Anheuser-Busch, Inc.

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interfering with, restraining, and coercing William Scott in the exercise of rights guaranteed in Section 7 of the Act, Respondent Company has engaged in and. is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By causing Respondent Company to discriminate against William Scott im violation of Section 8 (a) (3) of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing William Scott in the exercise of the rights guaran teed in Section 7 of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Anheuser-Busch, Inc. and International Union of United Brew- ery, Flour, Cereal, Soft Drink and Distillery Workers of Amer - ica, CIO, and Its Local 187. Case No. 14-CA-1190. May 10, 19,55 DECISION AND ORDER On September 23, 1954, Trial Examiner Louis Plost issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (5) and (1) of the Act 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. The Trial Examiner further found that the Re- spondent had not violated Section 8 (a) (3) and (1) of the Act, as alleged in the complaint, and recommended that the complaint be dis- missed with respect to those allegations. Thereafter the Respondent,. the Charging Party, herein called Local 187, and Brewers and Malters. Local No. 6, affiliated with International Brotherhood of Teamsters,. Chauffeurs, Warehousemen and Helpers of America, AFL, herein called Local 6,1 filed exceptions to the Intermediate Report and sup porting briefs. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications.. 1. On June 24, 1953, the Board certified Local 187 and Local 6, re- spectively, as the exclusive bargaining representatives in two separate units. The first unit covered substantially all of the production and: maintenance employees in the Bevo building, including all of the I Local 6, which was not served with notice of, and did not participate in, the hearing, was permitted limited intervention for the purpose of filing exceptions and a brief. 112 NLRB No. 91. ANHEUSER-BUSCH, INC. 687 employees on the upper floors, except those in brewing department areas, and all of the materials handling employees in the basement. The second unit, for which Local 6 was certified, included all employees engaged in shipping, receiving, and storage operations outside bottling ,department areas, and therefore outside the Bevo building. Early in the afternoon of Tuesday, November 24, 1953, the heads ,of the Respondent's packaging and brewing departments decided to shut down these departments from Wednesday, November 25, 1953, to the following Monday, November 30, 1953, due to a heavy cancella- tion of orders. Notices of the impending shutdown were posted at about 3:45 p. in. on Tuesday, November 24, in brewing department areas manned by Local 6 personnel. Between 3 and 4:30 p. in. on the same day, the Respondent informed the Local 187 representative at a meeting of the impending shutdown, advised him that nobody would be paid for the following Friday (November 27) who did not -work, and acceded to his request that general notices of the shutdown be deferred until 8 p. in. that evening. At 4 p. in. on the same day, Local 6's business manager called the Respondent's president and oingrily accused him of a breach of good faith in failing to give him .advance notice of the shutdown prior to the posting of the notices in the brewery departments. At 8 p. in. that evening notices of the shut- down were posted throughout the plant. The plant was closed on Thanksgiving Day, November 26, and Friday, November 27, 1953. ,Of some 1,000 Local 6 members, only about 30 worked that Friday in the plant yard, for which work they were immediately paid. None of the approximately 2,000 employees represented by Local 187 then em- ployed worked that day. On January 15, 1954, the Respondent decided to reimburse all of the .employees represented by Local 6, in the unit for which it was bargain- ing representative, for the day of November 27 not worked. On January 24, 1954, such payment, in the sum of $18,299 .7 6, was made. Although importuned by Local 187, the Respondent refused to pay the employees represented by Local 187 in its bargaining unit for the Friday not worked on the ground that the payment to Local 6 members was for the purpose of making up for its earlier failure to observe its traditional practice with Local 6 of giving timely notice of an im- pending shutdown. The Section 8 (a) (3) allegation in the complaint is predicated on the payment to employees in the unit represented by Local 6, and the refusal to pay employees in the unit represented by Local 187 members, for the day not worked. The Trial Examiner recommended dismissal of the Section 8 (a) (3) allegation. Local 187 excepted. We agree with the Trial Examiner that the determination of the Section 8 (a) (3) allegation of the complaint depends on whether, nlnder the principles established by the Supreme Court in the Radio- 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Officers' Union, the Teamsters, and Gaynor News cases,2 discrimina- tory motivation within the meaning of the Act existed in the circum- stances of this case which would support an unfair labor practice finding. The Supreme Court stated: The lain iiiage of Section 8 (a) (3) is not ambiguous. The unfair labor practice is for an employer to encourage or dis- courage membership by means of discrimination. Thus this sec- tion does not outlaw all encouragement or discouragement of membership in labor organizations; only such as is accomplished by discrimination is prohibited. Nor does this section outlaw discrimination in employement as such; only such discrimination as encourages or discourages membership in a labor organization is proscribed. The relevance of the motivation of the employer in such dis- crimination has been consistently recognized under both Section 8 (a) (3) and its predecessor... . That Congress intended the employer's purpose in discriminat- ing to be controlling is clear... . But it is clear that specific evidence of intent to encourage or discourage is not an indispensable element of proof of violation of Section 8 (a) (3). This recognition that specific proof of intent is unnecessary where an employer's conduct inherently encourages or discourages union membership is but an application of the common law rule that a man is presumed to intend the foreseeable consequences of his conduct. With these principles in mind, it seems reasonably clear that the existence of disparate treatment as between the employees in the unit represented by Local 6 of the Teamsters and the employees in the unit represented by Local 187 of the Brewery Workers, is not, in and of itself, dispositive of the issue as to whether or not the Respondent's conduct was discriminatorily motivated within the meaning of the Act. In analyzing the three cases considered by the Supreme Court in its decision, it appears that in each instance the discrimination found to exist was predicated solely on union-membership status. In the Teamsters case, the respondent union caused the employer to re- duce an employee's seniority for being delinquent in the payment of his union dues although it had not obtained a uion-shop contract or a certification under section 9 (e) of the Act. No other bargaining unit represented by another union was involved. In the Radio O icers case, the respondent union caused the employer to withdraw its prior offers of empoyment to a job applicant by refusing to issue a clearance 2 Decided together in 347 U. S 17. ANHEUSER-BUSCH, INC. 689 to him. Again, no other bargaining unit represented by another union was in the picture. In the Gaynor case, the respondent employer granted retroactive wage increases to employees in the bargaining unit who were members of the union but refused to grant such ret- roactive wage increases to employees in the same unit who were not union members. The last case presented a situation closest to the one under consideration here, but in that case, too, the disparate treatment was between two groups of employees-one union and the other non- union-but both were within the same bargaining unit. Indeed, in finding discrimination within the meaning of the Act, the Supreme Court adverted to the fact that the union represented the majority of the employees and was the exclusive bargaining agent for the plant, and accordingly could not betray the trust of nonunion members by bargaining for special benefits to union members only, thus leaving the nonunion members with no means of equalizing the situation. The Court stated: We express no opinion as to the legality of disparate payments where the union is not the exclusive bargaining agent since that case is not before us. We do hold that in the circumstances of this case, the union being exclusive bargaining agent for both its members and nonmember employees, the employer could not with- out violating section 8 (a) (3), discriminate in wages solely on the basis of such, membership even though it had executed a con- tract with the union prescribing