Laabs, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1960

128 N.L.R.B. 374 (N.L.R.B. 1960)

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laabs, Inc. and Bakery Sales Drivers Union, Local No. 344. Case
No. 13-CA-3330. July 29, 1960
DECISION AND ORDER
On March 9, 1960, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding the Respond-
ent had engaged 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 Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board' has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following exceptions, additions, and modifications :
1. We find in agreement with the Trial Examiner that Respondent
unlawfully refused to bargain with the Union, although we date the
initial refusal from June 18, 1959, the date Respondent received the
Union's first request for bargaining, rather than from June 15, 1959,
the date the Union filed its representation petition.' Respondent cor-
rectly contends that the filing of a petition does not constitute a re-
quest for bargaining, so as to make its failure to bargain, without
more, a violation of Section 8(a) (5) of the Act.
We find no merit, however, in Respondent's further contention that
the pendency of the petition justified its refusal to bargain after re-
ceipt of the Union's claim of majority designation and bargaining
demand. It is true that an employer may in good faith insist upon a
Board election, as proof of a union's majority status. However, when
its insistence upon an election is motivated, not by any bona fide doubt
as to the union's majority status, but rather by a rejection of the col-
lective-bargaining principle, or a desire to gain time within which to
undermine the union, such insistence is unlawful.' This question of
good faith is one, which, of necessity, must be determined in the
light of all relevant facts in the case, including any unlawful conduct
of the employer. Here the record clearly establishes that Respond-
ent's failure to bargain was motivated by its complete rejection of the
collective-bargaining principle. Its response to notification that the
Union had petitioned for an election among its truck-drivers was to
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Members Rodgers , Jenkins, and Fanning].
'The Union withdrew its petition on June 30, 1959
'Joy Silk Mills , Inc, 85 NLRB 1263, enfd . 185 F. 2d 732 (C.A.D.C ).
128 NLRB No. 44.
LAABS, INC. 375
attempt to subvert the drivers' allegiance to the Union by offering
them a wage increase conditioned upon their withdrawal from the
Union. Failing in this, Respondent discriminatorily discharged the
drivers at 5 o'clock on the day the Union mailed its letter demanding
that Respondent bargain with it as the representative of drivers and
shipping room employees. Respondent's response to that letter was
immediately to interrogate and assist Balaz Meekesh, the only ship-
ping room employee then at work' who had signed a union authoriza-
tion card, in the preparation and mailing of a letter of withdrawal
from the Union. These circumstances negate any possible claim of
good-faith doubt as to the Union's majority status, and clearly demon-
strate that Respondent's failure to bargain did not stem from any con-
fusion as to the unit in which the Union claimed majority representa-
tive status.5 On the contrary, we are convinced that Respondent's
conduct at all times material herein was designed to undermine the
Union's support in order to avoid being placed in a position in which
it would be obligated to bargain with the Union, and that such conduct
was motivated by Respondent's complete rejection of the collective-
bargaining principle. In these circumstances we find that Respond-
ent's failure to bargain, upon request of the Union on and after June
18, 1959, violated Section 8 (a) (5) of the Act.
2. In its brief, Respondent argues that a remedial order directing
it to bargain with the Union would not effectuate the policies of the
Act. It points out that it has never objected to the holding of an
election, which it regards as the only proper method of determining
its bargaining obligations at this time. This argument comes with ill
grace from an employer who immediately upon the filing of the
Union's petition engaged in conduct which made the holding of a
free election impossible. As we have found that on and after June
18, 1959, Respondent unlawfully refused to bargain with the Union,
we shall order the Respondent to recognize the Union as the repre-
sentative of the employees in the unit described in the Intermediate
Report and to bargain with the Union upon request.
