Hildebrand Warehouse Co.

National Labor Relations Board - Board Decisions

Mar 31, 1955

111 N.L.R.B. 1313 (N.L.R.B. 1955)

HILDEBRAND WAREHOUSE COMPANY 1313
Iron Workers. However, we are not, by this action, to be regarded as
"assigning" the work in question to the Iron Workers.'
Determination of Dispute
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following determination of
dispute, pursuant to Section 10 (k) of the Act :
1. Sheet Metal Workers International Association, Local 49, is not
and has not been lawfully entitled to force or require Farnsworth &
Chambers Co., Inc., to assign the work of installing aluminum win-
dows in the Los Alamos, New Mexico, Laboratory Administration
Building of the Atomic Energy Commission, to members of the Sheet
Metal Workers rather than to employees assigned by Farnsworth to
perform such work.
2. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, the Respondent (Sheet Metal Workers) shall
notify the Regional Director for the Sixteenth Region in writing as
to what steps the Respondent has taken to comply with the terms of
this Decision and Determination of Dispute.
6 See Local Union No. 553, affiliated with the United Association of Journeymen and
Apprentices of the Plumbing and Pepefttting Industry of the United States and Canada,
A. F. L. (Alton Water Company), 106 NLRB 186.
IRA P . HILDEBRAND, D/B/A HILDEBRAND WAREHOUSE COMPANY "d
DALLAS GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 745,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, AFL
DALLAS GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 745,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, AFL and IRA P. HILDEBRAND,
D/B/A HILDEBRAND WAREHOUSE COMPANY . Cases Nos. 16-CA--688
and 16-CC-21. March 31,1955
Decision and Order
On July 6, 1954, Trial Examiner Henry S. Sahm issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent Employer and the Respondent Union had engaged in and
were engaging in certain unfair labor practices and recommending that
they cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
,hereafter, both Respondents filed exceptions to the Intermediate
Report and the Respondent Company filed a brief in support of its
exceptions.
111 NLRB No. 193.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent Union, however, complied with the Trial Exam-
iner's recommended order, and Case No. 16-CC-21 having been severed
by order of the Board on October 6, 1954, that case was closed by the
Regional Director upon his determination of complete compliance by
the Respondent Union.
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, the exceptions and briefs, and the entire record in the
case and hereby finds as follows :
The Respondent is engaged in operating a warehouse and furnish-
ing local trucking services, with its place of business at Tyler, Texas.
During 1953 the Respondent supplied trucking services in the amount
of approximately $26,000 to railroads and other firms engaged in
interstate commerce. This does not meet the $100,000 minimum re-
quirement for trucking enterprises.' In the same period the Re-
spondent derived revenue in the amount of approximately $48,000
from its warehousing operations. The figure for warehousing opera-
tions furnished firms engaged in commerce does not meet the $100,000
jurisdictional standard established for this type of enterprise in the
recent Jonesboro Grain Drying Cooperative case.' Accordingly,
without passing upon the merits of the case, we shall dismiss the com-
plaint in its entirety.'
(The Board dismissed the complaint.]
1 Breeding Transfer Company, 110 NLRB 493.
3 Jonesboro Grain Drying Cooperative, 110 NLRB 481.
3 Member Murdock joins in this dismissal only because he now deems himself bound by
the majority decisions in the cited cases, in which he dissented. For reasons stated in his
dissent in Pasco-Kennewick Building and Construction Trades Council, 111 NLRB 1255,
Member Rodgers would, in agreement with the Trial Examiner, find the Missouri Pacific
Railroad , the secondary employer in Case No . 16-CC-21, to be a person within the protec-
tion of Section 8 (b) (4) (A) of the Act. He would therefore remand this proceeding to
obtain data as to the business of the secondary employer so as to determine the applica-
bility of the jurisdictional standard recently established by the Board in Reilly Cartage
Company, 110 NLRB 1742 , for CA-CC cases.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed on October 8 , 1953, by Dallas General Drivers, Warehouse-
men & Helpers , Local 745, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, AFL, herein called the Union, against Ira P.
Hildebrand , d/b/a Hildebrand Warehouse Company, herein called both the Com-
pany and Hildebrand , the General Counsel of the Board issued his complaint on
February 3, 1954 , in Case No. 16-CA-688. The complaint , as amended on March
31, 1954, alleged the commission of unfair labor practices by the Company in viola-
tion of Section 8 (a) (1), (3 ), and (5 ) and Section 2 (6) and ( 7) of the National
Labor Relations Act, 61 Stat . 136, as amended , herein called the Act, in that the
Company refused to bargain collectively with the Union and refused to reinstate cer-
tain alleged employees to their former positions with the Company.
Upon charges filed on October 16, 1953, by Ira P . Hildebrand against the Union,
the General Counsel issued his complaint on February 3, 1954, in Case No.
HILDEBRAND WAREHOUSE COMPANY 1315
16-CC-21. The complaint alleged, in substance, that the Union had violated Sec-
tion 8 (b) 4 (A) of the Act, by picketing and other means, whereby it had induced
employees of employers doing business with Hildebrand to refuse to perform services
at the premises of those employers in order to force these employers to cease doing
business with Hildebrand.
Simultaneously with the issuance of the complaint, the Regional Director for the
Sixteenth Region issued an order consolidating these two cases, and setting a date
and place where the hearings were to be held. Copies of the charges, complaints,
order of consolidation, and the notice of hearing were duly served upon the parties.
The Company in its answer to the complaint in Case No. 16-CA-688 and the
Union in its answer to the complaint in Case No. 16-CC-21, denied generally all
material allegations of said complaints respectively, imputing to them the commission
of unfair labor practices.
Pursuant to notice, a consolidated hearing was held at Tyler, Texas, on various
dates from March 31, 1954, to April 7, 1954, inclusive, before Henry S. Salim, the
duly designated Trial Examiner. All parties were represented by counsel, were
afforded full opportunity to participate in the hearing, and to introduce relevant evi-
dence bearing on the issues. The parties failed to avail themselves of the oppor-
tunity accorded them to argue orally at the end of the hearing, and only the Com-
pany filed a brief thereafter.
Upon the entire record in the case, upon consideration of the arguments and
motions of counsel, including the Company's brief and citations of cases alleged to
be diapositive of the issues in this consolidated case, and from his observation of the
demeanor of the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. JURISDICTION
A. The Union
It is conceded and found that Dallas General Drivers, Warehousemen & Helpers,
Local 745, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, AFL, is a labor organization within the meaning of Section 2
(5) of the Act.
B. The business of Hildebrand Warehouse Company
Ira P. Hildebrand, an individual, doing business as Hildebrand Warehouse Com-
pany, whose place of business is located in Tyler, Texas, is engaged in the operation
of a warehouse and in the furnishing of local trucking services. Certain railroads
and trucking companies mentioned in this proceeding, particularly the Missouri
Pacific Railroad, Cotton Belt Railroad,' and the Missouri Pacific Freight Transport
Company 2 with which Hildebrand does business are engaged in commerce within
the meaning of the Act. During the year ending December 31, 1953, Hildebrand
furnished truck pickup and delivery services for the Missouri Pacific Railroad, Acme
Fast Freight, and National Carloading Corporation pursuant to individual contracts
with each of said companies which are all interstate carriers, such services being
valued in excess of $26,000. In addition, Hildebrand supplied warehouse services
to other concerns during the same period of time value in excess of $48,000. B, rea-
son of the foregoing facts, which Hildebrand admits are true, it is found that Ira P.
Hildebrand, d/b/a Hildebrand Warehouse Company is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
The Issues
After the Union was certified, negotiations commenced in July 1953 with the Com-
pany for the eventual purpose of negotiating and signing a collective-bargaining con-
tract. Various conferences were held by the parties but no agreement was reached.
The employees went on strike on August 31, and began to picket Hildebrand's ware-
'The Cotton Belt Railroad has a spur track servicing the Company's warehouse. The
Company does not have a delivery contract with this railroad but It does deliver freight to
the railroad's loading dock
2 The Missouri Pacific Freight Transport Company is referred to also in the record and
in this report both as the Missouri Pacific Freight Transportation Company and the Mis-
souri Pacific Freight Lines
344056-55-vol. 111-84
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house and also the Missouri Pacific Railroad Station and freight depot in Tyler for
whom Hildebrand performed pickup and delivery services. The Union ceased its
picketing on February 8, and on February 15, 1954, all of the striking employees
applied for reinstatement. One was reinstated on March 22, but not the remaining
four employees because the Company alleged there were no jobs available for them
due to the strike causing a decrease in the volume of its business.
The salient questions to be decided in this case are:
(1) Whether the Company has refused to bargain with the Union.
(2) Whether the Union's picketing of the Missouri Pacific Station induced the
railroad's employees to refuse in the course of their employment to perform services
at the railroad station in order to compel the railroad to cease doing business with
Hildebrand in violation of Section 8 (b) (4) (A) of the Act.
(3) Whether the Company has refused to reinstate these striking employees within
the meaning of Section 8 (a) (3) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Refusal to bargain
1. Designation of the Union
On June 5, 1953, a Board election was held to determine whether the employees
of the Company desired to be represented by a bargaining representative, and if so,
by whom. A tally of the ballots revealed that of the 11 eligible voters, 6 employees
cast their votes for the Union, 4 voted against the-Union,-and 1 of the employees
refused to vote. As a result of this election, the Union was certified by the Board
on June 12, 1953, as the bargaining representative of the Company's employees in a
unit found appropriate for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act .3
2. The bargaining conferences prior to the strike 4
Immediately following the Board's certification, the Union through C. M. Rose-
borough, business representative of the Union, contacted Ira P. Hildebrand. Rose-
borough was advised by Hildebrand that Attorney Gordon L. Brelsford was author-
ized to handle all negotiations for him whereupon a meeting was arranged for July
14, 1953, at Brelsford's office. Union Representative Roseborough, accompanied by
Joe Morgan, representative of the Southern Conference of the Teamsters Union, and
W. L. Piland, business manager of Local 745, met with company representatives,
Attorneys Brelsford, Frank L. McClendon, and Mr. Ira P. Hildebrand.
At that time, the Union submitted a copy of a proposed contract to the company
representatives, the provisions of which were discussed generally and paragraph by
paragraph with particular attention being devoted to the wage scale proposed by the
Union. The Union's proposed wage scale ranged from a minimum of $1.52 per hour
to a maximum of $1.62 depending on the particular classification of work.5 The
Company was paying its employees 85 cents to 95 cents per hour without regard to
classification of work performed.
The Company asserted it could not afford to pay the wages demanded by the
Union contending that because of lack of earnings, even Hildebrand had not been
able to draw wages from the business. Moreover, the Company claimed that its pres
ent wage scale was the prevailing amount of wages being paid by its competitors in
3 It was stipulated that the Company cooperated with the Board in arranging for a con-
sent election pursuant to which the Company entered into a consent-election agreement
with the Union No objections were filed to the election. Although it was not stipulated,
the appropriateness of the unit is not contested and is found to be all the Company's em-
ployees at its warehouse exclusive of office clerical employees, plant clerical employees,
guards, watchmen, and supervisory employees.
I There is no substantial dispute over the basic facts concerning the alleged violations of
Section 8 (a) (5) The controversy is mainly as to the legal conclusions to be drawn
from the facts. Respondent Company called only one witness, McClendon, with respect
to this charge, and his testimony which is limited to the first two bargaining conferences
does not contradict in any material respect the General Counsel's witness account of these
two negotiating conferences McClendon, the Company's witness and Roseborough, the
General Counsel's witness were in general agreement as to what transpired at the first two
meetings between the parties The Company called no witnesses with respect to the re-
maining negotiating conferences which were held subsequent to the first two meetings.
