Pacific Gamble-Robinson Co.

National Labor Relations Board - Board Decisions

Feb 3, 1950

88 N.L.R.B. 482 (N.L.R.B. 1950)

In the Matter Of PACIFIC GAMBLE-ROBINSON COMPANY and INTER-
NATIONAL BROTIIERII00D OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, LOCAL UNION No. 328, A. F. OF L.
Case No. 18-CA-85.-Decided February 3,1950
DECISION
AND
ORDER
On September 9, 1949, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, in which he
found that the Respondent had not engaged in the unfair labor prac-
tices alleged in the complaint, and recommended that the complaint
be dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief. The Re-
spondent filed a brief in support of the Intermediate Report.
The Board 1 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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are consistent
herewith.2
1. We agree with the Trial Examiner that up to about August 30,
1948, the Respondent did not refuse to bargain collectively with the
Union as the representative of its employees in an appropriate unit.
However, the record shows, and unlike the Trial Examiner we find,
that the Respondent thereafter refused to bargain collectively, in vio-
lation of Section 8 (a) (1) and (5) of the Act.3
IPursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Board has delegated its powers in connection with this case to a
three-member panel [Chairman Herzog and Members Houston and Reynolods].
2 We do not agree with the Trial Examiner's findings with respect to the proviso in
Section 10 (b). except insofar as they are consistent with our decision in Cathey Lumber
Company. 80 NLRB 157.
3 The evidence as to working foremen shows, and the Trial Examiner found, that there
is only one, Webber, who is a supervisor. We shall exclude working foremen from the
unit found appropriate by the Trial Examiner.
88 NLRB No. 100.
482
PACIFIC GAMBLE-ROBINSON COMPANY 483
In 1947 the Union, representing a majority of the employees in
the appropriate unit, executed a contract with the Respondent which
expired on May 31, 1948. This contract provided in part for the fol-
lowing rates of pay : 77 cents an hour for the first 6 months of em-
ployment, 821/2 cents an hour for the next 6 months of employment,
and 88 cents an hour thereafter. The contract did not provide that
the Respondent could increase these rates on an individual basis with-
out further consultation with the Union; in fact, the evidence shows:
that it was the Respondent's general practice to adhere to these rates.
In the spring of 1948, before the expiration of the contract, the Union
notified the Respondent of its desire to negotiate a new agreement.
As a result, bargaining conferences were held at various times between
May 12 and August 18, 1948. On August 3, the Respondent offered,,
among other things, to "increase the hourly wage rates [sic] 10 cents
per hour," as it concedes in its brief to the Board.' This offer would
have boosted the starting rate to 87 cents an hour, and would also,
have raised the other rates. Thereafter, following an impasse, the
Union called a strike on August 27 to enforce its demands. All 13,
employees in the appropriate unit participated in the strike.
On August 30, 1948, if not before, the Respondent, in order to break
the strike, began offering replacements a starting rate of 98 cents an
hour, 11 cents more than the starting rate of 87 cents an hour .pre-
viously offered to the Union.5 Within 2 or 3 days, the Respondent
had recruited a sufficient crew of replacements and was able to resume,
normal operations.
On September 8, the Respondent again met with the Union for an
alleged bargaining conference. At that time the Respondent was still
hiring replacements at 98 cents an hour. However, the Respondent
repeated to the Union its August 3 offer, which, as we have found,
would have raised the starting rate only to 87 cents an hour.6
On October 8, the Respondent filed a petition with the Board, re-
questing an election to determine whether the Union still represented
a majority of the employees in the appropriate unit. On October 12,
at a State mediation conference called to settle the strike, the Respond-
ent advised the Union that it would bargain only if the Union showed
a current majority in a Board election. The Union then initiated this.
proceeding by filing a charge.
4 The Trial Examiner incorrectly found that the Respondent also proposed the abandon-
ment of all seniority provisions. The record shows, and we find, that such proposal was
limited to the "seniority" article in the contract, which provided that seniority should
govern layoffs and rehirings.
5 The Trial Examiner incorrectly found that the Respondent's wage offer to new em-
ployees was "equal" to the offer it had made to the Union. This finding is hereby reversed.
O Four of the striking employees returned to .work thereafter and were paid 9S cents an
hour. One of these, Carl Smart, had been paid 77 cents just before the strike, so that he
received a wage increase of 21 cents an hour.
882191-51-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing evidence convinces us that the Respondent refused
to bargain collectively in good faith in several respects :
(a) On and after August 30, if not before, by bypassing the Union
and individually offering old and new employees a higher wage rate
,than it had offered the Union, as the exclusive statutory representa-
tive ; and on September 8 by again offering the Union a rate lower than
it was actually offering to individuals.' Nor is it a defense that the
.Respondent's employees were then on strike. On August 30, the strike
was still' Current, a majority of the strikers had not been replaced,
.and the Union retained its status. With respect to wages and other
terms and conditions of employment, the Respondent thus remained
"legally obligated to continue to bargain with the Union." 8 Moreover,
:i. loss of majority thereafter, following the unfair labor practices, is
-no defense to a refusal to bargain; 9
(b) On October 12, by questioning the Union's majority, withdraw-
ing recognition, and refusing to recognize the Union unless and until
its majority was reestablished in a Board election.
The Respondent argues that it should always be privileged to hire
at the highest contract rate, or indeed at any wage whatsoever, under
the circumstances of an economic strike. The Trial Examiner in effect
agreed with this view, when he found that no rule of law forbade the
Respondent to pay. the higher wage scale here offered to replacements.
lVe.have.carefully. considered these arguments and find. that they lack
merit. We agree that the Respondent is privileged to replace eco-
nomic strikers in order to continue its business operations. 10 But, as
-the Supreme Court pointed out, this privilege must be exercised in such
.a fashion that the employer is "guilty of no act denounced by the
statute." 11 Here, as we have found, the Respondent bypassed the
;statutory representative of its employees and unilaterally offered a
higher wage scale on.an individual basis.
