage Fabrics Corporation, 101
NLRB 541.
4The Board has held that a threat to quit or resign under such circumstances is a protected
activity. Elwood C. Martin et al., d/b /a Nemec Combustion Engineers , 100 NLRB 1118;
Southern Pine Electric Cooperative , 104 NLRB 834.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further action is anticipated or sought as a condition precedent
to the voluntary termination, the activity cannot be regarded
as one calculated to enforce employer capitulation for pur-
poses of mutual aid and protection. Accordingly, as the activity
is one of termination of employee status, it is not protected by
Section 7 of the Act.
In the light of the foregoing, we construe the letter of April
3 as a present resignation rather than a threat to resign. The
Trial Examiner found, and we agree, that the letter was not
preceded by a labor dispute. 5 Because of the absence of a
preexisting labor dispute and because the letter, itself, con-
tained no express words of condition, we are persuaded that
there is no basis for inferring that the letter was a device
selected by the 6 employees to enforce demands upon Respond-
ent Crescent. Rather we find that the letter, the language of
which is in terms of present resignation, was intended as the
manifestation of a voluntary, unconditional decision on the part
of the 6 employees immediately to resign from, and thus
abandon, their employment. The action of the 6 employees was,
therefore, not the kind of concerted activity which Section 7
protects. As this activity was unprotected we do not find that
the Respondent Crescent violated Section 8 (a) (3) and (1) of
the Act when it accepted the resignation or replaced the em-
ployee3 who signed the notice.6
Nor do we find any violation of Section 8 (a) (3) in the refusal
by Respondent Crescent to rehire or reinstate the six em-
ployees. The employment relationship having been validly
terminated by the employees' own act of abandonment, we will
not, in the absence of direct evidence of discriminatory motive
or finding of a preexisting labor dispute other than the act of
abandonment itself, impute a discriminatory motive to Re-
spondent Crescent from the act of refusal to rehire or re-
instate.'
Because we do not find that either of the Respondents vio-
lated Section 8 (a) (1) or (3), we shall dismiss the complaint
in its entirety.
5 Although the Trial Examiner found that the Crescent employees entertained the belief
that they would receive a wage increase similar to that received by Luckenbach employees,
there is no finding , and no evidence to support a finding , that Crescent employees ever made
a demand upon Crescent for such increases prior to the resignation letter of April 3, 1952.
6 The Respondent took steps to replace the employees in question and otherwise acknowl-
edged the resignation before the expiration of the working period referred to in the notice of
April 3 . The Respondent was, however , justified in accelerating such period as it might
properly waive a provision intended solely for its benefit.
7 At the hearing, the Trial Examiner dismissed the complaint as to Respondent West Coast
Terminals, Inc., on the ground that he did not find West Coast to be the successor of Cres-
cent . We do not find it necessary to pass upon the Trial Examiner 's ruling, as we find
Respondent West Coast could not have been guilty of discrimination in refusing to hire the
six employees for the same reasons that we find no discrimination in Respondent Crescent's
refusal to reinstate or rehire them.
CRESCENT WHARF AND WAREHOUSE COMPANY 863
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 the com-
plaint against Respondent Crescent Wharf and Warehouse Com-
pany, Los Angeles, California, and against Respondent West
Coast Terminals Co., Inc., Los Angeles, California, be, and it
hereby is, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by James R. McLachlan, the General Counsel for the National Labor
Relations Board issued a complaint and an amended complaint against crescent Wharf and
Warehouse Company, herein, called Crescent, and West Coast Terminals Co., Inc., herein
called West Coast, alleging that Crescent and West Coast had engaged in and were engaging
in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136. Copies
of the charges, the complaint and amended complaint , and notice of hearing were duly served.
In respect to unfair labor practices , it is alleged that Crescent discharged six named em-
ployees on April 11, 1952, because of their concerted activity and that West Coast, as a suc-
cessor to Crescent, discriminatorily refused the same individuals reinstatement.
By answer Crescent denied that it has engaged in unfair labor practices and West Coast
denied that it had committed unfair labor practices or that it is a successor to Crescent.
Pursuant to notice , a hearing was held before the undersigned Trial Examiner in Los
Angeles , California , from November 13 through 18, 1952 All parties were represented, were
permitted to examine and cross -examine witnesses and to introduce evidence pertinent to
the issues. After the close of the hearing, the General Counsel and Crescent argued on the
record. A brief has been received from counsel for Crescent.
