Pioneer Flour Mills

National Labor Relations Board - Board Decisions

Mar 18, 1969

174 N.L.R.B. 1202 (N.L.R.B. 1969)

1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. H. Guenther & Son , Inc., d /b/a Pioneer Flour
Mills and Brewery Workers Local Union No. 110.
Cases 23-CA-2629 and 23-CA-2823
March 18, 1969
DECISION AND ORDER
On May 20, 1968, Trial Examiner Herbert
Silberman issued his Decision 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 attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that
these allegations be dismissed. Thereafter, the
General Counsel, the Respondent, and the Charging
Party filed exceptions to the Trial Examiner's
Decision and supporting briefs.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as modified herein.
1. We agree with the Trial Examiner's finding
that the Respondent has refused to bargain
collectively with the Union since February 6, 1967,
in violation of Section 8(a)(1) and (5) of the Act.
For the reasons discussed below, we are of the
opinion that the Respondent could not under the
circumstances here in any event have had a valid
basis for doubting the Union's de facto majority
status on the critical date.
The Union, the Brewery Workers Local Union
No. 110, is the successor of the International Union
of United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, Local No. 112,
which was certified as the collective-bargaining
representative of the Respondent's production and
maintenance employees following a Board-conducted
election around October 1, 1951. Thereafter, the
parties negotiated without incident a series of
collective-bargaining agreements, the last of which
was effective from October 1, 1964, to October 1,
1966. Before the expiration of this agreement, the
parties, beginning in September 1966, attempted to
negotiate a new agreement, and several sessions
were held before the last bargaining session on
January 19, 1967.
On October 3, 1966, during the negotiations, the
Union went on strike. Of the approximately 96
employees in the certified unit, 79 actively supported
the strike, 16 employees continued to work during
the strike, and 1 employee was ill and died soon
thereafter. Forty-six replacements for strikers were
hired thereafter. The strike terminated about 7 a.m.
on February 6, 1967, at which time an unconditional
request was made by the Union on behalf of,the
strikers to return to work. In addition, almost all
the 79 strikers individually offered to return to work
by leaving at the company office a signed slip which
read, "I hereby unconditionally offer myself to work
at the Pioneer Mill on this 6th day of February,
1967." The picketing which had been continuous
since October 3 was discontinued.
At the conclusion of the strike, when the strikers
presented themselves at the plant, the Respondent's
attorney Wheatley told the Union's assistant
business agent Eichler that he would contact Eichler
later about the recall and related matters. Later that
day, Wheatley telephoned Eichler and told him that
once the Respondent discontinued subcontracting it
would be in a position to recall the strikers
systematically, that strikers would be recalled within
the next few weeks, that the contract provisions
would be followed in recalling employees, and that
copies of letters of recall would be sent to the
Union. Wheatley did not thereafter call the Union
about the negotiation of a new contract, nor did the
Respondent send to the Union copies of any letters
regarding employees who were recalled.
Of the 79 employees who actively participated in
the strike, 21 were recalled to work in February
1967. With the exception of two strikers who were
treated as new employees when they were again
employed in July 1967, no other strikers have been
reemployed by the Respondent. At the hearing in
September 1967, the Respondent for the first time
raised the issue of its good-faith doubt of the
Union's majority status on February 6 as the reason
for its failure to deal with the Union after the
termination of the strike.
The Respondent bases its defense on the facts that
on February 6, 1967, the appropriate bargaining
unit consisted of 46 employees who were hired as
permanent replacements for strikers and 16
employees who did not join the strike.
The Respondent contends in effect that in this
situation it had reasonable grounds for believing
that the Union no longer represented a majority of
the employees in the original bargaining unit of
approximately 95 employees. Therefore, the
Respondent argues that this justified its refusal to
continue dealing with the Union, notwithstanding
the presumption of majority flowing from the
Union's prior certification and contractual
relationship. We find that the Respondent's reliance
on the number of replacements as the grounds for
questioning the Union's majority status was
misplaced, since, on the facts before us, the 79
strikers who had unconditionally offered to return to
work after the cessation of the strike maintained
their status as economic strikers, and would have
174 NLRB No. 174
C. H. GUENTHER & SON, INC.
been permitted to vote in an election conducted
under Section 9 of the Act.' Thus, it is clear that
counting the 79 striking employees as part of the
appropriate unit for the purposes of determining the
Union's majority status, the Respondent on
February 6, 1967, did not have valid reasons for
concluding on the basis it did that the Union lacked
a de facto majority
In counting the economic strikers as part of the
unit for purposes of determining the Union's
majority status we realize, of course, that we are
departing from the standard used in Stoner Rubber
Company, Inc , 123 NLRB 1440, and other cases
following it, in which replaced economic strikers
were excluded. Those cases had, followed the
pre-1959 Act which provided that, "Employees on
strike who are not entitled to reinstatement shall not
be eligible to vote." We are of the opinion that the
1959 amendment to Section 9(c)(3) requires that the
Board's approach in this matter be revised. In the
1959 amendments to the Act the language of
Section 9(c)(3) was changed to provide that,
"Employees engaged in an economic strike who are
not entitled to reinstatement shall be eligible to vote
under such regulations as the Board shall find are
consistent with the purposes and provisions of this
Act in any election conducted within twelve months
after the commencement of the strike."
The legislative history of the amended provision'
strongly suggests that it was the intent of Congress
in amending Section 9(c)(3) that in an economic
strike of not more than 12-month duration replaced
strikers should be considered as members of the
bargaining unit for purposes of determining the
Union's majority status. The legislative history
refers to the pre-1959 provision as "an unfair,
`union busting' rule," and cites former President
Eisenhower's concern in a special labor message in
1954 with the use of the pre-1959 provision of
Section 9(c)(3) as a means "to destroy a union"
during an economic strike, as well as his
recommendation that, "in the event of an economic
strike, the National Labor Relations Board be
prohibited from considering a petition on the part of
the employer which challenges the representation
rights of the striking union."3
Although Section 9(c)(3) deals with representation
matters and the eligibility of voters in a Board
conducted election, we consider the provision
pertinent to a 8(a)(5) allegation in determining
whether an employer has a reasonable basis for
questioning an incumbent union's presumed majority
status, since the ultimate basis for the employer's
asserted doubt here is that a majority of the
employees in the unit are not union adherents.
Additionally, to refuse to include economic strikers
'Cf Bright Foods, Inc, 126 NLRB 553, 554, Pacific Tile, 137 NLRB
1358 See also Celanese Corp of America , 95 NLRB 664, 671
'See Leg Hut of the Labor-Management Reporting and Disclosure Act
of 1959, Vets I and It, 427-429, 452, 1064-65, 1070, 1138, 1919
'Id at 428
1203
in determining the representative status of the union
during an economic strike of short duration would
permit a continuation of the abuses which the
amendment to Section 9(a)(3) was intended to
correct. An analogous application of the intent
behind the 1959 amendment to Section 8 situations
is found in the principles enunciated in the Board's
recent Laidlaw Corporation decision (171 NLRB
No. 175), in which the Board held, "economic
strikers who unconditionally apply for reinstatement
at a time their positions are filled by permanent
replacements : (1) remain employees, (2) are entitled
to full reinstatement upon the departure of
replacements unless they have in the meantime
acquired regular and substantially equivalent
employment, or the employer can sustain his burden
of proof that the failure to offer reinstatement was
for legitimate and substantial business reasons."
[Emphasis supplied.] The Respondent's good-faith
but erroneous view of the law in this regard would
not be a defense.' Accordingly, we find that the
Respondent did not have a valid basis for doubting
the Union's majority on February 6, 1967, and in
agreement with the Trial Examiner, we find that its
refusal to bargain with the Union since that date
was in violation of Section 8(a)(1) and (5) of the
Act
2. The Trial Examiner found that the Respondent
did not violate Section 8(a)(1) and (3) of the Act by
its refusal to rehire replaced strikers when 'five
employees who were hired prior to February 6,
1967, terminated their employment between March
17 and April 24, because the terminated employees
had served their probationary period and had
thereby become permanent replacements before their
termination. Similarly, the Trial Examiner found
that the Respondent did not violate the Act by
failing between May 3 and August 4, 1967, to recall
and reinstate six strikers who had been permanently
replaced at a time the Respondent hired six new,
untrained, unskilled employees. The Trial
Examiner's findings were based upon the erroneous
presumption that permanently replaced economic
strikers are not entitled to preferential treatment in
hiring, and are placed in the same situation as new
employees.
