Jaycox Sanitary Service of Golden Grove, Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1966

161 N.L.R.B. 544 (N.L.R.B. 1966)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jaycox Sanitary Service of Garden Grove, Inc., and Jaycox Sani-
tary Service of Anaheim , Inc. and Package & General Utility
Drivers, Local Union No. 396, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America.
Case 21-CA-6637. October 27, 1966
DECISION AND ORDER
On June 21, 1966, Trial Examiner David F. Doyle issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Examiner's Decision and
a supporting brief, and the General Counsel filed an answering brief
in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Zagoria].
The Board has reviewed the ruling of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner as modified herein.
We find, as alleged in the complaint, established by a preponder-
ance of the evidence, and found, in effect, by the Trial Examiner,'
that the Respondent violated the Act as follows :
1. The Respondent refused, on and after April 5, 1965, to bargain
with the Union, which was the designated bargaining representative
of a majority of the employees in an appropriate unit, in order to
gain time within which to undermine the Union, and thereby violated
Section 8 (a) (5) and (1) of the Act and converted the strike which
began in the early morning of April 5, 1965, into an unfair labor
practice strike.'
2. After the employees returned to work, the Respondent unilater-
ally granted wage increases on April 12 and May 10, 1965, and
' we do not adopt the unnecessary comments in the Trial Examiner 's concluding find-
ings to which the Respondent excepts We also note that the Trial Examiner in one in-
stance erroneously referred to April 6 as Thursday instead of Tuesday.
2 We agree with the Trial Examiner ' s finding that the strike was precipitated by the wage
dispute and , therefore, do not adopt his apparently inadvertent subsequent finding that
it was caused by Respondent's unfair labor practices.
161 NLRB No. 34.
JAYCOX SANITARY SERVICE OF GARDEN GROVE, INC. 545
changed the routes on May 10, all without notifying and bargaining
with the Union, in violation of Section 8(a) (5) and (1) of the Act.
3. The Respondent forced employees, as a condition of returning
to work, to sign a paper revoking their designation of the Union as
their bargaining representative; and rescinded bonuses and vacation
pay which the employees had earned prior to the strike of April 5,
1965, because the employees had participated in the strike; and
thereby discriminated against such employees in violation of Section
8(a) (3) and (1) of the Act.
4. The Respondent discriminatorily refused to reinstate Paul R.
Infante, an unfair labor practice striker, upon his unconditional
application on April 29, 1965, and thereby has discriminated against
Infante in violation of Section 8(a) (3) and (1) of the Act.3
5. The Respondent, on or about May 2, 1965, threatened employees
with the loss of their jobs if the Union should become their collective-
bargaining representative, and on April 9 unlawfully interrogated
them concerning the union authorization cards they had signed at
the union hall on April 5, and thereby interfered with, coerced, and
restrained its employees in violation of Section 8(a) (1) of the Act.
We further find, in agreement with the General Counsel, that a
stipulation entered into by the Respondent and the Charging Party
that all the alleged unfair labor practices, except the discharge of
Paul Infante, have been effectively remedied by the execution of a
collective-bargaining agreement, does not justify dismissal of such
allegations nor obviate the need for a remedial order.4
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Jaycox Sanitary Service of Garden Grove, Inc., and
Jaycox Sanitary Service of Anaheim, Inc., their officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Package & General
Utility Drivers, Local Union No. 396, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of all their employees in the appropriate
unit with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
3 We find, in agreement with the Trial Examiner, that Infante's application, approxi-
mately 2 weeks after the other strikers returned to work, was made within a reasonable
period, in the circumstances of this case. See The Rollash Corporation, 133 NLRB 464, 477.
d L & H Trucking, Inc., 155 NLRB 104; Ohio Scientific Products Corporation, 151 NLRB
460, 464, 465
264-188-67-vol. 161- 3 6
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Unilaterally granting wage increases and changing the routes,
without notifying and bargaining with the above-named Union.
(c) Discouraging membership in the above-named Union or in
any other labor organization of their employees by refusing to rein-
state unfair labor practice strikers upon application, requiring strik-
ers to revoke their union membership as a condition of reinstatement,
refusing to pay established bonuses and vacation pay in retaliation
against employees for striking, or by discriminating against employ-
ees in any manner with regard to their rates of pay, wages, hours of
employment, hire, or tenure of employment, or any term or condition
of their employment.
(d) Threatening employees with loss of their jobs if they choose
the Union to act as their collective-bargaining representative, or
unlawfully interrogating employees concerning their union affiliation,
activities, or sympathies.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the above-named labor organiza-
tion or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds is
necessary to effectuate the policies of the Act.
(a) Upon request, bargain collectively with Package & General
Utility Drivers, Local Union No. 396, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of employees in the appropriate unit,
with respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement. The
bargaining unit is :
All truckdrivers, helpers, and mechanics, excluding office clerical
employees, professional employees, guards and supervisors as
defined in the Act.
(b) Offer to Paul Infante immediate and full reinstatement to
his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges, and make him whole
for any loss of pay he may have suffered as a result of the Respond-
JAYCOX SANITARY SERVICE OF GARDEN GROVE , INC. 547
ent's discrimination , in the manner set forth in the section of the
Trial Examiner's Decision entitled "The Remedy."
(c) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
(d) Reinstitute the system of bonuses and vacation pay estab-
lished prior to April 5, 1965 , and make whole all employees who
have earned said bonuses or vacation pay for any financial loss they
may have suffered as a result of the Respondent 's discriminatory
discontinuance of said bonuses and vacation pay, as set forth in the
section of the Trial Examiner 's Decision entitled "The Remedy."
(e) Preserve and, upon request , make available to the Board or
its agents , for examination and copying , all payroll records, social
security payment records , timecards , personnel records and reports,
and all other records necessary to analyze the amount of backpay
and reimbursement due under the terms of this Order.
(f) Post at its plant at Orange County , California , copies of the
attached notice marked "Appendix ." ' Copies of said notice, to be
furnished by the Regional Director for Region 21, after being duly
signed by representatives of both Respondent Companies , shall be
posted by the Companies immediately upon receipt thereof, and
be maintained by them for 60 consecutive days thereafter , in con-
spicuous places , including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Com-
panies to ensure that said notices are not altered , defaced, or covered
by any other material.