During the course of the hearing I granted a motion by West Coast to dismiss as to it;
finding that West Coast was not a successor to Crescent and had not, itself, committed un-
fair labor practices. The facts relied upon by the General Counsel to establish West Coast
as a successor to Crescent are in essence that from May 1, 1948, through September 30, 1952,
Crescent , under acost- pluscontract , performed terminal operations for Luckenbach Steamship
Company. For this period Luckenbach appears to have exercised substantial control over the
number of employees used by Crescent and the amount of their compensation. On October
1. 1952, a similar contract covering the same operation was awarded by Luckenbach to West
Coast and the arrangement with Crescent discontinued. West Coast on that date displaced
Crescent, using substantially the same force of employees . There was , however, no arrange-
ment, contractual or otherwise, between West Coast and Crescent to accomplish this substitu-
tion. There is not the slightest evidence that West Coast is "merely a disguised continuance of
the old employer." Southport Petroleum Company v. Labor Board, 315 U. S. at 106, or even
one' to whom the business may have been transferred whether as a means of evading the judg-
ment or for other reasons." Walling v. Rueter, 321 U. S. 671, 674. Crescent transferred noth-
ing to West Coast and the latter has not been shown to be identified with Crescent in interest
or subject to Crescent 's control . Indeed, suchevidenceas there is indicates that Crescent and
West Coast are competitors, both seeking to perform the same kind of service for such
transporters as Luckenbach.
Upon the entire record in the case and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF CRESCENT
Crescent Wharf and Warehouse Company is a California corporation with its principal
office at Terminal Island, Los Angeles Harbor, California. For a period of more than 4 years
through September 30, 1952, Crescent has been engaged at Pier 228 , Terminal Island, in
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loading and discharging of cargo from Luckenbach vessels and in the receiving and delivery
of cargo from and to Luckenbach ships as a terminal operator . In the year preceding the
issuance of the complaint , more than 100,000 tons of cargo were handled by Crescent in such
operations.
Luckenbach Steamship Company is an intercoastal carrier engaged in the movement of
freight and passengers by vessel from East Coast and Gulf ports to ports on the Pacific
Coast of the United States Crescent performs a necessary and integral part of the trans-
portation service given by Luckenbach.
IL THE UNFAIR LABOR PRACTICES
Many of the office workers in the employ of Crescent at Pier 228 had at one time been
employed by Luckenbach , and in the performance of their duties had frequent contact with
Luckenbach employees . At a date which the record does not state with precision but which
appears to have been in the fall of 1950 , Crescent employees received a wage increase which
established their wage rates on a somewhat higher plane than those received by Luckenbach
employees doing comparable work . In the early months of 1952 Crescent employees were in-
formed that Luckenbach workers would be given a wage increase retroactive to January 1 of
that year and entertained the belief that they would receive the same treatment . Sometime
in March the Luckenbach increases were announced and on March 30 the Crescent employees
were informed that 3 of them would receive a slight increase Highly dissatisfied , 6 of them,
on April 3 , handed Terminal Superintendent Wotherspoon the following letter:
This is to notify you that the undersigned tender their resignation as of April 15th,
1952, in lieu of satisfactory cost of living increases.
It is felt that, since the operating department has had no cost of living increase, other
than job increases for a few , since September of 1950, the proposed increases as con-
veyed by you are not in line with the cost of living index for this period, which, we believe
is closer to 10%.
It would appear that some plan of temporary increase consistent with the rising cost of
living is in order and should have been inaugurated some time back as conditions war-
ranted.