Contrary to the Trial Examiner, we hold that the
replaced economic strikers who have made an
unconditional application for reinstatement are
entitled to full reinstatement to fill substantially
equivalent positions that were created by the
departure of permanent replacements and to new
positions of the same kind that opened up
thereafter, since it is clear that the Respondent has
not shown any legitimate and substantial business
justification for not offering full reinstatement to the
strikers in question.' In making this determination
'See, e g , Taylor Forge & Pipe Works v NLRB , 234 F 2d 227, 231,
(C A 7), cert denied 352 U S 942, and cases cited
'We note that although on February 6, 1967, not all the strikers
submitted individual applications , a valid unconditional request for
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we are relying upon the principles set forth in
Fleetwood Trailer Co.' and The Laidlaw
Corporation, 171 NLRB No. 175, in which the
Supreme Court and the Board, respectively,
discussed the rights of economic strikers to
reinstatement and the responsibility of employers to
fully reinstate economic strikers, absent "legitimate
and substantial business justifications," in a
situation where jobs open up after the strikers have
unconditionally applied for reinstatement. Both the
Supreme Court and the Board held in those cases
that by virtue of Section 2(3) of the Act, an
individual whose work, as here, ceases due to a
labor dispute remains an employee, and the refusal
to hire such employees is an unfair labor practice
without reference to intent or improper motivation
As we pointed out in Laidlaw, supra, the refusal to
reinstate replaced economic strikers who
unconditionally apply for reinstatement to their
former positions when such positions become
available, absent legitimate and substantial business
reasons, is in effect a "delayed" discrimination and
its effect is to discourage employees from exercising
their rights to organize and to strike as guaranteed
by Sections 7 and 13 of the Act (fn. 16).
Accordingly, we find that the Respondent's failure
and refusal to recall strikers when the above jobs
became available violated Section 8(a)(1) and (3) of
the Act. As provided below, the Respondent is
directed to offer the employees in question
immediate and full reinstatement to positions which
became available after February 6, 1967, and to
make them whole for any loss of earnings and
benefits they may have suffered thereby.'
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in addition to those
found by the Trial Examiner, we shall order it to
cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies
of the Act.
Unlike the Trial Examiner, we have found that
the Respondent (1) discriminatorily refused to recall
five strikers to fill positions which became available
when employees who had been hired as permanent
replacements for strikers prior to February 6, 1967,
terminated their employment between March 17 and
April 24, 1967, and (2) discriminatorily refused to
recall and reinstate six strikers between May 3 and
August 4, 1967, at which time the Respondent hired
new, untrained, unskilled employees As found by
the Trial Examiner, the Respondent agreed to
follow the terms of the expired collective-bargaining
agreement in recalling strikers to work. We shall,
therefore, order that the Respondent offer
immediate and full reinstatement to strikers who
would, under the terms of the 1964-66
collective-bargaining agreement between the
Respondent and the Union have been recalled to the
above jobs and were, therefore, as found above,
entitled to reinstatement to such jobs without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay
suffered by reason of the discrimination against
them from the date they should have been so
reinstated to the date of valid offers of
reinstatement Loss of pay shall be computed as
prescribed in F W Woolworth Company, 90
NLRB 289, and interest on such backpay shall be
computed at 6 percent per annum in accordance
with Isis Plumbing & Heating Co, 138 NLRB 716
We shall also order that Respondent make available
to the Board, upon request, payroll and other
records in order to facilitate the computation of the
amounts of backpay and vacation pay due.
AMENDED CONCLUSIONS OF LAW
Upon the basis of the foregoing finding, of fact
and the entire record in this case, a new Conclusion
of Law 6 is added as follows and the Trial
Examiner's Conclusions of Law 6, 7, and 8 are
renumbered accordingly:
6. By discriminatorily refusing to recall and
reinstate strikers to jobs which became available
when five employees who had replaced strikers left
the Respondent's employment between March 17
and April 24, 1967, and by discriminatorily failing
to recall and reinstate six strikers who had been
permanently replaced between May 3 and August 4,
1967, at a time when the Respondent hired six new
employees, the Respondent violated Section 8(a)(1)
and (3) of the Act.
reinstatement was made by the Union on behalf of all the 79 strikers on
that day As the Board recently stated , "under settled law, it is well within
the Union ' s authority , as the employees ' bargaining agent, to make an
unconditional application for reinstatement on behalf of the strikers
Trinity Valley Iron & Steel Co, 158 NLRB 890, 893
IN L R B v Fleetwood Trailer Co, 389 U S 375
'We agree with the Trial Examiner , for the reasons stated in his
Decision , that the Respondent also discriminatorily refused to reinstate
Henry Wilburn , Frank Samudio , and Caspar Woytasczyk, and
discriminatorily refused to reemploy three strikers on February 14 and 20
and March 2 when temporary employees were terminated , in violation of
Section 8 (axl) and ( 3) of the Act The Board also agrees with the Trial
Examiner that the Respondent ' s treatment of two recalled strikers ( Robles
and Villarreal ) as new employees from the standpoint of seniority and
other benefits was violative of Section 8(aX3) and (I) of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
C. H. Guenther & Son, Inc , d/b/a Pioneer Flour
Mills, San Antonio, Texas, its officers. agents,
successors, and assigns, shall
1 Cease and desist from:
(a) Refusing to bargain collectively with Brewery
Workers Local Union No 110, as the exclusive
collective-bargaining representative of its employees
C H. GUENTHER & SON, INC.
in the following appropriate unit:
All production, maintenance, warehouse and
delivery employees on an hourly wage basis,
excluding office and clerical employees, guards,
watchmen, professional employees and supervisors
as defined by the Act.
(b) Failing and refusing to furnish the Union with
information as shall be relevant to the preparation
for and conduct of collective-bargaining negotiations
as shall be requested by the Union.
(c) Discouraging membership in any labor
organization of its employees by discriminating in
regard to their hire, tenure of employment, or any
term or condition of their employment.
(d) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist any labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such
activities.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the
Act:
(a) Upon request, bargain collectively concerning
rates of pay, wages, hours of employment, and other
conditions of employment with Brewery Workers
Local Union No. 110, as the exclusive representative
of all the employees in the appropriate unit
described above, and, if an agreement is reached,
embody it in a signed contract.
(b; Upon request, furnish said Union with such
information as shall be relevant to the preparation
for and conduct of collective-bargaining
negotiations.
(c) Offer Henry Wilburn, Frank Samudio, and
Caspar Woytasczyk immediate and substantially
equivalent positions at which they would have been
employed had they not been discriminated against,
without prejudice to any seniority or other rights
and privileges they might have acquired, and make
them whole in the manner set forth in the section of
the Trial Examiner's Decision entitled "The
Remedy," and notify them if they are presently
serving in the Armed Forces of the United States, of
their right to full reinstatement, upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Offer to 14 striking employees, selected in the
manner set forth in the section above-entitled "The
Remedy," immediate and full reinstatement to
positions which became vacated in February,
March, and April 1967, and to positions which were
filled between May 3 and August 4, 1967, by new
witrained employees, without prejudice to any
seniority or other rights and privileges they might
have acquired, and make them whole in the manner
set forth in the section of this Decision entitled "The
1205
Remedy," and notify them, if they are presently
serving in the Armed Forces of the United States, of
their right to full reinstatement, upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
(e) Restore to Simon C. Robles and Faustino
Villarreal their seniority and fringe benefits which
Respondent unlawfully reduced on July 17, 1967,
and make said employees whole for any losses they
may have suffered as a result of the discrimination
against them
(f) Preserve and, upon request, make available to
the Board or its agents for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze and
compute the amount of backpay due under the
terms of this Order.
(g) Post at their places of business in San
Antonio, Texas, copies of the attached notice
marked "Appendix."8 Copies of said notice, on
forms provided by the Regional Director for Region
23, shall, after being duly signed by the
Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and
be maintained by it for 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.
(h) Notify the Regional Director for Region 23, in
writing, within 10 days from the date of this Order,
what steps have been 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 our employees that.
WE WILL, upon request, bargain collectively with
Brewery Workers Local Union No 110 as the exclusive
bargaining representative of all the employees in the
bargaining unit described below concerning rates of
pay, wages, hours of employment, and other conditions
of employment and, if an understanding is reached,
embody it in a signed agreement The bargaining unit
is:
All production , maintenance , warehouse and delivery
employees on hourly wages basis, excluding office
and clerical employees and supervisors as defined in
the Act
WE WILL, upon request, furnish said Union with such
information as shall be relevant to the preparation for
and conduct of collective-bargaining negotiations.
'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 "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in or activity
on behalf of Brewery Workers Local Union No. 110, or
any other labor organization of our employees, by
discriminating in regard to hire, tenure of employment,
or other terms or conditions of employment of any of
our employees.
WE WILL offer Henry Wilburn, Frank Samudio,
Casper Woytasczyk, and the 14 additional employees
who participated in the strike which began on October
3, 1966, and whose names will be determined by the
National Labor Relations Board, in accordance with
the standards of provisions of the 1964-1966
collective-bargaining agreement between us and the
Union, immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to any seniority or other rights previously
enjoyed by them and WE WILL make them whole for
any loss of earnings suffered as a result of our
discrimination against them.
