Symns Grocer Co.

National Labor Relations Board - Board Decisions

Mar 16, 1953

103 N.L.R.B. 622 (N.L.R.B. 1953)

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By discriminating in regard to the hire and tenure of employment of
Theodore Earl Fink, thereby encouraging membership in a labor organization, the
Respondent Employer has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
5. By causing the Respondent Employer to discriminate in regard to the hire
and tenure of employment of Theodore Earl Fink in violation of Section 8 (a) (3)
of the Act, the Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (2) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent Employer has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
7. By restraining and coercing employees of the Respondent Employer in the
exercise of their right to refrain from any and all of the concerted activities
guaranteed by Section 7 of the Act, the Respondent Union has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the Act.
8. 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 in this volume.]
SYMNS GROCER CO., AND IDAHO WHOLESALE GROCERY CO. and TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION, LOCAL
No. 983, AFL. Case No. 19-CA-481. March 16, 1953
Decision and Order
On September 15, 1952, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent Symns Grocer Co., hereinafter called Symns, had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent Idaho
Wholesale Grocery Co., as successor of Respondent Symns, was re-
sponsible, jointly and severally, with Respondent Symns, for remedy-
ing the latter's unfair labor practices. Thereafter, the Respondents
filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Styles and Peterson].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Re-
port, the briefs and exceptions, and the entire record in the case and
103 NLRB No. 63.
SYMNS GROCER CO. 623
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following additions, corrections, and
modifications.
1. The Trial Examiner found that Respondent Symns refused and
failed to bargain with the Union in good faith, thereby violating Sec-
tion 8 (a) (5) and (1) of the Act. We agree. However, we find that
the initial refusal to bargain in good faith occurred on November 16,
1950, when Symns offered its counterproposal to the Union's first pro-
posed contract, and not, as the Trial Examiner found, on September
15, 1950, when the Union was certified as the bargaining representative
of Symns' employees.
2. Respondent Idaho contends that the issuance of any complaint
against it is barred by Section 10 (b) of the Act 2 We find no merit in
this contention.
The original charge in this case, naming Symns alone as Respondent,
was filed on April 2, 1951, and was served on the same date on Symns.
It is not disputed that this charge was timely as to Symn& Thereafter,
on January 29,1951, there was filed and served upon Respondent Idaho
an amended charge, which for the first time named Idaho as a re-
spondent. Idaho contends that, as this amended charge was filed and
served more than 6 months after the occurrence of the unfair labor
practices found by the Trial Examiner, no complaint should have
issued against Idaho, in view of the provisions of Section 10 (b) of
the Act.
However, the Trial Examiner in his Conclusions of Law made it
clear that he was not finding that Idaho had, itself, engaged in any
unfair labor practices, but only that Symns had engaged in such con-
duct .3 Although the Trial Examiner did find that Idaho was re-
sponsible for remedying Symns' unfair labor practices, he properly
based this finding solely on the fact that Idaho was the successor of
Symns. (See paragraph 2 of Conclusions of Law in the Intermediate
Report.) The Board has held that where a respondent has been found
to have engaged in unfair labor practices, a successor of such re-
spondent may be held responsible for remedying such unfair labor
1 We note and correct the following inadvertent errors in the Trial Examiner's report :
(1) The conference at which a partial settlement of the Salt Lake City strike was effected
occurred on March 27 , and not on February 27, as stated at one point in the Intermediate
Report . ( 2) In his "Concluding Findings" the Trial Examiner found that on or about
September 22, 1950, Walker had a conversation with 3 employees including Ritchie. How-
ever, the record shows that "Glenn Reed," not Ritchie, was 1 of the 3 employees involved in
this incident.
We find no support in the record for the Respondents ' contention that the Trial Exam-
iner was prejudiced , and that contention is rejected.
8 Section 10 (b) of the Act forbids the issuance of a complaint based on any unfair labor
practices occurring more than 6 months before the filing of the charge and service thereof
upon the Respondent.
I Insofar as the Intermediate Report elsewhere implies a finding that Idaho may itself
have engaged in unfair labor practices by failing to take corrective action , we do not adopt
such finding.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices, even though no charge at all has been filed against the
successor.'
The reason for this is that, while Section 10 (b) of the Act requires
the filing of a charge against a respondent in order to initiate a
proceeding to determine whether such respondent has engaged in
unfair labor practices, the Act makes no such requirement with re-
spect to proceedings to determine the responsibility of a successor
for remedying the unfair labor practices of its predecessor. Accord-
ingly, insofar as the instant proceeding relates to the liability of Idaho
as the successor of Symms, no charge against Idaho was required. As
the filing of the amended charge against Idaho was to that extent a
redundant act, the fact that such charge was not filed within the 6
months' limitation period in Section 10 (b) of the Act is no reason
for releiving Idaho of responsibility for remedying Symns' unfair
labor practices.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents Symns Grocer Co., and
Idaho Wholesale Grocery Co., their agents, successors, and assigns,
jointly and severally, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Teamsters, Chauffeurs,
Warehousemen and Helpers Union, Local No. 983, AFL, as the ex-
clusive representative of the employees in the following appropriate
unit with respect to wages, hours of employment, or other conditions
of employment:
All employees in the Idaho Falls operation of the Respondent Idaho
Wholesale Grocery Co., excluding supervisors, as defined in the Act .5
(b) Discouraging membership in Teamsters, Chauffeurs, Ware-
housemen and Helpers Union, Local No. 983, AFL, or in any other
labor organization of their employees by discriminating in regard to
their hire or tenure of employment or any term or condition of their
employment.
(c) Discriminatorily discharging or refusing to reinstate employees
for the reason that they engaged in a strike or concerted activities
protected by the Act.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
4 Auto part Manufacturing Company , 91 NLRB 80, 83.
6 The provisions of paragraph 1 (a) and 2 ( c) of this Order apply to Respondent Symns
Grocer Co ., only insofar as it may retain or reacquire control of the Idaho Falls operation.
SYMNS GROCER CO. 625
labor organizations, to join or assist Teamsters, Chauffeurs,
Warehousemen and Helpers Union, Local No. 983, AFL, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take, jointly and severally, the following affirmative action,
which the Board finds will effectuate the policies of the Act:
(a) Offer to Lyle Carson, Charles Graves, Reed T. Ritchie, Donald
Forbush, and Harris Ranson immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, as provided in the
section of the Intermediate Report entitled "The Remedy."
(b) Make whole the above-named employees in the manner set forth
in the section of the Intermediate Report entitled "The Remedy" for
any loss of pay they may have suffered by reason of the Respondent
Symns Grocer Co.'s discrimination against them.
(c) Upon request, bargain collectively with Teamsters, Chauffeurs,
Warehousemen and Helpers Union, Local No. 983, AFL, as the exclu-
sive bargaining representative of all the employees in the aforesaid
appropriate unit with respect to wages, rates of pay, hours of em-
ployment, or other conditions of employment, and, if an agreement
is reached, embody such understanding in a signed agreement .6
(d) Post at the Idaho store, Idaho Falls, Idaho, copies of the
notice attached to the Intermediate Report marked "Appendix A" T
Copies of said notice, to be furnished by the Regional Director for the
Nineteenth Region, shall, after being duly signed by the Respondents'
representatives, be posted by the Respondents immediately upon re-
ceipt thereof, and maintained by them for a period of sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Nineteenth Region in
writing within ten (10) days from the date of this Order what steps
the Respondents have taken jointly or severally to comply herewith.
• See footnote 5, 6upra.
a This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner" in the caption thereof the words "A Decision and Order ." In the event
that this Order is enforced by a decree of the 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."
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act, as amended, herein called the Act, was heard at Idaho Falls, Idaho, on
April 29-30, 1952, pursuant to due notice to all parties. At the hearing all
parties were represented, were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce evidence bearing on the issues, to
argue the issues orally upon the record, and to file briefs and proposed findings.
All parties waived the filing of briefs.
The complaint, dated March 31, 1952, issued by the General Counsel of the
National Labor Relations Board and duly served on the Respondents, was based
on a charge filed by the above-named Union 1 on March 29, 1951, and amended
February 29, 1952, alleged in substance that Symns (1) upon numerous occasions
between September 15, 1950, and April 14, 1951, and at all times thereafter,
refused to bargain with Local 983; (2) on or about March 13, 1951, granted a
unilateral wage increase to its employees after refusing to discuss wage in-
creases with Local 983; (3) that because of the refusals to bargain the em-
ployees of Symns engaged in a strike beginning on March 15, 1951, and thereafter
Symns discharged striking employees Carson and Ritchie and has failed and
refused to reinstate them, because of their membership, and activities on behalf
of the Union; (4) on or about April 9, 12, and 14, 1951, Symns, after demand by
the Union, refused to reinstate all striking employees;2 (5) by this conduct
Symns has failed and refused to bargain in good faith with the Union in
violation of Section 8 (a) (5) of the Act ; and has discriminated in regard to
the hire and tenure and terms and conditions of employment of its employees in
violation of Section 8 (a) (3) of the Act ; and (6) by the above acts and other
conduct it has interfered with, coerced, and restrained its employees in violation
of Section 8 (a) (1) of the Act.
As to Idaho, the complaint sets forth that in the month of July 1951 Idaho
was created for the purpose of purchasing, and did purchase, a wholesale grocery
store, herein called the Idaho store, from Symns, and has at all times since that
date operated the store as the successor of Symns, without interruption of
business , and without substantial change in the business, method of operation,
personnel, equipment, or customers. The complaint alleges that since the
purchase of the Idaho Store, Idaho with full knowledge of the acts , statements,
and conduct of Symns has continued to give effect to said acts, statements, and
conduct and thereby engaged in the same violations of Section 8 (a) (1), (3),
and (5).
In their duly filed answers the Respondents admitted the jurisdictional facts
alleged in the complaint as to their businesses, and admitted that in July 1950
Symns sold, and Idaho purchased, the Idaho store. Both Respondents denied the
commission of any unfair labor practices. Specifically, Symns alleged that it
met and bargained with Local 983 as the collective-bargaining agent of its em-
ployees at all times required by the Act, and that its conduct does not constitute
any of the unfair labor practices alleged in the complaint. Specifically, Idaho
alleges that after it took over the Idaho store from Symns no demand for bar-
1 This labor organization will be referred to as the Idaho Falls Local or Local 983 ; the
Respondent Symns Grocer Co. as Symns, and Respondent Idaho Wholesale Grocery Co. as
Idaho.
2 The employees being Lyle Carson, Charles Graves, Reed Ritchie , Donald Forbush, and
Harris Ranson.
SYMNS GROCER CO. 627
gaining was ever made upon it by Local 983' and that the Union does not repre-
sent a majority of Idaho's employees.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
By the pleadings Symns admitted that it is a corporation organized and
existing by virtue of the laws of the State of Utah, with its principal place of
business at Salt Lake City, Utah. During the years 1950 and 1951, it was a
multistate enterprise engaged in the business and operation of wholesale grocery
stores. During that period it owned and operated a wholesale grocery store at
Idaho Falls, Idaho, previously designated as the Idaho store, which was an
integral part of Symns' multistate corporation.