5 Different rates of pay were provided, the variations resulting from differences in the
type of work which would be performed. _
HILDEBRAND WAREHOUSE COMPANY 1317
the locaiity.e When no definite agreement was reached with respect to any provi-
sions of the Union's proposed contract, the Company requested additional time to
study further the Union's proposals whereupon it was decided to meet at a later
date.
The second meeting was held at Brelsford's office about the middle of August.
Present were Roseborough for the Union and Brelsford and McClendon for the
Company. At the outset of the meeting, Brelsford opined that the provisions of
the proposed union contract envisaged a large company and were not intended to
apply to a small business such as Hildebrand's.7 The Union's proposed contract
was then cursorily reviewed paragraph by paragraph but again the Company pleaded
its inability to pay the wages demanded by the Union. The Union then suggested
that discussion be confined to noneconomic matters and matters not involving mone-
tary considerations. In other words, those provisions of the proposed agreement
which would not entail additional expense to the Company and that the financial pro-
visions, such as wages, should be set aside for consideration at a later time. The
Company, however, would not consent to this procedure and contended that every-
thing depended on first reaching an agreement on the wage scale. When the con-
ference floundered on this issue, the second meeting was brought to a close.
The third meeting was held on or about August 21 at Brelsford's office. The only
participants were Brelsford and Roseborough. As at the previous meeting, the
Union acknowledged that perhaps some of the provisions of the proposed union
agreement did not apply to a business of the size of Hildebrand's and suggested, there-
fore, that discussion first be confined to the nonfinancial provisions of the contract
before they proceeded to discuss the question of wages. The Company, however,
demurred, on the ground that' it would serve no useful purpose to discuss the non-
financial provisions because, it contended, agreement would have to be reached
first on the wages which should be paid. The Company again contended it was in
such a precarious financial condition that its earnings did not even warrant Hilde-
brand drawing any wages. Moreover, the Company claimed it was so heavily in-
debted on loans made it by various banks that it would be unrealistic to postpone
discussion of the wage question. Thereupon the conference terminated with no
agreement being reached on any of the issues.
The fourth meeting was held on or about August 28 at Brelsford's office. This
session was short and inconclusive. The same grounds were explored again with
the parties still in complete disagreement. The Company, however, at none of
these four meetings, made any counterproposals to the wage proposals of the Union.
This meeting broke up on the following note when Roseborough said: "I am going
right back to these men [employees] and tell them exactly what you said, and I
wouldn't be surprised but what they would take a strike vote." To that parting
remark, Brelsford rejoined, "Well, let them go ahead and strike."
At a union meeting on the evening of August 28, attended by five of the Com-
pany's employees, a report was made to them by Roseborough on his negotiations
with the Company. Thereupon a secret vote was taken on whether to call a strike.
The results of the balloting showed a unanimous decision by the five employees to
strike.
On the same night that the strike vote was taken, a letter was sent by the Union
to the Company advising that:
.. . unless on or before 5:00 P. M., Saturday, August 29th, we have reached an
acceptable contract providing for substantial wage increases, please be advised
that your employees and this Union reserve the right to strike, picket, and take
such other lawful action as is necessary to see that the public is advised of your
refusal to pay the wages which your employees desire or to grant the other
requests of your employees.8
By identical letters dated September 10 and delivered the same day, the Company
wrote striking employees Brooks, Freeney, Miller, Nolen, Tucker, and Wheeler that
unless they reported for work by September 14, it would be necessary to secure other
employees to do the work. On the same day, the Union wrote the Company pro-
e There is an oblique reference in the record to the effect that during the course of the
fourth meeting between the parties, discussion was had as to the Company conducting a
study of the prevailing wages paid to employees of competitors doing similar or comparable
work in the area
4 At subsequent meetings, the Union tacitly acknowledged this to be so and expressed its
willingness to modify the terms of the proposed agreement, which was evidently the
Union's "standard" contract, in order to conform it to the type of business conducted by
Hildebrand
8 Picketing of the Company's warehouse commenced on August 31.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testing against the contemplated action set forth in the letters to the above-named
striking employees and requested a meeting with the Company on September 14.
3. Bargaining conferences subsequent to the strike
Pursuant to this request from the Union, a meeting was held on September 14-
which was attended by Attorney Wells, Mr. Piland, and Mr. Roseborough for the
Union and Attorneys Brelsford, Flock, and Mr. Hildebrand for the Company.9
The Union opened the meeting by suggesting a paragraph by paragraph analysis
of the noneconomic provisions of its proposed agreement, setting aside for later con-
sideration those provisions which had to do with financial matters. The Company
however, rejected this suggested procedure and contended that the negotiations
hinged on the Union's wage demands, asserting that its poor financial condition
negated the possibility of any wage increases. The Union then asked the Company
if it would agree to the Union examining the Company's books or to have them
audited. The Company would not agree to this request. The Union explained the
law requires that when a claim of financial inability to grant economic demands is
made, a bargaining agent is entitled to examine the books of a company making such
a claim. To this, Brelsford, according to Roseborough, replied that he would not
submit the Company's books unless he was shown that the law required this to be
done.19 There was also some discussion of article VII of the Union's proposed
agreement "Seniority" but nothing was agreed to with respect to this provision.
Just before the meeting concluded, the Union requested the Company to submit
counterproposals. According to Roseborough, the union representative, Brelsford
speaking on behalf of the Company, replied, "[The Union] were the ones that
wanted the contract and the Company did not want it, and he didn't see the reason
for submitting a general proposal." Brelsford then stated that he would study the
letter sent by the Union which cited authorities for the.proposition that the Union
was entitled to examine the Company's books of account and he would notify the
Union whether he would accede to its request to furnish certain data with respect to
the Company's financial condition.
The Company replied to this letter on September 16 stating that it believed the
cases cited by the Union as being authority for the furnishing of the requested finan-
cial data were not "in point." The letter went on to state that it would cost the
Company at least $1,500 to supply this data and inquired if the Union was prepared
to bear this cost!
The next meeting, the sixth, was held on September 23 at Brelsford's office and
was attended by Wells and Roseborough for the Union and Brelsford for the Com-
pany. When Brelsford asked Wells if the Union would agree to pay $1,500 for the
audit of the Company's books, Wells replied in the negative but went on to suggest
that the Union would be willing to conduct its own audit of the Company's books.
The Company would not agree to this suggestion. The Union then indicated it might
agree either to assume the costs of paying for a partial audit or that it would be
acceptable to the Union if the Company would merely have prepared a profit and
loss statement. Nothing definite was agreed upon as to how the costs of furnishing
the requested data with respect to the Company's financial condition would be
handled." The Company then asked the Union to submit its minimum demands
9 Brelsford, according to Roseborough, stated at this September 14 meeting that he
had not had an opportunity to read the Union's proposed agreement (General Counsel's
Exhibit No. 2) which was submitted to him on July 14. When Wells, the Union's attorney,
suggested that the union negotiators would delay proceeding with the meeting until
Brelsford had read the provisions, Brelsford indicated that would be unnecessary stating,
"You just tell me what is contained in the contract and we will talk about it."
10 The Union in order to allay the skepticism expressed by Brelsford sent the Company
a letter on September 14 citing court and Board decisions purporting to hold that an em-
ployer contending he is financially unable to raise wages must demonstrate the truth of
his assertion by furnishing the union information relevant to determining the truth of Its
contention The letter also requested the Company to furnish the Union with certain
specified statements reflecting the financial condition of the Company. The Union's letter
of September 14 (General Counsel's Exhibit No. 6) -also requested the Company to submit
a written counterproposal indicating specifically the wages and working conditions to
which it would agree to be bound.
11 Between September 23 and October 7, Roseborough telephoned Brelsford on two occa-
sions to inquire if the financial reports were ready. In one of these telephone conversa-
tions with Roseborough, Brelsford stated that a financial statement could be prepared for
about $50 and asked if the Union would agree to pay for it. Roseborough replied that he
believed the Company would agree to assume these costs.
HILDEBRAND WAREHOUSE COMPANY 1319
in writing. Immediately thereafter, and at the same meeting, the Union proceeded
to comply with this request and handed a list of its demands to the Company. The
conferees then proceeded to discuss the listed demands seriatim. Although no
agreement was reached, the following provisions listed in the Union's minimum
demands were discussed- union recognition, the workweek, hours of work, overtime,
holiday, vacation, and sick pay, seniority, checkoff of monthly union dues, and the
Company giving consideration to prospective employees being hired through the
employment facilities of the Union. However, during the time these demands were
being discussed, the Company kept referring to and reiterating the contention it made
at previous meetings that discussion of these demands would be futile unless and until
the basic problem of wages could be settled because the Company's poor financial
condition could not economically justify an overall increase in wages. Then the
Union asked the Company if it had a counterproposal to offer to which the com-
pany representative replied, according to Roseborough, "that it would see what [it]
could do about it." 12 At this point, the September 23 meeting concluded and on
October 8, the Union filed a charge under the Act alleging that the Company had
refused to bargain with it.13
By letter to the Union dated October 10, the Company acknowledged receipt of
a copy of the charge and stated what efforts were being made to obtain the financial
data requested by the Union. The letter also stated that the Company was willing
to meet with the Union at any time convenient to the Union.14 It is found that the
first time that the Company agreed to furnish the requested financial data was when
it wrote the above-mentioned letter on October 10, 2 days after the charge was filed
with the Board.15
The next meeting was held on November 10 at the office of the Regional Director
of the National Labor Relations Board in Fort Worth,Texas. In attendance were the
Regional Director, members of his staff, Brelsford and Flock for the Company, and
Attorney Houston Clinton, Jr., Piland, and Roseborough for the Union. The gen-
eral aspects of the case were reviewed but nothing definite agreed upon except the
Company stated it would agree to a provision in any contract that might be signed,
recognizing the Union. When it was suggested that the conferees proceed to deter-
mine what additional provisions could be agreed upon, Brelsford stated that since
Hildebrand was not present he was not ready to proceed with negotiations at that
time. Brelsford agreed, however, to submit a counterproposal at the next meeting.
The conference then adjourned with the understanding that the next meeting would
be held on November 20 at Brelsford's office in Tyler, Texas.
The meeting on November 20 which commenced at 10 a. in. was attended by Clin-
ton, Roseborough, Piland, and Lacy for the Union and Brelsford, Flock, and Hilde-
brand for the Company. Since the courts and the Board have made it abundantly
clear that the determination of whether there has been compliance with the obliga-
tion to bargain in good faith, depends ultimately on the facts and circumstances of
a particular case, a detailed account will be given of the step-by-step negotiations at
this meeting.
At the outset the parties exchanged proposals, the Company submitting a com-
plete counterproposal in contractual form and the Union submitted its second pro-
posal. The Company also furnished the Union with a statement of operations of the
Company, covering the period June 1, 1953, through October 31, 1953. This state-
ment showed a net profit in the amount of $4,082.47 for that period of time but does
not include a salary allowance for Ira P. Hildebrand nor do the records show any
withdrawals from operations by Hildebrand during this 5-month period.
The first matter discussed was the recognition clause. While this provision in the
Company's counterproposal was being analyzed, the conferees' discussion brought
in the question of job classifications. The Company argued that their business was
11 Brelsford in cross-examining Roseborough premised some of his questions on the state-
ment that he did agree to submit a counterproposal Such statements enmeshed in a ques-
tion, and asked during cross-examination and not otherwise corroborated, and in many
instances denied by the witness, cannot be the predicate for a finding of fact. The same
characterization is applicable equally to many other questions which were asked by
Brelsford on his cross-examination of witnesses who testified with respect to this aspect
of the case
13 By letter dated October 7, the Union notified the Company that it was filing a charge
against it.
14 On or about October 14, the Company gave to the Union a tabulation, showing, among
other things, the hourly wage rates paid to its employees.
15 The requested financial statement of the Company was furnished to the Union on
November 20 at the Company's expense.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
small and there existed an intimate employer-employee relationship with employees.
doing the various jobs that were assigned to them from day to day. Consequently,
the Company contended that all the employees performed every type of work re-
quired of them and were not confined to one type of work but were interchangeable,
so that the Company could not operate with classifications. It was decided to pass
over this issue in order to give further study to the problem.
