Cottage Bakers

COTTAGE BAKERS 841 ingly, we find that the Board is without authority to determine the dispute, and we shall quash the notice of hearing.9 [The Board quashed the notice of hearing.] MEMBER BEAN took no part in the consideration of the above De- cision and Order Quashing Notice of Hearing. Industry of the United States and Canada, Local 428 (Philadelphia Association), 108 NLRB 186, 200; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL, Local Union No. 177 (Carrier Corporation), 111 NLRB 940, 945-946; United Association of Journeymen and Apprentices of the Plumbing and Pipe fitting Industry of the United States and Canada, Local 449, AFL (Refrigeration Equipment Co.), 112 NLRB 608, 616-617. 91n conformity with the Board's decision in Wood, Wire and Metal Lathers Inter- national Union, etc., AFL-CIO (Acoustical Contractors Association of Cleveland), 119 NLRB 1345, the charge herein will not be dismissed , but will remain on file in the Regional Office pending final adjustment of the dispute. Harlan B. Browning and Roy J. Rasco, d/b/a Cottage Bakers and Chauffeurs, Teamsters and Helpers Local Union No. 492, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case No. 33-CA-388. May 8,1958 DECISION AND ORDER On August 2, 1957, Trial Examiner Wallace E. Royster 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) (1), (3), and (5) of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a brief in support. 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 Intermediate Report, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. 1. Concerning commerce and the Board's jurisdictional standards the Trial Examiner concluded that the Board would assert jurisdic- tion in this case involving the route salesmen of a single Employer having inflow and outflow less than the Board's existing requirement. He reached this conclusion in view of the fact that the Employer has associated itself with other Employers in bargaining for its production and maintenance employees, and that the Board would assert juris- 120 NLRB No. 99. :842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diction if that group of employees were involved.' We agree with the Trial Examiner's conclusion that the assertion of jurisdiction by the Board is indicated in these circumstances.' We also agree with his reasoning that the union organization of the Employer' s route salesmen here in question may be importantly affected by the fact that the bargaining relationship between the Employer and its production and maintenance employees is within the jurisdictional reach of the Board. We have reached a similar result in situations involving an Employer with multiple enterprises, some of which do not meet our jurisdictional standards. In The T. H. Rogers Lumber Co. case,' we decided that we would consider the totality of an Employer' s opera- tions even though the unit sought was limited in scope to an indi- vidual enterprise with commerce figures less than our minimum requirement. There we reasoned that the assertion of jurisdiction on less than a totality of enterprises basis might disrupt existing units as well as complicate the application of the substantive provisions of the Act in the event of unfair labor practices. In this case we are faced with a similar problem arising in connection with unfair labor practices. Were we to refuse to assert jurisdiction here despite the fact that the Employer has engaged in group bargaining for its pro- duction and maintenance employees, we would deny to the route salesmen rights which the Act guarantees to production and main- tenance employees at the same establishment. As the Act was intended to define the scope of collective bargaining for all employees of an Employer engaged in commerce, we shall not thwart that purpose by refusing to assert jurisdiction as to some of those em- ployees. Thus, when there is an established pattern of multiemployer bargaining on the basis of which we would assert jurisdiction if the multiemployer unit were involved, we shall also assert jurisdiction over a unit limited to a single employer who is a party to the group bargaining regardless of the individual commerce figures applicable to that employer 4 2. We agree that the Respondent refused to bargain with the Union on and after February 6, 1957, in violation of Section 8 (a) (5) of the Act inasmuch as it had, at that time, no good-faith doubt that the Union represented a majority of its route salesmen. In this connec- tion we note from the record that employee Harrington, who spear- i We note that Respondent at the hearing admitted the allegation, of the complaint that each of the other four employers who engage in group bargaining for their production and maintenance employees shipped from their plants in Albuquerque bakery products valued in excess of $100,000 to points outside the State of New Mexico. We also note that evidence concerning an alleged intent to abandon joint bargaining for the production and maintenance group was limited to 1 of the other 4 employers 2 Member Jenkins would assert jurisdiction over the business of the Employer regardless of its association in a multiemployer bargaining group for the reasons stated in his dissent in Chicago Metropolitan Mutual Assurance Company, 119 NLRB 352. 3117 NLRB 1732. * Cf. Kenosha Liquor Company, 104 NLRB 189, where no established pattern of multi- einployei bargaining was involved. COTTAGE BAKERS 843 headed the organizational campaign, was questioned concerning his union activities by sales manager Howard on February 4; that How- ard asked Harrington on that occasion how many employees had signed authorization cards and was advised that it was "well over fifty percent," and that Howard, after getting this information from Harrington; reported it the negt day to Browning, one of the partners. Just 1 day later, on February 6, the union representatives requested Browning and his partner to recognize the Union, stating that the Union represented a majority of the employees and exhibiting the stack of authorization cards. Thus, it is clear on the record that, at the time the request for recognition was made on February 6, Re- spondent had reason to believe that the Union actually represented a majority. Whether Browning's response to the request for recogni- tion was simply "no," as reported in the Intermediate Report, or "no, not at this time," as Respondent contends in its brief, is immaterial. At that point Browning ended the conversation without asking to see the cards, or questioning whether the Union did represent a majority, or requesting the Union to prove its majority in an election. Im- mediately thereafter Respondent embarked upon a program to dis- sipate the Union's majority, which included the discriminatory dis- charge on February 7 of Harrington, who had been warned that he would be discharged if he persisted in union activity,5 by the inter- rogation during the next few weeks of numerous employees concern- ing their union sympathies, coupled with threats to close the plant, and finally by promises of benefit to the route salesmen in the form of offers of changed compensation. In these circumstances we conclude that Respondent's refusal to recognize the Union on February 6 and thereafter was not motivated by a good-faith doubt of the Union's majority.' The Respondent also contends that the Union's request for recogni- tion did not amount to a request to bargain. As the courts have held, the request to bargain need not be worded precisely so long as it is clear by implication that the request is for bargaining.' Nothing in this record indicates that the Respondent was not completely aware of the fact that the Union sought to enter into bargaining negotiations concerning the route salesmen. We find that the request to recognize in the circumstances present here was a request to bargain. 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 6 Harrington's testimony that twice during 1956 he had been warned by the then sales manager, Houser , and that Route Supervisor Billingsley so warned him in January 1956, was not denied. 6 Cf A. L. Gilbert Company, 110 NLRB 2067 , 2069-70. See Joy Silk Mills, Inc. v . N. L. R. B., 185 F. 2d 732, 741 (C A, D C) cert. denied 341 U. S. 914. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board orders that Harlan B. Browning and Roy J. Rasco, d/b/a Cottage Bakers, Albuquerque , New Mexico, their agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in the Union or in any other labor organization of their employees by discriminating in regard to hire and tenure of employment or any term or condition of employment. (b) Refusing to bargain with the Union as the majority representa- tive of the employees in the appropriate unit. (c) By means of discharge or unlawful refusals to bargain, or threats to close the plant, or in any other manner, interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the Union 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, or to refrain from any or all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in the manner and to the extent authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Phillip Harrington immediate and full reinstatement to his former or substantially equivalent position as a route salesman and make him whole for any loss of earnings in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Notify all striking employees that the discharge of the 23 named employees made on February 26, 1957, for failure to perform services is withdrawn and make each whole for any loss of earnings attributable to the discharges rather than to the strike. (c) Make Hubert H. Nicholson whole for his loss of earnings from April 5, 1957, the date of his application for work, to the date he is reinstated to his former or substantially equivalent position. (d) Upon request, bargain with the Union as the exclusive repre- sentative of the employees in the appropriate unit. (e) Upon request, return each of the striking employees to his former or substantially equivalent position , discharging if necessary any replacement. (f) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social-secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. COTTAGE BAKERS 845 (g) Post at their office in Albuquerque, New Mexico, copies of the notice attached hereto marked "Appendix." 8 Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondents or one of them be posted immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that such notices are not altered, defaced, or covered by other material. (h) Notify the Regional Director for the Sixteenth Region, in writing, within ten (10) days from the date of this Order, what steps have been taken in compliance. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 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 with Chauffeurs, Teamsters and Helpers Local Union No. 492, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of em- ployment, and other conditions of employment, and if an under- standing is reached, embody such an understanding in a signed agreement. The bargaining unit is : all retail route salesmen, mechanics, and mechanics' helpers employed at our plant, ex- cluding clerical, supervisors, and guards, as defined in the Act. WE HAVE notified the following employees that their purported discharges on February 26, 1957, is of no effect and will make each of them whole for any loss of pay attributable to the discharge : Sam D. Grossman Joseph Dow Theodore A. Rondeau, Jr. Herve Rondeau Gerald Bowers Gilbert E. Martinez Gerald L. Sanchez Elmer Whitehead Tony DeLora Virgil P. Ward Hubert H. Nicholson Norman C. Rondeau Al Vasquez Julian A. Garcia 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James D. Hall Fred J. Curran William Villanueva Jay Sanchez Walter Castleman Bruce Litton Gilbert Barreras Irwin Frailey Jerry W. Hamilton WE WILL offer Phillip Harrington immediate and full rein- statement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of our discrimination against him. WE WILL, upon unconditional request, reinstate each of the strikers who engaged in the strike beginning February 26, 1957, to his former or substantially equivalent position discharging if necessary any replacements. WE WILL reinstate Hubert H. Nicholson to his former or sub- stantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay attributable to our failure promptly to reinstate him when he applied on April 5, 1957. WE WILL NOT by unlawfully refusing to bargain with Chauf- feurs, Teamsters and Helpers Local Union No. 492, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by means of discriminatory discharges, by threats to close the plant, by failure promptly to reinstate any striker upon