Shamrock Dairy, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1957

119 N.L.R.B. 998 (N.L.R.B. 1957)

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By entering into an unwritten understanding, arrangement, and agreement re-
quiring membership in the Union as a condition of employment of journeyman
mailers, and by maintaining and enforcing an employment practice in accordance
therewith, the, Respondent Company engaged in unfair labor practices within the
meaning of Section 8 ( a) (1) and (3) of the Act, and the Repondent Union engaged
in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
4. The Respondents have not engaged in unfair labor practices by reason 'of the
other allegations contained in the complaint.
[Recommendations omitted from publication.]
Shamrock Dairy, Inc., Shamrock Dairy of Phoenix , Inc., and
Shamrock Milk Transport Co. and International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America,-Local Union No. 310 .1 Case No. 21-CA-2292. Decem-
ber 16,1957
DECISION AND ORDER
On December 27, 1956, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent, Shamrock Dairy, Inc., had engaged in and was
engaging in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter the General Counsel, the Respondent, and certain Inter-
venors' filed exceptions to the Intermediate Report, and they and
the Charging Party filed briefs.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman Leedom
and Members Murdock and Bean].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
1 The Board having been notified by the AFL-CIO that it deems the Teamsters ' certifi-
cate of affiliation revoked by convention action, the identification of this union is hereby
amended.
"The Intervenors are 46 truckdrivers who signed individual contracts with the Re-
spondent which purportedly converted the drivers from employees to independent con-
tractors. The complaint alleged that the Respondent, while under contract with the
Union, the Charging Party, refused to bargain by entering into these individual contracts,
and unlawfully discharged certain drivers who did not sign such contracts . At the hear-
ing, the Intervenors sought to intervene to protect their interests under the individual
contracts The Trial Examiner denied intervention on the ground that the instant pro-
ceeding was restricted to enforcement of public rights and that any Board order would
not preclude the assertion of any rights of the Intervenors in a proper forum. The
Intervenors excepted to this ruling. The Trial Examiner's ruling was proper. National
Licorice Company v. N. L. R. B., 309 U. S. 350, 363-366.
3 The Respondent's request for oral argument is hereby denied as the record , exceptions,
and briefs , in our opinion , adequately present the issues and positions of the parties.
119 NLRB No. 134.
SHAMROCK DAIRY, INC. 999
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent
herewith.
The essential facts in this case are not in dispute. As found
by the Trial Examiner, they are in substance as follows.
Up to the time of the events in this case, the Union had been
recognized by the Respondent since 1937. Their last contract was
made in October 1953, to run until October 1, 1955.4
About the middle of July 1955, without notice to the Union, the
Respondent, a dairy, instituted a so-called independent distributor-
ship plan under which its milk routes and its trucks would be sold to
its drivers and operated by them purportedly as independent con-
tractors under individual contracts, as more fully set forth hereinafter.
All but about a handful of the Respondent's approximately 70 drivers
signed such contracts by October 1955.
When the Union learned of the establishment of this plan, it dis-
patched a letter to the Respondent, dated July 29, 1955, referring to
its "recent action" as a breach of the existing agreement 5 and stating
that, unless the Respondent was willing to meet with the Union "to
rectify this situation," the Union would be "forced to take necessary
action." The Respondent did not reply to this letter. On August 2,
1955, the Union filed charges in which it complained that the Respond-
ent bypassed the Union in entering into the individual contracts
with the employees.
The Union did nothing more until about September 8, 1955, when it
sent to the Respondent proposed amendments to the existing contract
to be put into effect upon its expiration on October 1, 1955.
The Respondent met with the Union on October 3, 1955. At this
meeting, the Respondent submitted a proposal under which the Re-
spondent would not recognize the Union with respect to those drivers
who had signed individual contracts. The meeting adjourned when
the Union's representative stated that the Union was not in a position
to engage in negotiations as the Union's lawyer was out of town, and
that the Union would meet with the Respondent when the Union's
4 The 1953 contract, like prior contracts, covered other employers as well as the
Respondent. The 1953 contract, which was in existence at the time of the alleged refusal
to bargain in this case, described the several employers as "the Company" and extended
"sole" recognition to the Union for "all . . . drivers and . . . plantmen employed by said
Company." However, the complaint alleged as appropriate a unit consisting solely of the
Respondent's employees, and the Respondent's answer admitted that it contracted with
respect to such unit in the 1953 contract. Under the circumstances, we find that the
Respondent accorded the Union exclusive recognition as the representative of the Re-
spondent's employees in the 1953 contract.
5 The 1953 contract provided : ". . . no employee shall be required to make any verbal
or written contract which in any way conflicts with the articles of this Agreement."
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lawyer became available. The Union did not request another meeting
thereafter, and no further bargaining meeting has taken place.
On the same day, October 3, 1955, the Respondent notified six
drivers, who had not signed individual contracts, that their services
were no longer required as they had shown disinterest in purchasing
a milk route, and they were thus discharged.
The complaint herein alleged in substance that the Respondent re-
fused to bargain with the Union by entering into individual contracts
of employment with its employees 6 and that the Respondent failed
and refused and still refuses to bargain with the Union. It further
alleged in substance that the discharges of the six drivers were
unlawful.
Concluding that the Union was the majority representative of em-
ployees in an appropriate unit which included the drivers and that the
individual contracts were contracts of employment, the Trial Ex-
aminer found that the Respondent violated Section 8 (a) (5) of the
Act. In so finding, he reasoned that, by entering into the individual
employment contracts with the drivers, there was a failure to comply
with Section 8 (d) of the Act and a denial of the right of employees to
be represented by a union of their own choosing, and that, by propos-
ing not to include the drivers in any negotiations, as well as by its
action before in dealing with them as individuals, the Respondent
manifested an intent not to bargain concerning the drivers.
The Trial Examiner also found that, by discharging the six driv-
ers, the Respondent violated Section 8 (a) (3) of the Act. He
reasoned that the six drivers had the right to refuse to deal with the
Respondent on an individual basis, that they were exercising such right
in refusing to enter into individual contracts, and that they were
discharged for so doing.'
The Respondent contends that the complaint should be dismissed
because the General Counsel failed to sustain the burden of proving
that the Union was the majority representative of the Respondent's
employees at the time of the alleged unfair labor practices. The
Trial Examiner found that the Union was the majority representative
at all times material. He reasoned :
Presumably, the Union represented a majority of the Respond-
ent's employees in the appropriate unit at the time that the 1953
contract was made and there is no evidence tending to indicate
e There is no allegation that the institution of the so -called independent distributorship
plan was motivated by a desire not to deal with the Union , and the record evidence does
not support such an allegation.
7 The Trial Examiner also found that, by "making credits in the retirement fund
immediately available to those who purchased routes," the Respondent independently
violated Section 8 (a) (1). There is no such allegation in the complaint and the record
evidence does not support such an allegation.
SHAMROCK DAIRY, INC. 1001
that the Union has since in any way lost its status as such repre-
sentative except possibly by reason of Respondent's unfair labor
practices.
The Respondent asserts that there is no evidence that the Union
represented a majority at the time of the alleged refusal to bargain
and that the Trial Examiner erred as a matter of law in basing his
finding of majority status upon a presumption arising out of the 1953
contract. It is true that, apart from the 1953 contract, there is no
evidence that the Union had majority status. It is also true that, if
the Union had majority status at the time of the execution of the
1953 contract, there is no showing that the Union lost that status in
the period intervening between that time and the institution of the
individual contract plan in July 1955. We are thus faced with the
issue whether the fact that the Respondent extended sole recognition
to the Union in the October 1953 contract required the Respondent
to continue recognizing the Union as majority representative at the
time of the alleged refusal to bargain which occurred during the term
of that contract.
To support its contention, the Respondent relies principally on
N. L. R. B. v. Dorsey Trailers, Inc., 179 F. 2d 589 (C. A. 5), in which
that court reversed a Board finding of majority status.' There, in
December 1946, the employer refused to discuss grievances with a
union which had been certified in 1944. Such refusal occurred in
point of time after execution of a contract in September 1946, and
also after the union had engaged in a strike in breach of the contract,
the union membership had voted to disband the union and the
employer had accepted an offer of the union's president to cancel the
contract. In that case, unlike here, the contract was no longer in
existence at the time of the alleged refusal to bargain. We do not
regard the court's decision in the Dorsey case as applicable here.