Paragraph numbered 1 of the Company's proposal which pertains to the Union
using its best efforts to promote the general welfare of the employees and the effi-
cient operation of the Company's business was agreed to by the parties.
Paragraph numbered 2 of the Company's proposal which provides, among other
things, that the agreement shall not apply to "temporary or seasonal employees" was
next considered. This provision was passed over in order to afford the Union an
opportunity to consider the effect of the phrase "temporary or seasonal employees."
Paragraph numbered 3 of the Company's proposal, generally referred to as the
"management prerogative clause," was considered next which provides, in substance,
that the Union recognizes the Company's right to hire such employees as it sees fit
and to promote or transfer such employees and to discharge or discipline them for
cause. The Union raised the question of seniority and job classifications and their
application to this provision. The problem was discussed but no agreement reached
whereupon this matter was set aside for future discussion.
Paragraph numbered 4 of the Company's proposal which provides that neither
party will interfere with specified rights of the employees was discussed and agreed
to by the conferees.
Paragraph numbered 5 of the Company's proposal provides for sick leave and
funeral leave without pay whereas the Union insisted that such leave be granted with
pay. No agreement was reached.
The parties postponed discussion of paragraph numbered 6 of the Company's pro-
posal "holidays" and passed on to paragraph numbered 7 which pertains, in part, to
hours of work. The Company's proposal provided for a 40-hour week with all time
worked in excess of that being paid for at 11/2 times the regular rate of pay. The
Union wanted a provision written into the contract that the employees would be
guaranteed 40 hours' work each week, 8 hours a day, 5 consecutive days with time
and a half pay after 8 hours. The Company argued that the nature of its business.
was such, in that its working hours were so irregular, that it would be impossible for
it to agree to a guaranteed workweek of 40 hours. No agreement was reached.
The grievance procedure established by paragraph numbered 8 of the Company's
proposal was discussed next. The Union proposed that this paragraph should pro-
vide that the Union shall have the right to designate one of the employees as the
union steward. The Company stated that they would take the proposal under con-
sideration.
The next matter discussed was article V, paragraph (e) of the Union's proposal
which provides that the Company shall advertise on its bulletin board any vacancies
that may occur and afford its employees opportunity to file applications for such
vacancies. The Company objected to this proposal contending that this infringed
on its management prerogatives and also it complicated the job-classification prob-
lem which was discussed earlier. The matter was left in abeyance.
The first thing discussed at the afternoon session of this November 20 meeting
was the question of holidays. The Company's proposed agreement provided for 5
holidays without pay but if in the event the employees worked on holidays they
would be paid double the straight time wage rate, whereas the Union requested 7
holidays with pay. No agreement was reached on this provision although the Com-
pany indicated that it might agree to a few paid holidays.
The issue of wages was then discussed. Paragraph numbered 7 of the Company's
proposal provided that all employees shall receive a uniform hourly rate of 88 cents
an hour. When it was pointed out to the Company that under this proposal the five
striking employees would be taking an aggregate overall reduction in pay from what
they received prior to the strike,16 the Company stated that was true but it desired
to equalize the wage-rate structure because all the employees were doing the same
type of work and should receive, therefore, a uniform wage. No agreement was
reached.
Paragraph numbered 9 of the Company's proposal which provides that the Union
will not call a strike against the Company prior to June 1, 1954, was next on the
agenda. The Union countered this demand by requesting that, in addition, the
Company should agree to a provision prohibiting lockouts. No agreement was
reached.
"Prior to the strike Brooks and Freeney received 95 cents an hour, Wheeler 90 cents,
and Miller and Tucker 85 cents.
HILDEBRAND WAREHOUSE COMPANY 1321
The conferees then discussed article XVI of the Union's proposal which provides
for a health and welfare fund to which the Company would contribute $2 per week
for each employee. The Company contended that it could not afford to contribute
to this fund because of its poor financial condition. No agreement was reached.
The parties then discussed vacations for the employees. The company proposal
made no provision for vacations whereas the Union's proposed contract would grant
employees vacations with pay. This issue was passed over when the conferees were
unable to agree.
When the subject of checkoff of union dues was discussed, the Company refused
to agree to it, stating it was a matter that the Union should take care of itself.
The discussion then reverted to wages and the Company made it clear that there
would be no wage increase at this time again stating that it could not afford to do so.
The meeting was then brought to a close with the understanding that a meeting would
be held in about a week.
The last conference was held on November 27 at Brelsford's office. The Company
was represented by Brelsford and Flock; the Union by Clinton, Roseborough, Lacy,
and two of the striking employees, Wheeler and Freeney. The first matter discussed
was vacations. The Union requested paid vacations whereas the Company demanded
that the employees' vacation be without pay. The two employees who attended this
meeting stated that Hildebrand had been giving them paid vacations whereupon
Brelsford stated that they should set this subject aside until he checked with Hilde-
brand to see what the practice was in this regard.
The conferees then discussed the question of holidays. The Company, through
Brelsford, consented to three holidays with pay: July 4, Labor Day, and Christmas,
but the Union requested additional paid holidays. No agreement was reached.
The number of hours to be worked each week and lunchtime and health and wel-
fare fund provisions were discussed next but no agreement was reached except that
the Company agreed to 1 hour for lunchtime.
Wages were discussed next. The Union agreed to lower its hourly wage rate de-
mand from $1.52 to $1 17 but the Company insisted as it had at all previous confer-
ences that no raise could be given, stating that it could only afford to pay its employees
a uniform rate of 88 cents an hour. As explanation for this position , Brelsford stated
that the Company was paying more than its competitors. Later at this meeting, he
stated that he would check to ascertain how the Company's wage scale compared
with other warehousing and trucking operations in the locality and if he determined
the Company was paying less than the prevailing wages in the area, the Company
would increase its offer. The meeting closed with no agreement for a conference at a
future date. No further meetings took place before the complaint in this case was
issued on February 3, 1954.
Contentions
The General Counsel contends that the Company violated Section 8 (a) (5) of the
Act by refusing to bargain in good faith with the Union. The General Counsel,
however, has not submitted a brief so that the Trial Examiner does not have the
benefit of a formalized statement giving the specific reasons for this contention. The
Company denies in its brief that its conduct during the negotiations constituted a
refusal to bargain contending that it fully discussed and negotiated with the Union
on all phases of the matters in dispute.
Concluding findings
The certification of the Union as the statutory bargaining representative of the
employees imposed upon the Company the duty of entering into "sincere negotia-
tions with the representatives of the employees." 18 This obligation as defined in
Section 8 (d) of the Act includes:
. . . the performance of the mutual obligation-of the employer and the repre-
sentative of the employees to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and conditions of employment,
or the negotiation of an agreement, or any question arising thereunder, and
the execution of a written contract incorporating any agreement reached if re-
quested by either party, but such obligation does not compel either party to
agree to a proposal or require the making of a concession... .
17 The rate of pay to be $1 per hour beginning with the effective date of the agreement
with an increase to $110 per hour 6 months later. (General Counsel's Exhibit No. 17.)
11 N. L R B v Bides Coleman Lumber Co., 98 F 2d 18, 22 (C. A. 9).
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this case, where there was no refusal by the Company to meet and bargain
with the Union, and the parties had nine meetings over a period of 4 months with-
out agreement, determining whether or not the Company had participated in col-
lective bargaining with the good faith required by the Act is a difficult task. "Bar-
gaining in good faith" is one of the most elusive concepts in the field of labor
relations.
.. . the dividing line between the right to the exercise of good faith and inde-
pendent judgment and to maintain the resultant position with firmness, with no
obligation of retreat, and nevertheless obey the statutory command to bargain
in good faith must, in the nature of such right, and yet obligation, be frequently
difficult of ascertainment and establishment.19
As the court said in N. L. R. B. v. Reed d Prince Manufacturing Company, 205
F. 2d 131, 134 (C. A. 1), cert. denied 346 U. S. 887:
It is true, as stated in N. L. R. B. v. American National Ins. Co., 1952, 343 U. S.
395, 404, 72 S. Ct. 824, 829, 96 L. Ed. 1027, that the Board may not "sit in
judgment upon the substantive terms of collective bargaining agreements." But
at the same time it seems clear that if the Board is not to be blinded by empty
talk and by the mere surface motions of collective bargaining, it must take some
cognizance of the reasonableness of the positions taken by an employer in the
course of bargaining negotiations. See Wilson ct Co., Inc. v. N. L. R. B., 8 Cir.,
1940, 115 F. 2d 759, 763. See also Smith, The Evolution of the "Duty to Bar-
gain" Concept in American Law, 39 Mich. L. Rev. 1065, 1108 (1941). Thus
if an employer can find nothing whatever to agree to in an ordinary current-
day contract submitted to him, or in some of the union's related minor requests,
and if the employer makes not a single serious proposal meeting the union at
least part way, then certainly the Board must be able to conclude that this is at
least some evidence of bad faith, that is, of a desire not to reach an agreement
with the union. In other words, while the Board cannot force an employer to
make a "concession" on any specific issue or to adopt any particular position,
the employer is obliged to make some reasonable effort in some direction to
compose his differences with the union, if § 8 (a) (5) is to be read as imposing
any substantial obligation at all.
The test to be applied is whether it is to be inferred from the totality of the Em-
ployer's conduct that it went through the motions of negotiations as an elaborate
pretense with no sincere desire to reach an agreement if possible, or that it bargained
in good faith but was unable to arrive at an acceptable agreement with the Union.
In other words, a refusal to bargain is usually based on a pattern of conduct rather
than on a single act.
For all the Company's meetings with the Union, its full discussions of the issues
upon which bargaining was had and seeming concessions on minor matters, indicia
which the Trial Examiner has considered, still it is concluded upon the totality of its
conduct that the Company was going through the motions of collective bargaining
and engaging merely in surface bargaining with the intention of avoiding an agree-
ment with the Union. This conclusion is based not on any one of the factors
which will be discussed below but on the Company's overall conduct.
Although the Union submitted a copy of its proposed contract as a starting basis
for negotiations on July 14, the company representatives as late as September 14, at
the fifth meeting between the parties, had not yet read the provisions of this proposed
contract. Brelsford, the company representative, when the Union suggested at this
fifth meeting that they would withdraw from the meeting in order to afford him an
opportunity to read and study the Union's demands which were embodied in its pro-
posed agreement, told the union representatives that would be unnecessary stating
"you just tell me what is contained in the contract and we will talk about it." This
delay of over 2 months in which time he had not even read the Union's proposed
agreement, together with the other techniques described below, which were em-
ployed by the Company at these five bargaining conferences do not bespeak that
"sincerity of effort and intention to arrive at and consummate an agreement" which
the Court of Appeals for the Second Circuit in N. L. R. B. v. National Shoes, Inc.,
208 F. 2d 688, 691, has stated are the requirements of good-faith bargaining.
Although the process of collective bargaining does not follow an invariable ortho-
dox procedure, yet the usual pattern followed is to present, consider, and discuss
the proposals of both parties. Areas of disagreement are eliminated by progressing
from noncontroversial to more controversial subjects until the parties crystallize the
19 Majure Transport Co v N L R. B., 198 F. 2d 735, 739 (C. A. 5).
HILDEBRAND WAREHOUSE COMPANY 1323
real issues. When these important issues evolve, the parties eventually by persuasion,
adjustment, and compromise, progress toward a middle ground. The Company, how-
ever, doomed these protracted negotiations to foregone failure by adamantly insisting
from the outset of negotiations that the financial considerations first be settled before
the nonfinancial or less controversial bargaining subjects be discussed. The effect
of this manner of proceeding with the negotiations which the Company adamantly
insisted on from the inception of the bargaining meetings was to freeze solidly the
Company's bargaining position and thus foreclose the possibilities of give-and-take
incident to normal bargaining negotiations. This was not the sort of good-faith bar-
gaining envisaged by the Act. These stultifying tactics compounded the areas of
disagreement and eventually led to the collapse of all negotiations.