4 In addition to the truckdrivers and Meekesh , Dennis Emory , a shipping clerk, also
signed a union authorization card Emory was on vacation at the time of the above
events Upon his return , Respondent promoted him out of the unit.
e Respondent argues in its brief that the variance between the unit described in the
petition and the unit described in the Union's letter of June 17 created confusion as to
the exact nature of the unit for which the Union requested bargaining rights . This is
belied , however , by Respondent's prompt and successful attempt to subvert Meekesh's
union adherence immediately upon its receipt of the June 17 letter . There is clearly no
merit in Respondent 's further contention that the unit involved in the Union 's request
for bargaining-drivers and shipping room employees-is at variance with the unit alleged
in the complaint and found herein to be appropriate-drivers, order fillers , and shipping
and receiving room clerks . The latter merely details the particular classifications of
Respondent ' s shipping room employees The Union ' s request clearly communicated to
the Respondent the extent of the unit of employees for which it wished to bargain, and
it was therefore a proper request. Cf . The C. L. Bailey Grocery Company, 100 NLRB
576, 580
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have also found in agreement with the Trial Examiner that
Respondent discriminatorily discharged truckdrivers LaPorte and
Sanfelippo. Contrary to the Trial Examiner, we deem it unneces-
sary to direct Respondent to offer them immediate and full reinstate-
ment to their former or substantially equivalent positions, because we
view Respondent's offer of reemployment, made on or about August
28, 1959, as an offer of reinstatement. Sanfelippo accepted such offer
and returned to work on September 15 or 16, 1959, and LaPorte re-
jected such offer when tendered to him. Accordingly, we shall toll
Respondent's backpay liability in the case of Sanfelippo, as of the
date he returned to work, and in the case of LaPorte, as of the date
he refused such offer.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that : The Respondent Laabs, Inc.,
its officers, agents, supervisors, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Bakery Sales Drivers
Union, Local No. 344, as the exclusive bargaining representative of
all drivers, order fillers, and shipping and receiving room clerks of
Laabs, Inc., at its Milwaukee, Wisconsin, warehouse and stores, ex-
cluding office and clerical employees, watchmen, guards, professional
employees, supervisors as defined in the Act, and all other employees.
(b) Interrogating its employees concerning their organizational
activities, or in any manner soliciting, offering inducements to, or
assisting them with respect to withdrawing their support of or affilia-
tion with any labor organization.
(c) Discouraging membership in Bakery Sales Drivers Union,
Local No. 344, or any other labor organization, by discriminating in
regard to hire or tenure of employment, or any term or condition of
employment.
(d) In any other manner interfering with, restraining, or coercing
its employees, or infringing upon their exercise of the rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act, as amended :
(a) Upon request, bargain collectively with Bakery Sales Drivers
Union, Local No. 344, as the exclusive representative of all drivers and
shipping room employees in the aforesaid appropriate unit, and, if an
understanding is reached, embody such understanding in a signed
agreement.
LAABS, INC. 377
(b) Make Ronald F. LaPorte, Jr., and Jack M. Sanfelippo whole
for any loss of pay in the manner set forth in paragraph 2 of the
Decision herein.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity reports, timecards, personnel files, and all other records
necessary to analyze, compute, and determine the amounts of backpay
to which the discriminatees herein may be entitled under the terms of
this Order.
