Monroe Feed Store

National Labor Relations Board - Board Decisions

Oct 29, 1954

110 N.L.R.B. 630 (N.L.R.B. 1954)

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scription of the Peerless Plywood rule.4 We shall therefore set aside
the results of the August 12, 1954, election and direct a new election.
[The Board set aside the election of August 12,1954.]
[Text of Second Direction of Election omitted from publication.]
MEMBER PETERSON took no part in the consideration of the above
Supplemental Decision, Order, and Second Direction of Election.
See, Texas City Chentacais, Inc, 109 NLRB 115.
MONROE FEED STORE and AMERICAN FEDERATION OF GRAIN MILLERS,
LOCAL 61, AFL. Case No. 36-CA-434. October 29,195/.
Decision and Order
On April 26, 1954, Trial Examiner Wallace E. Royster 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, the Respondent filed exceptions
to the Intermediate Report and a supporting brief. The Respondent
also requested oral argument. This request is denied as the record
and brief, in our opinion, adequately present the issues and the posi-
tions of the parties.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.'
We find that the Respondent is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Monroe Feed Store,
1 We note and correct the finding in the Intermediate Report that Manager Giesy inter-
rogated employee Jones concerning union activity in violation of Section 8 (a) (1), as
there is no evidence in the record of such interrogation Accordingly, this portion of the
Intermediate Report is not adopted.
110 NLRB No. 101.
MONROE FEED STORE 631
Monroe and Corvallis, Oregon, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively, upon request, with American
Federation of Grain Millers, Local 61, AFL, as the exclusive repre-
sentative of all employees in the appropriate unit in respect to rates
of pay, wages, hours of employment, and other conditions of
employment.
(b) Interrogating employees concerning their membership in, or
activities on behalf of, American Federation of Grain Millers, Local
61, AFL, or any other labor organization, in a manner constituting
interference, restraint, or coercion, in violation of Section 8 (a) (1)
of the Act; interfering with, restraining, or coercing its employees
by means of discharge, threats, or unilaterally granting of benefits,
or in any other manner in the exercise of the right to self-organiza-
tion, through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to all its employees who were discharged on October 30,
1953, except those who have since been rehired, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights or privileges.
(b) Make all such employees whole in the manner set forth in the
section of the Intermediate Report entitled "The Remedy" for any
loss of earnings they may have suffered by reason of the Respondent's
discrimination against them during the period from October 30, 1953,
to the date of rehire or offer of reinstatement. '
(c) Upon request, bargain with American Federation of Grain
Millers, Local 61, AFL, as the exclusive representative of the Re-
spondent's employees in the appropriate unit, and if an understanding
is reached, embody such understanding in a signed agreement.
(d) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social-security payments,
timecards, personnel records and reports, and all other records neces-
sary to analyze the amount of back pay due.
(e) Post at its operations in Monroe and Corvallis, Oregon, copies
of the notice attached hereto and marked "Appendix." 2 Copies of
2 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such notice , to be furnished by the Regional Director for the Nine-
teenth Region, shall, after being duly signed by the Respondent's au-
thorized representative , be posted by the Respondent immediately
upon the receipt thereof, and be maintained by it for a period of at
least sixty (60) consecutive days thereafter in conspicuous places in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered , defaced, or covered by any other material.
(f) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that :
WE WILL bargain collectively upon request with American Fed-
eration of Grain Millers, Local 61, AFL, with respect to rates of
pay, wages , hours of employment , and other conditions of employ-
ment, and if an understanding is reached we will embody such
understanding in a signed agreement . The bargaining unit is:
All employees , excluding office, clerical , and supervisory em-
ployees as defined in the Act.
WE WILL offer immediate and full reinstatement to all of those
discharged on October 30, 1953, who have not since been reem-
ployed, and make each of them whole for any loss of pay suffered
as a result of the discrimination against them.