It will be recalled that the Company in all its various meetings with the Union
beginning on July 14, although repeatedly requested by the Union to make a counter-
proposal, never made a counterproposal until November 20. Then too, when the
Union requested the Company at the September 14 meeting to submit counter-
proposals, the company representative commented that since it was the Union who
wanted the contract and not the Company, that "it [the Company] didn't see the
reason for submitting a general proposal." 20
At the sixth meeting on September 23, the Union again requested the Company
to submit a counterproposal to which the Company made the noncommittal reply
that it would see what it could do about it. When the Company adopted this nega-
tive attitude that it had no affirmative duty to do anything in negotiations and that
the, initiative lay with the Union and refused to submit any counterproposals from
July 14 to November 20, and then only at the suggestion of the Regional Director's
staff, it is a reasonable conclusion and so found that this is an indication the Company
was not bargaining in good faith.
The Company was required in a very real sense to undertake to discover with the
Union certain common grounds as may exist between the parties. The trier of the
facts must take some cognizance of the reasonableness of the position taken by the
Company in the course of the bargaining negotiations. Thus, where as here, the
Company found nothing of substance which it could agree to in the contract sub-
mitted to it except in minor requests, and the Company made not a single serious
proposal in meeting the Union at least part way, then certainly it can be concluded
that this is at least one evidence of a desire not to reach an agreement with the
Union. While the Company cannot be forced to make concessions on specific issues
or to adopt any particular position, the Company, nevertheless, under such circum-
stances was obligated to make some reasonable effort in some direction to compose
its differences with the Union if Section 8 (a) (5) of the Act is to be interpreted as
imposing any substantial obligation at all.21 The Company, under these circum-
stances, had a duty to offer counterproposals when rejecting the Union's proposals,
and the fact that it did not submit such counterproposals until more than 3 months
after bargaining negotiations began, might very well, be characterized as dilatory
tactics indicative of bad faith. It is true that the Company was free to reject the
Union's demands in the exercise of its business judgment but the failure to do little
more than reject them was indicative of a failure to comply with its statutory require-
ment to bargain in good faith 22
The Company's contention that its inability to reach agreement with the Union
was justified by the alleged fact that the parties had reached an impasse is without
merit. Before an impasse may be raised as a defense to a charge of a refusal to
bargain, it must appear that bargaining was conducted in good faith.23 Good faith,
however, is a question of fact to be decided in each case on the totality of relevant
evidence and turns on the circumstances surrounding bargaining negotiations in each
case 24 However, the evidence in this case supports the finding that the Company's
entire course of conduct displayed a fixed intention merely to preserve the appear-
ance of bargaining while avoiding any actual negotiation in good faith or effort to
reach a mutually acceptable agreement.
41 See Landis Tool Co., 89 NLRB 503, where it was held that a refusal to make a counter-
proposal when requested is evidence of bad faith.
N L R B. v. Reed & Prance Mfg. Co., 205 F. 2d 131, 134 (C. A. 1).
N L. R B v. Century Cement Mfg Co., Inc, 208 F. 2d 84, 86 (C. A. 2), enfg. as mod.
100 NLRB 1323
as N L. It. B v. Andrew Jergens Co, 175 F. 2d 130, 136 (C A. 9).
a* N. L. It. R v. Whittier Malls Co, 171 F. 2d 474, 478 (C. A 5) ; N L. R B. v. Stone-
wall Cotton Mills, 129 F 2d 629, 631 (C. A. 5), cert. denied 317 U. S. 667; N. L. R. B. v.
Athens Mfg. Co., 161 F. 2d 8 (C. A. 5).
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARi)
Moreover, the record shows that well before the termination of the negotiations
or the alleged impasse, the Union showed itself unwilling to compromise on the
sine qua non in these negotiations, namely, wages, as well as on other matters. In
fact, the Union lowered its demands for an hourly wage rate from $1.52 to $1. By
repeatedly requesting the Company to submit counterproposals, the Union "made
clear that the union demands were subject to bargaining." 25
"The whole end and aim of collective bargaining is to reach an agreement if pos-
sible." 26 That aim, from the standpoint of importance in this case, according to the
Company's own reiterated contention, was the subject of the hourly wage rate to
be paid the employees. When it is recalled that prior to the strike, 2 of the em-
ployees received 95 cents an hour, 2 others 90 cents, and another 85 cents and for
the Company during these bargaining negotiations to then reduce wages on an overall
aggregate basis by offering all 5 employees a uniform hourly wage rate of 88 cents
demonstrates its intent to bring about an impasse and so prevent final consummation
of a contract.27 It would appear that this did not evidence a sincere effort to reach
a common ground nor a persistence to offer opportunity for agreement. The Com-
pany's unreasonable offer whereby the aggregate wages paid the striking employees
was loweied, foreclosed all possibility of reaching agreement on the most important
issue-wages-and revealed an attitude antagonistic to the acceptance of the prin-
ciples embodied in Section 8 (d) of the Act. An absence of good faith may be shown
by patently unreasonable demands as well as by other circumstances. The Company
by proposing a reduction in the aggregate wages of the employees was making a
wholly unreasonable offer which could obviously never be accepted by the Union.28
In arriving at this conclusion, the Trial Examiner is not unmindful of the financial
statement submitted by the Company to the Union which showed a net profit of
$4,082.47 for the period June 1, 1953, through October 31, 1953.29 The Company
by proposing this "patently unreasonable" reduction in wages, under the circum-
stances of this case, showed an absence of good-faith bargaining,30 which effectively
foreclosed the possibility of reaching an agreement by solidifying the impasse, and
resulted in demoralization of the negotiations thereafter.31 An employer should not
be permitted to avoid its obligation to bargain by creating a fictitious impasse which
the Company was doing by offering its striking employees lower wages. Under the
circumstances, this reduction in wages was wholly unreasonable and could obviously
never be accepted by the Union. Pressing this unreasonable demand is an indication
that the Company failed to bargain in good faith. See N. L. R. B. v. Retail Clerks
Union Local 648, 203 F. 2d 165 (C. A. 9).
It will be recalled that a conference was held on November 10 at the office of the
Regional Director of the Board which was attended by the parties and the Regional
Director and his staff. It is reasonable to assume that recourse was had to the Re-
gional Office when a deadlock loomed between the bargaining parties. The confer-
ence in this case, it would seem, in view of the fact that a strike was in progress,
represented a serious effort to begin negotiations anew with the purpose of finding a
common ground for agreement. The Company's actions, however, in not having its
most important negotiator, Hildebrand, present, and offering no explanation for his
absence, is not without significance. When the Regional Director at this conference
sought to break the deadlock and clear the way to possible agreement by suggesting
that they begin by discussing the areas of disagreement, he was met with Brelsford's
statement that he was unwilling to proceed at this time without Hildebrand being
present. Appearing at such an important conference without the party in interest,
instead of inviting accord, was calculated to avoid it by the use of a bargaining tech-
nique which delayed, if not foreclosed, an orderly proceeding toward agreement.
In N. L. R. B v. Montgomery Ward & Co., 133 F. 2d 676, at 687-688 (C. A. 9),
the language used by the court in condemning the Company's conduct, is particularly
apt in this case:
25 Mature Transport Co v. N. L R. B., 198 F 2d 735, 739 (C. A. 5).
20N L R B v Somerset Shoe Co., 111 F 2d 681, 688 (C A. 1).
27 Corroborative of this conclusion is the fact that the employees who continued to work
during the strike received the following hourly wage rates • 2 received 95 cents, 2 more
90 cents, and the fifth 85 cents.
28N. L. R. B v Retail Clerks Union Local 648, 211 F 2d 759, 768 (C. A. 9).
29 Nor is this conclusion altered by the fact that Hildebrand did not draw a salary allow-
ance during this time.
2i0 N L R B v Retail Clerks Union Local 648, supra, at page 768.
31 The Company's insistence on this reduced uniform hourly wage rate might be con-
strued to have the effect of undermining the Union in the eyes of the employees by show-
ing them that the penalty for joining the Union was retaliation in the form of wages lower
than they were earning prior to joining the Union and prior to the strike.
HILDEBRAND WAREHOUSE COMPANY 1325
The incidents )ust discussed, while, perhaps, not controlling in and of them-
selves, in cumulative effect gives impetus and decisiveness [to the conclusion that
the Company did not bargain in good faith]. They are simply manifestations
of an attitude-intent, if you will-persisted in by Wards [the Company], a
negative attitude which amounted to, in its result, a refusal to bargain. . .
Throughout the conferences there is apparent a studied design of aloof-
ness, . of unwillingness to go forward, upon the part of Wards [the Com-
pany] which found its answer in the Board's conclusion of refusal to bargain.
The Company argues in support of its contention that it bargained in good faith
and that the record "reflects long and full discussions and negotiations between the
parties touching every phase of the matters in dispute.. ... and "every phase of the
Union's proposal was discussed paragraph by paragraph." However, mere partici-
pation in meetings with the Union and protestations of willingness to bargain do not
alone fulfill the requirements of Section 8 (a) (5) and 8 (d) of the Act, for these
are only surface indicia of bargaining. Bargaining in good faith by an employer
involves a duty on its part to enter into discussions with an open and fair mind and
a sincere purpose to find the basis for agreement with the Union on wages, hours, and
working conditions32 In applying this definition to the facts of this case, the Trial
Examiner, as hereinafter stated, has studied the Company's conduct as a whole and
has not relied on any one factor or indicium as conclusive evidence that the Com-
pany did or did not try generally to reach an agreement. Although the Company
met with the Union whenever requested, conferred at length concerning the con-
tract proposals, and agreed to some minor matters,33 and even made some minor
concessions 34 during the negotiations, nevertheless, it is concluded and found that
the Company has not bargained in good faith because the totality of the Com-
pany's overall conduct, indicates that it approached the bargaining table with a
fixed determintion not to reach an agreement.35 While the Company's failure to
make any substantial concessions, standing alone, is not regarded as constituting a
refusal to bargain, these circumstances are not irrelevant in evaluating its entire course
of conduct 36
It is found also that the Company's belated submission of a counterproposal 37
and its reluctant furnishing of a financial statement on November 20, more than 4
months after the first bargaining conference, did not, in view of the length of time
intervening, establish a sincere desire on the part of the Company to abide by the
principles of collective bargaining. It is not unreasonable to conclude that such
belated and reluctant compliance was influenced to some considerable extent by
the successive sequence of the strike, filing of charges, and issuance of complaint.
By all such evidence and from the entire record in the case, it is concluded and
found that the Respondent, Ira P. Hildebrand, d/b/a Hildebrand Warehouse Com-
pany, failed and refused to bargain in good faith with the Union at any time after
the certification of the Union in violation of Section 8 (a) (5) of the Act. By such
refusal to bargain, the Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.38
B. The alleged violation of Section 8 (b) (4) (A) 39
When no agreement was reached after the fourth meeting on August 27 between
the Union and the Company for a collective-bargaining contract and the employees
M Boise Implement Company, 106 NLRB 677.
33 (1) That the Union would use its best efforts to promote the general welfare of the
employees and the efficient operation of the Company's business ; (2) that neither party
would interfere with specified rights of the employees; (3) 1 hour for lunchtime; and
(4) all work above 9 hours per day to be paid for at the rate of time and one-half. By letter
dated December 1, the Company stated it could not accept the Union's health and welfare
plan but that it would agree to a group insurance plan, one-half of the cost to be paid by
the owner and one-half by the worker.
34 (1) Three paid holidays, and (2) the Company promised to undertake an investiga-
tion and, if it was found that the Company was not paying the prevailing wage in the
locality, the Company would raise its hourly wage rate offer.
