Lawson Milk Co.

National Labor Relations Board - Board Decisions

Mar 26, 1962

136 N.L.R.B. 538 (N.L.R.B. 1962)

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the purport of the picket sign newly adopted during the grace period allotted
by Congress for bringing Respondent 's action into conformity with the new law.26
4. Summary statement
The sum of the foregoing is that the General Counsel has not established by a
preponderance of the evidence that the picketing here in question was other than for
its purported purpose-which was that of truthfully advising the public that the
Employer did not employ members of or have a contract with Respondent . I would
thus deem Respondent to have met the terms of the immunity granted by the proviso
of Section 8(b)(7), whether they merely be the objective ones of being informa-
tional in import and devoid of any effect of interfering with service , or whether they
entail the additional , subjective requirement that dissemination of information be the
genuine purpose of the picketing , to the exclusion of any immediate objective of
forcing the Employer to recognize , or the employees to join, the Respondent , as dis-
tinguished from "vague and speculative hopes" to that effect (Bakery Workers case,
footnote 24, supra, at 548).
Upon the foregoing findings and upon the entire record , I hereby make the
following:
CONCLUSIONS OF LAW
1. The Charging Employer is engaged in commerce within the meaning of the Act.
2. The Respondent Union is a labor organization within the meaning of the Act.
3. The Charging Employer filed charges in both proceedings herein which were in
substantial conformity with the Act and the Board 's Rules and Regulations.
4. Respondent Union did not engage in unfair labor practices within the meaning
of Section 8(b)(1)(A ) of the Act, or of Section 8(b)(7) of the Act , as modified
by the Labor -Management Reporting and Disclosure Act of 1959.
RECOMMENDATION
Upon the findings and conclusions above and upon the entire record, it is recom-
mended that the consolidated complaint herein be dismissed.
26 The General Counsel urges that Respondent should have told the Employer It was no
longer seeking recognition . The picket sign was there for the Employer to read If it had
any questions , it was open to It to ask the Respondent . This would seem a more equitable
requirement than one which puts Respondent to the burden of seeking the Employer out
to answer questions it has not been asked and, for aught that appears , the Employer may
not even entertain.
Lawson Milk Company and Myrtle Cobb . Case No. 8-CA-2546.
March 26, 1962
DECISION AND ORDER
On December 13,1961, Trial Examiner James V. Constantine issued
his Intermediate Report herein, finding that Respondent had engaged
in unfair labor practices in violation of Section 8 (a) (1), (2), and (3)
of the Act and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby 'affirmed. The Board has
considered the Intermediate Report, the exceptions and brief, and the
136 NLRB No. 57.
LAWSON MILK COMPANY 539
entire record in this case, and adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Lawson Milk Company,
Akron, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Promising its employees wages increases or other benefits if
they refrain from becoming or remaining members of Local 497, In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, or refrain
from giving any assistance or support to, or voting for, such labor
organization.
(b) Interrogating its employees regarding their union member-
ship, activities, or sympathies, in a manner constituting interference,
restraint, or coercion in violation of Section 8(a) (1) of the Act.
(c) Threatening its employees with discharge if they engage in
union activities or concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
(d) Forming, organizing, sponsoring, promoting, or recognizing
the Employees Representatives-Management Committee, or any
other labor organization, or dominating, interfering with, or con-
tributing financial or other support to the Committee, or any other
labor organization.
(e) Discouraging membership in Local 497, or any other labor or-
ganization, by refusing to rehire laid-off employees because they en-
gaged in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist Local 497, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, 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 condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Myrtle Cobb immediate and full reinstatement to her
former or substantially equivalent position , without prejudice to her
seniority or other rights and privileges , and make her whole in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or to
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 amounts of backpay due
and the right of reinstatement under the terms of this Order.
(c) Withdraw and withhold permanently all recognition from, and
completely disestablish , the Employees Representatives -Management
Committee , or any successors thereto, as the representative of its em-
ployees for the purpose , in whole or in part, of dealing with or dis-
cussing grievances , labor disputes , wages, rates of pay, hours of
employment, or conditions of work.
(d) Post in its plant at Akron, Ohio, copies of the notice attached
hereto marked "Appendix." 1 Copies of said notice , to be furnished
by the Regional Director for the Eighth Region , shall, after being
duly signed by the Respondent, be posted by the Respondent immedi-
ately upon receipt thereof , and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(e) Notify the Regional Director for the Eighth Region, in writing,
within 10 days from the date of this Order, what steps 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, 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 Labor Management
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT promise our employees wage increases or other
benefits if they refrain from becoming or remaining members of
Local 497, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor or-
ganization, or refrain from giving any assistance or support to or
voting for such labor organization.