(g) Notify the Regional Director for Region 21, in writing,
within 10 days from the date of this Order , what steps have been
taken to comply herewith.
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT refuse, upon request, to bargain collectively
with Package & General Utility Drivers, Local Union No. 396,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive representative of
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, or other terms and conditions
of employment.
WE WILL NOT discourage membership in the above-named
Union or in any other labor organization by refusing to rein-
state unfair labor practice strikers upon application, requiring
strikers to revoke their union membership as a condition of rein-
statement, refusing to pay established bonuses and vacation
pay in retaliation against employees for striking, or discrim-
inating against employees in any manner with regard to their
rates of pay, wages, hours of employment, hire, or teunre of
employment, or any term or condition of their employment.
WE WILL NOT threaten employees with loss of their jobs if
they choose the Union to act as their collective-bargaining
representative, or unlawfully interrogate employees concerning
their union affiliations, activities, or sympathies.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the
above-named labor organization or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized by Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL bargain collectively, upon request, with the above-
named labor organization as the exclusive representative of all
employees in the bargaining unit described below with respect
to rates of pay, wages, hours of employment, and other terms
and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement.
The bargaining unit is :
All truckdrivers, helpers, and mechanics, excluding office
clerical employees, professional employees, guards and super-
visors as defined in the Act.
WE WILL offer Paul R. Infante full and immediate reinstate-
ment to his former or a substantially equivalent position, with-
out prejudice to his seniority and other rights and privileges, and
make him whole for any loss of earnings he may have suffered
by reason of the discrimination against him, with interest
thereupon at 6 percent per annum.
JAYCOX SANITARY SERVICE OF GARDEN GROVE, INC. 549
WE WILL reinstitute the system of bonuses and vacation pay
established prior to April 5, 1965, and make whole all our
employees for any loss of pay they may have suffered as a result
of our recission of the established systems of bonus and vacation
pay, with 6 percent interest thereon from the date of the
accrual.
All our employees are free to become, remain, or refrain from becom-
ing or remaining, members of the above-named Union, or any other
labor organization.
JAYCOX SANITARY SERVICE OF GARDEN GROVE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
JAYCOX SANITARY SERVICE OF ANAHEIM, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
NOTE.-We will notify Paul R. Infante if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as amended, after
-discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
,other material.
If employees have any question concerning this notice or com-
pliance with its provisions, they may communicate directly with the
Board's Regional Office, Eastern Columbia Building, 849 South
Broadway, Los Angeles, California 90014, Telephone 688-5229.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented by counsel was heard by Trial
Examiner David F. Doyle at Santa Ana; California, on October 19-November 4,
1965, on complaint of the General Counsel and answer of the Respondent. The
issues litigated were whether the Respondent had violated Section 8(a)(1), (3),
and (5 ) of the Act by certain conduct more fully described hereinafter.'
1 In this Decision , Jaycox Sanitary Service of Garden Grove, Inc ., and Jaycox Sanitary
Service of Anaheim, Inc., are referred to as the Company or the Respondent since they
are found to be a single employer herein ; Package & General Utility Drivers, Local Union,
No. 396, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America , as the Union ; the National Labor Relations Board, , as the Board ; the General
Counsel of the Board and his representatives at the hearing as the General Counsel ; and
the Labor Management Relations Act, as amended , as the Act.
The original charge against the Company was filed on April 16, 1965, by counsel for the,
Union. A first amended charge was filed on June 18, by counsel for the Union and com-
plaint was issued by the Regional Director ( Region 21, Los Angeles , California) on
June 29, and was subsequently amended on September 20.
All dates in this Decision are in the year 1965 unless specified otherwise.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, the parties were afforded a full opportunity to present evidence,
examine and cross-examine witnesses, and to present argument and briefs. Briefs
have been received from the General Counsel and the Company, which have been
considered.
Upon the entire record and my observation of the witnesses, I hereby make the
following.
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE COMPANY
It is undisputed that Jaycox Sanitary Service of Garden Grove, Inc., is a Cali-
fornia corporation with its principal place of business in Anaheim, California, where
it is, and has been engaged for sometime past, in the business of trash and garbage
collection and disposal. Jaycox Sanitary Service of Anaheim, Inc, is also a Cali-
fornia corporation with its principal place of business in Anaheim, and, like its
sister company, is and has been for sometime past, engaged in the business of trash
and garbage collection and disposal.
The undisputed evidence is that the business of both corporations is conducted
from the same offices and yards, with a single amount of trucking equipment which
is housed in its principal place of business in Anaheim, California. It is undisputed
that Warren W. Jaycox is the owner and the highest person in authority in the
operations of both corporations Raul Rangel is manager of both corporations and
Joel Guerena, Joe Vargas, and Joe Dominguez are foremen and supervisors within
the meaning of the Act.
During the calendar year 1964, a period representative of its business operations,
the Company performed services for the city of Anaheim, California, in a dollar
amount in excess of $50,000. During a like period, the city of Anaheim, California,
purchased from Pacific States Cast Iron Pipe Co , supplies of pipes and fittings in
a dollar amount in excess of $50,000, which supplies were transported to and
delivered to the city of Anaheim, by Pacific States Cast Iron Pipe Co., directly
from Provo, Utah.
I find that the services rendered to Anaheim by the Company are indirect outflow
for jurisdictional purposes and meet the Board 's jurisdictional standards. I also
find that the two corporations are, and have been, at all times material herein,
a single, integrated business enterprise, and constitute a single employer for the
purposes of the Act.2
II. THE LABOR ORGANIZATION
It is undisputed that the Union is and. at all times material herein, has been a
labor organization within the meaning of Section 2(5) of the Act
In the course of this Decision, a second labor organization will be mentioned,
this is Local 235, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, which has an office and meeting hall located on
Chapman Avenue in Orange, California.