We agree with the Trial Examiner. In this connection, we note
that, in Hexton Furniture Company, 111 NLRB 342, the Board found
that, even where a majority of the employees had withdrawn from a
union (which had been certified in October 1952), an employer refused
to bargain in December 1953, in violation of Section 8 (a) (5), by
withdrawing recognition from the union midway during the term of
the contract. The Board reasoned that the employer was under a
duty to bargain with the union for the period during which the con-
8 In finding in that case that the union 's presumptive majority under an 18-month-old
certification should be given continued effect, the Board pointed to the fact that the
employer had conceded the union's majority status, in effect, by execution of a contract
about 2 months before the alleged refusal to bargain. The Board there stated (80 NLRB
at p. 485) :
Indeed under established Board precedent, this contract would normally be regarded
as a bar to a representation proceeding arising at the time of the strike and would
necessarily preserve the union 's majority status as of that time.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract was a bar to a redetermination of the union's bargaining status .9
and that the defection of the employees did not preclude the contract
from operating as a bar at the time of the refusal to bargain.
Although the Union in this case has never been certified as the repre-
sentative of the Respondent's employees, the Respondent extended
recognition to the Union as their exclusive representative in the 1953
contract. This the Respondent was forbidden by law to do if the
Union did not have majority status at the time of the execution of the
contract. It would be improper to presume that the Respondent
engaged in unlawful conduct by execution of the 1953 contract.
Rather, we presume that the Respondent acted lawfully and that the
Union, which had been the recognized bargaining representative of the
Respondent's employees since 1937, had majority status at the time of
the execution of the 1953 contract, as the Respondent, in effect,
admitted by granting sole recognition. There is no evidence to rebut
this presumption. Accordingly, the Union was the majority repre-
sentative of the Respondent's employees at the time of the execution
of the 1953 contract. We further find that the Union enjoyed such
status for the duration of the contract. By virtue of the existence
of the contract, the Union was entitled to such recognition for the
period during which the contract was a bar to a redetermination of
its bargaining status.10 At the time of the inception of the alleged
refusal to bargain in July 1955, the 1953 contract had about 21/2
months to run. No reason appears why that contract then would not
have been a bar to a redetermination of the Union's bargaining status
for the remaining period of the contract. On the basis of the fore-
going, we conclude that it was incumbent upon the Respondent to
treat with the Union as the majority representative of the employees
involved herein at the time of the alleged refusal to bargain.
As to whether the individual contracts by their terms preserved the
employee status of the drivers, the facts are in substance as follows :
Prior to July 1955, all the Respondent's truckdrivers, who delivered
milk and other dairy products in and near Tucson, Arizona, to retail
and wholesale customers, were admittedly employees covered by the
1953 contract with the Union. At that time, they worked under the
supervision of route supervisors who directed the drivers' activities,
they were not liable for credit extended within the limits established
by the Respondent, they made no payment for the Respondent's trucks
which they used, and they received as earnings a guaranteed minimum
salary plus commissions.
s Accord : Royal Cotton Mill Company, Inc., 109 NLRB 186; Sanson Hosiery Mills,
Inc., 92 NLRB 1102, enfd. on another ground, 195 F. 2d 350, cert. denied 344 U. S. 863.
Cf., also , Vanette Hosiery, 114 NLRB 1107, 1124 ; Hugh J. Baker & Company, et al.,
112 NLRB 828, 835.
10 See footnote 9.
SHAMROCK DAIRY, INC. 1003
As stated above, about the middle of July 1955, the Respondent
instituted the so-called independent distributorship plan under which
the milk routes and the trucks would be sold to the individual drivers
who would receive as earnings the difference between the price charged
to them for the product and the price at which they sold it to
their customers. By October 3, 1955, all but a few of the Respondent's
truckdrivers signed individual distributorship contracts.
The individual contracts gave the driver the exclusive right to
distribute the Respondent's products within a described territory;
the driver agreed to purchase for an agreed sum the "exclusive right
to sell" to the Respondent's customers already existing in the territory
and. to pay in. cash, at the time of delivery to him, for the products
at stipulated prices, which the respondent could change at any time
upon giving a written notice. The driver agreed that he would
not sell any such products outside his territory and that he would
not sell the product of any person other than the Respondent within
that territory. The driver further agreed to furnish, operate, and
maintain his own truck, and to insure the truck for property damage
and public liability in certain amounts, the insurance policies to be
approved in advance by the Respondent. If the truck broke down
and the driver elected not to use a relief truck belonging to the Re-
spondent, the agreement provided in that event that the driver
could not use any other vehicle without the Respondent's approval.
The individual contracts also provided that the driver was to
make deliveries in his territory on certain days and within such
hours as the Respondent shall designate. The driver agreed to be
diligent at all times in promoting sales of the Respondent's products,
to well and faithfully serve any and all retail customers for such
products in his territory and, in the case of retail drivers, any whole-
sale customers of the Respondent in the territory which the Re-
spondent may instruct the driver to serve. The driver also agreed
to comply with all laws, rules, and regulations relating to health
and sanitation, and to keep himself, his truck, and clothes in a neat
and tidy appearance, in keeping with the standards followed by
the Respondent in the conduct and operation of its business. The
contract also provided that, in the event of accident, strike, or other
emergency, which shall interfere or threaten to interfere with dis-
tribution of the Respondent's products in the driver's territory, the
Respondent, without notice, could take over the route, equipment,
and business and operate it during the emergency.
The individual contract granted the Respondent an unconditional
option to purchase at any time from the driver, on 30 days' notice,
the "entire distribution business" of the driver, including truck, route,
existing accounts receivable, clientele, and goodwill, on the basis of
an agreed price or formula. The driver agreed that he could not
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sell or assign his business or any rights under the agreement without
the written consent of the Respondent, and that, in the event the
Respondent exercised the option to purchase the business, the driver
could not reenter the business of distributing dairy products in any
territory which he had serviced for a period of 2 years.
In actual operation, the following changes have occurred since
institution of the individual contract plan : The route supervisors
have been eliminated; they now act only as sales promotion men
and no longer supervise the drivers. Before the changeover, drivers
were required to attend training classes; afterwards, they were not.
Before, they were required to make a certain number of solicitations
of new accounts; afterward, no such requirement was imposed. Some
drivers now purchase their own advertising media and have their
names painted on the trucks. Some drivers sell products which are
not handled by the Respondent. The trucks are now their own
property and they pay the expense of maintaining them. The drivers
carry their own truck insurance and pay a city license tax for ped-
dlers to the city of Tucson. Before, all the drivers were required to
wear a uniform; now, although they wear the same or similar type
of uniform, they are not required to do so. Although the Respondent
posted a list of suggested prices for the driver to follow, the drivers
are free under the terms of the individual contracts to set their own
prices. Since institution of the individual contract plan, the Re-
spondent has not made deductions from payments to drivers for
income tax purposes, and has not paid social security, unemployment
compensation, or workmen's compensation taxes.
Upon essentially these facts, the Trial Examiner concluded that
the "Respondent's right to control its drivers has not been diminished
by reason of the individual contracts and that the drivers are now
and at all times have been employees of the Respondent within the
meaning of the Act."
In reaching this conclusion, the Trial Examiner regarded the fact
that the Respondent had reserved the right to terminate the contracts
at any time for any reason as the core of the matter. According to the
Trial Examiner, by "wielding the club of unilateral decision to ter-
minate the contract, the Respondent can impose upon these drivers
any conditions that could have been imposed when they were in the
employee relationship," and thus has the same control over the drivers
as it had before institution of the individual contract plan. As stated
in his separate opinion, Member Murdock agrees with the Trial
Examiner's conclusion. However, the Chairman disagrees for the
following reasons : While reservation of the option to terminate the
contracts may be a factor indicating retention of control, this factor
is not conclusive as an admittedly independent contractor relation-
ship may be subject to termination at will if the contract so provides.
SHAMROCK DAIRY, INC. 1005
The Board has determined that an independent contractual relation-
ship existed even where the agreements were for an indefinite period
of time and could be terminated by either party at any time with or
without cause."
Congress intended that the Board recognize as employees those who
"work for wages or salaries under direct supervision," and as inde-
pendent contractors those who "undertake to do a job for a price,
decide how the work will be done, usually hire others to do the work,
and depend for their income not upon wages, but upon the difference
between what they pay for goods, materials and labor and what they
receive for the end result, that is, upon profit." i3
Applying these standards to this case, although some elements of
the relationship between the drivers and the Respondent may suggest
an employment relationship, the Chairman is persuaded that the
drivers became independent contractors under the individual con-
tracts. The work of the drivers is not now supervised by the Respond-
ent. They have the right to determine for themselves the prices at
which they resell to their customers. The drivers' earnings are deter-
mined by the difference between what they pay for the product and
the return from its sale. They now own their own trucks and bear
the expense of their repair and maintenance. The drivers hire and
pay their own vacation substitute. They pay certain taxes which
would not be payable if they were still employees, and the Respondent
does not carry them on its payroll or pay unemployment compensa-
tion and other similar taxes for them. Under the circumstances,
Chairman Leedom concludes, contrary to the Trial Examiner, that
the drivers became independent contractors and ceased to be employees
under the terms of the individual contracts. Accordingly, Chairman
Leedom finds no violation of Section 8 (a) (5) predicated on the Trial
Examiner's erroneous conclusion that the individual contracts
amounted to contracts of employment and did not create an inde-
pendent contractor status.l3
Nonetheless, even though execution of the individual contracts
changed the status of the drivers who signed them to that of inde-
pendent contractors, Chairman Leedom finds and Member Murdock
agrees in this context that the Respondent refused to bargain within
the meaning of Section 8 (a) (5) of the Act. The Respondent adopted
the independent distributorship plan without notice to the Union and
entered into individual contracts with the drivers without affording
the Union, who was the exclusive bargaining representative of the
11 Sinclair Refining Company, 93 NLRB 1115.
'' H. Rept. 245, 80th Cong., 1st sess., Apr. 11, 1947, p. 18.