35 Tower Hosiery Milts, 81 NLRB 658, 662.
36 Texas Foundries, Inc., 101 NLRB 1642.
87 See Landis Tool Company, 89 NLRB 503, 507, 508
33 See Wheatland Electric Cooperative, Inc. v. N. L. R. B., 208 F. 2d 878 (C. A. 10),
enfg 102 NLRB 1119, cert denied 347 U S. 966
3e Unless otherwise indicated, the findings in this section are based upon substantially
uncontroverted evidence.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voted to call a strike, picketing of the Company's premises began on August 31.
The placards which the pickets carried had written on them the following-
Employees of Hildebrand Warehouse Co.
Protest Employers Refusal to Recognize &
Bargain with Teamsters Local 745
About a week later on September 8, the Union began to picket the tract of land
in Tyler, Texas, owned by the Missouri Pacific Railroad and occupied by its sta-
tion.40 Housed exclusively in this station are the following facilities of the Missouri
Pacific Lines, herein called the Railroad: the freight department which includes the
freight-traffic office, freight depot, the railroad freight loading dock, the truck freight
loading dock, and the warehouse; also the passenger depot which includes the passen-
ger ticket office, white and Negro waiting rooms, and the office of the International
Great Northern Railroad, a subsidiary of the Missouri Pacific Lines, also referred
to herein as the Railroad.
The railroad station is located at 220 East Ferguson Street in Tyler, Texas, on a
tract of land which is bounded on the west by the building line of the adjoining
structure and on the east by the street curb line which is a few feet beyond the
Railroad's right-of-way. On the south, the property is bounded by East Ferguson
Street, a public thoroughfare 41 which runs in an east-west direction, and on the
north by a tract of land upon which is located a mercantile establishment.
The Railroad's right-of-way where it crosses East Ferguson Street is comprised of
two tracks which run parallel to and alongside of the east side of the station. The
easternmost of these two tracks is called the "Mainline" track and is used by so-
called "through trains" which do not stop at Tyler.42 The other of the two tracks
which adjoins and is closest to the station is called the "house" track. This "house"
track or siding is used to load and unload freight consigned to and from Tyler and
its environs. Railroad cars with freight consigned to or from Tyler are shunted onto
this "house track" or siding. On the east side of the station and parallel to that
portion of the building housing the freight depot is a loading platform from which
and onto which freight is loaded into or unloaded from freight cars standing on this
"house" track.
Access to the truckloading dock of the freight depot, which is located on the
west side of the station, is by an entranceway leading from East Ferguson Street
on the south side of the Railroad's property. This entranceway or roadway is used
by trucks and other vehicles that are loading or unloading freight at the dock of the
freight depot. This roadway which is used to gain both ingress and egress to and
from the truckloading dock parallels the westerly side of the station. To the west
of this roadway and on the Railroad's premises is a parking lot and to the west of
the parking lot is the building line of the structure which adjoins the Railroad's
premises.
For the past 7 years, the Company has had a written contract with the Railroad
whereby the Company provides truck service exclusively for less-than-carload freight
between the freight depot and consignors' and consignees' locations in the Tyler
area. Incoming freight is unloaded from railroad cars standing on the "house"
track, which as described elsewhere, is immediately adjacent to the freight loading
dock or platform located on the east side of the station. The Railroad's freight
depot employees unload the freight cars, placing the freight on the loading dock from
where it is moved into the freight depot 43 After the freight is moved into the
freight depot, it is classified and made ready for delivery to the consignees. The
Hildebrand Warehouse Company is then notified by the Railroad whereupon it
dispatches a truck which is backed up to the truckloading dock of the depot and the
40 The Company's offices and warehouse are located several blocks from the railroad
station.
41 Located on the south side of the station are two doors which lead into the ticket office
and the waiting rooms.
42 No scheduled Missouri Pacific passenger trains run to, from, or through Tyler. There
are 2 regularly scheduled freight trains into Tyler daily ; 1 northbound and the other
southbound Passenger tickets are sold at the Tyler station for connecting mainline Mis-
souri Pacific trains leaving fiom Troop, Texas, 19 miles from Tyler and Mineola, 25 miles
away. A regularly scheduled busline takes these Tyler passengers to and from their re-
spective connections at Troop and Mineola.
0 The freight is rarely taken directly from the railroad cars and loaded into trucks
backed up at the truckloading platform. The freight invariably comes to rest in the depot
befoie it is forwarded to the consignee.
HILDEBRAND WAREHOUSE COMPANY 1327
freight moved by the railroad employees to the tailgate of the waiting truck.44 The
Hildebrand Company employees then proceed to load the freight onto the truck
for delivery to the consignees. This procedure is reversed on outgoing freight. The
consignors in such cases normally call the Railroad 45 which in turn notifies the Com-
pany to pick up freight at the shippers' location for delivery to the Railroad's truck-
loading dock.
As mentioned previously, the Union established a picket line at the Railroad's
premises on East Ferguson Street at about 8 a. m., on September 8.46 The pickets
carried a placard bearing the following legend upon it:
To The General Public
Trucks Operated Here
Were Formerly Operated
by Employees of Ira P.
Hildebrand d/b/a Hildebrand
Warehouse Who Are Now On
Strike for Better Wages And
Working Conditions.
The pickets were patrolling the Railroad's premises in this manner when a regu-
larly scheduled southbound freight train with shipments consigned for unloading at
the Tyler freight depot approached the station on September 8, at about 9:30 a. m.,
on the "house" track.47 When the train came to a stop that morning the engine
obstructed the grade crossing where the tracks crossed East Ferguson Street. In
order not to obstruct traffic at this grade crossing, the engine was uncoupled from
the rest of the train and moved south just far enough to clear the East Ferguson
Street grade crossing. The freight cars were left behind at a point opposite the sta-
tion in order to load and unload freight.48
H. C. Carswell, Jr., general agent for the Missouri Pacific Lines whose office is
in the station, credibly testified that the train crew Pad not seen the picket line as the
train pulled into the station. When the train stopped and they did see the pickets
walking across both tracks, the crew refused to move the train until they had spoken
with their union officials.49 After talking with their respective union officials which
took approximately an hour, the train crew backed the engine across the grade cross-
ing, coupled it to the freight cars and proceeded to move the train south across the
East Ferguson Street grade crossing and on to its next scheduled stop. The train
remained uncoupled approximately 1 hour on the morning of September 8, although
on all other mornings prior to this occurrence, the train ordinarily remained un-
coupled 10 to 15 minutes at the Tyler station56
In anticipation of the train crew walkoff of September 8 reoccurring, the Rail-
road recruited a standby crew composed of Missouri Pacific Railroad supervisors
and officials who were brought to Tyler from surrounding towns. This standby crew
was to take over and man trains in the event that the regular crews should refuse
to cross the picket line established across the two tracks at the grade crossing.
However, this proved unnecessary because after the 9:30 freight train arrived on
the morning of September 8, the Union shortened its picket line to a point midway
44 The Railroad's contract with its freight depot employees provides that no workers
other than them shall,be permitted to handle any freight within the depot
46 In a few instances, the shipper may call the Company directly in which case the freight
is delivered by the Company to the Railroad's truckloading dock.
46 It is uncontradicted that the picketing was orderly.
47 The "house" track which is the spur track used to service the freight depot switches
into the mainline track 150 feet south of the station and also 4 blocks north of the station.
The southbound train switched from the "mainline" track to the "house" track at the
switch located north of the station.
98 This was the procedure employed every morning prior to September 8 when this train
arrived in Tyler
40 The engineer, fireman, conductor, and three brakemen which comprised the train
crew telephoned representatives of the Brotherhood of Locomotive Engineers, Brotherhood
of Locomotive Firemen and Enginemen, Order of Railroad Conductors, and Brotherhood
of Railroad Trainmen, respectively
60 Carswell testified that he saw Roseborough, business representative of the Union, in
the vicinity of the picket line on the morning the crew walked off the train. He also testi-
fied that from September 8 to November 2, the Railroad's train crews refused to perform
switching services south of the Ferguson Street grade crossing as this entailed crossing
the picket line which the Union continued to maintain across the "house" track
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the "house" track and "mainline" track 51 Thus the strikers continued to
picket only the "house" track until November 2 when the picket line was again
shortened to a point approximately 3 feet west of the "house" track. After No-
vember 2, neither of the two tracks was picketed.
During the time that only the "house" track was picketed which was from Sep-
tember 8 to November 2, the train crews refused to cross the picket line that crossed
the "house" track. This picketing of the "house" track necessitated a change from
the usual manner in which southbound trains had been switched prior to September
8.52 Between September 8 and November 2 when the "house" track was being
picketed, the southbound trains proceeded south across the East Ferguson Street
grade crossing on the "mainline" track to the "South Yard" where the cars were re-
arranged and reswitched. After this operation was completed, the train was backed
on the "mainline" track to a point where this track switches into the "house" track
at the north switch. The train then reversed its direction and proceeded south on
the "house" track to the freight depot where it came to a stop. After the freight
destined for Tyler was unloaded, the train was backed in a northerly direction to
the north switch where the "house" track switches into the "mainline" track. The
train then reversed its direction and proceeded south on the "mainline" track to
its next scheduled stop. This procedure which took 15 to 30 minutes longer than
the method used prior to the strike was followed from September 8 to November 2
in order for the train crews to avoid crossing the picket line which patrolled the
"house" track at the East Ferguson Street grade crossing south of the freight depot.53
During all this time, however, the strikers continued, as they had from the first
day the picket line was established on September 8 at the Railroad's premises, to
picket the entranceway which leads from East Ferguson Street to the truckloading
dock of the freight depot. This entranceway or driveway, which is entirely on
the Railroad's property and extends 300 feet along the west side of the station, is
used by all trucks and other vehicles as a means of ingress and egress to load and
unload freight at the freight depot.
During the time that this entranceway was being picketed, operators of trucks of
the Missouri Pacific Transport Company, a wholly owned subsidiary of the Missouri
Pacific Lines which made regularly scheduled deliveries to the freight depot, refused
to cross the picket line. Carswell, general agent of the Railroad at Tyler, testified,
and this is uncontradicted , that during the time the Union was picketing the station's
premises that he observed operators of two trucks of the Missouri Pacific Transport
Company refuse on two different occasions to cross the picket lines. On those two
occasions when the operators of these two trucks refused to cross the picket line,
they turned their trucks around, and left the vicinity of the station.54 As a conse-
quence, this freight which these two regularly scheduled trucks would ordinarily have
delivered to the freight depot's loading dock was returned to the terminal, placed in
freight cars, and delivered to the freight depot by train rather than by truck 55
In summarizing the salient facts, it is found that the Company had a contract with
the Railroad whereby the Company provided pickup and delivery trucking service
for the Railroad . On the morning of September 8, 1953, when the Company's ern-
51 It was only on the morning of September 8 when the crew walked off the train that
both tracks were picketed by the Union. After this incident , only the "house" track was
picketed.
52 See the ninth paragraph under "B . The alleged violation of Section 8 (b) (4) (A)"
for a description of the usual manner employed in switching southbound trains prior to
September 8
53 Although the record is not clear , it is reasonable to assume that northbound trains
stopping at Tyler from September 8 to November 2 were switched at this north switch
and then backed into the freight depot on the "house" track in order to avoid the picket
line across the " house" track . It is reasonable to assume also that prior to September S
northbound trains were switched at the south switch onto the "house " track and then
proceeded to the freight depot for loading and unloading and when this was completed
then proceeding north on the "house" track to the north switch where it joined the "main-
line" track and then proceeding north to its next stop . After November 2, when the
"house" track was no longer picketed , the method of switching used prior to September S
was reinstituted
54 The Missouri Pacific Transport Company's trucks use the freight facilities of the
Missouri Pacific at its Tyler railroad station.