III THE UNFAIR LABOR PRACTICES
A. Pi efatoiy lc w,ks
The testimony in this proceeding fills eight volumes containing 1.269 pages In
the course of the proceeding , the General Counsel called and examined approxi-
mately 23 witnesses , mostly employees , and the Company called four witnesses,
principally supervisors of the Company . While the testimony is voluminous, and
the exhibits in evidence are many, the events which constitute this controversy form
a simple sequence of events . As will be noted , throughout this controversy, the
employees acted in concert ; and management , for its part , also acted only after
the conference of certain persons. The result of this concerted action is that the
testimony of all employees is similar in content and purport , the testimony of each
employee finding substantial corroboration in the testimony of other employees.
In like manner, the testimony of management personnel falls into the same pattern.
For the purpose of brevity in this Decision , I will summarize those parts of the
controversy which are not in dispute and on occasion , note those minor items upon
which there is a conflict between the witnesses . I will note my findings as to these
conflicts.
2 Carroll-Naslund Disposal , use., 152 NLRB 861 ; Sieinons Mailing Service, 122 NLRB 81.
JAYCOX SANITARY SERVICE OF'GA1DEN GROVE, INC. 551
B. The 'appropriate unit
It is undisputed that the Company is in the business of collecting and disposing
of trash and garbage in the cities of Anaheim and Garden Grove , California. It
provides the services to those cities , which in other municipalities are performed
by the sanitation department . The Company has a fleet of trucks equipped for the
purpose of such collections . The employees who work for the Company in these
operations are classified as drivers , swampers , and mechanics . The swampers ride
with the drivers on the trucks and are in reality helpers to the drivers. The
mechanics do the work of keeping the motor vehicles in repair . At the hearing, it
was stipulated by counsel that , at the time this controversy arose, there were 70-75
employees in a unit of employees which counsel for the Company admitted was
appropriate for purposes of collective bargaining.
The complaint defines the appropriate unit as follows:
All truckdrivers , helpers, and mechanics , excluding all other employees, office
clerical employees , professional employees , guards and supervisors as defined in
the Act.
C. The strike; the meeting at Teamsters hall; the designation
of the Union by the employees
According to the testimony of employees, for sometime prior to April 5, the
employees had heard rumors that the routes of the men were being studied and
rearranged by management. They felt that this would mean that they were to be
given more work, and since they felt underpaid at that time, they were disturbed.
On April 5, the drivers and swampers, numbering approximately 64-66 arrived at
the Company's yards at about 6 a.m. After some discussion among themselves, the
men asked Manager Raul Rangel for a raise of $15 a week, with the understanding
that there would be no increase in the number of stops on the routes. Rangel made
the men a counteroffer; he offered them a raise of $5 a week immediately, which
the employees promptly refused. Rangel then told the men to either accept the $5
raise and go to work, or to leave the yard. After some discussion, the employees
left the yard, but waited outside the gate on the sidewalk to see Warren Jaycox,
the owner of the Company, when he arrived at about 7:30 or 8 a.m. When Jaycox
reached the gate that morning, he listened to the men who gathered around him,
and he told them to select a spokesman for the Garden Grove area and one for the
Anaheim area, and that he would talk to them in the office. The employees con-
sulted and elected John Nieto and Joe "Blackie" Diaz as the spokesmen. They
went to the office of Jaycox for the conference.
According to the testimony of Nieto, Jaycox offered the employees a $5-a-week
increase immediately and said that after approximately 2 weeks or a month, when
the Company "adjusted" the routes, he would give the employees the rest of the
money. Blackie Diaz, who was called as a witness by the Company, stated that
Nieto and he talked to Jaycox in the office and that Jaycox came to the gate and
addressed the men, telling them he would give them a $5-a-week increase immedi-
ately, and after a month or so, he would pay them the additional $10. The employ-
ees discussed this offer, but most of them were dissatisfied with it. Someone sug-
gested that they needed a union to represent them. Then the suggestion was made
that they go to the Teamsters union hall on Chapman Avenue, Orange, and ask the
Union to represent them. The last suggestion met with unanimous approval, so all
the men piled into their cars and went to the union hall.
It is undisputed that, when they arrived at the union building and entered the offi-
ces of Local 235, they were met by Kelly Drake and Albert Swift, representatives of
Local 235. Nieto and Diaz and the other employees told Drake they had just come
from the Company, and that they wanted the Teamsters Union to represent them
in their dispute with the Company Drake informed them that Local 235 did not
represent trash truckdrivers, that Local 396 in Los Angeles had jurisdiction over
such drivers, and that if the men wanted Local 396 to represent them, they should
go into the meeting hall and he would get in touch with a representative of Local
396 and ask him to come to the meeting hall to speak to them.
It is likewise undisputed that all 64-66 employees then went to the meeting hall
in the building where Drake spoke to them in English with Diaz, Nieto, and other
employees acting as interpreters. Drake again told them that his local did not repre-
sent the trash drivers, and that, if they wanted the Union to represent them, they
should sign authorization cards that would be passed out to them. Drake asked them
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if they wanted Local 396 to represent them, and the employees unanimously
answered in the affirmative. Drake then instructed Swift and Robinson to pass out
authorization cards to the employees present in the meeting hall. These were cards
usually used by Local 235, but everyone at the meeting knew and understood that
the cards they were signing designated the Union (Local 396). All of the employees
present signed the cards which were then collected by Swift and Robinson and
delivered into the possession of Kelly Drake. It is undisputed that, while the
employees were having this meeting, Drake telephoned John Drobish, the president
of the Union in Los Angeles. Drake told Drobish that the Company's employees
were in the union hall and that they wanted the Union to represent them. He asked
Drobish to come to the union hall immediately to speak to the employees. Drobish
said that he would proceed to Orange immediately. After talking to Drobish, Drake
called the Company and talked to Warren Jaycox. He informed Jaycox that the
Company's employees were at the Teamsters hall, and he asked Jaycox if Jaycox
wanted the men back to work. He also told Jaycox that he had contacted the pres-
ident of the Union, and that a representative of the Union was on his way to
Orange. Jaycox told Drake to send the employees back to work. When Drake
returned to the meeting hall, he was handed the collected, signed authorization
cards, and he told the employees that a representative of the Union would be down
later, and that Jaycox wanted the men to go back to work. The employees agreed to
go back to work, and Drake told Business Representative Robinson to go with them,
to see that they were put back on the job.