such action. [Emphasis sup- plied.] We note particularly that the Supreme Court took cognizance of the fact that the disparate treatment of employees in the Gaynor case "was based solely on union membership status." It was this, according to the Court, that made the disparate treatment "inherently conducive to increased union membership," i. e., encouraged membership in the union. The Court went on to state : In holding that a natural consequence of discrimination, based solely on union membership or lack thereof, is discouragement or encouragement of membership in such union, the [Second Cir- cuit] merely recognized a fact of common experience-that the desire of employees to unionize is directly proportional to the ad- vantages thought to be obtained from such action. No more strik- ing example of discrimination so foreseeably causing employee response as to obviate the need for any other proof of intent is apparent than the payment of different, wages to union employees doing a job than to nonunion employees doing the same job. [Emphasis supplied.] :690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is this specific application of the general principles enunciated by the Supreme Court that is most significant. In stating that "spe- -cific proof of intent is unnecessary where an employer's conduct in- herently encourages or discourages union membership," the Court, it seems plain, was mindful of factual circumstances where disparity of treatment inherently encourages or discourages union membership. In Gaynor, for example, the payment of different wages to union em- ployees doing a job than to nonunion employees doing the same job obviously had that reasonably foreseeable effect. Where, however, the employer's conduct does not "inherently" encourage or discourage union membership, it seems clear to us that the necessity for inde- pendent evidence of discriminatory motivation is not obviated, and in the light of this, the Court's statement that "Congress intended the employer's purpose in discriminating to be controlling" becomes sig- nificantly meaningful. In the situation with which we are here con fronted the disparity of treatment stems from a grant of an economic benefit to employees in a separate bargaining unit, represented by its own bargaining repre- sentative, without according the same treatment to employees in .another separate bargaining unit, represented by another bargaining representative. That the Act was so designed as to afford groups of employees of an employer the utmost freedom in their choice of a bar- gaining representative by permitting them to select such representa- tives in separate bargaining units, indicates that the statutory scheme .did not contemplate that disparate treatment among employees in dif- ferent separate units along unit lines would, by itself, give rise to a finding of discrimination. To hold otherwise would create a wholly unrealistic requirement that would impose intolerable conditions on an employer who had concurrent bargaining relationships with sepa- rate bargaining agents representing separate units of employees in the same or other plants of the employer. As we view it, an untold variety of factors and circumstances may exist which from the very nature of the different units and from the differences in bargaining relationships would render any attempt at inferring discriminatory motivation both speculative and futile. In our opinion, where, as here, the employer accords an economic benefit to the employees in a separate unit represented by its own bar- gaining agent without according like treatment to the employees in another unit represented by another bargaining agent, there is clearly no inherent unlawful intent. In such circumstances, as no such in- herent unlawful intent exists, an inference of such motivation cannot be drawn from the disparity of treatment alone; it must necessarily be predicated on other independent evidence. On the record before us, we conclude, in agreement with the Trial Examiner, that the Gen- eral Counsel failed to prove discriminatory motive by such other evi- ANHEUSER-BUSCH, INC. 691 Bence. Thus, the record fails to disclose any substantial evidence to ,counter the respondent's explanation that the sole reason for making the payment in question was to compensate for the failure to give due notice of the impending plant shutdown to Local 6 of the Teamsters in accordance with its established practice with that Union. We further find that the background of union rivalry and the fact that the re- spondent was under no legal compulsion to give notice of the shutdown ,do not, as Local 187 of the Brewery Workers contends, furnish by themselves an adequate basis for finding unlawful intent. Under these circumstances, we find, as did the Trial Exanminer, that the evi- dence adduced at the hearing did not preponderate in favor of a find- ing that Section 8 (a) (3) and (1) of the Act had been violated. Ac- cordingly, we shall adopt the Trial Examiner's recommended dismissal of the Section 8 (a) (3) and (1) allegations of the complaint. 2. The complaint also alleged a violation of Section 8 (a) (5) in that, in mid-February 1954, the Respondent, prompted by an increase in city delivery business, reactivated an idle building near the Bevo build- ing for the loading of city delivery trucks and decided to assign the work at the new location to employees in the unit represented by Local 6, despite the fact that at the time of the Board's certifications all city delivery beer shipments were handled by the employees in the unit rep- resented by Local 187. On March 25, 1954, the Respondent informed Local 187's representative of this plan but did not disclose its work as- signment proposal to him. Local 187 advised the Respondent that it claimed jurisdiction over the new area as a brewing department area, in accordance with its Board certification. On May 10, 1954, em- ployees in the Local 6 unit commenced operations there. The Trial Examiner found a violation of Section 8 (a) (5) based on the Respond- ent's dereliction in its obligation to bargain with Local 187 for the em- ployees covered by Local 187s certification, and in its failure to apprise Local 187 of the change in the locale of the truckloading operation. As no exceptions to this finding have been filed by the Respondent, it is affirmed. However, Local 187 excepted to the language in the Intermediate Report in which the Trial Examiner recommends, in substance, that the Respondent be required to "assign" the city delivery operations at the old wash house to the unit for which Local 187 was certified, and to similar language in his proposed notice to all employees, attached as Appendix A to the Intermediate Report. We agree with Local 187 that, as the violation concerned the refusal to bargain in the unit for which that labor organization was certified, the remedy properly con- sists in an order that the Respondent bargain with respect to all the employees in that unit, rather than that it "assign" the work at the old wash house to the unit for which Local 187 was certified. 369028-56-vo1 112 45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we shall amend the notice by deleting the language : "and we will assign the delivery truck loading and unloading operation carried on in the building variously known as Wash House Number 4, or Building 84 to members of the appropriate unit described below and represented by the above named Union." 3. Local 6, which after the Intermediate Report issued was permitted limited intervention for the purpose of filing exceptions and a brief in support of its contention that it had been prejudiced by not having been accorded st atus as a party at the hearing, moves to dismiss the charges and vacate the hearing on the ground that, as a resolution of the 8 (a) (5) issue necessarily involves a unit determination by the Board, Local 6 is a necessary party to the proceeding. IIowever, Local 6 does not show that it could have introduced any evidence which could con- ceivably have influenced the decision in this case. Furthermore, Local 6 raises no new issue, as the Respondent at the hearing adopted sub- stantially the same position as Local 6 now advocates and the issues arising therefrom were fully litigated at the hearing. In addition, Local 6 shows no valid reason for its lathes in waiting until the Inter- mediate Report was issued before attempting to intervene. As already indicated, the Respondent did not except to the finding of violation of Section 8 (a) (5) of the Act. The Chairman's disagree- ment with this finding appears to stem from the fact that he regards Local 6 as a necessary party in the Section 8 (a) (5) phase of this case. However, the Section 8 (a) (5) allegations of the complaint are predicated solely on a refusal to bargain and there is no sanction in the Act for requiring the joinder of Local 6 as a party to the Sec- tion 8 (a) (5) proceeding. Moreover, we have found merit in Local 187's exceptions that the violation of Section 8 (a) (5) concerned a refusal to bargain in the unit for which that Union was certified, and not a work assignment dispute, and have therefore not adopted the Trial Examiner's language in the Intermediate Report and recom- mended notice which is inconsistent with that fin cling. We shall therefore deny Local 6's motion. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Anheuser-Busch, Inc., of St. Louis, Missouri , its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to recognize or to bargain collectively with Inter- national Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, and its Local 187 as the repre- sentative of all its employees in the appropriate unit, with respect to ANHEUSER-BUSCH, INC. 693 rates of pay, wages, hours of employment, or other conditions of employment. (b) In any other manner interfering with the efforts of said Union to bargain collectively with the Respondent on behalf of the employees in the aforesaid appropriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the aforesaid Union as the exclusive representative of its employees in the appropriate unit. (b) Post at its plant at St. Louis, Missouri, copies of the notice attached hereto marked "Appendix." 3 Copies of such notice, to be furnished by the Regional Director for the Fourteenth 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 a period of sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fourteenth Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply therewith. IT Is UFREBY ORDERED that the complaint be dismissed insofar as it alleges that the Respondent has engaged in unfair labor practices within the meaning of the Act by paying the members represented by Local 6 for a day not worked by them. MEMBER MURDOCK, concurring in part and dissenting in part : I agree with Members Peterson and Rodgers that the Respondent violated Section 8 (a) (5) when it disregarded the Board's certifica- tion of Brewery Workers, Local 187, and assigned work on opera- tions covered by such certification to members of Teamsters, Local 6. I cannot agree however with the majority's finding that the Re- spondent did not violate Section 8 (a) (3) of the Act when it com- pensated employees represented by Local 6 and refused to compensate employees represented by Local 187 for a day not worked by both groups of employees. I am convinced that the majority, in refusing to find an 8 (a) (3) violation because of the absence of independent proof of the Respondent's unlawful motivation, has placed an un- warranted and erroneous limitation upon the scope of the Supreme Court's decision in the Radio Officers case' In that case the Court said: 3In the event that this Older is enforced bi decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Ordei" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" 4 Radio Officers' Union, v V L R B, supra 694 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD Both the Board and the courts have recognized that proof of certain types of discrimination satisfies the intent requirement. This recognition that specific proof of intent is unnecessary where employer conduct inherently encourages or discourages union membership is but an application of the commonlaw rule that a man is held to intend the foreseeable consequences of his conduct. In the sentence immediately following the above statement the Court, in clarification , went on to say : Thus an employer's protestation that he did not intend to encour- age or discourage must be unavailing where a natural consequence of his action was such encouragement or discouragement. Con- cluding that encouragement or discouragement will result, it is presumed that he intended such consequence . In such circum- stances intent to encourage is sufficiently established. [-Emphasis supplied.] The Supreme Court's pronouncement of the law on this subject is clear. When the "natural consequence" or the "inherent" effect of an employer's disparate treatment of employees is to encourage or dis- courage union membership no further proof of unlawful motivation is necessary. In the instant case, however, the majority draws an arbitrary line beyond which it will not apply the Court's reasoning. It would require independent proof of unlawful motive in all cases, as in the instant case, where the "disparate treatment among employees in different separate units" is "along unit lines," that is, when em- ployees in one unit receive benefits not received by employees in ,another unit, no platter how potent the effect of the disparate treat- ment is to encourage or discourage union membership. In my opinion this position is unrealistic and is contrary to the clear expression of the Supreme Court. The fact that the Supreme Court gave as an example of its announced general principles a situation where the employer's discrimination was "based solely upon union membership or the lack thereof" among employees "doing the same job " does not detract from the general principle or limit its application to the specific example. Certainly there is nothing in the decision which would indicate that the Court intended that its rule be limited to such a situation . It appears obvious to me that the Supreme Court in- tended, without exception, that the determination of whether or not an employer's discrimination had the "inherent" effect or "natural consequence" of encouraging or discouraging union membership is to be made upon consideration of all relevant facts in each case. Indeed, from its language it is evident that the Court envisaged other areas for the application of the rule . The specific situation with which the Court was concerned was regarded by the Court as merely one "strik- ing example of discrimination so foreseeably causing employee re- ANHEUSER-BUSCH, INC. 695 sponse as to obviate the need for any other proof of intent." The facts concerning the disparate treatment in the instant case are clear and in my opinion constitute no less a "striking example" of such discrimination. In June 1953 the Board certified Teamsters Local 6 and Brewery Workers Local 187, respectively, as the exclusive bargaining repre- sentative in two separate units. The Board's determination concern- ing the appropriateness of separate units rather than one combined unit was based, however, primarily upon the geographic separation in the Respondent's plant of the employees in each unit; the duties of the employees in both units are very similar. Both units cover employees engaged in shipping, storing, receiving, and noncraft maintenance. Until the spring of 1952 Local 6 was affiliated with the Brewery Workers. Its disaffiliation from the Brewery Workers and its subse- quent affiliation with the Teamsters were prompted by the years of bitter rivalry existing between it and Local 187 concerning the repre- sentation of substantially the same employees in the units which the two locals now are certified to represent. As the Board said in its Decision and Directions of Elections in the proceeding which resulted in the certifications, "This bargaining history has given rise to juris- dictional disputes [between Local 6 and Local 187] too numerous to detail here. . ." This rivalry continued after Local 6's disaffiliation with the Brewery Workers and even after both Locals were certified. Local 6 sought but failed to include within its unit a large segment of employees which were included within Local 187's unit. Indeed, as a result of Local 187's certification some 500 Local 6 members were included within Local 187's unit and were required to become Local 187 members. There was particular dissension and dissatisfaction among these employees which further fired the "intense feeling" be- tween the two Locals, of which, the record reveals, the Respondent was well aware. These employees went so far as to continue to attend Local 6 meetings and act as spies concerning Local 187 business matters. On November 24, 1953, the Respondent determined to close down, from November 25 to November 30, those areas of its plant in which employees represented by Local 6 and Local 187 were working. Be- tween 3 and 4 :30 p. in. on November 24, 1953, the Respondent advised the Local 187 representative of the impending shutdown and informed him that no employees, including Local 6 employees, would be paid for the day of November 27. At 3: 45 p. in. (on the same day) notices of the shutdown were posted in areas manned by Local 6 personnel. Fifteen minutes later Local 6's business manager called the Respond- ent and complained that he should have been personally informed of the shutdown. At that time he was given the same information con- 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerning the shutdown as was given the Local 187 agent. The plant was closed as planned. No one who did not work was paid. On January 24, 1954, the Respondent reimbursed all employees represented by Local 6 for the day of November 27 not worked but refused to so reimburse the employees represented by Local 187. These are the facts. Upon these facts can it be reasonably con- cluded that the Respondent's preferential treatment of Local 6 