65 Because of the picket line, the daytime deliveries of the truck line were discontinued
during the time the station was being picketed by the Union . There was no interruption,
however, to those truck deliveries made at night as the Railroad 's premises were not
picketed after 5 p. in.
HILDEBRAND WAREHOUSE COMPANY 1329
ployees were on strike and picketing not only the Company's warehouse,56 but also
the Railroad's premises including its two tracks, the crew of a freight train on arriving
at the railroad station walked off the train for approximately an hour. Thereafter,
and until November 2, the Union picketed only 1 of the 2 railroad tracks. The picket-
ing of this one track, which was used to service the freight depot, required the Rail-
road, in order to avoid crossing the picket line, to adopt a method of switching its
trains different than the method employed by it prior to the strike. On 2 different
occasions, during this same period of time, 2 truckdrivers of the Railroad's sub-
sidiary trucking company, who were delivering freight to its Tyler freight depot
refused to cross the picket line which necessitated the reconsignment of this freight
to Tyler by railroad.
The General Counsel claims that the Union, by this conduct, violated Section
8 (b) (4) (A), by inducing or encouraging the employees of the Railroad to cease
work at its Tyler railroad station for the purpose of forcing the Railroad to cease
doing business with Hildebrand.
Discussion and Concluding Findings
The first issue to be resolved is whether it was a violation of Section 8 (b) (4)
(A)57 for the Union to picket the Railroad's tracks and the entranceway to its freight
depot, thereby inducing the Railroad's train crew and truckdrivers not to cross the
picket line in the course of their employment, an object thereof being to force the
Railroad to cease doing business with the Company.58
In essence, Section 8 (b) (4) (A), insofar as the provisions of this section are
pertinent to the facts in this case, and the resolution of the issues raised thereby,
make it unlawful for a union to urge the employees of an employer to refuse to per-
form work for the purpose of compelling their employer to cease doing business with
some other person. To warrant an unfair labor practice finding under the section,
two factors must combine: (1) The alleged activities must have as an object the
forcing or requiring any employer to cease doing business with any person; and
(2) the activities must constitute inducement and encouragement of employees in
the course of their employment.59
Although Section 8 (b) (4) (A) defines the prohibited activity without using the
term "secondary boycott," the legislative history of this section makes it abundantly
clear that secondary boycotts are an unfair labor practice 60 Senator Taft in dis-
cussing this section stated: "This provision makes it unlawful to resort to a secondary
boycott to injure the business of a third person who is wholly unconcerned in the
disagreement between an employer and his employees." 61
66 No issue was presented or tried with respect to the legality of the Union's picketing
of the Company's warehouse See Pure Cal Co., 84 NLRB 315, 318, where it was held that
Section 8 (b) (4) (A) "does not outlaw any of the primary means which unions tradi-
tionally use to press their demands on employers
"Section 8 (b) reads as follows :
(b) It shall be an unfair labor practice for a labor organization or its agents-
( * * * * * *
(4) to engage in, or to induce or encourage the employees of any employer to en-
gage in, a strike or a concerted refusal in the course of their employment to use, manu-
facture, process, transport, or otherwise handle or work on any goods, articles, ma-
terials, or commodities or to perform any services, where an object thereof is : (A)
forcing or requiring any employer or self-employed person to join any labor or em-
ployer organization or any employer or other person to cease using, selling, handling,
transporting, or otherwise dealing in the products of any other producer, processor, or
manufacturer, or to cease doing business with any other person; . I
55 The complaint also alleged picketing and similar conduct directed by the Union at
Acme Fast Freight and National Carloading Corporation with whom Hildebrand did busi-
ness. No evidence was presented as to the latter two firms and the facts treated herein
relate solely to the premises of the Missouri Pacific Railroad station at Tyler, Texas.
59 Wadsworth Co, 81 NLRB 802, 805.
00 93 Congressional Record 3953, 4155, 4156, 4323, 7683, 7969. For additional material
on congressional intent, see House Conference Report No. 510 on H R. 3020, 80th Congress,
1st Session, pp. 43, 44, and majority opinion written by Mr. Justice Burton in N. L. R B. v.
Denver Building and Construction Trades Council, 341 U. S 675, 686, Douds v. Metro-
politan Architects, 75 F. Supp. 672 at pages 675, 6 (S. D. N. Y.).
61 93 Congressional Record 4323. See also the statement in the Wadsworth case, 81
NLRB 802, at page 806. ". . . All boycotts [are] equally indefensible and unjustified,"
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The concept of the secondary boycott which the Act proscribed was stated by
Judge Learned Hand as follows:
The gravamen of a secondary boycott is that its sanctions bear, not upon the
employer who alone is a party to the dispute, but upon some third party who
has no concern in it. Its aim is to compel him to stop business with the
employer in the hope that this will induce the employer to give in to his
employees' demands 62
It would appear, therefore, that the purpose of Section 8 (b) (4) (A) in condemning
secondary boycotts is to prohibit unions from involving neutral employers in a labor
dispute in order to help the union achieve certain specified objectives. The subject
of the union inducement, however, must be to employees, not employers. In other
words, Section 8 (b) (4) (A) prohibits (with some qualifications'not•pertinent here)
encouraging the employees of a neutral employer to refuse to handle the work of a
second employer with whom the union has a dispute, but it does not prohibit induc-
ing the neutral employer himself not to handle the products of the second employer.
Based upon the principles stated above, it is concluded that it was an unfair labor
practice for the Union to picket the Railroad' s premises which were exclusively
occupied by the Railroad 63 and thereby to appeal to the train crews and truckdrivers
to engage in a concerted refusal in the course of their employment to perform their
services for the Railroad and its trucking subsidiary. It is found, therefore, that
the Union, through its duly authorized agents, induced and encouraged the train
crew and two truckdrivers of the Railroad, a secondary employer, to engage in a
concerted refusal to work, in order to force their employers to cease doing business
with Hildebrand, thereby violating Section 8 (b) (4) (A) of the Act.64
Before leaving the question of the union 's violation of Section 8 (b) (4) (A),
consideration should be given to an aspect of this case that was argued in the cele-
brated International Rice Milling case,65 which also involved the picketing of a
railroad's property. It was contended in that case that the Act's definition of the
terms "employer" and "employee" specifically exclude from the scope of the Act,
respectively, "any person subject to the Railway Labor Act" and "any individual
employed by an employer subject to the Railway Labor Act." 66 That is, the union,
in that case, argued that railroads and their employees are excluded from the terms
"employer" and "employee" by the Act's definitions and that any activities of the
union in respect to them cannot be held to be violative of the Act.67
and Moore Dry Dock Co , 92 NLRB 547: "Section 8 (b) (4) (A) is aimed at secondary
boycotts. . . See also Koretz, Federal Regulation of Secondary Strikes and Boycotts,
37 Cornell L Q. 235 (1952)
"International Brotherhood of Electrical Workers v. N. L. R. B., 181 F. 2d 34,
37 (C. A. 2).
63 Picketing the premises of the secondary employer has been permitted in cases where
the picketing is limited to times when the trucks of the primary employer are at the prem-
ises of the secondary employer. Sterling Beverages, Inc., 90 NLRB 401. In the instant case,
however, the picketing of the Railroad' s premises was not limited to the times when the
Hildebrand trucks were on the Railroad's premises, nor did the Company maintain a regu-
lar place of business on the Railroad' s premises . For the tests which will be applied, see
Moore Dry Dock Company, 92 NLRB 547, 549.
64 Wadsworth Co, 81 NLRB 802, 184 F 2d 60 (C. A. 10), cert denied 341 U S 947;
Service Trade Chauffeurs, 85 NLRB 1037, enfd. as mod 191 F 2d 65, 68 (C. A. 2) ; Seal-
right Pacific, Ltd, 82 NLRB 271; Western, Inc., 93 NLRB 336; Armco Drainage and Metal
Products, Inc, 93 NLRB 751, 752; Capital Service, Inc, 100 NLRB 1092, 204 F. 2d 848
(C A. 9) ; Climax Machinery Co., 86 NLRB 1243, 1252; Irvin J. Cooper, 101 NLRB 1284;
Sound Shingle Co., 101 NLRB 1159.
- 84 NLRB 360, 183 F. 2d 21 (C A 5), 341 U S 665
See Section 2 (2) and (3) of the Act.
sr Insofar as the two truckdrivers of the Missouri Pacific Transport Company who, on
two occasions, refused to cross the picket line at the entranceway to the freight depot are
concerned, official notice is taken of Section 1 of the Railway Labor Act, 54 Stat. 785, 786,
as amended, June 21, 1934, 45 U S. C. A, Section 151 which provides
The term "carrier" includes any express company, sleeping-car company, carrier by
railroad . . . and any company which is directly or indirectly owned or controlled by
or under common control with any carrier by railroad and which operates any equip-
ment or facilities or performs any service (other than trucking service) in connection
with the transportation receipt, delivery, elevation, transfer in transit, refrigeration
or icing, storage, and handling of property transported by railroad. . . . [Emphasis
supplied.]
HILDEBRAND WAREHOUSE COMPANY 1331
Trial Examiner Parkes in a thorough discussion of this question 68 held that a
railroad subject to the Railway Labor Act is an "employer" as that term is used
in Section 8 (b) (4) (A) of the Act The Board reversed the Trial Examiner and
held that the words "any employer" as used in Section 8 (b) (4) (A) do not include
railroad companies as employers. The Court of Appeals for the Fifth Circuit re-
versed the Board and stated
We are of the opinion that the situation before us now was intended to be
covered by the above-mentioned Section 8 (b) (4) of the Act. The purpose
of Section 8 (b) (4) (A) and (B) is to protect commerce from injury, im-
pairment, and interruption, by removing obstructions like the one we have
here. If the Board's view were to prevail, the industry most directly and
extensively concerned with commerce, the vast railroad transportation system,
would be at the mercy of ambitious unions, which could use them as a means
of forcing themselves upon plants like petitioners where they do not have a
majority status. There is no doubt that Congress intended to exclude railroad
companies and their employees from the National Labor Relations Act insofar
as the regulation of labor relations was concerned. The Railway Labor Act,
45 U. S. C. A. § 151 et seq , is a separate and earlier piece of legislation than
either the Wagner Act, 29 U. S. C. A. § 201 et seq, or the National Labor
Relations Act, 29 U. S. C. A § 151 et seq., and for that reason Congress per-
mitted the law governing the rights and duties of the railroad companies and
their employees to remain unchanged. Section 8 (b) (4) of the National
Labor Relations Act, as amended in 1947, as applied to this case, does not
seek to enter the field of railway labor relations Petitioners are not asking
that anything be done to the i ailroad companies or their employees, or that they
be compelled to do anything. All petitioners seek is a removal of the railroads
and their employees from the scope of a labor-management conflict in which
they have no interest and want no part. We think Congress provided for the
removal of such obstacles from the free flow of interstate commerce when it
enacted Section 8 (b) (4).
A close reading of the language used in Section 8 (b) (4) convinces us that,
by the use of the words "any employer," Congress intended to extend the sec-
tion to any and all situations relative to the one we have before us. In this
particular section, the usage of the word "any," as applied to the term em-
ployer, is confined solely to subsection (4). Contrasting the usage of the word
"any," as found in subsection (4), with the use of the indefinite article "an,"
as used elsewhere in the section, gives rises to the inference, we think, that
Congress intended the word "any" to embrace the class of employers as a
whole, and not merely those within the definition of "employer," as set forth
in Section 2 (2) of the Act. In construing a statute, it is necessary that every
word be given significance and effect, and every part of the statute must be
construed in connection with the whole, so as to make all parts harmonize.
Thus, if Congress had intended the word "employer" to mean only such employ-
ers as defined in Section 2 (2), it would have preceded the word by the indefi-
nite article "an." Since this was not done, we think it reasonable to conclude that
the word "employer," as used in Section 8 (b) (4), was intended to have a
wider and more inclusive meaning than the definition found in Section 2 (2).