WE WILL NOT interrogate employees concerning their member-
ship in, or activities on behalf of, American Federation of Grain
Millers, Local 61, AFL, or any other labor organization, in a
manner constituting interference , restraint , or coercion in viola-
tion of Section 8 (a) (1) of the Act, or unilaterally change wages,
or threaten or discharge employees , or in any other manner inter-
fere with , restrain , or coerce our employees in the exercise of the
right to self-organization , to form labor organizations, to join or
assist American Federation of Grain Millers , Local 61, AFL, or
any other labor organization, to bargain collectively through
representatives of their own choosing , to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection , and to refrain from any or all of such
activities , except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
MONROE FEED STORE 633
condition of employment as authorized in Section 8 (a) (3) of
the Act.
MONROE FEED STORE,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof and
must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed by American Federation of Grain Millers , Local 61,
AFL, herein called the Union, alleging that Monroe Feed Store, herein called the
Respondent, has committed violations of the National Labor Relations Act, 61
Stat. 136, herein called the Act, the General Counsel of the National Labor Relations
Board issued a complaint dated February 1, 1954, against the Respondent.
In respect to unfair labor practices the complaint alleges that the Respondent
has since November 2, 1953, refused , unlawfully, to bargain with the Union, the
majority representative of Respondent 's employees in an appropriate unit, and
since October 30, 1953, has interfered with , restrained , and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act by threats of reprisal
or promise of benefits , and by terminating the employment of nearly all workers.
Respondent 's answer denies the allegations of the complaint.
Pursuant to notice the hearing was held before the duly designated Trial Exam-
iner in Corvallis , Oregon, on March 9 and 10 , 1954. All parties were represented by
counsel and were permitted to examine and cross -examine witnesses and to in-
troduce evidence pertinent to the issues . Following the close of the hearing briefs
have been submitted by counsel for the Union and counsel for the Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Monroe Feed Store is a corporation engaged at Monroe and Corvallis in the
State of Oregon in buying , processing , and selling feed , grains, fertilizer , and seed.
During the 12-month period preceding the hearing , Respondent purchased raw ma-
terials having a value of approximately $ 1,000,000. During the same period sales
of grains , peas, seed , feed, and fertilizer exceeded $ 1,000,000 in value. Seed
acounts for about 15 percent of the dollar volume of sales , and about 90 percent
of the seed processed is sold to, and shipped for the account of, E. F . Burlingham
& Sons to various points in the United States. About 41 percent of such sales is
represented by shipments directly to points outside the State of Oregon . During
the past 12 months the value of such shipments to points outside the State of
Oregon was between $55,000 and $83,000. During the same period Respondent's
purchases of fertilizer amounted to approximately $ 100,000, all of which originated
outside the State of Oregon . The Respondent also makes sales to Kerr Gifford
Company and Archer-Daniels Midland Company, both of whom maintain offices
in Portland , Oregon, and who resell the same commodities in Oregon as well as
in other States.
H. THE LABOR ORGANIZATION INVOLVED
American Federation of Grain Millers , Local 61 , AFL, is a labor organization
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
Wayne Giesy, one of Respondent's stockholders and directors as well as the
manager of its operations in Monroe and Corvallis , has his office in Monroe but
throughout the period of interest here frequently visited for managerial purposes
the operation in Corvallis . During 1953 David Crockett was Respondent 's assist-
ant manager in charge of the Corvallis operation. On October 28, 1953, Crockett
told Giesy, the latter testified , that he had been informed of a union meeting
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent 's employees at the home of one of them, Webster Sams . Crockett
went on to say, according to Giesy, that he had questioned Sams about the matter
and had been assured that the meeting did not concern a union. According to
Giesy he then dismissed the matter from his mind , assuming and believing that
the meeting was no more than a social gathering. At the close of business on
October 30 Giesy discharged all of the employees at Monroe except for his father
and the bookkeeper . Crockett under Giesy's direction did the same at Corvallis.
Giesy told the employees at the time of their dismissal that the action was necessi-
tated by operating losses.
There had been a meeting of employees at the home of Sams on the evening of
October 27 and it did concern the Union . At that meeting or the next day 12 of
• the 13 workers in the 2 operations signed designations authorizing the Union to
represent them. Frank Harrington , one of the employees , testified credibly and
without contradiction that on October 30 he told Respondent 's foreman at Monroe,
Claude Turner , that all the employees had signed union cards . Early on the after-
noon of October 30 , according to another employee, Kenneth Mumford, Giesy
asked who was at the October 27 meeting . Mumford answered that he was and
that all had signed union cards . Giesy then asked, "Is that what the men want?"
