Moanalua Dairy, Ltd.

National Labor Relations Board - Board Decisions

Jan 31, 1946

65 N.L.R.B. 714 (N.L.R.B. 1946)

In the Matter Of MOANALUA DAIRY, LIMITED and DAIRY WORKERS
UNION OF HAWAII, LOCAL 946 (AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN &
HELPERS OF AMERICA-A. F. L.)
Case No. 23-C-26.-Decided January 31,1946
DECISION
AND
ORDER
On March 17, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report,
attached hereto. Thereafter, exceptions to the Intermediate Report
and a supporting brief were filed by the respondent.' On October 23,
1945, the Board at Washington, D. C., heard oral argument in which
the respondent particiated.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the additions herein-
after set forth.
1. We agree with the Trial Examiner 's finding that the respondent,
in violation of Section 8 (5) of the Act, refused to bargain with the
Union, which had been designated as their exclusive collective bar-
gaining representative by a majority of the respondent's employees in
a unit appropriate for the purposes of collective bargaining. In its
exceptions and brief the respondent urged that its relations with,the
1 Together with its exceptions and brief , the respondent filed a motion for permission
to adduce as additional evidence before the Board a certain newspaper article which ap-
peared in the Honolulu Advertiser on May 6 , 1945, in which Representative Jack Anderson
of California is said to have written William Green, President of the American Federation
of Labor, concerning the asserted nnreliabihty of the testimony of Aithur A Rutledge
before the subcommittee of the House Naval Affairs Committee investigating the problems
of congested areas Rutledge is a witness called by the Board in the instant case The
motion is hereby denied The evidence offered doeg not have sufficient probative value
on the issue of Rutledge ' s credibility to warrant our consideration.
65 N. L. R. B., No. 120.
714
MOANALUA DAIRY, LIMITED 715
Union during the period the Union was seeking to bargain with ii
did not constitute an unfair labor practice in violation of Section 8
(5) of the Act for three reasons: (1) that it believed in good faith that
the employees involved were agricultural laborers and hence not pro-
tected by the Act; (2) that it believed in good faith that the unit
designated by the Union was not an appropriate one; and (3) that,
in any event, the respondent, despite its position that it was not legally
obliged to bargain with the Union, did offer to bargain collectively
with the Union. At the oral argument before the Board, counsel for
the respondent conceded that under previous decisions of the Board
the respondent could not validly contend that the employees here in-
volved were agricultural laborers and consequently we need consider
here only the other grounds of the respondent's contention.
We agree with the Trial Examiner that the respondent's refusals
to bargain with the Union were not predicated upon bona fide doubts
on its part as to the appropriateness of the bargaining unit claimed
by the Union. The record clearly shows that throughout the period
of attempted negotiations, the respondent's primary reason for not
recognizing the Union was its view that the employees involved were
agricultural laborers and hence were not covered by the Act. While
in the Union's first bargaining demand, contained in the letter dated
August 21, 1943, the scope of the unit was not clearly defined, in that
clerical and supervisory employees were not specifically excluded
therefrom,2 the respondent, however, in its answer to this letter, dated
September 27, 1943, based its refusal to bargain with the Union, not
on any doubt as to the appropriateness of the unit, but on the grounds
that it had been advised that its employees were not covered by the
Act, and that, in any event, it preferred to deal "direct with [its] em-
ployees" since it pelt that "they have a more intimate knowledge of
their own problems than any outsider could possibly have."
Because the respondent consistently took the position that the em-
ployees were not covered by the Act, the parties never reached the point
of clarifying their respective positions with respect to the appropriate
bargaining unit. Moreover, the record establishes that there was no
serious disagreement between the respondent and the Union con-
cerning the appropriate bargaining unit. Since the Union clearly rep-
resented a majority of the employees in the unit, regardless of the .in-
clusion or exclusion of the clerical and supervisory employees, it was
not of crucial importance to it whether these employees were included
or not. In fact, in December 1943, when the Board's Regional Director
advised the Union that the respondent had objected to the inclusion
of office workers, the Union's representative replied that it "was per-
2 The Union 's letter merely stated that "the majority of your drivers and plant em-
ployees have designated our Union as their sole and exclusive representative for the pur-
poses of collective bargaining."
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fectly all right to exclude them." And, on March 20, 1944, the Regional
Director informed the respondent that the parties -would have no
trouble "getting together on the unit," as the respondent admitted."
Accordingly, the respondent's contention, based upon an alleged bona
fiche doubt as to the appropriate unit, must be rejected.4
The respondent's further contention that, in any event, it did offer
to bargain collectively with the Union and hence should be absolved
of violating Section 8 (5) of the Act, is without merit, as the Trial
Examiner found. As noted in the Intermediate Report, the respond-
ent's offers to meet with the Union and to discuss its demands were in-
variably qualified by the condition that by so doing it would not be
receding from its position that the employees were agricultural laborers
and hence were not entitled to exercise the bargaining rights conferred
on employees in the Act. The respondent's argument that the union
demands for formal recognition were meaningless because the respond-
ent's offers to meet with the Union and to discuss its demands con-
stituted recognition in fact, is 'without merit. An employer is ob-
ligated by Sections 8 (5) and 9 (a) of the Act to bargain, upon demand,
with-a properly designated representative as the exclusive collective
bargaining agent of his employees. This obligation, as we have re-
peatedly held,5 includes the duty to extend to the statutory represen-
tative full and unqualified recognition as the exclusive bargaining
agent. The respondent wholly failed to fulfill this obligation.
2. We agree with the Trial Examiner's finding that the respondent
temporarily discontinued the retail delivery of milk and thereafter
refused the unconditional application of the striking drivers for rein-
statement in order to discourage membership in the Union, and that the
respondent's conduct, therefore, in effect constituted a lock-out and a
discharge of the drivers in violation of Section 8 (3)' and (1) of the
Act. In support of the conclusion that the discontinuance of retail
milk deliveries was merely a temporary maneuver to combat the strike
and not a change permanently adopted for business reasons, as con-
tended by the respondent, we rely upon the fact, in addition to the
facts cited by the Trial Examiner in his Intermediate Report, that at
the time the respondent refused the drivers' applications for reinstate-
ment the respondent made no mention of any intention to abandon re-
2 In finding that disagreement as to the scope of the unit was not the real reason for
the respondent ' s refusal to recognize the Union, we do not rely, as did the Trial Examiner,
on the testimony of Union Representative Rutledge to the effect that the Board ' s Regional
Director had informed Rutledge that the Regional Director had advised the respondent
that Rutledge was willing to "just take in plant workers and drivers "
4 N. L. R B. v. Btiles -Coleman Lumber Co., 98 F (2d) 18 , 22 (C. C. A. 9) ; N. L. R. B.
v. National Motor Bearing Co , 105 F. ( 2d) 652, 660 (C C. A 9), N. L R B. v. Lettee Lee,
Inc., 140 F. ( 2d) 243, 248' (C C. A. 9).
5 Matter of McQuay-Norris Mfg Co., 21 N L R. B. 709, 715, enf 'd 116 F. ( 2d) 748,
751 (C. C. A. 7), cert. denied 313 U. S 565 ; Matter of Golden Turkey Mining Co ., 34 N. L.
R. B. 760, 770 ; Matter of S. H. Kress & Co ., 34 N. L. It. B. 1152, 1207; Matter of United
Biscuit Co , 38 N. L R B. 778, 791
MOANALUA DAIRY, LIMITED 717
tail deliveries; on the contrary the published "Notice" to which the
drivers were referred for an explanation of the refusal of their ap-
plications for reinstatement, clearly suggested that "normal opera-
tions" were to be resumed as soon as the striking drivers could be re-
placed. Moreover, the "Notice" frankly attributed the respondent's
decision to replace these men to the men's asserted lack of responsi-
bility in going out on strike. A refusal to reinstate employees for
participating in a strike, a lawful concerted activity protected by the
Act, is a violation of the Act.
THE REMEDY
Having found that the respondent has, engaged in conduct violative
of Section 8 (1), (3), and (5) of the Act, we shall order the respondent
to cease and desist not only from engaging in such conduct but also,
for the following reasons, from in any other manner interfering with,
restraining, and coercing its supervisory employees in the exercise of
the rights guaranteed in Section 7 of the Act. The respondent's whole
course of conduct discloses a purpose to defeat self-organization and
its objects among its employees. As we have found, the respondent
warned its drivers, when it first suspected that they might wish to or-
ganize, that it would discharge them if they joined the Union. After
the employees joined the Union, and though it asked for a collective
bargaining conference, the respondent refused this request on the
ground, inter alia, that it did not wish to deal with an "outsider."
Thereafter, the respondent consistently refused to recognize the duly
designated collective bargaining representative of its employees.
After the drivers had gone out on strike as a result of respondent's
varied unfair labor practices, the respondent, as a counter-measure to
combat the strike, temporarily discontinued retail deliveries, and
thereafter refused to reinstate the drivers when they unconditionally
offered to return to work .6 This culmination of the respondent's
illegal activities, the discriminatory refusal to reinstate the employees,
"goes to the very heart of the Act." ° Because of the respondent's un-
lawful conduct, and its underlying purpose, we are convinced that the
unfair labor practices found are persuasively related to the other un-
fair labor practices proscribed by the Act, and that the danger of their
commission in the future is to be anticipated from the respondent's
' At page 15 of his Inteimediate Report , the Trial Examiner inadvertently refers to
September 17, 1944, as being the date when the respondent 's drivers offered to terminate
their strike and return to work. The record reveals , and we find, that this occurred on
April 17, 1944
IN L. R B v. Entwistle Manufacturing Co., 120 F. ( 2d) 532 , 536 (C. C A. 4) See
also, N. L R B v Automotive Maintenance Machinery Co , 116 F (2d) 350 , 353 (C C. A.
7), where the Circuit Court of Appeals observed : "No more effective form of intimidation
nor one more violative of the N L. It. B Act can be conceived than discharge of an em-
ployee because he joined a union . . .