(cl) Post at its stores and warehouse in Milwaukee, Wisconsin,
copies of the notice attached hereto marked "Appendix." I Copies of
said notice, to be furnished by the Regional Director for the Thir-
teenth Region, shall, after being duly signed by a duly authorized
representative of Laabs, Inc., be posted by Respondent immediately
upon receipt thereof, and maintained by it for 60 days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that such notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order what steps the
Respondent has taken to comply herewith.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Entoreing 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, we hereby notify our employees that :
WE WILL bargain collectively in good faith with Bakery Sales
Drivers Union, Local No. 344, as the exclusive representative
of all employees in the bargaining unit described below with
respect to rates of pay, hours of employment, and other conditions
of employment, and, if an understanding is reached, we will
embody such understanding in a signed contract. The bargaining
unit is:
All drivers, order fillers, and shipping and receiving room
clerks of Laabs, Inc., at its Milwaukee, Wisconsin, warehouse
and stores, excluding office and clerical employees, watchmen,
guards, professional employees, supervisors as defined in the
Act, and all other employees.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make Ronald F. LaPorte, Jr., and Jack M. Sanfelippo
whole for any loss of pay they may have suffered by reason of our
discrimination against them.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees or otherwise infringe upon their exercise of the
right to self-organization, to form, join, or assist Bakery Sales
Drivers Union, Local No. 344, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as 'a condition of employment as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
All of our employees are free to become and remain or to refrain
from becoming or remaining members of the above-named Union, or
any other labor organization, except to the extent that such right may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
LAABS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
With all parties represented, this proceeding was heard before the duly designated
Trial Examiner at Milwaukee, Wisconsin, on November 23 and 24, 1959, upon a
complaint filed by the General Counsel of the National Labor Relations Board,
herein respectively designated as General Counsel and the Board, and an answer
thereto filed by Laabs, Inc., herein called the Respondent. The principal issues
litigated were as follows:
.1. Whether the Respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act by (a) interrogating
certain employees concerning their membership in a labor organization and con-
certed activities for the purpose of collective bargaining or other mutual -aid or
protection; (b) assisting and soliciting employees to withdraw their support, affili-
ation, and membership from a labor organization; and (c) offering economic
benefits to employees if they would refrain from engaging in concerted activities for
the purpose of collective bargaining or other mutual aid or protection.
2. Whether the Respondent discriminated in regard to hire or tenure of employ-
ment to discourage membership in a labor organization by discharging and refusing
to reinstate Jack M. Sanfelippo and Ronald F. LaPorte, Jr., because of their
membership in and concerted activities on behalf of a labor organization.
3. Whether the Respondent refused to bargain collectively with Bakery Sales
Drivers Union, Local No. 344 (herein called the Union), as the exclusive repre-
sentative of its employees, subject to the provisions of Section 9(a) of the Act.
LAABS, INC. 379
Upon motion of the General Counsel, paragraph II of the complaint was
amended to allege that Respondent was incorporated under the laws of Wisconsin;
and paragraph VII was amended to allege that the appropriate unit herein consists
of "all drivers, order fillers, and shipping and receiving room clerks of Respondent
at its Milwaukee, Wisconsin, warehouse and store, excluding office and clerical
employees, watchmen, guards, professional employees, supervisors as defined in
the Act, and all other employees "
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF RESPONDENT EMPLOYER
Laabs, Inc., is a corporation organized and existing under and by virtue of the
laws of Wisconsin, having its principal offices and places of business in the city
of Milwaukee, Wisconsin, where it is engaged in the wholesale and retail sale of
surgical equipment, hospital, laboratory, and physician supplies, chemicals, drugs,
pharmaceuticals, and related products to doctors, hospitals, colleges, high schools,
industrial plants, and the general public. During the calendar year 1958, which
period is representative of all times material herein, the Respondent in the course
of its business operations purchased and received directly from sources outside the
State of Wisconsin merchandise and materials valued in excess of $500,000; and
during the same period sold and delivered such products valued in excess of $700,000
to its own customers within said State. I find, therefore, and it is stipulated by
all parties that the Respondent is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act.
Corporate officials and supervisors of the Respondent include August Stegeman
(president), Elmer Volkmann (vice president-treasurer-general manager), Edgar
Volkmann (secretary), and Gerald (Jerry) Valentine (supervisor in charge of re-
ceiving, shipping, and delivering merchandise). Headquarters of Laabs, Inc., is
located in the primary store located at 1937 West Vliet Street at 35th Street in the
business section of Milwaukee, and under a separate manager Respondent operates
a branch store on North Avenue at 85th Street about 6 or 7 miles from the parent
store, which is exclusively devoted to compounding doctors' prescriptions for resi-
dents in a suburban area. The parent store consists of a pharmacy, wherein more
than 30 professional pharmacists are employed, the general offices of the corpora-
tion , and ample warehouse facilities. President Stegeman devotes his time to
public relations and operation of the pharmacy. General Manager Elmer Volk-
mann is responsible for office administration and overall operations. Secretary
Edgar Volkmann is himself a professional pharmacist and is primarily engaged in
operation of the pharmacy and truss fitting department. These three officials jointly
determine, establish, and carry out the business policies of the corporation.
