Moanalua Dairy, Ltd.

In the Matter Of MOANALUA DAIRY, LIMITED and DAIRY WORKERS UNION OF HAWAII, LOCAL 946 (AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA-A. F. L.) Case No. 23-C-26.-Decided January 31,1946 DECISION AND ORDER On March 17, 1945, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report, attached hereto. Thereafter, exceptions to the Intermediate Report and a supporting brief were filed by the respondent.' On October 23, 1945, the Board at Washington, D. C., heard oral argument in which the respondent particiated. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions herein- after set forth. 1. We agree with the Trial Examiner's finding that the respondent, in violation of Section 8 (5) of the Act, refused to bargain with the Union, which had been designated as their exclusive collective bar- gaining representative by a majority of the respondent's employees in a unit appropriate for the purposes of collective bargaining. In its exceptions and brief the respondent urged that its relations with,the 1 Together with its exceptions and brief , the respondent filed a motion for permission to adduce as additional evidence before the Board a certain newspaper article which ap- peared in the Honolulu Advertiser on May 6, 1945, in which Representative Jack Anderson of California is said to have written William Green, President of the American Federation of Labor, concerning the asserted nnreliabihty of the testimony of Aithur A Rutledge before the subcommittee of the House Naval Affairs Committee investigating the problems of congested areas Rutledge is a witness called by the Board in the instant case The motion is hereby denied The evidence offered doeg not have sufficient probative value on the issue of Rutledge 's credibility to warrant our consideration. 65 N. L. R. B., No. 120. 714 MOANALUA DAIRY, LIMITED 715 Union during the period the Union was seeking to bargain with ii did not constitute an unfair labor practice in violation of Section 8 (5) of the Act for three reasons: (1) that it believed in good faith that the employees involved were agricultural laborers and hence not pro- tected by the Act; (2) that it believed in good faith that the unit designated by the Union was not an appropriate one; and (3) that, in any event, the respondent, despite its position that it was not legally obliged to bargain with the Union, did offer to bargain collectively with the Union. At the oral argument before the Board, counsel for the respondent conceded that under previous decisions of the Board the respondent could not validly contend that the employees here in- volved were agricultural laborers and consequently we need consider here only the other grounds of the respondent's contention. We agree with the Trial Examiner that the respondent's refusals to bargain with the Union were not predicated upon bona fide doubts on its part as to the appropriateness of the bargaining unit claimed by the Union. The record clearly shows that throughout the period of attempted negotiations, the respondent's primary reason for not recognizing the Union was its view that the employees involved were agricultural laborers and hence were not covered by the Act. While in the Union's first bargaining demand, contained in the letter dated August 21, 1943, the scope of the unit was not clearly defined, in that clerical and supervisory employees were not specifically excluded therefrom,2 the respondent, however, in its answer to this letter, dated September 27, 1943, based its refusal to bargain with the Union, not on any doubt as to the appropriateness of the unit, but on the grounds that it had been advised that its employees were not covered by the Act, and that, in any event, it preferred to deal "direct with [its] em- ployees" since it pelt that "they have a more intimate knowledge of their own problems than any outsider could possibly have." Because the respondent consistently took the position that the em- ployees were not covered by the Act, the parties never reached the point of clarifying their respective positions with respect to the appropriate bargaining unit. Moreover, the record establishes that there was no serious disagreement between the respondent and the Union con- cerning the appropriate bargaining unit. Since the Union clearly rep- resented a majority of the employees in the unit, regardless of the .in- clusion or exclusion of the clerical and supervisory employees, it was not of crucial importance to it whether these employees were included or not. In fact, in December 1943, when the Board's Regional Director advised the Union that the respondent had objected to the inclusion of office workers, the Union's representative replied that it "was per- 2 The Union 's letter merely stated that "the majority of your drivers and plant em- ployees have designated our Union as their sole and exclusive representative for the pur- poses of collective bargaining." 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fectly all right to exclude them." And, on March 20, 1944, the Regional Director informed the respondent that the parties -would have no trouble "getting together on the unit," as the respondent admitted." Accordingly, the respondent's contention, based upon an alleged bona fiche doubt as to the appropriate unit, must be rejected.4 The respondent's further contention that, in any event, it did offer to bargain collectively with the Union and hence should be absolved of violating Section 8 (5) of the Act, is without merit, as the Trial Examiner found. As noted in the Intermediate Report, the respond- ent's offers to meet with the Union and to discuss its demands were in- variably qualified by the condition that by so doing it would not be receding from its position that the employees were agricultural laborers and hence were not entitled to exercise the bargaining rights conferred on employees in the Act. The respondent's argument that the union demands for formal recognition were meaningless because the respond- ent's offers to meet with the Union and to discuss its demands con- stituted recognition in fact, is 'without merit. An employer is ob- ligated by Sections 8 (5) and 9 (a) of the Act to bargain, upon demand, with-a properly designated representative as the exclusive collective bargaining agent of his employees. This obligation, as we have re- peatedly held,5 includes the duty to extend to the statutory represen- tative full and unqualified recognition as the exclusive bargaining agent. The respondent wholly failed to fulfill this obligation. 2. We agree with the Trial Examiner's finding that the respondent temporarily discontinued the retail delivery of milk and thereafter refused the unconditional application of the striking drivers for rein- statement in order to discourage membership in the Union, and that the respondent's conduct, therefore, in effect constituted a lock-out and a discharge of the drivers in violation of Section 8 (3)' and (1) of the Act. In support of the conclusion that the discontinuance of retail milk deliveries was merely a temporary maneuver to combat the strike and not a change permanently adopted for business reasons, as con- tended by the respondent, we rely upon the fact, in addition to the facts cited by the Trial Examiner in his Intermediate Report, that at the time the respondent refused the drivers' applications for reinstate- ment the respondent made no mention of any intention to abandon re- 2 In finding that disagreement as to the scope of the unit was not the real reason for the respondent's refusal to recognize the Union, we do not rely, as did the Trial Examiner, on the testimony of Union Representative Rutledge to the effect that the Board's Regional Director had informed Rutledge that the Regional Director had advised the respondent that Rutledge was willing to "just take in plant workers and drivers " 4 N. L. R B. v. Btiles-Coleman Lumber Co., 98 F (2d) 18, 22 (C. C. A. 9) ; N. L. R. B. v. National Motor Bearing Co , 105 F. ( 2d) 652, 660 (C C. A 9), N. L R B. v. Lettee Lee, Inc., 140 F. ( 2d) 243, 248' (C C. A. 9). 5 Matter of McQuay-Norris Mfg Co., 21 N L R. B. 709, 715, enf'd 116 F. ( 2d) 748, 751 (C. C. A. 7), cert. denied 313 U. S 565 ; Matter of Golden Turkey Mining Co., 34 N. L. R. B. 760, 770 ; Matter of S. H. Kress & Co., 34 N. L. It. B. 1152, 1207; Matter of United Biscuit Co , 38 N. L R B. 778, 791 MOANALUA DAIRY, LIMITED 717 tail deliveries; on the contrary the published "Notice" to which the drivers were referred for an explanation of the refusal of their ap- plications for reinstatement, clearly suggested that "normal opera- tions" were to be resumed as soon as the striking drivers could be re- placed. Moreover, the "Notice" frankly attributed the respondent's decision to replace these men to the men's asserted lack of responsi- bility in going out on strike. A refusal to reinstate employees for participating in a strike, a lawful concerted activity protected by the Act, is a violation of the Act. THE REMEDY Having found that the respondent has, engaged in conduct violative of Section 8 (1), (3), and (5) of the Act, we shall order the respondent to cease and desist not only from engaging in such conduct but also, for the following reasons, from in any other manner interfering with, restraining, and coercing its supervisory employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent's whole course of conduct discloses a purpose to defeat self-organization and its objects among its employees. As we have found, the respondent warned its drivers, when it first suspected that they might wish to or- ganize, that it would discharge them if they joined the Union. After the employees joined the Union, and though it asked for a collective bargaining conference, the respondent refused this request on the ground, inter alia, that it did not wish to deal with an "outsider." Thereafter, the respondent consistently refused to recognize the duly designated collective bargaining representative of its employees. After the drivers had gone out on strike as a result of respondent's varied unfair labor practices, the respondent, as a counter-measure to combat the strike, temporarily discontinued retail deliveries, and thereafter refused to reinstate the drivers when they unconditionally offered to return to work .6 This culmination of the respondent's illegal activities, the discriminatory refusal to reinstate the employees, "goes to the very heart of the Act." ° Because of the respondent's un- lawful conduct, and its underlying purpose, we are convinced that the unfair labor practices found are persuasively related to the other un- fair labor practices proscribed by the Act, and that the danger of their commission in the future is to be anticipated from the respondent's ' At page 15 of his Inteimediate Report, the Trial Examiner inadvertently refers to September 17, 1944, as being the date when the respondent's drivers offered to terminate their strike and return to work. The record reveals , and we find, that this occurred on April 17, 1944 IN L. R B v. Entwistle Manufacturing Co., 120 F. ( 2d) 532 , 536 (C. C A. 4) See also, N. L R B v Automotive Maintenance Machinery Co , 116 F (2d) 350 , 353 (C C. A. 7), where the Circuit Court of Appeals observed : "No more effective form of intimidation nor one more violative of the N L. It. B Act can be conceived than discharge of an em- ployee because he joined a union . . . 