WE WILL immediately restore to Simon C. Robles
and Faustino Villarreal their seniority and fringe
benefits which we unlawfully reduced on July 17, 1967,
and WE WILL make them whole for any losses they may
have suffered as a result of our discrimination against
them
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor
organizations, to join or assist the above-named Union
or any other labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
C H GUENTHER & SON,
INC., D/B/A PIONEER
FLOUR MILLS
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 713-228-4296
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Trial Examiner Upon charges
filed by the above -named Union on February 27, March
17, and May 17, 1967, in Case 23-CA-2629, a complaint,
dated May 31, 1967, was duly issued alleging that the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1), (3), and
(5) of the National Labor Relations Act , as amended In
substance, the complaint, as amended at the hearing,
alleges that the Union has been the collective-bargaining
representative of a unit of Respondent's employees since
October 1, 1951, that employees of the Company engaged
in a strike during the period from October 3, 1966, to
February 6, 1967, and that on February 6, 1967, the
Company unlawfully refused to reinstate three employees'
in their former positions because of their union activities
and their participation in the strike The complaint further
alleges that since February 6, 1967, Respondent
unlawfully has refused to bargain collectively with the
Union by refusing to meet with the Union, by refusing to
furnish the Union with data about the employees who
were hired as permanent replacements during the strike,
and by refusing to furnish the Union with data concerning
the subcontracts of unit work The complaint also alleges
that the Company has engaged in further unlawful refusals
to bargain with the Union by unilaterally changing
conditions of employment in that it adopted a job
application form which established a probationary period
of 90 days for newly hired employees, in that it abolished
some of the jobs of employees in the bargaining unit and
in that it increased the hours of work for its employees.
Respondent's answer generally denies that it has engaged
in the alleged unfair labor practices. More specifically,
Respondent's position is that two of the alleged
discriminatees were permanently replaced during the strike
and that the job of the third was abolished. With respect
to the alleged refusals to bargain, Respondent's position is
that following the termination of the strike the Union was
no longer the representative of a majority of the
employees in the unit and therefore it was under no
obligation to bargain with the Union Further, it denies
that it had made any change regarding a probationary
period for new employees, which is the only unlawful act
on its part alleged to have taken place prior to the
termination of the strike
A hearing in said proceeding was held on September
12, 13, and 14, 1967 At the close of the hearing the Trial
Examiner granted General Counsel's motion to amend the
complaint by adding the names of 12 additional strikers'
as having been unlawfully denied reinstatement. With
respect to this amendment, the position of General
Counsel is that the employees who purportedly had been
hired as permanent replacements for said 12 strikers were
not in fact permanent replacements because 4 said new
employees did not actually begin work until some hours
after the strikers had made their unconditional requests
for reinstatement and because the employment of 8 other
said new-.:employees was terminated before they had
completed their alleged 90-day probationary periods The
Trial Examiner reserved decision on the motion of the
Charging Party to further amend the complaint by
alleging that three additional strikers, D. Ibarra, Efrais,
and A Compos had been unlawfully denied employment
by the Company It is unnecessary to decide this motion
because a later amendment of the complaint includes the
names of these three strikers, among others, as having
been discriminatorily refused employment by the
Respondent.
Following the close of the hearing, counsel for General
Counsel on September 22, 1967, filed a motion further to
amend the complaint in Case 23-CA-2629 by alleging that
'Henry Wilburn, Frank Samud,o, and Casper Woytasczyk
'V Trinidad, F Lempa, C Bronder, A Arnold, F Marichilar, H H
Block , A Pruski, H Cortez, J B Davila, Mike Tam, R V Munoz, and
H F Schneider
C H. GUENTHER & SON, INC.
the Respondent discriminatorily had refused to reinstate
nine other strikers' to their former jobs and to reopen the
record in order to receive evidence concerning these
allegations . The position of the General Counsel with
respect to the proposed amendment is that the jobs of nine
employees unlawfully had been eliminated because the
Respondent effected an artificial contraction of its work
force after February 6, 1967, by giving excessive overtime
work to employees who were then on its payroll . Pursuant
to an order of the Trial Examiner , dated October 3, 1967,
the hearing in said case resumed on October 31 , 1967, and
continued through November 1, 1967
Prior to the date of the reconvened hearing, based upon
charges filed by the above - named Union on September 6
and 12 , 1967, a complaint , dated October 16, 1967, in
Case 23-CA- 2823 was issued alleging that the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
Said case was duly consolidated for hearing with Case
23-CA-2629 and was heard on October 31 and November
1, 1967 In substance, the General Counsel ' s position with
respect to the complaint in Case 23-CA-2823 is that
between May 3 and August G4, 1967, the Company hired
six new employees instead of recalling six strikers and
thereby unlawfully denied employment to said six strikers.
In addition , the complaint alleges that on July 5, 1967,
the Company reinstated a striker , Simon C Robles, and
thereafter on July 17, 1967, discriminatorily reduced his
seniority , vacation privileges , and other terms and
conditions of his employment At the reconvened hearing
a motion by General Counsel was granted to amend the
complaint in Case 23 -CA-2823 by alleging that Faustino
Villarreal , a striker , was recalled to work on July 10,
1967, and thereafter on July 17, 1967, the Respondent
discriminatorily reduced his seniority, vacation privileges,
and other terms and conditions of his employment.
Respondent interposed a general denial to the complaint
in Case 23-CA-2823 and, in addition , averred as an
affirmative defense that the matters covered by the
complaint in Case 23-CA-2823 previously had been
alleged as unfair labor practices in the charges filed in
Case 23-CA-2629 and the General Counsel then had
decided not to issue a complaint with respect to said
matters
At the reconvened hearing , the Trial Examiner granted
General Counsel ' s motion to amend the complaint in Case
23-CA-2629 in accordance with his notice of motion dated
September 22, 1967. Respondent thereupon amended its
answer to the complaint by denying the added , allegations
and affirmatively averring that the matters set forth in
said allegations are outside the scope of the original
charges in said case
Following the conclusion of the hearing in the
consolidated cases, briefs and reply briefs were filed on
behalf of the respective parties which have been carefully
considered
With its reply brief Respondent filed a motion to
reopen the record . This motion was denied , but later was
renewed by Respondent Upon consideration of the
documents submitted by Respondent in support of said
renewed motion , General Counsel ' s response thereto and
the opposition filed by the Charging Party and the
proceedings theretofore had in the case, said motion was
'D Ibarra, Efrais, A Compos, S E Martinez , J Duran , J Muschalek,
L Woytasczyk, T H John, Jr , and A D Rutkowski
'C Kowalik, H F Walleck, Jr , S S Andrade, T Polski, J Trinidad,
and B Perdziak
1207
granted The record in the proceedings was reopened and
the hearing was reconvened on April 9, 1968 At the
reconvened hearing the parties were given opportunity to
present evidence in relation to the matters described in
Respondent's motion, more specifically, concerning
whether Respondent had any legitimate and substantial
business justification for the abolishment of certain unit
jobs The hearing in these cases was finally concluded on
April 9, 1968
Upon the entire record in the cases and from my
observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Texas corporation, is engaged to the
manufacture of flour, seeds, cornmeal, and baking mixes
at its plant located in San Antonio, Texas During a
representative period of 12 months Respondent purchased
goods and materials valued in excess of $50,000 which
were shipped to its San Antonio plant directly from points
in States other than the State of Texas and during the
same period of time Respondent sold and shipped
products valued in excess of $50,000 from its San Antonio
plant to points in States other than the State of Texas
Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence Relating to the Alleged Refusals To
Bargain
The Union became the representative of Respondent's
production and maintenance employees about October 1,
19515 There followed a series of collective-bargaining
agreements the last of which was effective for the period
from October 1, 1964, to October 1, 1966 Before the
expiration of this agreement the Union requested the
Company to bargain about the terms of a renewal of the
contract Negotiations commenced in September 1966 and
continued through six or eight meetings until January 19,
1967, when the last bargaining session was held The
parties, however, did not succeed in reaching an
agreement
On October 3, 1966, the Union called a strike. There
were then 96 employees in the unit represented by the
Union Of these, 79 actively supported the strike, l
employee was ill when the strike began and died soon
thereafter; and 16 employees continued to work during the
strike The strike terminated about 7 am on February 6,
1967 Immediately prior thereto the strikers held a
meeting at which time they voted to "offer themselves
'Following an election conducted by the Board on September 9, 1951,
the International Union of United Brewery , Flour, Cereal , Soft Drink and
Distillery Workers of America , Local No 112 , the predecessor of the
Charging Party, on October I, 1951, was certified by the Board in Case
39-RC-337 as the representative of the unit of Respondent ' s employees
herein involved
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back to work and take down the picket line " The strikers
and their union representatives in a group then proceeded
to the plant where on behalf of the strikers the union
representatives made an unconditional offer to return to
work.6 Also, the picketing at the Company's premises,
which had been constant since the inception of the strike,
was discontinued.
Among other persons who were present when the
striking employees presented themselves at the plant on
February 6, 1967, were the Company's attorney, Seagal
Wheatley, and George Eichler, the Union's assistant
business agent Before the two parted, Wheatley said to
Eichler, "I will contact you later and let you know about
recall and how this will work and so forth " Later in the
same day Wheatley telephoned Eichler and informed
Eichler that as the Company discontinues subcontracting
its work it will be in a position to recall the men in an
orderly fashion, that in recalling the employees the
Company "will follow what is outlined in the contract on
recall," and that employees will be called back within the
next week or two and will be notified by letter when to
return to work Wheatley also said copies of such letters
would be sent to the Union. During this conversation,
Eichler asked Wheatley when they could meet "so we can
try to negotiate a contract and get this thing wrapped
ups" Wheatley answered, "[T]here is nothing to
negotiate " Eichler responded ". . [Y]es, there is We are
still the bargaining agent and we would like to sit
down with you and the representat.ves for the company
and work out an agreement." Wheatley replied, "Well,
this I don't know I will have to check on this and I will
call you and let you know " Wheatley never called Eichler
about the subject nor did the Company send to the Union
copies of any letters to employees recalling them to work.