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct in the past.' The preventive purpose of the Act will be
thwarted unless our order is coextensive with the threat.
As recommended in the Intermediate Report, we shall also order
the respondent to take certain aflirmative action designed to effectuate
the policies of the Act. The Trial Examiner recommended that the
amount of back pay to be paid the drivers should not be diminished
on account of the discontinuance of the retail milk delivery routes
because that action itself constituted an unfair labor practice. We
concur in this recommendation for the reason that, had not the re-
spondent discontinued making retail milk deliveries in order to dis-
cipline the striking drivers for having gone out on strike and to dis-
courage its employees fi;om engaging in union activities, the respond-
ent might well have continued making retail deliveries and the posi-
tions as drivers would then have been available for the employees
here involved. In any event, we shall resolve any doubts on this
score in favor of the drivers, who had merely engaged in a lawful
concerted activity protected by the Act, as against the respondent,
whose very action in discontinuing the making of retail deliveries of
milk was an unfair labor practice in violation of Section 8 (3) and
(1) of the Act, as we have found. Accordingly, we find that the
purposes and policies of the Act will best be effectuated by requiring
the respondent, until such time as it may remedy its unfair labor prac-
tice in discontinuing the retail delivery of milk by reinstating the
drivers or placing them upon a preferential hiring list, as recom-
mended in the Intermediate Report, to compute the amount of the
losses suffered by the drivers as a result of its discrimination against
them, upon the basis of what they would have earned in their former
positions as drivers.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent , M9analua Dairy, Limited,
Honolulu, Oahu, Territory of Hawaii , and its officers, agents , succes-
sors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Dairy Workers Union of
Hawaii, Local 946, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers of America, as the
exclusive representative of all its employees in the King Street plant,
Honolulu , Oahu, Territory of Hawaii , exclusive of supervisory and
clerical employees , in respect to rates of pay, wages , hours of employ-
ment, and other conditions of employment.
8 See N. L. R. B. v Express Publishing Co , 312 U. S 426 ; N. L. R. B. v. May Depart-
ment Stores , Inc., 66 S Ct. 203, 209-213.
MOANALUA DAIRY, LIMITED 719
(b) Discouraging membership in Dairy Workers Union of Hawaii,
Local 946, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any other labor
organization of its employees, by refusing to reinstate, locking out,
or discharging any of its employees, or by discriminating in any other
manner in regard to the hire and tenure of employment or any terms
or conditions of their employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Dairy Workers Union of Hawaii,
Local 946, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities, for the purposes
of collective bargaining or other mutual aid or protection as 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 :
(a) Upon request bargain collectively with Dairy Workers Union
of Hawaii, Local 946, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the
exclusive representative of all the respondent's employees in the King
Street plant in Honolulu, Oahu, Territory of Hawaii, exclusive of
supervisory and clerical employees, with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and if an
understanding is reached, embody such understanding in a signed
agreement ; '
(b) Offer to Roydon M. Ishikawa, Takeo Kamihara, Hiroichi Koza,
Paul Miyake, Takeshi Ogata, and Norman S. Muromoto immediate
and full reinstatement to their former or substantially equivalent posi-
tions, or to any other available positions for which they are qualified,
without prejudice to their seniority or other rights and privileges
previously enjoyed; and if no such positions are presently available,
place them on a preferential list and thereafter offer them employ-
ment as it becomes available, in the manner provided in the section of
the Intermediate Report entitled "The remedy";
(c) flake whole Roydon M. Ishikawa, Takeo Kamihara, Hiroichi
Roza, Paul Miyake, Takeshi Ogata, and Norman S. Muromoto for any
loss of pay they have suffered by reason of the respondent's discrimina-
tion against them,.by payment to each of them of a sum of money
equal to the amount which he normally would have earned as wages
in his former position during the period from April 17, 1944, to the
date of the offer of reinstatement or placement upon the preferential
list as provided in the section of the Intermediate Report entitled
"The remedy," less his net earnings during such period, but without
679100-46-vol. 65-47
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diminution on account of the discontinuance of the retail milk delivery
routes;
(d) Post at its King Street plant at Honolulu, Oahu, Territory of
Hawaii, copies of the notice attached hereto, marked "Appendix A."
Copies of such notice, to be furnished by the Regional Director of the
Twenty-third Region, shall, after being duly signed by the respond-
ent's representative, be posted by the respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
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 other material;
(e) Notify the Regional Director for the Twenty-third Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
MR. GERARD D. RLILLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. Rybnin L Hackler, for the Board.
Stanley, Vatouselc, Pratt & Winn, by Mr. Montgonaeiy Winn; and Mr. James
P. Blaisdell, of Honolulu, T. H., for the respondent.
Mr. Arthur A. Rutledge, of Honolulu , T. H., for the Union
STATEMENT OF THE CASE
Upon a second amended charge duly filed October 16, 1944, by Dairy Workers
Union of Hawaii, Local 946, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America-A. F. L., herein called
the Union, the National Labor Relations Board, herein called the Board, by, its
Regional Director for the Twenty-third Region (Honolulu, Territory of Hawaii) ;
issued its complaint dated October 17, 1944, against Moanalua Dairy, Limited,
herein called the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the, meaning
of Section 8 (1), (3), and (5), and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. -
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that (a) all plant employees, excluding supervisory and office employees
employed at the plant, constitute a unit appropriate for the purposes of collective
bargaining ; (b) that on or about August 21, 1943, and at all times subsequent
thereto, a majority of the employees in said unit had designated the Union as
their bargaining representative and by virtue thereof the Union, since August
21, 1943, has been the exclusive representative of all the employees in said unit
for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment and other conditions of employment; (c) that on or about
August 21, 1943, and at various times subsequent thereto, the Union requested
the respondent to bargain collectively with respect to rates of pay, wages, hours
of employment, and other conditions of employment with the Union as the exclu-
sive representative of all employees in the unit; (d) that respondent from on or
about September 27, 1943, to the date of the complaint herein, had refused and
failed to bargain collectively with the Union, in that the respondent did refuse
MOANALUA DAIRY, LIMITED 721
and fail and does not refuse and fail to grant to the Union the.full recognition
to which it is entitled as the exclusive bargaining representative; (e) that the
respondent did, by unilateral action, grant wage increases to certain employees
in the unit, notwithstanding the Union had requested collective bargaining con-
cerning such matters; and (f) did, as set forth below, lock out and discharge cer-
tain employees in the unit for the purpose of avoiding collective bargaining with
the Union; (2) (a) that by the acts described the respondent, on or about April 2,
1943, did cause-six of its route delivery men' to go on strike and to remain on
strike until on or about April 17, 1944; (b) that on or about April 17, 1944, these
said six route delivery men, and each of them, made unconditional offers to the
respondent to terminate the above-mentioned strike and return to work; and (c)
that on or about April 17, 1944, the respondent did lock out and discharge the said
six route delivery men because of their membership in and activity on behalf of
the Union; and (3 ) by the acts described above the respondent interfered with,
restrained, and coerced its employees in the rights guaranteed in Section 7 of
the Act.
On or about October 27, 1944, the respondent filed its answer to the complaint
denying that it had engaged in the alleged unfair labor practices. The answer
alleged affirmatively that "all employees of the company are agricultural laborers
within the intent and meaning of Section 2 (3) of the National Labor Relations
Act," and that the Board is without jurisdiction to entertain the complaint here-
in and that the complaint should be dismissed forthwith.
Pursuant to notice, a hearing was held in Honolulu, Oahu, Territory of Hawaii,
on October 3O and 31, and on November 1, 2, 3, 0, and 7, 1944, before Peter F.
\Vard, the Trial Examiner duly designated by the Chief Trial Examiner. The
Board and the respondent were represented by counsel, and a representative
appeared for the Union. All parties participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties. At the outset of the
hearing the respondent filed a "plea to the jurisdiction" of the Board and moved
for a dismissal of the complaint on the grounds that all company employees are
agricultural employees under the Act. The undersigned denied the plea and the
motion to dismiss. At the close of the hearing the respondent renewed such
plea and motion to dismiss the complaint. The undersigned reserved ruling
thereon and now, for reasons set forth below, denies the same. Also, at the close
of the hearing, counsel for the Board moved, without objection, that the com-
plaint be amended in formal matters to conform to the proof. The motion was
granted.
Following receipt of all evidence and testimony, counsel for the Board and
the respondent argued orally before the undersigned, and such arguments were
included in the official transcript of the proceedings. While the parties were
afforded an opportunity to file briefs with the undersigned, no briefs have been
filed.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a corporation organized and existing under the laws of
Hawaii, having been incorporated on September 3, 1035. The respondent oper-
'Roydon M. Ichikawa , Takeo Kamihara . Hiroichi Koza, Paul Mlyaki , Takeshi Ogata
and Norman S Muromoto.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ates a dairy farm some 11 miles from the city of Honolulu, Territory of Hawaii,
composed of some 40 acres of land and a dairy herd of from 350 to 375 head of
milk cows. It also owns and operates a plant at 1950 King Street, Honolulu,
wherein it pasteurizes, processes, and bottles milk which is subsequently sold at
both wholesale and retail. For the year preceding the hearing herein, the
iespondeut sold milk and powdered milk products valued in excess of $200,000.
During the same period the respondent purchased raw milk, powdered skim milk,
chocolate powder and syrup, orange syrup, and strawberry extract valued in excess
of $57,000. Prior to April 2, 1944, the Company operated five retail delivery
routes for the sale and distribution of its milk. The respondent contends that
its King Street Plant employees are "agricultural laborers" under the Act and
not subject to the jurisdiction of the Board. For the reasons above set forth and
the further reasons set forth in Section III, below, the undersigned finds such con-
tentions to be without merit, and the respondent's King Street Plant employees
to be subject to the jurisdiction of the Board.
H. THE ORGANIZATION INVOLVED
Dairy Workers Union of Hawaii, Local 946 (affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America);
affiliated with the American Federation of Labor, is a labor organization admit-
ting to membership employees of the respondent?