unconditional request, or in any other manner inter- fere with, restrain, or coerce our employees in the exercise of their rights of self-organization, to form, join, or assist the above- named labor organization or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purposes of collective bargaining, or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as au- thorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union or any other labor organization, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment, or any term or condition of employment, against any COTTAGE BAKERS 847 employee because of membership in, or activity on behalf of, any labor organization. HARLAN B. BROWNING AND ROY J. RASCO, D/B/A COTTAGE BAKERS, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Chauffeurs, Teamsters and Helpers Local Union No. 492, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, herein the Union, the General Counsel of the National Labor Relations Board caused a complaint to be issued against Harlan B. Browning and Roy J. Rasco, d/b/a Cottage Bakers, Albuquerque, New Mexico, herein called the Respondents, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce 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 the Act. In respect to unfair labor practices the complaint alleges, in substance , that the Respondents on or about February 6, 1957, unlawfully discharged an employee, Phillip Harrington, and on February 26, following, unlawfully discharged 23 addi- tional named employees; on or about February 6, 1957, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of all employees in an appropriate unit; and on numerous occasions from November 1956 through March 1957, by means of interrogations, threats, and promises of benefits, interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. Respondents' answer asserts that the purposes of the Act would not be effectuated by an assertion of jurisdiction over their operations, says that Harrington was dis- charged for insubordination and other lawful reasons, and denies the commission of unfair labor practices. Pursuant to notice a hearing was held on the complaint before the duly designated Trial Examiner in Albuquerque, New Mexico, from May 16 through 20, 1957. All parties were represented and were permitted to examine and cross -examine witnesses and to introduce evidence pertinent to the issues. Subsequent to the close of the hearing a motion was received from counsel for the General Counsel to correct the record in respect to certain testimony of Phillip Harrington. Counsel for the Re- spondents filed his opposition to the granting of this motion. For reasons which will appear in the body of this Report, the motion to correct is hereby granted. A brief has been received from counsel for the Respondents and from counsel for the Gen- eral Counsel. By a later motion the General Counsel asks that the record be reopened to receive evidence that the Respondents have made changes in wages, hours, and working conditions, unilaterally. Because the offered evidence seems to be cumulative, the motion is denied. Upon the basis of the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS; SHOULD JURISDICTION BE ASSERTED9 Harlan B. Browning and Roy J. Rasco are and have been at all times material herein doing business under the trade name and style of Cottage Bakers, with their principal office and place of business in the city of Albuquerque, New Mexico. They are engaged in the manufacture and retail distribution of bakery products. In the conduct of these business operations , during the 12-month period antedating the issuance of the complaint, the Respondents purchased raw materials, merchandise, 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supplies, and equipment having a value in excess of $300,000, of which more than $200,000 in value was shipped to the Respondents from points outside the State of New Mexico. During the same period Respondents sold products valued in excess of $750,000, all within the State of New Mexico. The Respondents, with four other bakeries in Albuquerque, have bargained jointly with a union representing production and maintenance employees of the five bakeries. The bargaining has resulted in a contract running between the bakeries and that union which is now in effect. One of the bakeries, Jill's Bakery, Inc., is a New Mex- ico corporation, with its principal place of business in Albuquerque where it is en- gaged in the manufacture of pastries which it distributes at wholesale. During the 12- month period antedating the issuance of the complaint, Jill's Bakery has brought in an annual revenue in excess of $1,000,000, of which more than $50,000 in value is derived from the sale of goods delivered outside the State of New Mexico. During the same period Jill's Bakery has purchased raw materials, merchandise, and supplies having a value in excess of $600,000, of which more than $500,000 in value was shipped to Jill's Bakery directly from points outside the State of New Mexico. The General Counsel argues that because of the association of Respondents with other bakeries in Albuquerque for the purpose of bargaining with the representative of their production and maintenance employees, the business of the firms comprising this group should be looked to by the Board in determining whether to assert jurisdic- tion over the Respondents in connection with the attempt by the Union to bargain for a group of Respondents' employees other than those covered by the existing contract. Counsel for the Respondents urges that the Board should not take this view of the matter and points out that the Respondents have never agreed with other employers to bargain in connection with route salesmen. The question presented is a puzzling one. In an able brief, counsel for the Respondents has cited a number of Board decisions which bear at least peripherally on the point but I find no sure answer among them. It is of course an anomaly, should it be so, that production and main- tenance employees of the Respondents, because of group bargaining, may assert rights deriving from the Act and that because there has been no such bargaining for route salesmen, the latter may not. It is clear enough that the Board has jurisdic- tion to entertain this complaint. The operations of the Respondents viewed alone, do affect commerce, and