2. The Trial Examiner found that the strike was not caused or
prolonged by any unfair labor practices of the Respondent and that
.the Respondent consequently did not violate Section 8 (a) (1) and
(3) of the Act by refusing to reinstate the strikers upon their appli-
7 See N . L. R. B. v . Crompton -Highland Mills , Inc., 337 U. S. 217.
8 See N . L. R. B. v . Reed & Prince Manufacturing Company, 118 F. 2d 874 , 885 (C. A. 1),
cert . den. 313 U. S. 595. Even if a strike were considered to be an emergency, as the
Respondent contends , the obligation to bargain covers "the exceptional as well as the
routine . as the Supreme Court pointed out in Order of Railroad Telegraphers v.
Railway Express Agency Inc ., 321 U. S. 342 , 346, 347. See also N. L. R. B . v. J. H.
Allison & Company , 165 F . 2d 766 ( C. A. 6), cert. den . 335 U. S. 14, rehearing den. 335
U. S. 905.
8 See Medo Photo Supply Corp . v. N. L. R. B., 321 U. S. 678; Franks Brothers Co. v
N. L. R. B., 321 U. S. 702; N. L. R. B. v. Bradford Dyeing Association . 310 U. S. 218.
xo See N. L . R. B. v. Mackay Radio and Telegraph Company, 304 U. S. 333, 345, 346.
Ibid., p. 345. See also footnote 8, supra.
PACIFIC GAMBLE-ROBINSON COMPANY 485
cation. We agree only with the finding that the strike was not
originally caused by any unfair labor practice of the Respondent.
The record shows that shortly after the strike began, however, the
Respondent recruited a complement of replacements by unlawfully
offering them a higher wage than it had offered the Union, and re-
sumed normal operations. By letter of February 28, 1949, the Union
unconditionally requested group reinstatement of the complainants 12
On March 8, the Respondent rejected this request by advising the
Union that it would consider reemploying the strikers Only if a
vacancy should occur in the future 13
We have found that it was an unfair labor practice for the Re-
spondent to offer individuals a higher starting rate than it had offered
the Union. As we held in Cathey Lumber Company, supra, similar
illegal actions, which ultimately enabled the employer to break an
economic strike and resume operations, "beyond peradventure of a
doubt . .. were instrumental in prolonging the strike." As we fur-
ther held in that case, the strike, "which was economic in its inception,
became an unfair labor practice strike" when the employer embarked
on his illegal course of conduct, and the strikers were thereafter en-
titled upon appropriate application to displace their replacements.
We adopt that holding in this case, particularly because the Respond-
ent's illegal conduct here bypassed the statutory representative on the
crucial question of wages. We find that the Respondent violated Sec-
tion 8 (a) (1) and (3) by rejecting the reinstatement application of
the complainants.-
3. In view of the above, we, like the Trial Examiner, deem it un-
necessary to resolve the conflict of testimony between the Respondent's
labor relations official, Schoenecker, and the strikers as to alleged
interference on August 30. Unlike the Trial Examiner, however, we
do not make any hypothetical findings on, the assumption that the
strikers' testimony is credible. Accordingly, we do not adopt the Trial
Examiner's findings that the remarks attributed to Schoenecker were
isolated and did'not contain any threat of reprisal or force or promise
of benefit. ' Although there is uncontroverted evidence that Schoe-
necker told striking employees that the doors were open and they could
"The Union inadvertently omitted the name of one of the complainants , Gerald
Wilson, and added his name in a further letter of March 14.
" Such a vacancy occurred on March 25. The Respondent thereupon offered the vacancy
to the striker with the greatest seniority, but with the stipulation that the striker was to be
considered as a new employee, and, in effect, to lose his seniority. When the striker
refused, the Respondent repeated the offer in turn to each of the remaining strikers,
but received similar refusals.
14 Because we agree with the Trial Examiner that Webber is a supervisor, to whom
Congress has denied the protection of the amended Act, we find that the Respondent
did not engage in any unfair labor practice with respect to him.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
come back without discrimination, we believe and find that, under the
particular circumstances herein, the statements were not the type of
solicitation which violate the Act. 15
The Effect of the Unfair Labor Practices Upon Commerce
The activities of the Respondent set forth above, occurring in
connection with the operation of the Respondent described in Section
I of the Intermediate Report, 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.
The Remedy
Having found that the Respondent engaged in unfair labor prac-
tices, we shall order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
We have found that the Respondent illegally refused to bargain
and to reinstate the complainants. We are of the opinion, upon the
entire record in this case, that the commission in the future of other
unfair labor practices may be anticipated from the Respondent's con-
duct in the past. We shall therefore order that the Respondent cease
and desist from in any manner infringing upon the rights guaranteed
to its employees in Section 7 of the Act 16
The record indicates that the Respondent's complement of employ-
ees, is seasonal at this plant, fluctuating from about 9 to 13, some of
whom at the time of the hearing were former strikers. We shall
direct the Respondent to reinstate the complainants to their former
or substantially equivalent positions," without prejudice to their
seniority or other rights and privileges, if necessary dismissing all
replacements hired on or after August 30, 1948, and not employees
of the Respondent on that date. If, despite such reduction in force,
there are not sufficient positions available, all existing positions shall
be distributed among the complainants and the former strikers em-
ployed in the unit, without discrimination against any of them be-
cause of his union affiliation or activities, following a system of sen-
iority, or such other nondiscriminatory practice as may have hereto-
fore been applied in the Respondent's business. Any complainant or
former striker remaining after such distribution, for whom no employ-
"Cf. Cincinnati Steel Castings Company, 86 NLRB 592 ; Sam'l Bingham's Sari Mfg.