"As stated above, the Trial Examiner also reasoned that the Respondent's conduct
constituted an. unlawful refusal to bargain in that it failed to comply with Section 8 (d).
As he hereinafter finds that the Respondent violated Section 8 ( a) (5) on another ground
the Chairman finds it unnecessary to pass on this question.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, an opportunity to bargain with respect to the tenure of the
employees to be affected thereby. _ Thereafter, the Respondent ignored
the Union's letter requesting rectification of the change and notified
the Union that the Respondent would not bargain with respect to
those drivers who had signed individual contracts. By such conduct
the Respondent failed to fulfill its obligation to bargain collectively.
This obligation includes the duty to notify the collective-bargaining
representative and to afford such representative an opportunity to
bargain with respect to a contemplated change concerning the tenure
of the employees and their conditions of employment.
Such a duty has been imposed in cases like Brown Truck and
Trailer Manufacturing Company, Inc., et al., 106 NLRB 999." There,
the employer moved its plant from Charlotte to Monroe, North Caro-
lina, for economic reasons, discharged its Charlotte employees and
did not employ them at Monroe. As the closing of the plant and the
transfer of its operations to Monroe were not motivated by an inten-
tion to avoid collective bargaining with, or to discourage membership
in, the union, but were predicated rather on economic considerations,
the Board found that the employer did not violate Section 8 (a) (3)
by discharging the Charlotte employees at the time of the shutdown
of the Charlotte plant or by its failure to employ them subsequently at
Monroe. However, the Board found a violation of Section 8 (a) (5)
in that (106 NLRB at.p. 1000) :
. . . the good faith discharge of the Brown Company's obligation
to the employees' statutory bargaining representative required
the former, at least, to advise the Union of the contemplated move
and to give the Union the opportunity to bargain with respect to
the contemplated move as it affected the employees, such as the
placement of the Charlotte employees in positions at Monroe.
Of course, the instant case does not involve a shutdown and ,transfer of
plant operations to another location. But, as the individual contracts
have changed the status of the drivers to independent contractors, the
effect of the individual contracts, like the discharges in the Brown
Truck case, was to terminate the employee status of the drivers. Here,
as in Brown Truck, the employer did not give the union an opportun-
ity to bargain with respect to the contemplated change as it affected
the tenure of the employees. If the Respondent had done so, the
Union might have persuaded the Respondent not to adopt the inde-
pendent distributorship plan. Accordingly, we conclude -that the
Union was entitled to this opportunity and that the Respondent
unlawfully failed and refused to accord such opportunity to the
Union.
14 See also, Diaper Jean Mfg. Company , 109 NLRB 1045 ; Bickford Shoes, Inc., 109
NLRB ' 1346.
SHAMROCK DAIRY, INC. 1007
The Respondent contends that the Union waived its bargaining
rights with respect to the institution of the independent distributor-
ship plan by not requesting bargaining concerning it, by advising
drivers to consult a lawyer as to whether they should sign the indi-
vidual contracts offered, and by'taking no action other than that out-
lined in the statement of facts above. We find no merit in the waiver
contention. As the Trial Examiner found, the Union made an ade-
quate request to bargain in its letter of July 29, 1955. On August 2,
1955, the Union promptly filed refusal to bargain charges based upon
the institution of that plan. At the meeting of October 3, 1955, the
Respondent expressly stated that it would not recognize the Union
with respect to those drivers who had signed individual contracts and,
as the Trial Examiner found, any attempt by the Union thereafter
to bargain with respect to those drivers would have been futile.
The remaining issue relates to the discharge of the six drivers whose
employment was terminated because they did not sign individual
contracts. The Trial Examiner found that their discharge violated
section 8 (a) (3) on the ground, in substance , that they were thereby
penalized for exercising the right to refrain from individual bargain-
ing. Member Murdock agrees with the Trial Examiner. However,
the Chairman does not agree for the following reasons : The Brown
Truck case, cited supra, is controlling on this question. There,
because the closing of the Charlotte plant and the transfer of its
operations to Monroe were based on economic considerations, the
Board found that the discharge of the Charlotte employees did not
violate Section 8 (a) (3), even though the employer violated Section
8 (a) (5) in failing to give the union an opportunity to bargain with
respect to the contemplated move. The record in the instant case does
not establish that, in discharging the six drivers or in instituting the
independent distributorship system, the Respondent was motivated
by any desire not to bargain with, or to discourage membership in,
the Union. Here, as in Brown Truck, as far as appears, the Respond-
ent engaged in such conduct because of economic considerations. Thus,
the Respondent was free to discharge the six drivers, although, like
in Brown Truck, the Respondent was obligated to bargain with the
Union with respect to the effect of adoption of the independent distrib-
utorship system upon employee tenure . Accordingly , Chairman
Leedom votes to dismiss the allegation of the complaint that the
Respondent violated Section 8 (a) (3) by discharging the six drivers.
For the reasons stated in his separate opinion filed herein Member
Bean would dismiss the complaint in its entirety. As a majority of
the panel does not find that the Respondent violated Section 8 (a) (3)
of the Act, this allegation of the complaint should be dismissed.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
We have found that, by not according the Union an opportunity to
bargain with respect to the adoption of the independent distributor-
ship system as it affected the tenure of the employees, the Respondent
violated Section 8 (a) (5). Member Murdock is of the view, for the
reasons set forth in his separate opinion, that the remedy which
follows does not go far enough to remedy the violation found. How-
ever, he would of course go at least that far, and therefore concurs
in this remedy for the purpose of framing a majority order in the case.
To remedy this violation, we find that it will effectuate the policies
of the Act to require that the Respondent accord the Union such an
opportunity to bargain. Accordingly, we shall order that the
Respondent bargain with the Union as the exclusive representative
of the employees in the appropriate unit, including the employees
who signed individual distributorship contracts, concerning the sub-
ject matter stated above; and we shall enjoin the commission of the
unfair labor practice found through the usual cease and desist pro-
visions in our order.
Pending fulfillment of its obligation to bargain, we shall require
that the Respondent refrain from entering into any new independent
distributorship contract with any person.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Shamrock Dairy,
Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 310, as the exclusive representative of all
regular, relief, and special drivers, and all plant men employed at
the dairy of Shamrock Dairy, Inc., at Tuscon, Arizona, but excluding
all office and clerical employees, guards, and supervisors as defined in
the Act, with respect to adoption or continuance of a system of
product distribution known as the independent distributorship plan
insofar as it affects the tenure of its employees.
(b) Entering into any new independent distributorship contract
with any person unless and until it bargains with the aforesaid labor
organization as stated above.
(c) In any like or similar manner interfering with, restraining,
or coercing its employees in the exercise of the right to self -organiza-
tion, to form labor organizations, to join or assist International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
SHAMROCK DAIRY, INC. 1009
of America, Local Union No. 310, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such rights may
be affected by an agreement requiring membership in-a labor organi-
zation as a condition of employment as authorized in Section.8 (a)
(3) of the Act.
2. Take the following affirmative action, which the Board finds.
will effectuate the policies of the Act:
(a) Bargain, upon request, with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 310, with respect to adoption or continuance of a
system of product distributorship plan insofar as it affects the tenure
of its employees in the aforesaid appropriate unit, in accordance with
the section of this Decision and Order entitled, "The Remedy.'"
(b) Post at its dairy in Tucson, Arizona, copies of the notice
attached hereto as an Appendix.15 Copies of such notice, to be fur-
nished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof and
be maintained by it for sixty (60) consecutive days 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.
(c), Notify the Regional Director for the Twenty-first Region, in
\xrithig, within ten (10) clays from the date of this Order, as to what
steps the Respondent has taken to comply herewith.