1. Schleining is brought in by Jaycox; the officers of other disposal companies
confer with Jaycox, who makes and breaks appointments with Drobish
It is likewise undisputed that, immediately after Drobish was notified by Drake that
the employees wanted the Union to represent them, Drobish phoned the Company's
place of business and asked for Jaycox. A man answered who identified himself as
Jaycox. Drobish stated who he was, and that he was a representative of the Union
and he told Jaycox that the Union represented his employees. Jaycox then said that
there was someone in his office who knew Drobish and that Jaycox would like to
have Drobish speak to this man, Adam Schleining. Schleining is also engaged in
the business of trash collection. In his own business, Schleining has a collective-
bargaining agreement with the Union, and thus knew Drobish. In a second trash
collection business, Schleining is a partner of Jaycox. When Schleining took the
phone from Jaycox, he asked Drobish to come to the Company's office to discuss
the situation. Drobish agreed to go to the Company's office.
Meanwhile, Teamster Representatives Robinson and Brown arrived at the Com-
pany's offices with the employees. They introduced themselves, and then Brown
asked Jaycox if he would put the employees back to work as he had said he would.
Jaycox responded that it was quite late in the day and he doubted if the Company
would attempt to make any pickups of trash that day. Brown told Jaycox that all
the employees had signed up with the Union, and that a representative of the Union
would arrive at the company offices shortly. Brown then asked if Jaycox would
deal with the Union. Jaycox replied that he did not know what he would do at that
time, that he wanted to check with some of his associates before he took any action.
He said that some of his associates in the trash business were on their way to his
office at that time. Jaycox also said that he thought he would call a meeting of the
employees and discuss the situation with them. Brown told Jaycox that, if he con-
ducted such a meeting with employees without union representatives being present,
it might result in charges being filed against the Company by the Union with the
National Labor Relations Board.
It is undisputed that Drobish arrived at the Company's office around 11 a.m.,
where he saw about 15 employees standing around the gate. He introduced himself
as the president of the Union, and he told them that he was there to represent
them. He asked them to go back to the union hall in Orange where he would meet
them as soon as he talked to company officials. Drobish then went to the company
office where he was met by Schleining, Jaycox, and a man unknown to Drobish.
From this point onward, it is clear that Schleining, at the request of Jaycox, was
instructed to arrange meetings between Jaycox and Drobish, but it is equally clear
that Jaycox was in constant conference with the owners of other trash-collecting
companies in the area who influenced Jaycox to ignore the Union, while the strike
was broken and the influence of the Union was undermined. At this first meeting,
after some brief conversation, Schleining told Drobish to come back to the company
JAYCOX SANITARY SERVICE OF GARDEN GROVE, INC. 553
office about 2 p.m. that afternoon, as Jaycox was not ready to talk about anything.
In his testimony, Schleining stated that he did not recall this first conversation, but
I credit Drobish.
2. The majority status of the Union
His effort to see Jaycox being futile, Drobish proceeded to the union hall in
Orange where he met the assembled employees and addressed them. At this time,
Drobish was given the authorization cards which the employees had signed that
morning by Drake. Both Drobish and Union Representative Raasch testified that
at that point at the meeting, Drobish instructed Raasch to count the cards which
had been signed and to count the number of Respondent's employees present at the
meeting. Raasch counted 64 signed authorization cards and 66 employees present
in the union hall. Drobish then addressed the meeting, telling the men that the
Union would represent them, but that the Union would expect them to follow the
advice he gave them. Drobish told the employees of some of the benefits under con-
tracts which the Union had with other trash disposal services. He also told them
that, if negotiations resulted in a contract, they would have an opportunity to vote
on whether to accept it or not. He told the employees that he had an engagement
to meet with Jaycox at 2 p.m. that afternoon, so he told them that they were free
to leave the union hall, but they should return at approximately 3:30 so he could
tell them what had happened at his meeting with Jaycox. Since some of the employ-
ees did not understand English, Dorbish's speech was translated into Spanish by
some of the men present. It should be noted that Raasch testified that he kept the
cards signed by the men until the following day when he returned them to Drobish
who kept them under lock and key until they were submitted by the Union's attor-
ney to the Board on the day before the filing of the charges herein. At the hearing,
the General Counsel had many employees, in their testimony, identify individual
authorization cards. Finally, he accepted one of my suggestions, that the cards be
introduced as a package of one exhibit, since the circumstances surrounding the
signing of the cards had been established by a large number of witnesses. The 64
cards signed at the meeting were admitted in evidence .3 Also it should be noted
that, though these cards are those usually used by Local 235, the evidence is abun-
dant that they were an improvisation, to be used to designate the Union as a repre-
sentative of the men. There is no claim in this record that the men were mistaken
or misled as to their representative.
Drobish, accompanied by Union Representative Raasch, arrived at the Company's
office at 2 p.m. that afternoon. When they inquired for Jaycox, they were told that
he was in a meeting. Drobish asked the receptionist to tell Jaycox that he was there,
but when she came back from the conference room, she told Drobish that the men
inside had said that they could not meet with Drobish at that time or discuss a con-
tract or anything with him. They would let him know what they wanted to do later.
Drobish requested the receptionist to request them to come out of the room and
see him. Schleining testified that at the request of Jaycox, he came out and told
Drobish that they were having a meeting of "the Association" (a group of owner-
operators in the trash collection-disposal business) and that Jaycox was not ready
to discuss anything until they could see where they were going. Schleining said that
he told Drobish that "we will contact you later." Both Drobish and Schleining are
in agreement as to their conversation at this time and place.
Drobish returned to the Teamsters hall in Orange where again he met with all
of the employees. He told the employees that Jaycox had determined not to see him,
so he instructed them to go to the Company's yards on Tuesday morning at their
regular work time and, if the Company attempted to make collections that day, the
men were to begin picketing the Company's yards. He told them that Union Repre-
sentative Raasch would be in charge of the picket line.
On Thursday, April 6, the Company attempted to continue its operations with the
use of employees loaned to it by members of the Orange County Rubbish Disposal
Association.4 When this occurred, the Jaycox employees began picketing with signs
reading "Jaycox unfair to Teamsters Local 396."