II. THE LABOR ORGANIZATION INVOLVED
Bakery Sales Drivers Union, Local No. 344, is a labor organization within the
meaning of Section 2(5) of the Act, and exists in whole or in part for the purpose
of representing employees in dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions of work.
In. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
At its parent store Respondent operates a receiving, shipping, and delivery de-
partment under the supervision of Gerald (Jerry) Valentine, who is classified as
billing clerk. Personnel normally under his supervision include all shipping room
employees and delivery truckdrivers. By reason of common supervision, interrela-
tion and integration of their employment, and the similarity of work performed for
their employer, I find, as alleged in the amended complaint, that within the meaning
of Section 9(b) of the Act the following employees constitute an appropriate
unit for the purposes of collective bargaining, to wit:
All drivers, order fillers, and shipping and receiving room clerks of Laabs, Inc.,
at its Milwaukee, Wisconsin, warehouse and stores, excluding office and clerical
employees, watchmen, guards, professional employees, supervisors as defined
in the Act, and all other employees.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interference and discrimination
In June 1959 the aforesaid appropriate unit under the supervision of Jerry Valen-
tine consisted of Dennis M. Emery (shipping clerk), Donald Kruecke (receiving
clerk),' Balaz Meekesh (stock man and order filler), Ronald F. LaPorte, Jr. (truck-
driver), and Jack M Sanfelippo (truckdriver). Prior to June a third truckdnver
(unnamed) had been terminated, and Respondent had promised summer employ-
ment to a high school student named Melvin Slutzky, who was the son of a valued
customer physician of Laabs, Inc.
On or about June 12, 1959, truckdriver Sanfelippo signed an application for mem-
bership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 344, and designated it as his representative
for the purposes of collective bargaining. At the solicitation of Sanfelippo identical
union cards were also signed by Dennis M. Emery, Balaz Meekesh, and Ronald F.
LaPorte, Jr., on the same day. These authorization cards were thereupon delivered
to Don Beatty, Business Agent for Bakery Sales Drivers Union, Local No. 344, which
is the Local Union designated therein. The four cards submitted involved all em-
ployees in the aforesaid appropriate unit, excepting Don Kreucke, and constituted a
majority of four-fifths thereof.
Thereupon, the Union filed a representation petition with the National Labor
Relations Board in Case No. 13-RC-6642 on Monday, June 15, 1959, requesting
certification as the bargaining representative of employees of Laabs, Inc., in a unit
consisting of five employees, including drivers, but excluding all clerical employees,
supervisory employees, guards, and other employees specifically excluded by the
Act. Thereafter by letter dated June 17, 1959, the Union notified Respondent that
it had been designated as collective-bargaining agent by a majority of its drivers and
shipping room employees, and thereby corrected the limitation of "drivers" in the
original petition to include shipping room employees also. In this letter the Union
requested that Respondent fix a time and place of meeting to discuss the terms and
conditions of a collective-bargaining agreement. Following this letter the Union on
June 18, 1959, further notified Respondent by telegram (Western Union) that
Bakery Sales Drivers Union Local No. 344, had been designated as collective-
bargaining agent in a collective bargaining unit of drivers and shipping room em-
ployees, and again requested that Respondent meet with the Union immediately for
the purpose of collective bargaining in behalf of these employees. The Union also
offered to submit signed authorization cards for comparison with payroll signatures
to support its claim of majority representation. The Respondent made no reply to
either communication, although it is admitted that both were received.