WE WILL NOT interrogate our employees regarding their union
membership, activities, or sympathies in a manner constituting
LAWSON MILK COMPANY 541
interference, restraint, or coercion, in violation of Section 8(a) (1)
of the Act.
WE WILL NOT threaten our employees with discharge if they
engage in union or concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.
WE WILL NOT form, organize, sponsor, or promote the Em-
ployees Representatives-Management Committee, or any other
labor organization, or dominate, interfere with, or contribute
financial or other support to such Committee, or any other labor
organization.
WE WILL NOT recognize the Employees Representatives-
Management Committee, or any successors thereto, and we with-
draw permanent recognition from it and hereby disestablish it
as the representative of any of our employees for the purpose, in
whole or in part, of dealing with or discussing grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions
of work.
WE WILL NOT discourage membership in Local 497, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, by refusing
to rehire laid-off employees because they engaged in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection.
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 Local
497, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
pose 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 mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the National Labor Relations
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1950.
WE WILL offer Myrtle Cobb immediate and full reinstatement
to her former or a substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and we
will make her whole for any loss of pay suffered as a result of
our discrimination against her.
All our employees are free to become or remain members of the
above-named Union, or any other labor organization, except to the
extent that this right may be affected by an agreement in conformity
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959. We will not discriminate in
regard to hire or tenure of employment or any term or condition of
employment against any employee because of membership in or ac-
tivity on behalf of any such labor organization.
LAWSON MILK COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate with the Board' s Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland 15, Ohio, Telephone
Number, Main 1-4465, if they have any question concerning this notice
or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge filed by Myrtle Cobb, an individual, the
General Counsel of the National Labor Relations Board , by the Regional Director
for the Eighth Region (Cleveland, Ohio), issued his complaint , dated September 22,
1961, against Lawson Milk Company, herein called the Respondent . With respect
to the unfair labor practices, the complaint alleges, in substance, that Respondent en-
gaged in and was engaging in conduct proscribed by Section 8(a)(1), (2 ), and (3)
of the National Labor Relations Act, herein called the Act, and that such conduct
affected and was affecting commerce within the meaning of Section 2(6) and (7) of
the Act. In its answer Respondent denies all of the alleged unfair labor practices
although it admits certain facts.
Pursuant to due notice, a hearing was held before James V. Constantine, the duly
designated Trial Examiner, at Akron, Ohio, on November 1 and 2, 1961. All parties
were represented at and participated in the hearing and were given an opportunity
to present evidence , to examine and cross -examine witnesses , to offer oral argument,
and to file briefs. Myrtle Cobb, as Charging Party, represented herself. At the
conclusion of the testimony , the General Counsel and the Respondent argued
orally. A brief has been received from Respondent.
At the hearing, Respondent moved to dismiss the complaint . This motion was
denied without prejudice to its further consideration and disposition in the Inter-
mediate Report. It is now denied for the reasons set forth below.
Upon the entire record in this case , including the stipulations of the parties, and
from my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a division of Consolidated Foods Corporation, a Maryland corpora-
tion , is engaged in the business of selling and distributing dairy products and bakery
goods at retail in the State of Ohio. Annually it sells goods and products valued in
excess of $500,000 , and receives products valued in excess of $50,000 from outside
the State of Ohio. I find that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the
Act to assert jurisdiction over Respondent.
H. THE LABOR ORGANIZATIONS INVOLVED
Local 497 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , herein called Local 497, is a labor organization within the
meaning of Section 2 ( 5) of the Act.
LAWSON MILK COMPANY 543
The status as a labor organization of the Employees Representative-Management
Committee, also known 'as the Employee-Management Committee, herein called the
Committee, was contested by Respondent. For the reasons hereinafter set forth in
section III, B, below, I find that the Committee is a labor organization within the
meaning of Sections 2(5) and 8(a) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
For some time prior to May 1961, Local 497 engaged in an organizational cam-
paign among the employees of the Respondent. This culminated in the execution
of a consent-election agreement and an election held on May 17, 1961, in Case No.
8-RC-4221 (not published in NLRB volumes).