The next day Eichler mailed the following letter to
Alfred G. Beckmann, president of the Company:'
We have been informed by Mr. Wheatley on
February 6, 1967 that 46 of the men that had been on
strike at the Flour Mill have been permanently
replaced We ask that the Company immediately verify
for us by name, date employed, and by such other
relevant material that you have available which would
accurately reflect matters relevant to permanent
replacement and times thereof, the personnel that are
alleged by the Company to be permanent replacements
of the men who had been on strike
During the same conversation with Mr. Wheatley of
February 6, 1967, he stated that the men would be
taken back in orderly fashion as subcontracting was
cancelled For this reason, as Bargaining Agent for
employees at the Mill, the Union hereby requests that
the Company give to us the following information
relating to subcontracting, to-wit*
a) the names of the companies that have subcontracts
b) the dates of their contracts
c) the terms of the contracts
d) a copy of each contract in writing
e) if any contracts are oral, a statement of such oral
contract containing all the provisions therein.
On April 25, 1967, Eichler wrote to the Company
requesting accrued vacation pay for 12 men On May 3,
' in addition, most of the strikers individually offered to return to work
by leaving with the Company a signed slip which read , " I hereby
unconditionally offer myself to work at the Pioneer Flour Mill on this 6th
day of February, 1967 "
'Eichler testified that at the bargaining session which was held on
January 19 , 1967, Wheatley had advised him that 31 employees then had
been permanently replaced
Eichler wrote a similar letter with respect to five
additional men Finally, on May 8 Eichler received a reply
from Wheatley, rather than from the Company's president
to whom the letters had been addressed, to the effect that
Eichler's letters of April 25 and May 3 had been
forwarded to him and that a reply would be forthcoming
On July 18, 1967, Eichler wrote to the Company
requesting information as to the names of the persons
hired since February 6, 1967, the dates of their hire, their
rates of pay, and the jobs assigned to them On July 24,
Eichler again wrote to the Company stating that the
Union understands that since February 6, 1967, the mill
has been working overtime even though a number of
employees have not been called back to work The Union
requested information as to the amount of overtime
worked during each week since February 6, including the
weekly total, the weekly total on each job and the weekly
total of each employee On August 24 the Union again
wrote to the Company requesting that accrued vacation
pay be given to an employee Finally, on August 28 the
Union wrote to the Company requesting a copy of the
pension plan and a copy of the insurance plan which was
then in effect for the Company's employees
Except for Wheatley's letter of May 8, the Company
did not respond to any of the Union's letters, nor did
Wheatley furnish the reply promised in his letter of
May 8
The Company's position in this case is that by
February 6, 1967, the Union no longer represented a
majority of its employees in the unit and therefore, the
Company was under no obligation to respond to the
Union's letters or bargaining request However, no
company official informed Eichler or any union member
that the Company doubted the Union's majority
The Company does not dispute the allegations that it
made unilateral changes in its employees' conditions of
employment but answers that all such changes took place
after February 6, 1967, when the Union ceased to be the
majority representative However, one unilateral change is
alleged to have been made prior to February 6, namely,
the adoption of a job application form which purportedly
established a 90-day probationary period for new
employees 8 The collective-bargaining agreement which
expired on October 1, 1966, did not provide for any
specific probationary period and, according to Eichler,
there never has been a probationary period for new
employees at the Company However, the contract
provided that employees will not be covered by the
Company's group insurance plan until they have
completed,- 30 days' service with the Employer and this
requirement has been continued since October 1, 1966
Furthermore, the contract recognized a category of
employees classified as apprentices or learjiers
According to the uncontradicted testimony of Brentano
C. Harnisch, vice president of the Company and in charge
of personnel, the Company began using the new
application forms about September 1, 1966, and it did not
first inform the Union that it was about to change its
application forms The instrument in question is a
standard form printed in quantity by Texas Industrial
Surveys, Inc of San Antonio, Texas. Harnisch testified
that he purchased these forms because it was cheaper than
ordering a specially printed form for the Company At the
The complaint alleges that the Respondent unilaterally abolished jobs in
the bargaining unit on January 18, 1967 However, the evidence shows, and
General Counsel concedes, that the action referred to occurred on
February 18, 1967
C. H. GUENTHER & SON, INC. 1209
foot of the application forms there are 22 lines of printed
matter broken into 5 paragraphs The first two lines of the
last paragraph, which extends for five lines, reads as
follows
I understand that my employment may be terminated
by me or the Company at any time without advance
notice one to the other, should I prove unsatisfactory
for any reason or should there be a reduction of force,
during my probationary or trial period which shall be
ninety (90) days
General Counsel does not contend that the Company
was required to bargain with the Union before it lawfully
might adopt a new application form nor, except for the
quoted sentence, does the General Counsel contend there
is anything objectionable about the form which the
Company adopted. However, General Counsel contends
that by reason of the quoted sentence Respondent changed
a condition of employment of the employees in the
bargaining unit because it thereby adopted a probationary
period of 90 days
Harnisch testified, despite the quoted language in the
application form, that the Company did not impose a
90-day probationary period on new employees when it
began using the new form. He explained that until his
attention was called to the sentence in question he had not
noticed the quoted language He further testified, which
testimony is corroborated by excerpts from the personnel
records of the Company introduced in evidence, that his
discussions with new employees related to training periods
of either 30 or 60 days,' but never 90 days.
Although Harnisch's testimony that he was not aware
of the 90-day probationary period language in the
application form is somewhat incredulous, nevertheless,
because Harnisch generally impressed me as being a
truthful witness, because the excerpts from the Company's
personnel records introduced in evidence at the hearing
tend to corroborate his testimony, and because no
evidence whatsoever was introduced to contradict
Harnisch's testimony, I find that the Company when it
began using the new application forms referred to above
did not adopt a 90-day probationary period or otherwise
effect any change in any condition of employment
Accordingly, I shall recommend that the complaint be
dismissed insofar as it alleges that the Company
unilaterally and unlawfully adopted a 90-day probationary
period for newly hired employees
B The Refusals to Reinstate Strikers
About 7 a.m on February 6, 1967, the strike was
terminated and an unconditional offer to return to work
was made to the Respondent on behalf of all the strikers 10
Of the 79 employees who actively participated in the
strike, 21 were recalled to work in February 1967 No
other strikers have been given employment by the
Company except Simon C Robles and Faustino Villarreal
who were again employed by the Company in July 1967.
The complaints allege that the Company has unlawfully
refused to recall 24 former strikers and otherwise has
discriminated against Robles and Villarreal The
Company denies having treated the latter two employees
discriminatorily. Its defenses to the alleged unlawful
failures to reinstate strikers, in substance, are that 15 of
'Harnisch's uncontradicted testimony is to the effect that both prior and
subsequent to September 1, 1966, the Company ' s practice had been to
impose a training or probationary period of up to 60 days on new
employees
these strikers were permanently replaced during the strike
and the jobs of the other 9 were abolished as a result of a
contraction of its work force.
The burden of proving these defenses rests on the
Respondent." Very recently, in NLRB v Fleetwood
Trailer Company, Inc, 386 U.S. 990, 66 LRRM 2737,
2738, the Supreme Court, in a comprehensive discussion
of the rights of economic strikers to reinstatement,
pointed out:
Section 2(3) of the Act . provides that an
individual whose work has ceased as a consequence of a
labor dispute continues to be an employee if he has not
obtained regular and substantially equivalent
employment. If, after conclusion of the strike, the
employer refuses to reinstate striking employees, the
effect is to discourage employees from exercising their
rights to organize and to strike guaranteed by Sections
7 and 13 of the Act . . . . Accordingly, unless the
employer who refuses to reinstate strikers can show
that his action was due to "legitimate and substantial
business justification," he is guilty of an unfair labor
practice. N.L.R.B. v. Great Dane Trailers, 388 U S 26,
34 (1967) The burden of proving justification is on the
employer ..
In two types of situations, "legitimate and
substantial business justifications" for refusing to
reinstate striking employees have been recognized. The
first is when the jobs which the strikers claim are
occupied by workers hired as permanent replacements
during the strike in order to continue operations
* * * * *
A second basis for justification is suggested by the
Board - when the striker's job has been eliminated for
substantial and bona fide reasons other than
considerations relating to labor relations: for example,
"the need to adapt to changes in business conditions or
to improve efficiency "
* * * * *
[I]n N L R.B. v. Great Dane Trailers... we held that
proof of antiunion motivation is unnecessary when the
employer's conduct "could have adversely affected
employee rights to some extent" and when the
employer does not meet his burden of establishing "that
he was motivated by legitimate objectives." Great Dane
Trailers determined that payment of vacation benefits
to nonstrikers and denial of those benefits to strikers
carried "a potential for adverse effect upon employees
rights " Because "no evidence of a proper motivation
appeared in the record," we agreed with the Board that
the employer had committed an unfair labor practice
. A refusal to reinstate striking employees . . is
clearly no less destructive of important employee rights
than a refusal to make vacation payments.