In the course and conduct of its business Symns annually purchased equipment
and merchandise valued in excess of $500,000 which was shipped directly to its
wholesale stores from States other than the State of Utah. Additionally, it
purchased large amounts of merchandising equipment within the State of Utah
which originated in States other than the State of Utah. It annually sold and
shipped merchandise valued in excess of $25,000 to customers in States other
than the State of Utah. The Idaho store annually, and particularly during 1950
and 1951, sold and transported merchandise valued in excess of $75,000 to pur-
chasers situated in States other than the State of Idaho. During the same
period, it purchased equipment and merchandise valued in excess of $500,000
annually, which was shipped directly to it from points outside the State of Idaho.
Also during the same period it purchased a large dollar volume of equipment
within the State of Idaho which originated in States other than the State of
Idaho.
By the pleadings Idaho admitted that it is a corporation organized and existing
by virtue of the laws of the State of Idaho. It is a wholly owned subsidiary
of Utah Wholesale Grocery Co., a Utah corporation. The office and place of
business of Idaho is located in Idaho Falls, Idaho, and the principal office and
place of business of Utah Wholesale Grocery Co. is situated at Salt Lake City,
Utah. The Utah Wholesale Grocery Co. is a multistate enterprise engaged in
the business and operation of a chain of wholesale grocery stores. Idaho is
engaged in the business of operating a wholesale grocery and has since its forma-
tion been an integral part of the multistate operation of its parent corporation.
In the month of July 1950, Idaho was created for the purpose of purchasing the
Idaho store from Symns, and Idaho has at all times since that date operated the
Idaho store as the successor 4 of Symns without interruption or without sub-
stantial change in the business, method of operation, personnel, equipment, or
customers. In the course and conduct of its operations, Idaho has continued its
interstate transactions in substantially the same dollar volume as Symns.
Upon the pleadings I find that at all the times material herein Symns was
engaged in commerce within the meaning of the Act, and that after Idaho ac-
quired the Idaho store, that corporation also was engaged in commerce within
the meaning of the Act.
In the course of the hearing the General Counsel stated that Local 983 had never made
a demand to bargain on Idaho.
+ "Successor" is here used in its broadest sense ; it is obvious that Idaho did not admit
it was the "successor" to Symns in the technical sense of the word which would be an
admission of liability herein.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE UNFAIR LABOR PRACTICER
A. Undisputed facts: background, appropriate unit, union majority
Prior to July 1951 Symns operated wholesale grocery outlets in the cities of
Salt Lake City, Utah, and Idaho Falls, Idaho. After the sale of the Idaho store
to Idaho, Symns continued to operate its Salt Lake City outlet. Robert Peel
is the president and manager of Symns with his office at the principal office of
the Company at Salt Lake City. Peel at all times with which we are concerned
had general authority over both grocery outlets. At Idaho Falls Symns' highest
ranking official was E. C. Walker, who occupied the dual role of salesman and
manager. It is undisputed that when Local 983 first made contact with Walker
in regard to negotiations between the Company and Local 983 that Walker in-
formed the union representative that Peel was the only person who had authority
to conduct labor negotiations for the Company. Thereafter Peel was the official
who represented the Company in the negotiations which will later be described.
Local 983 has its headquarters at Pocatello, Idaho, which is some 53 miles dis-
tant from Idaho Falls. Clarence P. Lott is secretary-treasurer of the local, and
is authorized to conduct bargaining negotiations with employers by that local.
Lott's office is at Pocatello. Under Lott's direction, Edward J. Mattox acts as
business representative of Local 983 at Idaho Falls, Idaho, maintaining an office
for the purpose in the Labor Temple at that city.
Joint Council No. 67, Teamsters, Chauffeurs, Warehousemen and Helpers
Union, AFL, is composed of several locals of the Teamsters. Joint Council No. 67
has its headquarters at Salt Lake City, Utah. Member locals of the Joint Council
are the following : Local No. 983, the charging party herein, Pocatello, Idaho, and
vicinity, which embraces Idaho Falls ; Local No. 222, Salt Lake City, Utah, and
vicinity ; Local No. 976, Ogden, Utah, and vicinity ; and Local No. 483, Boise,
Idaho, and vicinity. Fulmer H. Latter is secretary of Local 222, Salt Lake City,
and has also the separate and distinct office of secretary of Joint Council No. 67.
His office is in Salt Lake City. Ernest T. Bailey is business representative for
Local 222, and Harry W. Garrett is statistician for Joint Council No. 67, both
with headquarters at Salt Lake City, Utah.
For some 9 or 10 years prior to the time with which we are concerned, Symns
had labor relations with Local No. 222, Salt Lake City, who represented the
employees of Symns at its Salt Lake City store. For several years prior to
January 1, 1951, Symns had conducted its bargaining for the Salt Lake City
store on a multiemployer-multiunion basis. The group of employers involved in
this bargaining were Symns and Utah Wholesale Grocery Co., which operated
stores at Salt Lake City and elsewhere in Utah, and John Scowcroft and Sons Co.,
which operated wholesale groceries at Salt Lake City, Ogden, and Price, Utah.
Local 222 represented the employees of all three firms at Salt Lake City, and
Local 976 represented the employees of Scowcroft at Ogden and Price, Utah.` In
the bargaining of these groups, the employers were represented by the Industrial
Relations Council of Salt Lake City, and the unions by their several represent-
atives. These groups bargained annually, and at the time the instant controversy
arose, the groups were bound by a contract which would automatically renew
itself on March 1, 1951, unless a party to the contract notified the other parties
of a desire to modify the contract prior to January 1, 1951. It is undisputed
that the Salt Lake City Locals gave the aforesaid timely notice thus terminating
the contract as of March 1, 1951. Though the instant proceeding is concerned
"Occasiony in this report these two locals, 222 and 976 , are referred to collectively as
the Salt Lak
a
e
ll
City Locals.
SYMNS GROCER CO. 629
only with the unit of Symns' employees at Idaho Falls, the relationship of Symns
to the other employers and other locals is necessary to a clear understanding of
the events which will be later set forth.
It is undisputed that around August 6, 1950, the employees of Symns at its
Idaho Falls store joined Local 983. At that time there were 5 men performing
the general duties of truckdrivers and warehousemen. It is apparent from the
record that all 5 men joined the Union. On August 14,1950,* Local 983 addressed
a letter to the Company at Idaho Falls in which the Union demanded bargaining
rights and sought a date for the initiation of contract negotiations. On August 16
Peel replied on behalf of Symns as follows :
Mr. Walker has sent me your letter of the 14th in regard to your claim to
represent our employees. In the absence of the usual proof, and under the
circumstances we think that you should proceed in the regular specified way
by filing your petition with the NLRB requesting an election, and let them
hold it as they do in all such instances. We assure you we will cooperate
in every way possible.
Thereafter by consent of both parties the Regional Office of the Board set up a
representation election and a union-authorization election in a unit of Symns'
Idaho Falls employees described as follows :
All employees in the Idaho Falls operation, excluding supervisors as
defined in the Act as amended.
On September 6, 1950, in a Board-conducted election on the question concerning
representation the employees voted 5 to 1 for the Union, and on September 8,1950,
in the union-authorization election, the employees voted 5 to 0 to authorize the
Union. On September 15, 1950, the Regional Office issued a certification of
representatives to the Local for the employees in the above unit, and on Septem-
ber 25, 1950, issued to the local a certification of union-shop authorization.
On the basis of these undisputed facts, I find that the unit as described above
is an appropriate unit for the purposes of collective bargaining, and I further
find that on September 15, 1950, and thereafter Local 983 was the duly certified
bargaining representative of Symns' employees in the aforesaid appropriate unit,
and that on September 25, 1950, Local 983 was authorized to bargain for a union
shop with Symns.
On October 20, Clarence P. Lott, secretary of Local 983, by a telephone call to
Peel raised the subject of contract negotiations. Thereafter there occurred a
series of conferences, calls, or meetings which are the subject of dispute. The
evidence as to these meetings will be set forth in detail later.
However, it is undisputed that on March 14, 1951, the employees of Symns
at Salt Lake City and the employees of Scowcroft and Utah, all represented by
Locals 222 and 976, struck for the purpose of obtaining a higher rate of wage
and a union shop. On the following day, March 15, the employees of Symns at
Idaho Falls also struck.
The principal issue in this proceeding is whether the strike of employees at
Idaho Falls was an economic strike or an unfair labor practice strike.
It is also undisputed that on March 27 the strike in the wholesale houses of
John B. Scowcroft and Sons and Utah Wholesale Grocery Co. was settled by a
contract between those firms and Locals 222 and 976. On April 9 the strike con-
cerning the employees of Symns at Salt Lake City was settled by an agreement
• All dates in this portion of the report are in the months of August , September, October,
November , and December, 1950, and January , February, March , and April, 1951, unless
otherwise noted.
257965-54-vol . 103-41
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between Symns and Local 222. The strike at Idaho Falls was not settled, which
gives rise to the present controversy.
B. Undisputed facts: the beginning of negotiations
Clarence P. Lott, secretary-treasurer of Local 983, whose office is at Pocatello,
Idaho, testified that on October 20 he phoned Peel at the office of Symns at Salt
Lake City to arrange for collective-bargaining conferences. Lott explained that
though the elections which were won by the Union were held in September, he
did not take the matter of bargaining conferences up with Peel until October 20,
because that was the first date, after the employees were organized, on which he
was in Salt Lake City. lie had been informed by Mattox, business representative
of the Union at Idaho Falls, that Walker, the manager at Idaho Falls, did not
have authority to bargain for the Company.
In his telephone call Lott informed Peel that the Union had been certified
by the Board and suggested that a meeting be arranged. Peel said that he
would like uniformity in the labor agreements affecting both Salt Lake City and
Idaho Falls. Lott told Peel that the Union had no objection as a general thing
to uniformity, but because the Atomic Energy Commission had located an
installation in the Idaho Falls area the wage picture was changing fast, and that
Lott felt there should be a differential in wage scales in favor of the Idaho
Falls area. Lott also pointed out that Local 983 had been successful in getting
a more liberal vacation clause than was usually obtained by the Salt Lake
City Local, and that there had not been any union-security clause in the Salt
Lake City agreements. Peel suggested that Local 983 prepare a proposal and
send it to him. Lott agreed to do this, which terminated the conversation.
At the hearing it was stipulated by the parties that on November 8, 1950,
the Union mailed to the Company its proposals in the form of a document en-
titled "Grocery Warehouse Agreement (1950-1951)." " This document is in the
form of a complete contract covering all the conventional conditions of employ-
ment. The principal features of this document were that the Union asked for
a union shop and a wage increase of approximately 33 cents an hour. It was
also stipulated by the parties that on November 16, 1950, Peel replied by the
following letter addressed to E. J. Mattox, the business representative of Local
983, at Idaho Falls, Idaho:'
Dear Mr. Mattox :
In connection with yours of November 8th submitting proporsal (sic)
for contract with the warehouse employees at Idaho Falls, we have the
following comments to make.