substantially. But it remains so that the shipments of the Respondents in commerce do not amount to that figure which the Board has prescribed. As will appear later in this Report, a strike of the route salesmen may induce sympathetic action by production and maintenance employees. One of the purposes of the picket line which appeared before Respondents' plant was to bring about such a result. Picketing by the Union could be helped or hindered by the fact that the conduct of the organization representing the production and maintenance employees is amenable to the Act. In the absence of a no-strike clause, the produc- tion and maintenance group could make common cause with the route salesmen and have the protection that the Act throws about those engaged in a lawful strike. If by formal agreement they had agreed not to strike, the Act permits the imposition of serious disabilities by their employer for violating such an agreement. All this is to say that any movement by. the route salesmen toward self-organization, any attempt on their part to engage in those activities described in Section 7 of the Act, may be importantly affected by the fact that the relation between their employer and the production and maintenance employees is within the jurisdictional reach of the Board. Because this is so and as there is no legal impediment to the assertion of jurisdiction by the Board in the premises, I conclude that the Board should and will accept jurisdiction to entertain this complaint. H. THE ORGANIZATION INVOLVED Chauffeurs, Teamsters and Helpers Local Union No. 492, International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , AFL-CIO, is a labor organization admitting to membership employees of the Respondents within the meaning of Section 2 (5) of the Act. I III. THE UNFAIR LABOR PRACTICES The Respondents, as has been said, operate a retail bakery operation in and near Albuquerque and employ about 31 salesmen. The salesmen report to work in the early morning hours and then take their loaded trucks to residential districts in and around Albuquerque where the bakery products are sold house to house. They are paid, after a training period, on a commission basis. Phillip Harrington was hired as a route salesman in March 1955. In August of that year he was promoted to route supervisor and remained in that status until he reverted to salesman in the spring of 1956. As a route supervisor, according COTTAGE BAKERS 849 to Harrington, he recommended to the sales manager in connection with hiring of other salesmen, trained new men in the performance of their work, operated routes when the regular man was absent or when it was necessary for any other reason, and sometimes discharged drivers. In July 1956, after Harrington had returned to his job as salesman he discussed the question of benefits flowing from union organiza- tion with another employee. Harrington testified that part of this conversation was overheard by Lee Houser, then the sales manager. Houser remarked that union agitation would result in Harrington's discharge. Still, according to Harrington, the subject came up again in Houser's presence in November 1956. Houser ex- plained that if the salesmen became members of a union Respondents' costs would rise as much as 2 cents a loaf of bread, and warned Harrington not to talk to the other men about a union on penalty of discharge. In early January 1957 Harrington spoke with a representative of the Union and obtained a number of membership affiliation cards from him. Among the first to be approached by Harrington in an attempt to gain signatures on these cards was Roy Billingsley, who recently had been promoted to route supervisor. Billingsley explained that he could not sign such a card and told Harrington that he probably would be fired for his activity. On February 4 Harrington spoke to Cecil Howard, who, upon the resignation of Lee Houser at the end of 1956, had become and then was sales manager. Harring- ton's version of this conversation follows. Howard said that 'he had heard there was a lot of "agitation" for the Union and asked Harrington if he had signed a union card. Harrington admitted that he had and Howard asked why he had done so. Harrington explained that he expected some benefits to flow from his action. Howard asked how many of the salesmen had signed such cards and Harrington said that he was sure at least half had done so. Howard inquired if Harrington had not been reading about the Teamsters Union and if he did not know that Dave Beck was a crook. Howard said that he would have nothing to do with Harrington or with other employees who had joined the Union and threatened that Browning would close the plant rather than deal with the Union. Howard conceded in his testimony that a conversation substantially as reported above took place but explained that he did not say that Browning would close the doors. According to Howard, what he did say was that the demands of the Union might be so extravagant as to force the plant to close. With the assistance of other employees, Harrington had, before February 6, obtained the signatures of 22 of the salesmen on the application cards. On February 6 the Respondents had about 30 route salesmen in their employ. Early in the morning on that date Roger Wallace and John LaNear, both rep- resentatives of the Union, accosted Browning and Rasco as they were about to enter a restaurant near the bakery plant. Wallace told Browning that he was a representative of the Teamsters Union and would like to speak to him. Browning said that he was about to eat breakfast and was in a hurry to meet some people who were awaiting him in a nearby town. Wallace and LaNear waited outside the restaurant until Browning and Rasco reappeared. LaNear then told Browning that the Union represented a majority of the employees and asked if Browning would accord recognition. Browning said that he would not do so. Wallace then reached into his car parked at the curb, pulled out a stack of cards, and slapping them together said, "We got 'em." i Browning and Rasco then left. Of all Respondents' salesmen, Phillip Harrington operated the most successful route from a financial standpoint and in consequence had greater earnings than any of the others. Harrington was, however, somewhat of a problem in that he refused to report as early in the morning as Respondents