Mumford replied , "I guess so" and the conversation ended. On November 2,
A. L. Stevens and Claude Shaffer called upon Giesy , represented that they were
authorized by a majority of Respondent 's employees to negotiate a contract, and
requested a meeting for that purpose. Giesy said that he had no employees and
that therefore there was "no problem ." Also on November 2 Tom Cook, who
had been discharged on the previous Friday and who had on October 27 signed
a union designation card, was rehired by Giesy. According to Cook's undenied
and credited testimony , Giesy asked on November 2 what Cook thought about
the Union. Cook answered that he "didn 't think too much about it right at the
time." Cook has remained in Respondent 's employ. On various dates there-
after up to the time of the hearing, of those who were discharged on October
30, Jess Howe and Ralph Jones were rehired at Corvallis and Floyd Cantrell,
Jr., Ellis Conn , and Frank and Don Harrington at Monroe. Conn and the two
Harringtons were later discharged in circumstances which the General Counsel
does not allege to have been discriminatory . ' Sometime in early March 1954
Claude Turner , Respondent 's foreman at Monroe , whose employment had not
been interrupted by the discharges , was demoted and sent to Corvallis as an ordi-
nary workman . The Respondent appears now to have the same number of
employees as on October 30.
In early March the Respondent filed a petition with the Board seeking an election
to determine the bargaining representative of its employees. The unit described
in the petition is "All regular production , maintenance , warehouse , and clerical
employees , excluding managerial employees ." This is in substance the same unit
set forth in the complaint as appropriate . It appears to be comprised of mill
workers whose working conditions and interests are similar and, considering
further the substantial agreement of the parties, I find that a unit composed of
all employees employed by the Respondent exclusive of office, clerical, and
supervisory employees , as defined in the Act , now constitutes and at all times
material herein has constituted a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9 (b) of the Act.
On October 30, 1953, as evidenced by the testimony of the individual employees,
12 of the 13 in the appropriate unit had then designated the Union as their bar-
gaining representative . I find, therefore , that on October 30 , 1953, and at all
times material since, the Union has been and is the exclusive. collective bargaining
representative of a majority of Respondent 's employees in the appropriate unit
within the meaning of Section 9 (a) of the Act.
It is the theory of the General Counsel that Giesy, learning that his employees
had had a meeting for the purpose of organizing themselves into a union, decided
to move quickly to terminate the progress of that development and because of the
threat of organization terminated all of his mill workers on October 30. The
Respondent insists that no such motivation came into play, that the Respondent
on October 30 did not entertain a belief that its employees were members of a
union or about to become so ; and that the discharges resulted solely and exclu-
sively from the asserted fact that continued operation under the then conditions
was causing intolerable losses.
To support his theory the General Counsel offered first the testimony of Giesy
that he had never favored unions and preferred not to have one in his plant and
11 have not therefore discussed in this report the validity of the reasons advanced for
discharges occurring after October 30, 1953.
MONROE FEED STORE 635
that Foreman Rudisell and Assistant Manager Crockett at Corvallis were aware of
his disposition in that connection . Employee Alec Johnson testified credibly and
without contradiction that about mid-September 1953, while discussing unions with
Foreman Turner , the latter said that if Giesy discovered that the employees had
joined a union he would fire every one of them . Employee Frank Harrington
testified credibly and without contradiction that on October 30 Foreman Turner
told Harrington of overhearing a conversation between Crockett and Giesy to the
effect that someone was trying to get a union in the mill. When Harrington asked
Turner what he supposed would happen , Turner answered , "Well, Wayne will just
find out who started it and he'll fire him. That's what happened the other time."
Frank Harrington and Don Harrington testified that in February 1954 during the
course of a somewhat heated discussion with Giesy the latter said "Before I go
union, I'll shoot myself between the eyes."
Turner was not called as a witness although still in Respondent 's employ at the
time of the hearing . Giesy denied that there was ever an occasion when he dis-
charged anyone for starting a union and disputed the testimony of the Harringtons
that he had ever threatened to shoot himself in the event of union organization.