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct in the past.' The preventive purpose of the Act will be thwarted unless our order is coextensive with the threat. As recommended in the Intermediate Report, we shall also order the respondent to take certain aflirmative action designed to effectuate the policies of the Act. The Trial Examiner recommended that the amount of back pay to be paid the drivers should not be diminished on account of the discontinuance of the retail milk delivery routes because that action itself constituted an unfair labor practice. We concur in this recommendation for the reason that, had not the re- spondent discontinued making retail milk deliveries in order to dis- cipline the striking drivers for having gone out on strike and to dis- courage its employees fi;om engaging in union activities, the respond- ent might well have continued making retail deliveries and the posi- tions as drivers would then have been available for the employees here involved. In any event, we shall resolve any doubts on this score in favor of the drivers, who had merely engaged in a lawful concerted activity protected by the Act, as against the respondent, whose very action in discontinuing the making of retail deliveries of milk was an unfair labor practice in violation of Section 8 (3) and (1) of the Act, as we have found. Accordingly, we find that the purposes and policies of the Act will best be effectuated by requiring the respondent, until such time as it may remedy its unfair labor prac- tice in discontinuing the retail delivery of milk by reinstating the drivers or placing them upon a preferential hiring list, as recom- mended in the Intermediate Report, to compute the amount of the losses suffered by the drivers as a result of its discrimination against them, upon the basis of what they would have earned in their former positions as drivers. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, M9analua Dairy, Limited, Honolulu, Oahu, Territory of Hawaii , and its officers, agents , succes- sors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Dairy Workers Union of Hawaii, Local 946, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of America, as the exclusive representative of all its employees in the King Street plant, Honolulu, Oahu, Territory of Hawaii, exclusive of supervisory and clerical employees , in respect to rates of pay, wages , hours of employ- ment, and other conditions of employment. 8 See N. L. R. B. v Express Publishing Co , 312 U. S 426 ; N. L. R. B. v. May Depart- ment Stores, Inc., 66 S Ct. 203, 209-213. MOANALUA DAIRY, LIMITED 719 (b) Discouraging membership in Dairy Workers Union of Hawaii, Local 946, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization of its employees, by refusing to reinstate, locking out, or discharging any of its employees, or by discriminating in any other manner in regard to the hire and tenure of employment or any terms or conditions of their employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Dairy Workers Union of Hawaii, Local 946, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid or protection as guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with Dairy Workers Union of Hawaii, Local 946, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of all the respondent's employees in the King Street plant in Honolulu, Oahu, Territory of Hawaii, exclusive of supervisory and clerical employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement ; ' (b) Offer to Roydon M. Ishikawa, Takeo Kamihara, Hiroichi Koza, Paul Miyake, Takeshi Ogata, and Norman S. Muromoto immediate and full reinstatement to their former or substantially equivalent posi- tions, or to any other available positions for which they are qualified, without prejudice to their seniority or other rights and privileges previously enjoyed; and if no such positions are presently available, place them on a preferential list and thereafter offer them employ- ment as it becomes available, in the manner provided in the section of the Intermediate Report entitled "The remedy"; (c) flake whole Roydon M. Ishikawa, Takeo Kamihara, Hiroichi Roza, Paul Miyake, Takeshi Ogata, and Norman S. Muromoto for any loss of pay they have suffered by reason of the respondent's discrimina- tion against them,.by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages in his former position during the period from April 17, 1944, to the date of the offer of reinstatement or placement upon the preferential list as provided in the section of the Intermediate Report entitled "The remedy," less his net earnings during such period, but without 679100-46-vol. 65-47 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diminution on account of the discontinuance of the retail milk delivery routes; (d) Post at its King Street plant at Honolulu, Oahu, Territory of Hawaii, copies of the notice attached hereto, marked "Appendix A." Copies of such notice, to be furnished by the Regional Director of the Twenty-third Region, shall, after being duly signed by the respond- ent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by other material; (e) Notify the Regional Director for the Twenty-third Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. GERARD D. RLILLY took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Rybnin L Hackler, for the Board. Stanley, Vatouselc, Pratt & Winn, by Mr. Montgonaeiy Winn; and Mr. James P. Blaisdell, of Honolulu, T. H., for the respondent. Mr. Arthur A. Rutledge, of Honolulu , T. H., for the Union STATEMENT OF THE CASE Upon a second amended charge duly filed October 16, 1944, by Dairy Workers Union of Hawaii, Local 946, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America-A. F. L., herein called the Union, the National Labor Relations Board, herein called the Board, by, its Regional Director for the Twenty-third Region (Honolulu, Territory of Hawaii) ; issued its complaint dated October 17, 1944, against Moanalua Dairy, Limited, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the, meaning of Section 8 (1), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. - With respect to the unfair labor practices, the complaint alleged in substance: (1) that (a) all plant employees, excluding supervisory and office employees employed at the plant, constitute a unit appropriate for the purposes of collective bargaining ; (b) that on or about August 21, 1943, and at all times subsequent thereto, a majority of the employees in said unit had designated the Union as their bargaining representative and by virtue thereof the Union, since August 21, 1943, has been the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other conditions of employment; (c) that on or about August 21, 1943, and at various times subsequent thereto, the Union requested the respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other conditions of employment with the Union as the exclu- sive representative of all employees in the unit; (d) that respondent from on or about September 27, 1943, to the date of the complaint herein, had refused and failed to bargain collectively with the Union, in that the respondent did refuse MOANALUA DAIRY, LIMITED 721 and fail and does not refuse and fail to grant to the Union the.full recognition to which it is entitled as the exclusive bargaining representative; (e) that the respondent did, by unilateral action, grant wage increases to certain employees in the unit, notwithstanding the Union had requested collective bargaining con- cerning such matters; and (f) did, as set forth below, lock out and discharge cer- tain employees in the unit for the purpose of avoiding collective bargaining with the Union; (2) (a) that by the acts described the respondent, on or about April 2, 1943, did cause-six of its route delivery men' to go on strike and to remain on strike until on or about April 17, 1944; (b) that on or about April 17, 1944, these said six route delivery men, and each of them, made unconditional offers to the respondent to terminate the above-mentioned strike and return to work; and (c) that on or about April 17, 1944, the respondent did lock out and discharge the said six route delivery men because of their membership in and activity on behalf of the Union; and (3 ) by the acts described above the respondent interfered with, restrained, and coerced its employees in the rights guaranteed in Section 7 of the Act. On or about October 27, 1944, the respondent filed its answer to the complaint denying that it had engaged in the alleged unfair labor practices. The answer alleged affirmatively that "all employees of the company are agricultural laborers within the intent and meaning of Section 2 (3) of the National Labor Relations Act," and that the Board is without jurisdiction to entertain the complaint here- in and that the complaint should be dismissed forthwith. Pursuant to notice, a hearing was held in Honolulu, Oahu, Territory of Hawaii, on October 3O and 31, and on November 1, 2, 3, 0, and 7, 1944, before Peter F. \Vard, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and a representative appeared for the Union. All parties participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the outset of the hearing the respondent filed a "plea to the jurisdiction" of the Board and moved for a dismissal of the complaint on the grounds that all company employees are agricultural employees under the Act. The undersigned denied the plea and the motion to dismiss. At the close of the hearing the respondent renewed such plea and motion to dismiss the complaint. The undersigned reserved ruling thereon and now, for reasons set forth below, denies the same. Also, at the close of the hearing, counsel for the Board moved, without objection, that the com- plaint be amended in formal matters to conform to the proof. The motion was granted. Following receipt of all evidence and testimony, counsel for the Board and the respondent argued orally before the undersigned, and such arguments were included in the official transcript of the proceedings. While the parties were afforded an opportunity to file briefs with the undersigned, no briefs have been filed. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes, in addition to the above, the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a corporation organized and existing under the laws of Hawaii, having been incorporated on September 3, 1035. The respondent oper- 'Roydon M. Ichikawa , Takeo Kamihara . Hiroichi Koza, Paul Mlyaki , Takeshi Ogata and Norman S Muromoto. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ates a dairy farm some 11 miles from the city of Honolulu, Territory of Hawaii, composed of some 40 acres of land and a dairy herd of from 350 to 375 head of milk cows. It also owns and operates a plant at 1950 King Street, Honolulu, wherein it pasteurizes, processes, and bottles milk which is subsequently sold at both wholesale and retail. For the year preceding the hearing herein, the iespondeut sold milk and powdered milk products valued in excess of $200,000. During the same period the respondent purchased raw milk, powdered skim milk, chocolate powder and syrup, orange syrup, and strawberry extract valued in excess of $57,000. Prior to April 2, 1944, the Company operated five retail delivery routes for the sale and distribution of its milk. The respondent contends that its King Street Plant employees are "agricultural laborers" under the Act and not subject to the jurisdiction of the Board. For the reasons above set forth and the further reasons set forth in Section III, below, the undersigned finds such con- tentions to be without merit, and the respondent's King Street Plant employees to be subject to the jurisdiction of the Board. H. THE ORGANIZATION INVOLVED Dairy Workers Union of Hawaii, Local 946 (affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America); affiliated with the American Federation of Labor, is a labor organization admit- ting to membership employees of the respondent? III. THE UNFAIR LABOR PRACTICES A. The retusal to bargain collectively; isterfcicnce, restraint, rand coercion 1. The appropriate unit The complaint alleges in substance that a unit composed of all of the plant employees, excluding super isory and office employees, would insure to respond- ent's employees the full benefit of the right to self-organization ; would otherwise effectuate the policies of the Act ; and is therefore a unit appropriate for the purpose of collective bargaining. While the respondent, in its answer, alleged lack of sufficient knowledge or belief to either admit or deny such allegations, it offered no evidence and raised no objections thereto other than its contention that the Board was without jurisdiction herein. The undersigned finds that all employees of the respondent engaged at its King Street, Honolulu, plant, excluding supervisory and clerical employees, at all times material herein constituted, and now constitute, a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to the employees of the respondent the full benefit of their right to self-organiza- tion and collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit The record discloses that as of August 15, 1943, the respondent's plant employees other than supervisory and office employees consisted of the following categories ; 5 milk route drivers ; 1 relief driver; 1 pasteurizer ; 1 milk room employee, and I bottle filler, which group has been found herein to constitute an appropriate unit for the purposes of collective bargaining. 