Article 2 we are not agreeable to as we do not believe that any man need
necessarily nelong (sic) to the union as a conditions (sic) of employment.
Article 7 we are agreeable to writing in the present wages we granted
in August:
Shipping and/or Receiving Clerks & Checkers------------------ $1.22
Cash & Carry Men, Order Runners, Stackers, Pilers, Warehouse-
men------------------------------------------------------- 1.17
Truck Drivers------------------------------------------------ 1.17
Beginner's Rate---------------------------------------------- 1.11
Article 8 overtime we suggest you word "all work in excess of 40 hours
in any one working week and work performed on Sunday to be paid at the
rate of time and one-half."
" Exhibit No. 2, in evidence.
8 This letter is Exhibit No. 3, in evidence.
SYMNS GROCER CO. 631
Article 9 in order to conform with our present practice and the contract
in effect with our Salt Lake employees we are agreeable to granting vaca-
tions at the rate of one week after one year and two weeks after three years.
Article 12 arbitration we prefer not to enter into any such agreement
as we believe we can settle our own problems with the union to better
advantage.
Article 6 in the matter of holidays while we do not recognize Armistice
Day we believe the situation to be slightly different in Idaho and it is
most generally recognized in the outlying territory. As there would be less
confusion there we are therefor, agreeable to recognizing Armistice Day
inasmuch as July 24th is not a recognized holiday in Idaho although it is
in Utah. This would have the effect of making the same number of holi-
days to the employees at Idaho as in Salt Lake.
In the matter of line drivers we have no such employees. We do have
one or two drivers who make short trips out of the city but they are only
for a day or a day and a half at a time and the rest of the week they are
employed within the warehouse. To make a distinction would cause endless
confusion. We offer this in order to clarify the situation as far as your
thinking may be concerned.
C. The disputed events
1. The conference of November 24
The next contact between Local 983 and Symns in the process of negotiation
occurred on November 24. Lott testified that Business Representative Mattox
wanted to go to Salt Lake City for Thanksgiving Day, so he suggested that
Mattox do that, and while at Salt Lake City that he confer with Peel in regard
to the contract.
Edward J. Mattox testified that in his first conversation with Walker, the
manager of Symns' Idaho Falls warehouse, Walker had told him that Peel was
the only officer authorized to bargain for the Company. On November 24 Mattox
and Harry W. Garrett, statistician for Joint Council No. 67, by previous arrange-
ment conferred with Peel at his Salt Lake City office. In the conference
Mattox told Peel that he was prepared to talk contract. Peel replied that he
wasn't desirous of talking about the Idaho Falls operation, since he had
negotiations coming up in the Salt Lake City operations, and as a consequence
he didn't want to do anything about Idaho Falls until such time as he had
completed negotiations in Salt Lake City. Mattox reminded Peel that it was his
understanding that the Salt Lake City negotiations were then some 3 months
away, and that Local 983 had complied with the Company's request for a
Board-conducted election, and that the employees at Idaho Falls were anxious
for negotiations. Peel again stated that he was more interested in Salt Lake
City. The men then discussed the situation and Peel said that he was desirous
of complete uniformity in the operations at Idaho Falls and Salt Lake City.
Peel then objected to the proposed pay scale, and Mattox told him that he
was there to discuss wages and bargain with Peel on that point. He asked'
that Peel make some offer of an increase which he could take back to the men•.
With that, Peel again said that he was desirous of uniformity in the Salt
Lake City-Idaho Falls operations. Mattox replied that the Union was not
too hard to get along with, and that an interim agreement would satisfy it,
if Peel was insistent upon waiting until he could negotiate a Salt Lake O1ty
agreement. After the conferees had discussed the feasibility and the proposed
terms of an interim agreement for some time, Peel said that he would not
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign a contract for less than 1 year's duration, or a contract for a year, which
was not substantially the same as his proposal of November 16. In the con-
ference Peel also objected to any form of union security in the contract, and
the conferees argued at length on that subject.
Mattox testified that the conference ended at about this point when Peel
said that he intended to come to Idaho Falls in the near future, and would
continue the negotiations with the Union at that time. It is undisputed that
Peel did not go to Idaho Falls until nearly 5 months later, some time after
the strike at Salt Lake City was settled.
Harry W. Garrett, statistician for Joint Council No. 67, testified that he ac-
companied Mattox on November 24 and engaged in the conference with Peel.
He testified that after mutual introductions were accomplished, Mattox informed
Peel that he was in Salt Lake City to negotiate a contract for the Symns em-
ployees at Idaho Falls on the basis of the union proposal which had been pre-
artously mailed to Peel. Peel said that he did not desire to negotiate a contract
for his employees in Idaho Falls at that time, because his employees, who were
members of Local No. 222 at Salt Lake City, would have their contract reopened
on the subject of wages in the new year, and Peel did not want to negotiate
any terms for the Idaho Falls employees which would conflict with the terms
that might come out of the negotiations at Salt Lake City. Mattox called
Peel's attention to the date upon which Local 983 had been certified as repre-
sentative of the Idaho Falls employees, and to the fact that there had been
no negotiations concerning a contract until that date. Mattox stated that he
felt strongly that negotiations should be undertaken immediately. Peel reiter-
ated his objections to negotiating in regard to Idaho Falls prior to the settlement
of the negotiations at Salt Lake City. At that point in the discussion Mattox
suggested to Peel that the parties enter into an interim agreement based on
Peel's proposal of November 16, which would be in effect until negotiations were
completed in Salt Lake City, at which time the parties could then negotiate a
contract for a definite length of time. In objecting to such a contract Peel
stated that the financial circumstances surrounding the Idaho Falls operations
were not satisfactory, and if the financial situation of the Company at Idaho
Falls did not improve, that it could very well be that the Idaho Falls operation
would be closed prior to the completion of negotiations in the Salt Lake City
area. Mattox then told Peel it appeared to him that Peel would accept neither
an interim contract on his own proposal, nor a contract for a year which was
based on the Union's proposals. Mattox informed Peel that the Idaho Falls
employees would be very unhappy at such an outcome to the conference. In the
course of the conference Mattox pointed out to Peel that the employees had
voted to authorize the Union to secure a union shop. Peel stated that he was
opposed to the union shop, and in discussing the point, again stated that if the
financial situation at Idaho Falls did not improve the operation might be closed.
Mattox and Peel had considerable conversation about the desirability of uni-
formity of wage rates at Salt Lake City and at Idaho Falls. In discussing this
point Mattox asked Peel if he would agree to give to the employees at Idaho
Falls the same terms and conditions of work as might be negotiated in the
forthcoming negotiations at Salt Lake City. Peel refused to commit himself on
that point. According to Garrett the conference came to a close when Peel stated
that he would be in Idaho Falls in the very near future and that he would talk
to the union representatives at that time.
Both Mattox and Garrett testified in a forthright manner , and their testimony
Is mutually corroborative. I credit their testimony.
SYMNS GROCER CO. 633
There appears to have been no contact either by letter, phone, or personal
interview between Local 983 and the Company between November 24 and Jan-
uary 6. Meanwhile the Salt Lake City Local had given timely notice to Symns,
Scowcroft, and Utah that it desired to modify the existing contract.
2. The telephone conversation of January 6
On January 6, 1951 , Lott was in Salt Lake City and he phoned to Peel at the
latter 's office. Opening this conversation Lott pointed out to Peel that the meet-
ing between Mattox and Peel on November 24 had not made any progress toward
reaching an agreement , and the Union was concerned about the imminent wage
freeze of the Wage Stabilization Board. Lott asked Peel if he would consider
giving an increase to the employees at Idaho Falls, explaining that the Union
was requesting all employers at that time to give a voluntary increase in wages
to offset the skyrocketing cost of living . Peel told Lott that he would be negotiat-
ing with the Salt Lake City Locals shortly , and that he was not interested in
whether or not there would be a wage freeze, nor was he interested in negotiat-
ing for Idaho Falls, until he had disposed of the negotiations in Salt Lake
City. Lott requested Peel to meet with representatives of Local 983 at Idaho
Falls, but Peel replied that he would not go to Idaho Falls to meet with them,
until such time as the Salt Lake negotiations were terminated . The next con-
tact of the parties was on March 1.
3. The telephone conversation of March 1
On that date Lott was at Salt Lake City. He talked to Fulmer H. Latter,
secretary of Local 222 and secretary of Joint Council No. 67, and to Ernest T.
Bailey, business representative of Local 222. He asked Bailey how negotiations
were proceeding as to the grocery warehouses in the Salt Lake City district.
Latter and Bailey informed Lott that no progress had been made.
After his conversation with Latter and Bailey, Lott phoned Peel. His version
of the telephone conversation is as follows :
A. I called Mr. Peel and asked him if we couldn't get together on a con-
tract, and he again told me that he had-that he could not meet with me
until he got the Salt Lake negotiations out of the road ; that he was in the
process of having a meeting with the Salt Lake grocer warehouses in con-
nection with the contract, and that until those negotiations were cleared up
that he would not meet with me. Well, first, I might say this, that I identi-
fied myself, and asked Mr. Peel if he was free at one-thirty, and he said,
"Yes," and I asked him to have a meeting, and he said he would be glad to
have a meeting, and then he asked what the purpose of the meeting was, and
I told him I would like to discuss the contract in the Idaho Falls area, and he
said that would be useless, he said "That would be a waste of time for us to
meet and discuss the contract until such time as we get the Salt Lake
negotiations out of the way." And I asked Mr. Peel then if he would give
us the identical contract-if that was his position, if he would give us the
same contract that Salt Lake had, and he said he didn't see any reason why
he should make any commitment as to what he would give us. I told him I
understood from Mr. Bailey and in talking with Mr. Latter that they had
made a request for twenty cents an hour increase, and that they had made a
request for a Union Shop. He said they would never get a Union Shop,
and I said, "Suppose they get one, will you give it to us?" He said, "No,
I wouldn't give-I am not making any commitments, whatsoever, as to the
Idaho Falls operation." And I said , "Well, then, probably we better use our
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic strength to force a contract , and do it in connection with and at the
same time, as I understand that Salt Lake is anticipating a strike in their
operations , and if that's the position of the company we probably better
use our economic strength at the same time that Salt Lake uses their's."
He said , "Go right ahead. You don't represent our employees, anyway.
You haven 't got a man up there. Everyone of them tells us that they don't
belong to the Union." I said , "Well, that isn't the certification, according to
the Board . We are certified, and," I said , "you are not following the desires
when you deny any discussion of the Union Shop, and the employees
voted one hundred percent for a Union Shop." We argued about that, and
he said they did not, and I asked him if he would grant us one if the certifica-
tion so showed that, and he said no, he would not. And he said, "If you
think that your boys will go on strike up in Idaho Falls, why, go right ahead.