What emerges from this testimony however on the point of Giesy's reaction to a
threat of organization is that he viewed such a possibility with displeasure. Of
course no employer is required to put out the welcome mat for a union and in cer-
tain situations is required by the Act to refrain from encouraging his employees in
this connection . The testimony as to Giesy's feeling in the matter was received
only for the purpose of illuminating the motivation attending the discharges of
October 30.
Although the Respondent 's volume of business in the past 2 years has been sub-
stantial , its profits have been little more than nominal . According to Giesy's cred-
ited testimony , at the end of the fiscal year, May 31 , 1953, a decision was reached
to take periodic inventories throughout the ensuing year to determine the Respond-
ent's profit and loss position so that necessary changes in operations could be made
quickly. Because of the busy summer season the first inventory was taken at the
close of business on September 30 and the result sent to an auditor in the nearby
town of Forest Grove. There followed , according to Giesy, a number of telephone
calls from Robert Loomis , the auditor or accountant , advising Giesy piecemeal of
Respondent 's financial and economic position as revealed by the inventory . Loomis
testified that he last spoke to Giesy in the matter 10 days or 2 weeks prior to
October 30 . On October 30, according to Giesy, he received from the accountant
a profit-and -loss statement indicating a loss from June 1 through September 30
of approximately , $30,000 . On the same day, still according to Giesy, in a tele-
phone conversation with someone connected with E. F. Burlingham & Sons, a cor-
poration controlling a substantial stockholding in the Respondent , he was told
that some decisive action to avoid the continuation of this unprofitable operation
must be taken . The means of accomplishing the curtailment of the loss was left
to Giesy's discretion . Giesy could not recall in his testimony the identity of the
person giving this instruction . Giesy testified in effect that he knew he must act
and act quickly but, being unsure just what steps would provide a solution for the
problem, decided to discharge all his employees and to spend the weekend in a
study of the operations to determine finally what must be done . Due only to the
revelations in the profit-and-loss statement, which Giesy insisted he saw for the
first time on October 30 , did the discharges result. By November 2, still accord-
ing to Giesy, he had decided to operate a feed mixer and hired Cook for that
purpose. Thereafter he hired employees to operate trucks and for general mill-
work . Since October 30, according to Giesy, the emphasis in the operations has
shifted to grain and feed and away from seeds. During the course of restaffing
the operations with old employees and new, wages were raised from the preexisting
rate of $1 . 20 per hour to $1.50, but the general practice of all employees working
from 50 to 60 hours a week was discontinued. Truckdrivers still work the longer
hours but with the new pay rate are not paid premium overtime for hours over 40.
Giesy denied that Mumford made mention of a union on October 30 testifying
that Mumford merely said , unsolicited , that some of the employees had met at the
home of one of them. The bookkeeper, June Urbach , testified to the same effect.
In December , Ray Joyner spoke to Giesy about returning to work and in the dis-
cussion which followed became sufficiently angry to invite Giesy to fight him. Be-
cause of the nature of this altercation , Giesy testified , he does not consider Joyner
to be reemployable . According to Giesy the business now being carried on cannot
profitably use the services of Floyd Cantrell , Sr., although Cantrell before October
30 had worked about 8 years for the Respondent . Giesy characterized the work
of Sams as unsatisfactory although Respondent 's evidence is that Sams was never
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seriously criticized for any shortcoming before his discharge and was terminated on
October 30 for economic reasons along with the others.