2 Prior to on or about April 10, 1944, the Union operated under a Federal charter fiodi the American Federation of Labor, as "Davy Workers Union of Hawaii, Local No 22432," after which time it has opeiated as Local 946 under a charter from the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America-A F. L., heiein called the Teamsters MOANALUA DAIRY, LIMITED 723 During the hearing membership application cards of the Union were introduced in evidence covering all of the employees in the above, described categories.' All of such cards were dated either as of August 17 or August 18, 1943. The mem- bership application card of one other employee' who was hired as a bottle washer on or about January 17, 19-14, was also introduced in evidence. It disclosed that such application for membership had been made on February 20, 1944. Thus by August 21, 1943, the Union had been designated by all of the employees then 'in the appropriate unit s The undersigned finds that on August 21, 1943, and at all material times there- after, the Union was, and now is, the duly designated representative of a majority of the employees in the aforesaid appropriate unit, and that, by virtue of Section 9 (a) of the Act, the Union at all such times was and now is the representative of all the respondent's employees in such unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment. or other condi- tions of employment. 3. The refusal to bargain a. Chronology of events During May or June 1943, the Union organized the milk route drivels of Hind- Clarke Dairy, one of the larger dairies operating on the Island of.Oahn. There- after the Union filed certain charges against the Hind-Clarke Dairy alleging certain violations of the Act. The case was subsequently settled informally with the result that the Hind-Clarke drivers received-a substantial increase in wages and some reductions in hours of work. The terms of the contract covering such settlement were given publicity in the local papers. Prior to the execution of the Hind-Clarke contract, all of the respondent's milk route drivers were paid on a strictly "percentage," basis with which they were dissatisfied. Following the execution of such contract, Andrew K. Bernshouse, vice president and general manager, called a meeting of all drivers and discussed wages with them. As a result of such discussion a new plan of payment was put in effect, whereby the drivers received a base pay of $145 per month together with a sliding scale of commissions During this conference Bernshouse informed the drivers in substance and effect that if they joined or became involved in the Union he would discharge them, not all at one time, but one by one.' ' Kamihara, Ogata, Ishikawa, Koza, Arakaki, Muromoto. Matsuda, Miyake and Timbreza ' Paschoal Ramos. 5 K Arakaki, a milk route driver, was discharged on October 31, 1943. Paul Miyake, formerly a milk route driver, then employed in the milk room, took over Arakaki's milk delivery route This finding is based on the credible testimony of Ishikawa, Muromoto, Miyake, and Ogata Bernshouse denied making such a statement He testified to the effect that he told the drivers that he "would not hold them to their jobs if they could get higher paid jobs somewhere else," and requested that, in the event they did leave, to leave one by one. The record discloses that at the time referred to above, a manpower shortage existed in Hawaii ; that dairy employees were "frozen" to jobs within that industry ; that Berns- house considered the wage increase granted to the Hind-Clarke dairy drivers to have been an "outrageous set-up," and admitted that it was "in his mind" at the time of the con- ference Paul B. Heckenlively, the respondent's assistant manager, and Hung Chang Mew, the respondent's treasurer, each testified that Bernshouse told the drivers that he would give them releases "one by one" if requested, thus all parties agree that the phrase "one by one." was used at the meeting. In view of all the circumstances, including the manpower shortage, and as stated by Bernshouse, the " . . demand for men and so many other jobs that were possible to get." the undersigned, as above found, is convinced that Bernshouse did not offer to release the drivers "one by one" on request, but threat- ened to discharge them "one by one" if they joined or became involved in the Union 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 21, 1943, Arthur A. Rutledge, executive secretary of the Union, wrote the respondent as follows : Please be advised that the majority of your drivers and plant employees have designated our Union as their sole and exclusive representative for the purpose of collective bargaining. We are prepared to offer proof of our majority if you ask for it. Will you give this matter your immediate attention: Our telephone number is 2268. Rutledge having received no immediate reply from the respondent called Berns- house by phone and was advised that the matter had been referred to Montgomery E. Winn, the respondent's attorney. On or about September 21, 1943, Rutledge requested one, L. Q. McComas, Director of Labor and Industrial Relations for the Territory of Hawaii, to arrange for a meeting between representatives of the Union and the respondent. On September 21, 1943, McComas wrote Berns- house and informed him of the request made by Rutledge and asked Bernshouse to advise him whether or not he would be willing to meet with representatives of his employees. On September 24, 1943, Winn furnished the respondent with a written opinion to the effect that the plant employees were agricultural laborers and stated that while "The Board takes the position that it will extend its jurisdiction to employ- ees wherever it is possible to do so . . .," he was of the opinion that if the matter were submitted to a Court, "a Court would likely hold that the employees are engaged in agriculture." The opinion was based upon the case of State vs Christensen, 137 P (2) 513. On September 27, 1943, Bernshouse wrote McComas, as follows : This will acknowledge receipt of your letter of September 21st asking whether or not I would be willing to meet with my employees at a mutually agreeable time and place. Although I am advised by my attorneys that the employees you mention are not covered by the National Labor Relations Act I have always been willing to meet with my employees either as individuals, or as a group of individuals, and discuss any grievances they might have or any of their demands concerning wages, hours and working conditions and I certainly do not intend to depart from that practice. However I want to deal with nay own. employees and not with some outsider who knows nothing of the conditions of emnplbyment existing in our plant. If you, how- ever, would like to sit in on any negotiations between the employees and the Company I would be very delighted to have you do so. Will you therefore please convey to my employees the position which I have taken in this letter or if you prefer I will be very glad to advise them. [Italics added.] I am today acknowledging a recent letter which I have received from Mr. Arthur A. Rutledge and I am forwarding to him a copy of this letter. Also on September 27, 1943. Bernshouse wrote Rutledge, as follows : This will acknowledge receipt of your letter of August 21st. The delay in answering the letter was occasioned by the fact that the request in your letter raised several legal questions which were referred to our attorney and his opinion incidentally has just been received. As you will notice from the contents of our letter to Mr. McComas, a copy of which is enclosed herewith, ,our attorney is of the opinion that the employees mentioned in your letter are agricultural employees and not covered by the National Labor Relations Act. However that does not mean that we intend to take MOANALUA DAIRY, LIMITED 725 the position that we are not willing to deal with our employees and have so advised Mr. McComas. From our letter to Mr. McComas you will note, however, that we prefer to deal direct with our employees as we feel that they have a more intimate knowledge of their own problems than any outsider could possibly have and this way we probably would make speedier progress in arriving at a mutually satisfactory solution of their problems than we would if they were represented in the negotiations by a person not familiar with operating conditions. [Italics added.] After Rutledge had, on August 21, 1943, notified the respondent of the Union's claim that it represented a majority of the drivers and plant employees, Winn and Rutledge discussed the Union's claims. Winn advised the latter in substance that he would have to consider the matter, inasmuch as he was of the opinion that the employees in question were agricultural laborers and suggested that Rutledge file a petition for investigation and certification with the Board's Regional Office. On November 18, 1943. Rutledge filed such a petition' On November 20, 1943, the Regional Director, by letter, advised the respondent of the filing of such petition and requested certain information. Among others was a question as follows : i 10. In the event we should mutually agree your Company comes within the jurisdiction of the National Labor Relations Act, do you agree that the bargaining unit proposed by the petitioning Union is appropriate? If not, kindly describe the unit you do believe is appropriate. On November 29, 1943, Bernshouse replied to the Regional Director's letter and in answer to question No. 10, referred to above, stated : 10. Haven't sufficient information to form an opinion.' On December 4, 1943, the Regional Director wrote to Bernshouse confirming a telephone conversation fixing a (late for a conference to be held later. Such let- ter also acknowledged receipt of the answer to the Director's letter of November 20, 1943, and with i eference to question No. 10, above referred to, stated : I should also be grateful if your attorney and yourself can discuss the last inquiry of my letter (Item No 10.) On or about December 7, 1943, Rutledge, Winn and Bernshouse met with the Regional Director. Most of the time of the meeting was taken up by Winn in a discussion to the effect that the drivers and plant employees were agricultural laborers under the Act and discussed the holding in re State v. Christensen, mentioned above. No further meeting or discussion was had between the parties until February 1944.' During the latter part of February, Rutledge telephoned Bernshouse on a number of occasions and attempted to get the latter to confer with him pri- vately, but was, on each occasion, referred to Winn. Bernshouse informed Winn of such calls. The latter then invited Rutledge to his office for a conference on February 28. At this conference Rutledge demanded exclusive recognition as bargaining representative for the Union and an opportunity "to negotiate and arrive at an agreement."' Winn replied in substance that insofar as recognition went it 'A. L. Wills , the Board 's Regional Director for the Territory of Hawaii, was absent from the Territory during most of September and October 1944 s The record discloses that all communications written by respondent 's officials in con- nection with the union petition and charges filed herein were prepared or dictated by Winn. 9 Unless otherwise specified all dates refer to the year 1944. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARb was immaterial and did not mean anything Winn offered to bargain with the employees on the basis that they were agricultural laborers. In this connection, Winn testified : I said, "If you are relying upon your-shall' we say-common-law right, and you want us to bargain without waiving our contention that they are not under the Act, we will be very glad to do it." After discussing the respondent's financial condition and its alleged inability to meet the wage scale paid at Hind-Clarke Dairy, and other matters not material herein, Winn suggested that Rutledge prepare a proposed form of contract and submit it to McComas, after which the respondent would consider it and the parties could then get together and consider it. Rutledge stated that he wanted recognition of the Union first. Winn, however, refused to grant such recognition; contending that to do so would be receding from the respondent's positions that the employees in question were agricultural laborers 10 On March 1, 1944, Rutledge filed charges against the respondent alleging vio- lations of Section 8 (1) and (5) of the Act. On March 11, Rutledge was called to the office of James P. Blaisdell" where he met with Winn and Blaisdell. During the discussion Rutledge again de- manded recognition of the Union as sole bargaining representative of the em- ployees in question Winn and Blaisdell stated that they were willing to negoo- tiate with Rutledge and if an agreement was reached to sign a contract, but would do so only with the express understanding that they were not receding from their position to the effect that the employees were agricultural laborers and not entitled to recognition under the Act. In this connection Blaisdell testified: Q. (By Mr. Winn) Do you recall any discussion about technical recog- nition? A I recall discussions and I assume part of it was that meeting. "Tech- nical recognition" to me is a lot of nonsense in most instances, and I think I probably took that position with Rutledge at that time. r * m x s x s Q And it was your recommendation to the member (Respondent) that the member bargain with the Union or with their representatives without waiving any legal rights they might have-that the Act did not cover the employees in question? A. That is correct. When you say "to the member," it was to you. The March 11 meeting ended in an impasse with Rutledge demanding recog- nition of the Union as exclusive bargaining representative of the employees in question, and with Winn and Blaisdell refusing to grant such recognition, but offering in effect to negotiate with Rutledge on the basis that the employees were agricultural laborers and not "employees" under the Act. On March 20, a meeting of the parties was held at the office of the Regional Director ; those present were A. L. Wills, Director, on behalf of the Board, Winn and Bernshouse, on behalf of the Respondent, and Rutledge, on behalf of the Union. Winn and Wills discussed the "agricultural" contentions of the parties at length. Winn stated the Respondent's position to be that it was willing to meet with the drivers and plant workers and get together on conditions of employ- 30 Winn's contention, that the appropriateness of the unit claimed by the Union was questioned at this meeting, is discussed below. "Blaisdell is an attorney with some 9 years of practice in the field of labor relations, who on or about January 1, 1944, was installed as president of the Employers Council of Hawaii The respondent is a member of the Employers Council. MOANALUA DAIRY, LIMITED 727 ment, and if there was a "meeting of minds" to draw up an agreement and the respondent and the Union would sign it However, such agreement, if reached was "not to be construed as recognition of the Union ; just a memorandum of what the Company was willing to do and what was expected of the men involved." During this meeting Rutledge asked Winn for a statement in writing setting forth the Respondent's position as stated at this conference. On the same date, March 20, 1944, Winn wrote Rutledge as follows : This is in compliance with your request made today in Mr. Wills' office that I again state the Company's position and confirm the two offers I have made to you on behalf of the Company. First as to the Company's position. The Company has taken the posi- tion that the men employed in its pasteurizing plant and its drivers are engaged in "agriculture" and therefore do not come under the provisions of the National Labor Relations Act which exempts employees employed in "agriculture" from the Act. This position is based upon four cases decided by the Supreme Court of Washington on May 14, 1943 In each one of these cases the Court used the following language : "Individuals working in milk- houses, bottling, pasteurizing, and taking care of milk, and truck-drivers selling and distributing milk are agricultural laborers." The Court also said: "The dairy farmer, like any other farmer, produces to sell, and mar- keting of his product is necessarily an incident of the ordinary operations of the dairy." However, the fact that the 'above mentioned employees may be exempted from the Act does not mean that the Company is not willing to bargain with them individually or collectively. I have told you on several occasions and Mr. Bernshouse has written both you and Mr. McComas of the Company's willingness to meet the above mentioned employees and bargain with them on wages, hours and working conditions and if an agreement is reached to reduce the same to writing and sign it. That offer is still open. I have also told you that if you want to present any demands personally to the Company those demands will be given every consideration and when- ever the Company feels the demand is reasonable and can be granted it will be granted, and that if we can come to an agreement the same will be reduced to writing and signed. That cffer also remains open [Italics added..] You, however, have taken the position that the Union is entitled to formal recognition ander the National Labor Relations Act and demand such recog- nition before there are any negotiations between the Company and its em- ployees. The Company can not grant this demand for to do so would result in its waiving the legal point it has raised which is, as I have said above, whether or not the employees in question are, or are not, engaged in agriculture. [Italics added.] The Company is very anxious to have the legal question decided and as I told you this morning, and repeat again, we will cooperate with Mr. Wills and the Union in every possible way to have the matter settled amicably and as soon as possible. I don't anticipate any difficulty in getting together on a stipulation covering all the facts material to a hearing on the petition for certification if Mr. Wills decides that a hearing should be had on the petition. On receipt of Winn's letter of March 20, Rutledge sought the services of one Norback of the U. S. Labor Department to act as conciliator in the matter. Through the efforts of Norback a meeting was held in the latter's office attended by Rutledge and Winn. Winn stated that the Respondent's position had been fully stated in his letter of March 20. Winn further stated that the Employers Council wanted the question on agricultural laborers "determined legally," but 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said they would take the matter up with the Council and would let Rutledge know. Under date of March 27, Winn wrote Rutledge as follows: I have taken up with the Employers' Council the question as to whether or not it would advise the Moanalua Dairy to insist upon obtaining a ruling from the National Labor Relations Board as to the status of the-Company's drivers and physical workers employed in its King Street plant and have today been advised by Mr. Baisdell, President of the Council , that the Council will not insist upon a judicial determination of the question at this time. That being the case, the Company is willing to sit down with such em- ployee$, or their representatives , and explore the possibility of reaching a mutually satisfactory agreement , it being unde7stood, however, that the Company is not, thereby receding from its position that such employees are agricultural employees and are therefore exempted from the pi ovisions of the National Labor Relations Act. [ Italics added If the foregoing is agreeable to you 'will you present your demands con- cerning wages, hours and working conditions to me, in writing, in order that they may be referred to the Company and to the Employers ' Council for their consideration. I am not quite clear in my own mind whether or not Mr. Norback plans to sit in on the hearings . The Company would be very pleased to have him attend , if he so desires, and will have no objections to Mr. McComas or a representative from his office also attending Furthermore, if a representa- tive from the Military Governor's Office of Labor Control would care to attend we would be very happy to have him. We suggest, however, that they attend all meetings rather than be asked in at a later date, in order that they may be thoroughly conversant with everything which may transpire during the discussions. Rutledge was dissatisfied with Winn's letter, last above set forth , and par- ticularly with the suggestion that Norback , McComas, and a representative from the Military Governor 's office sit in on the proposed conference. He called Winn by telephone but could not reach him. He then called Blaisdell and expressed his dissatisfaction with the proposal made by Winn to "explore" the-possibility of the parties reaching an agreement and to the suggestion that outside parties be included in the conference . Rutledge objected to "everybody sitting in on it,- and still we didn't have recognition." On or about March 31, Drivers Ishikawa and Ogata called at Rutledge's office and after some discussion the latter typed five demands for the signature of Bernshouse, as follows: SPECIAL NOTICE TO ALL DRIVERS iZ EMPLOYEES AS OF MARCH 1, 1944 1. There will be no charges for bottle shortages. 2. There will be no deductions from salaries for unpaid stop accounts. 3. All drivers will receive one day off in seven with no deduction from their monthly pay. 4. There will be no deductions from the wages of any driver without a written authorization signed by the driver concerned. 5. The Company recognizes the Dairy Workers' Union Local No. 22432 as the sole and exclusive bargaining agency for the purpose of collective bar- gaining as to wages, hours and all other conditions of employment for all drivers and plant employees. MOANALUA DAIRY, LIMITED 729 On April 2, as is more fully detailed below, the five regular milk route drivers loaded their trucks and then presented the above demands to Bernshouse for signature. Bernshouse refused to sign such demands in the absence of Winn and called in Blaisdell in an attempt to get the drivers to go out on their routes. During the day Blaisdell called Rutledge and asked him to order the drivers to take out their routes. Blaisdell stated that the respondent would negotiate with the Union on the afternoon of April 3 When Rutledge asked whether "this meant the Union was recognized," Blaisdell replied in the negative. When Bernshouse refused to sign the five demands referred to above or to begin negotiations on April 2, the drivers refused to take out their routes They then unloaded the milk trucks in the cooler and went out on strike. On April 4. Rutledge answered Winn's letter of March 27, stating in substance that if the respondent would negotiate in good faith with the Union as repre- sentative of the employees concerned for the purpose of collective bargaining as defined by the Act, such representatives were willing to meet with him "any time and any place." The record discloses that no answer to the above-mentioned letter was ever sent. On April 6, Rutledge wrote the respondent as follows : Attention: Mr. J. P Blaisdell Gentlemen: Please be advised that I have been asked by your six drivers, who are now on strike, to represent them in the matter of negotiating terms for their re- turning to work. I have been instructed to seek in their behalf the follow- ing terms conditioned upon their returning to work. 1. All drivers will receive one day off in seven with no deduction from their monthly pay. 2. There will be no deduction from the wages of any driver without a written authorization signed by the driver concerned. 