Company, 80 NLRB 1612.
16 Daniel Hamm Drayage Company, Inc., 84 NLRB 458 ; Morristown Knitting Mills, In-
corporated., 86 NLRB 342.
17 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827, 829.
PACIFIC GAMBLE-ROBINSON COMPANY 487
went is immediately available, shall be placed upon a preferential list
and offered reemployment as work becomes available and before other
persons are hired for such work, in the order determined among them
by such system or practice.
We shall further order the Respondent to make whole the com-
plainants for any loss of wages they may have suffered as a result of
the discrimination, by payment to each of them of a sum of money
equal to the amount which he would normally have earned as wages
from the date of the Respondent's discrimination against him to the
date of the Respondent's compliance with the reinstatement provi-
sions hereof, less his net earninge during this period.18 However,
,computation of back pay shall exclude the period between the date
of the Intermediate Report and the date of our Decision and Order.'°
We expressly reserve the right to modify the back-pay and reinstate-
ment provisions, if made necessary by a change of conditions since the
hearing or in the future, and to make such supplements thereto as may
hereafter become necessary in order to define or clarify their applica-
tion to a specific set of circumstances not now apparent.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
SUPPLEMENTAL CONCLUSIONS or LAW
1. All employees of the Respondent at its Sault Ste. Marie, plant,
including truck drivers, receiving and shipping clerk, and warehouse-
Inen, but excluding office and clerical employees, working foremen,
and supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Union No. 328, A. F. of L.,
was at all material times and now is the exclusive representative of all
the employees in the aforesaid unit for the purposes of collective bar-
gaining, within the meaning of Section 9 (a) of the Act.
3. By refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local Union No. 328, A. F. of L., as the exclusive representative
of the employees in the aforesaid unit, the Respondent has engaged
in, and is engaging in, unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of Lawrence Tubman, Charles Halonen, George Chapman, Nor-
1 1 Crossett Lumber Company , 8 NLRB 440.
1 1 Hamilton -Scheu d Walsh Shoe Co., FO NLRB 1496.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bert Roy, Jr., Ernest Gregg, Charles Strobridge, Garfield Gibbons,
Ivan Avery, and Gerald Wilson, thereby discouraging membership in
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No. 328, A. F. of L., the Re-
spondent has engaged in, and is engaging in, unfair labor practices
-within the meaning of Section 8 (a) (3) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
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, Pacific Gamble-Robinson
Company, Sault Ste. Marie, Michigan, and its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local Union No. 328, A. F. of L., as the exclusive representative
of its employees at its Sault Ste. Marie, plant, including truck drivers,,
receiving and shipping clerk, and warehousemen, but excluding office
and clerical employees, working foremen, and supervisors as defined
in the Act;
(b) Unilaterally offering or granting higher rates of pay or other
improved terms or conditions of employment, without first bargaining:
in respect thereto with International Brotherhood of Teamsters,.
Chauffeurs, Warehousemen and Helpers of America, Local Union No.
328, A. F. of L., as such representative;
(c) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
Union No. 328, A. F. of L., or in any other labor organization of its
employees, by in any manner discriminating in regard to their hire,
tenure of employment, or other terms and conditions of their employ-
ment;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 328, A. F. of L., or any other labor organization to
PACIFIC G4MBLE-ROBINSON COMPANY 4891
bargain collectively through representatives of their own choosing,.
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any and.
all such activities except to the extent that such right may be affected.
by an agreement requiring membership in a labor organization as a
condition of employment, 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) Upon request, bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local Union No. 328, A. F. of L., as the exclusive representative
of its aforesaid employees and, if an understanding is reached, embody
such understanding in a signed agreement;
(b) Offer to Lawrence Tubman, Charles Halonen, George Chap-
man, Norbert Roy, Jr., Ernest Gregg, Charles Strobridge, Garfield
Gibbons, Ivan Avery, and Gerald Wilson, immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, as
provided in The Remedy section above;
(c) Make whole Lawrence Tubman, Charles Halonen, George
Chapman, Norbert Roy, Jr., Ernest Gregg, Charles Strobridge, Gar-
field Gibbons, Ivan Avery, and Gerald Wilson, for any loss of pay
they may have suffered by reason of the discrimination against them,
by payment to each of them of a sum of money equal to the amount.
which he would normally have earned as wages during the period from
the date of the Respondent's discrimination against him to the date of
the Intermediate Report herein, and during the period from the date
of this Decision and Order to the date of the Respondent's compliance
with the reinstatement provisions herein, less his net earnings during
said periods, as provided in The Remedy section above;
(d) Post at its plant at Sault Ste. Marie, Michigan, copies of the
notice attached hereto, marked Appendix A.20 Copies of said notice,
to be furnished by the Regional Director for the Eighteenth Region,
shall, after being 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 covered by any other material; .
"In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice , before the words "A DECISION AND ORDER," the
words "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Eighteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that in all other respects the complaint be,
and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL BARGAIN collectively, upon request, with INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFERS, WAREHOUSEMEN
AND HELPERS or AMERICA, LOCAL UNION No. 328, A. F. of L., as
the exclusive bargaining representative of all employees in the
bargaining unit described herein, and if an understanding is
reached, embody such understanding in a signed agreement. The
bargaining unit is:
All employees at our Sault Ste. Marie plant, inc'_ading
truck drivers, receiving and shipping clerk, and warehouse-
men, but excluding office and clerical employees, working
foremen, and supervisors as defined in the Act.