IT IS FUR IVER ORDERED that the complaint be, and it hereby is, dis-
Inissed insofar as it alleges that the Respondent violated Section 8 (a)
(3) of the Act. by discharging John Foley, Dave Fgleston, Robert
Pry, Alexander Toro, Frank Koenig, and John Kozacki.
MEMBER MuRDOCK, dissenting in part and concurring in part:
Insofar as Iny vote is essential to a majority finding of a violation
of Section 8 (a) (5) of the Act in this case, I agree with the Chairman
that the Respondent violated that section by its refusal to consult with
the Union concerning the execution of the individual contracts with
its drivers even assuming, as the Chairman finds, that the contracts
changed the status of the drivers from employees to that of inde-
pendent contractors. However, I cannot agree either that the execu-
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
476321-58-vol, 119-65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of these contracts altered the employee-status of these drivers, or
that this limited finding disposes of this case. In my opinion, the
Respondent has committed other violations of Section 8 (a) (5) and
8 (d) of the Act as found by the Trial Examiner, which findings I
believe are fully warranted by the record and merit adoption by the
Board. I would also find, contrary to the Chairman and Member
Bean, that the Respondent violated Section 8 (a) (3) by discharging
those drivers who refused to sign the individual contracts proffered
by the Respondent.
When the Respondent instituted its "independent distributorship
plan," all but six of its drivers executed a contract entitled "dis-
tributor's agreement." This agreement provided that the Respondent
would grant to the drivers the exclusive right to distribute its products
upon the specific terms and conditions set forth in the agreement.
These terms and conditions recite that: (1) In the event that the
Respondent determined that the territory assigned to a driver was
too large for the driver adequately to service, the Respondent at any
time could alter the boundaries of the territory to assure to the
Respondent's satisfaction that customers were properly serviced; (2)
a driver must not sell any product in his territory not manufactured
by Respondent; (3) Respondent would set the prices at which its
products are sold to a driver, and Respondent retained the absolute
right to change or alter those prices; (4) the Respondent would pre-
scribe the times and places at which delivery of its products to the
drivers must be received as well as prescribe the times and places for
delivery of its products to customers; (5) the Respondent reserved
the "continuing, unconditional and irrevocable option to purchase at
any time the entire distribution business" of a driver, including the
truck, at a preestablished price, and that the driver had no right to
sell or assign any rights under the contract without the Respondent's
consent; (6) if the Respondent determined that customers would not
receive prompt delivery of its products because of "any accident, strike,
emergency or any other cause," the Respondent would take over a
driver's route and equipment, without notice to him, and operate and
continue same during those periods; (7) a driver must diligently
and faithfully promote sales of the Respondent's products, . comply
with all laws, rules, and regulations relating to health and sanitation,
and maintain a neat and tidy appearance ; (8) in the event a driver's
truck broke down, the Respondent would furnish a spare truck at no,
expense to the driver except for gasoline and oil; however, if the
driver chose to employ a vehicle other than that provided by the
Respondent, the latter must first approve the use of such vehicle; and
(9) in the event that a driver became incapacitated and was unable
to perform his duties, the driver must select a substitute named
and approved by the Respondent and the driver was required to
SHAMROCK DAIRY, INC. 1011
compensate the substitute at a wage and commission fixed by the
Respondent.
In determining whether an individual is an independent contractor
or an employee within the meaning of the Act, the Board has applied
the common law "right-of-control" test.'6 Under this test, an em-
ployer-employee relationship is deemed to exist where the person for
whom the services in question are performed reserves the right to
control not only the end to be achieved but also the means to be used
in reaching such end. A survey of the foregoing contractual pro-
visions convinces me that the Respondent's drivers, clearly and unmis-
takenly, retained their status as employees notwithstanding the
execution of the individual contracts. I know of no greater indicia of
control over the means by which services are to be performed or the
ends to be accomplished than the right to terminate unilaterally the
employment status of an individual for any cause; the right uni-
laterally to name and appoint substitutes for that individual and to
fix the compensation of such substitutes; the right unilaterally to
determine the times and places at which individual services are to be
performed; and, the right to police the manner in which those services
are rendered. In point of fact, the Court of Appeals for the Third
Circuit, on facts paralleling those herein, found that an employer-
employee relationship existed, noting particularly that the company
in that case reserved the right at all times to repurchase the vehicle
which it had sold to its drivers and to terminate the agreement with
the drivers if they did not perform their duties in such a way as to
further the sale of the company's product." Moreover, the Supreme
Court has intimated that an independent contractor relationship does
not exist if the drivers have no right to hire their helpers and are not
required to deal exclusively in the company's product. 18 So far as I
am concerned, the facts of this case fit squarely within the authoritative
decisions of the courts which hold that contracts of the type here
involved do not convert employees into independent contractors. I
would therefore adopt the Trial Examiner.'s finding, that.the con-
tracts which the drivers in this case executed with the Respondent
did not change their status as employees of the Respondent. In doing
so, I would also adopt his conclusion that the Respondent violated
Section 8 (a) (5) by executing the individual contracts with the
drivers. Like the Trial Examiner, I find that the execution of such
contracts with the drivers who were and remained employees of the
Respondent constituted bargaining with those individual: employees
16 E. g ., Oklahoma Trailer Company, Inc., 99 NLRB 1019, 1022; Nu-Car Carriers, Inc.,
88 NLRB 75, 83, enfd. 189 F. 2d 756 (C. A. 3).
IT N. L. R. B. v. Nu-Car Carriers, Inc., 189 F. 2d 756 (C. A. 3).
18 See Creyvan Lines , Inc. v. Harrison, 156 F. 2d 412 (C. A. 7 ), affd, sub nom . United
States v. Silk, etc., 331 U. S . 704, 719. '
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at a time when they were represented by the Union as their statutory
representative and was in clear violation of the Act.
The Trial Examiner also found that the execution of the individual
contracts by the Respondent at a time when it was in contractual re-
lations with-the. Union was violative of Section 8 (d). The Chairman
finds it unnecessary to pass -upon this issue in view of his. limited
finding that the Respondent violated Section 8 (a) (5) by executing
contracts with its drivers without prior consultation with the Union.
I submit that, in view of the gravity of the Respondent's conduct in
this regard, which offends the basic policy and purpose of the statute,
we are not only under a duty to consider this issue, but are compelled
to find on this record that a violation of Section 8 (d) had occurred
and to afford an appropriate remedy to forestall its recurrence.
Section 8 (d) provides in part that "where there is in effect a col-
lective bargaining contract covering employees in an industry affect-
ing commerce, the duty to bargain collectively shall also mean that..
no party to such contract shall terminate or modify such contract,
unless the party desiring such termination or modification" serves
written notice upon the other party 60 days prior to the expiration
date of the contract; offers to meet with the other party for the
purpose of negotiating a new contract or a contract containing the
proposed modifications; notifies the Federal Mediation and Concilia-
tion Service, and appropriate State or Territorial agencies, in a timely
fashion; and, continues in full force and effect, without strikes or
lockouts, the terms and conditions of the existing contract for a period
of 60 days after such notice is given or until the expiration date of
such contract, whichever occurs later. As the legislative history of
Section 8 (d) discloses, Congress intended by its enactment to insure
that parties to contracts in industries covered by the Act would re-
sort to the processes of collective bargaining to resolve differences
regarding modifications or termination of such contracts rather than
to engage in strikes or other conduct which would hinder the free
flow of commerce. To accomplish this objective, parties to such con-
tracts are obligated by the Act to give appropriate notice of their in-
tention to modify or terminate them and to offer to meet for the pur-
poses of resolving their differences.
At the time when the Respondent instituted its so-called indepen-
dent distributorship plan by executing individual contracts with its
drivers, it was in contractual relations with the Union which was
the statutory bargaining representative of its drivers. That con-
tract specifically provided that "no employee shall be required to make
any verbal or written contract which in any way conflicts with the
articles of this Agreement." When the Respondent coerced its drivers
into executing the individual agreements on pain of discharge, it
seems patently clear that the Respondent was necessarily acting to
SHAMROCK DAIRY, INC. 1013
modify the basic agreement with the Union. However, the Respond-
ent made no attempt.to give timely notice to the Union of its intent to
discard the contract or to offer to meet with the Union to discuss this
determination, nor did it attempt to discharge any of the other duties
imposed upon it by Section 8 (d). I believe its failure to do so consti-
tuted a flagrant'abuse of its obligations under that section and evinced
a total disregard for stability in the collective-bargaining process
which this section was designed to foster. Contrary to the Chairman,
I am convinced that such an abuse should neither go unnoticed nor un-
remedied. I therefore cannot agree with his refusal to consider this
issue.