em- ployees did not have the "inherent" and "natural" effect of encourag- ing Local 6 membership and discouraging membership in Local 187? I think not. Here are two groups of employees both doing the same type of work, represented, respectively, by two unions who for many years have battled each other to represent them. When the plant is closed tem- porarily both groups do not work for a clay. Both are informed that they will not be paid for the clay not worked. One group is then later compensated while the other group is refused such compensation for the same period. That other effect could this disparate treatment have had except to convince the employees in the group not paid that Local 6, representing the group that had received more than $18,000 from the employer, had a greater power over and could obtain more benefits from the employer than their own union; and that as Local 6 was certainly interested in representing them, support for and member- ship in such union would result in greater working benefits for them? In my mind no other effect could have been reasonably anticipated; it was a "foreseeable consequence" of the action taken under the cir- cumstances which the Respondent must therefore be presumed to have intended. I would conclude, therefore, that the Respondent's preferential treatment of employees represented by Local 6 over employees repre- sented by Local 187 by paying the former for not working had the inherent and natural effect of encouraging Local 6 membership and discouraging Local 187 membership and, in accord with the Radio Officers decision, that the General Counsel proved his prima facie case without additional independent evidence of the Respondent's unlawful motivation. Accordingly, I would sustain the 8 (a) (3) allegation of the complaint. CIIAirrMAN FArrlrR, concurring and dissenting in part : I agree with the dismissal of the 8 (a) (3) allegation of the com- plaint. I do not agree with the finding of an 8 (a) (5) violation. Local 187 represents one group of the Respondent's employees; Local 6 another. The Respondent reactivated an old building and believed, apparently in good faith, that the employees assigned to this building belonged to the unit which Local 6 is the certified bargaining representative . The majority now finds that the Respondent was ANHEUSER-BUSCH, INC. 697 wrong and that these employees are part of Local 187s certified unit. It therefore finds a violation of Section 8 (a) (5). Essentially the dispute is one over the clarification of two unit certifications made by the Board. There are three parties interested in this clarification; the Respondent and the two Unions-Locals 187 and 6. Nevertheless, the majority is disposing of this question without one of the interested parties, Local 6, having had the opportunity to participate in the proceeding. If the Respondent or Local 187 had filed a motion for clarification of the unit findings, the Board would undoubtedly have required notice to Local 6 before making the clarification. Can the Board do less in an unfair labor practice proceeding ? It seems to me to be a violation of the elementary requirements of due process for the Board to make a finding which materially affects the rights of Local 6 without requiring service of process on that labor organization. The defect is jurisdictional. The reasons given by the majority to extenuate this failure appear totally inadequate to me. The majority has adopted the Trial Examiner's finding that the old wash house employees belong to the unit represented by Local 187 and that in bargaining with Local 6 for such employees, the Re- spondent violated Section 8 (a) (5) of the Act on the technical and procedural ground that no exceptions were filed by the Respondent to the Trial Examiner's finding. It is therefore beside the point to argue that Local 6 was not prejudiced because it has not shown what evi- dence it would have introduced to change the results of the decision or because the Respondent allegedly adopted the same position as Local 6. Local 6 has been seriously and irretrievably prejudiced by the fact that it has not been a party to the proceeding and that the exceptions it was belatedly permitted to file have not been considered. As to the lathes argument, the majority refers neither to evidence nor to law in support thereof. Since Local 6 was not made a party or given notice of the hearing, there is no basis for a finding that it was dilatory in failing to move to intervene prior to the issuance of the Intermediate Report. MEMBER LEEDODM took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL bargain collectively, upon request, with International Union of United Brewery, Flour, Cereal, Soft Drink and Distill- ery Workers of America, CIO, and its Local 187, as the exclusive 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of all our employees in the bargaining unit (le- scribed below with respect to rates of pay, wages, hours of em- ployment, or other conditions of employment. All hourly rated production and maintenance employees engaged in production, shipping, storage, receiving, and non- craft maintenance operations in bottling departments and bottling department areas, and employees in the basement and on the first and second floors, and nonsalaried elevator operators, the reception room bartender, and cleanup man in the Bevo Building at Anheuser-Busch, Inc.; but exclud- ing laboratory testers and technicians; employees in the draft beer washing and packaging operations in the Bevo Build- ing and Anheuser-Busch, Inc., and in Government cellars; brewing department employees; craft maintenance employ- ees; employees in areas other than bottling departments and bottling department areas; professional and clerical employ- ees; watchmen; guards; and supervisors as defined in the Act. WE WILL NOT in any manner interfere with the efforts of the above-named Union to bargain with us or refuse to bargain col- lectively with said Union as exclusive representative of the em- ployees in the bargaining unit set forth above. AN IIEUsnr.-BUSCrr, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed 1 by International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, and its Local 187, herein called the Union, or Local 187, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued a complaint dated May 27, 1954, against Anheuser-Busch, Inc., a corporation herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act (61 Stat. 136), herein called the Act. Copies of the complaint and charge were duly served on the parties. With respect to the unfair labor practices the complaint alleges, in substance, that: (1) The Respondent discriminated against the members of Local 187 (the Union) within the meaning of Section 8 (a) (3) of the Act by refusing to pay them for a day not worked (November 27, 1953) although it had paid members of Local 6, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL (Local 6), for the time not worked on said November 27, 1953, for the purpose of discouraging membership in Local 187, Internati anal Union of 1 The charge was filed April 30, 1954. ANHEUSER-BUSCH, INC. 699 United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, and encouraging membership in Local 6; (2) the Respondent in violation of Sec- tion 8 (a) (5) of the Act assigned certain work to Local 6, which should rightfully have been assigned to Local 187; and further (3) by said conduct the Respondent has interfered with, restrained, and coerced its employees, and is interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act, more particularly Section 8 (a) (1), (3), and (5) thereof. The Respondent filed an answer wherein it denied that it has engaged in any of the unfair labor practices as alleged in the complaint. Pursuant to notice a hearing was held before Louis Plost, the duly designated Trial Examiner, on June 20-23 and July 7-8, 1954, at St. Louis, Missouri. All the parties were represented by counsel, herein referred to in the names of their principals, and participated in the hearing, were afforded full opportunity to examine and cross- examine witnesses, to introduce evidence bearing on the issues, to argue orally on the record, and to file briefs, proposed findings of facts, and conclusions of law with the Trial Examiner. At the opening of the hearing the Trial Examiner granted an unopposed motion by the General Counsel to amend the complaint in order to correct inadvertent errors. At the close of the General Counsel's case-in-chief the Respondent moved to dis- miss the complaint. The motion was denied At the close of the hearing ruling on a similar motion by the Respondent was reserved. The motion is now denied. The General Counsel moved to conform the pleadings to the proof with respect to minor matters such as spelling of names, dates, etc , and the Respondent made a similar motion with respect to the answer. Both motions were granted. The General Counsel presented oral argument. Briefs have been received from all the parties and considered by the Trial Ex- aminer.2 Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Anheuser-Busch, Inc., is a corporation with its principal office and place of business located at St Louis, Missouri, where it is engaged in the manu- facture of yeast and the production of beer. During the period of 12 months preceding the issuance of the complaint herein, the Respondent caused a substantial amount of metal cans, bottles, and other ma- terials having a value in excess of $1,000,000 to be purchased, delivered, and trans- ported into the State of Missouri from States other than the State of Missouri, and during said period it caused substantial quantities of finished products having a value in excess of $1,000,000 to be sold, shipped, and transported in interstate commerce from its said place of business in the State of Missouri to and through States in the United States other than the State of Missouri.3 If. THE ORGANIZATIONS INVOLVED International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, and its Local 187 (Local 187) and Local 6, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, (Local 6) are labor organizations within the meaning of Section 2 (5) of the Act, and admit employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES Background After a hearing on duly filed 9 (c) petitions 4 the Board on March 27, 1953, issued its Direction of Election. On June 24, 1953, the Board certified International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, and its Local 187 as the exclusive bargaining representative for certain of the 3 The date to file briefs was extended to August 30, by the Chief Trial Examiner, on motion made after the hearing 3 The Board has taken tuiisdiction of the Respondent, see 103 NLRB 1205 4 The petitions were docketed as 14-RC-1955, 1988, 2034, 2036, and were consolidated for hearing. The Board's Older was on the consolidated hearing 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's employees, and also certified Local 6 as representative of certain other of the Respondent's employees. 5 Nicholas Ludwig, business agent of Local 187, testified without contradiction that prior to the filing of the above-mentioned petitions Local 6 had disaffiliated from International Union of United Brewery , Flour, Cereal , Soft Drink and Distillery Workers of America, CIO, and affiliated with International Brotherhood of Team- sters, Chauffeurs , Warehousemen and Helpers of America, AFL; that as a result of the Board 's certification some 500 members of Local 6 fell into the unit repre- sented by Local 187, that following certification , the Respondent and Local 187 entered into an agreement on October 28, 1953, covering the unit certified by the Board for Local 187. This contract required . among other things, that those em- ployees formerly represented by Local 6 of the Teamsters join Local 187 within 30 days after it was signed ; that some of these employees resented being compelled to join Local 187 , and did so at the very last moment ; that some of these individuals still attended meetings of Local 6, and reported Local 187 business matters to Local 6, their union membership not being synonymous with their union loyalty. Any appraisal of the facts disclosed by the evidence must be made against this background. 1. The appropriate unit and the majority of Local 187 As herein found the Board on June 24 , 1953, certified Local 187 as the sole col- lective-bargaining agent for an appropriate unit among the Respondent 's employees. The unit certified was described as follows All hourly-rated production and maintenance employees engaged in production, shipping , storage, receiving , and noncraft maintenance operations in bottling departments and bottling areas, including . . . employees in the basement and on the first and second floors of . the Bevo building at Anheuser-Busch, Inc.; but excluding . . . employees in the draught beer washing and packaging oper- ations in the Bevo building at Anheuser-Busch, Inc., and in government cellars; brewing department employees , . . . employees in areas other than bottling de- partment areas; . . . " [Emphasis supplied.) Thereafter on July 10, 1953 , the Respondent filed a motion to clarify the unit to determine specifically whether a group of five employees who regularly work in the basement of the Bevo building at Anheuser , but are assigned from time to time to similar work on the first floor of the Bevo building were included in or excluded from the unit. The Board decided that these employees were included within the unit. Upon the above findings and upon the entire record in the case the Trial Examiner finds that on June 24, 1953, and at all times material thereafter the unit for the pur- poses of collective bargaining as hereinabove described was, and is , the appropriate unit for collective bargaining material to the issues in the instant proceeding The Trial Examiner further finds that since June 24, 1953, Local 187 has been , and now is, the exclusive representative of the employees of the Respondent within the above- described unit for the purposes of collective bargaining within the meaning of the Act. 2. The alleged discrimination in regard to hire and tenure of employment within the meaning of Section 8 (a) (3) of the Act The record discloses the following facts which are not materially in dispute. Thanksgiving Day is customarily observed as a holiday in the Respondent 's plant. Thanksgiving Day 1953 fell on November 26. Because of business conditions affect- ing the Respondent's beer packaging and shipping department , whose employees are represented by Local 187 , the Respondent decided to shut down the entire de- partment not only for Thanksgiving Day but for the following day (Friday ) and re- open on Monday; Saturday and Sunday not being regular working days. This shut- down would mean the loss of 1 working day to the employees. On November 24, Tuesday, the Respondent's vice president in charge of industrial relations, called the representatives of Local 187 to a meeting at his office and informed them of the layoff decided upon by the Respondent . The representatives of Local 187 first asked if the entire plant would be closed calling attention to the "intense feeling between the people who belonged to the two organizations ," Richard Upshaw, the Respondent's president, told them that the entire plant would be closed and that "no one would be paid who did not work." The representatives of Local 187 then 6 Owen Rush , the Respondent's director of industrial relations , testified that Local 187 at peak employment represents about 3,000 employees of the Respondent and Local 6 about 1,000. ANHEUSER-BUSCH, INC. 701 asked that no notices be posted until 8 p. in. in order to give them time to talk to their plant stewards before any company notice was given. The Respondent agreed to, this and notices of the shutdown were not posted throughout the beer packaging and distributing department until 8 p. in. The meeting above referred to opened shortly after 3 p. in. The representatives of Local 187 did not leave until about 4:35 p in Frank H. Schwaiger, vice president in charge of brewing in the Respondent's plant, testified that he did not participate in the decision to shut down the beer packaging and distributing department. The 2 departments, 1 of which produces the product which the other prepares for shipment, operate under different management and supervision. Schwaiger testified that when he learned of the reason for the shutdown of beer packaging he independently decided to close the brewing department over the week- end, from Thanksgiving to Monday, and so informed the personnel department. Notices of the shutdown were posted through the brewing department at 3.45 p. in. on November 24. Brewing department employees are represented by Local 6. Some of these em- ployees work in the same building as do members of Local 187, although they do not work together. It is apparent that Local 6 members had notice of the shutdown, from the brewing department notices, before the representatives of Local 187 could contact their stewards. Schwaiger did not consult with the representatives of Local 6. The contracts be- tween the Unions and the Respondent does not require such notice but any unusual lay- off is customarily first discussed with union representatives. At about 4 p in., November 24, the representative of Local 6 telephoned President Upshaw and told him that he had been apprised of the impending layoff by members of Local 6. The entire plant was closed Thanksgiving and the day following. No members of Local 187 worked during this period, some few members of Local 6 did work and were paid regular wages for the time. Nicholas Ludwig, business representative of Local 187, testified that during the week following the shutdown he inquired of the Respondent's personnel department as to whether or not any employee would be paid for the idle time and was told that no such payment would be made; that he made the same inquiry again during the follow- ing week, and was given the same answer; and that "right before Christmas" he dis- cussed