WE WILL oFrER to the following named individuals immediate
and full reinstatement 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, as,set forth
in the Decision and Order :
Lawrence Tubman Charles Strobridge
Charles Halonen Garfield Gibbons
George Chapman Ivan Avery
Norbert Roy, Jr. Gerald Wilson
Ernest Gregg
WE WILL NOT unilaterally offer or grant higher rates of pay
or other improved terms or conditions of employment without
first bargaining in respect thereto with INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS
OF AMERICA, LOCAL UNION No. 328, A. F. of L., as such repre-
sentative.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right.to self-organiza-
PACIFIC GAMBLE-ROBINSON COMPANY 491:.
tion, to form labor organizations, to join or assist INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, LOCAL UNION No. 328, A. F. of L., or any-
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted.
activities for the purposes 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 agree-
ment requiring membership in a labor organization as a condition,
of employment, as authorized in Section 8 (a) (3) of the Act.
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 member-
ship in, or activity on behalf of, any labor organization.
PACIFIC GAMBLE-ROBINSON COMPANY,
Employer.
By -----------------------------------------
(Representative) (Title)
Dated ----------------
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
Mr. Clarence A. Meter, for the General Counsel.
Messrs. Perry R. Moore and Robert W. Dygert, of Minneapolis, Minn., and
Dixon D. Moorhead, of Sault Ste, Marie, Mich., for Resppndent.
Mr. Arnold Alsten, of Escanaba, Mich., for the Union.
STATEMENT Or THE CASE
Upon an amended charge filed on March 29, 1949,1 by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
Union No. 328, A. F. of L., herein called the Union, the General Counsel of the'
National Labor Relations Board, herein called respectively the General Counsel'
and the Board, by the Regional Director for the Eighteenth Region (Minne-
apolis, Minnesota), issued a complaint dated May 12, 1949, against Pacific
Gamble-Robinson Company, herein called Respondent, alleging that it had en-
gaged in, and was engaging in, unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1), (3), and (5), and Section 2 (6) and (7)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act. Copies of the complaint, accompanied by a notice of hearing, were duly
served upon Respondent and the Union.
With respect to the alleged unfair labor practices the complaint alleged in
substance that Respondent: (1) On and after May 12, 1948, failed and refused
1 The original charge was filed on November 3, 1948.
a This term includes particularly counsel appearing at the hearing on behalf of the
General Counsel.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain collectively with the Union as the exclusive representative of its
employees in an appropriate unit; (2) on and after March 8, 1949, following
a strike alleged to have been caused and prolonged by Respondent's unfair
labor practices, failed and refused to reinstate in their jobs Lawrence Tubman,
Charles Halonen, George Chapman, Norbert Roy, Ernest Gregg, Charles Stro-
bridge, Garfield Gibbons, Burtis Webber, Ivan Avery, and Gerald Wilson, fol-
lowing their unconditional application for reinstatement, because of their union
membership and activity, including their going on" strike; and (3) during the
strike urged and induced its employees to abandon the Union, promising them
benefits if they did so.
On May 27, 1949, Respondent filed an answer admitting certain allegations
of the complaint with respect to the nature of its business, but denying that it
had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held from June 6 to 10, 1949, at Sault Ste.
Marie, Michigan, before Horace A. Ruckel, the undersigned Trial Examiner,
duly appointed by the Chief Trial Examiner. The General Counsel, Respondent,
and the Union, were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
At the conclusion of the hearing the Trial Examiner granted a motion by
the General Counsel to conform the pleadings to the proof in formal matters,
but reserved ruling on a motion by Respondent to dismiss the complaint. This
motion is disposed of by the recommendations hereinafter made. The parties
waived oral argument but were granted until June 25 to file briefs with the
Trial Examiner. Subsequently, this time was extended by the Chief Trial
Examiner to August 8. On August 6, the General Counsel and Respondent
filed briefs.
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation with its principal office and place of
business at Seattle, Washington. It operates more than 100 plants. at various
places within the United States, one of which is located at Sault Ste. Marie,
Michigan, the only one involved in this proceeding. At this plant Respondent is
engaged in the wholesale distribution of fruit, vegetables, groceries, and other
produce.
During the calendar year 1948 Respondent purchased products in excess of
_$500,000 in value for distribution through the plant, of which more than 85
percent represented purchases and shipments to the plant from points outside
the State of Michigan. During the same year Respondent made sales from the
plant in excess of $500,000, substantially all to customers within the State of
Michigan.
No contention is made by Respondent that it is not engaged in interstate
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, Local Union No. 328, affiliated with the American Federa-
tion of Labor, is a labor organization admitting to membership employees of
Respondent.
PACIFIC GAMBLE- ROBINSON COMPANY 493
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
1. The appropriate unit
The complaint alleges that all employees of Respondent at its Sault Sce. Marie
plant, including truck drivers, receiving and shipping clerk, warehousemen, and
working foremen, but excluding office, clerical, and supervisory employees, con-
stitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9 (b) of the Act.
Respondent does not dispute the appropriateness of this unit except as to fore-
men or working foremen in the warehouse. The record discloses that there is
only one of these-Burtis Webber.- Webber, the evidence shows, had been fore-
man of the warehouse since 1940, with about 12 employees under his direction,
including warehousemen and truck drivers. He spent, according to his own testi-
mony, about three-quarters of his time in shipping, receiving, and waiting on
customers, and the other quarter in directing the activities of other employees.
There was no other employee • who directed the work of employees excepting
his immediate superior, Plant Manager Robert Gilray. Webber was paid 51/^
cents an hour more than the other employees, and although he had no authority
to hire or discharge he occasionally effectively made recommendations as to
discharge, and he possessed authority to transfer men from one job to another.