Respondent received a copy of the aforesaid petition by registered mail on the
morning of June 16, 1959, before its truckdrivers had gone out on their delivery
routes. At approximately 10 am. General Manager Elmer Volkmann, with the
document in hand, went upstairs into the warehouse to see Ronald F. LaPorte, Jr.,
and Jack M. Sanfelippo. In the presence of Supervisor Jerry Valentine, he inquired
in substance why they were trying to get a union to handle their grievances, if any,
instead of coming directly to him about such matters. According to LaPorte, Elmer
Volkmann at that time also made a statement to the effect that the Company could
not afford to pay union wages. In reply, LaPorte inquired, "Did you ever try to sup-
port a family on $1.40 per hour9", and then went downstairs to his truck. Sanfelippo
made a statement to the effect that the drivers should be getting a raise in pay and
more benefits-that Respondent had repeatedly promised health and welfare pro-
grams, which they had never received. Later during the afternoon of the same
day and following his conversation with the two truckdrivers, Elmer Volkmann dis-
cussed the subject with Supervisor Jerry Valentine, and authorized him to offer an
increase in wages of 15 cents per hour to the truckdrivers and to tell them that he
was working on the health and welfare program. Thereafter at approximately
6 p m of the same day, Supervisor Valentine approached each of these drivers
separately at their trucks in the parking lot and offered them the increase in pay and
other proposed benefits upon condition that they drop the Union. Both Ronald F.
LaPorte, Jr., and Jack M. Sanfelippo credibly testified that the offer was conditioned
upon their abandonment of the Union; which was incredibly denied by Supervisor
Jerry Valentine, although admitting that he expected an answer as to whether the
proposal would satisfy them. In any event, each of the truckdrivers refused to
accept this proposal, and no such wage increase was ever put into effect.
Although Supervisor Valentine denies having made any report whatever as to
acceptance or nonacceptance of the proposed wage increase, General Manager
1 Kruecke was a nephew of Stegeman , one of the principal owners of the business.
LAABS, INC. 381
Elmer Volkmann called his brother, Edgar Volkmann, between 6 and 9 p.m. that
night, and gave him undisclosed information and instructions concerning the situation.
He then departed the city of Milwaukee and did not report for duty at the Vliet
Street store on June 17, 1959, purportedly for the reason that it was his day off.
Edgar Voklmami credibly testified in substance that between 6 and 9 p.m. on
Tuesday, June 16, 1959, General Manager Elmer Volkmann called him by telephone
at his home, and said:
We are involved in some difficulties at the store with some of the help I think
that we're going to have to carry into operation that thing that we have planned
for sometime and that is that we will have to change our delivery system over.
For economic reasons, I think that we are going to have to employ United
Parcel and work out a plan that we had talked about on previous occasions to
make our delivery system more efficient and more economic to the store. I
would like to have you contact United Parcel and see what arrangements can
be made for them to take the bulk of our deliveries. We have already hired
Melvin Slutzky, who is supposed to start any day. I suggest that we lay off
LaPorte and Sanfelippo, and we will have Melvin Slutzky as an emergency
driver and try out the new system. The boys are demanding a higher wage rate
and they want us to pay their Blue Cross and give them extra hospital benefits.
You know very well that we cannot afford the extra expense right now.
Pursuant to the foregoing telephone conversation, Edgar Volkmann on Wednesday,
June 17, 1959, reached an agreement with United Parcel Service to deliver packages,
within the city of Milwaukee, not exceeding 40 pounds in weight and limited in size
to dimensions prescribed by the United States Post Office Department for packages
sent by parcel post; with service restricted to one pickup daily and delivery within
24 hours on the following day to a particular place, but not to a specified individual
or department. Upon the consummation of this arrangement and the expectation
of Melvin Slutzky reporting to work as an emergency truckdriver for the summer
season, Edgar Volkmann indefinitely laid off or discharged Ronald F. LaPorte, Jr.,
and Jack M. Sanfelippo at approximately 5 p.m. on Wednesday, June 17, 1959.
