Terminal Storage Co.

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