Principally because, based upon observation among other criteria, I do not regard
Giesy as a credible witness and therefore do not accept his explanation that the ter-
minations on October 30 were necessitated and sprang from economic considerations,
I am persuaded that the evidence 2 of the General Counsel tending to show that fear
of union organization dictated Respondent's action at that time, establishes the
discharges then occurring as discriminatory. I do not credit Giesy's testimony that
he first saw the profit-and-loss statement on October 30. The statement in evidence
is a simple one and the only information on it which is significant in respect to the
discharges is the showing of a substantial loss. Giesy testified that on a number of
occasions during the month of October, after the submission of the inventory data
to the auditor, he was informed by the latter of developments in the preparation of
the profit-and-loss statement tending to indicate that the operation to the end of Sep-
tember was unprofitable. No such conclusion could have been reached as I read the
statement until all of the factors affecting the profitability of Respondent's business
had been calculated and appraised in relation to each other. Any information com-
ing to Giesy from the auditor in respect to any single item on the profit-and-loss
statement would seem to be without particular meaning until related to the complete
information as to receipts, disubursements, and inventory. My conclusion is that
Giesy knew of the profit situation sometime before October 30. I do not credit
Giesy's uncorroborated testimony that someone in authority over him directed that
some drastic action be taken on October 30. It is suggested in the record, although
not specifically argued, that because Respondent's business is to some extent seasonal
in nature terminations and layoffs are to be expected in the fall of the year. This
appears to be true, but by October 30 the Respondent had trimmed its crew of tem-
porary workers and apparently had work for all those who remained. Alec John-
son, who was hired in July or August 1953, testified credibly and without contra-
diction that in late October his foreman, Claude Turner, said that he would be kept
on to work as a permanent employee. Jess Howe, who was hired at about the same
time, testified that about 2 weeks before October 30 Assistant Manager Crockett told
him he would be kept on permanently and that Giesy, who did not deny this assur-
ance in his testimony, a few days later affirmed Crockett's statement. It is argued
in behalf of the Respondent, based upon Giesy's testimony, that in restaffing the
operations Giesy selected from his former employees those whose ability and ex-
perience qualified them to do the work which he had available and that he hired new
workers based upon the same considerations. I find, however, that the evidence does
not establish that any particular skill is required to fill the jobs held by those who were
discharged on October 30. The most exacting work was done by the seed cleaners
and it appears to be true that following October 30 less seed cleaning was done than
before. However, Sams, for example, had worked many years in operations similar
to that of Respondent and there is no reason to believe that his services could not
have been used by the Respondent in work other than seed cleaning. I credit the
testimony of the two Harringtons, and thus discredit that of Giesy, that the latter
in February 1954 said that he would shoot himself before permitting the Union to
get in to the mills. Of course I do not believe that Giesy intended his statement to
be accepted literally, but I am convinced and find that Giesy was strongly and un-
alterably opposed to the unionization of his working force, and I am convinced and
find that the terminations on October 30 sprang directly from this determination.
It is true that subsequent to October 30 for a period of months Respondent's oper-
ations were on a considerably lesser scale than before. This of course suggests that
the Respondent had a need for fewer employees after that date than before and
that in any event some individuals would have found their employment terminated
on a date somewhere near October 30. While this consideration in another factual
setting might lead to such a conclusion, I am persuaded by a consideration of all
2 Witnesses for the General Counsel, I am convinced are entitled to credit No factor
other than the testimony of Giesy tends to cast doubt upon the accuracy of their testi-
mony. I consider it significant that Foreman Turner was not called to the stand to tes-
tify concerning statements attributed to him and conclude that he would not have en-
tered a denial. Although by no means dispositive of the question of credibility of Sams
and others who were employed at Corvallis, were any of them disposed to color or contrive
evidence, an opportunity which existed after the death of Crockett. However the only
incident involving Crockett which tends to support the allegations of the complaint came
in first in the testimony of Giesy when he related that Crockett had questioned an em-
ployee (Sams) about the meeting of October 27.
MONROE FEED STORE 637
evidence concerning Giesy's opposition to the Union that the failure to restaff the
mills immediately after the discharges was but part of the entire plan to defeat the
employees' desire for representation. Had Giesy immediately hired a number of
workers equivalent to those he had discharged the motivation for the discharges
would have been too apparent. If the Respondent suffered additional losses by fail-
ure to operate at normal capacity for a period following October 30, I believe that it did
so as part of a deliberate design to accomplish its principal aim.
The general wage increases made effective after October 30 were, I find, but
another implementation of Respondent's design. Such benefits tend to depreciate
the value of self-organization and here were given with that aun in view. Of course
the wage changes were in derogation of the right of employees to bargain through
the Union in such matters.