On June 18, 1959, Balaz Meekesh (order filler) was called into the fitting room
for interrogation concerning his union activities by Elmer Volkmann and Edgar
Volkmann. First they inquired whether he had signed the petition, and what he
knew about it. Elmer Volkmann mentioned the fact that Sanfelippo had gone
around getting signatures on union cards, and in substance said "we know you signed
for the Union. We know you did not organize. The organizer was Sanfelippo.
We do not think the guys are organized right. You are not a truckdriver, so you
are not part of it You fellows did not organize right. You should have come to
us first." Thereafter, on June 20, 1959, Meekesh went back to see Elmer Volkmann,
and requested him to prepart a letter of withdrawal from the Union. Volkmann
prepared such a letter in longhand, and it was then prepared in typewritten form by
Irwin Wiczinsky (the buyer) while still in the office, and addressed for mailing to
the Union in an envelope bearing the return address of Labbs, Inc. Salesman Kull-
man took Meckesh to the post office in his car and witnessed the posting of the letter
by registered mail. Thereafter, Meekesh delivered the post office receipt for the
registered letter to Elmer Volkmann for safekeeping and as evidence of the posting
thereof.
Shipping clerk Dennis M. Emery signed a union card at the solicitation of Jack
M. Sanfelippo on June 12, 1959, while on vacation, and did not return to work
until the early part of July 1959. Upon return from vacation, he admittedly dis-
cussed the union situation with Supervisor Jerry Valentine, but when called as a
witness herein could not remember the substance of their conversation. At any
rate, shortly thereafter on July 13, 1959, Respondent promoted Emery to the rank
of supervisor of its chemical department, thereby removing him as an eligible
member of the Union in the appropriate unit Although Emery became the suc-
cessor to a graduate chemist, who had recently been terminated by the Respondent
as manager of its chemical department, a degree in chemistry was not required to
hold that position. Since the Respondent found this man qualified by experience for
such promotion, I find it unnecessary to determine, under the circumstances of this
case, whether Respondent was moved by other considerations in making the
appointment.
C. The refusal to bargain
It is entirely clear from all of the evidence in this case that at all times on and
after June 12, 1959, the Union was and is the duly authorized and exclusive repre-
sentative of a majority of Respondent's truckdrivers and shipping room employees
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the appropriate unit. Having by petition filed on June 15, 1959, by letter of June
17, 1959, and by telegram of June 18, 1959, together with an offer to submit proof
of its majority in the form of authorization cards, repeatedly requested the Re-
spondent to bargain and negotiate in good faith with respect to a collective-
bargaining agreement, Business Agent Don Beatty again on June 22, 1959, went to
the Vliet Street store of the Respondent in person, and attempted to negotiate with
Edgar Volkmann both with respect to wages and the reinstatement of truckdrivers
Ronald F. LaPorte, Jr., and Jack M. Sanfelippo. On that occasion the Respondent
contended that the truckdrivers were laid off for economic reasons by reason of a
newly established delivery system under contract with United Parcel Service. With
respect to any wage agreement, Edgar Volkmann asserted that Respondent could not
afford to pay union wages and refused to negotiate with respect thereto on the
ground that there was not an appropriate unit since the termination of the two
truckdrivers, but that he would not object to holding an election. Thereupon, he
referred Beatty to Respondent's lawyer. Consequently, the Union filed a charge on
June 22, 1959, with the National Labor Relations Board, and with consent of its
Regional Director withdrew the representation petition in Case No. 13-RC-6642,
pending the determination of alleged unfair labor practices herein.
D. The new delivery system
An analysis of the alleged new delivery system adopted by Respondent on June
17, 1959, is necessary to determine by what good faith, if any, it was moved in
discharging Ronald F. LaPorte, Jr., and Jack M. Sanfelippo, and otherwise interfering
with, restraining, and coercing its employees in their exercise of the rights guaranteed
in Section 7 of the Act. From all of the evidence in this case, it appears extremely
doubtful that Respondent actually made any material changes in its delivery
operations.