It was stipulated by counsel for the parties that this picketing continued until the
afternoon of Wednesday, April 14, by which time all but approximately four or
five of the Company's employees had returned to work.
s Hunter Engineering dompdny, 104 NLRB 1016, 1020-21. The cards are General
Counsel 's Exhibit 2-1 to 64.
' Hereafter called the Association.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Strike-breaking conduct of the Company; the undermining of the Union's posi-
tion; the Company's agreement to meet demands of the men, as long as the
Union was bypassed in the settlement
Business Representative Raasch testified that picketing by the Union began on
April 6, and on that day, and thereafter, the Company continued its operations with
the use of men furnished by members of the Orange County Rubbish Disposal Asso-
ciation, an employer organization of companies engaged in the trash removal busi-
ness in Orange County, Califoinia. Raasch, who was the union agent in charge of
the picket line, identified the companies loaning men and some equipment as fol-
lows- Dick Taormina, Anaheim Disposal Co , Sam Hembarian, Orange Disposal
Co.; Tom Trulis, Garden Grove Commercial Co, Tom Blackman, Great Western
Reclamation Co.; Bud Holte, Holte Disposal Co. In his testimony, Schleining, tes-
tified that these persons were in daily conference with Warren Jaycox and Raul
Rangel concerning the operations of the Company at the Company's office.
Schleining, who was sworn as a witness by the General Counsel, and who
appeared to be a creditable witness, testified that on Wednesday, April 7, Jaycox
asked him to contact the Union and to arrange a meeting. Pursuant to that request,
Schleining talked to Raasch, who had charge of the Union's picket lines, and
arranged a meeting between the Union and Jaycox to be held at Schleming's office
on Friday afternoon. In his testimony, Drobish said that this meeting was arranged
by Schlemmg for Saturday afternoon but the discrepancy is of no importance since
the meeting did not occur.
Employee Victor Martinez testified credibly that on Thursday, April 8, Manager
Raul Rangel came out of the office and yard to the men on the picket line and told
the pickets that Jaycox desired the employees to come back to work, and was will-
ing to give the employees the $15-a-week increase which they had asked for on the
morning of April 5. He said that Jaycox would immediately increase their salaries
$5 a week, and after a month would bring the increase up to the requested total of
$15 a week. The next day, April 9, was payday. The striking employees went into
the Company's office two at a time to pick up their paychecks. John Nieto, who
appeared to be a most credible witness, testified that when he and Blackie Diaz went
into the office to get their checks, Taormina of Anaheim Disposal Co., who was in
the Company's offices, called them over to where he was sitting. He asked them
what the Union was doing for them, and was it getting anywhere. Taormina then
said, "why don't you have a talk with Jaycox, get something straightened out." At
that point, General Manager Rangel entered the office and Taormina told him that
Nieto and Diaz wanted to meet with Jaycox. Rangel said that could be arranged and
Taormina suggested that they meet that morning at the nearby Wonder Bowl, a
bowling lane near the office.
4. The first meeting at the Wonder Bowl; the undermining of the Union
It is undisputed that on April 9, employees Diaz, Nieto, Salazar, Bill, and Palma
went to the Wonder Bowl. There they met with Jaycox, Rangel, general manager
of the Company, Robert Faust, attorney for Jaycox at that time, not the attorney of
record for the Company in this case, Taormina of Anaheim Disposal Co., and Tru-
lis of Garden Grove Disposal Co. It is undisputed that, at this meeting, Jaycox
offered the employees a $5 raise immediately There is some conflict between the
witnesses as to whether Jaycox also said that he would do what he could about the
$10 additional later, or whether he said that he would give them the additional $10
in about 2 weeks when the routes were adjusted. However, the tenor of this conver-
sation was that the pay demands of the men were to be met within the immediate
future. One of the employees asked that Jaycox put this offer in writing, but Jaycox
said that wasn't necessary.
At this meeting, there was also a discussion about the subject of the authorization
cards which the employees had signed. While witnesses differ as to who introduced
the subject, it is undisputed that the employees told Jaycox that all the men had
signed cards at the union hall. It is likewise undisputed that Jaycox asked the
employees if they knew what they had signed. Several of the employer representa-
tives expressed interest in the cards, and the question was asked if they would "hold
up in court." According to employee Salazar, Faust, counsel for the Company,
asked the employees to procure a card for him so that he could see if the card was
"worth anything " In the course of the meeting, the employee witnesses agreed that
one of their number told Jaycox that the Union had informed the picketing employ-
ees that Drobish had a meeting with Jaycox arranged for the following Saturday.
JAYCOX SANITARY SERVICE OF GARDEN GROVE, INC. 555
Jaycox told the employees that he had never received a call from the Union, and
had never been asked to confer with the Union. He denied that the Union had a
meeting arranged with him for Saturday. To prove this, he said, he would be at
the Company's yard on Saturday, at the time of the supposed conference with the
Union; he would walk out of the door and speak to the assembled pickets. Schlein-
ing testified that a day or two prior to Friday, April 9, Jaycox told Schleining that
the other members of the Association had learned of the scheduled meeting of Jay-
cox with the Union, so Jaycox wanted to call off the meeting because it would
antagonize the other members of the Association who were aiding him by the loan
of men and equipment. Schleming phoned Raasch and canceled the meeting for
Friday and rescheduled the meeting for Saturday at the Union's office in Los
Angeles. However, on Saturday when Schleming arrived to go with Jaycox to the
meeting in Los Angeles, Jaycox told him the meeting was postponed because mem-
bers of the Association had learned of the meeting, and Jaycox was "being sup-
ported by these men " Schleining then told Raasch there would be no meeting that
day. Schleining testified that, in the week of the strike, Jaycox's interest in meeting
with union representatives underwent a change . When he first asked for Schleining's
assistance , he desired to meet with the Union, but later in the week, he said that a
meeting seemed to be unnecessary because "we have the situation pretty well under
control." Later, Jaycox told Schleming that he could see no advantage to having
a meeting with the Union, so Schleimng did not attempt to arrange any further
meetings between the Union and the Company. On April 10, at 4 p.m., the time at
which Jaycox had an appointment with the Union, Jaycox, accompanied by three
other disposal company operators in the area, walked out to the men on the picket
line. Representative Raasch was among them. Raasch testified that Jaycox told the
assembled pickets that he would give them a $5 increase immediately, and another
$10 increase as soon as the routes "were adjusted" and that the employees could
come back to work on Monday. Raasch countered this move by telling the pickets
that there would be a union meeting on the next day, Sunday, April 11, at 10
o'clock at the union hall.