III. THE UNFAIR LABOR PRACTICES
A. The retusal to bargain collectively; isterfcicnce, restraint, rand coercion
1. The appropriate unit
The complaint alleges in substance that a unit composed of all of the plant
employees, excluding super isory and office employees, would insure to respond-
ent's employees the full benefit of the right to self-organization ; would otherwise
effectuate the policies of the Act ; and is therefore a unit appropriate for the
purpose of collective bargaining. While the respondent, in its answer, alleged
lack of sufficient knowledge or belief to either admit or deny such allegations,
it offered no evidence and raised no objections thereto other than its contention
that the Board was without jurisdiction herein.
The undersigned finds that all employees of the respondent engaged at its
King Street, Honolulu, plant, excluding supervisory and clerical employees, at
all times material herein constituted, and now constitute, a unit appropriate for
the purposes of collective bargaining with respect to rates of pay, wages, hours
of employment, and other conditions of employment, and that said unit insures
to the employees of the respondent the full benefit of their right to self-organiza-
tion and collective bargaining and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
The record discloses that as of August 15, 1943, the respondent's plant employees
other than supervisory and office employees consisted of the following categories ;
5 milk route drivers ; 1 relief driver; 1 pasteurizer ; 1 milk room employee, and
I bottle filler, which group has been found herein to constitute an appropriate
unit for the purposes of collective bargaining.
2 Prior to on or about April 10, 1944, the Union operated under a Federal charter fiodi
the American Federation of Labor, as "Davy Workers Union of Hawaii, Local No 22432,"
after which time it has opeiated as Local 946 under a charter from the International
Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America-A F. L.,
heiein called the Teamsters
MOANALUA DAIRY, LIMITED 723
During the hearing membership application cards of the Union were introduced
in evidence covering all of the employees in the above, described categories.' All
of such cards were dated either as of August 17 or August 18, 1943. The mem-
bership application card of one other employee' who was hired as a bottle washer
on or about January 17, 19-14, was also introduced in evidence. It disclosed that
such application for membership had been made on February 20, 1944. Thus
by August 21, 1943, the Union had been designated by all of the employees then
'in the appropriate unit s
The undersigned finds that on August 21, 1943, and at all material times there-
after, the Union was, and now is, the duly designated representative of a majority
of the employees in the aforesaid appropriate unit, and that, by virtue of Section
9 (a) of the Act, the Union at all such times was and now is the representative
of all the respondent's employees in such unit for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of employment. or other condi-
tions of employment.
3. The refusal to bargain
a. Chronology of events
During May or June 1943, the Union organized the milk route drivels of Hind-
Clarke Dairy, one of the larger dairies operating on the Island of.Oahn. There-
after the Union filed certain charges against the Hind-Clarke Dairy alleging
certain violations of the Act. The case was subsequently settled informally with
the result that the Hind-Clarke drivers received-a substantial increase in wages
and some reductions in hours of work. The terms of the contract covering such
settlement were given publicity in the local papers.
Prior to the execution of the Hind-Clarke contract, all of the respondent's milk
route drivers were paid on a strictly "percentage," basis with which they were
dissatisfied. Following the execution of such contract, Andrew K. Bernshouse,
vice president and general manager, called a meeting of all drivers and discussed
wages with them. As a result of such discussion a new plan of payment was put
in effect, whereby the drivers received a base pay of $145 per month together with
a sliding scale of commissions During this conference Bernshouse informed
the drivers in substance and effect that if they joined or became involved in the
Union he would discharge them, not all at one time, but one by one.'
' Kamihara, Ogata, Ishikawa, Koza, Arakaki, Muromoto. Matsuda, Miyake and Timbreza
' Paschoal Ramos.
5 K Arakaki, a milk route driver, was discharged on October 31, 1943. Paul Miyake,
formerly a milk route driver, then employed in the milk room, took over Arakaki's milk
delivery route
This finding is based on the credible testimony of Ishikawa, Muromoto, Miyake, and
Ogata Bernshouse denied making such a statement He testified to the effect that
he told the drivers that he "would not hold them to their jobs if they could get higher
paid jobs somewhere else," and requested that, in the event they did leave, to leave one by
one. The record discloses that at the time referred to above, a manpower shortage existed
in Hawaii ; that dairy employees were "frozen" to jobs within that industry ; that Berns-
house considered the wage increase granted to the Hind-Clarke dairy drivers to have been
an "outrageous set-up," and admitted that it was "in his mind" at the time of the con-
ference Paul B. Heckenlively, the respondent's assistant manager, and Hung Chang
Mew, the respondent's treasurer, each testified that Bernshouse told the drivers that he
would give them releases "one by one" if requested, thus all parties agree that the phrase
"one by one." was used at the meeting. In view of all the circumstances, including the
manpower shortage, and as stated by Bernshouse, the " . . demand for men and so
many other jobs that were possible to get." the undersigned, as above found, is convinced
that Bernshouse did not offer to release the drivers "one by one" on request, but threat-
ened to discharge them "one by one" if they joined or became involved in the Union
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 21, 1943, Arthur A. Rutledge, executive secretary of the Union, wrote
the respondent as follows :
Please be advised that the majority of your drivers and plant employees
have designated our Union as their sole and exclusive representative for the
purpose of collective bargaining.
We are prepared to offer proof of our majority if you ask for it.
Will you give this matter your immediate attention:
Our telephone number is 2268.
Rutledge having received no immediate reply from the respondent called Berns-
house by phone and was advised that the matter had been referred to Montgomery
E. Winn, the respondent's attorney. On or about September 21, 1943, Rutledge
requested one, L. Q. McComas, Director of Labor and Industrial Relations for
the Territory of Hawaii, to arrange for a meeting between representatives of
the Union and the respondent. On September 21, 1943, McComas wrote Berns-
house and informed him of the request made by Rutledge and asked Bernshouse
to advise him whether or not he would be willing to meet with representatives
of his employees.
On September 24, 1943, Winn furnished the respondent with a written opinion
to the effect that the plant employees were agricultural laborers and stated that
while "The Board takes the position that it will extend its jurisdiction to employ-
ees wherever it is possible to do so . . .," he was of the opinion that if the matter
were submitted to a Court, "a Court would likely hold that the employees are
engaged in agriculture." The opinion was based upon the case of State vs
Christensen, 137 P (2) 513.
On September 27, 1943, Bernshouse wrote McComas, as follows :
This will acknowledge receipt of your letter of September 21st asking
whether or not I would be willing to meet with my employees at a mutually
agreeable time and place. Although I am advised by my attorneys that the
employees you mention are not covered by the National Labor Relations Act
I have always been willing to meet with my employees either as individuals,
or as a group of individuals, and discuss any grievances they might have
or any of their demands concerning wages, hours and working conditions
and I certainly do not intend to depart from that practice. However I want
to deal with nay own. employees and not with some outsider who knows
nothing of the conditions of emnplbyment existing in our plant. If you, how-
ever, would like to sit in on any negotiations between the employees and the
Company I would be very delighted to have you do so. Will you therefore
please convey to my employees the position which I have taken in this letter
or if you prefer I will be very glad to advise them. [Italics added.]
I am today acknowledging a recent letter which I have received from Mr.
Arthur A. Rutledge and I am forwarding to him a copy of this letter.
Also on September 27, 1943. Bernshouse wrote Rutledge, as follows :
This will acknowledge receipt of your letter of August 21st. The delay
in answering the letter was occasioned by the fact that the request in your
letter raised several legal questions which were referred to our attorney
and his opinion incidentally has just been received. As you will notice from
the contents of our letter to Mr. McComas, a copy of which is enclosed
herewith, ,our attorney is of the opinion that the employees mentioned in
your letter are agricultural employees and not covered by the National
Labor Relations Act. However that does not mean that we intend to take
MOANALUA DAIRY, LIMITED 725
the position that we are not willing to deal with our employees and have
so advised Mr. McComas.
From our letter to Mr. McComas you will note, however, that we prefer
to deal direct with our employees as we feel that they have a more intimate
knowledge of their own problems than any outsider could possibly have
and this way we probably would make speedier progress in arriving at a
mutually satisfactory solution of their problems than we would if they
were represented in the negotiations by a person not familiar with operating
conditions. [Italics added.]
After Rutledge had, on August 21, 1943, notified the respondent of the Union's
claim that it represented a majority of the drivers and plant employees, Winn
and Rutledge discussed the Union's claims. Winn advised the latter in substance
that he would have to consider the matter, inasmuch as he was of the opinion
that the employees in question were agricultural laborers and suggested that
Rutledge file a petition for investigation and certification with the Board's
Regional Office.
On November 18, 1943. Rutledge filed such a petition' On November 20, 1943,
the Regional Director, by letter, advised the respondent of the filing of such
petition and requested certain information. Among others was a question as
follows :
i 10. In the event we should mutually agree your Company comes within
the jurisdiction of the National Labor Relations Act, do you agree that the
bargaining unit proposed by the petitioning Union is appropriate? If not,
kindly describe the unit you do believe is appropriate.
On November 29, 1943, Bernshouse replied to the Regional Director's letter
and in answer to question No. 10, referred to above, stated :
10. Haven't sufficient information to form an opinion.'
On December 4, 1943, the Regional Director wrote to Bernshouse confirming a
telephone conversation fixing a (late for a conference to be held later. Such let-
ter also acknowledged receipt of the answer to the Director's letter of November
20, 1943, and with i eference to question No. 10, above referred to, stated :
I should also be grateful if your attorney and yourself can discuss the last
inquiry of my letter (Item No 10.)
On or about December 7, 1943, Rutledge, Winn and Bernshouse met with the
Regional Director. Most of the time of the meeting was taken up by Winn in
a discussion to the effect that the drivers and plant employees were agricultural
laborers under the Act and discussed the holding in re State v. Christensen,
mentioned above.