The record is clear that Webber was commonly regarded both by Respondent
and the other employees as a supervisor, and the undersigned finds that he was.
He should not be included in a unit with nonsupervisory employees.`
The undersigned finds that all employees of Respondent at its Sault Ste.
Marie plant, including truck drivers, receiving and shipping clerk, warehousemen,
and working foremen, and excluding office, clerical, and supervisory employees,
-among them Webber, constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9 (b) of the Act.
2. Representation by the Union of a majority within the appropriate unit
Organization of Respondent's employees into the Union began in the spring
,of 1946. A majority of those in the appropriate unit joined the Union, which
then entered upon negotiations for a contract. The record is not clear as to
:how the Union's majority was originally determined. Respondent, however,
does not question the Union's majority status at the time of the strike, hereinafter
-described, and the undersigned finds that on or before May 12, 1948, and at all
material times thereafter, the Union was the exclusive bargaining representative
of all employees in said unit for the purposes of collective bargaining with respect
to rates of pay, wages, hours, and other conditions of employment.
3. The alleged refusal to bargain
(a) Negotiations prior to the strike
A contract between Respondent and the Union was signed and became effective
oon March 29, 1947, to run until May 31, 1948, with an automatic renewal clause
'Originally Respondent contended that Garfield Gibbons was a supervisor. In its brief
-Respondent states that it no longer insists on this contention.
4 The finding that Webber was a supervisor does not affect the majority status of the
Union, and bears only upon the matter of Ills subsequent discharge and his remedy under
the Act.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and a provision for terminating the contract on 60 days' notice. On March 31,
1948, the Union, by Arnold Alsten, its business representative, served Respondent
with a notice reopening the contract, and requesting a meeting for the purpose of
negotiating new terns and conditions.
On April 19 Respondent, by S. M. Corbell, its secretary, wrote the Union
expressing a willingness to meet with its representatives, and after some further
correspondence the first meeting of the parties took place on May 12, at Sault
Ste. Marie. At the outset, 35 separate matters were listed for discussion con-
sisting of 22 articles of the old contract, 7 changes proposed by the Union,
and 6 entirely new provisions. Included in the Union's demands were those for
a wage-increase from the existing rate of 88 cents an hour to $1.25 an hour, a 45-
hour week in place of the 40-hour week provided for in the existing contract, a
union shop with checkoff of dues, and a longer vacation period.
All the demands of the Union were discussed at three meetings during the
days of May 12 and 13, without any agreement being reached on any provisions
of a new contract. Respondent, however, expressed a willingness to renew the
old contract.' When the meetings adjourned on May 13 no date was agreed
upon for a renewal of negotiations, although Corbell expressed a willingness
to meet at any time with the Union. Alsten testified that at no time thereafter
did the Union directly request a further meeting from Respondent. Such meet-
ings as took place thereafter were arranged for by the State Labor Conciliator, at
the request of either the Union or Respondent, or by a Federal conciliator.'
The contract between the Union and Respondent expired on May 31, 1948.
On June 4, at the request of the Union, James Greenfield, conciliator for the
State Labor Mediation Board (Michigan), wired the parties setting a meeting
for June 15. On the following day, June 5, the Union filed notice of an impending
strike and requested that, in the event of a deadlock at the June 15 meeting, a
strike ballot be taken.
Representatives of the parties met with Greenfield in a fourth meeting on
June 15. Alsten, for the Union, submitted the Union's original demands without
any modification, and Respondent merely reiterated its offer to renew the
old contract. A fifth meeting on the following day, June 16, found no change
in the position of the parties. As a result, negotiations were again broken off.
As Alsten put it while testifying, the Union's representatives "just left the
building-we left the conference room, nothing to do but leave town."
On July 2 a strike ballot was taken under thf^ auspices of the State Mediation
Board. On July 20, Corbell telephoned Greenfield proposing another meeting
of the parties, and stated that Respondent inteided at that meeting to make a new
proposal in an attempt to effectuate a settlement of the dispue. Corbell in-
formed representatives of the Union to the same effect.
On July 27 Corbell wired the Mediation Board agreeing to a 30-day extension
of the strike limitation period.' The Union agreed to this extension on the same
5 Alsten testified on this point merely that Corbell asked, "what was wrong with the
old contract I" without offering to renew it. Corbell, Gilray, and C. I. Frost, division
manager, who were present at the meetings on May 12 and 13, testified that Respondent
made a definite offer to renew the old contract, and the undersigned acccepts their version
as being in accord with the fact. This conclusion is strengthened by the fact that the
Union waited until March 31, the last day under the reopening clause of the contract, to
serve notice on Respondent, and the fact that Respondent had not up to that time served
such a notice upon the Union, which would indicate that it was willing to continue the
existing contract in effect.
R However, on August 18, Alsten telephoned Corbell, as hereinafter related.
7 Under Michigan Law a strike must occur within 30 days after the taking of a strike
ballot, in this case by August 1. This interval is not a "cooling off" period.
PACIFIC GAMBLE-ROBINSON COMPANY 495
,or following day. The new limitation period set by the Mediation Board was
September 2.