You don't represent the employees up there, anyway. There isn't any of
them that belong to the Union." And so, I told him then that would probably
be our procedure, we would contact the Idaho Falls boys and see whether
they wanted to, and it would be up to them to decide, and the issue would
probably be decided whether we represented them by a strike vote of the
employees.
4 The strikes ; the hiring of replacements at a higher wage
It is undisputed that the negotiations at Salt Lake City foundered upon the
questions of wages and the union shop. On March 14 the employees of Symns
and the other grocery firms at Salt Lake City struck to enforce their demands
,on these subjects. On the following day, March 15, the employees of Symns at
Idaho Falls also struck. An informal strike vote was taken by the Idaho Falls
employees at a meeting with union representatives on the night of March 14.
The strike became effective on March 15, as on that date the employees ceased
work and began picketing the Idaho Falls store.
Despite the strike by all five employees Symns immediately took steps to keep
its Idaho Falls store in operation. According to records stipulated at the hear-
ing, on March 19 Symns had employed a full crew of replacements. Though
some replacements were terminated prior to April 3, new employees were im-
mediately hired to fill these places. After March 19 the Company operated with
a full crew of replacements!
It is undisputed that these replacements were hired and paid at a rate of pay
of 6 cents an hour more than previously paid to the strikers.
5. The conference of March 27
With the strike in full force and effect at both Idaho Falls and Salt Lake City,
there occurred no contact between the Idaho Falls Local and Symns until
March 27. Sometime shortly before March 27 a call for a meeting concerning
the strike at Salt Lake City was issued by Lyle S. Johnson, a conciliator of
the Federal Conciliation and Mediation Service. Lott testified that Fulmer H.
Latter's secretary at Salt Lake City notified him of the meeting and he attended.
The meeting was held at the office of the Industrial Relations Council, Salt Lake
City. The meeting was attended by several representatives of the Salt Lake
City Locals and by representatives of the various wholesale houses. At the
beginning of the meeting, the conciliator requested each of the representatives
at the conference to identify himself.10 When Lott identified himself as repre-
9 Chart, Exhibit No. 5.
10 No transcript of these proceedings was made.
SYMNS GROCER CO. 635
senting the Idaho Falls Local, Callister , attorney for the Respondent , objected
to Lott 's participation in the conference , and as an ultimate result Lott was
permitted to participate in the conference only as a spectator . Lott's testi-
mony on this point is as follows :
Q. (By Mr. Roll ) Now, will you relate what happened in that meeting
as it pertained to you?
A. Mr. Johnson, the Conciliator , whether it was a matter of procedure
I do not know , or whether there were so many faces that he wanted to
clear the record , asked the group that was sitting at the table if they
would identify themselves and who they represented , for clarification of
his records ; and it was started at the head of the table , and when I identi-
fied myself as of Local nine eight three , of Pocatello and Idaho Falls area,
Mr. Callister immediately objected to me sitting in the meeting; that I
was not a part of the bargaining unit; that historically it bore out that
the grocery warehouse had negotiated in the Salt Lake area for the Salt
Lake area as a group , and we were separate and apart as a bargaining
unit. And there was quite a considerable argument , and some of the other
employers objected from Salt Lake that was sitting there, and I told them
that our employees had gone on strike because we were unable to secure
a contract and for that reason we had asked Local nine-eighty-three (sic)
to notify us of any meeting of the Conciliation Service that the Service
called , as we understood or knew that they would be in the picture, and
that we would like to sit in with them in an effort to settle the Idaho
Falls strike at the same time.
As I say, when Mr. Callister raised the issue on the fact that we were
separate and had a separate election , the history of the bargaining unit
had not been-that we had not bargained in a group , that the Idaho Falls
had never been included , the Conciliator said he would have to go along
with the employers ' objection , but asked if there was any objection to me
sitting into the meeting as a spectator , and they said no, they had no ob-
jection as long as I had no voice in the negotiations.
Q. (By Mr . Roll ) I think you said that some employer representatives
commented . Do you recall any employer representative in particular?
A. I think Mr. Peel raised the objection , and Mr . Smith were the two
most emphatically . There was quite a heated argument-discussion for just
a few minutes as to my presence , that I was an outsider , and I had no
business there, and also the Conciliator said they would have to go on
because there was a different Regional Board , and as far as he was concerned
he had had no notification of Idaho Falls being in the dispute, and that
he could not allow me to sit into it, as we were under a different Board,
and unless the conciliation board had turned over the authority for con-
ciliation that I would not be allowed to participate.
Q. Clarence , I wish you would exhaust your recollection now on the
statement that you made before that group, as to the reason why you were
there, and why you were seeking to participate or seeking to sit in.
A. Well, our employees had gone out on strike to force a contract with
the Symns Wholesale , and in connection with it we felt that the-[Em-
phasis supplied].
Mr. CALLISTER. Well , just state what you said Mr. Lott, not what you
felt. In other words, we want just your conversation.
A. I made the statement that our employees were out on strike to force
a contract with the Symns Wholesale Grocery , and it was advantageous for
pus to go out on strike at the same time as Salt Lake , and that we were
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there for the same purpose as Salt Lake, to try to settle that-the strike, as
Salt Lake was out on strike, we were there to settle the strike in the same
manner and under the same conditions as Salt Lake settled it. [Emphasis
supplied. ]
Q. (By Mr. Roll) Did you set forth in your discussion at that meeting
any of the reasons why you were on strike?
A. Only the fact that we were out on strike to force a contract with
Symns, that they had failed to bargain with us, had failed to meet with us,
they had never been in the Idaho Falls area, had never once in the period
of the time from certification we had never had an employer representative
meet with us in the Idaho Falls area to discuss a contract'I [Emphasis
supplied.]
6. The settlement of the strike at Salt Lake City and negotiations in regard
to the strike at Idaho Falls
It is undisputed that this conference of February 27 reached a partial settle-
ment of the Salt Lake City strike. In the negotiations the representatives of
the Unions and the representatives of the employers were separated by the
conciliator. He worked with each group in turn . Finally, he reported to the
Unions that Scowcroft and Utah were willing to offer the Salt Lake City Local
an increase in wages of 6 cents per hour to be granted immediately, and a
further increase of 7 cents per hour to be effective when, as , and if, the Wage
Stabilization Board permitted the increase. The employers were also willing
to grant some union security which in form was a modified maintenance-of-
membership clause. These terms were acceptable to Local 222, Salt Lake City,
and Local 976, Ogden, Utah.
However, one stumbling block developed as to making the agreement appli-
cable to Symns. The settlement agreement for Salt Lake City provided that
all men on strike were to be reinstated to their positions. Neither Scowcroft
nor Utah had attempted to operate their warehouses with replacements during
the strike, so this particular provision contained no impediment to settlement
for those 2 companies. However Symns had hired 8 replacements at Salt Lake
City. On March 27, Peel took the position for Symns that he would not dis-
charge the replacements to make room for the return of the strikers. In all
other respects, including wages and a maintenance-of-membership clause, Peel
was agreeable to the terms of the Salt Lake City settlement. When Peel, on be-
half of Symns, objected to the settlement, that objection prevented settlement
by the other 2 firms with the Unions. So, despite the fact that all parties were
on the verge of settlement of the Salt Lake City strike, settlement was delayed
until the next day.'
Peel testified credibly that on the next morning he phoned Hampton of the
Industrial Relations Council and notified him that it would be all right for
Scowcroft and Utah to settle with Local 222 and Local 976, without Symns. He
further notified Hampton that he was prepared to settle on the same terms,
provided it was not necessary for him to discharge replacements to make room
for the return of the strikers. Scowcroft and Utah and Locals 222 and 976
then settled their strike, the strikers returning to work under the conditions of
the new contract"
ss Lott's testimony on this point was undisputed except that Callister in his brief testi-
mony claimed that he did not initiate the objection to Lott's participation.
"Findings in this paragraph are based on the credited, uncontroverted testimony of PeeL
23 This testimony of Peel was not disputed.
SYMNS GROCER CO. 637
With the negotiations of Local 222-Symns in this state, Local 222 took direct
action to break the impasse. According to the credited testimony of Ernest T.
Bailey , business representative of Local 222, that Union had kept in touch with
the men who had been hired as replacements at Salt Lake City. On April 5,
union representatives had a talk with these men, with the result that the replace-
ments joined the Union, and accepted jobs elsewhere, vacating the jobs they held
at Symns. With the jobs thus vacated, on the next day, Latter, secretary of
Local 222 and of Joint Council No. 67, called on Peel at his office.
7. The meeting, April 6
The only testimony as to this meeting was given by Peel. Latter did not testify.
Peel testified credibly that on April 6 Latter called at his office and told him that
the men who were employed on the Symns job at Salt Lake City as replacements
for the strikers had left Symns' employ. Latter then requested Symns to settle
the strike on the same basis as the other two companies had. Peel replied that
he was willing to settle the strike on the same terms as the other companies, as
long as he was not required to discharge the replacements whom he had hired,
and that inasmuch as that problem had been obviated, he would settle with
Latter as regards Salt Lake City. Latter then asked Peel if he would settle the
Idaho Falls strike. Peel again told Latter that he had hired a full crew of re-
placements at Idaho Falls, and he refused to discharge these men to make room
for the strikers. Peel stated that he was willing to extend all other terms of the
contract at Salt Lake City to Idaho Falls, but he would not discharge the replace-
ments. Latter then asked Peel if Peel would give him some time to see if the
union representatives could work out the situation at Idaho Falls in the same
way it had been worked out at Salt Lake City-by having the replacements join
the Union and take employment elsewhere. Peel stated that he was agreeable to,
any such arrangement and at Latter's request agreed to give Latter until the
following Monday morning to effect the arrangement. Latter asked Peel tQ
notify Walker, Symns' manager at Idaho Falls, that it was permissible for union
representatives to talk to the replacements on the job at Idaho Falls. Peel agreed
to do this, and phoned Walker that any union representatives who wished to talk
to the replacement were to be permitted to do so.
Later on this day, Latter called Peel and told him that he found it impossible
to go personally to Idaho Falls but would ask some of the Idaho Falls represent-
atives to try to effect the arrangement. Peel agreed that this would also be
satisfactory.
On Sunday, April 8, the conciliator notified all parties of a meeting at the office
of the Industrial Relations Council on the next morning, April 9.
8. Meeting of April 9
This meeting was attended by Peel ; Thoreson and Hampton of the Industrial
Relations Council; Mattox and Lott, Local 983; and Bailey and Latter, Local
222. Lott testified that at this meeting Peel offered to settle the Salt Lake City
strike with Local 222 on the same terms as the other firms had settled. It was
pointed out that now Symns had no replacements working at Salt Lake City.
Local 222 accepted the offer. Then Latter asked Peel if the same settlement could
be effected for Idaho Falls. Peel replied, "Absolutely not." According to Lott,
Peel said, "he would make a survey at Idaho Falls, and see what the conditions(
was in the next few days, and he would meet with us up there, but he would not
settle on the same conditions as he was settling in Salt Lake."