/s/ Bernard L. McTier
/s/ Ray Caigneau
/s/ James McLachlan
/s/ George Ryan
/s/ Elsie Berkstresser
/s/ Joy Ann Henry
Wotherspoon , who appears to have been entirely in sympathy with the signers , delivered the
letter to President Bayly, advising Bayly in writing of the general dissatisfaction of the em-
ployees and of his concurrence in their reaction to the wage announcement. The following day,
April 4, Andrew Wilson, Crescent's vice president, spoke to the employees in regard to their
threatened resignation , telling them that he would like for them to reconsider , explaining that
Crescent was unable to pay them any more wages than had been promised and suggesting the
unwisdom of their proposed action Wilson said that if any of them had another job for which
he must report by April 15, it was well enough for any such person to quit and to take the
other employment, that another employer might look with some disfavor upon the collective
action of the group , even though Crescent would not . Wilson went on to say that letters of
recommendation often speak in high terms of an ex-employee up to the preposition "but"
and warned them that what follows the "but " is often what determines an applicant's success
in finding work . One of the signers of the letter of April 3 . Ray Caigneau , remarked that the
employees wanted no more than the cost-of-living wage increase to which they felt they were
entitled . The rest of the group remained silent On the same day President Bayly spoke to
Superintendent Wotherspoon in connection with recruiting replacements for the employees
who had said they would resign . Wotherspoon expressed disinterest in taking any such action
and told Bayly that he too was disposed to quit. Early in the following week Bayly and Wilson
had several conversations with Wotherspoon in an unsuccessful attempt to persuade him to
CRESCENT WHARF AND WAREHOUSE COMPANY 865
stay on the job and to recruit a new working force. On Tuesday Bayly hired a replacement for
Wotherspoon . Despite this on Wednesday , April 9, William Sheldon , Luckenbach 's district
manager, telephoned Wotherspoon in a final effort to get Wotherspoon to reconsider his deci-
sion and remarked that no six employees could tell Luckenbach what to do. On April 10
Philip Berkhoel , who had been hired as terminal superintendent , reported for work and on
that day replacements were hired for McTier , Berkstresser , and Caigneau.
In the morning of April 11 William Lawrence , regional director of a division of the Inter-
national Longshoremen and Warehousemen ' s Union, and John M . Fiesel , president of Marine
Clerks Union , an affiliate of Lawrence 's organization , called upon Bayly.
Lawrence told Bayly that he had heard of some difficulty affecting Crescent ' s office force
and that he feared a development which might curtail the employment of longshoremen and
marine clerks . Lawrence disclaimed any interest in representing the office workers and
explained that his call was solely for the purpose of avoiding the establishment of a picket
line which his members might feel obliged to respect . Bayly told Lawrence that the six
employees were determined to resign and that Wotherspoon was taking the same action
Lawrence said that his information was that the employees had reconsidered their threat and
were willing to remain Wotherspoon , McTier , Caigneau . and McLachlan were then called to
Bayly 's office . In response to a question , Wotherspoon said that he would resign in any event.
McLachlan expressed astonishment at this . Lawrence testified that he then asked the three
office workers if they wanted to continue at work , and that each of them said he did. Lawrence
then turned to Bayly , he testified , and asked that they be permitted to do so. According to
Lawrence , Bayly said that the matter was out of his hands ; that District Manager Sheldon
must be consulted . Bayly agreed , according to Lawrence, to take the matter up with Sheldon
that afternoon and to advise Fiesel of the result.
Bayly and Wilson testified that no inquiry was made by Lawrence of the employees con-
cerning their desire to continue at work in the hearing of either of them' and that the only
matter about which they were to consult Sheldon concerned a final plea in connection with
raising wages . According to Bayly, Sheldon said that he had no authority in the matter of
wages and that there was no point in his meeting with Lawrence.
At about 4 p. m. on April 11 each of the six employees and Wotherspoon was handed a
notice of termination and paid through April 15. Each of them left his work immediately. On
April 15 Caigneau , McLachlan , Ryan, and Henry came to Crescent ' s dock office and through
McLachlan said they were reporting for work . Superintendent Berkhoel answered that there
were no jobs for them.
Contentions and Conclusions
The General Counsel contends , first , that the employees were engaged in a protected con-
certed activity when they notified Crescent on April 3 of their intended resignations. The
communication to Crescent on that day is somewhat ambiguous . It admits of the interpretation
that the resignations are final because wage increases had not been forthcoming It may as
well be interpreted as saying that the resignations would occur unless satisfactory wage in-
creases were given . No change was made in the wage rates and those who replaced the six
were paid the same salaries as their predecessors . The General Counsel also attributes
significance to the remarks made by Wilson on April 4 in his attempt to persuade the em-
ployees to change their decision , particularly his reference to their collective action. I do
not believe that the case turns upon an interpretation of the April 3 letter . The evidence is
convincing enough that until April 11 Crescent justifiably believed that the employees were
firmly determined to quit unless satisfactory wage increases were given.