The sixth meeting between the parties took place on August 3. At its incep-
tion, Respondent offered a new contract containing a wage increase of 10 cents
.an hour, but proposing abandonment of all seniority provisions in the old con-
tract. Both Corbell and Gilray testified that Alsten remained adamant on the
Union's original demands, without making any concession in respect to wages
or in other essential demands. Alsten testified to the same effect when he first
took the stand. On the following day, however, on cross-examination, he changed
his testimony to state that at this meeting the Union submitted a counter-
proposal reducing its demand for a wage increase to 10 cents an hour, with a
guarantee of a 451/3-hour week,' seniority to remain intact, and the contract to
be retroactive to June 1, 1948. The undersigned accepts the testimony of Corbell
.and Giiray, together with Alsten's original testimony on this point, as being in
accord with the facts, and finds that on this occasion the Union did not make
.any reduction in its wage demand in response to Respondent's offer of a 10-cent
wage increase. At the seventh meeting, on August 4, the position of the parties
did not further change.
On August 18, Alsten telephoned Corbell and made the counterproposal as
to wages, coupled with conditions, which Alsten ipistakenly testified he made oil
August 3. Corbell indicated that the Union's new demands were unacceptable
to Respondent, and urged the Union not to strike. According to Alsten, Corbell
went on to state that he would attempt to get in touch with other officials of
Respondent, scattered throughout the county, within the next 2 or 3 weeks to
discuss the Union's latest proposals.
On August 23 John Lueke, a commissioner for the Federal Mediation and Con-
ciliation Service, wired Corbell suggesting another meeting on August 26. Cor-
bell replied that the earliest date on which he could meet would be September
7 or 8. No agreement for a meeting on either of those dates was reached with
the Union, which, on August 27, struck Respondent's plant.
(b) Negotiations during the strike
The first meeting of the parties after the beginning of the strike, or the eighth
meeting in all, took place on September 8, upon the initiative of Lueke, who
presided. At this meeting Respondent renewed its offer of a 10 cent wage in-
crease without seniority rights, and the Union repeated its revised demands of
August 18. No further progress was made toward a settlement of the dispute
when the meeting adjourned. This was the last meeting between the parties at
which a contract was discussed, although a mediation meeting was arranged
for by the Mediation Board on October 1.2, at which Respondent appeared spe-
cially to question the jurisdiction of that Board. No further contract discussions
took place on this occasion. On November 3, 1948, the Union filed its original
charge herein.
Conclusions
The General Counsel contends that the course of events above related demon-
strates that Respondent had no intention of bargaining in good faith with the
Union, and that its failure and refusal to do so precipitated the strike on August
27. With this contention the undersigned disagrees.
8 The old contract guaranteed a 40-hour week after June 1, 1947, although in practice
the plant worked 45% hours.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union and Respondent had been under contract since March 31, 1947,
and so far as the record discloses the relationship between the parties had been
amicable. There is no evidence at all of any hostility of Respondent toward the
Union, prior to the strike,' so that if Respondent's unfair labor practices caused
the strike they can be found only in Respondent's course of conduct during the
negotiations for a contract.
The evidence convinces the undersigned, however, that the strike was economic
in character. From the first, Respondent expressed its willingness to renew
the old contract with all its terms and conditions intact. It is apparent that
the principal bone of contention was the Union's demand for a wage increase
for the employees from 88 cents an hour, the prevailing wage, to $1.25, an increase
of 37 cents. The Union did not recede from this demand from May 12, the date
of its first meeting with Respondent, until August 18, and then only after Re-
spondent, on August 3, had offered an increase of 10 cents. It is true that Re-
spondent's offer was coupled with an abandonment of the seniority provisions
of the old contract, a condition which it is understandable that the Union was
unwilling to accept. The seniority provision of the contract, however, was
subject to collective bargaining as well as wages. The record, in the opinion
of the undersigned, does not support the General Counsel's contention that Re-
spondent's position with respect to seniority was taken in the hope that the
Union would find it unacceptable, and that a strike might be precipitated.
Seniority, as well as all other matters in controversy, continued to be discussed.
After May 12, the Union on no occasion requested a meeting directly of Respond-
ent's representative, all further meetings coming about either as the result of
Respondent's initiative, or the intervention of third parties.
The Union receded from its original demands only 9 days before the strike on
August 27, and substantially met Respondent's proposal of a 10-cent wage in-
crease. This narrowed the issues to a point where it should have been reasonably
apparent to the Union that an agreement with Respondent was still possible,
although seniority, length of work week, vacations, and the proposed retroactivity
of the contract remained in issue. Nevertheless, the Union made no attempt to
resume negotiations with Respondent after August 18, but instead resorted to
strike action. On September 8, following the strike, the Respondent again met
with the Union and renewed its offer of settlement, which the Union rejected,
the situation remaining exactly as it had been on August 18.
As early as June 5, after only two meetings with Respondent-those on May
12 and 13-the Union filed a notice of impending strike. It was Respondent,
not the Union, which on July 20 contacted Greenfield, State Labor Conciliator,
to propose a meeting at which Respondent made a wage concession.
The record as a whole persuades the undersigned that the Union elected to
depend upon its economic strength in enforcing its demands upon Respondent.
He finds that Respondent did not, at any time, fail or refuse to bargain collec-
tively with the Union, and that the strike on August 27, was economic in
character.
B. Events occurring during the strike
1. Alleged interference, restraint, and coercion
At the inception of the strike the Union threw a picket line around Respond-
ent's plant. On August 29 Arnold Schoenecker, Respondent's labor relations
D The only evidence in the record of any statements in opposition to the Union concerns
certain remarks addressed by Arnold Schoenecker , Respondent ' s labor relations representa-
tive, to certain employees on the picket line, which are hereinafter considered.