5. The employees' vote to continue the strike; the undermining of the
Union is successful; the employees abandon the strike
On the next morning, approximately 50 or 55 employees attended the meeting. In
the course of the meeting, they were addressed by union organizers and they voted
to continue picketing for another week and assisted in making out a schedule of
picket assignments. However, at this meeting, many of the employees expressed
their worry about their ability to withstand financially another week of striking. On
that evening, employee Guevara was at the home of Blackie Diaz when Fonseca,
an employee favorable to Jaycox, came to the house in a company pickup truck.
The men discussed the subject of going back to work, and Fonseca proposed that
they visit the employees to poll them to see how many wanted to go back to work
on the terms offered by Jaycox. Guevara and Fonseca then got in the car driven by
Fonseca and went to approximately 25 employees. Of those polled, about 21 said
they desired to go back to work. At appioximately 9 p m., Diaz telephoned Jaycox
and arranged another meeting for that evening at the Wonder Bowl.
6. The second meeting at the Wonder Bowl
At this meeting, Jaycox agreed to put in writing his offer of a $5-a-week increase
immediately and $10 a week when the routes were adjusted. Taormina, in Jaycox's
presence, showed the employees at the meeting a paper and asked them to sign this
paper This document reads as follows (General Counsel's Exhibit 3):
Revocation of Authorization
I, the undersigned, employee of W. W. Jaycox Sanitary Services, do hereby
renounce and revoke any and all authorizations heretofore given in writing or
orally to the General Truck Drivers, Warehousemen and Helpers Union, Local
235, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, or to any personal organization whatsoever to represent,
negotiate or assist in any way the undersigned for wages, working conditions
or employment.
This revocation, supetcedes any authority whatsoever previously given to
any person or organization, including, but not limited to, the matters stated in
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the preceding paragraph; and to sign any contract, form or document, union
or otherwise, by and in behalf of the undersigned.
My signature (signed) Edward De Avila
Street 729 Victor, Apartment D
City Anaheim
Kind of Work Driver
Date 4-13-65
On this same form, there is handwritten the following:
Wages on this date, 4-12-65 Drivers, $90, Swampers, $80
To be increased to drivers, $100
To be increased to swampers, $90
As routes are adusted
(S.) Warren W. Jaycox
The meeting concluded when Jaycox gave the employees $25 for gas to be
used while they went to the homes of employees to tell them of his offer and of his
desire for them to report for work. In his testimony, Rangel said that on the fol-
lowing Monday morning approximately 38 employees returned to work. Rangel and
Jaycox asked each of these employees to sign the form of revocation of authoriza-
tion set forth above and informed them that they had to sign it before they started
to work. As employees returned to work on ensuing days, they also were given these
forms to sign. Within a few days, all employees had returned to work.
7. The employees are threatened with loss of their jobs if the Union
should become their collective-bargaining agent
Employees Nieto, Guevara, Salazar, and Salas testified credibly that on approx-
imately May 1, Rangel and Foreman Guerena informed the employees that there
would be a meeting of employees on the next morning before they went out on their
routes. On the following morning, all the employees gathered with Foremen Vargas,
Dominguez, and Guerena. Foreman Guerena talked to the men. He said that he
knew that they still wanted the Union and Jaycox had said that if they wanted the
Union, they could have it, but they were going to lose money by that move, and
were going to hurt their own people. Jaycox had told Guerena that if the Union
became the bargaining agent for the men and the Company signed a contract with
the Union, the Company would have to require that all employees, drivers espe-
cially, speak and write English and those that could not do that would have to be
discharged. Guerena said that all drivers would be required to speak and write Eng-
lish because sometimes people talked to them about removing special trash and
other things. Guerena also said that if they wanted the Union they should look for
another job because the Company would be required to hire men who spoke
English.
Guerena also had several union cards and he showed these to the men and said
that he had experience with unions and that they had never helped him, and that
anyone who joined the Union was throwing his money away.
Both Guerena and Rangel testified to their version of what happened at the meet-
ing. They testified that the meeting was held on April 14. They said that various
cities in which the Company made collections had threatened to take over the equip-
ment and collect the trash themselves because of a clause in the contract between
the Company and the cities, which gave the cities the right to take such action when
a company did not perform its contract. Guerena and Rangel explained that there
also was a clause in the Company's contract with the cities which forbade the Com-
pany to employ aliens. Guerena and Rangel claimed that they had only told the
employees that if the work which had not been performed during the strike, was
not caught up quickly, and if the cities decided to take over the equipment, that
those employees who wanted to work for the cities would have to be able to speak
and read English.5 However, on cross-examination, Guerena admitted that "the
5 Respondent 's Exhibits 1, 2, and 3 are contracts between certain cities and the Com-
pany, containing pertinent clauses.
JAYCOX SANITARY SERVICE OF GARDEN GROVE, INC . 557
Union" had been mentioned in his speech, and in his turn, Rangel admitted that
Guerena had displayed some union cards to the employees, and in the course of his
remarks, had told them that the Union had never done anything for him. I credit
the testimony of the employees.
8. The Company rescinds the bonuses and vacations the employees had
earned prior to the strike because of their participation in the strike
Employees Guevara, Salazar, and Nieto testified that at a second meeting of
employees, after they had returned to work, Jaycox addressed them and stated that
all employees who had returned to work must start as new employees as of the time
they returned to work after the strike. He said that because he had lost so much
money during the strike, he would not be able to pay the bonuses and vacations
that the men had earned up to the time of the strike; therefore, he was canceling
them.
In the course of his examination, General Manager Rangel said that when the
strikers returned to work they were treated, for bonus and vacation purposes, as if
they were new men, "in other words, they were just like they came in off the street.