A further reading of Section 8 (b) (4) (A) reveals the language "forcing
or requiring . . . any employer or other person to cease using, selling, handling,
transporting or otherwise dealing.. The definition of the word "person"
in the Act does not exclude railroad companies. The words "any employer,"
as used in Section 8 (b) (4), appear to us to refer to the same employer as
described in Section 8 (b) (4) (A) by the words "any employer or other per-
son." Thus we see the use of the words "any employer or other person" being
used to amplify and explain the words "any employer." Since the word "person"
as defined in the Act, does not exclude the railroad companies, and since it is
used here in connection with the words "any employer," we think it highly per-
suasive of the fact that railroad companies were not intended to be excluded
from the purview of Section 8 (b) (4) (A) and (B) of the Act Noscitur a sociis:
the meaning of a word may be ascertained by reference to the meaning of words
associated with it.
By construing the language of the statute so as to include railroad compa-
nies within the meaning of the words "any employer," we are giving effect to the
68 International Rice MMillinR Co , 84 NLRB 360 at pages 373 to 376
344056-55-vol 111-85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intent of Congress to stop secondary boycotts in the transportation industry-
If such an interpretation is not allowed, the meaning and use of the words
"transport" and "transporting," used throughout the section, would be rendered
ineffective and almost useless, since the railroads transport the vast bulk of
freight in this country. Courts usually will avoid interpreting a statute so as to
render it ineffective, or to cause grave public injury, if there is a more reasonable
interpretation that can rightfully be adopted 69
The Supreme Court reversed the court of appeals but on an entirely different
ground. In fact, and this is significant , the question whether an employer who is
subject to the Railway Labor Act is an employer within the meaning of Section 8
(b) (4) (A) was not presented to the Supreme Court in the Board's petition for a
writ of certiorari so that this issue was not before that Court. This action of the
Board would seem to indicate that the question whether railroads are "employers"
within the meaning of Section 8 (b) (4) (A) is again open for consideration.
The word "employer" as that term is used in Section 8 (b) (4) (A) does not
necessarily have the same meaning that it has in Section 2 (2) of the Act where it
is defined. When it is considered that the declared congressional policy of the Act,
among other things, is to eliminate and prevent obstructions to interstate commerce
by encouraging collective bargaining 70 it would appear that the purpose of Section
2 (2) in defining "employer" narrowly was to make it clear that railroads were to
continue to deal with their employees and the employees' labor organizations under
the Railway Labor Act. Congress in defining "employer" so as to exclude railroads
was merely making it clear that the railroads in their labor relations with their em-
ployees would continue to be governed by the Railway Labor Act, a separate and
earlier statute, and that they would not be subject to the jurisdiction of the National
Labor Relations Board.
Congress in enacting the Labor Management Relations Act, 61 Stat. 136, stated in
Section 1 that its dominant purpose was "to promote the full flow of Commerce."
Section 8 (b) (4) (A) was intended by the Congress to proscribe secondary boy-
cotts and thereby remove a major obstacle to the free flow of interstate commerce.
To hold that this section of the Act does not apply to railroads is to deny its pro-
tection to one of the most important instrumentalities of commerce in the Nation
and to evince undue preoccupation with the statutory definition, rather than the
underlying purpose and intent of the Act as a whole. To allow secondary boycotts
where a railroad is the neutral secondary employer but to proscribe such illegal prac-
tices in other situations is a differentiation not only without substance but in defiance
of that against which the prohibition of illegal picketing is directed. Such an inter-
pretation it is submitted, overemphasizes the form and minimizes the substance and
dominant purpose of the Act which is "to promote the full flow of commerce." 71
It is found, therefore, that in the context of this case that the words "any employer"
as used in Section 8 (b) (4) (A) includes railroad companies as employers.
C. The alleged violation of Section 8 (a) (3)
By letter dated February 15, 1954, the Union notified the Company that the strike
and picketing directed against it was terminated as of February 8. The Union fur-
ther advised the Company that Freeney, Tucker, Wheeler, Miller, and Brooks 72
69 International Rice Milling Co , Inc , et at v N L R B , 183 F 2d 21, 24 to 26 After
the Court of Appeals for the Fifth Circuit had remanded this case to the Board, it was
stated by the Board at 95 NLRB 1420
In his Intermediate Report, the Tiial Examiner found in part that the picketing
of the railroads was violative of Section 8 (b) (4) (A) and (B) of the Act. No spe-
cific exception was taken to this finding. In the circumstances, and as no novel ques-
tion of law is involved, we adopt at, and shall issue an appropiiate order. [Emphasis
supplied I
70 Phelps Dodge Corp. v. N L. R. B., 313 U S 177 at page 182
-1 See Deeds v New York Local Union 10, International Brotherhood of Production,
Maintenance and Operating Employees, 120 F Supp 221, 223 (E. D. N Y ), where the
court stated
Picketing of secondary premises . . [is] likely to interfere with the free flow of
commerce and adversely affect the public welfare within the meaning of Section 2,
subdivisions (6) and (7) of the Act (See N. L. R. B v. Denver Building and Con-
stiucti.on Trades Council, 341 U. S. 675, 685, et seq ) Cf United Workers v Labur.
earn Corp , 34 LRR1I 2229, 2233 (U. S Sup Ct ).
72 Brooks was reemployed by the Company on \iaic., 22
HILDEBRAND WAREHOUSE COMPANY 1333
were applying for reinstatement to their former positions. The Company replied to
this request on February 22, stating that its business had suffered considerably since
the strike and that the Company had been forced "to cut [its] employees to a
minimum." It was stipulated that since the strike, 2 of the 3 delivery contracts which
the Company had, namely, those with Acme Fast Freight and National Carloading
Company had been canceled, and that the only contract which survived the strike
was the one with the Missouri Pacific Railroad. Hildebrand testified that the Acme
and National contracts had been canceled by these firms because of representations
made to them by the Union.
At the time the strike began on August 31, the Company employed 11 men. Due
to the strike and the cancelation of the Acme and National contracts, the business of
the Company dropped to a point where it employed only 5 men as of February 15,
1954, the date on which the striking employees applied for reinstatement. Of the 5
men employed by the Company at the time of the hearing, I was hired during the
time the strike was in progress. The question to be resolved then is the reinstate-
ment rights, if any, of the striking employees.
Congress has very carefully safeguarded the exercise by employees of concerted
activities and has expressly recognized their right to strike. Section 2 (3) of the
Act preserves to strikers their status of employees and Section 13 provides that
"Nothing in this Act, . shall be construed so as . . . to interfere with or impede
or diminish in any way the right to strike."
The law is quite clear that, apart from strike misconduct, (and certain other
situations not applicable here, see N. L. R. B. v. Mackay Radio t Telegraph
Co., 304 U. S. 333, 347), the refusal of an employer to reinstate a striker whose
place has not been filled, constitutes a violation of Section 8 (a) (3), and equally
clear is the right of the employer to refuse reinstatement when the striker has
actually been guilty of serious strike misconduct. See Home Beneficial Life
Insurance Co. v N L. R. B. 159 F. 2d 280, 284, cert. denied 332 U. S. 758;
N. L. R. B. v. Remington Rand Co, 130 F. 2d 919, 927.73
Strikes caused or prolonged by the employer's unfair labor practices are distin-
guished from strikes which do not involve unfair labor practices. The latter type
usually are referred to as "economic" strikes. In the case of an economic strike,
the employer may hire strike replacements in order to continue operations . 74 More-
over, the replacement employees may be retained after the strike is over, since the
employer is under no duty to dismiss the new employees in order to make positions
available for the strikers. However, economic strikers not guilty of unlawful con-
duct may not be discharged and are entitled to reinstatement unless replacements
were hired to fill their jobs. Even though replaced, if the replacements quit while
the economic strikers' unconditional offer to return to work is still pending, the
strikers have a right to be rehired.75
If the strike has been caused by the employer's unfair labor practices, he must rein-
state the strikers, even though the replacement employees must be dismissed to make
room for them. Even though the strike originally was an "economic" strike, the
employer's position becomes vulnerable if the strike is prolonged because of unfair
labor practices on his part. In such case all replacement workers hired after the
commission of such a wrongful act must be dismissed after the strike is over so
that the strikers may have their jobs back.76
Since the strike in this case, which began on August 31, was caused and prolonged
by the Company's unfair labor practice in unlawfully refusing to bargain in good
faith with the Union, it was an unfair labor practice strike. On February 15, 1954,
the strikers, through the Union which had been designated as their agent for the
purpose made an unconditional offer to return to work. At the hearing Hildebrand
expressed his willingness to reemploy the strikers as vacancies arose but he con-
tended the strike had so adversely affected his business that whereas he employed
11 men when the strike began, the volume of his business had decreased to such an
extent because of the strike that now he had need for only 5 employees. Conse-
quently, Hildebrand asserted he was unable to offer work to the employees who
applied for reinstatement. 77
As unfair labor practice strikers, the employees in question were entitled to rein-
statement upon unconditionally terminating the strike and applying for work on
"A' L R B v Indnetrial Cotton Mills, 208 F 2d 87 (C. A. 4).
N L. R. B v MIackaij Radio & Telegraph Co , supra
Union Bus Terminal of Dallas, Inc, 98 NLRB 458.
49 Collins Bating Co v N L R B , 193 F 2d 483. 486 (C A. 5)
77 Except Brooks, who was reemployed on ;March 22
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 15, even though the Company to make room for them would have found
it necessary to discharge new employees hired to fill their places during the strike.
It was not necessary for them to make the offer individually; it was no less legally
sufficient if made on their behalf by the Umon.78 When the striking employees
applied for reinstatement, Hildebrand was required to discharge the 1 employee hired
since the strike began and supplant him with 1 of the applicants. Where an em-
ployer is required to reinstate all striking employees, as in this case where they were
unfair labor practice strikers, and Hildebrand refused to discharge the one new
employee who was hired during the strike, his refusal was discriminatory within the
meaning of Section 8 (a) (3) of the Act.
After the Union, on behalf of the striking employees, applied for reinstatement for
them on February 15, Hildebrand replied on February 22 to the Union's letter. This
letter to the Union insofar as herein pertinent, stated
I am now working only one man, to wit, Willie Johnson . . . who was not
working at the time you called the strike. I shall appreciate your clarifying your
letter in this regard:
Do you demand that I fire Willie Johnson and replace him with one of
the men listed above [the strikers], and if so, which one?
Do you demand that I create jobs for the five men listed by you and set
out above or do you demand that I merely give them the preference of any
jobs I might happen to have in the future?
After I hear from you regarding the above, I shall be pleased to make ar-
rangements to meet with the Union's authorized representative in person for
further discussion of this problem.
The Union answered this letter on March 5 requesting that the Company "recog-
nize and follow the obligation imposed by the [Act]" and in answer to the Com-
pany's questions wrote "Your immediate offer of reinstatement or employment should
answer all questions raised by you." The Company up until the date of the hearing
neither replied to this letter nor acted upon the Union's request that the striking
employees be reinstated. The Company's equivocal response in its letter of Feb-
ruary 22 and its subsequent action in not discharging this one new employee hired
since the strike, constituted a rejection of the Union's group offer, and in law
amounted to a discriminatory refusal to reinstate the strikers in violation of Section
8 (a) (1) and 8 (a) (3).79
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section 11, above, occurring in con-
nection with the operations described in section 1, 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 of
commerce.
IV. THE REMEDY
The Company's uncontradicted contention that a decreased volume of business
necessitates the employment of fewer men now than were employed prior to August
31, 1953, the date the strike commenced, is found to be true It is therefore im-
possible for the Company to immediately reinstate all the striking employees who
applied for reemployment on February 15, 1954, and to retain all the nonstriking
employees who were hired prior to the time the strike commenced as all such posi-
tions are not now available. However, with respect to the one position which has
been filled since the strike began, it will be recommended that since the strike was
caused by the Company's unfair labor practices, that the one employee hired after
the commencement of the strike, be dismissed and replaced in the manner herein-
after described.