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peel in his testimony stated that at this meeting he offered to settle the Idaho
Falls strike on the same terms as the Salt Lake City strike, except that he refused
to discharge any of the replacements to make room for the strikers.
Lott testified that at this meeting he requested Peel to reinstate the striking
employees. Peel refused and suggested that if the union could prevail upon the
replacements to quit, as had been done at Salt Lake City, then the situation
would be clarified to the extent that Peel could make a contract with the Union.,
Lott testified that on April 13 he and Mattox went to the Symns warehouse at
Idaho Falls. Walker permitted them to talk to the replacements. Their con-
versation with the men lasted about an hour and a half, and was terminated
when Walker told them that the men had work to do. The Union was unsuc-
cessful in effecting the resignation of the replacements. When the representa-
tives of the local had finished talking to the replacements, Lott went into the
office, and accused Walker of talking to the men against resigning, and demanded
again that the striking employees be reinstated. Walker refused.
During all his testimony Lott's demeanor was that of a fair and candid wit-
ness. I credit his testimony, except that portion dealing with the conference of
April 9, which I have previously noted. In that testimony he appeared to have
not fully understood his questioner.
After the attempt of the union representatives to enroll the replacements in
the Union and accept employment elsewhere proved futile the strike continued.
Also Symns continued to operate its Idaho Falls warehouse with the crew of
replacements. Finally on May 18, 1951, the picketing of the warehouse was
discontinued.
9. Other testimony as to the cause of the strike ; alleged incidents of interference,
restraint, and coercion ; the alleged discharge of Ritchie and Carson ; status
of Carson
Reed T. Ritchie testified that he had several conversations with Manager
Walker. The first of these occurred on or about January 10. On this occasion
Walker told him that according to the newspapers the Wage Stabilization Board
was permitting raises, and that the men were going to get a raise, and that there
was no need to join the Union, that the Union wasn't any good, and for Ritchie
to stay clear of the Union and not waste his money.
On another occasion, about March 12, Ritchie engaged in a conversation with
employees Carson, Graves, and Forbush. The men were discussing why they
had not received the 6-cent per hour increase in pay, which the newspapers said
the Wage Stabilization Board would permit. While the men were talking Man-
ager Walker came to them and said that the men were getting a raise of 6 cents
per hour, that the Government had permitted it, and that it would be on their
next paychecks, due March 15. On the day after the strike Ritchie, Mattox,
and several employees went to the office of the Company for their checks.
Manager Walker told the men that the checks had been sent back to Salt Lake
City, so that they could be corrected, because the checks contained pay for
March 15, the first day of the strike, on which date the men had not worked,
and to take off the pay increase which had been computed into the amounts on
the checks."
14 In view of this testimony by Lott , it seems probable that Peel offered to settle on the
same terms as at Salt Lake City, except that he would not discharge replacements and rein-
state the strikers . I so find.
13 It should be noted in connection with this incident that the original checks were later
produced by the Respondents , and it was thereupon stipulated that the checks contained
no increase in pay, but did contain pay for March 15, which was consistent with the con-
tentions of the Respondents.
SYMNS GROCER CO. 639
On April 4, while Ritchie was engaged in picketing at the store, he had an-
other conversation with Walker. On that occasion Walker asked Ritchie what
he was doing. Ritchie replied that he was picketing for the Union, as the Union
felt that it needed a raise in pay and the men had been told they would get a
raise. Walker said, "Well, you are fired ; you can't come back in here and
work. If I were you I would get out of here because the union is no good, and
you are only paying money into it, I would slip off this picket line right now."
Harris Ranson, one of the striking employees, testified concerning the strike-
vote meeting. He said that at the meeting Mattox told the men that the local
could not arrange satisfactory bargaining conferences with Symns and for that
reason the men struck. On cross-examination Ranson also testified that at the
meeting Mattox informed the men that the employees at Salt Lake City had
struck, and that fact also was a reason for their strike on the following
morning.
On March 16 Ranson was in the group of employees who went into the store
for their checks. Walker told the men that he had sent the checks to Salt Lake
City for correction, and that "if we had stayed we would have got a raise. that
our wages would have been a dollar twenty-three for the warehousemen.""
Lryle Carson: In the course of the hearing a question arose as to the super-
visory status of Carson as foreman of the warehouse, the General Counsel con-
tending that Carson was an employee,'? and the Respondents that he was a
supervisor.
In testifying as to his duties Carson appeared to be fully conscious of his
personal stake in maintaining and proving that he was not a supervisor. He
was evasive on simple questions, the answers to which might tend to establish
his supervisory status, and was fulsome in his disclaimers of any real authority
in the warehouse.
He testified that at the time he was hired it was his understanding that one
Wright was foreman. Later on he was given the title of foreman, but he
"couldn't say that I was a foreman." He replaced the former foreman when
the latter became a salesman in 1949. Carson testified that when the
former foreman went on the road, "of course they had to have somebody in
there in his place, and they asked Charley Graves if he wanted it, and he re-
fused and he recommended me." Carson testified that he didn't want the posi-
tion, but that McIntyre, the then manager, prevailed upon him to take it. Car-
son hesitated about taking the job, because he is not the kind of a man who can
give orders. He testified that the only job that he estimated he was capable of
was working in the warehouse. He did not remember whether Walker, the
manager, outlined the scope of his authority ; or told him what he was supposed
to do. He testified that "he just took it for granted that he was just another
employee in the warehouse." He received a raise of 5 cents per hour at the time
he took the job. He stated that as foreman he performed the same duties as he
had performed as a warehouseman previously ; that there was only one change
in his job, and that was that he was given a key to the warehouse. One new
duty he gained was making out the freight bills and invoices in a little office.
Carson explained that each night he checked the freight bills with the manager,
and then the bills were placed in the files.
16 Apparently this is the correct version of Walker's statement , in view of the fact that
the checks did not contain a raise.
17 In the General Counsel 's complaint Carson was alleged to be an employee , while in the
General Counsel 's bill of particulars Carson was named as a person whose conduct could
bind the Company. At the bearing the General Counsel took the position that Carson was
an employee.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to his authority as foreman in the warehouse, Carson testified that Walker
called him the foreman, and said he had authority to order the boys around,
but that he refused to do so. Carson stated that it was sometime in February
1950 that Walker told him he had authority to order the boys around. The
witness testified that on this occasion Walker was trying to "bolster" him as
foreman to boss the other fellows around, but that he refused to give orders.
Orders were given in the following way-"Mr. Walker wanted something done
at times he told the men out in the warehouse, and at times he told me, and I
would relay that to the men." He did not hire anyone, nor was he ever told
that he had authority to hire anyone. He never fired anyone nor recommended
that they be fired. He never trained any new employees. When he decided
something should be done in the warehouse, he did it himself or asked the other
fellows to help him, and they always complied with his requests. He never
criticized any of the men in the warehouse for the manner of work performed;
never told men what orders to fill, or told truckdrivers when to take their trucks
out. He had never checked with the customers as to service, or received com-
plaints from customers, or complained about any man's tardiness. He did not
keep the men's time. He said the men might "mention" a raise, but they didn't
come and ask him for a raise. He received no complaints from the men.
Sometimes he worked overtime when shipments were received late. He did
not receive overtime pay for this, but Walker would allow him some overtime
pay later on. Sometimes on Saturdays he went to the warehouse to let the cus-
tomers have orders, but did not receive extra pay for that. He aloae did the
billing in the billing office. He was instructed by Walker to report any dif-
-culty in the warehouse. On 1 or 2 occasions he spoke to Walker about men
not performing their work properly. He did not know what steps Walker took
thereafter in regard to the men.
Carson was far from being a disinterested witness on this point. I credit
his testimony on his duties only to the extent that it is corroborated by other
witnesses. On other points Carson appeared to testify much more disinter-
estedly.
Carson testified credibly to a conversation with Walker, the manager, on the
day of the strike. His testimony is as follows :
A. I handed him the keys, and told him I guessed I didn't have any more
use for them, and he-I believe at that time he told me that I didn't have
to go out on strike, that I was supposed to be a foreman, and I didn't have
to go out on strike. And I informed him that I was sticking with the boys,
and even if I didn't go out on strike I would be canned for not reporting for
work, as I wouldn't cross the picket line. And he said at the time that he
felt sorry I felt that way about it, and I told him that was the way it had
to be, and I believe then I walked on out. (Emphasis supplied.)
Q. (By Mr. Roll) Did you discuss with Mr. Walker the reason why you
were on strike? Did you give him a reason?
A. Yes, he asked me-or, I told him that we were striking, as we were
after a contract. And we spoke about Union Shop there, and he said that
was out, that we could not-we would never get the Union Shop, that
Symns Wholesale, or, if I remember correctly, Mr. Peel at Salt Lake would
close the doors before he would grant us a Union Shop.
Q. Well, what reason did you give him for striking, at that time?
A. Well, we were after, trying to negotiate for a contract, and didn't
seem to be getting anywhere with it, and it had been some time, and we
was getting worried, you know? more or less what was happening and what
was going to happen.
SYMNS GROCER CO. 641
Carson testified that at the strike-vote meeting Mattox told the employees that
the employees at Salt Lake City had gone out on strike , and asked the employees
if they wished to strike at Idaho Falls , as it would probably be advantageous
to them.
Carson also testified that on April 4, while Ritchie and he were doing picket
duty, he also had a conversation with Walker , in which Walker asked him why
he didn 't leave the picket line and find a job . Carson replied that the men were
out temporarily , until this thing was settled . Thereupon , Walker told him that
as far as Symns was concerned , "they were out for good ." Walker then advised
Carson to sneak off the picket line and find employment elsewhere . Walker
did not testify , so the above conversations are uncontroverted . I credit Car-
son's testimony as to these conversations.
Reed T. Ritchie testified that Carson was foreman in name but not in pay,
explaining that though Carson had the title of foreman , his pay was the same
as that of the witness . Later he corrected this statement saying that he had
only seen Carson 's pay on one occasion and thought it was the same as his
own. He testified that Walker would ask Carson to have something done, and
then Carson would come out and ask the warehouse crew to do it. He stated
that Carson never forced them to do these things . He testified that if Carson
had given him an order that he didn't want to obey, that he would have refused
unless he was being "polite " or perform the task "as a neighbor."
On cross-examination Ritchie testified that when he went to work at Symns,
Walker told him that Carson was foreman of the warehouse . Walker was away
from the warehouse a good deal of the time . On occasion the witness observed
Carson give orders to others . Ritchie stated that Carson performed manual
labor along with the rest of the men , but that in addition to that, he also per-
formed the billing of the Company , which he performed in a little office.
Harris Ranson testified that he is a truckdriver for the Company . Wright
was the foreman of the warehouse at the time he was employed, and Wright
was subsequently replaced by Carson . This witness testified that on certain
occasions Carson told him to do certain things, "but he had been told to tell
me." He explained that when it was necessary to do something around the
warehouse Walker told Carson , and Carson told the men what to do. He stated
that the work of the warehouse was largely routine and that Carson needed
to direct the men on only rare occasions . Ranson testified that when his-
truck broke down he took the other truck without consulting Carson. He
testified that Carson "was more or less a leadman" explaining that "he would
get his orders from Walker, and he would give them to me." On cross -exami-
nation he admitted that Carson took Wright's place. The witness admitted
that Wright gave some orders . Wright would get his orders from McIntyre,
and then come out and tell the men when , how, and what to do. He admitted
that Walker was away a good deal , as he was salesman in addition to being
manager.