Nor can I agree with the action of the Chairman and Member
Bean in reversing the Trial Examiner's finding that the Respondent
violated Section 8 (a) (3) by discharging the six drivers who refused
to sign individual contracts with the Respondent. My colleagues take
the position that, because the Respondent was not motivated by anti-
unionism in discharging the men, no violation of the statute may be
found and no remedy may be afforded. To support this conclusion,
my colleagues rely upon the Board's decision in Brown Truck. I
submit that this position is erroneous and that my colleagues in the
majority on this issue have misinterpreted that decision.
If any right is basic under the Act, it is the right of employees to
select a bargaining representative to deal exclusively with their em-
ployer. Section 7 of the Act provides in pertinent part that "Em-
ployees shall have the right to self-organization, to form, join, or as-
sist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection. . . ." [Emphasis supplied.] If this right is to possess any
substance at all, it seems patently clear that employees who have
selected a statutory bargaining 'representative to act on their behalf
.must be protected against the coercion of an employer who seeks to
force them to relinquish this right and engage in individual bargain-
ing on pain of discharge. Moreover, where an employer impinges
upon its employees' right to refrain from individual bargaining and
discharge them for exercising that right, the employer undeniably
discourages membership in the Union which the employees have
selected and the discharges are unquestionably discriminatory. This,
in my opinion, constitutes a classic violation of Section 8 (a) (3)
and makes this case clearly distinguishable from Brown Truck upon
which my colleagues rely.
In the Brown Truck case, the employer closed its plant and trans-
ferred its operations to another installation without prior consulta-
tion with its employees' bargaining representative. Asa consequence,
the employer discharged the employees at the plant which it closed.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While a majority of the Board found that the employer had violated
Section 8 (a) (5) by shutting down operations without consulting the
union , the majority did not find that Section 8 (a) (3) had been
violated by the discharges because no antiunion motivation had been
shown. Unlike the employees in Brown Truck, the six men involved
in this proceeding were discharged, not as a consequence of the re-
moval of a plant or because of the failure of the Respondent to consult
with the Union concerning this removal, but as a consequence of their
exercising a right under the Act to refrain from individual bargaining
with the Respondent. Accordingly, I believe that the Trial Ex-
aminer was right in finding that the discharges were violative of Sec-
tion 8 (a) (3) and in recommending that these six men be reinstated
and awarded back pay.
However, assuming arguendo that my colleagues are correct in find-
ing no violation of Section 8 (a) (3) because of the absence of discrimi-
natory motivation, under sound precedent the Board can and should
order reinstatement and back pay for these individuals as a conse-
quence of the violation of Section 8 (a) (5) which the Respondent has
committed. The award of back pay and reinstatement is not limited
by the Act to those cases in which the Board has found that Section
8 (a) (3) has been violated. Section 1.0 (c) of the Act gives the
Board broad powers to remedy unfair labor practices, and, as the
Supreme Court has pointed out, "The relief which the statute em-
powers the Board to grant is to be adapted to the situation which calls
for redress ." 19 In West Boylston Manufacturing Company of
Alabama,20 the Board heeded this wise admonition and exercised its
remedial powers to order reinstatement and back pay for employees
whom the Board found had not been discriminated against within
the meaning of Section 8 (a) (3), but who, nevertheless, had lost
employment because of a violation of Section 8 (a) (5). In that case,
the employer closed down various departments in its plants for eco-
nomic reasons and laid off its employees. After reopening some of
these departments, the employer, without consulting the union which
represented these employees, proceeded to recall them without regard
to established seniority rights. As a consequence, some employees
who were entitled to jobs were not recalled. The Board found that
the employer violated Section 8 (a) (5) by failing to confer with
the Union concerning the recall of employees, but did not find a
violation of Section 8 (a) (3) because there was no showing that
the method the employer used to recall employees was selected for
discriminatory reasons. Notwithstanding its failure to find a viola-
tion of Section 8 (a) (3), the Board nevertheless under the Section 8
(a) (5) violation ordered the employer to reinstate employees who,
IU N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333.
20 87 NLRB 808.
SHAMROCK DAIRY, INC. 1015
had.not been recalled in accordance with their seniority rights. In
tiddition, the Board ordered payment of wages to those employees
whom the employer failed to offer reinstatement as provided in its
order for a period from 20 days after the date of the order to the date
of offer of employment.
I believe the six drivers in the instant case are entitled to reinstate-
ment and back pay for the period of the Respondent's discrimination
against them. The power to fashion such a remedy has been placed
in our hands. by Congress with the enactment of Section 10 (c). In
my opinion, the Board's decision in West Boylston requires that we
use that power in this case. I therefore dissent from my colleagues'
refusal to fashion such a remedy.
Because I find that the individual contracts which the Respondent
executed with its drivers did not change their status as employees,
and in any event because I would also find that the Respondent violated
Section 8 (a) (5) by bargaining individually with its employees at
a time when they were represented by the Union, I would order the
Respondent to abrogate these contracts and bargain with the Union
before any future attempt to execute such contracts. To remedy this
violation of Section 8 (a) (5), the Chairman would only order the
Respondent to accord the Union an opportunity to bargain with it
concerning the "adoption or continuance" of the existing independent
distributorship contracts as it affected the tenure of its employees, or
the execution of new contracts with other' employees in the unit.
The order pointedly omits to abrogate the contracts which were un-
lawfully arrived at and thus to restore the status quo, and fails to give
any reason for such omission. With respect to the contracts which
the Respondent has already executed with its drivers, the manner of
whose execution has been found by a majority herein to have consti-
tuted a violation of the Act, the Respondent is apparently required by
the order to do no more than discuss with the Union whether it should
abandon the distributorship contracts and restore the former employee
setup.
In my opinion, such an order can hardly operate to remedy ade-
quately the Respondent's violation of Section 8 (a) (5) inasmuch as
it not only fails to put the wrongdoer and the wronged in status quo
ante, but actually permits the former to benefit and retain the fruits
of its wrongdoing. Instead of purging the unfair labor practice the
order merely tells the Respondent to bargain as to whether it should
be purged. It is naive to think that any effective bargaining can take
place at a table where the Respondent is permitted to sit holding the
fruits of its unfair labor practices and need only discuss whether it
should give them up.
In my. view, the only effective way to remedy the Respondent's
violation.of Section 8 (a) (5) is to order the Respondent to abrogate
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contracts which it unlawfully executed with its drivers, regardless
of whether the drivers are deemed to be independent contractors, as
the Chairman believes, or employees, as I find. By so doing, the
parties would then be placed in the same position which they would
have occupied but for the Respondent's unlawful refusal to consult
with the Union concerning these contracts, and effective bargaining
could then take place as it should have initially on the question whether
the individual contract system should be substituted for the former
one. Although objecting to the Chairman's limited remedy for the
reason that it does not go far enough, I, of course, concur with him in
going that far for the purpose of a majority order in this case.
MEMBER BEAN, concurring in part and dissenting in part :
I agree with Chairman Leedom that the Respondent did not violate
Section 8 (a) (3). But I cannot agree with Chairman Leedom and
Member Murdock that the record in this case is sufficient to establish
a violation of Section 8 (a) (5) as alleged in the complaint. It is
beyond question, and my colleagues recognize, that to establish the
existence of a duty on the part of an employer to bargain, which is the
necessary prerequisite to a finding of a violation of such duty, it must
be shown that the union which requests bargaining is in fact the
designated representative of a majority of such employer's employees.
Yet upon a careful examination of the principal opinion and the facts
before the Board in. this. proceeding, I am convinced that here, for the
first time, the Board is making a finding of violation of the duty to
bargain in the absence of any evidence that the union which seeks the
.bargaining order is in fact the majority representative.
As the principal opinion candidly states, "It is true that, apart from
the 1953.contract, there is no evidence that the Union had majority
status." But the mere existence or execution of a contract is not evi-
dence that the labor organization party to it was a majority union at
any stage of its dealings. Indeed, as that opinion implicitly recog-
nizes, the Board's experience is to the contrary, for it not infrequently
has found an employer to have violated the Act by virtue of having
entered into a contract with a nonmajority union. In the absence of
evidence, then, it has been found necessary in reaching the finding of
a violation in this case to resort to a presumption, to the effect that
the Respondent acted lawfully and thus that the Union had majority
status when the 1953 contract was executed. But as shown above the
Board's experience has shown that there is no reliable factual basis
for such a presumption. And no legal basis for the presumption is
suggested, other than that "it would be improper" to presume that the
Respondent then acted unlawfully.