3 The Company recognizes the Dairy Workers' Union Local No. 22432 as the sole and exclusive bargaining agency for the purposes of collec- tive bargaining as to wages, hours and all other conditions of employ- ment for all drivers and plant employees. However, I am willing to use my influence with the men and ask them to return to work on the basis of the Company granting the last two of the above conditions. The record discloses that no reply was made to this letter On June 29, Rutledge wrote Winn as follows : Our Union is prepared to meet with representatives of the Moanalua Dairy, Limited, and begin negotiations on the basis of your letter of March 27, 1944. On July 3, 1944, Bernshouse replied to the letter above. in part, as follows: Since Mr. Winn's letter to you the majority of our employees claimed by you to have been properly included in the Union's proposed bargaining unit have left our service and this had made it necessary for us to radically change our operations. Under such circumstances, the Company must reject your offer of June 29th to meet with it as such meeting would serve no useful purpose. b. The issues involved The respondent contends in effect that there was no refusal to bargain for the reasons ( 1) the employees in question are agricultural laborers and thus are 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not "employees" under the Act; (2) that the unit first claimed by the Union was inappropriate and until an appropriate unit had been determined by the Board, the respondent was under no obligation to bargain with the Union ; and (3) that the proposals made by respondent to the Union did in fact constitute recognition of the Union as bargaining representative of the employees in, the appropriate unit and satisfied the requirements of the Act. 1. The respondent's contentions As to contention (1) the record discloses that the respondent maintains its dairy herd of some 350 head of cows on a forty-acre tract of land located about eleven miles from its King Street plant where the herd is "close-fed", in that no forage crops are raised on the "farm", and the cows do not graze in pastures ; that all the milk is cooled, pasteurized, and bottled at the plant; that at the times material herein the respondent employed five milk route drivers who delivered milk at both wholesale and retail and on occasion procured new customers, fur- nished a cash bond and were held responsible for uncollected accounts and un- returned bottles ; since the milk is delivered from the "farm" to the plant, for processing and bottling, the drivers and the relief driver had no occasion to go upon the farm ; and as found above the respondent bought raw milk, powdered skim milk, chocolate powder and syrup and certain extracts used in the manu- facture of certain bottled drinks which it sold along with its other dairy products. The Board has had occasion to consider the term "agricultural laborer." In a recent Decision," the Board stated : , Although the term "agricultural laborer" is not defined in the Act, its meaning is not obscure. The guide post is the ordinary meaning of the phrase, that stemming from common usage and common understanding. (Citing North Whittier Heights Citrus Association v. N. L. R. B., 109 F. (2d) 76, 80 (C. C. A. 9), enf'g Matter of North Whittier Heights Ctttus Asso- ciation, 10 N. L. R B. 1269 ) The term "agricultural laborer", as com- monly understood, refers to a person employed on a farm in the cultivation of the soil, including the harvesting of crops and the rearing and manage- ment of livestock. Only confusion results from an extension of the meaning of the phrase "agricultural laborer" beyond its customary sense. In Matter of Hind-Clarice Droxy1a the Board held that bottlers employed, in the dairy of a large dairy ranch were engaged in an operation incidental to the com- mercial activities of the company in that they work only in the bottling plant and their services are devoted entirely to the handling of milk as it is being pre- pared for shipment to market. The Board concluded that the services which are performed by bottlers are not "agricultural" in nature, but are performed in connection with commercial packaging and shipping enterprises." The respondent relies on the Christensen case referred to above. That case is not controlling here, but if it were, it would not support the respondent's posi- tion for at least two reasons, first because the court finds that the legislature had, by enactment of the amendment to the Act then under consideration, intended "to broaden the scope" of the term "agricultural labor" and second, the Court relied, in part, upon the fact that the four dairies involved in the Christensen case, transformed the grain, grass and hay raised upon their farms into milk by feeding these crops to cattle and by sale of milk at wholesale or retail "Matter of Pepeekeo Sugar Company, et al, 59 N. L. R. B. 1532, and cases cited. is 58 N. L. R. B. 99. See also Matter of Tovrea Packing Company, 12 N. L R. B. 1063, and Matter of George G. Averlll, et at., 13 N. L. R. B. 411. MOANALUA DAIRY, LIMITED 731 received , compensation for the crops so raised . In the instant case the record contains no evidence indicating that the respondent raises any feed crops on its "farm" In view of the above and the record, it is clear that the respondent is engaged in a commercial enterprise at its King Street plant ; that the em- ployees in question here are not agricultural laborers and are entitled to the protection of the Act ; and that the respondent 's contention ( 1) is without merit, and it is so found. As to contention (2) the record discloses that when Director Wills sought an expression from the respondent on the appropriateness of the unit claimed by the Union, he was advised that the respondent has insufficient "knowledge to form an opinion" ; that early in December 1943, Wills informed Rutledge that Winn objected to office workers'5 being included in' the unit and asked Rutledge if it would be agreeable to him to exclude them from the unit ; Rutledge replied that "It was perfectly all right to exclude them" ; and that on or about February 20, 1944, Wills informed Rutledge that he had advised Winn that Rutledge was willing "to just take in plant workers and drivers." Winn, however, in both his testimony and oral argument contended that he had frequently raised objection to the proposed unit and denied that Wills18 had informed him of Rutledge 's willingness to exclude clerical employees from the unit. Winn testified that the unit question was raised in his conference with Rutledge on February 28. Yet in a letter to Wills written under date of March 7, Winn purports to give a detailed report of all that transpired between him and Rutledge at that time, in which he admits that he had refused to rec- ognize the Union, no mention of the unit was made. He closed the letter by stating, "I think the above about covers everything of any importance discussed by us. [Italics added.] Winn testified that Blaisdell raised the unit question with Rutledge at the March 11 meeting at Blaisdell's office. Blaisdell's testimony herein does not indicate that any discussion was had on the appropriateness of the unit at that time. The record discloses that Blaisdell called the March 11 meeting in an effort to get Rutledge to bargain with Winn without recognition of the Union as sole bargaining representative of the employees involved . Under an arrangement barring recognition no agreement setting up a unit under the provisions of the Act would have been necessary. Winn further testified that at the meeting held pursuant to Wills' sugges- tion, "I (Winn ) pointed out-I would say secondarily-that the unit was inappropriate for the reasons I have mentioned ." [ Italics added ] Winn discussed the unit question with Wills . In this connection he testified , in part : At this conference of March 20, when I raised the question of the appro- priateness of the unit Mr. Wills said something to me from which I gath- ered that we would not have a great deal of trouble in getting together on the unit.17 "Two non-supervisory office workers are employed in the plant. 16 Wills was not called as a witness. See Section 2, Article VII, Rules and Regula- tions, Series 3, as amended July 12, 1944, which Section prohibits Board agents from appearing as witnesses before courts or boards without special permission of the Board. 11 The undersigned is convinced that Winn did on occasions, prior to February 20, dis- cuss the unit matter with Wills, but from the record is convinced that there was no dis- cussion of the unit question at the March 20 meeting, other than Wills' statement to the effect that "Inasmuch as there isn't any question about the unit, we can discuss" other matters Had the unit been questioned at this meeting. Winn no doubt would have questioned it in his letter of March 20, set forth above. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As I left the conference he (Wills) again reiterated that he didn't antici- pate having any difficulty in persuading Rutledge to agree to the exclusion of the supervisory 18 employees and the clerical workers from the unit . . . Winn's letter to Rutledge of March 27, set forth above, refers to "the status of the Company's drivers and physical workers employed in its King Street plant," a description which accurately describes the unit contended for by the Union, and indicates that Winn was under no misapprehension as to such con- tention" [Italics added.] As is set forth below, the respondent published a "NOTICE" to its customers 20 in which it purporthd to give the details of the dispute between the respondent and its drivers ; no contention was made as to the appropriateness of the unit contended for by the Union. From the above and the record it appears that prior to February 1944, Winn advised Wills that he objected to clerical employees being included in the unit; that Wills so informed Rutledge and procured the latter's consent that they be excluded ; that subsequent to, on or about, February 20, Rutledge understood that Winn had been advised of the fact that the Union would exclude clerical workers from the unit ; that subsequent to, on or about, February 20, and until the respondent filed its answer in the instant case the appropriateness of the unit claimed by the Union was not questioned by the respondent ; and that the respondent's contentions to the contrary, made at and during the hearing herein were, pot good faith contentions. Respondents contention (2) is without merit, and it is so found. As to contention (3) the record discloses that the respondent at all times refused to grant recognition to the Union as the sole bargaining representative of the employees in the apps opt fate unit. It contends, however, that its offer to bargain on February 28, conditioned', as follows: ". . . without waiving our (respondent's) contention that they (employees) are not under the Act" . . .; its offer to bargain on March 11, conditioned, as follows: ". . . but there must be one thing understood; that in setting down and bargaining we were not waiving out legal contentions that the people (employees) were not covered by the Act"; its