No further meeting or discussion was had between the parties until February
1944.' During the latter part of February, Rutledge telephoned Bernshouse on
a number of occasions and attempted to get the latter to confer with him pri-
vately, but was, on each occasion, referred to Winn. Bernshouse informed Winn
of such calls. The latter then invited Rutledge to his office for a conference on
February 28.
At this conference Rutledge demanded exclusive recognition as bargaining
representative for the Union and an opportunity "to negotiate and arrive at
an agreement."' Winn replied in substance that insofar as recognition went it
'A. L. Wills , the Board ' s Regional Director for the Territory of Hawaii , was absent
from the Territory during most of September and October 1944
s The record discloses that all communications written by respondent 's officials in con-
nection with the union petition and charges filed herein were prepared or dictated by Winn.
9 Unless otherwise specified all dates refer to the year 1944.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARb
was immaterial and did not mean anything Winn offered to bargain with the
employees on the basis that they were agricultural laborers. In this connection,
Winn testified :
I said, "If you are relying upon your-shall' we say-common-law right,
and you want us to bargain without waiving our contention that they are
not under the Act, we will be very glad to do it."
After discussing the respondent's financial condition and its alleged inability to
meet the wage scale paid at Hind-Clarke Dairy, and other matters not material
herein, Winn suggested that Rutledge prepare a proposed form of contract and
submit it to McComas, after which the respondent would consider it and the
parties could then get together and consider it. Rutledge stated that he wanted
recognition of the Union first. Winn, however, refused to grant such recognition;
contending that to do so would be receding from the respondent's positions that
the employees in question were agricultural laborers 10
On March 1, 1944, Rutledge filed charges against the respondent alleging vio-
lations of Section 8 (1) and (5) of the Act.
On March 11, Rutledge was called to the office of James P. Blaisdell" where
he met with Winn and Blaisdell. During the discussion Rutledge again de-
manded recognition of the Union as sole bargaining representative of the em-
ployees in question Winn and Blaisdell stated that they were willing to negoo-
tiate with Rutledge and if an agreement was reached to sign a contract, but
would do so only with the express understanding that they were not receding
from their position to the effect that the employees were agricultural laborers
and not entitled to recognition under the Act.
In this connection Blaisdell testified:
Q. (By Mr. Winn) Do you recall any discussion about technical recog-
nition?
A I recall discussions and I assume part of it was that meeting. "Tech-
nical recognition" to me is a lot of nonsense in most instances, and I think
I probably took that position with Rutledge at that time.
r * m x s x s
Q And it was your recommendation to the member (Respondent) that
the member bargain with the Union or with their representatives without
waiving any legal rights they might have-that the Act did not cover the
employees in question?
A. That is correct. When you say "to the member," it was to you.
The March 11 meeting ended in an impasse with Rutledge demanding recog-
nition of the Union as exclusive bargaining representative of the employees in
question, and with Winn and Blaisdell refusing to grant such recognition, but
offering in effect to negotiate with Rutledge on the basis that the employees were
agricultural laborers and not "employees" under the Act.
On March 20, a meeting of the parties was held at the office of the Regional
Director ; those present were A. L. Wills, Director, on behalf of the Board, Winn
and Bernshouse, on behalf of the Respondent, and Rutledge, on behalf of the
Union. Winn and Wills discussed the "agricultural" contentions of the parties at
length. Winn stated the Respondent's position to be that it was willing to meet
with the drivers and plant workers and get together on conditions of employ-
30
Winn's contention, that the appropriateness of the unit claimed by the Union was
questioned at this meeting, is discussed below.
"Blaisdell is an attorney with some 9 years of practice in the field of labor relations,
who on or about January 1, 1944, was installed as president of the Employers Council
of Hawaii The respondent is a member of the Employers Council.
MOANALUA DAIRY, LIMITED 727
ment, and if there was a "meeting of minds" to draw up an agreement and the
respondent and the Union would sign it However, such agreement, if reached
was "not to be construed as recognition of the Union ; just a memorandum of
what the Company was willing to do and what was expected of the men involved."
During this meeting Rutledge asked Winn for a statement in writing setting
forth the Respondent's position as stated at this conference.
On the same date, March 20, 1944, Winn wrote Rutledge as follows :
This is in compliance with your request made today in Mr. Wills' office that
I again state the Company's position and confirm the two offers I have
made to you on behalf of the Company.
First as to the Company's position. The Company has taken the posi-
tion that the men employed in its pasteurizing plant and its drivers are
engaged in "agriculture" and therefore do not come under the provisions of
the National Labor Relations Act which exempts employees employed in
"agriculture" from the Act. This position is based upon four cases decided
by the Supreme Court of Washington on May 14, 1943 In each one of these
cases the Court used the following language : "Individuals working in milk-
houses, bottling, pasteurizing, and taking care of milk, and truck-drivers
selling and distributing milk are agricultural laborers." The Court also
said: "The dairy farmer, like any other farmer, produces to sell, and mar-
keting of his product is necessarily an incident of the ordinary operations
of the dairy."
However, the fact that the 'above mentioned employees may be exempted
from the Act does not mean that the Company is not willing to bargain with
them individually or collectively. I have told you on several occasions and
Mr. Bernshouse has written both you and Mr. McComas of the Company's
willingness to meet the above mentioned employees and bargain with them
on wages, hours and working conditions and if an agreement is reached to
reduce the same to writing and sign it. That offer is still open.
I have also told you that if you want to present any demands personally
to the Company those demands will be given every consideration and when-
ever the Company feels the demand is reasonable and can be granted it will
be granted, and that if we can come to an agreement the same will be reduced
to writing and signed. That cffer also remains open [Italics added..]
You, however, have taken the position that the Union is entitled to formal
recognition ander the National Labor Relations Act and demand such recog-
nition before there are any negotiations between the Company and its em-
ployees. The Company can not grant this demand for to do so would result
in its waiving the legal point it has raised which is, as I have said above,
whether or not the employees in question are, or are not, engaged in
agriculture. [Italics added.]
The Company is very anxious to have the legal question decided and as
I told you this morning, and repeat again, we will cooperate with Mr. Wills
and the Union in every possible way to have the matter settled amicably and
as soon as possible. I don't anticipate any difficulty in getting together on a
stipulation covering all the facts material to a hearing on the petition for
certification if Mr. Wills decides that a hearing should be had on the petition.
On receipt of Winn's letter of March 20, Rutledge sought the services of one
Norback of the U. S. Labor Department to act as conciliator in the matter.
Through the efforts of Norback a meeting was held in the latter's office attended
by Rutledge and Winn. Winn stated that the Respondent's position had been
fully stated in his letter of March 20. Winn further stated that the Employers
Council wanted the question on agricultural laborers "determined legally," but
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said they would take the matter up with the Council and would let Rutledge
know.
Under date of March 27 , Winn wrote Rutledge as follows:
I have taken up with the Employers ' Council the question as to whether
or not it would advise the Moanalua Dairy to insist upon obtaining a ruling
from the National Labor Relations Board as to the status of the-Company's
drivers and physical workers employed in its King Street plant and have
today been advised by Mr. Baisdell , President of the Council , that the Council
will not insist upon a judicial determination of the question at this time.
That being the case, the Company is willing to sit down with such em-
ployee$, or their representatives , and explore the possibility of reaching a
mutually satisfactory agreement , it being unde7stood , however, that the
Company is not, thereby receding from its position that such employees are
agricultural employees and are therefore exempted from the pi ovisions of
the National Labor Relations Act. [ Italics added
If the foregoing is agreeable to you 'will you present your demands con-
cerning wages , hours and working conditions to me, in writing , in order
that they may be referred to the Company and to the Employers ' Council
for their consideration.
I am not quite clear in my own mind whether or not Mr. Norback plans to
sit in on the hearings . The Company would be very pleased to have him
attend , if he so desires , and will have no objections to Mr. McComas or a
representative from his office also attending Furthermore, if a representa-
tive from the Military Governor 's Office of Labor Control would care to
attend we would be very happy to have him. We suggest , however, that
they attend all meetings rather than be asked in at a later date, in order
that they may be thoroughly conversant with everything which may transpire
during the discussions.
Rutledge was dissatisfied with Winn's letter, last above set forth , and par-
ticularly with the suggestion that Norback , McComas, and a representative from
the Military Governor ' s office sit in on the proposed conference. He called Winn
by telephone but could not reach him. He then called Blaisdell and expressed
his dissatisfaction with the proposal made by Winn to "explore" the-possibility
of the parties reaching an agreement and to the suggestion that outside parties
be included in the conference . Rutledge objected to "everybody sitting in on it,-
and still we didn't have recognition."
On or about March 31, Drivers Ishikawa and Ogata called at Rutledge 's office
and after some discussion the latter typed five demands for the signature of
Bernshouse , as follows:
SPECIAL NOTICE TO ALL DRIVERS iZ EMPLOYEES AS OF MARCH 1,
1944
1. There will be no charges for bottle shortages.
2. There will be no deductions from salaries for unpaid stop accounts.
3. All drivers will receive one day off in seven with no deduction from their
monthly pay.
4. There will be no deductions from the wages of any driver without a written
authorization signed by the driver concerned.
5. The Company recognizes the Dairy Workers' Union Local No. 22432 as the
sole and exclusive bargaining agency for the purpose of collective bar-
gaining as to wages, hours and all other conditions of employment for
all drivers and plant employees.
MOANALUA DAIRY, LIMITED 729
On April 2, as is more fully detailed below, the five regular milk route drivers
loaded their trucks and then presented the above demands to Bernshouse for
signature. Bernshouse refused to sign such demands in the absence of Winn and
called in Blaisdell in an attempt to get the drivers to go out on their routes.
During the day Blaisdell called Rutledge and asked him to order the drivers to
take out their routes. Blaisdell stated that the respondent would negotiate with
the Union on the afternoon of April 3 When Rutledge asked whether "this meant
the Union was recognized," Blaisdell replied in the negative.