the matter at length with President Upshaw telling Upshaw that rumors were circulating to the effect that Local 6 members would be paid for the lost time. Owen Rush, the Respondent's director of industrial relations, testified that the Re- spondent unilaterally decided "about January 15th," 1954, to pay the members of Local 6, for the time not worked Friday, November 27, 1953, and that such pay- ment was made to the members of Local 6 on January 24, 1954. Local 187 members were not paid 6 The reason given by the Respondent for this disparate treatment of the employees was that no advance notice was given to the secretary of Local 6, that the plant would not operate on the Friday following Thanksgiving and that he learned of this, not through the Respondent, but from his members who had received notice because of the posting in the brewing department The complaint alleges that by making the payments to members of Local 6, and refusing such payments to the members of Local 187 as above set forth the Respondent: . . . discriminated against and is discriminating against employees who are members of Local 187, International Union of United Brewery, Flour, Soft Drink and Distillery Workers of America, CIO in regard to their hire and tenure of employment in order to discourage membership in said Union and in order to discourage concerted activities on the part of its employees for the purpose of collective bargaining and other mutual aid and protection and did engage in and is now engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. The refusal to bargain Prior to May 10, 1954, the loading of packaged beer as well as the unloading of returned empty containers into and out of trucks for both city delivery and long-dis- tance hauling at the Respondent's St. Louis plant was carried on from a building called the Bevo building, referred to in the Board's certification The loading of trucks was a three-shift operation. The facilities made for con- siderable congestion. 0 The sum paid to members of Local 6 was $18,299.76. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beer, packaged for delivery, was kept in temporary storage in the Bevo building and taken from such temporary storage to be loaded. All of this work (except that truckdrivers unloaded empties on arrival) was performed by members of Local 187. This was in accord with the unit found to be appropriate by the Board as herein mentioned, and in accord with the contract between the Respondent and Local 187. Owen Rush, the Respondent's director of industrial relations, testified that "the latter part of February, 1954," the Respondent decided to remove some of the loading of city delivery trucks from the Bevo building to another building identified in the record as old wash house number 4 (wash house), or as building 84. Charles Milentz, assistant manager of beer packaging and shipping, testified that at a meeting of Respondent's officials, in which he participated "ni mid-February, probably around the 17th it was decided that Local 6 personnel would be assigned in Building 84" (wash house) to perform the loading of city trucks when the work was moved there. There is no doubt that the Respondent's decision was entirely unilateral, made with- out previous notice to Local 187. Business Agent Ludwig testified that on March 25 during a conversation with President Upshaw he asked why wash house was being remodeled. Upshaw stated he did not know and sent for Milentz who explained that because of the congestion at the Bevo building, the Respondent would move city delivery loading and unloading to wash house. He explained that beer would first be loaded into railroad cars in the Bevo building, these cars would be shunted to wash house, and would there be un- loaded into temporary storage, and from storage into city delivery trucks. Ludwig, who had not been informed that in "mid-February" the Respondent had determined to assign this newly developed phase of the work to Local 6, thereupon claimed the work for Local 187, basing his claim (which he made to Upshaw) on the Board's certification of Local 187.7 During the following day Upshaw informed Ludwig that the Respondent would file with the Board a motion for clarification of the unit represented by Local 187, however the motion was not filed and on March 30 the Respondent suggested that Local 187 file for clarification. On May 10, the operation at wash house was inaugurated. Local 6 members are performing the work. Owen Rush testified that on April 13, 1954: I told Mr. Ludwig that if a conveyor were attached to Building 84, which I de- scribed as Second and Arsenal Street, that I would feel probably differently about the matter, that, clarification may be in order. Rush further testified that the determining factor in the Respondent's deci- sion to assign the work at wash house to Local 6 was the location of the building Wash house is located about 400 feet from the Bevo building, but opposite it. Railroad tracks enter the Bevo building basement, there railroad cars are loaded by members of Local 187, the cars are shunted to wash house, where they are unloaded, and the beer then loaded into city trucks, all work at wash house being done by mem- bers of Local 6 The railroad cars are leased by the Respondent and never leave the Respondent's premises The wash house operation is under the supervision of the same department as that of the loading at Bevo building. It is admitted that at Thanksgiving and Christmas of 1953, in anticipation of emer- gency loading, some railroad cars were loaded by members of Local 187, the cars then moved into the yard and unloaded into trucks by members of Local 6, during the time the plant was closed. The Respondent advances this loading by Local 6, as an established pattern, a fait accompli, but admits that Local 187 was not consulted or informed that this work was done The Respondent admits: . .. that on or about March 25, 1954, the Union made demand upon it for recognition as collective bargaining representative of a group of employees to be engaged in shipping and receiving operations for city delivery of canned and bottled beer to be carried on at a building known as "Old Wash House No 4," the Union then contending that such operation would be but a "transfer and/or extension" of the city delivery operations then carried on at Respondent's Bevo Building and within the unit for which the Union had been certified by the Board; that it admits that on or about March 30, 1954, it advised the Union that it would 7 Unit a-in 103 NLRB 1205. ANHEUSER-BUSCH, INC. 703 not bargain with it as the representative of the employees to be assigned to "Old Wash House No. 4," and, in addition, that on or about April 1, 1954, it advised the Union that it would bargain with the Teamsters concerning said employees; that said employees to be engaged at "Old Wash House No. 4" are included within the bargaining unit found by the Board to be appropriate in Cases Nos. 14-RC-1952 et al., and described as "All employees engaged in receiving, shipping and storing raw materials, production supplies, advertising matter and finished products outside of bottling departments and bottling department areas . . . ," that on or about June 24, 1953, the Board certified the Teamsters as representative of the employees in said unit, and that it is required by law to bargain with the Teamsters concerning said employees to be engaged in said shipping and receiving operations for city delivery of canned and bottled beer to be carried on at "Old Wash House No 4" and to refuse to bargain with the Union concerning said employees; and that on or about January 24, 1954, it paid some of the employees who are represented by the Teamsters wages for hours not worked on November 27, 1953, and that it has refused to pay some of its employees who are represented by the Union wages for hours not worked on November 27, 1953 Conclusions as to the Refusal to Bargain As herein mentioned, under the contract entered into between the Respondent and Local 187 for the unit certified by the Board, Local 187 represented "all employees in the basement and on the first and second floors of the Bevo building " Under the contract Local 187 loaded the trucks, both long-distance and city delivery. In arriving at its conclusion on unit in the "R" case, clearly the Board's standards went beyond mere physical location and went on to point out what standards should be used in arriving at a unit finding. The Boaid's language was, "The basic difficulty as we see it with the position of Local 6 of the Teamsters, AFL, and of the Em- ployer, is that, although they profess a desire to do away with the arbitrary and artificial bargaining practices heretofore adhered to, they ignore such traditions and Board sanctioned factors as integrated plant operations and the close community of work interests between employee groups in favor of such artificial and relatively unimportant factors as the past bargaining history, the physical locale in which employee groups worked (irrespective of similarities in work