..,If, of course, the Respondent then had been charged with a violation
by virtue of hiving entered into a contract with a nonmajority union,
it would have been entitled to rely on apresumption that it had not
SHAMROCK DAIRY, INC. 1017
acted unlawfully, in the sense that it would have been necessary to the.
finding of a violation that the violation alleged should be proved by a
preponderance of evidence to establish it. But the Respondent is not
here charged with such.a, violation, and the resort of this decision to a.
presumption now that the Respondent was innocent at that time of
transgressing the statutory proscription leads to a rather anomalous
result. My colleagues of the majority appear to have forgotten that
the Respondent which is presently charged with a violation of'Sec-
tion 8 (a) (5), but has denied such violation, is entitled now to the
benefit of the presumption in its favor, i. e., that it may not be found
to have violated the Act unless every controverted element of such
a violation has been established by the weight of evidence. In giving
effect to a purported presumption that the Respondent acted lawfully
in 1953, the members of the majority have failed to evaluate the
primary necessity for giving adherence to precisely that same pre-
sumption as it applies to the charges now being pressed against the
Respondent based on his conduct in 1955. In my view, the latter
presumption is the one which should be effective and should prevail,
but in any event I should imagine that if there are two such conflicting
presumptions, and assuming that they are of no more than equal
stature, their balancing should not be made the basis of a finding of a
violation of the Act. Or, to phrase the matter in a manner directly
applicable to the posture of this case, a presumption of innocence as
of a time when no violation is alleged should not be used to* overcome
the presumption of innocence at the time when a Respondent is charged
with violations so as to result in a finding of guilt.
Because I find no evidence to support the finding of majority status
on the part of the Union, but only a presumption which I regard not
only as unsupported but in any event an improper basis for the finding
of a, violation, I would dismiss the complaint in its entirety. In so
doing I am not unmindful of the ffexton and other cases relied on by
the majority.21 I regard such reliance as misplaced because in all
but one of these cases the union's majority had originally been
established by a Board certification. In the remaining one, the Hugh
J. Baker case, an examination of the Trial Examiner's report. dis-
closes that the union's original majority status was not questioned and
that in addition there was independent evidence of majority "desig-
nation in the form of employee memberships. The issue upon which
those cases turned thus was not the question of whether the contract-
ing union originally had been designated by a majority but whether,
after the union had secured a, contract as majority, representative,
the Board would nevertheless disrupt the contractual relationship
thus lawfully existing. In those cases the Board in effect held only
that where a union has been designated by a majority of employees
zi See text and footnote 9 of the principal opinion.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as of the time of entering into a contract, it will be given the benefit
of its representative status during the contract's reasonable term . 2z
The present case, in which there is no evidence that the union was
at any time designated by a majority, involves an entirely different
situation.
22 I recognize that under the Board ' s contract-bar doctrine in representation cases, the
Board will generally refrain from directing a new election during a contract 's term, and
that this is true regardless of whether or not the contracting union has the benefit of a
Board certification. The latter fact is not, however, because of any "presumption" that
the contracting union was a majority union, but rather because the Board's rule is not to
inquire into matters constituting unfair labor practices in representation proceedings.
Even in such cases, however, if it is made to appear that the contract has been executed
with a nonmajority union the Board will hold this an exception to its contract-bar prin-
ciple so as not to preclude the direction of an immediate election.
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, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local Union No. 310, with respect to adoption or
continuance of a system of product distribution known as the
independent distributorship plan. The appropriate unit is :
All regular, relief, and special drivers and all plantmen
employed at our dairy in Tucson, Arizona, excluding all
office and clerical employees, guards , and supervisors as de-,
fined in the Act as amended.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 310, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization except to
the extent that such right may be affected by an agreement requiring
SHAMROCK DAIRY, INC. 1019
membership in a labor organization as a condition to employment, as
authorized in Section 8 (a) (3) of the Act.
SHAMROCK DAIRY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No. 310, AFL-CIO, herein
the Union, the General Counsel of the National Labor Relations Board issued
his complaint against Shamrock Dairy, Inc., Shamrock Dairy of Phoenix, Inc.,
and Shamrock Milk Transport Co., herein, respectively, the Respondent, Phoenix,
and Transport, alleging that the Respondent had engaged in and was engaging
in certain unfair labor practices affecting commerce within the meaning of Section 8
(a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 61 Stat. 136, herein the Act.
In respect to unfair labor practices, the complaint alleges in substance that
on and after July 12, 1955, the Respondent although then required by the Act
to recognize and bargain with the Union nonetheless negotiated with its employees
individually and entered into individual contracts with them, thus refusing to bargain
collectively in good faith with the Union. It is further alleged that on or about
October 3, 1955, the Respondent discriminatorily discharged Dave Egleston, Robert
Pry, Alexander Toro, Frank Koenig, John Foley, and John Kozacki.
Respondent's answer duly filed denies the commission of unfair labor practices
and denies that it is or has been engaged in commerce within the meaning of
the Act.
Pursuant to notice a hearing was held before the duly designated Trial Examiner
from October 8 through 18, 1956, in Tucson, Arizona. All parties were represented
by counsel and participated in the hearing. . Counsel for a number of so-called
independent distributors sought intervention to the end that no order might issue from
the Board invalidating in any respect contracts which those individuals had with
the Respondent. Because this proceeding is narrowly restricted to the protection
and enforcement of public rights not deriving from or dependent upon any contract
between the Respondent and its one-time employees, the petition to intervene
was denied. Those who have contracts with the Respondent and whose status
may be affected by the enforcement of any final order of the Board in this
proceeding are left free to assert such legal rights as they may have acquired
thereby in another forum.'
A brief has been received from counsel for the Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Phoenix and Transport although nominally Respondents in this proceeding are
not here so treated. It is not alleged that either of them severally or jointly with
the Respondent has committed an unfair labor practice. The Respondent is the
owner and operator of a dairy plant and distribution business in Tucson, Arizona,
and is a corporation beneficially owned and actively managed by members of
the McClelland family. Transport, a corporation beneficially owned and actively
managed by the same family group, hauls milk to and from the Respondent and
from the Respondent to Phoenix. Phoenix, a corporation similarly owned and
managed, is engaged in the distribution of milk in Phoenix, Arizona, and secures
1 National Licorice Company v. N. L. R. B., 309 U. S. 350, 363-366.
1.020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all of its milk in packaged form from the Respondent. Deliveries from the
Respondent to Phoenix are made by Transport. Not alone are the three cor-
porations under substantially the same ownership and family management, but
it is evident constitute a single integrated enterprise. The milk from the producers
is gathered by Transport and delivered to the Respondent for processing and
packaging. Respondent handles the distribution in the Tucson area and Phoenix
performs the same function in the Phoenix area. In urging that the three should
not be regarded as a single employer, counsel for the Respondent relies upon
the apparent fact that there is no transfer of employees between the three cor-
porations, and that there is no common labor policy applicable to them. There
is support in some Board decisions for the argument that these criteria have some
weight affecting such a determination, but where, as here, integration is complete,
I consider and find that the lack of uniform labor policy and absence of transfers
is of little consequence. It seems obvious that a group of corporations owned
by substantially the same interests and wholly integrated in operation do constitute
a single employer. The conditions for establishing a uniform labor policy exist,
even though no such step has been taken. On the considerations outlined above
I find that the Respondent, Phoenix, and Transport constitute for purposes of
jurisdiction a single employer within the meaning of the Act.
The parties stipulated and I find that during the calendar year 1955 the Re-
spondent made purchases from concerns outside the State of Arizona which were
shipped directly to it at Tucson, having a value of $548,000; that Phoenix, during
the same period, made such purchases, having a value of $73,000; and that
Transport, for the same period, made purchases in the same circumstances having
a value of $438. Counsel for the Respondent argues in his brief that certain
purchases of trucks and other materials totalling approximately $116,000 were not
in fact made by the Respondent for its own account and should not therefore
be considered in arriving at the total purchases. Although I do not consider the
argument so advanced to be meritorious, it is unnecessary here to consider the
question raised. Even if this amount were deducted from the purchases of the
three corporations, there would remain as direct purchases from without the State
during the year 1955 an amount in excess of $500,000, and thus the Board's
jurisdictional criteria are satisfied. I find that the Respondent's business operations
are in commerce and affect commerce within the meaning of the Act.
11. THE ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Respondent,
III. THE UNFAIR LABOR PRACTICES
In October 1953, the Respondent and the Union entered into a collective-
bargaining agreement covering wages, rates of pay, hours of employment, and
other conditions of employment affecting all regular, relief, and special drivers
and all plant men employed by the Respondent.2 Within the coverage of this
agreement were all drivers who delivered milk in and near Tucson to retail and
wholesale customers. The agreement, by its terms, was to be in effect until
October 1, 1955. Without consultation with the Union, in July 1955 the Respondent
began discussing with its drivers the establishment of a so-called independent dis-
tributors plan whereby the milk routes, both wholesale and retail, would be sold
to the individual drivers along with the trucks. The drivers would receive as com-
pensation the difference between the price charged to them for the packaged
milk and the price at which they could sell it to their customers. The Respondent
then had in effect a profit-sharing and retirement plan covering most of the drivers.