When Bernshouse refused to sign the five demands referred to above or to begin
negotiations on April 2, the drivers refused to take out their routes They then
unloaded the milk trucks in the cooler and went out on strike.
On April 4. Rutledge answered Winn's letter of March 27, stating in substance
that if the respondent would negotiate in good faith with the Union as repre-
sentative of the employees concerned for the purpose of collective bargaining as
defined by the Act, such representatives were willing to meet with him "any
time and any place."
The record discloses that no answer to the above-mentioned letter was ever
sent.
On April 6, Rutledge wrote the respondent as follows :
Attention: Mr. J. P Blaisdell
Gentlemen:
Please be advised that I have been asked by your six drivers, who are now
on strike, to represent them in the matter of negotiating terms for their re-
turning to work. I have been instructed to seek in their behalf the follow-
ing terms conditioned upon their returning to work.
1. All drivers will receive one day off in seven with no deduction from their
monthly pay.
2. There will be no deduction from the wages of any driver without a
written authorization signed by the driver concerned.
3 The Company recognizes the Dairy Workers' Union Local No. 22432
as the sole and exclusive bargaining agency for the purposes of collec-
tive bargaining as to wages, hours and all other conditions of employ-
ment for all drivers and plant employees.
However, I am willing to use my influence with the men and ask them
to return to work on the basis of the Company granting the last two of the
above conditions.
The record discloses that no reply was made to this letter
On June 29 , Rutledge wrote Winn as follows :
Our Union is prepared to meet with representatives of the Moanalua
Dairy, Limited, and begin negotiations on the basis of your letter of March
27, 1944.
On July 3, 1944, Bernshouse replied to the letter above. in part, as follows:
Since Mr. Winn's letter to you the majority of our employees claimed by
you to have been properly included in the Union's proposed bargaining unit
have left our service and this had made it necessary for us to radically change
our operations. Under such circumstances, the Company must reject your
offer of June 29th to meet with it as such meeting would serve no useful
purpose.
b. The issues involved
The respondent contends in effect that there was no refusal to bargain for
the reasons ( 1) the employees in question are agricultural laborers and thus are
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not "employees" under the Act; (2) that the unit first claimed by the Union was
inappropriate and until an appropriate unit had been determined by the Board,
the respondent was under no obligation to bargain with the Union ; and (3) that
the proposals made by respondent to the Union did in fact constitute recognition
of the Union as bargaining representative of the employees in, the appropriate
unit and satisfied the requirements of the Act.
1. The respondent's contentions
As to contention (1) the record discloses that the respondent maintains its
dairy herd of some 350 head of cows on a forty-acre tract of land located about
eleven miles from its King Street plant where the herd is "close-fed", in that no
forage crops are raised on the "farm", and the cows do not graze in pastures ;
that all the milk is cooled, pasteurized, and bottled at the plant; that at the times
material herein the respondent employed five milk route drivers who delivered
milk at both wholesale and retail and on occasion procured new customers, fur-
nished a cash bond and were held responsible for uncollected accounts and un-
returned bottles ; since the milk is delivered from the "farm" to the plant, for
processing and bottling, the drivers and the relief driver had no occasion to go
upon the farm ; and as found above the respondent bought raw milk, powdered
skim milk, chocolate powder and syrup and certain extracts used in the manu-
facture of certain bottled drinks which it sold along with its other dairy products.
The Board has had occasion to consider the term "agricultural laborer." In
a recent Decision," the Board stated : ,
Although the term "agricultural laborer" is not defined in the Act, its
meaning is not obscure. The guide post is the ordinary meaning of the
phrase, that stemming from common usage and common understanding.
(Citing North Whittier Heights Citrus Association v. N. L. R. B., 109 F.
(2d) 76, 80 (C. C. A. 9), enf'g Matter of North Whittier Heights Ctttus Asso-
ciation, 10 N. L. R B. 1269 ) The term "agricultural laborer", as com-
monly understood, refers to a person employed on a farm in the cultivation
of the soil, including the harvesting of crops and the rearing and manage-
ment of livestock. Only confusion results from an extension of the meaning
of the phrase "agricultural laborer" beyond its customary sense.
In Matter of Hind-Clarice Droxy1a the Board held that bottlers employed, in the
dairy of a large dairy ranch were engaged in an operation incidental to the com-
mercial activities of the company in that they work only in the bottling plant
and their services are devoted entirely to the handling of milk as it is being pre-
pared for shipment to market. The Board concluded that the services which
are performed by bottlers are not "agricultural" in nature, but are performed in
connection with commercial packaging and shipping enterprises."
The respondent relies on the Christensen case referred to above. That case
is not controlling here, but if it were, it would not support the respondent's posi-
tion for at least two reasons, first because the court finds that the legislature
had, by enactment of the amendment to the Act then under consideration, intended
"to broaden the scope" of the term "agricultural labor" and second, the Court
relied, in part, upon the fact that the four dairies involved in the Christensen
case, transformed the grain, grass and hay raised upon their farms into milk
by feeding these crops to cattle and by sale of milk at wholesale or retail
"Matter of Pepeekeo Sugar Company, et al, 59 N. L. R. B. 1532, and cases cited.
is 58 N. L. R. B. 99.
See also Matter of Tovrea Packing Company, 12 N. L R. B. 1063, and Matter of George
G. Averlll, et at., 13 N. L. R. B. 411.
MOANALUA DAIRY, LIMITED 731
received , compensation for the crops so raised . In the instant case the record
contains no evidence indicating that the respondent raises any feed crops on
its "farm" In view of the above and the record, it is clear that the respondent
is engaged in a commercial enterprise at its King Street plant ; that the em-
ployees in question here are not agricultural laborers and are entitled to the
protection of the Act ; and that the respondent 's contention ( 1) is without merit,
and it is so found.
As to contention ( 2) the record discloses that when Director Wills sought
an expression from the respondent on the appropriateness of the unit claimed
by the Union, he was advised that the respondent has insufficient "knowledge
to form an opinion " ; that early in December 1943, Wills informed Rutledge
that Winn objected to office workers'5 being included in' the unit and asked
Rutledge if it would be agreeable to him to exclude them from the unit ; Rutledge
replied that "It was perfectly all right to exclude them" ; and that on or
about February 20, 1944, Wills informed Rutledge that he had advised Winn
that Rutledge was willing "to just take in plant workers and drivers."
Winn, however , in both his testimony and oral argument contended that he
had frequently raised objection to the proposed unit and denied that Wills18
had informed him of Rutledge 's willingness to exclude clerical employees from
the unit. Winn testified that the unit question was raised in his conference
with Rutledge on February 28. Yet in a letter to Wills written under date of
March 7, Winn purports to give a detailed report of all that transpired between
him and Rutledge at that time , in which he admits that he had refused to rec-
ognize the Union, no mention of the unit was made. He closed the letter by
stating, "I think the above about covers everything of any importance discussed
by us. [Italics added.]
Winn testified that Blaisdell raised the unit question with Rutledge at the
March 11 meeting at Blaisdell's office. Blaisdell 's testimony herein does not
indicate that any discussion was had on the appropriateness of the unit at
that time . The record discloses that Blaisdell called the March 11 meeting
in an effort to get Rutledge to bargain with Winn without recognition of the
Union as sole bargaining representative of the employees involved . Under an
arrangement barring recognition no agreement setting up a unit under the
provisions of the Act would have been necessary.
Winn further testified that at the meeting held pursuant to Wills' sugges-
tion, "I ( Winn ) pointed out-I would say secondarily-that the unit was
inappropriate for the reasons I have mentioned ." [ Italics added ] Winn
discussed the unit question with Wills . In this connection he testified , in part :
At this conference of March 20, when I raised the question of the appro-
priateness of the unit Mr. Wills said something to me from which I gath-
ered that we would not have a great deal of trouble in getting together on
the unit.17
"Two non-supervisory office workers are employed in the plant.
16 Wills was not called as a witness. See Section 2, Article VII, Rules and Regula-
tions, Series 3, as amended July 12, 1944, which Section prohibits Board agents from
appearing as witnesses before courts or boards without special permission of the Board.
11 The undersigned is convinced that Winn did on occasions, prior to February 20, dis-
cuss the unit matter with Wills, but from the record is convinced that there was no dis-
cussion of the unit question at the March 20 meeting, other than Wills' statement to the
effect that "Inasmuch as there isn't any question about the unit, we can discuss" other
matters Had the unit been questioned at this meeting. Winn no doubt would have
questioned it in his letter of March 20, set forth above.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I left the conference he (Wills) again reiterated that he didn't antici-
pate having any difficulty in persuading Rutledge to agree to the exclusion
of the supervisory 18 employees and the clerical workers from the unit . . .
Winn's letter to Rutledge of March 27, set forth above, refers to "the status
of the Company 's drivers and physical workers employed in its King Street
plant," a description which accurately describes the unit contended for by the
Union, and indicates that Winn was under no misapprehension as to such con-
tention" [Italics added.]
As is set forth below, the respondent published a "NOTICE" to its customers 20
in which it purporthd to give the details of the dispute between the respondent
and its drivers ; no contention was made as to the appropriateness of the unit
contended for by the Union.
From the above and the record it appears that prior to February 1944, Winn
advised Wills that he objected to clerical employees being included in the unit;
that Wills so informed Rutledge and procured the latter's consent that they be
excluded ; that subsequent to, on or about, February 20, Rutledge understood
that Winn had been advised of the fact that the Union would exclude clerical
workers from the unit ; that subsequent to, on or about, February 20, and until
the respondent filed its answer in the instant case the appropriateness of the
unit claimed by the Union was not questioned by the respondent ; and that the
respondent's contentions to the contrary, made at and during the hearing herein
were, pot good faith contentions. Respondents contention (2) is without merit,
and it is so found.