content) and in the case of the Employer, the fact that at the Bevo plant one supervisor is in charge of employees engaged in production bottling operations while another supervisor is in charge of employees engaged in bottling and shipping operations." [Emphasis supplied.] The language used by the Board in the unit description must be construed in the light of the standards the Board used to set forth that unit. The unit states merely the geographical locations which the record showed were the boundaries as of the time the unit finding was made but it does not say that any functional extension of these operations must be limited to this geographical locale. Moreover in the same "R" case decision, which set up units for various employers, the Board in finding a unit appropriate in the case of a different employer said with respect to a building physically separated: Reviewing the evidence with respect to Falstaff, it is clear to us that the loading platform, Volt Building, and case storage areas are merely extensions of the shipping and temporary storage operations essential to the proper functioning of the bottling department. This finding must have been present in the thought of Owen Rush at the time he stated to Ludwig that if the Bevo building and wash house were connected by a conveyor system (as was actually the case with the Falstaff Volt Building), there might be cause for clarification of the unit by the Board. Considering the operations at the Bevo building and assuming arguendo that wash house in place of being opposite Bevo building stood beside it and all that was necessary to integrate the two operations was the cutting of a door through a common wall, would the Respondent then argue that the work in wash house did not belong to Local 187? Or to carry this one step further, suppose the two buildings to be 10 feet apart so that a platform must be built to connect them in order to permit hand trucks to be trundled between them, or to follow Rush's thought, were the two buildings, as they really stand, connected by a conveyor, as in the case of the Volt building, would two operations have been created? 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner can find no merit in the Respondent's contention that the controlling factor in determining the extent of the unit is the physical location of the buildings. It seems rather to the Trial Examiner, considering the facts that the storage is merely temporary, the supervision of the work is the same, the actual end point of the job is not changed, that the controlling factor herein lies in the operation itself and that the operation at wash house is a mere extension of the "shipping and temporary storage operations essential to the proper functioning of the bottling department of Anheuser-Busch, Inc." The fact that the beer and cases are transported at Falstaff No. 1 by the use of a connecting conveyor, while at Anheuser-Busch this is accomplished by the use of a railroad car, is not a difference- it is merely a substitution of one means rather than the other; to borrow from the patent law, the substitution of a weight for a spring. The obligation of an employer to bargain with the exclusive representative of his employees also carries with it the obligation not to bargain with any other repre- sentative with respect to the legally represented employees.8 Together with the fact that Local 187 received no prior notice of the change in the locale of the truckloading operation, there is nothing in the record to show that Local 6 claimed the wash house work as a right under its certification and contract before the Respondent's decision to assign it to Local 6. In the opinion of the Trial Examiner, the Board's certification of the unit appro- priately represented by Local 187 must be interpreted to include the loading opera- tion at wash house as a mere functional extension of the work being performed by members of Local 187 at the Bevo building and therefore as belonging to Local 187. The Trial Examiner so finds. The Trial Examiner further finds that the Respondent disregarded the Board's certification; that there was no basis for its decision to assign this work to the warehouse unit represented by Local 6; that the Respondent failed to bargain in good faith with the Union representing and certified for its employees customarily doing this type of work in the Bevo building. If the Respondent had any reasonable basis for questioning the right of Local 187 to this work by reason of its certification, it could have filed a motion for clarification with the Board to have the matter determined without unilateral action on its part, as originally suggested by President Upshaw. In making the above findings the Trial Examiner is fully mindful of the Board's recent Decision and Order in McDonnell Aircraft Corporation 9 wherein it was held in effect that an employer did not violate Section 8 (a) (5) of Act by unilaterally assigning clerical work performed by certain toolroom attendants in bargaining unit to factory clericals outside bargaining unit. Employer's action did not constitute subversion or disparagement of collective-bargaining process but merely gave rise to a dispute which should be and was resolved through bargaining process. Em- ployer satisfied its obligation to bargain under Act by treating union's complaint about employer's action as a grievance and by evincing willingness to permit the matter to go through all steps of grievance procedure ending in arbitration. How- ,ever, this case is clearly distinguishable from the instant matter. In McDonnell the Union elected to resort to the contracted grievance procedure. The employer having unilaterally taken work from the appropriate unit the Union filed a written grievance, under the terms of its contract; proceeded through three steps of the procedure, refused to process through the fourth step and filed a charge with the Board. The Board said: In these circumstances, we do not view the action of the Respondent in reallocating the clerical work of some of the tool crib attendants in department 144 by assigning it to factory clericals as a subversion or disparagement of the collective-bargaining process. Rather, we regard it as action which gave rise to a dispute over the interpretation and administration of the agreement which should be and was resolved through the collective-bargaining process. Indeed, it is apparent that the Union, which instituted this proceeding, originally recog- nized this dispute to be one of contract interpretation when it appropriately invoked the contractual grievance procedure. In the instant matter Local 187 was given no opportunity to bargain, nor can it be said that the Respondent's suggestion that Local 187 file a petition for clarifica- tion with the Board opened a way to "invoke the contractual grievance procedure." Again quoting from the McDonnell case: Under Section 8 (a) (5) of the Act, the Board is not concerned with the inherent merits of any labor dispute; its sole function is to establish the basic ADtedo Photo Supply Corp v 11 L. R B . 31 U S 678, 64 S Ct 830. McDonnell Aircraft Corporation, 109 NLRB 930 ANHEUSER-BUSCH, INC. 705 ground rules for collective bargaining and to see that all disputes affecting wages, hours, and conditions of employment between employers and the statutory rep- resentative of their employees are fully subjected to the collective-bargaining process. The McDonnell case, in the opinion of the Trial Examiner, is not intended to be so interpreted as to give an employer, party to a contract bottomed on a Board certification, carte blanche to disregard the established unit at will and so repeal Section 8 (a) (5) of the Act merely because the contract contains a grievance proce- dure, especially so if the employer's action shows that nothing less than a Board order will change his unilateral determination to disregard the "basic ground rules." The Trial Examiner therefore concludes and finds that on March 25, 1953, and at all times since, the Respondent has refused to bargain collectively with Local 187 as the exclusive representative of its employees in the hereinabove described appro- priate unit, and that by such refusal the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Conclusion as to the Discrimination in Regard to Hire and Tenure of Employment The reason advanced by the Respondent for the payment to Local 6 and the refusal of a similar payment to Local 187, namely, that the same notice as was given to the representative of Local 187 was not given to the representative of Local 6, seems very thin to the Trial Examiner when he recalls that Local 6 members received actual notice (by posting), of the impending shutdown some 4 hours before notices were posted to inform members of Local 187 and although the representatives of Local 187 were called to a meeting with the Respondent while the representative of Local 6 was not, it is clear that the Local 6 representative had noticed and "raised holy hell," within 20 minutes after the representatives of Local 187 left the