The drivers were told by the Respondent that all credits due each of them under
the retirement plan would be paid immediately in cash which could be used to
purchase a route. Those who did not desire to enter into this arrangement
would be paid their credit in five annual installments . Of the Respondent's approxi-
mately 70 drivers, almost all by October 3, 1955, had signed individual agreements.
The Union soon learned of this development and by letter dated July 29, 1955,
the Union's president, Howard Grant, wrote the Respondent as follows:
Please be advised that by reason of your recent action with certain employees
of your Company, members of this Organization, you have breached our
Agreement.
2 The Union has been recognized by the Respondent continuously since 1937.
SHAMROCK DAIRY, INC. 1021
Unless you are willing to meet with Representatives of this Organization in.
the immediate future to rectify this situation, we will be forced to take
necessary action.
Certainly this message is cryptic and does not unmistakably call to the attention of
the Respondent just what is the subject of complaint. I think, however, there can
be no doubt but that the Respondent recognized this to be a protest by the Union-
against the institution of the independent distributor system. No other matter occa-
sioning a possible dispute with the Union is revealed by this record to have existed
at this time. Other than the communication of July 29, no attempt was made
by the Union to gain a meeting with the Respondent until in September when the
Union sent the Respondent proposed amendments to the existing contract which
it hoped might be put in effect at the expiration of that agreement. On October 3,
1955, Grant met with representatives of the Respondent. Grant, noting that the
Respondent had his attorney present, said that he was not in a position to negotiate
as his counsel was out of the city. He received from Respondent's counsel a
proposal that the Respondent not recognize the Union as the collective-bargaining
agent for persons who distributed the Respondent's products under individual
contracts. No further meeting has taken place between the Respondent and the
Union, and the Union has made no request that such a meeting occur.
Individual drivers, faced with the problem of deciding whether to accept the
proffered individual contracts or to refuse them, consulted with Grant. There is
testimony toat he advised them to refuse the offers in their own interests and in
any event to consult an attorney to see to what extent the offers were advantageous
or otherwise. To the suggestion that Grant negotiate with the Respondent in that
connection, he replied that the Respondent had to come to him.
On October 3, 1955, Dave Egleston, Robert Pry, Alexander Toro, Frank Koenig,
John Foley, and John Kozacki, each of whom until that time had been an employee
of the Respondent as a driver in the delivery of milk products and within the unit
represented by the Union, were told individually that since each had expressed
disinterest in purchasing a route and becoming an independent distributor their
services no longer were required.
Individuals who were working as retail milk distributors were offered a contract
with the Respondent providing that the driver would have the exclusive right to
distribute Respondent's products at retail within a described territory, the boundaries
of which by mutual agreement could be changed from time to time; that the driver
would purchase at an agreed figure the customers already existing in the territory
and buy all the accounts receivable in that connection; the Respondent reserved the
right to change the prices it would charge the driver for its products by giving notice
in writing, and the driver agreed to pay in cash for all products given to him for
resale; the driver covenanted that he would not in any manner sell or distribute any
products of any kind within the territory other than those manufactured, produced,
distributed, or offered for sale by the Respondent. Additionally, the driver agreed
to operate and maintain his own truck and other equipment. The driver granted
an unconditional, and irrevocable option to the Respondent to purchase the entire
distribution business at any time after a 30-day notice by registered mail of inten-
tion to do soo. The driver agreed that he had no right to sell or assign the business
or any part thereof to any person without the consent in writing of the Respondent.
Should for any reason the individual contract be terminated, the driver agreed to
hold all information pertaining to the route and customers in confidence for a
period of 2 years and not to disclose such information without the prior consent
of the Respondent. The driver also agreed that upon termination of his contract
for whatever reason he would not within a period of 2 years after that date,
directly or indirectly, on his own behalf or for any other person,- engage in the
distribution of dairy products within the territory where he had operated. It was
agreed in the event of any accidents, strike, or other emergency threatening to
interfere with the proper distribution of products, the Respondent would have the
right in such event without notice to the driver to take over the route, his equipment,
and business, and to operate it during, the continuation of such an emergency. An
agreement substantially the same in all important respects was offered to and
accepted by most of the wholesale drivers.
The General Counsel argues that all drivers signing these agreements were and
remained employees of the Respondent and as such continued to be represented by
the Union whose majority status in July 1955 is not questioned. The Respondent
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contends that by accepting these individual contracts the drivers became in truth
and in fact independent contractors ; that thereafter the Respondent 's control over
them was not that of an employer.
There is no real dispute in the evidence concerning the changes accomplished by
the individual contracts . Before July 1955 each group of drivers was under the
supervision of a route supervisor who recommended promotions and dismissals and
in general directed the drivers' activities . After July the supervisors were employed
as sales promotion men and no longer undertook to supervise the work of the
drivers. Before the change drivers were required to attend training classes.
Afterward they were not. Before , they were required to make a certain number
of solicitations of new accounts each day; afterward not. Some of the drivers now
purchase their own advertising media and have their names painted on their trucks.
If they desire to take a vacation they must hire someone as a replacement for that
time. Their trucks are their own property and the maintenance expense is upon
them . A few augment their income by selling ice cream, oleomargarine, eggs, bacon,
hams, turkeys. None of these items are handled by the Respondent. They procure
and carry their own public liability insurance and pay taxes to the city of Tucson.
Before, all were required to wear a uniform. Now, although it appears that most
of them wear a uniform quite the same or at least similar to that worn before, the
requirement does not exist. Because the Respondent has relaxed its controls over
the drivers, because each of them has a substantial investment of his own money or
money borrowed with the aid of the Respondent's endorsement in the purchase of
route and equipment, and because the earnings of each individual is determined
entirely by the difference between what he pays for Respondent's products and the
return he gets from his sales, the Respondent argues that the drivers are now in
all respects independent business men.
In early 1956 the contracts between the wholesale and retail drivers and the
Respondent were amended in certain respects. However, the irrevocable option
to purchase still remained with the Respondent and the drivers in each situation
agreed that they would not be engaged in the delivery of milk within the territory
assigned for a period of 2 years after the termination of their agreement with the
Respondent. I find that no change in the contractual relation between the
Respondent and its drivers of controlling significance here was accomplished by the
1956 amendments.
Since the time that the routes have been serviced by drivers under individual con-
tracts, the Respondent has not made deductions from payments to drivers for income
tax purposes and has not paid to the State of Arizona the taxes levied in connection
with unemployment benefits. Sometime in August or September 1955 the Respond-
ent brought an action against the Union in the Superior Court of the State of
Arizona seeking to enjoin the Union from picketing its establishment. There is no
evidence in this record in connection with that picketing. The respondent's action
was based upon a section of the Arizona Code reading:
It shall be unlawful for any labor organization to picket any establishment unless
there exists between the employer and the majority of employees of such estab-
lishment a bona fide dispute regarding wages or working conditions.
The theory of the Respondent was that as its drivers were now working under indi-
vidual contracts they were not employees and hence could not within the meaning
of the Arizona statute be parties to a bona fide dispute regarding wages or working
conditions. In denying the prayer for injunction the court held that the individual
contracts did not change the status of the drivers from employees to independent
contractors. The Employment Security Commission of Arizona has issued two pro-
posed ( tentative ) determinations, to the effect that the drivers under the individual
contracts are still employees of the Respondent and that the Respondent is liable to
the State of Arizona for contributions for unemployment insurance in respect to
them. The decision of the court and the proposed determinations of the Employment
Security Commission are, of course, not based upon the Act and presumably give
effect to the public policy of the State of Arizona as set forth in the statutes appli-
cable to the litigation as well as other guides to decision. It has sometimes been
found that the relation between one who sells his labor and one who uses it is that
of employee-employer where common-law tests would indicate an independent con-
tractor relationship. For example, it has been held that an employee of the lessee
of a gasoline service station is the servant of the corporate lessor, thus making the
SHAMROCK DAIRY, INC. -1023
lessor liable for his negligence .3 Such a holding appears to be based upon the
assumed economic desirability of finding such responsibility as the lessees are fre-
quently in no better economic position than the usual minor employee .4 The Board,
however, has in all cases coming before it uniformly applied the common-law test
of "right to control" to decide what the relationship in fact is. This is the test which
will be applied to the facts set forth above.