Both Ritchie and Ranson in their testimony exhibited a desire to assist Carson.
Their testimony on this point was by no means disinterested . I credit their
testimony only in part , as set forth later herein.
10. The defense of Respondent Symns
The principal witness for the Respondent was Peel 38 He testified that Mattox
and Garrett called on him on November 24. Mattox opened the conference
ie Callister , attorney for the Respondents , testified briefly, principally to fix a date and to
deny that he instituted the objection to Lott's participation in the conference of March 27.
This denial by Callister is of minor importance, as it is clear that a Symns representative,
either Callister or Peel , started the objection.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by saying that he would like to talk about the contract which the Union had
sent to the Company. One of the union representatives had a copy of the
Symns contract at Salt Lake City which was very close in wording to the
contract which Mattox had sent to the Company . Peel stated to the union
representatives that the Company would like to have uniform rates of pay
and conditions of work at both Idaho Falls and Salt Lake City ; that the Com-
pany had given a wage increase in August and Peel thought that it was too
early for another one. He suggested that the rates of pay then in effect, which
were stated in his written proposal to the Union , be kept as the present scale.
Mattox then said that the contract as regards Idaho Falls was not as good
on vacations as the contract at Salt Lake City . Peel replied that the Company
would make the two contracts conform. In the course of the conversation Peel
told the union representatives that if the Company granted the wage increase
which was asked by the Union and their competitors did not have to pay the
same increase , that the Company would not be able to stay in business, as it
couldn 't compete . He also told them that the competitive situation of the
warehouse at Idaho Falls had become increasingly difficult. He explained that
the free delivery of groceries to points 200 miles distant from the Company's
base was an expense which was making the Company 's operation at Idaho
Falls unprofitable , and that if something wasn 't done to remedy the situation
the Company would be out of business . In the discussion of wages Peel ex-
plained that they didn 't have any "line-drivers " as such and there wasn't any
reason to provide for such employees in the contract . Peel told the union
representatives that he had suggested a contract in his letter of November 16,
and that he was willing to sign a contract embracing the terms of his proposal.
He also told them that the Salt Lake City contract would be up for negotiation
shortly, and that the Company was unable to tell what the wage increase
would be at Salt Lake City , so he couldn 't tell them what the Company would be
able to give the employees at Idaho Falls.
Peel testified that the conferees spent considerable time discussing the union
shop. The union men extolled the advantages of the union shop, with Peel
replying that he had been hearing that for better than 9 years, and that the union
representatives hadn't succeeded in telling him anything new. Peel said that
the conference was friendly, and that as he left Mattox said in a friendly way,
"Well, get us some word as soon as you can, but under any circumstances we are
going to have the union shop."
Thereafter Peel heard no more from the Union until he received a phone call
from Lott in early March . At the start of this conversation Lott asked Peel
for a conference and Peel replied that he would be glad to see him after 2 p. m.
that afternoon , but asked what he wanted to talk about . Lott said he wanted to
talk about a contract for Idaho Falls. Peel said that he had an understanding
with Mattox and Garrett that these negotiations were going to be settled along
with the Salt Lake City proposition . Lott asked Peel about a union shop, and
Peel said that they were no closer on that point than they had ever been. Lott
then said , "Well , I guess we will have to show our economic strength ," and Peel
asked him if that was a threat . Lott did not answer that, but said , "I under-
stand they are going to take a strike on the union shop at Salt Lake City and
if they win it, can we have it at Idaho Falls?" Peel said , "If they have it at
Salt Lake City I can see no reason why you shouldn 't have it at Idaho Falls."
Lott said , "I guess there's not much use in my coming down to talk about these
things." According to Peel that was the extent of the conversation with Lott on
this occasion.
SYMNS GROCER CO. 643
On March 14 the employees of the Company at Salt Lake City struck, and on
the following day the employees at Idaho Falls struck. Symns determined to
continue operations despite the strike and hired three replacements at Salt Lake
City, and a full crew at Idaho Falls.
Peel admitted that the replacements at Idaho Falls were hired at a rate of pay
6 cents higher than had been paid to the strikers. He explained that on March
15 Scowcroft, at Idaho Falls, had granted a 6-cent an hour increase, and Walker,
without Peel's authority, had given the same pay raise to the replacements whom
he had hired. A similar wage raise was not given to the replacements at Salt
Lake City, and Peel did not know the raise had been given at Idaho Falls until
2 weeks later, when he saw the payroll at the end of the payroll period.
Peel testified that after the strike his first meeting with representatives of
Local 983 was at the conference of March 27 at Salt Lake City. His version of
the conference was substantially the same as that given by Lott, which has been
set forth previously. The conference of March 27 according to Peel resulted in
an agreement on wages and union security, but final settlement was delayed
until the following day, over the obstacle of Symns replacements, at which time
Peel notified the Industrial Relations Council that Scowcroft and Utah could
settle without Symns.
Peel's testimony as to his conference with Latter on April 6 has been previously
set forth.
Peel's version of the conference of April 9 is at some variance with the testi-
mony of Lott as to this conference Peel testified that his message to the
Industrial Relations Council on March 28 offered to settle the strike as to both
Idaho Falls and Salt Lake City, on the same terms as Scowcroft and Utah had
settled, provided that Symns was not required to discharge the replacements at
either Salt Lake City or Idaho Falls to take back the strikers. At the meeting
of April 6 when Latter reported that the replacements at Salt Lake City had
quit, he reaffirmed his offer to settle at Idaho Falls on the same terms, and gave
Latter until the following Monday to effect the withdrawal from employment of
the replacements at Idaho Falls. Peel testified that on April 9, when the Symns-
Salt Lake City strike was settled, he offered to extend the same contract to
Idaho Falls, provided only that he would not discharge the replacements to make
room for the strikers. However, he offered to reemploy the strikers as openings
in employment occurred.
Peel also testified that on or about March 27 when the negotiations at Salt
Lake City were entering a crucial stage, he had a telephone call from the mayor
of Idaho Falls. The mayor asked Peel what could be done to settle the strike of
employees at Idaho Falls. Peel told the mayor that he realized Symns was under
a duty to bargain with the Union, even though it had no employees in the ware-
house at Idaho Falls at that time. He told the mayor that he could not go to
Idaho Falls at that time, because of negotiations at Salt Lake City, but that very
shortly he would go to Idaho Falls. Some few days after the settlement of the
strike at Salt Lake City, Peel went to Idaho Falls. He called on the mayor and
learned that the mayor had been defeated in a recent municipal election, and was
no longer interested in the settlement of the strike. On this occasion Peel also
went to the office of Mattox at the Labor Temple. He found that extensive repairs
and remodeling were being effected to the offices of the Union. After some
trouble he located the office girls in Mattox's office. They informed him that
Mattox was out, and that they did not know when he would return. On the
following day Peel again went to the Labor Temple. On this occasion he was
informed that Mattox was at Arco, a neighboring city. That ended his efforts
to talk to representatives of Local 983. Peel denied that the mayor had asked
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peel to come to Idaho Falls, and the former mayor did not testify in this proceed-
ing. As to the nature of the telephone call from the mayor to Peel and the
ensuing conversation, I credit Peel's undisputed testimony. I also credit his
undisputed testimony as to his visits at the Labor Temple.
Peel testified that in addition to exceeding his authority in giving the replace-
ments a higher rate of pay, Walker had acted without authority if he had dis-
cussed the Union with the employees and if he had stated to striking employees
that they would not be reinstated. Peel stated that Walker, as manager, was
without authority in those matters.
In general I have credited the version of the various conferences given by Lott,
Mattox, and Garrett, rather than the version furnished by Peel. The union
representatives appeared much more candid than Peel. He appeared to tailor
his testimony on occasion to suit the Company's needs, as exemplified by his
testimony related immediately above, as to Walker's lack of authority. In view
of the undisputed evidence that Walker was the Idaho Falls manager for Symns,
I cannot accept this limitation of his authority.
Concluding Findings
In the light of all the credible evidence I find that the strike of the employees
at Idaho Falls was an unfair labor practice strike caused by the unfair labor
practices of Symns.
As I review the evidence of these negotiations, many points of which are un-
disputed, I am constrained to conclude that Symns never bargained in good faith,
but, on the contrary, sought to nullify by a policy of delay the right of Local 983
to bargain, while by other unfair labor practices it sought to undermine the
Union. Symns never afforded to its employees or their certified representatives
the good-faith bargaining required by the Act.
At the local's first approach to bargaining, Walker, the manager at Idaho
Falls, informed the local that Peel at Salt Lake City was the only one author-
ized to conduct negotiations for Symns. At that point, the local could have
asserted its rights and insisted that bargaining take place at Idaho Falls, but,
instead of standing on its rights, it accepted the situation as presented by the
Company, and instituted negotiations with Peel at Salt Lake City. It may be
argued that at that point the local waived the right to have bargaining at Idaho
Falls. As I view the evidence, it made no such waiver. It was seeking good-
faith bargaining, and accepted the implicit assurance of the Company that
Peel at Salt Lake City would afford the Union such bargaining. Relying on
this assurance, Local 983 then initiated negotiations with Peel at Salt Lake
City. This led to the exchange of proposals, the Union asking, among other
things, a wage increase and a union shop, the Company offering only to maintain
the status quo, with a minor change of one additional holiday. On November
24, the parties met face to face for the first time in the conference of Mattox
and Garrett with Peel.
From all the credible evidence as to this conference it is clear that the local
sought a contract, which would implicitly carry recognition of the Union. From
the tenor of these negotiations it is clear that the representatives of the local
were by no means sure, even at that date, that Symns recognized the local as
the representative of its Idaho Falls employees. In this conference, Peel im-
mediately proposed that all negotiations be postponed until after the Salt Lake
City negotiations, on the plea that he desired uniformity of working conditions
at Salt Lake City and Idaho Falls. This would postpone negotiations for
approximately 3 months. At that point negotiations had been delayed 2 months.
The representatives of the local opposed this new delay. In the course of the
SYMNS GROCER CO. 645
conference, Peel refused to accept the proposed contract of the local as a basis
for negotiations, and proposed a contract embodying the existing working
conditions. When he insisted that the Salt Lake negotiations should precede
the Idaho Falls negotiations, the representatives of the local proposed an interim
agreement based on Peel's proposals , which would be effective until the Salt
Lake negotiations were terminated. This proposal of the local representatives
was the reasonable procedure which would lead to uniformity in the Salt Lake
City-Idaho Falls agreements, for after the Salt Lake negotiations had resulted
in a contract, the Idaho Falls contract could be made to conform to it. Peel
would have none of it. At that point the bad faith of the Respondent became
manifest. It would not sign a contract for a year on the Union' s terms, or sign
an interim agreement based on its own proposal. Furthermore, it sought delay
on the plea that it sought uniformity in working conditions, but it would not
agree to give Local 983 whatever benefits were won by the Salt Lake City locals
in that negotiation.