meeting. Testimony crept into the record to the effect that the Respondent paid $18,299.76 to the members of Local 6 for the idle November 27. This seems a sizable amount to assuage the pride of a union in its business agent, especially since the contract does not so require. However, it was the Respondent's money and presumably it may spend it as it sees fit. Neither can Local 198 be heard to complain of disparity of treatment through the payment unless it becomes clear that the Respondent's intent was discriminatory. The Trial Examiner is not persuaded by all the facts in this case, or by the entire record considered as a whole, that the Respondent had a discriminatory motive in making the above-mentioned payment to the members of Local 6 and withholding it from Local 187. In a case decided February 1, 1954,10 the Supreme Court says: The language of Sec. 8 (a) (3) is not ambiguous. The unfair labor practice is for an employer to encourage or discourage membership by means of dis- crimination. Thus this section does not outlaw all encouragement or dis- couragement of membership in labor organizations, only such as is accomplished by discrimination is prohibited. Nor does this section outlaw discrimination in employment as such, only such discrimination as encourages or discourages membership in a labor organization is proscribed. The relevance of the motivation of the employer in such discrimination has been consistently recognized under both Sec. 8 (2) (3) and its predecessor. In the first case to reach the Court under the National Labor Relations Act, National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S 1, 57 S. Ct. 615, 628, 81 L. Ed. 893, in which we upheld the constitutionality of Sec. 8 (3), we said with respect to limitations placed upon employers' rights to dis- charge by that section that "the [employer's] true purpose is the subject of investigation with full opportunity to show the facts." In another case the same day we found that "the act permits a discharge for any reason other than union activity or agitation for collective bargaining with employees." Courts of Appeals have uniformly applied this criteria, and writers in the field of labor law emphasize the importance of the employer's motivation to a finding of this section Moreover, the National Labor Relations Board in its annual reports regularly reiterates this requirement in its discussion of Sec. 8 (a) (3) For example, a recent report states that "upon scrutiny of all the facts in a particular case, the Board must determine whether or not the employer's treatment of 10 Radio Officers' Union, at at., v N. L R. B , et at., 196 F. 2d 960, 196 F 2d 1, and 197 F. 2d 719 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employee was motivated by a desire to encourage or discourage union membership or other activities protected by the statute." That Congress intended the employer's purpose in discriminating to be con- trolling is clear.. . . In the instant matter, in November 1953, the members of Local 187 and Local 6 did not do the same work and apparently did not work together and unless the inference is drawn that the payment to Local 6 was the first step in a course of conduct which culminated in depriving Local 187 of work to which it was entitled in order to give it to Local 6, for the purpose of disparaging Local 187 and thereby encouraging membership in Local 6, the Trial Examiner sees no basis for a finding of discrimination within the meaning of 8 (a) (3). Inasmuch as the first incident occurred November 27, 1953, and the second May 10, 1954, the Trial Examiner cannot be persuaded that the two incidents are con- nected. Standing alone it seems to the Trial Examiner that the Respondent's action was clearly related to considerations within the area in which it had freedom of action, and, furthermore, as the Union was fully advised of the Respondent's action in advance thereof, each employee represented by the Union was charged with that knowledge. Such action, therefore, did not have the "inherent" and "foreseeable" consequence of encouraging membership in Local 6 and/or discouraging member- ship in Local 187. Accordingly, the prerequisites for a finding of unlawful dis- crimination enunciated by the Supreme Court in the Radio Officers' Union, etc , cases have not here been established. Therefore, the complaint, insofar as it alleges that Respondent has discriminated against its employees in violation of Section 8 (a) (3) of the Act, should be dismissed. The Trial Examiner will so recommend. The Trial Examiner therefore finds that (1) the loading and unloading operation as transferred to wash house from Bevo building is a functional extension of the work performed by the unit as certified by the Board to be represented by Interna- tional Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, and its Local 187, (2) that by assigning the loading operation at wash house to Local 6 the Respondent has engaged in conduct violative of the Act; (3) that the Respondent has not violated the provisions of the Act by paying Local 6 members for November 27, a day the Respondent's plant was closed. 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 among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has engaged in unfair labor practices by refusing to bargain collectively with the designated representative of its employees. It will therefore be recommended that it cease and desist therefrom and from like and related conduct. It will further be recommended that the Respondent bargain collectively, upon request, with the Union as the exclusive representative of its employees in the appropriate unit hereinabove found. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent, Anheuser-Busch, Inc., St Louis, Missouri, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, and its Local 187, is a labor organization within the meaning of Section 2 (5) of the Act and admits employees of the Respondent to membership. 3. "All hourly-rated production and maintenance employees engaged in produc- tion, shipping, storage, receiving, and noncraft maintenance operations, in bottling departments and bottling department areas, including ; employees in the base- ment and on the first and second floors of . the Bevo building at Anheuser- Busch, Inc.; but excluding . . employees in the draught beer washing and pack- aging operations in the Bevo building at Anheuser-Busch, Inc.; and in Government cellars; brewing department employees, and . . . employees in areas other than BROOKSVILLE CITRUS GROWERS ASSOCIATION 707 department areas . constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act." 4. Since March 25, 1954, and at all times thereafter, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, and its Local 187, have been the exclusive representative of employees in the unit described above for the purposes of collective bargaining with respect to rates of pay, hours of work, and other conditions of employment. 5. By refusing on and after March 25, 1954, to bargain collectively with the aforesaid Union as the exclusive representative of the employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a) (5) of the Act. 6 By the aforesaid unfair labor practice the Respondent is interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act The Respondent did not engage in unfair labor practices within the meaning of Section 8 (a) (3) of the Act [Recommendations omitted from publication.] Brooksville Citrus Growers Association and American Federa- tion of Labor, Petitioner. Case No. 10-RC-2979. May 10, 1955 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 Frank E. Hamilton, Jr.. hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board funds : 1. The Employer is engaged in commerce within the meaning of the Act.2 2. The labor organization involved claims to represent certain enn- ployees of the Employer.3 3. The Employer contends that the individuals involved in this proceeding - the packinghouse workers - are agricultural laborers within the meaning of Section 2 (3) of the Act and therefore that the Act does not apply, to them. The Employer is a nonprofit cooperative association incorporated under the laws of the State of Florida. It is engaged in growing, harvesting, packing, and marketing fresh citrus fruit exclusively for 79 grower members who are located within a 15-mile radius of its 'The Employer's request for oral argument is hereby denied, as the record and the Employer's brief, in our opinion, adequately present the issues and the positions of the parties i The Eniploi er annually sells and slips to customeis outside the State of Florida pi od- uets valued at moie than $200,000. 3The Employer contends that the local which the Petitioner intends to establish to represent the employees involved is not a labor organization within the ineanmg of the Act because it gill be composed of "agricultural laborers " As heieinattor found, the packinghouse workers are not "agricultural laborers " Accordingly, we find this contention to be without merit 112 NLRB No. 93. 369028-56-vol. 112-46