In this context the meeting between Bayly and Wilson, for Crescent , and Lawrence and
Fiesel , for the ILWU, assumes importance The interest of the latter 2 in this case is not
discernible and I feel that their testimony, to the extent that it appears to be based upon a
reasonably clear recollection, is to be preferred to that of Bayly and Wilson. Both Lawrence
and Fiesel testified flatly that the 3 employees present on that occasion said they were willing
to remain at work and that Bayly must have heard them . Z Indeed Lawrence and Fiesel testi-
fied that Bayly was asked that they be permitted to do so, and that Bayly said he must discuss
the matter with Sheldon. I credit the version of Lawrence and Fiesel and find that McTier,
1 Both testified , however, that they saw Lawrence confer with the three but did not overhear
what was said.
t The record does not support the assertion in Crescent 's brief that only Fiesel testified to
such effect . McLachlan. too, testified that the three employees answered Lawrence in Bayly's
office that they were willing to remain at work . McTier testified that he recalled no such
inquiry.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Caigneau , and McLachlan, in the morning of April 11 , said in the presence of Bayly and Wilson
that they were willing to remain on their jobs . On this day replacements for McTier and
Berkstresser were already at work . A successor had been hired for Caigneau but had not
yet reported.
No contention is made that employees who concertedly threaten to resign find less protec-
tion in the Act (at least to the effective date of resignation ) than those who attempt to obtain
concessions from their employer by threat of strike . In either situation the employer may
make some move to counteract the effectiveness of the threat . Thus, it was of course ap-
propriate for Crescent to attempt to recruit a new working force to replace those whom it
believed would resign . Further , it would seem that Crescent might have accelerated the effec-
tive date of the resignations for any reason sufficient to it provided there was no controlling
motivation to discriminate against the employees for their concerted action . 5 Although I am
not unmindful of Wilson's "fatherly advice" to the employees on April 4 that they might regret
their plan concertedly to quit, I am not convinced that in the circumstances the decision to
dispense with the services of McTier , Caigneau , and Berkstresser on April 11 was based on
retaliation A replacement for each had been hired . I find that their threatened resignations
were effectively accepted when the replacements were hired.
Wotherspoon testified that after it was learned that the expected wage increases would not
be granted , a situation which he described as "hectic and chaotic" developed . It is true that
Wotherspoon appears to have been speaking of his own state of mind rather than attempting
to describe conditions in the office, but undoubtedly the employees were unhappy and dis-
contented. Wotherspoon's successor, Berkhoel, testified that on Friday, April 11, the em-
ployees demonstrated their feelings by maintaining a silence toward him and the 2 replace-
ments who came to work that day. Because of this attitude , according to Berkhoel, he
recommended to Bayly that all 6 be terminated immediately. Bayly testified that he acted
upon Berkhoel's recommendation.
On this Friday, Crescent's workload was heavy. A vessel was scheduled to arrive in a
few days and much preparatory work remained to be done. All of those discharged on Friday
were competent, it was testified. Crescent found it necessary to transfer employees from
other assignments and to borrow workers from Luckenbach for several days following in
order to perform its terminal operations . Thus, it seems strange that the three for whom
replacements had not been hired were not permitted to remain in their jobs. I am convinced
that the management of Crescent was understandably , and perhaps naturally , vexed by the
threat of resignations and that it discharged McLachlan, Ryan, and Henry because of the
threat. The conduct of Crescent in this particular can be understood if not condoned. The
threat of resignation did come at an embarrassing time and the demands of the employees
appear to have been greater than Crescent felt it could reasonably meet . Wilson' s appeal
that the employees reconsider was met by a "stony silence." In these circumstances to have
accepted the withdrawal of threats to resign as if they had never been made would have
evidenced a victory over an emotional reaction unlikely of achievement But whatever
attitude of bitterness that may have been displayed by the employees during the afternoon of
April 11 must be considered in the light of the fact that they had in the morning of that day
attempted to withdraw the threat of resignation and still were unsure of their status. It is
not unreasonable , I believe , to assume that a different attitude might have been evidenced
had Bayly agreed to keep those whom he had not replaced. The employees knew that their
services were needed , had concluded that they preferred working for the wages they were
receiving than to quit , and perhaps were in a situation of embarrassment comparable to
that in which they had earlier placed Crescent. I find that McLachlan, Ryan, and Henry were
discharged on April 11 because they concertedly had threatened to resign unless their wages
were increased . I further find that at the time of discharge the threat to resign had been with-
drawn. I find that the decision to discharge was motivated by the concerted activity of the
employees , that the discharges necessarily discouraged such concerted activity , and there-
fore violated Section 8 (a) (3) of the Act.
By the discharges , Crescent denied to the employees the rights guaranteed by Section 7
of the Act and thereby interfered with , restrained , and coerced them in the exercise of such
rights in violation of Section 8 (a) (1) of the Act.