desired. Despite many requests and suggestions during the tenure of Sales Manager Lee Houser,2 he con- tinued to report for work later than the bulk of the employees. When on January 1, 1957, Cecil Howard succeeded Houser, he attempted to persuade Harrington to come in earlier. Harrington had explained to Houser, and it is apparent that Howard knew of this circumstance, that he was suffering from stomach ulcers and that on the advice of his doctor he was resting for a period of about an hour after breakfast. According to Harrington this made it highly inconvenient for him to report for work until about 7:30 or 7:45 in the morning. Most of the drivers came in about a half hour earlier than this. Harrington told Howard that he would try to get in earlier, but there is no indication that he did so. The Re- spondents, although earnestly desiring that Harrington appear earlier and uneasy ' All participants are in substantial agreement as to what was said and done on this occasion. 2In November 1956 Houser attempted to have Harrington discharged for tardiness. Browning would not permit it. 483142-59-vol. 120-55 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lest other employees be tempted to emulate his tardiness, seemed to have decided that his performance as a salesman was so outstanding that they would just have to endure his idiosyncrasy. Sometime in the fall of 1956 Harrington's truck struck a dog on his route and injured it. Harrington called the plant for advice and was told by the office manager to use his -own judgment. Harrington seems to have interpreted this as permitting him to act for the Respondents in connection with caring for the dog. Perhaps a more reasonable interpretation is that the office manager had in effect told Harrington that whatever he did was on his own responsibility. Harrington took the dog to a veterinarian and sometime later the Respondents received a bill of about $36 for the dog's care. Browning told Harrington that the Respondents had no liability in the matter and would not pay the bill. After some discussion, Browning offered to pay half of the amount if Harrington or the dog's owners would pay the remainder. Harrington made some attempt to secure payment from the owners, without success. Finally, in early February, the Respondents and Harrington were served with process requiring them to appear in a justice court to answer the claim of the veterinarian for payment of his bill. On February 7 Browning and Harrington appeared in the justice court and testified in connection with the claim The result of this action is not entirely clear from the record, but the indication is that judgment was entered against Harrington alone Following the trial but before judgment was given, Browning and Harrington returned to the plant office. In the words of Harrington, Browning said that he was going to let Harrington go, and continued: "It isn't the fact of the dog incident that I am going to let you go." 3 Harrington then asked what the reason was, and Browning answered that he had been causing too much trouble; had been "slapping the hand that feeds you." When Harrington pressed Browning for particulars, Browning answered that Harrington knew what he was talking about and refused to go into details. Commenting that Harrington had habitually been reporting for work late, he agreed nonetheless that Harrington was the best salesman he had and that he wished he had 30 men like him. Harrington finished the day, and that evening was discharged. About February 9 Harrington met Earl Williams, one of the route supervisors, and asked him why he was discharged. According to Harrington, Williams said that the discharge may have been because of the Union or because of the dog linjury. Still, according to Harrington, Williams said that another salesman, Robert Harris, was going to be fired because of his union activity, and that it was just a question of time before all of those prominent in the union movement were discharged. Irwin Frailey, not then an employee of the Respondents, spoke to Route Supervisor Roy Billingsley in mid-January about possible employment opportunities at the bakery. Billingsley said that an opening might develop because the Respondents were having trouble with Harrington on account of his tardiness and because he was trying to organize a union. On February 12 Billingsley told Frailey, according to Frailey's testimony, that a route was open; that Harrington had been fired because he ran over a dog, organized the Union, and came to work late. A few days later Frailey began work as a salesman. The Respondents in early February of course were aware that the Union was making a serious attempt to organize the salesmen. Walter P. Castleman testified that upon the occasion of his hire on February 16 Sales Manager Howard asked him how he felt about the Union and if he would join it. Jerry Hamilton testified that about the 15th of February Howard asked him in the presence of another salesman, Hubert Nicholson, if Hamilton had signed a card for the Union. When Hamilton admitted that he had done so, Howard commented that he hoped that 3 The quoted phrase is based upon my recollection of Harrington's testimony It appears in the record without the first two words I am convinced that the reporting at this point, as at many others in the record, is inaccuiate As ieported, the statement attubuted to Browning is unclear and does not explain the immediate question by Harrington "Well, what is ito" A great number of inaccuracies in the report of testimony exist, none of them, however, having the importance of the one here being discussed Perhaps the most shock- ing "erroi," if it can be called that, appears in pages 4 and 5 of the transcript There the reporter has incorporated in the statement made by the Trial Examiner at the opening of the hearing entire paragraphs which were never spoken It is apparent that the re- porter or the transcriber, for reasons which are obscure, has copied into this record por- tions of opening statements sometimes made in representation hearings Therefore all that matter on page 4 of the transcript beginning with line 11, and all that on page 5 through line 12 is stricken. vd.