As to contention (3) the record discloses that the respondent at all times
refused to grant recognition to the Union as the sole bargaining representative
of the employees in the apps opt fate unit. It contends, however, that its offer to
bargain on February 28, conditioned', as follows: ". . . without waiving our
(respondent's) contention that they (employees) are not under the Act" . . .; its
offer to bargain on March 11, conditioned, as follows: ". . . but there must be
one thing understood; that in setting down and bargaining we were not waiving
out legal contentions that the people (employees) were not covered by the Act";
its offer to bargain March 20, conditioned as follows: that the respondent could
not grant formal recognition before there were any negotiations between it and
the employees "for to do so would result in its waiving the legal point it has
raised which is, . .. whether or not the employees in question are, or are not,
engaged, in agriculture ; and its offer to bargain on March 27, conditioned, as
follows : "it being understood, however, that the Company is not, thereby, receding
from its position that such employees are agricultural employees and are there-
fore' exempted from the provisions of the Niitional Labor Relations Act," con-
stitute recognition under the Act
,The respondent at no time questioned the fact that a majority of the employees
in the unit found herein to be appropriate had designated the Union as the sole
is Winn ' s contention that the Union sought to include supervisory employees in the unit
is not supported by the record. It is based on the fact that the Union's Petition for
Certification did not expressly exclude snpervisoly employees. Winn, Blaisdell , and Rut-
ledge each have a long background in negotiating contracts between employers and em-
ployees under the Act, a fact well known to each other. It is unreasonable to believe
that Winn was of the opinion that Rutledge did not know that supervisors may not be in-
cluded in the unit under the Act. His contention to the contrary is not made in good
faith, and it is so found See N. L R B v Sunshine Mining Co, 110 F. (2d) 780
(C. C. A. 9)., '
19 Winn testified that he orally raised the unit question with both Wills and Rutledge
after February 28 In view of the fact that no contention as to the unit was made in
the correspondence referred to .above, the undersigned is of the opinion and finds that
Winn was in error in so testifying.
20 See footnote 25, infra.
MOANALUA DAIRY, LIMITED 733
and exclusive bargaining representative of such employees. As such representa-
tive the Union was entitled to recognition without any conditions attached . . .
The recognition required by the Act is not a bargaining matter. The Board and
the Courts have so held " The respondent's contention (3) is without merit, and
it is so found.
2. Concluding findings
From the above and the record it appears that the respondent did on or about
February 28, 1944; March 11, 20, and 27, 1944; April 2, 4, and 6, 1944, and on
July 3, 1944, refuse to bargain collectively with the Union as the exclusive repre-
sentative of the employees in the appropriate unit, and thereby interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
By threatening to discharge its drivers one by one in the event they joined
or became involved with the Union, as found above, the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
B. The stithe, the loch-oat, and the discrrnrrnatotyt discharges
The complaint alleges in substance that the respondent by its refusal to bar-
gain collectively with the Union and by refusing to grant the full recognition to
the Union to which it was entitled, the respondent caused its milk route delivery
men'-' to go on strike on April 2, 1944, and to reiuani on strike until September
17, 1944, at which tune the said employees made unconditional offers to the
respondent to terminate said strike and return to work; and that on or about
April 17, 1944, the respondent did shut clown and discontinue the operations of
its retail delivery routes and has since refused to resume operation of said
routes in order to lock out said employees as part of its plans to dissipate the
majority status of the Union, and to avoid collective bargaining. The respondent's
answer denied all such allegations.
(1) Events leading up to the lock-out and discharges
The record discloses that the drivers , as a result of the respondent 's refusal
to grant recognition to the Union , decided on March 31, to, and did , prepare a list
of five demands set out herein above , to be presented to the respondent's manager
on April 2 for his signature.
On Sunday , April 2, the five regular drivers2 " went to the plant, loaded their
trucks with milk ready for delivery , and then presented the five demands to
Manager Bernshouse . The latter said he "couldn ' t sign on too short notice," as
he must see Attorney Winn. As Winn was not available, Blaisdell and Fred
Carter, secretary of the Employers Council , were called in . Blaisdell tried to
induce the drivers to go out on their routes and stated that if they did, the
respondent would negotiate with the drivers commencing on the afternoon of
April 3. The drivers insisted on starting negotiations at once. Blaisdell then
asked Driver Ishikawa if he had seen Winn 's letter of March 27 that had been
sent to Rutledge, in which it was agreed that the respondent would "sit with
us." When Ishikawa replied in the negative , Blaisdell left to procure the letter.
During Blaisdell ' s absence Ishikawa called Rutledge and inquired about the
a
21 See McQuay-Norris Mfg Co v. N L R P.., 116 F. (2d) 748 (C C A 7)
Ishikawa , Kamihara , Roza, Miyaki, and Ogata
The relief driver did not work on Sundays
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter. Rutledge told him that lie had received it, and stated, ". . . but it is the
same old story ; it is their usual way of stalling."
After Blaisdell returned with the letter or a copy thereof, he called Rutledge
and insisted that the latter order the drivers to go out on their routes, and stated
that he "was quite sure that we could have an agreement ." Rutledge then
asked :
Well, does that mean that the Company will give us recognition, give us
the recognition that you haven't been wanting to give us all this time, recog-
nize the union as the union, as the representative of the men?
Blaisdell replied that he "couldn't do that."
When it became apparent that Bernshouse would not sign the demands or
proceed with negotiations at that time, the drivers prepared to leave the plant
and as they did so Bernshouse asked each in turn and in substance, "Then you
fellows want it this way?" 24 and in each instance received an affirmative reply.
The drivers then unloaded the milk from their respective trucks into the cooler
and left the plant. The drivers had not requested the three plant workers, also
union members, to join them in the strike so that there should be no spoilage
of milk.
On April 3, Rutledge asked Norback to again intercede as conciliator in an
attempt to get the parties together. As a result of Norback's action, Rutledge,
Blaisdell, and Carter met at Norback's office on or about April 4. Blaisdell took
the position that the drivers had quit their jobs on April 2 and were no longer
employees of the respondent. Rutledge offered to forego the first three of the
five demands presented by the drivers on April 2, and have the drivers return
to work "on the basis of the company granting the last two demands." Blaisdell
refused Rutledge's offer as "out of the question" and suggested the idea "of
getting together and working out some conditions that would be satisfactory
to the company and possibly the men without any union recognition." [italics
added. ]
On April 6, as set forth above, Rutledge wrote the respondent cffering to use
his influence to induce the drivers to return to work if the respondent would
agree to make no reductions from the wages of the drivers without written
authorization by the driver concerned and that the respondent would grant
recognition to the Union. No reply was made to the above proposals.
On or about April 10, the Union received its charter fiom the Teamsters, and
on April 14, wrote the respondent as follows :
In reference to the present dispute between your Company and your milk
route drivers, it has become necessary for the Dairy Workers Union as such
to take a position.
Our Union was chartered several days ago by the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
affiliated with the A. F. of L. as the Dairy Woi kern Union Local No. 946 with
the understanding that "the policy of the International Union would be
carried out during the war emergency and that no strikes or stoppages of
work would be allowed."
Therefore, the Union is ordering your striking employees to return to
work as a condition of membership in the Union. They will be at work on
Monday, April 17 at the regular time and place.
On April 17, pursuant to the foregoing letter, the drivers reported for work
at the respondent's plant and first met Paul E. Heckenlively, secretary and
24 Bernshouse's contention that the drivers "quit" and Blaisdell's contention that the
drivers "resigned " their positions at this time is discussed below.
,MOANALUA DAIRY, LIMITED 735
assistant manager of the respondent company, and asked hint if they were not
supposed to go to work. Heckenlively referred them to a published "Noticel'21
pontained in "The Honolulu Advertiser," a local plpel. it copy of which was in the
plant, for the answer to their inquiry After reading the notice, the drivers un-
derstood that they "were not working that day " The drivers, however, waited
until Bernshouse arrived and asked him if he had received Rutledge's letter of
April 14, informing him that they were reporting for work. Bernshouse replied
that he knew nothing about the letter, and when asked by Ishikawa if he had
25 NOTICE
To Customers of Moanalua Dairy
So much misinformation has been passed on to the public regarding the dispute
between the lloanalua Dairy and the Union that the Company believes it is time to
give the public-particulaily those members of the public who ate its customers--the
actual facts surrounding the dispute
Some time ago the Dairy Workers Union wrote the Company demanding that the
Company recognize it as the sole and exclusive bargaining agency for a certain group
of the Company's employees. The Company, after taking the matter up with its at-
torneys, wrote the Union saying that under the National Labor Relations Act (Wagner
Act) the Company was not required to bargain with the Union as the representative
of those employees as under several court decisions this particular group of employees
was specifically excluded from the Act The Company went on to say, however, that
if its employees themselves, either individually or collectively, wanted to take lip
with the management any grievance any of them had or any question concerning their
wages, hours or working conditions, they were welcome to do so.
The Union thereupon filed its petition with the local representative of the National
Labor Relations Board asking that the Board call a hearing on the petition and
thereafter decide the legal question as to whethei or not the Act covered these em-
ployees The Company intormed the Board's representative and the Union that it
would cooperate in every way to obtain an early decision from the Board as it was as
anxious as was the Union to have the question decided by the Board-the sooner, the
better The Company also said that it would he willing to agree upon the facts
thereby obviating the necessity of having a formal hearing on the petition and that
the facts as agreed upon could then be submitted to the Board at once The Board's
representative was in the course of preparing an "Agreed Statement of Facts" when
the Union members "quit." The Union representative now says that the men did not
"quit" but merely went on "strike." At any rate, on April 2nd the members of the
Union refused to go out on their routes Furthermore, the same Union representative
on April 2nd stated to the press that the men had "quit" and his, statement appeared
in the public press the next day
Last Friday (April 14th) the Company received a letter from the same Union
representative saying that the nien would be back at work on Monday, April 17th
The Company has refused to take them back The Company believes that its former
employees and their leaders have demonstrated that they are utterly lacking any sense
of responsibility to the Company s customers and to the public in general and that
if such employees are reinstated, it will be only a short time befoie they, of their
own accord or, at the bidding of the Union, will again quit
In answer to the charge made by certain of these employees that they are under-
paid, we are publishing the average monthly earnings of and the hours worked by each
employee :
Hours per
week
Average monthly
earnings
T Ogata--------------------- 31 $261. 00
11 Koza --------------------- 34 241. 00
R Ishikawa------------------ 39 265. 00
P Miyake-------------------- 40 s/4 245 00 and house free
N Muramoto----------------- 401/2 240. 00 and house free
T. Kamihara------------------ 45 248. 00 and house free
We sincerely regret the inconveniences and hardships that have been caused our
customers by the action of the Union but we believe that they will agree that it is not
the Company that is to blame. Until normal operations are resumed, the Company will
continue to serve the public at its King Street store
IIOANALUA DAIRY, LTD.