The altercation between Ray Joyner and Giesy in late December, culminating in
Joyner's offer to engage in a fight, evidences conduct on the part of Joyner which
I do not condone. I am aware, however, that this unpleasant occurrence took place
in a setting where Joyner justifiably believed that he was being discriminatorily de-
prived of his job. That his restraint was unequal to the stress upon it at this time
does not in my opinion disqualify him for further employment with the Respondent.
Giesy had created, unlawfully, the situation which explained Joyner's outburst. I
do not believe that Joyner should be penalized for it.
As the motivation for the discharges was to destroy the movement toward organ-
ization and, as the Union was and is the exclusive bargaining representative of Re-
spondent's employees in an appropriate unit, I find that by refusing to negotiate
with the union representatives on November 2, the Respondent violated Section 8
(a) (5) of the Act.
I find then that by the statements of Foreman Turner that the Respondent would
discharge anyone responsible for starting a union, by Giesy's interrogation of Mum-
ford and of Jones concerning union activity, by Giesy's threat of self-destruction
before permitting a union to enter a plant, by the wage increases and the refusal
to bargain, and by the discharges of October 30, the Respondent interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act and thereby violated Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of the Respondent described in section I, above, occurring in con-
nection with its conduct occurring in section III, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it be ordered to cease and desist therefrom and take
certain affirmative action which I find necessary to effectuate the policies and pur-
poses of the Act. As the Respondent has unlawfully refused to bargain with the
Union, the majority representative of its employees in an appropriate unit, it will
be recommended that it be ordered to do so upon request of the Union. Having
found that the discharges of October 30 were discriminatorily motivated and
amounted to interference, restraint, and coercion of rights guaranteed to employees
in Section 7 of the Act, it will be recommended that Respondent, to the extent that
it has not done so, offer to each employee discharged on that date immediate and
full reinstatement to his former or substantially equivalent position and make him
whole for any loss of earnings suffered as the result of the discrimination against
him from the October 30 date until the date he has been taken back on Respondent's
payroll or is offered such opportunity. As the complaint does not allege and the
evidence does not establish that the discharge of Conn in February and the 2
Harringtons in March were in any respect in violation of the Act, reinstatement
for these 3 will not be recommended.
Consistent with the policy of the Board enunciated in F. W. Woolworth Com-
pany, 90 NLRB 289, it will be recommended that loss of pay be computed on the
basis of each separate calendar quarter or portion thereof during the back-pay
period. Quarterly periods shall begin with the first day of January, April, July,
and October. Loss of pay shall be determined by deducting from a sum equal to
that which those discharged on October 30 would normally have earned for each
quarter or portion thereof until the date of rehire or offer of reinstatement the
net earnings of each during those periods.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. American Federation of Grain Millers , Local 61, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. All employees, exclusive of office, clerical , and supervisory employees, as
defined in the Act, constitute a unit appropriate for purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
3. American Federation of Grain Millers , Local 61, AFL, at all times material
herein has been and now is the exclusive representative of all employees of the
Respondent in the unit aforesaid for purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
4. By unilaterally making wage increases and by refusing to bargain with the
above-named Union, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
5. By such conduct, by interrogation and threats addressed to employees, and by
discharging its employees on October 30, 1953, the Respondent has interfered with,
restrained , and coerced its employees in the exercise of rights guaranteed in Section
7 of the Act and has thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
INSULATION CONTRACTORS OF SOUTHERN CALIFORNIA , INC., INSULATION
CONTRACTORS OF SOUTHERN CALIFORNIA, AND PLANT INSULATION
COMPANY and MAXIE BEARDON
LOCAL 5 OF THE INTERNATIONAL ASSOCIATION OF HEAT AND FROST IN-
SULATORS AND ASBESTOS WORKERS, AFL, AND ITS AGENT ALBERT E.
HUTCHINSON and MAXIE BEARDON. Cases Nos. 21-CA-1729 and
21-CB-495. October 29,1954
Decision and Order
On March 10, 1954, Trial Examiner Wallace E. Royster issued an
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Company had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent Associations and the Respondent Union had not
engaged in unfair labor practices and recommended that the complaint
be dismissed as to these Respondents. Thereafter, the Respondent
Company and the General Counsel filed exceptions to the Intermediate
Report, and briefs in support thereof.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations.
110 NLRB No. 105.