Early in 1961, there was union activity among Respondent's employees, as a re-
sult of which Gladys Cobb, an employee, contacted James Wykle, secretary-treasurer
of Local 497. Wykle gave application cards to Cobb, who in turn gave some to em-
ployee Christine Jackson to distribute among the employees.
During this period John Spiegel, Respondent's personnel manager, called Jackson
to his office and asked her if she had any problems. Upon receiving a negative reply
Speigel then inquired whether she knew of any dissatisfaction in her department.
She answered that the Respondent's life insurance and seniority programs were the
main reasons for union activity among the employees. Upon learning of this dis-
satisfaction, Spiegel asked Jackson if the latter thought it would take a union to
straighten things out. Jackson replied that it would because Respondent did not
fulfill promises.
A few days before the Board election of May 17, Spiegel again called Jackson to his
office. Supervisor Turnage was also present. Speigel told Jackson that he had
heard that she passed out union cards in the plant. Jackson admitted that she had
done so. Spiegel then informed her that this was against company policy and that
anyone who was seen passing out union cards on company property should be fired on
the spot. Jackson stated that she did not know of this policy. Spiegel does not
deny that he forbade Jackson from passing out cards, but claims that he added that
such prohibition applied only during working hours. (Jackson admitted that she
distributed cards during working hours.) I find that the Company had not pre-
viously informed its employees of any policy against union solicitation on company
time. In any event, I find that Spiegel did not qualify the interdiction by confining
it to working hours only.
On May 8, 1961, Respondent President Howlett spoke to an assembly of em-
ployees called by Respondent. This was accomplished by shutting down operations
and by each supervisor telling his employees to go to the meeting. Among other
things, Howlett spoke as follows: Howlett did not realize that the wages of some em-
ployees were low until they started to unionize. He promised to raise or adjust
wages to bring them up to comparable union rates for similar work, but stated this
could not be done until after the election scheduled for May 17. Howlett did not
testify. Personnel Manager Spiegel, who was present at this meeting, gave a some-
what different version of these remarks. I find that the above account, as narrated
by the General Counsel's witnesses, is the more creditable one
The above remarks of President Howlett, I find, constituted a promise of benefit
if the employees rejected Local 497 at the forthcoming election. In making this
finding I consider relevant Howlett's letter of May 20, 1961, to the employees in
which, among other things, he expresses appreciation of the vote against Local 497
and for a vote against "outside interference," and in which he assures the employees
that "with this expression of trust, we who are responsible for management decisions,
can shape our future plans with full confidence that we are all working together."
On the basis of the above subsidiary findings and the entire record, I further find
that Respondent interfered with, restrained, and coerced employees in the exercise
of the rights guaranteed in Section 7 of the Act by the conduct described above in
section III, A.
B. Domination, interference with, administration of, and support of
the Committee
Prior to the advent of the Committee, the Respondent had a grievance procedure
whereby employees discussed and sought to adjust problems with their supervisors.
By April 3, 1961, President Howlett had become aware, from complaints of em-
ployees brought to him, that this procedure was not satisfactory to the employees.
At a meeting of employees held on April 3, which was called by President Howlett
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and addressed by him, he informed the employees that the Respondent had estab-
hshed a "representative committee" or 'a "special committee" of elected members
from each department to work out a new grievance procedure. These remarks were
reduced to writing and distributed to employees on or about April 4.
The idea of -a committee to adjust grievances was conceived by, originated with,
and was announced by the management of Respondent. All that the employees
could no was to vote for representatives to this committee; they were not given any
voice on the question of whether a committee should be selected to represent them.
Such an election, the time and conditions of which were set by Respondent, was held
about the middle of April, during working hours, in the office of William Turnage,
manager of Respondent's pastry department. Turnage was present during the
balloting. Employees were informed of the election by a notice on the bulletin
boards. They were directed to vote by supervisors. It was conducted by employees
Mathias and Anderson who were selected by the employees to do so. But the
notification of such selection was made to them by Supervisor Gallagher. In the
election, Anderson and employee Peters were elected to represent employees in
their department.
In his speech of about May 8, referred to above (section III, A), President Howlett
also alluded to the Committee, said he was behind it and all for it, urged the employ-
ees to take their problems to the Committee, not to be afraid to use it, and that "he
would iron out our problems" for those employees resorting to the Committee.
On or about May 22, employee Peters called a meeting of employees at the home of
employee Anderson for the purpose of explaining to employees the procedures of
the Committee and how it would process employee grievances. As previously noted,
both Peters and Anderson had been elected employee members of the Committee.