In other words, nothing." He explained that few of the men took vacations, but
they were paid for the accrued time. Rangel said that at a later date, Jaycox prom-
ised the men vacations, if they caught up with the work, and the Company
"responded well to get back on its feet." It is undisputed that, at the time of the
strike, there was in effect a "Safe" or "Good Driver" system of bonus. After the
strike, the men never received this bonus, even though it had been earned prior
to the strike.
9. The Company unilaterally changes the routes and wages of the
returned strikers without notifying or bargaining with the Union
It is undisputed that after the strikers returned to work on April 12, 13, and 14,
the Company paid the drivers $90 a week and the swampers $80 a week. On
May 10, the adjustment of the routes was effected and the drivers' pay was raised
to $100 a week and the swampers' pay to $90 a week. It is not disputed that these
changes in both routes and pay were effected without notifying or bargaining with
the Union.
D. The refusal of the Company to reinstate Paul Infante
Employee Paul Infante testified credibly and without contradiction that he had
worked for the Company for approximately 6 years at the time of the strike. For
over a year prior to the strike he had been the driver on "a regular route" with "a
truck assigned to him." On the morning of the strike, he joined with the other men,
signed a union authorization card, and thereafter picketed.
Infante testified that when the other men went back to work, he decided that he
would not go back. As he explained, "It just did not occur to me to go back, then
and there." Infante also admitted that he gave an affidavit to a Board agent which
contained the following statement, "no one came to my home to ask me to return
to work. I decided I would not return to work even after the others told me they
were returning. The first time I reapplied for my job was this past Wednesday,
April 28th, I spoke to my foreman about 6:30 a.m. I asked him if I could get my
job back. He said there were no openings right now. He did not say he would call
me." Infante testified further that he did not go back to the Company and request
reinstatement to his job until after he had been informed by an official at the unem-
ployment compensation office that he was ineligible for such compensation, because
the other men had gone back to work, and he could get his job back if he applied
for it. It is undisputed that in the Company's operations there are some drivers and
swampers who are assigned to "regular routes" and there are some, usually newer
employees, who come to the yards each morning to take chances on assignments to
a truck and a job.
E. Concluding findings
It is conclusively established by the undisputed testimony of numerous employees
and several union officials , that on the morning of the strike, 64 employees of the
Company went to the union hall and there, in the presence of each other and in
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the presence of the union officials, signed cards authorizing the Union to represent
them in collective, bargaining. The authenticity of the cards admitted in evidence
is .proven, by all the .abundance of circumstances surrounding their signing. There
can be no doubt that on that morning the Union was designated by 64 employees
in the admitted appropriate unit which, including mechanics, had approximately 70
to 75 employees. Therefore, I find that the Union on April 5 and thereafter, was
the duly designated bargaining representative of a majority of the men in the appro-
priate unit which has been heretofore described.
It is likewise overwhelmingly established by the credible testimony of the union
officials including Drake, Brown, and Drobish that on the morning of the strike, the
Union told the Company that it represented a majority of the employees in the
appropriate unit, and that the Union demanded recognition and was ready to com-
mence bargaining to settle the wage question which precipitated the strike. The
record is undisputed, and here it must be remembered that Jaycox did not testify
in this proceeding, that Jaycox expressed no doubt of the Union's majority status.
On that morning, with 65 plus of his men on strike and at the union hall, Jaycox
certainly was in no position to deny that his men had selected the Union to repre-
sent them.
It is clear from the testimony of Adam Schleining, which I credit, that Jaycox
first sought the advice of Schleining and sought to use him as some sort of an inter-
mediary with Drobish of the Union. However, the testimony of Schleining, which
in all respects was credible, proves that Jaycox soon fell under the influence of other
members of the Association who advised him to ignore the Union and not bargain
with it. Thereafter, Jaycox, through Schleining, set up a series of meetings with
Drobish and then refused to meet with him. Meanwhile, the supervisors of the Com-
pany and the officers of the other companies, who were supplying men to the Com-
pany for the continuance of its operations, began a campaign of undermining the
Union and inducing the men to abandon their strike and the Union. The final act
of,this campaign was that of Jaycox, when he addressed the employees at the very
moment for which he had made and broken an appointment to meet Diobish and
Schleining. This lying deceit of Jaycox precipitated the capitulation of the men;
they began to doubt that Drobisti actually had an appointment with Jaycox. Jaycox
also coupled this conduct with an offer to the men of compliance with their original
demand of $15. To further persuade them, he put this offer in writing. The intention
of Jaycox is abundantly clear in this record, but there can be no doubt of it, in the
light of the renunciation of the union authorization cards, which the Company
extracted from each employee, before lie was returned to work.
It is undisputed that, after the men returned to work, the new wages were paid
them, beginning on April 5 with an increase of $5 a week and on May 10, an
increase of $10 a week. This was done without notification or bargaining with the
Union, and it is likewise undisputed. that the routes were equalized without any
notice or bargaining with the Union. Upon all of this evidence, I find that the Com-
pany has refused to bargain with the Union in violation of Section 8(a)(1) and
(5) of the Act.
It is also undisputed that after the employees returned to work, the Company
threatened them with the loss of their jobs if they continued to seek the Union as
their representative in collective bargaining. I find this to be a violation of Section
8(a)(1) of the Act.
The,evidence is also undisputed that the Company rescinded bonuses and' vaca-
tions which the - men had earned prior to the strike, because of their participation
in_the strike . That conduct I find to-be a violation of Section 8(a)(1) and (3) of
the Act.,
Counsel for the Respondent argues that, on the testimony of Infante himself,
it is,clear that the, choice of.not returning to work was Infante's alone and that the
Company did not refuse - to reemploy Infante . In this connection , he alludes to the
fact that the, standard procedure with the Company was to fill the trucks with
drivers and helpers. on the first -come basis and any extra men who arrived late did
not go out to work that day. As I review this record, the allusion to the standard
procedure of the Company is not quite accurate . As the testimony demonstrates,
there were among the Company's employees those who were regular drivers and
regular swariipers; i.e., those couple of employees who compose a crew and usually
operated the same fruck on the same ' route. In addition to that , there were some
JAYCOX SANITARY SERVICE OF GARDEN GROVE, INC. 559
extra men who would be required on certain days for extra work and who would
be used as replacements in case some of the regular crews were absent due to
illness, etc. From his testimony, it is clear that Infante did not relish the idea of
calling off the strike and returning to the employment of the Company. He
decided not to return to work, even if the others did. He persevered in this deter-
mination for a period of approximately 2 weeks until he was notified that he was
no longer eligible for unemployment compensation because his fellow employees
had returned to employment and that if he also returned, he could be reemployed.