PACIFIC GAMBLE-ROBINSON COMPANY 497
representative, arrived in Sault Ste. Marie. On the following day, upon receipt
of word that union pickets were attempting to interfere with a truck at the
warehouse, Schoenecker went down to the loading dock and directed that the
truck be unloaded. Garfield Gibbons, the Union's steward, whom Respondent
originally contended was a supervisory employee, but whom the undersigned has
found was not, approached the dock, and Schoenecker asked him what he was
doing on the picket line inasmuch as he was, in Respondent's view, a supervisory
employee; and why Webber, previously found to be a supervisor, was also
active in the strike. A conversation ensued which attracted the attention of
other pickets, including Gregg, Halonen, Strobridge, and Chapman. The dis-
cussion then became general, the strikers accusing Schoenecker, formerly a union
member, of having "sold out" the Union, and criticizing the managerial ability
of St. John, one of Respondent's officers. During the course of conversation,
Schoenecker, according to several witnesses, asked them why they didn't "wise
up" and come back to work, saying that the Union was not doing them any good,
and that at one of the Respondent's plants the employees had come back to work
during a strike, without the Union, had later received a wage increase, and
were now "one big happy family."
According to this account, some of the strikers questioned the accuracy of
Schoenecker's statement concerning the wages paid at another of Respondent's
plants, and Schoenecker offered to pay the expense of a telephone call to ascer-
tain the facts. The testimony of Gibbons, who was present throughout the entire
conversation, is to the further effect that Schoenecker said that the strikers at.
Sault Ste. Marie could come back without discrimination, to which Gregg replied
"Yes, but not without the Union," adding that without seniority, provided for
in the contract their jobs would not last long. Same discussion seems to have
then taken place concerning the position of the Union and Respondent as to
seniority and other demands of the Union.
Schoenecker denied, while testifying, that he made any reference in this con-
versation to a wage raise at the Iowa plant, or that he offered to pay for a
telephone call. The undersigned, for reasons hereinafter set forth, does not
find it necessary to resolve the conflict of evidence thus presented.
2. The 6-month limitation applies
Respondent makes two defenses to the allegation of the complaint that Schoe-
necker's remarks on August 30 constituted interference, restraint, and coercion
in violation of Section 8 (a) (1) of the Act. First, it contends that they are
barred from consideration by the language of the proviso of Section.10 (b) of
the Act 10 because they were made more than 6 months prior to the filing of the
amended charge on March 29, 1949. The amended charge contained an allegation
as to Schoenecker's statements ; the original charge, filed on November 3, 1949,
within the 6-month period, did not. Second, Respondent contends that Schoe-
necker's statements did not constitute a violation of Section 8 (a) (1) because
they did not include any threat of reprisal or force or promise of benefit.
The General Counsel does not argue the first of the above propositions in his
brief, and the undersigned is hence without the benefit of his views respecting it.
Prior -to Taft-Hartley, it was constantly argued, and frequently held, that the
only purpose of a charge was to set the Board's investigating machinery in mo-
10 Section 10 (b) of the Act reads, in part , as follows : "Provided, That no complaint
shall issue based upon any unfair labor practice occurring more than six months prior to
the filing of the charge. . . .
-498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, and that a charge having been once filed it might later be amended or
:superseded by another charge amplifying the alleged violation of a particular
section of the Act, or even adding a new section.. There was no time limit
-binding upon either the Board in issuing the complaint or upon an aggrieved
person in filing a charge.
The legislative history of the Act, as amended, throw little light upon the pur-
pose sought to be effectuated by Congress in enacting the present 6-month statute
.of limitation. It seems to the undersigned, however, that Congress must have
had something in mind other than merely imposing a time period within which
the General Counsel's machinery must be set in motion. The principal reason
for any statute of limitation is that after a certain length of time it becomes dif-
ficult for a defendant to prepare a defense to an action; events become clouded
by the passage of time, witnesses become unavailable; etc. If these considera-
tions are pertinent here, it is difficult to see how Respondent, or a labor organi-
zation in similar circumstances, could be protected by being served within 6
months with a charge under Section S (a) (5), alleging a failure to bargain,
and nothing else, and after the expiration of that period by another charge, called
.an "amended charge," charging him for the first time with interference, restraint,
and coercion in violation of another and different section,-that of 8 (a) (1)
of the Act. In essence, since the second charge contains entirely new matter,
not related to the former, it is a new charge.
A recent discussion of the Board in Erving Paper Mills " seems to the under-
:signed to support the view that the amended charge here is, in fact, a new charge.
In that case an original charge and a first amended charge were served upon a
-respondent within the 6-month period, and a second amended charge several days
..after its expiration. The complaint was issued on the charge as last amended.
The Board pointed out, however, that there was no material difference between
the original charge and either of the amended charges. No new section of the
.act which the Respondent was charged with violating, was added. The Board,
in its opinion, said:
We believe that Section 10 (b), properly construed, requires that the 6-
month period be computed from the date of the alleged unfair labor practices
to the date of service on the Respondent of the first charge (or amended
charge) relating to such unfair labor practices. . . . [Emphasis supplied.]
In this case the original charge had no relation to the allegations in the amended
charge. It was concerned only with Section 8 (a) (5)-refusal to bargain.
The undersigned therefore believes and finds that an unfair labor practice find-
ing may not be based upon Schoenecker's statement made on August 30, 1948.
3. Schoenecker's statements were not, in fact, violative of the Act
Assuming, however, that the above construction of the Act is not the proper
.one, the undersigned does not believe that Schoenecker's statements were in
violation of the Act. Nor does he find it necessary to resolve the conflict in
evidence here presented as to what Schoenecker said. Accepting the composite
testimony of witnesses called by the General Counsel at its face value, the
undersigned does not find that Schoenecker's remarks included any threat of
reprisal or force or promise of benefit. The testimony of Gibbons, as well as
that of Schoenecker, is that the latter stated that the strikers could come back
-without discrimination against them because of their union affiliation . His fur-
11 82 NLRB 47.