Mattox testified that as this conference ended Peel said that he would come to
Idaho Falls shortly and continue the negotiations, a statement which was never
fulfilled. I credit the version of the conference given by Mattox and Garrett.
Peel's failure to go to Idaho Falls is further evidence that the Respondent was
not in good faith. I do not credit Peel's testimony that no such statement
was made by him.
In the negotiations of November 24, Mattox told Peel he would like some
offer of a wage increase to take back to the men, who were becoming restive.
Peel refused to give Mattox any offer or assurance of an increase.
On January 6 Lott called Peel. Lott asked Peel if he would consider giving
the men at Idaho Falls a raise in view of the skyrocketing cost of living, and
the imminent wage freeze by the Wage Stabilization Board. Peel told Lott
he would be negotiating with the locals in Salt Lake City, and that he was not
interested in whether there would be a wage freeze, nor was he interested in
negotiating for Idaho Falls until the conclusion of the Salt Lake City negotia-
tions. This language of Peel's constituted an outright refusal to bargain. The
local had a right to bargain with Symns independently of the Salt Lake City
negotiations. Peel unilaterally and arbitrarily suspended this right until the
conclusion of the Salt Lake City negotiations.
On March 1 the bad faith of the Respondent was further disclosed. On that
date, with a strike of the Salt Lake City Locals imminent, Lott asked Peel if
the Company would give Local 983 the same contract as would come out of the
Salt Lake City negotiations. Here again, Peel was presented with a procedure
which would give his Salt Lake City-Idaho Falls operations the uniformity
which he claimed he sought. He refused to commit himself, and then, when
Lott said that Local 983 would under those circumstances probably strike, Peel
said , "If you think that your boys will go on strike up in Idaho Falls, why, go
right ahead. You don't represent the employees up there anyway. There isn't
any of them that belong to the union." So, after the Board election and certifi-
cation, and all the phone calls and conferences, Symns had completed the
circle of sham bargaining, and now denied the Union's majority status and
defied it to strike.
Further evidence of the Respondent's bad faith is contained in the pay
raise which was granted to replacements for the strikers on March 17, 1951.
On at least two occasions, Peel had refused to give any wage increase to his
veteran employees at the request of their certified bargaining agent. Yet, on
the first days of the strike, replacements for these employees were hired at a
rate of pay 6 cents higher than the strikers were paid, without any consultation
with Local 983. In addition to this unilateral pay raise being evidence of
257905-54-vol. 103-42
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Symns' bad faith in bargaining, I find it constitutes an independent violation of
Section 8 (a) (1) and (5) of the Act."
In his testimony Peel stated that Walker did not have authority to hire the
replacements at that wage, and that he didn't know of that fact until some
2 weeks later. That is no defense under the circumstances. Walker was
Symns' manager, at Idaho Falls, clothed with all the conventional authority of
that office. He had authority to hire replacements when the strike occurred,
and I find that this authority included authority to determine how much the
replacements would be paid. Furthermore, crediting Peel for the moment, when
he learned of the raise, Symns did not disavow the act, but continued the raise
in effect . Finally, I cannot accept Peel's testimony that he did not know of
this raise when it was granted. He alone was directing all negotiations, and he
had full control of the Company's labor relations. Certainly he must have
known when and how replacements were obtained. That this raise in pay
prolonged the strike is obvious. When the Salt Lake City Locals talked to the
replacements at Salt Lake City, those men joined the Union and quit Symns.
However, when the same proposition was broached to the Idaho Falls replace-
ments, who were paid the higher wage, they refused to resign, so the strike
continued.
There are several features of the local's conduct which gives a semblance of
validity to the claim of Symns that the strike was economic in nature. However,
this semblance of validity vanishes upon close examination. The first of these
features is that the local was not more vigorous in demanding that negotiations
take place at Idaho Falls, and that the negotiations for Idaho Falls proceed
immediately, without reference to the Salt Lake City situation. There is no
question but that the local was not firm on those points. However, it sought a
contract with Symns. It believed itself dealing with an employer whose good
faith was equal to its own. It was willing to inconvenience itself by going to
Peel at Salt Lake City, and if agreement on a contract resulted, the inconvenience
was of no consequence. At all times it pressed Symns for a commitment as to
a contract for Idaho Falls. Symns interposed the Salt Lake City negotiations as
an excuse for postponing the Idaho Falls negotiations. It was Symns whose
conduct thus brought the actions of the Salt Lake City Locals and Local 983
together. On this point too, Local 983 was reasonable and patient. It did not
insist that its own negotiations take precedence, but it did insist on at least some
commitment. First, the local sought independent negotiations, and a contract
of its own, without regard to the Salt Lake City negotiations. Peel demurred,
interposing the Salt Lake City negotiations. Then the local asked for an interim
agreement based on Peel's proposals. He demurred again, with another reference
to the Salt Lake City negotiations. Finally, in view of his frequently stated
desire for uniformity as to working conditions at Idaho Falls and Salt Lake City,
the Union asked, in substance, if it postponed negotiations and a contract, would
Symns give the local the same contract as it would give to the Salt Lake City
Locals. When Symns refused to commit itself on that proposition, despite
Peel's repeated assurances that the Company sought uniformity in the contracts,
the local concluded that Symns was not in good faith and took strike action. The
Respondent now claims that the patience and forbearance exhibited by Local 983
on these points is evidence that Local 983 was unaffected by the unfair labor
practices of the Company, and struck for economic reasons only at the same
time as the Salt Lake City Locals. I cannot accept that proposition. In agreeing
to negotiations at Salt Lake City, and in not insisting that the negotiations for
Idaho Falls proceed without reference to the negotiations at Salt Lake City, Local
10 N. L. R. B. v. Deena Artware, Inc., 198 F. 2d 645 (C. A. 6).
SYMNS GROCER CO. 647
983 was deceived by Peel's representation that he wanted uniformity in the
contracts. This representation was proven untrue by Peel's refusal to commit
the Company to grant Local 983 the same benefits it would grant to the Salt Lake
City Locals.
Even when the parties met at the invitation of the United States conciliator
on March 27, Symns objected to the participation of Local 983 in the conference.
That action too belied the Respondent's soft-spoken plea for uniformity in its
labor agreements.
For the foregoing reasons, I find that Symns violated Section 8 (a) (1) and (5)
of the Act by (1) failing and refusing to bargain in good faith with Local 983
on and after September 15, 1950; and (2) by instituting a pay increase for its
employees without consulting the certified bargaining representative of its
employees on March 17,1951.
Walker was manager for Symns at the Idaho Falls warehouse, and was clothed
with all the conventional authority of such a supervisory official. The Company
has denied that Walker had authority for certain conduct toward the employees.
I find that contention without merit. Walker was the only supervisory employee
of Symns at Idaho Falls As manager he had unusually complete authority over
the operations at that warehouse. According to Peel's own testimony, he rarely
went to Idaho Falls, leaving the routine management of that operation almost
entirely to Walker. Under the circumstances Symns cannot disavow the conduct
of Walker in dealing with employees. I find that Symns, through Walker, com-
mitted various acts of interference, restraint, and coercion in violation of Section
8 (a) (1) and (3) of the Act. They may be summarized as follows : 20
a. On or about September 22, 1950, Walker had a conversation with employees
Graves, Ritchie, and Forbush in which he admonished the men against joining
the Union, and said that if they didn't like their jobs they could quit.
b. On October 4, 1950, he asked employee Harris Ranson what he thought about
the Union, and told this employee that Symns would never grant a union shop at
the warehouse
c. On or about January 10, 1951, he told Ritchie that the Wage Stabilization
Board was going to permit a 6-cent per hour raise, that the employees were to
be given a raise by the Company, and that there was no need of joining up with
the Union ; that the Union wasn't any good ; that it wouldn't do Ritchie any
good ; and for Ritchie to stay clear of the Union ; and that he would only be
wasting his money in paying it into the Union.
d. On April 4 he told Ritchie that he was fired ; that if he were Ritchie, he
would get out of the picket line, because the Union was no good, and Ritchie
was only paying money into it ; and urged Ritchie to stop picketing.
e. On April 4, 1951, he told employee Carson that he was "all through" at Symns
and urged Carson to leave the picket line and find a job.
f. On March 15 he told Carson that Peel would close the doors of the Idaho
store before he would grant a union shop to the employees.
Upon the foregoing undisputed testimony I find that Walker on April 4 dis-
charged employees Carson and Ritchie because of their engaging in union and
strike activities, in violation of Section 8 (a) (1) and (3) of the Act. Walker's
conduct could not be termed a tactical maneuver to get the men back to work.
It had an opposite purpose, to discharge the men, to stop the picketing, and to
subvert the strike.
Upon all the credible evidence I find that the strike of the Idaho Falls employees
on March 15. 1951, was caused and prolonged by the unfair labor practices of
Symns.
20 These findings are based on the undisputed testimony of employees.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the strike was caused and prolonged by Symns' unfair labor practices, it
follows that the striking employees were entitled to their reinstatement upon an,
unconditional offer to return to work. I further find that on April 9 and 13,
1951, Local 983 made unconditional offers to return to work on behalf of all the
striking employees.
It is undisputed that on those dates Lott requested that all the striking
employees be returned to work. On April 9 Peel refused the request, stating that
he would not discharge the replacements to make room for the striking employees.
On April 13 Walker also refused. Since the strike was an unfair labor practice
strike, Symns was required under the Act to discharge the replacements and
reinstate the strikers. Lott's offer, on behalf of the union members, to return
to work was unconditional. I find, therefore, that Symns violated Section
8 (a) (1) and (3) of the Act by its failure to reinstate the striking employees
on April 9 and 13,1951.
I find upon all the credible testimony that Lyle Carson was an employee and
not a supervisor. The record on this point is not as clear as might he desired.
As I have previously noted, the employees who testified concerning Carson's
duties were prejudiced in his favor, and no substantial evidence was offered by
the Respondents to support their contention that Carson was a supervisor. Thus
the decision on this point must be based upon the testimony of interested wit-
nesses. I have attempted to evaluate this testimony and to accept it at a proper
discount. From all the evidence it is clear that Carson had no authority to hire
or fire employees or to effectively recommend the same. Apparently he had no
authority to initiate changes in the warehouse routine, or in any other way to
exercise his own judgment and initiative. He was paid 5 cents more than the
other warehousemen and truckdrivers, which appears to be a very insignificant
differential ; and he was paid on an hourly basis, the same as other employees.