The testimony of Brentano C. Harnisch is to the effect
that all persons hired by the Company after December 9,
1966, and prior to February 7, 1967 (a total of 46
persons), were hired as permanent replacements for the
striking employees." General Counsel attacks this
"The Union delivered to the Company a letter which , in pertinent part,
reads " we hereby unconditionally offer all of the employees of Pioneer
Flour Mills that are on strike for employment at the flour mill
"New Orleans Roosevelt Corporation , 132 NLRB 248, 250
"When questioned by Respondent ' s counsel , Harnisch testified as
follows
Q Now, returning to the question of the replacement of employees
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony as being inconsistent with the undisputed facts
In the case. First, General Counsel points out that under
the terms of the expired collective-bargaining agreement
the Company was obliged, in the event of a discharge, to
give to the discharged employee and to the shop steward a
reason, in writing, for the Company's action. General
Counsel assumes, without explaining the basis for such
assumption or citing any authority therefor, that the
clause in question survived the expiration of the contract ' 3
Second, General Counsel assumes, without warrant, that
the clause in question, which is limited to cases of
discharge and specifically gives to the Union the right to
investigate discharges and to file grievances with respect
to discharges, was intended by the contracting parties to
apply to the replacement of strikers General Counsel
erroneously equates the permanent replacement of an
economic striker to the discharge of an employee Third,
also without citing any authority, General Counsel
declares that "[a] discharge requires that an employer
communicate to the employees in words that the employer
intends to sever the employment relationship." Finally, the
General Counsel asserts the completely novel proposition
that " JnJotice to the replaced employees is an essential
prerequisite to replacement." General Counsel's
conclusion that the Company did not establish that it
permanently had replaced striking employees prior to
February 7, 1967, is as invalid as the gratuitous
propositions upon which it is based. Furthermore, General
Counsel's argument is inconsistent with his action in these
cases If none of the employees had been permanently
replaced, as he argues, then why do the complaints allege
that only 24, rather than all, the strikers were unlawfully
denied reinstatement. Contrary to the General Counsel, I
credit the testimony of Harnisch that the persons hired
during the strike by the Company were hired as
permanent, and not temporary, employees." This finding,
however, does not determine the issues raised in these
cases as to whether the Company unlawfully discriminated
against certain strikers
In the afternoon of February 6, 1967, Company
Attorney Wheatley advised Union Business Agent Eichler
that the Company would reinstate the strikers in
between October 3, 1966, and February 6, 1967, is it not a fact that all
of these hired employees were permanently hired during that periods
A Yes, sir
However, later in the hearing, Respondent's counsel stated on the record
"that no permanent employees were hired on a permanent basis in the
period of the settlement agreement, I believe from October 31, through
December 9" In response to further questions, Harnisch testified as
follows
Q (By Mr Schoolfield) All right
Let me ask you this, Mr Harnlsch, did you employ any employees on
a temporary basis after December 9, 19669
A No
Q Did you advise any employees that they were employed on a
temporary basis after December 99
A No
"While an employer's freedom unilaterally to change the terms or
conditions of employment of his employees may be restricted following the
expiration of a collective-bargaining agreement, I am not aware of any
principle to the effect that the terms of a contract survive its expiration
"Hot Shoppes, Inc, 146 NLRB 802 See also Bowman Transportation,
Inc , 142 NLRB 1093, 1098 Some of the persons hired during the strike
served as trainees or probationary employees for limited periods of time
The status of such employees will be discussed below
accordance with the recall provisions of the expired
collective-bargaining agreement The Company's
operations are divided into four departments, namely,
general work, production and maintenance, delivery, and
gardening. According to the contract, employees will be
recalled to work in the order of their departmental
seniority, except that employees in the general work
department will be recalled to work in the order of their
plant seniority. Furthermore, employees in the delivery
and production departments for whom there are no
vacancies in their respective departments will be recalled
to work in the general work department if their plant
seniority is greater than the plant seniority of employees
in the general work department who otherwise would be
recalled to work 11 Harnisch, when asked whether he
followed the terms of the expired collective-bargaining
agreement in recalling the strikers to work, testified.
"Yes, sir, reasonably so I was guided by that."
C Conclusions Regarding Respondent's Alleged
Discriminations Against the Strikers
I Henry Wilburn
Henry Wilburn began his employment at Respondent's
flour mill in August 1932 He held various positions in the
general work department until about 1952 when he was
advanced to the job of mixer in the production and
maintenance department. Respondent acknowledges that
Wilburn was a valuable employee capable of doing most
of the jobs in the production and maintenance department
and in the general work department. At the time of the
strike, Wilburn was third in the order of plant seniority
among Respondent's employees. Wilburn was one of the
union leaders in the plant. He held the office of financial
secretary of the Union for a period of 12 to 14 years until
1965 and, in addition, was a member of the Union's
1966-67 negotiating committee. It is significant to note
that none of the seven members of the Union's negotiating
committee was recalled to work by the Company after the
termination of the strike.
Harnisch testified that Wilburn's job was filled by a
permanent replacement on December 21, 1966 Evidence
introduced by Respondent shows that there were 20 men
in the production and maintenance department when the
strike began, and that 7 of these continued to work during
the strike while 13 supported the strike On February 6
when the strikers offered to return to work nine of their
jobs had been filled. Subsequently, two strikers, A B.
Davila and P. C. Munoz were recalled to work, while the
two other jobs in the production and maintenance
department have remained vacant.16
Although Harnisch testified that he was guided by the
recall provisions of the expired collective-bargaining
agreement in recalling strikers to work after February 6,
1967, he offered no explanation as to why Wilburn was
not recalled to work in the production and maintenance
"Any ambiguity as to the meaning and application of the recall
provisions of the expired contract was clarified by the testimony of
Harnisch who explained that under the terms of the expired contract an
employee in the production and maintenance department, if there was no
job then vacant in the production and maintenance department, would be
recalled to work in the general work department ahead of employees
normally assigned to that department but who have less seniority
"Prior to the strike the vacant jobs had been held by Lambert Gawlik
and F F Kozielski who have resigned their employment Their jobs,
according to Respondent, have been eliminated by a contraction of its
work force
C. H. GUENTHER & SON, INC.
department - in accordance with the policy of recalling
employees in the order of their departmental seniority
before Davila and Munoz were recalled, both of whom
had less seniority than Wilburn Furthermore, Harnisch
testified that Wilburn could perform most of the jobs in
the general work department and testified that had the
Company faithfully applied the recall provisions of the
expired contract Wilburn would have been called to work
in the general work department following the termination
of the strike, if there was then no vacancy for him in the
production and maintenance department. However,
Harnisch testified that he gave no consideration to
recalling Wilburn for work in the general work
department. His only explanation for his failure to do so
was. "I was guided by the contractual agreement, but
didn't follow it entirely in this case " Absent a satisfactory
explanation for the Company's deviation from its past
practices regarding recall, despite Attorney Wheatley's
advice to the Union that the Company would recall
strikers to work in accordance with the terms of the
expired contract and the testimony of Harnisch that in
recalling the strikers he was guided by the expired
contract, there arises an inference that Respondent's
failure to recall Wilburn was unlawfully motivated In any
event, the Company has not sustained the burden of
establishing "legitimate and substantial business
justification" for its failure to recall Henry Wilburn
Therefore, I find that the Respondent has violated Section
8(a)(1) and (3) of the Act.
2. Casper Woytasczyk
Casper Woytasczyk began his employment with
Respondent on October 15, 1946, as a flour packer in the
general work department Thereafter, about July 1957, he
was advanced to the delivery department and at the time
of the strike was employed as a long-haul driver
Woytasczyk was president of the Union for a period of
approximately 11 years until about 1960 Although
initially he was not on the Union's bargaining committee,
after the strike began he was appointed to the committee
at the request of members of the Union and attended the
last bargaining session which was held on January 19,
1967.
Harnisch testified that Woytasczyk was replaced on
January 9, 1967, by Robert Guerro However, prior to the
strike Guerro had worked for Respondent at its Corpus
Christi, Texas, plant for at least 10 years. Harnisch
further testified that after the strike Guerro returned to
work at the Corpus Christi plant i' In these circumstances,
I find that Respondent has not established that Guerro
was a permanent replacement for Casper Woytasczyk and
that Respondent has violated Section 8(a)(1) and (3) of
the Act by its failure to recall Woytasczyk to work after
an unconditional request for reinstatement had been made
on his behalf
3. Frank Samudio
Frank Samudio began working for Respondent in June
1947 first as a car loader and then as a flour packer in the
general work department. He also worked in the
production and maintenance department and for the 8
years immediately preceding the strike he was a
"While Harmsch did not fix a specific date on which Guerro returned to
Corpus Christi, Melvin L Fletcher, a long-haul driver for the Company,
testified that Guerro returned to Corpus Christi in March 1967
1211
truckdriver in the delivery department. Samudio is
president of the Local Union and has held this position
for approximately 4 years. He also was a member of the
negotiating committee
It is Respondent's position that Samudio was a local
delivery driver and that on February 18, 1967, the
Company decided to discontinue further local deliveries,"
and therefore abolished his fob." Assuming no position
was available for Samudio in the delivery department
when he offered to return to work after the strike, which
fact is not clearly established on record, Respondent gave
no reason why he was not recalled to work in the general
work department, which would have been the case had the
Company observed the recall provisions of the expired
contract Respondent, accordingly, has not furnished
justification for its failure to recall Frank Samudio to
work after the strike. I, therefore, find that by its failure
to reinstate Frank Samudio, Respondent has violated
Section 8(a)(1) and (3) of the Act.