PACIFIC GAMBLE-ROBINSON COMPANY 499
ther statement, assuming that he made it, that at another plant employees had
received a wage raise after coming back to work during a strike, the under-
signed does not find, in the circumstances, to constitute an implied promise of
benefit. The statement, at the worst, was not part of any concerted effort
to break the strike, but was an isolated one made during a general conversation
which, in various of its phases, was initiated by the strikers themselves, and
during which the whole question of the management of the plant and the merits
of the dispute between Respondent and the Union were discussed.
Assuming further that Schoenecker's remarks should be given the construc-
tion contended for by the General Counsel, there is still no evidence in the
record-and it may not be merely assumed-that they prolonged the strike
and converted it into an unfair labor practice strike.
4. Respondent's alleged discriminatory refusal to reinstate the strikers
Within a few days after the strike began, the strikers were replaced by new
employees who were hired at wages of 98 cents an hour, 10 cents more than had
previously been paid employees, and equal to the August 3 wage offer of Re-
spondent, related above. Four of the strikers who voluntarily returned to work
on their individual applications prior to March 1, were paid the increased wages."
This increase, unilaterally made by Respondent without consultation with the
Union, is urged by the General Counsel to constitute additional evidence of a
failure to bargain collectively. The undersigned disagrees. The old contract
had expired. Moreover, a strike situation existed. Respondent was privileged
to attempt to continue in business by hiring replacements for the strikers, and
the undersigned knows of no rule of law which, in such a situation, forbids an
employer to pay a higher wage scale than previously prevailing provided that
there is no discrimination between strikers and nonstrikers, or other unlawful
motive. There was none such here 13
On February 23 or 24, the Union called a meeting of the strikers at which it was
voted to instruct Alston to request reinstatement of the strikers as a group. Such
a request was made on February 28. Respondent replied on March 8 stating
that it would "consider without discrimination" the employment of the strikers
"if in the future any vacancy should occur." 14 The Union renewed its applica-
tion by letter, on March 14, including the names of Ivan Avery and Gerald Wilson,
omitted from its first application. Respondent made no reply to this letter.
On about March 25 the first vacancy occurred in Respondent's plant and Corbell
instructed Gilray to call the strikers in order of their previous seniority. Gilray
accordingly contacted Gibbons, Gregg, Tubman, Halonen, Roy, Strobridge, Chap-
man, Avery, and Wilson, all the employees named in the complaint. Each of
these men, when offered the job, refused to accept it without first obtaining a
"release" from the Union. Those who testified on the point explained that by
"release" they meant they were willing to go back to work only on a group basis.
Respondent insists, and it is a reasonable conclusion which the undersigned
accepts as his own, that by "release" it was further meant that Alston, the Union's
business representative, must give his approval before any acceptance of Re-
spondent's offer. Moreover, the witnesses stated that they objected to taking
the job as new employees "on the same general basis as the men now employed"-
11 Carl Sniart , Donald Kelley , Allen Edwards , and Frederick Lounds.
L9 See: Shell Oil Co ., Inc., and Hawaii Employers' Council, et al., 77 NLRB 206; N. L.
R. B. v. Penokee Veneer Company , et al., 168 F . 2d 868 (C. A. 7).
14 With the exception of Burtis Webber , herein found to be a supervisor , and two or three
others who had left Respondent ' s employment prior to the strike.
882191-51-33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that is the replacements-and without the seniority guaranteed them under the
previous contract. As a result, none of the strikers to whom Respondent offered
the job accepted it, and none of them, with the exceptions of Smart, Kelley,
Edwards, and Lounds, who applied individually before March 1, were rehired.
Conclusions
It has been found above that the strike which took place on August 27, 1948,
was economic in character and was not caused or prolonged by any unfair labor
practices of Respondent. It follows, therefore, as a matter of familiar law,
that Respondent was not required to take back the strikers as a group upon
their application, discharging employees hired during the strike if necessary.
Moreover, as appears from the facts related above, the application of the strikers
was not unconditional. A "release" had first to be obtained from Alsten, and
seniority rights which had existed under the old contract-then expired-
would have to be continued. In effect, the strikers refused to go back to work
except under the terms and conditions of the old contract. It is also familiar
law that any application for reinstatement under circumstances such as these
must be unconditional in nature.
The undersigned accordingly finds that Respondent, by refusing to reinstate
the strikers as a group, or by increasing the starting rates of new employees
without consultation with the Union, did not discriminate in regard to their
hire and tenure of employment or fail to bargain collectively. He will accord-
ingly recommend that the complaint be dismissed.
CONCLUSIONS OF LAW
° 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No. 328, affiliated with the American Federation of
Labor, is a labor organization within the meaning of Section 2 (5) of the Act.
2. Respondent, Pacific Gamble-Robinson Company, is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
3. Respondent, Pacific Gamble-Robinson Company, has not engaged in any
unfair labor practices within the meaning of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, the undersigned recommends that the com-,
plaint herein be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as lie relies upon, together with
the original and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of the
Intermediate Report. Immediately upon the filing of such statement of excep-
tions and/or briefs, the party filing the same shall serve a copy thereof upon each
of the other parties. Statements of exceptions and briefs shall designate by
precise citation the portions of the record relied upon and shall be legibly printed
or mimeographed, and if mimeographed shall be double spaced. Proof of service
PACIFIC GAMBLE-ROBINSON COMPANY 501
on the other parties of all papers filed with the Board shall be properly made as
required by Section 203.85. As further provided in said Section 203.46 should any
party desire permission to argue orally before the Board, request therefore must
be made in writing to the Board within ten (10) days from the date of service
of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes..
Dated at Washington, D. C., this 9th day of September 1949.
HORACE A. RuCKEL,
Trial Examiner-