679100-46-vol 65 48
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anything to say to the drivels, he replied, "No." The drivers therewith left
the plant.
On or about April 18, the six drivers sent identical letters to the respondent,
requesting reinstatement, which read, in part, as follows:
DEAR MR. BERN SHOUSE :
This is for the purpose of confirming in writing my individual application
for reinstatement to my former job.
On Monday morning, April 17, I appeared at the plant, ready to go to
work, and was then told to read page 2 of the Honolulu Advei titer. I hereby
request reinstatement to my former position immediately.
Yours very truly,
[Signature]
At the time of the hearing none of the six drivers had been reinstated to their
former or substantially equivhlent positions. Two former drivers, Miyaki and
Muromoto who lived in respondent-controlled houses, received eviction notices
on or about April 14. Both vacated shortly thereafter. I'tior to May 5, rl[iyaki
went to the plant, where he met Heckenlively, who called him aside and said :
"We might resume deliver y" and in case they did AIiyala`s i orate would be open
for him.
Miyaki got in touch with \[aromoto and both called on lleinslionse. who in
turn reterred them to Wain. Both drivers met with Winn, with Bernshouse and
Blaisdell present. Winn asked if Rutledge had sent them hack They replied.
"No,-We are willing to go back of our own iiccoid"--Miyaki, with reference to
the Union, stated "to heck with the Union, we don't belong to the Union "
-Because we are not paying clues
After Bernshouse, Blaisdell, and Winn had conferred privately, Winn informed
the two drivers that there was "no routes open," but added :
Now, boys, we have a couple of jobs in the plant, and you have six people who
want jobs It is tip to you bobs to decide among yourselves who is to take
those jobs .21
Miyaki and Muromoto then took the two jobs at 85 cents per hour, a rate less than
previously earned.
(2) Contentions and testimony of the respondent as to the lock -out and
discharges
The respondent contends in substance (1) that the drivers quit and resigned
their jobs on April 2, and that thereafter their status as employees of the respond-
ent ceased to exist; and (2) that as a result of such "resignations" and pursuant
to long contemplated plans, the respondent definitely and permanently discontinued
that portion of its dairy business having to do with the retail delivery of milk
and thus had not locked out and discharged the drivers.
As to contention (1) the record discloses that the 6 drivers and 2 plant employees
joined the Union in August 1943 and one plant worker joined in February 1944
and from that time on the Union sought, without success, to have the respondent
recognize the Union under the Act, as the sole bargaining i epresentative of the
employees in the appropriate unit: as part of their effort to induce the respondent
to bargain with the Union. 7 of the drivers on March 1, 1944, filed applications
for a statement of availability under Rule No 43 of the, Hawaii Defense Act,
which Rule, however, iequired no release to permit a worker to transfer employ-
"The record does not disclose whether Miyaki and Muromoto discussed the two jobs
with the other drivers
MOANALUA DAIRY, LIMITED 737
nient within the industry, and the Hawaii Manpower Director so ruled ; on March
18, the Hawaii Manpower Director advised Bernshouse of said ruling; on March
20, the same Director in a letter to Winn explained the determination under
Rule 43 in some detail and advised Winn in effect that the controlling program
insofar as the drivers were concerned was the War Manpower Commission Em-
ployment Stabilization Program, and that no determination had been made as to
the issuance of Statements of Availability to enable the drivei s to transfer to
other (than dairy) essential employment;' on March 31, as set forth above, the
drivers had demands prepared to be presented to Manager Bernshouse on the next
work day, Sunday, April 2, for his signature, with the predetetnunatlon and inu-
tual understanding that if Bernshouse did not agree to such demands they would
go out on strike; also, as found above on April 2, Bernshouse refused to grant such
demands and the drivers unloaded their milk trucks and left the plant premises;
on April 3, the Union notified the War Manpower Commission that a labor dispute
existed between the respondent and its plant men and drivers, requested that,
in accordance with national policy of the War Manpower Commission, the U. S.
Employment Service make no referrals to the respondent pending the dispute; 28
also on April 3, the Union sought the aid of Norback, as conciliator ; and that
on April 7, Rutledge advised Blaisdell that he was representing the 6 drivers
"who are now on strike," and offered in effect to reduce the "5 demands" to two.
Both Bernshouse and Blaisdell testified on direct examination that the drivers,
before leaving the Dlant on April 2, said in answer to it poll taken by Bernshouse
that they were quitting On cross-examination however, Bernshouse admitted
that he might have asked the drivers, "Do you want it, this way?" and Blaisdell,
on cross-examination stated that he did not remember whether Bernshouse, "as
a matter of fact," had used the word "quit". The record discloses that no certifi-
cates of availability or release were either asked for by the drivers or tendered by
the respondent on April 2
In view of the above and the record, it is clear that the drivers did not quit
or resign their jobs, but went out on sti ike on April 2. and on April 3, were joined
in such strike by the relief driver Muronnoto, and that each driver retained his
status as an employee of the respondent under the Act. The undersigned further
finds that the strike was caused primarily by the respondent's unfair labor prac-
tice in refusing to bargain collectively with the Union as required by the Act.
The respondent's contention (1) is without merit, and it is so found.
As to contention (2) the respondent and its witnesses testified in substance and
effect that as far back as 1042, it held a directors' meeting at which plans to go
out of the retail delivery of milk and enter a different type of dairy business
was discussed : that "since the war broke out" the respondent's officials ". . . defi-
nitely had been thinking about it...... ; that inasmuch as the drivers had become
less efficient and reliable and finally "quit" their jobs on April 2, the respondent
on or about April 10, determined to permanently and definitely discontinue
delivery of milk at retail, and that on April 17, when the drivers sought rein-
statement to their jobs, no positions were available for them
zT No applications were filed by the drivel s under the War Manpower Commission pi o-
gram The respondent contends that by making the applications referred to above the
drivers indicated their desire to quit their jobs with the respondent and that it was
justified in assuming they had "quit" and did not go on strike on April 2
28 The respondent contends that Rutledge gave a statement to the press on or about
April 2, stating that the drivers had "quit ", and that such statement appeared in the
public press the next day . The respondent contends in effect that such statements tends
to disprove that the drivers went on strike The actions described above indicate the
contrary, and It is so found
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record discloses however, that on April 17 when the drivers had aban-
doned their strike and requested reinstatement, the respondent published a
"Notice" to its customers censuring the Union and the drivers, winch read in
part as follows :
Last Friday (April 14th) the Company received a letter from the same
Union representative saying that the men would be back at work on Mon-
day, April 17th The Company has refused to take them back. The Com-
pany believes that its former employees and their leaders have demonstrated
that they are utterly lacking any sense of responsibility to the Company's
customers and to the public in general and that if such employees are rein-
stated, it will be only a short time before they, of their own accord or, at
the bidding of the Union, will again quit.
We sincerely regret the inconveniences and hardships that have been
caused our customers by the action of the Union but we believe that they
will agree that it is not the Company that is to blame. Until normal oper-
ations are resumed, the Company will continue to serve the public at its
King Street store.
The record discloses that the respondent has a temporary oral arrangement
with Ewa Sugar Plantation whereby the respondent furnished a truck together
with gas and oil and the plantation furnished a driver, who transports the milk
to Ewa Plantation daily, where it is distributed to hospitals, stores, and homes;
that the respondent has a temporary oral agreement with the U. S. Navy whereby
the latter uses a Navy truck and transports milk daily to Pearl City and Pearl
Harbor where it is distributed to Navy personnel, stores, and canteens ; that in
addition to delivering milk at retail the drivers, prior to their lock-out and dis-
charges, also delivered milk at wholesale, which milk is now delivered in part
by an Ewa Plantation employee, by the respondent's foreman, and by a U. S. Navyi
employee; that although the respondent distributed copies of the "Notice" re-
ferred to above to its customers, no notice has ever been published to the effect
that retail delivery has been definitely discontinued ; that from 40 to 50 percent
oL the milk sold by the respondent is sold at retail "over the counter" at the
iespoi>,dent's King Street plant; that none of the milk salesmen have been in-
structed to advise customers that retail delivery will not be resumed in the
future ; that the usual answer given to the customers who inquire as to when
retail delivery will be resumed is "We don't know" ; 2° that the respondent con-
tinued to operate and maintain the trucks formerly used in part for retail deliv-
ery ; and that notwithstanding its contention that the drivers 30 had become
inefficient and unreliable, it lett the matter of selection of the two employees
to be hired as "plant workers" on or about May 5, as set forth above, to the joint
determination of the 6 drivers.
The record further discloses that due to abnormal conditions induced by World
War II the demand for milk greatly exceeds the supply, with the result that
the respondent is able to dispose of from 40 to 50 percent of its milk and milk
products at retail by over the counter sales at its plant ; that by forcing its cus-
tomers to call at its plant for the milk they need, the respondent is able, under
such existing conditions, to save the wages normally paid to at least four drivers ;
2N Bernshouse testified that " . . from time to time" he has so told some of his
enstonieis
°° The drivers were employed by the respondent and its predecessor for the number of
years, as follows • Ishikwa 10 years Miyake 10 years . Kamiliara 6 years ; Ogata 3
years, Muromoto 2 veais Iio'sa was not called as a witness
MOANALUA DAIRY, LIMITED 739
and that the respondent will, in all probability, withhold retail deliveries until
conditions return to normal on the Island of Oahu, T H.