4 New hires who reported for work on February 6,
1967
Four new employees began work between 8 a m. and
noon on February 6, 1967 General Counsel contends that
these four employees may not be considered as permanent
replacements for strikers because they did not start until
after the strikers had requested reinstatement. On the
other hand, Respondent's position is that the four men
had been hired during the previous week, that their
applications for employment had been processed and
approved, that they had taken their physical examinations,
which is a prerequisite for employment with Respondent,
and that they were instructed to report to work on
Monday, February 6, 1967 In these circumstances,
Respondent contends that they should be deemed as
having been hired as permanent replacements for strikers
even though they may not have actually reported for work
until some hours after the strikers had applied for
reinstatement.
The evidence with respect to the said four new
employees is as follows.
Joe Balderama was interviewed for employment on
January 31, took his physical examination on February 3,
and reported for work at 8 02 a m. on February 6
Marcelino Belmares was interviewed for employment
on January 27, took his physical examination on February
2, and reported for work at 12.30 p.m., February 6
Robert Voigt was interviewed for employment on
January 23, took his physical examination on February 3,
and reported for work at 10:25 a m. on February 6.
Marion Tucker applied for employment on January 23,
took his physical examination on January 31, and
reported for work at 8 a m on February 6
Balderama and Belmares left other positions in order to
accept jobs with Respondent
"Robert Schupbach , Respondent ' s sales manager , testified that in 1959
the Company had discontinued deliveries to some city retail stores and the
decision which was reached on February 18, 1967, to discontinue the
remaining city deliveries was an extension of the program that began 8
years earlier Harmsch testified that because of changes in the nature of
the retail grocery business , it has become uneconomical to deliver flour
directly to the local grocery stores
"Schupbach testified that there had been many discussions since 1959
about discontinuing local deliveries but no explanation has been offered as
to why the decision was made on February 18, 1967, rather than long
before or long after said date
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that in the specific circumstances here involved
the said four new employees should be deemed to have
been hired as permanent replacements for striking
employees before the strikers made their applications for
reinstatement Anderson, Clayton & Co , 120 NLRB
1208
5 New employees who did not complete their
training or probationary periods
There were eight new employees who were hired prior
to February 6, 1967, and who were terminated between
February 14 and April 24. General Counsel contends that
because of the application form in use when these
employees were hired each was a probationary employee
for a period of 90 days from the date of his hire For the
reasons discussed above I have found, contrary to the
General Counsel, that there was no 90 days' probationary
period in effect at the time these employees were hired.
However, Harnisch testified that most new employees
when hired were advised that they would serve a training
or probationary period of 30 or 60 days and an
appropriate notation to such effect was made on the
employees' application forms Harnisch further testified
that he also told each new employee that he would be
given a particular job to do when he demonstrated that he
was qualified Although Harnisch did not specifically
testify to such effect, a reasonable inference that may be
drawn from Harnisch's testimony is that any new
employee who did not demonstrate his qualifications to
perform the job for which he was selected within the
designated training period was terminated at the
expiration of that period unless he had been terminated
earlier. Thus, when each of the eight employees was hired
it was contemplated that his tenure would be permanent
subject to the qualification (or condition subsequent) that
he demonstrate his ability to do the job for which he was
selected within the designated period of training. In the
circumstances, I consider that any such employee who
satisfactorily completed his training was a permanent
replacement for a striking employee.20 On the other hand,
any such employee who did not satisfactorily complete his
training period should be deemed to have had the status of
a temporary employee until the date he was terminated
and therefore was not a permanent replacement for a
striking employee =' By applying these principles to the
cases of said eight employees, described below, I find that
five were permanent replacements and three were not.
Leonard Smith was hired on January 17, 1967, to work
in the general work department and was discharged on
March 17, 1967 With respect to Smith, Harnisch testified
that when he was hired, "I talked to him about this
30-day training period or probationary period; a period
that he had to learn to do something in the mill, at $1 67
an hour." As Smith had completed his 30-day training
period < bout February 17, 1967, approximately 2 months
before he was discharged, I find that he was a permanent
replacement for a striker.
John Foster was hired on January 5, 1967, and resigned
on April 6, 1967. Harnisch testified that Foster was
advised that he would serve a "30-day probationary
period " As Foster completed his probationary period by
"Anderson , Clayton & Co, supra See The Texas Company , 93 NLRB
1358, 1362, Replacement of Workers During Strikes, 75 Yale L J 630,
631, 634-635, see also Bowman Transportation , Inc , 142 NLRB 1093,
1098
21 See Kansas Milling Company , 97 NLRB 219
the time the strike ended, I find that he was a permanent
replacement for a striking employee
David Mitchell was hired on January 17, 1967, and
resigned on April 21, 1967. Harnisch testified that
Mitchell was advised that he would be subject to a 30-day
probationary period. As Mitchell's employment extended
considerably in excess of such period, I find that he was a
permanent replacement for a striker
Frank Evans was hired on January 25, 1967, to work in
the general work department and resigned on February
14, 1967 Harnisch testified that "I discussed the 60-day
training period with him, because this man looked like it
might take him a little longer to catch on to some of this
work." As Evans did not complete his 60 days' training or
probationary period before he resigned, I conclude that he
never acquired the status of a permanent employee and
that as of February 14, 1967, the date of his resignation, a
job became vacant which Respondent should have offered
to one of the striking employees who had applied for
reinstatement. As Respondent did not do so, I find that it
thereby has violated Section 8(a)(1) and (3) of the Act
Elmer Markel was hired to work in the production and
maintenance department on January 30, 1967, and
resigned on March 2, 1967 Harnisch testified that this
employee was advised that he was required to serve a
60-day probationary period As Markel resigned before
the completion of said 60-day period, I find that he was
not a permanent employee and that on March 2, 1967, the
date of his resignation, a vacancy occurred which should
have been offered to one of the striking employees and
Respondent's failure to do so constituted a violation of
Section 8(a)(1) and (3) of the Act.
Gerald Hebb was hired to work in the production and
maintenance department on December 27, 1966, and
resigned on February 20, 1967. Harnisch testified that he
advised Hebb that his employment was subject to a
60-day probationary period. As Hebb did not complete
said 60-day period, I find that he was a temporary
employee and that when he resigned on February 20,
1967, a vacancy occurred which should have been offered
to one of the striking employees and that Respondent's
failure to do so was a violation of Section 8(a)(1) and (3)
of the Act.
J. A Garcia was hired on December 21, 1966, and
resigned on March 20, 1967. Harnisch testified that he too
was subject to a 60-day training period. As it appears that
he completed such training period prior to the date of his
resignation, I find that Garcia was a permanent
replacement as of February 6, 1967, when the strikers
requested reinstatement
J. Martinez was hired on January 30, 1967, and
resigned on April 24, 1967 He too was subject to a
60-day probationary period. As it appears that Martinez
completed his probationary period, I find that he was a
permanent replacement for a striker
6. Contraction of the work force
General Counsel contends that as of February 18, 1967,
the Respondent unlawfully reduced its work force by nine
employees thereby denying reinstatement to nine striking
employees Respondent agrees that its work force has
been reduced but contends that the contraction is justified
and was not effected for the purpose of denying
employment to strikers Respondent's position is set forth
in the affidavit of Brentano C. Harnisch, which is in
evidence as Appendix A to General Counsel's Exhibit 1(z)
At the resumed hearing, held on April 9, 1968, Harnisch
C. H. GUENTHER & SON, INC.
reaffirmed the contents of the affidavit The substance of
his testimony was not impaired by his answers on
cross-examination and neither the General Counsel nor
the Charging Party introduced any controverting evidence.