Infante presented himself for reinstatement 2 days later and asked for his "old
job" back. He was entitled as a returning striker, from a strike which was caused
and prolonged by the unfair labor practices of the Company, to be reinstated
to his "old job" whether that required the discharge or transfer of a replacement
or anyone else who was in his job. Men are assured of their right to strike, and
where, as here, the employer seeks to starve, trick, and deceive them into returning
to work and abandoning their duly designated bargaining representative, the time
during which they have to request their reinstatement is a reasonable time under
all the circumstances. Under the circumstances here, when the strike was broken by
the Company's unfair labor practices, employing financial pressure, lies, and deceit,
these factors must be taken into consideration into airivmg at what is a reasonable
period. For some men must capitulate quickly to financial pressure, some men
are quickly duped, and some men are easily led astray by lies. Others, in accord with
their character and intelligence may see through these tactics and continue to strike
for a longer time. It appears to me that Infante is of the latter type. He was not
quite as weak in his determination to seek a just wage as some of his fellows, and
not as weak in his loyalty to the bargaining agent he had chosen, as were some of
the others. When, 2 weeks after the others, he capitulated and asked for his "old
job" back, the Company was under the duty to restore him to his job forthwith.
The Act would be a snare and a delusion to employees, if employers had the
right to cause and prolong strikes by unfair labor practices of the most vicious
type, and when having by the use of unfair labor practices forced the capitulation
of employees, to be allowed to say they were not entitled to their jobs, because
they did not capitulate soon enough!
I find that on April 29, 1965, employee Infante made an unconditional request
to be returned to his former position as a regular ti uckdriver and that the Com-
pany refused to so reinstate him thereby violating Section 8(a)(1) and (3) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate , and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead and have led to labor disputes burdening
and obstructing commerce and the free flow of commerce.6
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that the Respondent cease and desist therefrom, and take certain
affirmative action designed to effect the policies of the Act.
Having found that the Respondent on April 5, 1965, and at all times there-
after, has refused to bargain with the Union as the exclusive representative of its
employees in an appropriate unit, I will recommend that the Respondent, upon
request, bargain collectively with the Union.
Since I have found that Paul R. Infante was discriminatorily refused reinstate-
ment on April 29, 1965, after the employees had called off their strike which had
been caused and prolonged by the unfair labor practices of the Respondent, I will
recommend that the Respondent offer Infante immediate and full reinstatement
to his former or substantially equivalent position without prejudice to his seniority
IIn the order section of this Decision, the two Companies, found to be one enterprise
and one employer is termed Respondent, but both must remedy the unfair labor practices
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other rights and privileges , discharging if necessary any other employee hired
since April 5, 1965, to fill Infante 's position . I will recommend also that the
Respondent make whole Infante for any loss of pay he may have suffered by
reason of the discrimination against him by payment to Infante of a sum of money
equivalent to that he would normally have earned as wages from April 29, 1965,
the date of refusal to reinstate him, to the date of the offer of reinstatement,
less any net earnings during said period. Said backpay is to be computed in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289,
with interest thereon, Isis Plumbing & Heating Co., 138 NLRB 716.
Since I have found that the Respondent has discriminatorily refused to pay a
bonus established as a working condition prior to the strike, and has discriminatorily
refused to pay for vacations established as a working condition prior to the strike,
I will recommend that these working conditions be restored immediately , without
reference to the bargaining with the Union previously recommended , and that the
employees discriminatorily deprived of said bonuses and vacations be made whole
for such loss of wages by a payment to each of said employees of a sum of money
equivalent to his accrued bonus and accrued vacation to the present , with interest
thereon from the date of accrual. Isis Plumbing & Heating Co., supra.
Upon the basis of the above findings of fact and upon the entire record, I make
the following conclusions of law.
CONCLUSIONS OF LAW
1. Jaycox Sanitary Service of Garden Grove, Inc., and Jaycox Sanitary Service of
Anaheim, Inc., are employers engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and the two corporations constitute a single employer
within the meaning of the Act.
2. Package & General Utility Drivers, Local Union No. 396, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
is a labor organization within the meaning of the Act.
3. All truckdrivers, helpers, and mechanics, excluding office clerical employees,
professional employees, guards and supervisors as defined in the Act, constitute
an appropriate unit of the Respondent's employees for the purposes of collective
bargaining within the meaning of the Act.
4.The Union named above was on April 5, 1965, and at all times thereafter,
has been the exclusive bargaining representative of all the employees in the afore-
said unit for the purposes of collective bargaining within the meaning of the Act.
5. By refusing on April 5, 1965, and at all times thereafter, to bargain with the
Union named above as the exclusive representative of all employees in the appro-
priate unit, and by changing the size of the routes and the rate of pay of employees
without notifying or bargaining with the Union as the employees' statutory repre-
sentative, the Respondent has violated Section 8(a)(1), (3), and (5) of the Act.
6. By rescinding all bonuses and vacations which the empolyees had earned
prior to the strike of April 5, 1965, and thereafter up to the present, because the
employees had participated in the said strike, the Respondent has discriminated
in regard to the hire and tenure of employment of all employees in the appropriate
unit within the meaning of Section 8(a)(1) and (3) of the Act.
7. By threatening the employees with the loss of their jobs if they persevered
in seeking to have the Union act as their collective-bargaining representative, the
Respondent has interfered with, coerced, and restrained its employees in violation
of Section 8(a)(1) of the Act.
8. By discriminatorily refusing to reinstate Paul R. Infante to his former
position upon his demand on April 29, 1965, the Company has discriminated in
regard to the hire and tenure of employment of Infante in violation of Section
8(a)(3) of the Act.
9. By interfering with , restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
10. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]