---O$L .In /-Si, - ^rIEBI COTTAGE BAKERS 851 no one would be hurt. Julian Garcia testified that sometime between February 10 and 20 Howard asked if he had been approached to join the Union. Garcia said he had not. Whereupon Howard asked what he thought of the Union and advised Garcia to think it over before "you talk to any of these guys." Howard said that Browning would never recognize the Union. James D. Hall testified that in mid- February Howard asked him if he had been approached by the Union and inquired what Hall thought about it. Bruce Litton testified that Howard made the same inquiry of him in early February and commented that the Teamsters was the "crookedest" union in the United States. Howard said that Litton as a new employee should think over his decision very carefully before joining the Union, and offered to furnish Litton with reading material to enable him to acquaint himself with the character of that organization. Howard said that the Respondents were not big enough to afford a union like the Teamsters and would never recognize it. At about this time Howard went into Browning's office, leaving the door open behind him. Litton testified that he overheard Howard tell Browning about the conversation just reported and heard Browning say that what he should do is fire every one of the SOB's and perhaps hire them back later. William J. Villanueva testified that in early February both Howard and Route Supervisor Williams asked if he had joined the Union or been approached by it. Joseph Dow testified that in early February Route Supervisor Williams said that Browning would close the doors before recognizing the Union; that the Union was infiltrated by Communists; and that all of them should be shipped to Russia. Following the brief meeting of the union representatives and the Respondents on February 6 the Union filed a petition with the Board seeking an election in a unit comprised of the driver-salesmen. A hearing on the petition was held on February 25. At a union meeting that night the employees were informed that the Respondents contested the jurisdiction of the Board over their operations and that the likelihood of a quick election was little. After some discussion it was decided by vote to engage in a strike beginning the next morning to obtain recogni- tion from the Respondents. It is apparent that some of the employees believed also that the strike would continue until Harrington was returned to the job from which he was discharged. I find, however, that the cause of the strike was the refusal of the Respondents to extend recognition to the Union. The next morning most of the salesmen appeared on a picket line outside the plant. None who had attended the meeting on the evening before reported for work. In all, 23 of them engaged in the strike. Eight or ten crossed the picket line and with the assistance of the route supervisors and perhaps some workers newly hired, the Repondents were able to operate 16 of the 31 scheduled routes that day. Early in the morning of the strike Browning approached a group of pickets outside the plant and said that when all of them arrived he would like for them to come in to the sales office to talk things over. Wallace said that he was the spokesman for the men and that if Browning wanted to discuss the problem he could come down to the union office to do so. Browning turned and left. A little later, after the trucks had been loaded with bakery goods, Browning announced this fact to the pickets and told them that if they did not take the trucks out he would consider that they had resigned.4 The strike continued. On the night of February 26 Howard telephoned Julian Garcia, saying that all would be out of a job if they did not report for work in the morning, and that Browning had a "franchise deal" which he desired to discuss with the men. On the same evening Browning telephoned Albert Vasquez and said he would like to see him back at work. Browning explained that he was now offering the drivers a percentage arrangement which would enable some of them to make more money than they had in the past. Vasquez told Browning that he would have to discuss the matter with the Union. During the first day of this strike Route Supervisor Williams told Joseph Dow that he would like to have him come in and discuss a new percentage arrangement Williams said that the strike was useless, that Browning would close the doors before recognizing the Union. On March 3, through the intervention of a representative of the Bakery Workers Union, Browning and Rasco met with Faro Caudil, secretary of the Union Shoe- maker asked Caudil, in the presence of the Respondents, what it would take to end the strike. Caudil answered- recognition, reinstate the strikers, bargain, and permit Harrington's case to go to the Board for decision on the alleged unlawful 4 Browning so testified Witnesses for the General Counsel recalled Browning's words to be that if they did not take out the tiucks they were "terminated " The difference between these versions is immaterial 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge. Caudil said that the Union would abide by whatever disposition the Board made of the case. Browning said that some good men were on strike, but that there were 6 or 7 he would not take back. Browning refused to recognize the Union. On March 13 Mauricio Montoya, an employee of another bakery and secretary- treasurer of the union representing Respondents' bakery workers, came to the Respondents' plant to post a notice on the bulletin board in connection with a meeting of Montoya's organization. Rasco, apparently in the belief that the bakers were intending to start observing the Union's picket line, asked Montoya if he was trying to cut his throat again by taking the bakers out on strike. According to Montoya, Rasco said that the Respondents would close their doors rather than deal with the Union. Rasco, while not directly denying Montoya's testimony on this point, said that he referred in his conversation to a boast by the Unon that it would close the doors of the Respondents. Hubert H. Nicholson, one of the strikers, being unable to support himself and his family as the strike continued, applied to Howard for employment on April 5. On May 3 he was taken back as a new employee at lessened earnings and without the vacation status he had earned before the strike. Why Nicholson was not im- mediately rehired is unclear, for Browning testified that vacancies in driver- salesmen positions had existed