In brief, Harnisch's testimony is that following the
commencement of the strike on October 3, 1966, the
Company purchased various labor saving equipment and
dismantled one mill Because of these changes and certain
other changes described in his testimony the Company has
reduced its labor force from its prestrike level of
approximately 96 employees to approximately 83
employees, and since February 18, 1967, the Company's
payroll has not exceeded 83 employees
The General Counsel and the Charging Party do not
dispute the fact that the Company's payroll has been
reduced as testified to by Harnisch, but argue that
Respondent has been awarding excessive amounts of
overtime to its employees and by such means, rather than
by reason of the circumstances described by Harnisch,
Respondent has succeeded in reducing its labor force
However, controverting evidence introduced by
Respondent shows that the overtime work done by the
unit employees in 1967 did not exceed the overtime work
performed by the unit employees in each of the two
preceding years. In rebuttal, the Charging Party argues
that under the terms of the expired collective- bargaining
agreement the Company was not justified in giving any
overtime because the contract contained a provision
prohibiting overtime work when there are employees in a
layoff status 11 There are several defects in Charging
Party's argument. First, Charging Party has not shown
why the Company was obliged to abide by this provision
of the contract after the agreement had expired. Second,
the provision in question relates to layoffs and does not
purport to apply to employees who have not been
reinstated to their jobs following the termination of the
strike Third, the expired contract provides as an
exception that overtime may be awarded "when it is
necessary in order to complete deliveries and work which
would not normally require the employment of more
men " It is Harnisch's testimony, which is substantially
uncontradicted, that since February 6, 1967, when the
strike terminated, overtime has been awarded on largely
the same basis as it was given prior to the strike, that
because of fluctuations of work load the Company
generally is unable to anticipate when overtime will be
necessary and, on the whole, overtime has been awarded
on a daily basis in order to dispose of day-to-day
accumulations of work Thus, it would appear that the
exception would be applicable
An acceptable justification, mentioned in the Fleetwood
Trailer case, for failure to rehire striking employees is that
"the striker's job has been eliminated for substantial and
bona fide reasons other than considerations relating to
labor relations for example, `the need to adapt to changes
in business conditions or to improve efficiency.' " I find,
contrary to General Counsel, that Respondent has
established a nondiscriminatory business justification for
having reduced its complement of employees since the
commencement of the strike and that it has not unlawfully
"Reference is to Section 3(f) of the expired contract which provided
"There shall be no overtime work in any particular department during any
week when employees with seniority in such department are laid off except
in cases of breakdowns , emergencies , and when it is necessary in order to
complete deliveries and work which would not normally require the
employment of more men "
1213
failed to reinstate strikers, as a result of such contraction
of its work force
7 Alleged discrimination against strikers as
applicants for employment
General Counsel contends that Respondent violated the
Act by failing "to recall and reinstate 6 strikers between
May 3 and August 4, 1967, when employees hired during
the strike left Respondent ' s employment , or alternatively
at the time Respondent hired 6 new untrained unskilled
employees " General Counsel makes two arguments in
support of this position His first argument is that
"Respondent failed to establish that it permanently
replaced strikers " However, I have found , contrary to
General Counsel , that the persons who were hired during
the strike were hired as permanent employees His second
argument is as follows
The parties stipulated that the Respondent hired new
employees in May 1967 and thereafter These
employees were hired at the trainee rate of $1 67 and
were untrained and unskilled (GC EX 21(g)-21 (ee))
General Counsel urges the Trial Examiner to find
that 6 strikers were entitled to the job vacancies which
were created on the dates they became available or
alternatively on the dates Respondent hired new,
untrained and unskilled employees to fill these
vacancies
The foregoing argument furnishes no basis for finding that
Respondent has discriminated against former striking
employees in the period between May 3 and August 4,
1967 23 As the record suggests no other basis for this
alleged violation of the Act on the part of the Respondent,
I shall recommend that the complaint be dismissed in this
respect Z'
8 Discriminations against Robles and Villarreal
Respondent reemployed two strikers , Simon C Robles
and Faustino Villarreal on July 5 and 10, 1967,
respectively . Each was reinstated to his former position
and when rehired was given his former seniority and
fringe benefits , such as vacation privileges About July 17,
1967, Harnisch separately informed Robles and Villarreal
that he had made an error and should have treated them
as new employees Accordingly , he advised each that his
seniority and other perquisites which normally attached to
seniority would be withdrawn and each would thereafter
be treated as a new employee . Robles testified that
Harnisch explained to him, "the lawyer said that there
was a new law and that you have to fill out an application
and start like a new man " Similarly, Villarreal testified
that Harnisch explained to him, "I want you to know that
we have some kind of a new law or a new technicality and
I am sorry , but I can ' t give you your seniority and
vacations like before . But you can keep your old job "
Harnisch offered no explanation for the Company's
action in reducing the seniority and withdrawing the
attendant privileges and perquisites of Robles and
Villarreal. In this regard Harnisch testified, "I made a
mistake on it, it wasn't right And I admit that mistake "
"The argument advanced by the Charging Party is essentially no
different than the argument made by General Counsel
""Permanently replaced economic strikers are not entitled to
preferential treatment in hiring" Daykin, The Distinction Between
Economic and Unfair Labor Practice Strikes , 12 Labor Law Journal 189,
194 (March 1961 ), Brown and Root , Inc, 132 NLRB 486, 493-494,
521-522
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He failed to describe or explain the nature of his mistake.
Absent an adequate or acceptable explanation on
Respondent's part for the action taken against Robles and
Villarreal the only reasonable inference is that it was
because of their prior union or strike activities or because
of Respondent's concern about its defenses to the pending
unfair labor practice charges Certainly, if there was a
nondiscriminatory reason for the Company's action it
would have given such reason at the hearing Accordingly,
I find, as alleged in the complaint, that the Respondent
has unlawfully discriminated against Robles and Villarreal
by reason of the reduction in their seniority and the
reduction or withdrawal of their fringe benefits and has
thereby violated Section 8( a)(1) and (3) of the Act
D Conclusions Regard'ng Respondent's Alleged
Refusals to Bargain
The principles applicable hereto have been enunciated
by the Board in Celanese Corporation of America, 95
NLRB 664 The Board there stated that the majority
status of a certified union is presumed to continue even
after the first year of the certificate has elapsed but that
such presumption is rebuttable In such cases
"[c]ompetent evidence may be introduced to demonstrate
that, in [act, the union did not represent a majority of the
employees at the time of the alleged refusal to bargain A
direct corollary of this proposition is that after the
certificate is a year old, as in cases where there is no
certificate, the employer can, without violating the Act,
refuse to bargain with a union on the ground that it
doubts the Union's majority, provided that the doubt is in
good faith " The measure of good faith is explained by the
Board as follows
By its very nature, the issue of whether an employer
has questioned a union's majority in good faith cannot
be resolved by resort to any simple formula. It can only
be answered in the light of the totality of all the
circumstances involved in a particular case But among
such circumstances, two factors would seem to be
essential prerequisites to any finding that the employer
raised the majority issue in good faith in cases in which
a union had been certified. There must, first of all, have
been some reasonable grounds for believing that the
union had lost its majority status since its certification.
And, secondly, the majority issue must not have been
raised by the employer in a context of illegal antiunion
activities, or other conduct by the employer aimed at
causing disaffection from the union or indicating that in
raising the majority issue the employer was merely
seeking to gain time in which to undermine the union.
The circumstances here disclose the absence of good
faith on the Company's part. Despite the many years of
dealings between the Company and the Union at no time
following the termination of the strike did any
representative of the Company inform the Union that it
questioned the Union's majority Furthermore, it ignored
almost all the communications that it received from the
Union. Had the Company in good faith sought to
discharge its obligations under the Act and had the
Company genuinely believed that during the strike the
Union had lost its status as majority representative and
the Union no longer was entitled to represent its
employees, the Respondent would have pursued a different
course of action First, the Company would have advised
the Union that it doubted the Union's majority.35 Second,
the Company might have filed a petition with the Board
to resolve these doubts 16 And finally, the Company would
not illegally have denied reinstatement to strikers. From
the circumstances here, a reasonable inference can be
drawn, and I so find, that the Respondent was determined
to oust the Union as the representative of its employees
and was prepared to pursue such objective regardless of
the statutory rights of its employees and regardless of the
collective-bargaining obligations imposed on it by the Act.
I find, in agreement with the General Counsel, that
Respondent did not raise the issue of the Union's
continuing majority in good faith and that since February
6, 1967, Respondent unlawfully has refused to bargain
collectively with the Union in violation of Section 8(a)(1)
and (5) of the Act.E7
The complaint alleges, and I find, that Respondent
failed to furnish to the Union information requested by
the Union in the various letters, described above Its
failure to furnish such information was a further neglect
on the part of the Company to observe its obligations
under the Act and it thereby violated Section 8(a)(1) and
(5) of the Act
While the Company does not deny that after February
6, 1967, it ceased consulting with the Union and dealing
with the Union about matters relating to the terms and
conditions of employment of its employees, the General
Counsel has not proved any unlawful unilateral acts on
the part of the Company 18 However, the order
recommended herein that the Company bargain
collectively with the Union contemplates that the
Company will not take unlawful unilateral action with
respect to any term or conditions of employment of its
employees represented by the Union
""Good-faith doubt would have dictated immediate response stating
candidly the Respondent 's position " N L R B v Howe Scale Co , 311
F 2d 502, 505 (C A 7) Accord Makela Welding, Inc v N L R B, 387
F 2d 40, 43 (C A 6), Sakrete of California, Inc v N L R B , 332 F 2d 902
(CA 9), fn 10
"See Ray Brooks v N L R B, 348 U S 96, 103, and in 18
"See N L R B v Gulfmont Hotel Company, 362 F 2d 588 (C A 5)
Respondent argues that because on February 6, 1967, the strike
replacements plus the employees who did not join the strike exceeded a
majority of its normal payroll , the Company necessarily "was in a good
faith doubt of a majority status of the Union by 61 employees out of a
pre-strike force of 96 " However, "whether the Respondent violated
Section 8 (aX5) of the Act depends not on whether there was sufficient
evidence to rebut the presumption of the Union's continuing majority
status or to demonstrate that the Union in fact did not represent the
majority of the employees , but upon whether the Employer in good faith
believed that the Union no longer represented the majority of the
employees " Celanese Corporation of America , 95 NLRB 664, 671 Cf
Stoner Rubber Company Inc, 123 NLRB 1440, 1445, 1447-51, Mission
Manufacturing Company , 128 NLRB 275, 293, Old Line Life Insurance
Company of America, 96 NLRB 499
"General Counsel contends that the Company abolished jobs without
giving the Union advance notice The record shows that the Company did
not abolish any classifications of work but merely contracted its work
force The only specific job which has been eliminated is that of city
delivery driver (The expired contract did not recognize city delivery drivers
as a separate job classification According to the contract there were only
three job classifications in the delivery department , truck drivers, truck
helpers , and dockmen ) During the strike the Company discontinued
making certain city deliveries with its own vehicles and did not resume
such deliveries after the strike ended Insufficient evidence was adduced to
establish that under applicable principles the Company was obliged to
notify and to bargain with the Union before it might lawfully take such
action First, although the Company no longer employs city delivery
drivers, under the terms of the expired contract city delivery drivers and
long haul drivers were included in a single department and were treated
without distinction for purposes of seniority, layoff , and recall , and the
Company purportedly continues to observe this provision of the expired
contract Thus, the abandonment of city deliveries did not result in the
elimination of any classification of job (In the case of Frank Samudio,
C H. GUENTHER & SON, INC. 1215
E The Procedural Defenses
Respondent has interposed an affirmative defense in
each of these cases. In Case 23-CA-2629 Respondent
alleges that the matters set forth in the amendment to the
complaint go "outside the scope of the original charge[s]."