At this meeting Anderson said, among other things, .that President Howlett was 100
percent behind the Committee and that the employees should not be afraid to use it.
Four members of the Committee, all supervisors, were not elected by the employ-
ees, but they were appointed by the Respondent. They are: D. S. Hills, chairman
(Respondent's controller, who was designated chairman of the Committee by Presi-
dent Howlett); D. R. Mackenroth (Respondent's vice president); John W. Spiegel
(Respondent's personnel manager); and W. C. List (Respondent's production
manager).
Meetings of the Committee, which had about 15 members, were called by the
management members thereof. Employee members were informed by Supervisor
Hills by "intercompany memorandum." Supervisor Spiegel took minutes of the
Committee's meetings, had them typed by one of Respondent's clerical employees,
and kept the records of the Committee. Although employee Don Miller is secretary
of the Committee, both he and Supervisor Spiegel have signed all minutes of the
Committee Generally, committee meetings were held at the Town and Country
Motel, although one was held at Respondent's plant. Spiegel made arrangements
for the use of the motel, and payment for such use was made to the motel by the
Respondent. Although these meetings were held during the forenoon working hours,
none of the employee representatives suffered any loss of earnings by attending them.
The Committee has never had a fund of its own, collected dues, or had a treasury
or a treasurer.
While there is testimony, both from the General Counsel's and Respondent's wit-
nesses, that none of the supervisory members of the Committee voted or participated
in decisions at its meetings, I do not credit it because it is inconsistent with the
minutes of the Committee. Those minutes show that Supervisor Hills, its chairman,
sometimes made "suggestions," Personnel Manager Spiegel made a motion (which
was carried) to amend step 1 of the grievance procedure, many motions were
"carried" without disclosing that supervisors abstained from voting, and President
Howlett attended two meetings and vigorously participated in the proceedings at
one of them. Further, at the meeting of May 12, Supervisor Mackenroth "em-
phatically" stated that management was completely behind the new grievance pro-
cedure and would see to it "without reservation" that "no blocks are set up" by anyone
working for Respondent: Supervisor Spiegel at the meeting of June 7 informed the
Committee that he felt that the work of the Committee largely influenced the em-
ployees not to vote for a union on May 17; and President Howlett at the meeting of
September 11 said he would "completely support" any nonunion "forum" of
employees.
At its meeting of October 30, 1961, which President Howlett attended, the com-
plaint in the instant case was discussed. Howlett, who acted as chairman in the ab-
sence of Supervisor Hills, recommended that the supervisory members resign from
the Committee. Thereupon they did and immediately left with him. Thereafter
the remaining members, all employee representatives, continued the meeting. They
LAWSON MILK COMPANY 545
decided to "reorganize" as an "acting" employee representative committee until an
election was held to select a "permanent" employee representative committee. A
short time later, as such "acting" committee, they formally requested "recognition"
of Respondent until the election could be held. Such recognition was granted, and
Respondent also agreed to "accept" the "permanent" committee, when established.
Minutes of the Committee disclose that it processed grievances of individuals
through a grievance procedure which was adopted by it. But "any questions which
might pertain to all employees would not go through the grievance procedure as such,
but would be brought before the Employee Representative Committee directly for
a general discussion with management." (See minutes of May 4 meeting and
Howlett's letter of May 15, 1961, to employees.) According to the Committee's
minutes, it processed such matters as seniority, transfers, job posting, job classifica-
tions, starting time of shifts, "wages and benefits," "economic issues" (they also
show that the management representatives refused to sign an agreement establishing
the "ground rules" of the agreed-upon grievance procedure), improvements in the
hospitalization program, overtime for "swing men," differences in union and non-
union "swing men" rates of pay, rates of pay while substituting for another, night dif-
ferentials, conditions of employment, and "any and all matters." The minutes also
show that many grievances relating to the above subjects were adjusted by the
Respondent and that further discussions between Respondent and the Committee
were scheduled or contemplated on "economic issues."
On the basis of the above subsidiary findings of fact, I find that:
1. The Committee is an employee committee, in which employees participate,
which exists for the purpose of dealing with Respondent concerning grievances,
wages, rates of pay, hours of employment, and conditions of work; and, accordingly,
it is a labor organization comprehended by Section 2(5) of the Act. (See N.L.R.B.
v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203.)