at all times since the beginning of the strike. Sometime before the strike, the Respondents had arranged for the purpose of uniforms for some or all of their salesmen, with the understanding that the cost would be split between the individual and the Respondents. Joseph Dow, one of the strikers, protested to Browning after the strike had begun that the entire cost of the uniform had been charged against Dow's earnings. Browning explained that he had agreed to pay half the cost for those employees that remained with him for more than 6 months after the purchase and that Dow had quit by engaging in the strike. Earl Williams denied that he told Harrington that the latter's discharge was in any respect attributable to union activity, and denied that he told any employee that Browning would close the doors before recognizing the Union. Sales Manager Howard conceded that he asked a number of employees if they had been approached by the Union and inquired how they felt about it, said that he did not recall talking to Litton about a union or hearing Browning say that he should fire the SOB's, and admitted that he reported his conversation of February 4 with Harrington to Browning. Roy Billingsley denied that he told Frailey that Harrington was discharged for union activity, and denied that he ever mentioned Harrington's activity to Frailey. Billingsley agreed that Harrington had in the middle of January 1957 asked him what he thought about having a union in the plant. Billingsley told Harrington that he could not possibly back him in that action and that he thought he was crazy for trying to bring a union in; that a union would not gain him any advantage. Billingsley did not testify concerning Harrington's testimony that Billingsley had predicted Harrington's discharge because of his union activity. Browning denied that he told any employee that he would close the doors before recognizing the Union. Browning had observed, he testified, that the Union had closed a number of house-to-house bakeries because it was impossible to make a profit under the Teamsters contract and told his supervisors of this circumstance. The complaint alleges that all retail route salesmen, mechanics, and mechanics' helpers employed at Respondents' plant, excluding clerks, supervisors, and guards as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Respondents' answer denies this allegation. All of the evidence bearing upon the propriety of this unit indicates that it is a feasible one. The salesmen, mechanics, and mechanics' helpers are all under the supervision of the sales manager and constitute a separate and distinct grouping of employees, performing functions not shared with other groups and, in sum, are a clearly defined unit. I find that a unit of all retail route salesmen, mechanics, and mechanics' helpers employed at Respondents' plant, exclusive of all clerks, supervisors and guards as defined in the Act, now constitutes and at all times material herein has constituted, a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. On February 6, 1957, a majority of the employees of the Respondents in the appropriate unit had designated the Union as their representative as evidenced by the designation cards in evidence. I find that on February 6, 1957, and at all times material thereafter the Union was, and now is, the exclusive representative of the employees in the appropriate unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. COTTAGE BAKERS 853 The Union's request for recognition on February 6 was denied out of hand by Browning. Wallace and LaNear testified credibly that they had with them on that morning designation cards of a majority of the employees in the unit. Rasco and Browning admitted that they saw cards of some description, but denied that they knew or could have known from the display made what the cards were. It is of course true that neither Browning nor Rasco examined the.cards, but they indicated no interest in doing so. The cards were held in Wallace's hand and attention was called to them, but Browning and Rasco were in a hurry to terminate the conversa- tion and did so. Browning knew on this date from information given him by Howard that Harrington claimed to have signed up at least half of the employees in the Union. He may not have credited Harrington's claim but if he doubted the status of the Union he had an opportunity to check the signed cards and failed to take it. On February 26, 23 of the 31 drivers demonstrated their desire to have their representative recognized by the Respondents by engaging in a strike. I do not believe that the Respondents, seeing a large majority of their drivers on the picket line outside the plant, could have or did entertain any doubt as to the majority status of the Union. On February 25 the Respondents decided to offer a different and more advantageous percentage arrangement to their salesmen. All salesmen hired on and after February 26 were the beneficiaries of this arrangement. On February 25 Howard spoke to DeLora about the new percentage payment in an obvious effort to discourage DeLora from engaging in a strike. Howard mentioned the same matter to Elmer Whitehead. On the same day Browning spoke to Fred Curran about a new francise deal that would pay more money. On February 26 many employees, singly and in groups, were told by Browning or by some other agent of the Respondents that a new and attractive arrangement for compensation was available to them. These attempts to lure the employees away from their Union loyalties by offering more remunerative employment conditions bespeak a conviction on the part of the Respondents that they had to do something to persuade the employees to abandon the Union. If the Respondents had a bona fide doubt whether the Union represented a majority they might have been justified in insisting upon proof of the claim in some formal manner. Instead they set about to destroy the Union's majority by offers of changed compensation and by threats to close the plant. By attempting to deal with the employees as individuals in respect to their earnings, the Respondents have demonstrated their bad faith and I find that they at no time on or after February 6 had a good-faith doubt as to the majority status of the Union. It follows then, and I find, that by refusing to recognize the Union on February 6 and thereafter, the