This contention is not well founded because the charges in
said case include the names of the employees who, in the
amendment to the complaint, are alleged to have been
discriminated against The complaint as first issued
omitted their names Presumably, the Regional Director's
investigation did not then disclose facts sufficient to
convince him that Respondent had unlawfully refused to
reinstate these employees However, according to counsel
for General Counsel, facts later came to his attention,
primarily through the testimony of Harnisch given at the
first session of the hearing, which prompted the motion to
enlarge the complaint to allege that additional employees
unlawfully had been denied reinstatement. Furthermore,
the discriminations averred in the amendment of the
complaint were "related to and arose out of the same
situation as that conduct alleged to be unlawful in the
timely filed charges. .."29 Accordingly, I find no merit
to the affirmative defense interposed in Case 23-CA-2629
In Case 23-CA-2823 Respondent alleges as an
affirmative defense that the matters set forth therein as
constituting unfair labor practices previously had been
alleged as unfair labor practices in the charges filed in
Case 23-CA-2629 and such charges in effect had been
dismissed I find no merit to this defense. While it is true
that the same persons alleged to have been discriminated
against in the later case are named in the charges which
were filed in the first case, the respective unfair labor
practices differ as to times of occurrence and as to
circumstances In the first case the nature of the charge is
that the Respondent violated the Act by unlawfully
refusing to reinstate certain employees to their former
positions after unconditional applications for
reinstatement had been made. The complaint in the
second case relates to a later period of time and alleges a
different offense, namely, Respondent's alleged unlawful
discrimination against these employees as applicants for
new employment. Accordingly, apart from any question of
legal sufficiency, I find no basis for the contention that in
Case 23-CA-2823 General Counsel is seeking to revive
charges which had been dismissed
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Respondent took the position that the discontinuance of city deliveries
resulted in the elimination of his job However , I have found , contrary to
the Respondent , that the Company ' s failure to reinstate Samudio was a
violation of the Act ) Second , the evidence is not that following the strike
city deliveries have been subcontracted but only that Respondent no longer
sells to such customers
"Stainless Steel Products , Incorporated , 157 NLRB 232, 234 See also
Ferro Stamping and Manufacturing Co, 93 NLRB 1459, 1462-63,
Fremont Hotel , Inc, 162 NLRB 820, Exber, Inc v N L R B, 390 F 2d
127 (C A 9)
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act
Having found that Respondent unlawfully has refused
to bargain collectively with the Union, I shall recommend
that the Respondent be ordered to bargain collectively
with the Union, upon request, in respect to rates of pay,
wages, hours of employment, and other conditions of
employment of the employees in the appropriate unit
described below, and, if an understanding is reached,
embody such understanding in a signed agreement
Having found that the Respondent unlawfully refused
to reinstate Henry Wilburn, Frank Samudio, and Casper
Woytasczyk on February 6, 1967, to their former or to
substantially equivalent positions, I shall recommend that
Respondent offer each of them immediate and full
reinstatement to his former or to a substantially
equivalent position without prejudice to his seniority or
other rights and privileges, and make each of them whole
for any loss of earnings he may have suffered by reason of
the discrimination against him, by payment to him of a
sum of money equal to the amount which he normally
would have earned from February 6, 1967, to the date of
Respondent's offer of reinstatement less his net earnings
during such period. The backpay provided for herein shall
be computed on the basis of calendar quarters, in
accordance with the method prescribed in F W
Woolworth Company, 90 NLRB 289. Interest at the rate
of 6 percent per annum shall be added to such net
backpay and shall be computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716
I have found that Respondent unlawfully failed to recall
to work a striking employee on each of the following
dates. February 14 and 20 and March 2, 1967. Following
the termination of the strike Respondent, for the most
part, recalled striking employees to work in accordance
with the applicable provisions of the expired
collective-bargaining agreement. This was a fair and
nondiscriminatory method. It is not feasible on the record
before me to determine which striker would have been
recalled to work on each of the three days and precisely
which jobs they would have been given It does not appear
that the employees who are named in the applicable
sections of the complaint in Case 23-CA-2629 are
necessarily the ones who would have been recalled
Accordingly, I shall recommend that the selection of the
specific strikers who shall be offered such reinstatement
and backpay shall be determined in the compliance stage
of this proceeding by appropriate application of the recall
provisions of the 1964-66 contract between the Company
and the Union I shall recommend that Respondent offer
each such employee immediate and full reinstatement to
his former or to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make each of them whole for any loss of
earnings he may have suffered by reason of the
discrimination against him, by payment to him of a sum
of money equal to that which he normally would have
earned from the date of the discrimination against him to
the date of Respondent's offer of reinstatement less his net
earnings during such period The backpay provided for
herein shall be computed on the basis of calendar
quarters, in accordance with the method prescribed in F
W Woolworth Company, 90 NLRB 289. Interest at the
rate of 6 percent per annum shall be added to such net
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backpay and shall be computed in the manner set forth in
Isis Plumbing & Heating Co ., 138 NLRB 716.
I have found that Respondent unlawfully discriminated
against Simon C. Robles and Faustino Villarreal on July
17, 1967 The discrimination against each of them arises
from the fact that on July 17, 1967, Respondent
unlawfully reduced their seniority and withdrew or
reduced various fringe benefits which had been accorded
to them when they were rehired earlier the same month
Accordingly, I shall recommend that the Respondent
restore to Robles and to Villarreal the seniority and fringe
benefits which they otherwise would have enjoyed but for
Respondent ' s discrimination against them . I shall
recommend that Respondent also make each of them
whole for any losses he may have suffered by reason of
the discrimination against him with interest on the
monetary amount and/or monetary equivalent of such
losses at the rate of 6 percent per annum.
Respondent ' s unlawful activities, including its
discriminatory failures to reinstate employees who
participated in the strike which began on October 3, 1966,
go to the very heart of the Act and indicate a purpose to
defeat self-organization of its employees . The unfair labor
practices committed by Respondent are potentially related
to other unfair labor practices proscribed by the Act, and
the danger of their commission in the future is to be
anticipated from Respondent ' s conduct in the past. The
preventive purpose of the Act will be thwarted unless the
Recommended Order herein is coextensive with the threat.
Accordingly, in order to make effective the interdependent
guarantees of Section 7 and thus effectuate the policies of
the Act, an order requiring Respondent to cease and desist
from in any manner infringing upon the rights of
employees guaranteed in the Act is deemed necessary
N L.R B. v Express Publishing Company, 312 U.S. 426,
N L.R.B v. Entwistle Mfg Co, 120 F.2d 532 (C A. 4).
Upon the basis of the foregoing findings of fact and
upon the entire record in this case , I make the following
CONCLUSIONS OF LAW
1. All Respondent's production, maintenance,
warehouse and delivery employees on an hourly wage
basis, excluding office and clerical employees, guards,
watchmen, professional employees and supervisors as
defined by the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
2. Brewery Workers Local Union No 110, since
February 6, 1967, and at all times material herein, has
been the exclusive collective-bargaining representative,
within the meaning of Section 9(a) of the Act, of the
employees in the above-described unit.
3. By refusing, on and after February 6, 1967, to
bargain collectively with the Union as the exclusive
representative of the employees in the aforesaid
appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
4 By refusing and failing, since February 6, 1967, to
furnish the Union as the exclusive representative of the
employees in the aforesaid appropriate unit with
information relevant to the conduct of
collective-bargaining negotiations, Respondent has
engaged in and is engaging in further unfair labor
practices within the meaning of Section 8(a)(5) of the Act
5 By discriminating in regard to the reinstatement,
tenure of employment and conditions of employment of
employees who participated in the strike by the Union
against the Respondent, which commenced on October 3,
1966, thereby discouraging membership in the Union,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
6. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
7 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Respondent has not engaged in any violations of the
Act by reason of conduct alleged in the complaints to
have constituted unfair labor practices except insofar as
such conduct hereinabove has been found to violate
Section 8(a)(1), (3), or (5) of the Act
[Recommended Order omitted from publication ]