2. The Respondent has dominated and interfered with the formation and adminis-
tration of the Committee and has contributed financial support to it, contrary to the
provisions of Section 8(a) (2) of the Act.
It is immaterial that the four management representatives have resigned from
the Committee. Under Board and court precedents, an employer must completely
disestablish a dominated labor organization. NLRB. v. Rath Packing Company,
130 F. 2d 540 (C.A. 8); Majestic Metal Specialties, Inc., 92 NLRB 1854, 1860. See
N.L.R B. v. Southern Bell Telephone and Telegraph Company, 319 U.S. 50, 57.
This has not been accomplished here, for the Committee has not only continued to
operate and is still recognized, but no cleavage or clear line of fracture has been
shown between the Committee and its present temporary successor. In fact, a
permanent successor has not yet been organized but the Respondent has agreed to
recognize it in futuro. See Farrington Manufacturing Company, 93 NLRB 1416,
1417. El Paso Electric Company v. N.L.R.B., 133 F. 2d 168 (C.A. 5), is
distinguishable.
C. The failure to reemploy Myrtle Cobb
Myrtle Cobb was first employed by Respondent on November 13, 1955. There-
after she was intermittently laid off and rehired. On May 5, 1961, she was rehired
for the last time. She continued this employment until June 3, 1961, when she was
laid off for lack of work. As on prior occasions when she was laid off, on June 3
Cobb was told by her supervisor that she would be recalled when work was available.
But, as of the date of the hearing, she had not been recalled, although work has
been available. The General Counsel concedes that no illegality accompanied Cobb's
layoff on June 3 However, he contends that she has not been reemployed for dis-
criminatory reasons prohibited by Section 8(a),(3) of the Act.
Respondent contends that Cobb has not been recalled because she was an unsatis-
factory employee in that she argued with her supervisors, and that she disrupted pro-
duction by gossiping or talking to employees during working hours. However, except
for one occasion,' neither her supervisors nor Personnel Manager Spiegel warned her
of these alleged offensive traits nor mentioned them to her. In fact, other employees
who engaged in analogous conduct were neither disciplined nor warned; and, accord-
'Once prior to June 3, 1961, Supervisor Turnage heard an argument but "could not
hear what was said by either party " When lie came to the parties lie saw that the- were
Mrs Cobb and her supervisor, Bill Howard Thereupon he told Mrs Cobb that "this kind
of thing had to cease, and that we could not continue to have arguments every time a
supervisor asked you to change hours or days or whatever case it might be " It is diffi-
cult to understand how Turnage knew the contents of the argument when he could not
hear what was said Nevertheless I find that he made the above statements to Cobb
because Cobb admitted it was made.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to Cobb's supervisors , the conduct of such employees was not considered unusual.
On or about June 20, 1961, Spiegel called Cobb to his office to explain that she had
lost certain benefits as a result of her being a part-time employee for more than a
year, and asked her if she was available for work on a part-time basis. Manifestly
Cobb's undesirable personal characteristics were not considered adequate to preclude
her return or Spiegel would not have shown an interest in her availability- at least
he would have mentioned her alleged faults to her. Accordingly, I find that Cobb's
alleged misconduct has not been established or given as the reason for declining to
recall her. In any event, I find that, even if Cobb's conduct was objectionable it was
not called to her attention at any time after June 3, 1961, or given as the cause for
not reemploying her. In this connection, the fact that Cobb's hourly rate was raised
in May 1961 from $1.82 to $2.05 an hour is significant.
Nevertheless an ultimate finding of a discriminatory refusal to rehire cannot be
predicated merely upon a rejection of the Respondent's failure to establish good cause
as the ground for not calling Cobb back to work. The General Counsel still has the
burden of establishing a discriminatory motive. I find such motive upon the findings
narrated in the following paragraph.
Cobb was the only employee of Respondent who attended a National Labor Re-
lations Board conference in April 1961, held for the purpose of adopting "various
terms" of the coming election in Case No. 8-RC-4221. Respondent was repre-
sented at said meeting by management personnel and its counsel. Hence Respond-
ent had knowledge of Cobb's union activity. Toward the end of May 1961, em-
ployee Peters, who was employee representative for Cobb's department on the
Committee, spoke to Personnel Manager Spiegel whether part-time help were recalled
according to seniority At this time, Cobb was a part-time employee. Peters made
this inquiry to ascertain whether Cobb "had a basis for a grievance." Spiegel re-
plied that part-time employees did not enjoy seniority on recall, and that Cobb on
other occasions had caused "difficulty" for the Respondent, and that Respondent
felt that Cobb "had something to do with the uprising as to the union although .
to his [Spiegel's] knowledge she had not passed out cards." I find, accordingly,
that on the basis of the facts narrated in this paragraph only, Cobb has not been re-
called because she was an active proponent of Local 497 at Respondent's plant.