offer to bargain March 20, conditioned as follows: that the respondent could not grant formal recognition before there were any negotiations between it and the employees "for to do so would result in its waiving the legal point it has raised which is, . .. whether or not the employees in question are, or are not, engaged, in agriculture ; and its offer to bargain on March 27, conditioned, as follows : "it being understood, however, that the Company is not, thereby, receding from its position that such employees are agricultural employees and are there- fore' exempted from the provisions of the Niitional Labor Relations Act," con- stitute recognition under the Act ,The respondent at no time questioned the fact that a majority of the employees in the unit found herein to be appropriate had designated the Union as the sole is Winn's contention that the Union sought to include supervisory employees in the unit is not supported by the record. It is based on the fact that the Union's Petition for Certification did not expressly exclude snpervisoly employees. Winn, Blaisdell , and Rut- ledge each have a long background in negotiating contracts between employers and em- ployees under the Act, a fact well known to each other. It is unreasonable to believe that Winn was of the opinion that Rutledge did not know that supervisors may not be in- cluded in the unit under the Act. His contention to the contrary is not made in good faith, and it is so found See N. L R B v Sunshine Mining Co, 110 F. (2d) 780 (C. C. A. 9)., ' 19 Winn testified that he orally raised the unit question with both Wills and Rutledge after February 28 In view of the fact that no contention as to the unit was made in the correspondence referred to .above, the undersigned is of the opinion and finds that Winn was in error in so testifying. 20 See footnote 25, infra. MOANALUA DAIRY, LIMITED 733 and exclusive bargaining representative of such employees. As such representa- tive the Union was entitled to recognition without any conditions attached . . . The recognition required by the Act is not a bargaining matter. The Board and the Courts have so held " The respondent's contention (3) is without merit, and it is so found. 2. Concluding findings From the above and the record it appears that the respondent did on or about February 28, 1944; March 11, 20, and 27, 1944; April 2, 4, and 6, 1944, and on July 3, 1944, refuse to bargain collectively with the Union as the exclusive repre- sentative of the employees in the appropriate unit, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. By threatening to discharge its drivers one by one in the event they joined or became involved with the Union, as found above, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act. B. The stithe, the loch-oat, and the discrrnrrnatotyt discharges The complaint alleges in substance that the respondent by its refusal to bar- gain collectively with the Union and by refusing to grant the full recognition to the Union to which it was entitled, the respondent caused its milk route delivery men'-' to go on strike on April 2, 1944, and to reiuani on strike until September 17, 1944, at which tune the said employees made unconditional offers to the respondent to terminate said strike and return to work; and that on or about April 17, 1944, the respondent did shut clown and discontinue the operations of its retail delivery routes and has since refused to resume operation of said routes in order to lock out said employees as part of its plans to dissipate the majority status of the Union, and to avoid collective bargaining. The respondent's answer denied all such allegations. (1) Events leading up to the lock-out and discharges The record discloses that the drivers , as a result of the respondent 's refusal to grant recognition to the Union , decided on March 31, to, and did , prepare a list of five demands set out herein above , to be presented to the respondent's manager on April 2 for his signature. On Sunday, April 2, the five regular drivers2 " went to the plant, loaded their trucks with milk ready for delivery , and then presented the five demands to Manager Bernshouse. The latter said he "couldn't sign on too short notice," as he must see Attorney Winn. As Winn was not available, Blaisdell and Fred Carter, secretary of the Employers Council, were called in . Blaisdell tried to induce the drivers to go out on their routes and stated that if they did, the respondent would negotiate with the drivers commencing on the afternoon of April 3. The drivers insisted on starting negotiations at once. Blaisdell then asked Driver Ishikawa if he had seen Winn 's letter of March 27 that had been sent to Rutledge, in which it was agreed that the respondent would "sit with us." When Ishikawa replied in the negative , Blaisdell left to procure the letter. During Blaisdell's absence Ishikawa called Rutledge and inquired about the a 21 See McQuay-Norris Mfg Co v. N L R P.., 116 F. (2d) 748 (C C A 7) Ishikawa , Kamihara, Roza, Miyaki, and Ogata The relief driver did not work on Sundays 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD letter. Rutledge told him that lie had received it, and stated, ". . . but it is the same old story ; it is their usual way of stalling." After Blaisdell returned with the letter or a copy thereof, he called Rutledge and insisted that the latter order the drivers to go out on their routes, and stated that he "was quite sure that we could have an agreement." Rutledge then asked : Well, does that mean that the Company will give us recognition, give us the recognition that you haven't been wanting to give us all this time, recog- nize the union as the union, as the representative of the men? Blaisdell replied that he "couldn't do that." When it became apparent that Bernshouse would not sign the demands or proceed with negotiations at that time, the drivers prepared to leave the plant and as they did so Bernshouse asked each in turn and in substance, "Then you fellows want it this way?" 24 and in each instance received an affirmative reply. The drivers then unloaded the milk from their respective trucks into the cooler and left the plant. The drivers had not requested the three plant workers, also union members, to join them in the strike so that there should be no spoilage of milk. On April 3, Rutledge asked Norback to again intercede as conciliator in an attempt to get the parties together. As a result of Norback's action, Rutledge, Blaisdell, and Carter met at Norback's office on or about April 4. Blaisdell took the position that the drivers had quit their jobs on April 2 and were no longer employees of the respondent. Rutledge offered to forego the first three of the five demands presented by the drivers on April 2, and have the drivers return to work "on the basis of the company granting the last two demands." Blaisdell refused Rutledge's offer as "out of the question" and suggested the idea "of getting together and working out some conditions that would be satisfactory to the company and possibly the men without any union recognition." [italics added. ] On April 6, as set forth above, Rutledge wrote the respondent cffering to use his influence to induce the drivers to return to work if the respondent would agree to make no reductions from the wages of the drivers without written authorization by the driver concerned and that the respondent would grant recognition to the Union. No reply was made to the above proposals. On or about April 10, the Union received its charter fiom the Teamsters, and on April 14, wrote the respondent as follows : In reference to the present dispute between your Company and your milk route drivers, it has become necessary for the Dairy Workers Union as such to take a position. Our Union was chartered several days ago by the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the A. F. of L. as the Dairy Woi kern Union Local No. 946 with the understanding that "the policy of the International Union would be carried out during the war emergency and that no strikes or stoppages of work would be allowed." Therefore, the Union is ordering your striking employees to return to work as a condition of membership in the Union. They will be at work on Monday, April 17 at the regular time and place. On April 17, pursuant to the foregoing letter, the drivers reported for work at the respondent's plant and first met Paul E. Heckenlively, secretary and 24 Bernshouse's contention that the drivers "quit" and Blaisdell's contention that the drivers "resigned " their positions at this time is discussed below. ,MOANALUA DAIRY, LIMITED 735 assistant manager of the respondent company, and asked hint if they were not supposed to go to work. Heckenlively referred them to a published "Noticel'21 pontained in "The Honolulu Advertiser," a local plpel. it copy of which was in the plant, for the answer to their inquiry After reading the notice, the drivers un- derstood that they "were not working that day " The drivers, however, waited until Bernshouse arrived and asked him if he had received Rutledge's letter of April 14, informing him that they were reporting for work. Bernshouse replied that he knew nothing about the letter, and when asked by Ishikawa if he had 25 NOTICE To Customers of Moanalua Dairy So much misinformation has been passed on to the public regarding the dispute between the lloanalua Dairy and the Union that the Company believes it is time to give the public-particulaily those members of the public who ate its customers--the actual facts surrounding the dispute Some time ago the Dairy Workers Union wrote the Company demanding that the Company recognize it as the sole and exclusive bargaining agency for a certain group of the Company's employees. The Company, after taking the matter up with its at- torneys, wrote the Union saying that under the National Labor Relations Act (Wagner Act) the Company was not required to bargain with the Union as the representative of those employees as under several court decisions this particular group of employees was specifically excluded from the Act The Company went on to say, however, that if its employees themselves, either individually or collectively, wanted to take lip with the management any grievance any of them had or any question concerning their wages, hours or working conditions, they were welcome to do so. The Union thereupon filed its petition with the local representative of the National Labor Relations Board asking that the Board call a hearing on the petition and thereafter decide the legal question as to whethei or not the Act covered these em- ployees The Company intormed the Board's representative and the Union that it would cooperate in every way to obtain an early decision from the Board as it was as anxious as was the Union to have the question decided by the Board-the sooner, the better The Company also said that it would he willing to agree upon the facts thereby obviating the necessity of having a formal hearing on the petition and that the facts as agreed upon could then be submitted to the Board at once The Board's representative was in the course of preparing an "Agreed Statement of Facts" when the Union members "quit." The Union representative now says that the men did not "quit" but merely went on "strike." At any rate, on April 2nd the members of the Union refused to go out on their routes Furthermore, the same Union representative on April 2nd stated to the press that the men had "quit" and his, statement appeared in the public press the next day Last Friday (April 14th) the Company received a letter from the same Union representative saying that the nien would be back at work on Monday, April 17th The Company has refused to take them back The Company believes that its former employees and their leaders have demonstrated that they are utterly lacking any sense of responsibility to the Company s customers and to the public in general and that if such employees are reinstated, it will be only a short time befoie they, of their own accord or, at the bidding of the Union, will again quit In answer to the charge made by certain of these employees that they are under- paid, we are publishing the average monthly earnings of and the hours worked by each employee : Hours per week Average monthly earnings T Ogata--------------------- 31 $261. 