Terminal Storage Co.

National Labor Relations Board - Board Decisions

Apr 27, 1953

104 N.L.R.B. 407 (N.L.R.B. 1953)

TERMINAL STOhAGE COMPANY 407
of reinstatement to such employee. Loss of pay for each employee will be computed on the
basis of each separate quarter or portion thereof during the period from the date of dis-
charge of such employee to the date of a proper offer of reinstatement The quarterly
periods shall begin with the respective first days of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to that which the employee
normally would have earned in each such quarter or portion thereof, his net earnings, Ir
if any, in other employment during that period. Earnings in one quarter shall have no effect
upon the back-pay liability for any other quarter. 18 The Respondents will be required, upon
reasonable request, to make available to the Board and its agents all records pertinent
to an analysis of the amount due as back pay and to the reinstatement recommended herein.
Upon the basis of the foregoing findings of fact, and upon the entire record in these peo-
ceedings, I make the following:
CONCLUSIONS OF LAW
1 American Federation of Labor is a labor organization within the meaning of Section
2 (5) of the Act.
2. By interfering with, restraining , and coercing employees , as found above, in the
exercise of rights guaranteed to them by Section 7 of the Act, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
3. By discriminating in regard to the tenure of employment of Harry H . Darr and Clara
P. Ferrill, thereby discouraging membership in a labor organization , the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Sections 2 (6) and 2 (7) of the Act.
[ Recommendations omitted from publication.]
37 See Crossett Lumber Company, 8 NLRB 440 for a construction of "net earnings."
38 F. W. Woolworth Company, 90 NLRB 289.
TERMINAL STORAGE COMPANY, Petitioner and CHAUF-
FEURS, TEAMSTERS AND HELPERS, GENERAL LOCAL
NO. 200, INTERNATIONAL BROTHERHOOD OF TEAM=
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, AFL. Case No. 13-RM-151. April 27, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Joseph Cohen,
hearing officer. The hearing officer's rulings made at the
hearing are free fromprejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organization involved claims to represent
employees of the Employer.
3. The Employer, which is engaged in warehousing and
public cold-storage operations in Milwaukee, Wisconsin, re-
quests that an election be held among all of its employees, con-
tending that these employees constitute a separate appropriate
unit. The Union contends that the only appropriate unit is a
multiemployer unit of employees of all employer members of
104 NLRB No. 54.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Milwaukee Warehousemen's Association and that therefore
the Employer's petition be dismissed.
Although the Employer was a member of the Association from
1940 to 1948, and participated in joint bargaining negotiations
with other members on a multiemployer basis, the record is
clear that since 1948 it has had no contract with any labor or-
ganization and has pursued a course of individual action with
regard to its labor relations. In these circumstances, we find,
with the Employer, that its employees consititute a separate
appropriate unit. i
The record shows that on several occasions in 1952, the
Union requested recognition of the Employer for its employees
and submitted a proposed contract. The Employer declined to
recognize the Union until it was certified bythe Board. There-
after, the Union engaged in a strike at the Employer's plant
from December 5, 1952, to January 20, 1953, and filed a charge
against the Employer alleging an unlawful refusal to bargain.
The Regional Director dismissed the charge.:
At the hearing, the Union stated that it was now claiming to
represent the Employer's employees only in a multiemployer
unit, which it claimed tobe the onlyappropriate unit. It asserted
that it did not desire to appear on the ballot in the event a
single-employer unit were found appropriate, because the
Employer's alleged unfair labor practices had precluded it from
winning an election in such smaller unit. At about the time of the
hearing, the Union appealed the Regional Director's dismissal
of its refusal-to-bargain charge against the Employer, urging
that the alleged refusal to bargain occurred either in a multi-
employer unit .r, alternatively, in a single-employer unit.
Under all these circumstances, we do not find that the Union
has so clearly and unequivocally disclaimed interest in repre-
senting the Employer's employees in a separate unit, as to
negate the existence of a present question concerning repre-
sentation in such unit. We therefore believe that the policies
of the Act will best be served by directing an election.
A question affecting commerce exists concerning the repre-
sentation of certain employees of the Employer, within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a
unit appropriate for the purposes of collective bargaining with-
in the meaning of Section 9 (b) of the Act:
All employees of Terminal Storage Company, Milwaukee,
Wisconsin, excluding office clerical employees, engineers,
maintenance men, guards, professional employees, and super-
visors as defined in the Act."
[Text of Direction of Election omitted from publication. ]
i See C. & H. Foods, Inc., 100 NLRB 1483, and cases cited therein.
2 We find no merit in the Union's contention that the pendency of an appeal from the Regional
Director's dismissal of its charge alleging unfair labor practices by the Employer. consti-
tutes a bar to this proceeding. The Alliance Manufacturing Company, 101 NLRB 112.
3 See Jack .;ooper Transport Company, Inc., 101 NLRB 1754; Kunel Shoe Company, 97
NLRB 127; The Johnson Brothers Furniture Co., 97 NLRB 246. Cf. Smith's Transfer Cor-
poration of Staunton, Virginia, 97 NLRB 1456.
4 The parties were in substantial agreement as to the composition of the above unit.