Speigel does not deny uttering these remarks to Peters. Rather, Speigel testified,
"I don't recall this conversation, but I could not say I did not have it I talked to
dozens of employees, and I could not honestly say that I didn't have the conver-
sation with him." I find that the conversation occurred in the language recited by
Peters
Certain evidence introduced by the General Counsel does not add to the dis-
crimination above with respect to the failure to recall Myrtle Cobb. Thus the
fact that after June 3 Cobb lost certain benefits, including seniority; or that Cobb
was not recalled although she received a service award in February 1961; or that
two new part-time employees were hired in October 1961 to do work comparable to
Cobbs, are insufficient to show a discriminatory motive, and I so find. It is there-
fore unnecessary to analyze the evidence relating to loss of seniority and other bene-
fits by Cobb and 17 other part-time employees; or the evidence that all but 2 (1 of
whom was Cobb) of these 18 employees have been recalled to work following their
layoffs on or after June 3 or 5, 1961. Nevertheless I find that the recall of 6 of
these 18 employees reveals that (in Cobbs department, work which she usually per-
formed was available.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
Concluding Findings
1. Since on or about May 8, 1961, Respondent promised its employees wage in-
creases if they refrained from becoming or remaining members of, giving any
assistance or support to, or voting for, Local 497.
2. Respondent has interrogated its employees concerning their union membership,
activities, and sympathies.
3 Respondent has threatened its employees with discharge if they engaged in
union activities or concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
4. Respondent has formed, organized, sponsored, and promoted the Committee,
dominated and interfered with its administration, and contributed financial and
other support to it.
5. Said Committee is an employee committee which exists for the purpose of
dealing with Respondent on matters pertaining to grievances, rates of pay, hours of
employment, and other terms and conditions of employment. (N.L.R.B. v. Edward
G. Budd Manufacturing Co., 169 F. 2d 571, 576 (C.A. 6).)
NATIONAL PARTS WAREHOUSE 547
6. Since on or about June 3, 1961 , Respondent has failed and refused to rehire
Myrtle Cobb because she had joined, assisted, or favored Local 497.
1 further find that such conduct violates Section 8(a)(1), that the conduct de-
scribed in concluding finding numbered 4 violates Section 8(a)(2), and that the
conduct described in concluding finding numbered 6 violates Section 8(a)(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 con-
nection with the operations of 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 to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor practices
prohibited by Section 8(a)(1), (2), and (3) of the Act, it will be recommended
that it cease and desist therefrom and that it take certain affirmative action designed
to effectuate the policies of the Act. In view of the findings that Respondent dis-
criminated with respect to the recall of Myrtle Cobb, the recommended order herein
will require Respondent to offer immediate and full reinstatement to her former
position or one substantially equivalent thereto, and to make her whole for any loss
of earnings suffered by payment of sums of money equal to those which she normally
would have earned from the date of the discrimination against her to the date of
Respondent's offer of reinstatement or reinstatement as the case may be, less net
earnings during the intervening period. The backpay provided herein shall be
computed in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289.
Since Respondent's activities impede or hinder the self-organization of its em-
ployees in a manner which has shown a serious disregard for the purposes of the Act,
and Respondent has expressed its hostility to such self-organization at various times
in the past, the remedy herein should be commensurate with the legislative objec-
tives enacted in Section 7 of the Act. It follows that an order designed to assure
Respondent's employees of their rights as guaranteed in said Section 7 is appropriate.
Upon the basis of the foregoing findings of fact, and of the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 497 and the Committee are labor organizations within the meaning of
Sections 2(5) and 8(a) of the Act.
2. By engaging in the conduct set forth in the section entitled "Concluding
Findings," the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1), (2), and (3) of the Act.
3. 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.]
B. M. Smith, et al., a partnership d%b/a National Parts Ware-
house and International Union, United Automobile, Aircraft
& Agricultural Implement Workers of America, UAW, AFL-
CIO. Case No. 10-CA-4803. March, 26, 1962
DECISION AND ORDER
On January 22, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is engaging in certain unfair
136 NLRB No. 49.
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