He performed manual labor with the other employees, and in addition performed
the duties of a billing and receiving clerk. He had a key to the warehouse. If
any man did not perform his work properly Carson reported him to Walker, and
thereafter Carson had nothing to do with any disciplinary action. The evidence
establishes that Carson was known as foreman of the warehouse. The strongest
piece of evidence to the effect that Carson was a supervisor is his testimony as
to the conversation he had with Walker on the day of the strike. In that
conversation Walker told him that he was "supposed to be a foreman" and was
thus not affected by the strike. Carson replied that he was "sticking with the
boys and that he might as well go on strike as be fired for not crossing the
picket line." This testimony seems to establish that both Walker and Carson
considered Carson to be a foreman, but their estimate of Carson's status is not
dispositive of the question of whether Carson is an employee or supervisor, in
fact, within the meaning of the Act.
Upon all the credible evidence it appears that Carson was a slightly more
valuable and more trusted employee than the other employees. The 5-cent dif-
ferential in pay seems indicative of Carson's true status in relation to the other
employees. It appears that he was vested with none of the authority which de-
notes a supervisor within the meaning of the Act." I therefore find that Carson
was entitled to reinstatement with the other employees.
n Section 2 (11) reads : "The term `supervisor ' means any individual having authority,
in the interest of the employer , to hire, transfer , suspend, lay off, recall , promote, dis-
charge, assign, reward, or discipline other employees , or responsibly to direct them, or to
adjust their grievances, or effectively to recommend such action, if in connection with the
foregoing , the exercise of such authority is not of merely a routine or clerical nature, but
requires the use of independent judgment ." See Continental Oil Company , 95 NLRB 35S;
Hazen and Jaeger Funeral Home, 95 NLRB 1034.
SYMNS GROCER CO. 649
Liability of Respondent Idaho
At the hearing it was stipulated that Utah Wholesale Grocery Company agreed
on June 13, 1951, on behalf of a corporation to be formed by it, Idaho, to purchase
the Idaho Store from Symns. The agreement was the culmination of negotiations
begun on approximately April 13, 1951. The bill of sale transferring the business
was signed on July 25, 1951, but dated July 7, 1951.
Thereafter the new owner, Idaho, continued Walker in his capacity as manager,
and continued to operate the business with the replacements as its employees.
Idaho continued the operations of Symns with the old customers, and such new
customers as it acquired.
It was further stipulated by the parties that the sale was bona fide, and that
Idaho was a wholly owned subsidiary of Utah Wholesale Grocery Company, a
competitor of Symns.
The General Counsel stated also that he did not claim that the sale was
made for the purpose of evading any liability on the part of Symns, and at another
time stated that Local 983 had not made any demand for bargaining upon
Idaho.
In the course of his testimony Peel stated that in the negotiations for the sale
of the Idaho store he represented Symns, and A. B. Smith, general manager
for Utah Wholesale Grocery Company, conducted the negotiations for Utah's new
subsidiary, Idaho. According to the testimony of Lott, the same individual,
Smith, was the representative of Utah in the labor negotiations which took
place at Salt Lake City. Lott specifically mentioned that Smith joined in Peel's
objection to his participating in the conference of March 27.E Also, from the
stipulation it follows that negotiations for the purchase and sale were instituted
at about the time Lott made unconditional offers on behalf of the employees to
return to work Also, at the time negotiations began, and for some time there-
after, the picketing of the Idaho Store was in full force. The undisputed testi-
mony is that the picketing continued until May 18, 1951.
It is also undisputed that this proceeding against Symns was instituted before
the negotiations for the sale of the business began. The original charge herein
is dated March 29. 1951. It was filed by the local in the Regional Office on April
2, 1951. After that date, the charge remained on file at the Regional Office,
and this proceeding was at all times pending.
From these facts, and the stipulations of the parties as to the continuance of
the Idaho Store by Idaho, I conclude that Utah, the parent corporation, and Idaho,
the subsidiary, had knowledge of such facts as would reasonably put them on
inquiry as to the unfair labor practices of Symns, and that Idaho had constructive
notice of Symns' unfair labor practices and of this proceeding.
I also find upon all the evidence that the Respondent Idaho is the successor
of Symns, and that it has accepted the benefits of Symns' unfair labor practices,
has continued Symns' discriminatory labor policy, and has taken no steps to
remedy the continuing unfair labor practices. In fact, it has continued to give
effect to the unfair labor practices of its predecessor. This is evidenced by the
fact that it has installed Symns' former manager, Walker, as its manager, and
has accepted as its employees the replacements, employed by Symns, to the ex-
clusion of the striking employees, and their certified bargaining agent, Local
983. Upon these facts, I find that Respondent Idaho is responsible, jointly and
severally, with Symns for taking the remedial action hereinafter described"
a The testimony here related is undisputed.
= The Alexander Milburn Co., 78 NLRB 747 (cases collated and discussed). Miller
Lumber Company, 90 NLRB 1361; N. L. R. B. v. Colten, 105 F. 2d 179, 182. N. L. R. B. v.
Blair Quarries , Inc., 152 F. 2d 25 ( C. A. 4) ; Stonewall Cotton Mille, 80 NLRB 325.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing counsel for the Respondents moved to dismiss the complaint
as to Idaho on the ground that its issuance as to that Respondent violated the
prohibition contained in Section 10 (b) of the Act. The motion is denied.`
Counsel for the Respondents on behalf of each Respondent made various
motions for the dismissal of the complaint. All pending motions are hereby
denied in accordance with the findings contained in this report.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring
in connection with the operation of the Respondents described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce.
V. THE REMEDY
It having been found that the Respondent Symns has engaged in certain unfair
labor practices, and that the Respondent Idaho is the successor to Symns, and
that they are jointly and severally responsible for remedying the said unfair
labor practices, it will be recommended that the Respondents, jointly and sev-
erally, cease and desist from said unfair labor practices, and take certain af-
firmative action designed to effectuate the policies of the Act.
Having found that the Respondent Symns has failed and refused to bargain
since September 15, 1950, with Local 983, the certified representative of its
employees in an appropriate unit, it will be recommended, therefore, that the
Respondents on request bargain collectively with the said local, and if an
agreement is reached, embody the same in a written contract.
Having found that the Respondent Symns discriminated in regard to the
hire and tenure of employment of Lyle Carson, Charles Graves, Reed T. Ritchie,
Donald Forbush, and Harris Ranson, by discriminatorily refusing, following
their participation in a strike caused and prolonged by Respondent Symns' unfair
labor practices, to reinstate these employees to their former or substantially
equivalent positions, although they unconditionally applied for such reinstate-
ment, it will be recommended that the Respondents offer to the employees full
reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges.
It will also be recommended that the Respondents make whole each of the
employees named above for any loss of pay they may have suffered as a result
of the discrimination against them. In the case of each employee the back-pay
period shall begin on the date the discrimination was committed 26 and run to
the date of Respondents' compliance in each case with the reinstatement pro-
visions herein. Consistent with the policy of the Board enunciated in F. W.
24 The Alexander Milburn Company, 78 NLRB 747 . See Charles R. Krimm Lumber
Company et al., 97 NLRB 1574; Indianapolis Wire-Bound Box Company, 93 NLRB 875;
The L. B. Hosiery Co, Incorporated, 88 NLRB 1000 ; Union Products Company , 75 NLRB
591, cf. N. L. R. B. v. Colten, 105 F. 2d 179, 183 (C. A. 6, 1939) where the court in denying
a contention that the affirmative remedy of reinstatement could not be enforced because
of the death of one of the partners , said, "It is the employing industry that is sought to be
regulated and brought within the corrective and remedial provisions of the Act in the
interest of industrial peace." See also , McCarron Co., 100 NLRB 1537.
25 The date of the first failure to reinstate was April 9, 1951. Though Carson and
Ritchie were discharged by Walker on April 4, 1951, they continued on strike , so can be
considered out of the labor market until April 9, 1951.
SYNINS GROCER CO. 651
Woolworth Co., 90 NLRB 289, it will be recommended that the losses of pay
be computed on the basis of each separate calendar quarter, or portion thereof,
during the appropriate back-pay period. The quarter shall begin with the first
day of January, April, July, and October ; loss of pay shall be determined by
deducting from a sum equal to that which each employee normally would have
earned for each quarter, or portion thereof, his net earnings, if any, in other
employment during that period ; 26 earnings in any one particular quarter shall
have no effect upon the back-pay liability for any other quarter. It is also
recommended that the Respondents be ordered to make available to the Board
upon request payroll and other records to facilitate the checking of the amounts
of back pay due.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case the undersigned makes the following :
CONCLUSIONS OF LAW
1. Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 983,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act 2,
2. Respondent Idaho Wholesale Grocery Co. is and has been since July 7, 1951,
the successor of Respondent Symns Grocer Co., and as such successor is
responsible for remedying the unfair labor practices of its predecessor.
3. All Respondents' employees in the Idaho Falls operation, excluding super-
visors, as defined in the Act, as amended, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of Section 9 (b) of
the Act.
4. Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 983,
AFL, was on September 15, 1950, and at all times thereafter, has been, and is,
the exclusive representative of all the employees in the aforesaid unit for the
purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
5. By refusing on September 15, 1950, and thereafter, to bargain in good faith
with the aforesaid Union, and by granting on March 17, 1951, a pay increase to
employees without consulting with the said Union, the Respondent Symns has
engaged in unfair labor practices within the meaning of Section 8 (a) (1)
and (5) of the Act, as amended.
6. By discriminating in regard to the hire and tenure of employment of Lyle
Carson, Charles Graves, Reed T. Ritchie, Donald Forbush, and Harris Ranson,
thereby discouraging membership in the aforementioned Union, and labor or-
ganizations generally, the Respondent Symns has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) and (3) of
the Act.
7. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent Symns has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning
of Section2 ( 6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
'° See Crossett Lumber Co ., 8 NLRB 440 ; Republic Steel Corp . v. N. L. R. B., 311 U. S. 7.
94 Through inadvertence a finding of fact to the same effect was omitted . I so find. The
issue was not raised upon the hearing.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS UNION, LOCAL No. 982, AFL, or in any other labor
organization of our employees, by discriminating in regard to their hire or
tenure of employment, or any terms or conditions of employment.
WE WILL NOT discharge, or discriminatorily refuse to reinstate, any of
our employees for engaging in strikes or concerted activities protected by
the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist TEAMSTER, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS UNION, LOCAL No. 983, AFL, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
WE WILL offer to Lyle Carson, Charles Graves, Reed T. Ritchie, Donald
Forbush , and Harris Ranson immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to any sen-
iority or other rights and privileges previously enjoyed, and make them
whole for any loss of pay suffered as a result of discrimination against
them.
WE WILL bargain collectively upon request with TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS UNION, LOCAL NO. 983, AFL, as the exclusive
representative of all employees in the bargaining unit described herein with
respect to wages, rates of pay, hours of employment, or other terms or
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All employees in the Idaho Falls operation, excluding supervisors, as
defined in the Act, as amended.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate against any
employee because of membership in or activity on behalf of any such labor
organization.
SYMNS GROCER CO.
Dated -------------------- By -------------------------------------------
( Representative)
IDAHO WHOLESALE GROCERY CO.
Dated -------------------- By -------------------------------------------
(Representative)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.