It will be recommended further that the Company offer to the employees found
to have been discriminatorily denied reinstatement, immediate reinstatement to their
former or substantially equivalent positions without prejudice to their seniority and
other rights and privileges. If there are not sufficient positions available, the Com-
pany shall provide positions for the employees ordered reinstated by dismissing to the
78 N. L R. B v. Lightner Publishing Corp , 128 F 2d 237, 239 (C. A. 7)
7° Fast Texas Steel Castings Company, Inc, 108 NLRB 1078 See also Maiden Manu-
Jacturisig Company, 106 NLRB 1335.
HILDEBRAND WAREHOUSE COMPANY 1335
extent necessary employees occupying such jobs who were hired after August 31, 1953,
the date the strike began
If after such dismissals, there are still not sufficient positions immediately avail-
able for the persons presently employed by the Company and for the persons to be
offered reinstatement, all existing positions shall be distributed among the employees
ordered reinstated and the employees presently employed who were hired before
August 31, 1953. The distribution of such available positions among the persons
presently employed who were hired prior to August 31, 1953, and the persons ordered
reinstated shall be in accordance with the Company's usual method of reducing its
force, without discrimination against any employee because of his union affiliations
and activities, following a system of seniority or other nondiscriminatory practice to
such extent as has heretofore been applied in the conduct of the Company's business.
Those employees remaining after such distribution for whom no employment is
immediately available shall be placed upon a preferential list with priority deter-
mined among them in accordance with the principles set forth above, and offered
reemployment in their former or in substantially equivalent positions, as such work
becomes available and before other persons are hired for such work.
The persons who it is recommended be offered reinstatement would normally be
entitled to back pay. The orthodox concomitant remedy which provides for back
pay beginning with the date the striking employees applied for reinstatement shall
not be recommended in this case, however, except as hereinafter indicated. The
remedy of ordering back pay is discretionary and "not mechanically compelled by the
Act" since Congress has given to the Board, freedom "to attain just results in diverse,
complicated situations." Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177 at page
198. The powers conferred upon the Board by the Act are equitable in nature and
may be invoked only if the relief sought is consistent with the principles of equity.
Globe Automatic Sprinkler Co. of Pennsylvania v. N. L. R. B., 199 F. 2d 64,
70 (C. A. 3). There is no rigid relationship between the substantive and remedial
provisions of the Act. Because a violation has been found, it does not mean that
the normal remedy automatically follows and that the Board lacks discretion to
vary it. Local 57, International Union of Operating Engineers, et al., 108 NLRB
1225. In applying a remedy, regard must be had to circumstances which makes its
application to a particular situation appropriate and therefore calculated to effectuate
the policies of the Act. Moreover, the Act permits "discretionary power to mould
remedies suited to practical needs" N. L. R. B v. Seven-Up Bottling Company of
Miami, Inc., 344 U. S. 344. In the moulding of remedies, reinstatement without back
pay is not only permissible but legal. Section 10 (c) of the Act 80
The trier of these facts is aware that it was the Company's unfair labor practice
in refusing to bargain which started the causal chain that eventuated in the striking
employees engaging in the unprotected concerted activities at the railroad station.
The Trial Examiner has weighed the severity of the Company's unfair labor prac-
tices against the striking employees' unprotected concerted activities and has deter-
mined that the awarding of back pay under these circumstances would not effectuate
the purposes of the Act. Moreover, the Company's unfair labor practices cannot
justify the striking employees conduct nor make an otherwise unprotected activity
protected within the meaning of Section 7. See Thayer Company, et al., 99 NLRB
1122, enfd. 213 F. 2d 748 (C. A. 1).
In arriving at this conclusion, consideration has been given also to the well-
established principle that the Board's authority extends to remedial not punitive
orders. The recommendation made herein that back pay be denied to the striking
employees, is, it is submitted, not punitive but remedial in purpose because the end
sought is preventative. American Sheet Metal Works, 106 NLRB 154, footnote 5,
citing cases. Furthermore, punitive orders have reference to disciplinary or com-
pensatory awards such as fines or penalties. Republic Steel Corp. v. N. L. R. B,
311 U. S 7. Moreover, in the absence of any showing that any of the striking
employees involved did not engage in the unprotected concerted activity, it is assumed
and inferred on the basis of the record, that for purposes of the remedy, all the
striking employees engaged in the unprotected concerted activity.
In the Trial Examiner's opinion, it would neither be consistent with principles of
equity nor effectuate the purposes of the Act to award back pay to these striking
employees beginning from the time they applied for reinstatement because to do so
would be tantamount to compensating them for their concerted unprotected activities
in exerting pressure by the above-described unlawful picketing on the Railroad's
b0 See N L R B v Sunshine Mining Co , 125 F 2d 757 . 761 • Indianapolis Power & Light
Co v N L R B., 122 F. 2d 757. 763 (C A. 7) . Phelps Dodge Corp v N L R B, 113 F
2d 202 , 205 (C A 2) , N L R B v Stackpole Carbon Co , 128 F. 2d 188 (C A 3).
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to compel a settlement of their dispute with their employer, Hildebrand.
This proscribed secondary boycott materially contributed to the Hildebrand Com-
pany's loss of business which, in turn, resulted in the Company needing fewer
employees than it employed prior to the strike.
It will, however, be recommended that the Respondent Company make the em-
ployees to be ordered reinstated whole for any loss of pay they may suffer in the
event the Company fails to offer them reinstatement or placement upon a preferen-
tial list as above set forth, by payment to each of them of a sum of money equal to
the amount he would normally have earned as wages during the time from five (5)
days after the date of the receipt of this Intermediate Report to the date of offer
of reinstatement or placement upon a preferential list, less his net earnings during
said period.81
Having found that there has been a refusal to bargain in good faith with the
Union, it will be recommended that the Respondent Company, upon request, bar-
gain collectively with the Union as the representative of its employees in the
appropriate unit previously described.
Having found also that the Respondent Union has violated Section 8 (b) (4) (A)
of the Act in the manner hereinabove described, it shall be recommended that said
Respondent cease and desist and take certain affirmative action hereinafter de-
scribed, in order to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Ira P. Hildebrand, d/b/a Hildebrand Warehouse Company,
the Missouri Pacific Railroad, and the Missouri Pacific Freight Transport Company,
are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Dallas General Drivers, Warehousemen & Helpers, Local 745, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL
(herein referred to as the Union), is a labor organization within the meaning of
Section 2 (5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of C. T.
Freeney, W. C. Tucker, N. T. Wheeler, Emery Miller, and Aaron Brooks,82 the
Respondent Company has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive repre-
sentative of its employees in the appropriate unit, the Respondent Company has
engaged and is engaging in unfair labor practices within the meaning of Section 8
(a) (5) of the Act.
5. The strike which began on August 31, 1953, was caused by the Respondent
Company's unfair labor practices.
6. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
7. By inducing or encouraging the employees of the Missouri Pacific Railroad
and the Missouri Pacific Freight Transport Company to engage in strikes or con-
certed refusals in the course of their employment to transport or otherwise handle
goods, articles, materials, or commodities, or to perform any services for their
respective employers, with an object to force or require the Missouri Pacific Rail-
road and the Missouri Pacific Freight Transport Company or any other employer
or person to cease doing business with Ira P. Hildebrand, d/b/a Hildebrand Ware-
house Company, the Respondent Union has engaged in unfair labor practices within
the meaning of Section 8 (b) (4) (A) of the Act.
8. 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.]
S1 For an excellent dissertation on reinstatement and reimbursement, see Wsltsama Motor
Co v. N. L. R. B , 128 F. 2d 960, 964-966 (C A 8)
82 Brooks was reemployed on March 22, 1954 However, he, along with the above-named
employees made application for reinstatement on February 15, 1954
HILDEBRAND WAREHOUSE COMPANY 1337
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, I hereby notify my employees that:
I WILL NOT discourage membership in Dallas General Warehousemen &
Helpers, Local 745, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, AFL, or any other labor organization of my em-
ployees by discharging or refusing to reinstate any of my employees or by dis-
criminating in any other manner in respect to their hire or tenure of employ-
ment, or any term or condition of their employment.
I WILL NOT in any like or similar manner interfere with, restrain, or coerce
my employees in the exercise of their right to self-organization, to form labor
organizations , to join or assist the above-named Union, or any of their own
choosing, and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from any or all
of 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.
I WILL offer to C. T. Freeney, W. C. Tucker, N. T. Wheeler, and Emery Miller,
immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges.
I WILL bargain collectively upon request with the above-named Union as the
exclusive representative of all employees in the bargaining unit described herein
with respect to rates of pay, hours of employment, or other conditions of em-
ployment, and if an understanding is reached, embody such understanding in a
signed agreement . The bargaining unit is:
All employees at the Tyler Warehouse excluding office and clerical em-
ployees, plant clerical employees, guards, watchmen, and supervisors as
defined in the Act.
All of my employees are free to become, remain, or to refrain from becoming or
remaining members in good standing in Dallas General Drivers, Warehousemen &
Helpers, Local 745, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, AFL, or any other labor organization, except to
the extent that this right may be affected by an agreement in conformity with Sec-
tion 8 (a) (3) of the Act.
IRA P. HILDEBRAND, D/B/A HILDEBRAND
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 any other material.
Appendix B
NOTICE TO ALL MEMBERS OF GENERAL TEAMSTERS, CHAUFFEURS & HELPERS, LQCAL
745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
& HELPERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF THE MISSOURI PACIFIC
RAILROAD AND THE MISSOURI PACIFIC FREIGHT TRANSPORT COMPANY
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify you that:
WE WILL NOT induce or encourage any employees of the Missouri Pacific Rail-
road and the Missouri Pacific Freight Transport Company, or any other em-
ployer (other than Hildebrand Warehouse Company), by picketing or related
conduct, to engage in a strike or concerted refusal in the course of their em-
ployment to use, manufacture, process, transport, or otherwise handle or work
on any goods, articles, materials, or commodities, or to perform services for their
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respective employers , where an object thereof is to force or require the Missouri
Pacific Railroad and the Missouri Pacific Freight Transport Company, or any
other employer or person , to cease doing business with Ira P. Hildebrand, d/b/a
Hildebrand Warehouse Company, or with any other employer or person , except
in accordance with Section 8 (b) (4) of the Act.
WE WILL NOT picket the Missouri Pacific Railroad station at Tyler, Texas,
and we withdraw any instruction , request , or appeal that any employee of the
Missouri Pacific Railroad and the Missouri Pacific Freight Transport Company,
or of any other employer, cease or otherwise refrain from dealing with said
Railroad in connection with our dispute with Hildebrand Warehouse Company.
GENERAL TEAMSTERS, CHAUFFEURS & HELPERS, LOCAL
745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, AFL,
, Labor Organization
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.
VALLEY STEEL PRODUCTS Co. and SHOPMEN 'S LOCAL 536 OF THE INTER-
NATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL
IRON WORKERS, AFL. Case No. 16-CA-738. March 31, 1955
Decision and Order
On August 13, 1954, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the 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 In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Respondent's request for oral argument is denied, as the record,
including the exceptions and briefs, adequately sets forth the posi-
tions of the parties.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and finds merit in the Respondent's exceptions.
The Trial Examiner found that the Respondent violated Section
8 (a) (1) by Manager Hill's remarks to employees Lloyd 2 and Cald-
well on February 23 and to Assistant Foreman Barber in the presence
of other employees on February 24 that the employees laid off on those
' We find no meet in the Respondent 's contention that the Trial Examiner was biased
and prejudiced
2 The Tiial Exanunei spelled this name "Loyd " However , fi om the transcript and
exhibits herein it appears that the propel spelling is "Lloyd
111 NLRB No. 206.