As to McTier , Caigneau , and Berkstresser , it is probable that the same motivation on the
part of Crescent was present. But I believe it only reasonable to conclude that the threatened
resignations of these 3 were effectively accepted by Crescent when, in good faith , replace-
ments for them were hired. I therefore find no violation of the Act in the discharge of the
last-named 3.
3 Betts Cadillac Olds, Inc., 96 NLRB 268.
CRESCENT WHARF AND WAREHOUSE COMPANY 867
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Crescent set forth in section II, above , occurring in connection with its
business operations described 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 fluw thereof.
IV. THE REMEDY
Having found that Crescent has engaged in certain unfair labor practices , it will be recom-
mended that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies and purposes of the Act.
I do not consider , in view of the somewhat peculiar factual setting of the unfair labor prac-
tices which occurred , that there is any substantial reason to anticipate the commission of
other such acts. Thus it will be recommended that only such conduct as has been found to
violate the Act be enjoined.
Crescent no longer operates the terminal facilities of Luckenbach and is unable to return
McLachlan , Ryan, and Henry to the jobs from which they were discharged . However, Crescent
is still an employer and has other operations at Terminal Island or in that vicinity. It will
be recommended , therefore, that Crescent make whole James McLachlan , George Ryan, and
Joy Ann Henry for any loss of pay they may have suffered by reason of the discrimination
against them by payment to each of a sum of money equal to that each would have earned
from April 11 through September 30, 1952, less the net earnings4 of each during that period.
The back pay shall be computed in the manner established by the Board and Crescent shall
make available to the Board such payroll and other records as will facilitate the checking
of the amounts due. 5 Crescent shall offer employment to each in whatever suitable vacancies
exist in its other operations . If none, Crescent shall place the name of each upon a pre-
ferential hiring list for employment in the event of such vacancy . It will be recommended
further that Crescent be required to make each whole for any loss of pay suffered by its
failure to offer employment in the circumstances described.
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. By joining together and acting concertedly in the matter of wages , McTier , Caigneau,
McLachlan, Ryan, Berkstresser , and Henry constituted themselves as a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the tenure of employment of James McLachlan , George
Ryan, and Joy Ann Henry , thus discouraging concerted activity , Crescent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By such conduct, Crescent has interfered with, restrained , and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act and thus 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 commerce
within the meaning of Section 2 (6) and ( 7) of the Act.
5. The discharges of Bernard McTier, Ray Caigneau , and Elsie Berkstresser were not in
violation of the Act.
[Recommendations omitted from publication. ]
4Crossett Lumber Company, 8 NLRB 440.
5 F. W. Woolworth Company, 90 NLRB 289.
APPENDIX
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 Relations Act, we hereby
notify you that:
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage concerted activities among you by discharges or by dis-
criminating in any other manner in regard to hire , or tenure of employment, or any
term or condition of employment.
WE WILL NOT in any like or similar manner interfere with, restrain , or coerce you
in the exercise of your right to self- organization , to form labor organizations , to bargain
collectively through representatives of your 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.
WE WILL make whole James McLachlan , George Ryan, and Joy Ann Henry for any
loss of pay sustained as a result of the discriminating against them and, if suitable
vacancies exist or occur, offer them employment.
CRESCENT WHARF AND WAREHOUSE COMPANY,
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 other material.
JOHN W. THOMAS & CO. andLOCAL 1086, RETAIL CLERKS
INTERNATIONAL ASSOCIATION, A. F. of L., Petitioner
JOHN W. THOMAS & CO.andHOTEL AND RESTAURANT
EMPLOYEES UNION, LOCAL 458, A. F. of L., Petitioner.
Cases Nos. 18-RC-1879 and 18-RC-1902. May 8, 1953
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a consolidated hearing was held before
Erwin A. Peterson, hearing officer.' The hearing officer's
rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with these cases
to a three-member panel [Members Houston, Styles, and
Peterson].
Upon the entire record in these cases, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner in Case No. 18-RC-1879 seeks a unit of
all regular and regular part-time selling and nonselling em-
ployees at the Employer's department store in Minneapolis,
Minnesota, including employees in the leased departments,
cashier-wrappers, stock employees, receiving and marking
1 Hotel and Restaurant Employees Union, Local 458, A. F. of L., intervened and thereafter
filed a petition which was duly consolidated with this proceeding.
104 NLRB No. 122.