From the above and the record it appears that while the respondent's officials
had from time to time casually discussed the fact that it might, at some time
in the future, change the type of its dairy operations, it had not done so on
April 17, when the drivers reported to work and requested reinstatement. This
fact is demonstrated by the published "Notice" to its customers set forth above,
wherein it clearly suggests that "normal operations" to its customers will again
be resumed . That it has not definitely and permanently changed such operations
since April 17, is shown by the temporary arrangements it has made with Ewa
Plantation and the Navy and by its retention of its fleet of delivery trucks, the
absence of any general notice of change to its customers, or to the public and
the fact that a large percent of its milk business still depends on retail customers.81
The Iespondent's contention (2) is without merit, and it is so found.
(c) Concluding findings
From the above and the entire record the undersigned concludes and finds that
Ishikawa, Kamihara, Roza, Miyake, Ogata, and Muromoto were locked out and
discriminatorily discharged on April 17, 1944, because of their activities on be-
half of the Union, thereby discouraging membership in the Union and interfering
with, restraining, and coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
The undersigned further finds that by publishing the "Notice" to its customers
on April 17, 1944, and by referring the strikers to it in answer to their uncondi-
tional application for reinstatement as found above, the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 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
within the Territory of Hawaii, and among the several States and have led and
tend 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 certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
Having found that the respondent on February 28, 1944, and all times there-
after, refused to bargain collectively with the Union as the exclusive representa-
tive of its employees in an appropriate unit, the undersigned will recommend
that the respondent upon request bargain collectively with the Union.
It has been found that the respondent on April 17, 1944, locked out and dis-
charged Ishikawa, Kamihara, Roza, Miyake, Ogata, and Muromoto, and temp-
91 Bernshouse testified in substance that on April 2 , he informed the drivers that if they
left it would be necessary to "change over to wholesale "
as The complaint alleged that the respondent by unilateral action granted pay raises to
certain employees in the unit, notwithstanding the Union had requested bargaining con-
cerning such matters The record contains insufficient evidence to support such allega-
tion and it will be recommended that this allegation of the complaint be dismissed.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
porarily discontinued the retail delivery of milk, the operation at which said
discharged employees had theretofore been, in part , employed , in order to dis-
courage membership in the Union , thereby discriminating in regard to their
hire and employment . In order to effectuate the policies of the Act i t is recom-
mended that the respondent offer to the said named employees immediate rein-
statement to their former or substantially equivalent positions or to any other
available positions for which they are qualified , without prejudice to their
seniority and other right and privileges, and that, if respondent Moanalua Dairy,
Limited, has no need at the time for all of the aforesaid six additional drivers,
it then lay off such employees as may be necessary to reduce its personnel to the
normal complement , following such practice of seniority or other non -discrimina-
tory procedure as it had been accustomed to employ at the time that it commenced
its discriminatory practices as herein found" It will be further recommended
that, as to those drivers that may be laid off, that their names be placed on a
preferential list and that they, shall thereafter be offered employment in any
position for which they are qualified as such employment becomes available and
before other persons are hired for such work ; and that if the operation of retail
delivery of milk is reopened , Ishikawa, Kainihara , Koza, Miyaka, Ogata, and
Muromoto , if then not employed as drivers , shall be offered immediate employ-
ment therein . It will also be recommended that the respondent make whole
Ishikawa , Kamihara , Koza , Miyake, Ogata , and Muromoto for any loss of pay
they have suffered by reason of their discharge by payment to each of them
of a sum of money equal to the amount which he would normally have earned
as wages from April 17, 1944 . to the date of the offer of reinstatement,' or
placement upon the preferential list as above provided , less his net earnings 35
during said period.
On the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLusioNS OF LAW
1. Dairy Workors Union of Hawaii, Local 946, affiliated with the International
f Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America-
A F. L., is a labor organization within the meaning of Section 2 (5) of the Act.
2 All the employees of the respondent engaged at its King Street dairy plant
in Honolulu, excluding supervisory and office employees, now constitute, and at
all times material herein constituted, a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
3. Dairy Workers Union of Hawaii, Local 946 was on August 21, 1943, and
at all times thereafter has been, the exclusive representative of all employees
in such unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
33 As tound above, the drivers in question delivered milk at both wholesale and retail
The wholesale operations have not been eliminated and it is the purpose and intent of
this recommendation that the respondent utilize the services of as manv of the six locked-
out drivers as may be necessary for the functioning of its wholesale business
34 The amount of compensation to be paid these employees shall not be diminished on
account of the discontinuance of the retail milk delivery routes, since that action itself
constituted an unfair labor practice
33 By "net earnings" is meant earnings less expenses, sueli as for ti.uis portation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N L R. B 440. Monies received
for work performed upon Federal, State, county, municipal, or other work-relief projects
shall be considered as earnings See Republic Steel Corporation v. N. L R B., 311 U. S 7.
MOANALUA DAIRY, LIMITED 741
4 By refusing on February 28, 1944, and at all times thereafter, to bargain
collectively with the Dairy Workers Union of Hawaii, Local 945, as exclusive
representative of the employees in the above unit, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(5) of.the Act. _
5. By discriminating in regard to the hire and tenure of employment of Ishi-
kawa, Kamibara, Koza, Miyake, Ogata and Muromoto, thereby discouraging
membership in the Union, the respondent has engaged and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) of the Act
8. The respondent has not violated Section 8 (1) of the Act by granting pay
raises to certain employees as alleged in the complaint.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law. the under-
signed recommends that the respondent, Moanalua Dairy, Limited, its officers,
agents, successors, and assigns, shall
1. Cease and desist from :
(a) Refusing to bargain collectively with Dairy Workers Union of Hawaii,
Local 946-A. F. L., as the exclusive representative of all its employees engaged
at its King Street plant, Honolulu, Territory of Hawaii, exclusive of supervisory
and clerical employees in respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(b) Discouraging membership in Dairy Workers Union of Hawaii, Local
946-A. F. L., or any other labor organization of its employees, by locking out,
discharging and refusing to reinstate any of its employees or in any other
manner discriminating in regard to the hire and tenure of employment or any
terms or conditions of their employment ;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions to join or assist Dairy Workers Union of Hawaii, Local 946, A. F. L,
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 as guaranteed in Section
7 of the Act.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Upon request bargain collectively with Dairy Workers Union of Hawaii,
Local 946,-A F. L., as the exclusive 'representative of all the respondent's
employees in the King Street plant in Honolulu, Oahu, Territory of Hawaii,
exclusive of official supervisory and clerical employees, with respect to rates
of pay, wages, hours of employment, and other conditions of employment, and if
an understanding is reached, embody such understanding in a signed agreement;
(b) Offer to Roydon M. Isbikawa, Takeo Kamihara, IIiicichi Koza, Paul
Miyake, Takeshi Ogata, and Norman S. Muromoto immediate and full rein-
statement to their former or substantially equivalent positions, or to any other
available positions for which they are qualified, without prejudice to their
seniority or other rights and privileges previously enjoyed : and if no such posi-
tions are presently available, place them on a preferential list and thereafter
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer them employment as it becomes available, in the manner provided in the
section entitled "The remedy" ;
(c) Make whole Roydon M. Ishikawa, Takeo Kamihara, Hircichi Koza, Paul
Miyake, Takeshi Ogata, and Norman S. Muromoto for any loss of pay they have
suffered by reason of the respondent's discrimination against them, by payment
to each of them of a sum of money equal to the amount which he normally would
have earned as wages during the period from April 17; 1944, to the date of the
offer of reinstatement or placement upon the preferential list as provided in
the section entitled "The remedy", less his net earnings 30 during such period; but
without diminution on account of the discontinuance of the retail milk delivery
routes :
(d) Post at its King Street plant at Honolulu, Oahu, Territory of Hawaii,
copies of the notice attached hereto, marked "Appendix A". Copies of such
notice, to be furnished by the Regional Director of the Twenty-third Region,
shall, after being duly signed by the respondent's representative, be posted by
the respondent immediately upon receipt thereof. and maintained by it for sixty
(60) consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced, or cov-
ered by other material;
(e) Notify the Regional Dii ector for the Twenty-third Region in writhig within
ten (10) clays from the date of receipt of this intermediate Report what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notify said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid
It is further recommended that, insofar as the complaint alleges that the
respondent by unilateral action granted pay raises to certain employees in the
appropriate unit, notwithstanding the Union had requested bargaining concern-
ing such matters, the same be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective July 12, 1944, as amended,
any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article 11 of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, 25, D. C., an original and four copies of
a statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the parties and shall file a copy
with the Regional Director. As further provided in said Section 33, should any
pasty desire permission to argue orally before the Board, request therefor must
be made in writing to the Board within ten (10) days from the date of the
order transferring the case to the Board.
PE'rEic F. WAuD,
Trial Examiner.
Dated March 17, 1945
11 See nest preceding footnote
MOANALUA DAIRY, LIMITED
APPENDIX A
NOTICE To ALL EMPLOYEES
743
Pursuant to recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
We will not in any mariner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist Dairy Workers Union of Hawaii, Local 946, affiliated with
the American Federation of Labor or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without. prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
We will bargain collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is: all employees
engaged at King Street, Honolulu, Oahu. Territory of Hawaii, plant, exclud-
ing supervisory and clerical employees.
The employees referred to above, are as follows : Roydon M. Ishikawa,
Takeo Kamihara, Hircichi Koza, Paul Miyake, Takeshi Ogata, and Norman
S. Muromoto.
'All our employees are free to become or remain members of the above-named
union or any other labor organization. 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 activity on behalf of any such labor
organization
MOANALUA DAIRY, LIMITED,
Employer.
Dated---------------- By---------------------------------
......... ----
(Representative) (Title)
NOTE: Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in ac-
cordance with the selective service act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.