Many packages delivered to customers by the Respondent consist of prescriptions,
pharmaceuticals, medicines, and hospital and physicians supplies of an emergency
nature requiring immediate delivery, which cannot be held over to the following
day. Other supplies such as hospital beds, bulky surgical equipment, etc., exceed
the weight and dimensions of parcel post packages. For this and other reasons of
convenience, including prompt delivery to customers, the Respondent has always
maintained its own private delivery service, and resorted to public delivery service
such as that furnished by the United Parcel Service only for distant or isolated
deliveries when time was not of the essence. Even on such occasions the restriction
to 40 pounds in weight and parcel post dimensions imposed by United Parcel Service
often required the Respondent to make such deliveries by its own truckdrivers.
In June 1959 the Respondent owned three delivery trucks, one of which was tempo-
rarily idle because its operator had been terminated or quit during the period from
January to June 1959. The two trucks remaining in use were operated by truck-
drivers, Ronald F. LaPorte, Jr., and Jack M. Sanfelippo, respectively, and the
territory on the west side of Milwaukee formerly serviced by a third truckdriver
had been equally divided and assigned to LaPorte and Sanfelippo in addition to
other territory covered by their delivery routes. Consequently, the territory now
serviced by LaPorte embraced all areas within the city limits of Milwaukee lying
south of Vliet and east of 35th Streets, including the lake front extending all the way
to South Milwaukee. Territory now assigned to Sanfelippo embraced all areas of
the city lying north of Vliet and west of 35th Streets, including deliveries from Re-
spondent's branch store at North Avenue and 85th Street. In order to cover their
routes these two drivers customarily worked more than 50 hours per week. San-
felippo had often complained that it was impractical for him to pick up and make
deliveries from the branch store at 85th Street and North Avenue, and Respondent
admits that it was a nuisance for him to do so.
Following their layoff on June 17, 1959, the Respondent hired two high school
students as truckdrivers to replace LaPorte and Sanfelippo for the summer months,
until recalled to school in the early part of September. At the same time Respond-
ent traded in one of its trucks fora station wagon more suitable for fast deliveries.
Thereupon one truck and the station wagon was used for deliveries from the Vliet
Street store, and the third truck was sent out to the branch store at 85th Street and
North Avenue on a permanent basis to be operated by an employee at that store
rather than keep the route of Sanfelippo overloaded. Thus three motor vehicles
and three new truckdrivers were utilized to replace two trucks and truckdrivers
employed prior to June 17, 1959, in addition to awarding more patronage to United
Parcel Service.
When the high school students went back to school in September 1959 it became
necessary for Respondent to employ replacements for them. Consequently, on or
LAABS, INC. 383
about August 28, 1959 , Respondent sent a letter by registered mail to Ronald F.
LaPorte offering him a position with duties similar to those performed prior to his
termination . This letter appears to be an offer of new employment , but not rein-
statement to his former position without loss of pay and other rights and privileges
of employment. At any rate, LaPorte did not accept the offer. At approximately
the same time Respondent also offered reemployment to Jack M. Sanfelippo, and on
September 15, 1959, Sanfelippo went back to work as a truckdriver at his former rate
of pay but was assigned to a new delivery route on the south side of Milwaukee
instead of the north side. Not being able to rehire LaPorte, the Respondent hired
another truckdriver to operate a route on the north side, and has also continued
the use of its third motor vehicle and driver at the branch store.
Concluding Findings
From the foregoing findings of fact based upon a preponderance of the evidence,
and the entire record in the case, I find that:
(1) At all times since June 15, 1959 , the Respondent has refused to recognize
and bargain with Bakery Sales Drivers Union, Local No. 344, as the exclusive
representative of its employees in the appropriate unit for the purpose of collective
bargaining.
(2) During the period June 16 through 20, 1959, the Respondent interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act by interrogating Ronald F. LaPorte, Jr., Jack M. Sanfelippo,
and Balaz Meekesh concerning their affiliation with and concerted activities on
behalf of a labor organization, by offering them increased wages and other benefits
if they would withdraw from the Union, and assisting Balaz Meekesh in preparing
and submitting by registered mail his resignation as a member of Bakery Sales
Drivers Union, Local No. 344.