00 11 Koza --------------------- 34 241. 00 R Ishikawa------------------ 39 265. 00 P Miyake-------------------- 40 s/4 245 00 and house free N Muramoto----------------- 401/2 240. 00 and house free T. Kamihara------------------ 45 248. 00 and house free We sincerely regret the inconveniences and hardships that have been caused our customers by the action of the Union but we believe that they will agree that it is not the Company that is to blame. Until normal operations are resumed, the Company will continue to serve the public at its King Street store IIOANALUA DAIRY, LTD. 679100-46-vol 65 48 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anything to say to the drivels, he replied, "No." The drivers therewith left the plant. On or about April 18, the six drivers sent identical letters to the respondent, requesting reinstatement, which read, in part, as follows: DEAR MR. BERN SHOUSE : This is for the purpose of confirming in writing my individual application for reinstatement to my former job. On Monday morning, April 17, I appeared at the plant, ready to go to work, and was then told to read page 2 of the Honolulu Advei titer. I hereby request reinstatement to my former position immediately. Yours very truly, [Signature] At the time of the hearing none of the six drivers had been reinstated to their former or substantially equivhlent positions. Two former drivers, Miyaki and Muromoto who lived in respondent-controlled houses, received eviction notices on or about April 14. Both vacated shortly thereafter. I'tior to May 5, rl[iyaki went to the plant, where he met Heckenlively, who called him aside and said : "We might resume deliver y" and in case they did AIiyala`s i orate would be open for him. Miyaki got in touch with \[aromoto and both called on lleinslionse. who in turn reterred them to Wain. Both drivers met with Winn, with Bernshouse and Blaisdell present. Winn asked if Rutledge had sent them hack They replied. "No,-We are willing to go back of our own iiccoid"--Miyaki, with reference to the Union, stated "to heck with the Union, we don't belong to the Union " -Because we are not paying clues After Bernshouse, Blaisdell, and Winn had conferred privately, Winn informed the two drivers that there was "no routes open," but added : Now, boys, we have a couple of jobs in the plant, and you have six people who want jobs It is tip to you bobs to decide among yourselves who is to take those jobs .21 Miyaki and Muromoto then took the two jobs at 85 cents per hour, a rate less than previously earned. (2) Contentions and testimony of the respondent as to the lock-out and discharges The respondent contends in substance (1) that the drivers quit and resigned their jobs on April 2, and that thereafter their status as employees of the respond- ent ceased to exist; and (2) that as a result of such "resignations" and pursuant to long contemplated plans, the respondent definitely and permanently discontinued that portion of its dairy business having to do with the retail delivery of milk and thus had not locked out and discharged the drivers. As to contention (1) the record discloses that the 6 drivers and 2 plant employees joined the Union in August 1943 and one plant worker joined in February 1944 and from that time on the Union sought, without success, to have the respondent recognize the Union under the Act, as the sole bargaining i epresentative of the employees in the appropriate unit: as part of their effort to induce the respondent to bargain with the Union. 7 of the drivers on March 1, 1944, filed applications for a statement of availability under Rule No 43 of the, Hawaii Defense Act, which Rule, however, iequired no release to permit a worker to transfer employ- "The record does not disclose whether Miyaki and Muromoto discussed the two jobs with the other drivers MOANALUA DAIRY, LIMITED 737 nient within the industry, and the Hawaii Manpower Director so ruled ; on March 18, the Hawaii Manpower Director advised Bernshouse of said ruling; on March 20, the same Director in a letter to Winn explained the determination under Rule 43 in some detail and advised Winn in effect that the controlling program insofar as the drivers were concerned was the War Manpower Commission Em- ployment Stabilization Program, and that no determination had been made as to the issuance of Statements of Availability to enable the drivei s to transfer to other (than dairy) essential employment;' on March 31, as set forth above, the drivers had demands prepared to be presented to Manager Bernshouse on the next work day, Sunday, April 2, for his signature, with the predetetnunatlon and inu- tual understanding that if Bernshouse did not agree to such demands they would go out on strike; also, as found above on April 2, Bernshouse refused to grant such demands and the drivers unloaded their milk trucks and left the plant premises; on April 3, the Union notified the War Manpower Commission that a labor dispute existed between the respondent and its plant men and drivers, requested that, in accordance with national policy of the War Manpower Commission, the U. S. Employment Service make no referrals to the respondent pending the dispute; 28 also on April 3, the Union sought the aid of Norback, as conciliator ; and that on April 7, Rutledge advised Blaisdell that he was representing the 6 drivers "who are now on strike," and offered in effect to reduce the "5 demands" to two. Both Bernshouse and Blaisdell testified on direct examination that the drivers, before leaving the Dlant on April 2, said in answer to it poll taken by Bernshouse that they were quitting On cross-examination however, Bernshouse admitted that he might have asked the drivers, "Do you want it, this way?" and Blaisdell, on cross-examination stated that he did not remember whether Bernshouse, "as a matter of fact," had used the word "quit". The record discloses that no certifi- cates of availability or release were either asked for by the drivers or tendered by the respondent on April 2 In view of the above and the record, it is clear that the drivers did not quit or resign their jobs, but went out on sti ike on April 2. and on April 3, were joined in such strike by the relief driver Muronnoto, and that each driver retained his status as an employee of the respondent under the Act. The undersigned further finds that the strike was caused primarily by the respondent's unfair labor prac- tice in refusing to bargain collectively with the Union as required by the Act. The respondent's contention (1) is without merit, and it is so found. As to contention (2) the respondent and its witnesses testified in substance and effect that as far back as 1042, it held a directors' meeting at which plans to go out of the retail delivery of milk and enter a different type of dairy business was discussed : that "since the war broke out" the respondent's officials ". . . defi- nitely had been thinking about it...... ; that inasmuch as the drivers had become less efficient and reliable and finally "quit" their jobs on April 2, the respondent on or about April 10, determined to permanently and definitely discontinue delivery of milk at retail, and that on April 17, when the drivers sought rein- statement to their jobs, no positions were available for them zT No applications were filed by the drivel s under the War Manpower Commission pi o- gram The respondent contends that by making the applications referred to above the drivers indicated their desire to quit their jobs with the respondent and that it was justified in assuming they had "quit" and did not go on strike on April 2 28 The respondent contends that Rutledge gave a statement to the press on or about April 2, stating that the drivers had "quit", and that such statement appeared in the public press the next day . The respondent contends in effect that such statements tends to disprove that the drivers went on strike The actions described above indicate the contrary, and It is so found 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record discloses however, that on April 17 when the drivers had aban- doned their strike and requested reinstatement, the respondent published a "Notice" to its customers censuring the Union and the drivers, winch read in part as follows : Last Friday (April 14th) the Company received a letter from the same Union representative saying that the men would be back at work on Mon- day, April 17th The Company has refused to take them back. The Com- pany believes that its former employees and their leaders have demonstrated that they are utterly lacking any sense of responsibility to the Company's customers and to the public in general and that if such employees are rein- stated, it will be only a short time before they, of their own accord or, at the bidding of the Union, will again quit. We sincerely regret the inconveniences and hardships that have been caused our customers by the action of the Union but we believe that they will agree that it is not the Company that is to blame. Until normal oper- ations are resumed, the Company will continue to serve the public at its King Street store. The record discloses that the respondent has a temporary oral arrangement with Ewa Sugar Plantation whereby the respondent furnished a truck together with gas and oil and the plantation furnished a driver, who transports the milk to Ewa Plantation daily, where it is distributed to hospitals, stores, and homes; that the respondent has a temporary oral agreement with the U. S. Navy whereby the latter uses a Navy truck and transports milk daily to Pearl City and Pearl Harbor where it is distributed to Navy personnel, stores, and canteens ; that in addition to delivering milk at retail the drivers, prior to their lock-out and dis- charges, also delivered milk at wholesale, which milk is now delivered in part by an Ewa Plantation employee, by the respondent's foreman, and by a U. S. Navyi employee; that although the respondent distributed copies of the "Notice" re- ferred to above to its customers, no notice has ever been published to the effect that retail delivery has been definitely discontinued ; that from 40 to 50 percent oL the milk sold by the respondent is sold at retail "over the counter" at the iespoi>,dent's King Street plant; that none of the milk salesmen have been in- structed to advise customers that retail delivery will not be resumed in the future ; that the usual answer given to the customers who inquire as to when retail delivery will be resumed is "We don't know" ; 2° that the respondent con- tinued to operate and maintain the trucks formerly used in part for retail deliv- ery ; and that notwithstanding its contention that the drivers 30 had become inefficient and unreliable, it lett the matter of selection of the two employees to be hired as "plant workers" on or about May 5, as set forth above, to the joint determination of the 6 drivers. The record further discloses that due to abnormal conditions induced by World War II the demand for milk greatly exceeds the supply, with the result that the respondent is able to dispose of from 40 to 50 percent of its milk and milk products at retail by over the counter sales at its plant ; that by forcing its cus- tomers to call at its plant for the milk they need, the respondent is able, under such existing conditions, to save the wages normally paid to at least four drivers ; 2N Bernshouse testified that " . . from time to time" he has so told some of his enstonieis °° The drivers were employed by the respondent and its predecessor for the number of years, as follows • Ishikwa 10 years Miyake 10 years . Kamiliara 6 years ; Ogata 3 years, Muromoto 2 veais Iio'sa was not called as a witness MOANALUA