Obviously, it is of paramount interest to the Respondent that milk be delivered
to its customers in the various territories which make up the Tucson area promptly,
regularly, and efficiently, to the end that the customers will remain satisfied and will
not be tempted to switch their business to a competing dairy. In order to keep this
customer relationship unbroken, it is to the advantage of the dairy that its drivers
be personable and presentable; that the equipment used in making the deliveries be
reliable' and appropriate. Before entering into the individual contracts the Respond-
ent had the unquestioned right to accomplish by means of selecting employees, by
supervising them, and by purchasing and maintaining equipment to insure that these
conditions would prevail. Has it divested itself of this right? And has it made a
genuine sale of the distribution business to its drivers? I conclude that it has not.
The core of the matter is the reservation of the irrevocable right in the Respondent
to terminate the contractual relation at any time and for any reason, with the lack
of any right on the part of the driver should he become dissatisfied with his arrange-
ment to terminate it without also losing the customer clientele. Upon analysis, the
driver has actually purchased nothing from the Respondent, except a truck. The
purported sale of the customer accounts is no more than a sale of a right to service
the accounts as long as the Respondent is satisfied with the manner of servicing.5
The driver in simple fact has done no more than to sell his labor to the Respondent
on terms and conditions which differ from those existing at the time that he was con-
cededly an employee. Much was made at the hearing of the fact that some of the
drivers chose not to wear the uniforms which had been standard prior to July 1955,
and that some of them found it advantageous to sell, in addition to products of the
Respondent, certain other items, such as ice cream and oleomargarine. These
manifestations of independence are possible only because of Respondent's sufferance.
Wielding the club of unilateral decision to terminate the contract, the Respondent
can impose upon these drivers any conditions that could have been imposed when
they were in the employee relationship. It can insist that they wear designated uni-
forms, that they not sell products other than those supplied by it, that deliveries be
made only during certain hours and in a specified sequence, and that trucks be painted
in a style and with emblems satisfactory to the Respondent. Any driver who might
persist in disregarding any direction or suggestion of the Respondent in connection
with any such matter would, of course, recognize that he might be imperiling his right
to continue servicing Respondent's customers. I find that Respondent's right to con-
trol its drivers has not been diminished by reason of the individual contracts and that
the drivers are now and at all times have been employees of the Respondent within
the meaning of the Act .6
The complaint alleges that all regular, relief, and special drivers, and all plant
men employed by the Respondent, excluding office and clerical employees and guards,
and supervisors, constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9 (b) of the Act. Respondent's answer concedes
that this was the unit concerning which it had contracted with the Union in October
1953. The unit described appears to be a usual one in the dairy business and there
is no contention that if the drivers are employees the unit is not an appropriate one.
I find that the unit set forth above is now and at all times material herein has been
one appropriate for purposes of collective bargaining. Presumably, the Union repre-
sented a majority of the Respondent's employees in the appropriate unit at the time
that the 1953 contract was made and there is no evidence tending to indicate that
the Union has since in any way lost its status as such representative except possibly
8 Dockens v. LaCaze, 78 F. Supp. 515 (W. D. La. 1948).
4 Subagents and Subservants, by Warren A. Seavey, Harvard Law Review, vol. 68,
No. 4, 658-670.
5 The right to terminate is unlimited and is not conditioned upon any default by the
driver.
8 See The H. E. Koontz Creamery, Inc., 102 NLRP, 1619.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by reason of Respondent 's unfair labor practices. I find that the Union is now and
at all times material herein has been the majority representative of Respondent's
employees in the appropriate unit.
In July 1955 the Respondent was in contractual relation with the Union and was
under an obligation imposed by Section 8 (d) of the Act not to terminate or modify
the contract without giving written notice to the Union and offering to meet and
confer with the Union in connection with the proposed modification. This, of
course, the Respondent did not do, choosing rather to ignore the requirements of the
contract and of the Act and to seek out the employees individually to contract with
them. By this conduct the Respondent denied to the employees the right to be
represented by an organization of their own choosing and thus refused to bargain
in good faith with the Union, in violation of Section 8 (a) (5) of the Act. By
.depriving the employees of their right of representation in this fashion, and by
making credits in the retirement fund immediately available to those who purchased
routes, the Respondent interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act and thereby violated
Section 8 (a) (1) of the Act.
Each of the six employees named earlier in this report who were discharged on
October 3, 1955, either had refused or had otherwise expressed disinterest in sign-
ing an individual contract with the Respondent. Each of them had a right to rely
upon his collective-bargaining representative to take care of such matters with the
Respondent and a right to refuse to deal individually with the Respondent. Because
they exercised this right they were discharged. I find that by the discharge of Dave
Egleston, Robert Pry, Alexander Toro, Frank Koenig, John Foley, and John Kozacki
the Respondent interfered with, restrained, and coerced those individuals in the exer-
cise of their rights under Section 7 of the Act and thereby violated Section 8 (a) (1)
of the Act. By these discharges the Respondent discouraged membership in a labor
organization and thereby violated Section 8 (a) (3) of the Act.7
On October 3, 1955, as has been said, the Respondent and Grant, the Union's
president, met. No bargaining took place on this occasion and no request to bargain
has been made by the Union since. However, the Respondent, by proposing then
not to include the drivers in any negotiations and by its action before in dealing with
them as individuals, manifested an intent not to bargain concerning the drivers. It
is apparent that an attempt by the Union to engage in bargaining with the Respondent
in that connection would have been futile.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has refused to bargain collectively with the
Union and has, on the contrary, engaged in individual bargaining with its employees
in derogation of the Union's representative status, it will be recommended that the
Respondent cease and desist therefrom and that it no longer offer, solicit, enter into,
continue, enforce or attempt to enforce the individual contracts with its drivers,
without prejudice to any assertion by the drivers of any legal rights they may have
acquired under such contracts, and that upon request it bargain collectively with
the Union in respect to wages, hours, and other terms and conditions of employment
affecting employees within the appropriate unit and, if understanding is reached
embody such understanding in a signed agreement.
Having found that the Respondent has discriminated in regard to the hire and
tenure of employment of certain employees, it will be recommended that each he
r N. L. R . B. v. Stewart Oil Co ., 207 F. 2d 8 (C. A. 5).
SHAMROCK DAIRY, INC. 1025
offered full reinstatement to his former or substantially equivalent position,8 as an
employee, without prejudice to seniority or other rights and privileges, and that
each be made whole for any loss of earnings he may have suffered by reason of
the discrimination against him by payment to each of a sum of money equal to
that which he normally would have received in Respondent's employ as a route
driver from October 3, 1955, to the date of offer of reinstatement, less his net
earnings during such period.9 The Respondent is not excused from taking this.
step as to Foley an the ground that the latter has expressed unalterable opposition
to the independent distributor plan. Back pay shall be computed in the manner
established by the Board and the Respondent shall make available to the Board
payroll and other records to facilitate the checking of the amount due.
The character and- scope of the unfair labor practices engaged in by the Respondent,
indicate an intent to defeat self-organization of'its driver=employees. It will there-
fore be recommended that the Respondent cease and desist from in any manner
interfering with, restraining, and coercing its employees in the exercise of rights.
guaranteed by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 310, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of John
Foley, Dave Egleston, Robert Pry, Alexander Toro, Frank Koenig, and John
Kozacki, thereby discouraging membership in the Union, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. All regular, relief, and special drivers, and all plant men employed by the.
Respondent, excluding office and clerical employees and guards, and supervisors,
constitute a unit appropriate for purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
4. The Union was in July 1955 and at all times material since has been the
exclusive bargaining representative of all employees in the aforesaid unit within
the meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with the Union as the exclusive bargaining
representative of the employees in the appropriate unit and by entering into indi-
vidual contracts with the drivers, the Respondent has engaged in and is engaging.
in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
6. By the discharges, by refusing to bargain, and by offering financial induce-
ments to its employees to enter into individual contracts, the Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
(Recommendations omitted from publication.]
81t is contemplated that each of the named individuals will be offered reinstatement to-
the same route that he operated at the time of his discharge unless for some reason,
entirely unconnected with the unfair labor practices found, such an assignment is im-
possible. The Chase National Bank of the City of New York (San Juan, Puerto Rico,
Branch), 65 NLRB 827.
9 Robert Pry, Dave Egleston, Frank Koenig, Alexander Toro, and John Kozacki received
letters from the Respondent in April 1956 indicating that each, upon application, would
be reemployed in a substantially equivalent position to that which he had occupied prior
to termination. No such offer was made to John Foley. Toro and Kozacki ignored the
letter. Pry, Egleston, and Koenig spoke with the Respondent in connection with re-
employment. At most, each was offered a job as a relief driver with earnings possibly
the equivalent of what they made before discharge. However, in April 1956 and at all
times since all routes were for sale. The Respondent was in no position to offer and did
not offer to any of them the route which lie had held prior to discharge with any
assurance that at some later date it would not be sold. I do not consider that in the
case of any of the drivers a bona fide offer of reinstatement has been extended.
476321--58-vol. 119-66