(3) On or about June 17, 1959, discriminatorily laid off or discharged it truck-
drivers Ronald F LaPorte, Jr., and Jack M. Sanfelippo to discourage membership
in a labor organization.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of Respondent set forth in section III , above, occurring in connection
with the operations described in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and take
affirmative action designed to effectuate the policies of the Act. It will be recom-
mended that the Respondent, upon request, bargain collectively with Bakery Sales
Drivers Union, Local No. 344, as the exclusive representative of all employees in
the unit herein found to be appropriate for the purposes of collective bargaining;
that it offer to Ronald F. LaPorte, Jr., and Jack M. Sanfelippo immediate and
full reinstatement to their former or substantially equivalent positions 2 without
prejudice to their seniority and other rights and privileges of employment, dismiss-
ing, if necessary, any persons hired to replace them , and make each of them whole
for any loss of pay suffered by reason of the discrimination against them by the
payment to each of a sum of money equal to the amount he would normally have
earned as wages from the date on which his employment was terminated by the
Respondent to the date on which Respondent shall offer to him proper reinstate-
ment as herein provided, less net earnings,3 to be computed on a quarterly basis in
the manner set forth in F. W. Woolworth Company, 90 NLRB 287, and N.L.R.B. v.
Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. Earnings in one particular
quarter shall have no effect upon the backpay liability for any other such period.
By reason of the recurrent nature of conduct heretofore engaged in by the Respond-
ent, which demonstrates its hostility toward the principles of collective bargaining
and the likelihood that such conduct may continue in the future, it will also be recom-
mended that Respondent cease and desist from in any manner infringing upon the
rights of employees guaranteed in Section 7 of the Act.
2 See The Chase National Bank of the City of New York , San Juan, Puerto Rico , Branch,
65 NLRB 827
8 See Crossett Lumber Company , 8 NLRB 440, 497-498.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Bakery Sales Drivers Union, Local No. 344, is a labor organization within
-the meaning of Section 2(5) of the Act.
2. All drivers, order fillers, and shipping and receiving room clerks of Laabs, Inc ,
at it Milwaukee, Wisconsin, warehouse and stores, excluding office and clerical
employees, watchmen, guards, professional employees, supervisors as defined in the
Act, and all other employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
3. Bakery Sales Drivers Union, Local No. 344, has been at all times since June
12, 1959, and now is the exclusive representative of all employees in the aforesaid
appropriate unit for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. By failing and refusing at all times since June 15, 1959, to bargain with
Bakery 'Sales Drivers Union, Local No. 344, as the exclusive bargaining repre-
sentative of employees in the appropriate unit, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
5. By discriminating in regard to the hire and tenure of employment of its employ-
ees Ronald W. LaPorte, Jr., and Jack M. Sanfelippo to discourage membership in
a labor organization, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)1(3) of the Act.
6. Derivatively by the aforesaid unfair labor practices, and independently by
interrogating its employees Ronald F. LaPorte, Jr., Jack M. Sanfelippo, and Balaz
Meekesh concerning their affiliations with a labor organization, by offering induce-
ments to LaPorte and Sanfelippo in the form of increased wages and other benefits
if they would withdraw from the Union, and by assisting Balaz Meekesh in prepar-
ing a letter of withdrawal from the Union, the Respondent has been and is now
interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging
in unfair labor practices within the meaning of Section &(a) (1) of the Act.
7. 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.]
Continental Bus System , Inc. and Division 1142, Amalgamated
Association of Street, Electric Railway & Motor Coach Em-
ployees of America , AFL-CIO . Case No. 16-CA-1184. August 1,
1960
DECISION AND ORDER
On November 20, 1959, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not engaging in any of the
unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter the
General Counsel filed exceptions to the Intermediate Report and a
supporting brief, and the Respondent filed limited exceptions and a
brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
128 NLRB No. 47.