DAIRY, LIMITED 739 and that the respondent will, in all probability, withhold retail deliveries until conditions return to normal on the Island of Oahu, T H. From the above and the record it appears that while the respondent's officials had from time to time casually discussed the fact that it might, at some time in the future, change the type of its dairy operations, it had not done so on April 17, when the drivers reported to work and requested reinstatement. This fact is demonstrated by the published "Notice" to its customers set forth above, wherein it clearly suggests that "normal operations" to its customers will again be resumed. That it has not definitely and permanently changed such operations since April 17, is shown by the temporary arrangements it has made with Ewa Plantation and the Navy and by its retention of its fleet of delivery trucks, the absence of any general notice of change to its customers, or to the public and the fact that a large percent of its milk business still depends on retail customers.81 The Iespondent's contention (2) is without merit, and it is so found. (c) Concluding findings From the above and the entire record the undersigned concludes and finds that Ishikawa, Kamihara, Roza, Miyake, Ogata, and Muromoto were locked out and discriminatorily discharged on April 17, 1944, because of their activities on be- half of the Union, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guar- anteed in Section 7 of the Act. The undersigned further finds that by publishing the "Notice" to its customers on April 17, 1944, and by referring the strikers to it in answer to their uncondi- tional application for reinstatement as found above, the respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act'' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce within the Territory of Hawaii, and among the several States and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Having found that the respondent on February 28, 1944, and all times there- after, refused to bargain collectively with the Union as the exclusive representa- tive of its employees in an appropriate unit, the undersigned will recommend that the respondent upon request bargain collectively with the Union. It has been found that the respondent on April 17, 1944, locked out and dis- charged Ishikawa, Kamihara, Roza, Miyake, Ogata, and Muromoto, and temp- 91 Bernshouse testified in substance that on April 2 , he informed the drivers that if they left it would be necessary to "change over to wholesale " as The complaint alleged that the respondent by unilateral action granted pay raises to certain employees in the unit, notwithstanding the Union had requested bargaining con- cerning such matters The record contains insufficient evidence to support such allega- tion and it will be recommended that this allegation of the complaint be dismissed. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I porarily discontinued the retail delivery of milk, the operation at which said discharged employees had theretofore been, in part , employed , in order to dis- courage membership in the Union , thereby discriminating in regard to their hire and employment . In order to effectuate the policies of the Act it is recom- mended that the respondent offer to the said named employees immediate rein- statement to their former or substantially equivalent positions or to any other available positions for which they are qualified , without prejudice to their seniority and other right and privileges, and that, if respondent Moanalua Dairy, Limited, has no need at the time for all of the aforesaid six additional drivers, it then lay off such employees as may be necessary to reduce its personnel to the normal complement, following such practice of seniority or other non -discrimina- tory procedure as it had been accustomed to employ at the time that it commenced its discriminatory practices as herein found" It will be further recommended that, as to those drivers that may be laid off, that their names be placed on a preferential list and that they, shall thereafter be offered employment in any position for which they are qualified as such employment becomes available and before other persons are hired for such work ; and that if the operation of retail delivery of milk is reopened , Ishikawa, Kainihara , Koza, Miyaka, Ogata, and Muromoto, if then not employed as drivers , shall be offered immediate employ- ment therein . It will also be recommended that the respondent make whole Ishikawa, Kamihara , Koza, Miyake, Ogata, and Muromoto for any loss of pay they have suffered by reason of their discharge by payment to each of them of a sum of money equal to the amount which he would normally have earned as wages from April 17, 1944. to the date of the offer of reinstatement,' or placement upon the preferential list as above provided , less his net earnings 35 during said period. On 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. Dairy Workors Union of Hawaii, Local 946, affiliated with the International f Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America- A F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2 All the employees of the respondent engaged at its King Street dairy plant in Honolulu, excluding supervisory and office employees, now constitute, and at all times material herein constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Dairy Workers Union of Hawaii, Local 946 was on August 21, 1943, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 33 As tound above, the drivers in question delivered milk at both wholesale and retail The wholesale operations have not been eliminated and it is the purpose and intent of this recommendation that the respondent utilize the services of as manv of the six locked- out drivers as may be necessary for the functioning of its wholesale business 34 The amount of compensation to be paid these employees shall not be diminished on account of the discontinuance of the retail milk delivery routes, since that action itself constituted an unfair labor practice 33 By "net earnings" is meant earnings less expenses, sueli as for ti.uis portation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N L R. B 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation v. N. L R B., 311 U. S 7. MOANALUA DAIRY, LIMITED 741 4 By refusing on February 28, 1944, and at all times thereafter, to bargain collectively with the Dairy Workers Union of Hawaii, Local 945, as exclusive representative of the employees in the above unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of.the Act. _ 5. By discriminating in regard to the hire and tenure of employment of Ishi- kawa, Kamibara, Koza, Miyake, Ogata and Muromoto, thereby discouraging membership in the Union, the respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) of the Act 8. The respondent has not violated Section 8 (1) of the Act by granting pay raises to certain employees as alleged in the complaint. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law. the under- signed recommends that the respondent, Moanalua Dairy, Limited, its officers, agents, successors, and assigns, shall 1. Cease and desist from : (a) Refusing to bargain collectively with Dairy Workers Union of Hawaii, Local 946-A. F. L., as the exclusive representative of all its employees engaged at its King Street plant, Honolulu, Territory of Hawaii, exclusive of supervisory and clerical employees in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Discouraging membership in Dairy Workers Union of Hawaii, Local 946-A. F. L., or any other labor organization of its employees, by locking out, discharging and refusing to reinstate any of its employees or in any other manner discriminating in regard to the hire and tenure of employment or any terms or conditions of their employment ; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form labor organiza- tions to join or assist Dairy Workers Union of Hawaii, Local 946, A. F. L, 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 as guaranteed in Section 7 of the Act. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Upon request bargain collectively with Dairy Workers Union of Hawaii, Local 946,-A F. L., as the exclusive 'representative of all the respondent's employees in the King Street plant in Honolulu, Oahu, Territory of Hawaii, exclusive of official supervisory and clerical employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; (b) Offer to Roydon M. Isbikawa, Takeo Kamihara, IIiicichi Koza, Paul Miyake, Takeshi Ogata, and Norman S. Muromoto immediate and full rein- statement to their former or substantially equivalent positions, or to any other available positions for which they are qualified, without prejudice to their seniority or other rights and privileges previously enjoyed : and if no such posi- tions are presently available, place them on a preferential list and thereafter 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offer them employment as it becomes available, in the manner provided in the section entitled "The remedy" ; (c) Make whole Roydon M. Ishikawa, Takeo Kamihara, Hircichi Koza, Paul Miyake, Takeshi Ogata, and Norman S. Muromoto for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from April 17; 1944, to the date of the offer of reinstatement or placement upon the preferential list as provided in the section entitled "The remedy", less his net earnings 30 during such period; but without diminution on account of the discontinuance of the retail milk delivery routes : (d) Post at its King Street plant at Honolulu, Oahu, Territory of Hawaii, copies of the notice attached hereto, marked "Appendix A". Copies of such notice, to be furnished by the Regional Director of the Twenty-third Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof. and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or cov- ered by other material; (e) Notify the Regional Dii ector for the Twenty-third Region in writhig within ten (10) clays from the date of receipt of this intermediate Report what steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid It is further recommended that, insofar as the complaint alleges that the respondent by unilateral action granted pay raises to certain employees in the appropriate unit, notwithstanding the Union had requested bargaining concern- ing such matters, the same be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, effective July 12, 1944, as amended, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article 11 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any pasty desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. PE'rEic F. WAuD, Trial Examiner. Dated March 17, 1945 11 See nest preceding footnote MOANALUA DAIRY, LIMITED APPENDIX A NOTICE To ALL EMPLOYEES 743 Pursuant to recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: We will not in any mariner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Dairy Workers Union of Hawaii, Local 946, affiliated with the American Federation of Labor or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without. prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. We will bargain collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit de- scribed herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: all employees engaged at King Street, Honolulu, Oahu. Territory of Hawaii, plant, exclud- ing supervisory and clerical employees. The employees referred to above, are as follows : Roydon M. Ishikawa, Takeo Kamihara, Hircichi Koza, Paul Miyake, Takeshi Ogata, and Norman S. Muromoto. 'All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of *employment against any employee because of membership in or activity on behalf of any such labor organization MOANALUA DAIRY, LIMITED, Employer. Dated---------------- By--------------------------------- ......... ---- (Representative) (Title) NOTE: Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in ac- cordance with the selective service act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.