Respondents unlawfully refused to bargain with the Union as the majority representative of their employees in the appropriate unit and thereby violated Section 8 (a) (5) of the Act.5 Not only did the Respondents attempt to wean the employees from the Union by offers of larger commissions: Browning expressed his conviction that a contract with the Union would be a threat to the continued operation of their business. Testimony of the numerous instances in which Browning or some of the supervisors had stated that the plant would be closed before the Union would be recognized has been recited and is credited. From the time that information concerning the activity of Harrington and others in promoting the organization of the Union came to the Respondents' attention, it is amply clear that the Respondents and their supervisors thereupon constituted themselves a team to fight this development. It is highly believable that threats to close the plant would have been uttered and I find that they were. Indeed, as the evidence establishes, when the strike came Browning discharged all of the strikers. All were told on the morning of February 26 that if they did not take their trucks out their resignations were accepted. Joseph Dow was told later that he had quit when he failed to work on February 26 and 5 Counsel for the Respondents contends that there has been no "clear and unequivocal" request for bargaining by the Union and, as I understand him, finds a distinction of im- portance between a request for recognition and one for bargmning Obviously, the words are not synonymous but the latter includes the former. Recognition is the threshold to bargaining and without it the bargaining relation cannot exist Here the Union was pre- cluded from taking a position on matters of bargaining because the Respondents refused to concede that it had the status to do so Counsel's reliance upon the decision in Atlas Life Insurance Company v N L. R. B , 195 F 2d 136 (C A 10), to support his contention appears to be misplaced That court met the problem squarely in a later case, Al. L R B. v. Burton-Dixie Corporation. 210 F 2d 199, 201 (C A 10), and there agreed with the Board that in circumstances much like those in the case at hand, a request for recognition must be equated with a request for bargaining. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter. Hubert Nicholson, after a delay of a month, was rehired, but only as a new employee with none of the rights and privileges he had earned before the strike. Of course the strike was a lawful one, the strikers remained employees of the Respondents, and were entitled to reinstatement upon application. It is amply clear from the testimony of Browning that Nicholson could have been put to work on a route the very day that he applied. Furthermore, the strike was occasioned - by Respondents' unfair labor practices. The refusal to recognize the Union on February 6 and thereafter I have found was not occasioned by any good faith doubt as to the Union's status. Absent such a doubt, the employees were entitled to have their representative accorded recognition. The strike to force recognition was occasioned by the unfair labor practice of withholding it. I find that the strike which began on February 26, 1957, was from its inception and continues to be an unfair labor practice strike. In consequence all of the strikers must upon application be returned to their former positions. The discharge of Harrington presents a somewhat more complex problem. It can hardly be doubted that the Respondents had valid cause for their action. I suppose that Harrington might have been discharged long before had it not been for his exceptional ability as a salesman and the consequent advantage to the Respondents in having him on a route. I am convinced that the Respondents had adjusted to Harrington's practice of reporting for work late. This had persisted for many months prior to his discharge and was no more of an annoyance in early February than it had been for a long time before. Much the same thing is true concerning the veterinarian's bill. This matter first came to the Respondents' attention before Christmas 1956. And on 2 or 3 occasions thereafter Browning was reminded that the bill was still unpaid and that Harrington apparently would not pay it. He learned no more on February 7 than he had known before, and indeed on that date it appears that whatever burden had been cast upon him by Harrington was removed by the judgment exculpating the Respondents. Why was Harrington discharged on that date? On February 4 Howard had learned from Harrington that the latter had been signing up employees in the Union and had at least half of them enlisted. This information was reported to Browning. On February 6 the Union requested recognition of Browning and displayed the cards which Harrington had helped to obtain. The entire record indicates the bitterness with which Browning regarded this development, and the genuine threat to his continued operation that he conceived it to be. I credit Harrington's testimony concerning the interview in Browning's office on February 7, and find that Browning said that Harrington was not being discharged because of the veterinarian's bill. Browning on this occasion when one might expect a person to speak forthrightly and frankly unless he had a purpose to conceal, did not tell Harrington why he was being discharged, but instead engaged in circumlocutions from which I infer that the real reason was because of Harrington's activity in organizing the Union among the employees. I find that by the discharge of Harrington on February 7, 1957, the Respondents discriminated in regard to hire and tenure of employment to discourage membership in, and activity on behalf of, the Union and that the Respondents thereby violated Section 8 (a) (3) of the Act. I find that by telling the strikers on February 26, 1957, that their failure to take out the truck was to be construed as a resignation, the Respondents discharged all those strikers who failed then to go to work. The act of discharge discouraged membership in the Union and, as the strikers were then engaged in an activity deriving protection from Section 7 of the Act, the Respondents thereby violated Section 8 (a) (3) of the Act.6 9 Those discharged on this occasion are : Sam 1) Grossman Tony DeLora Walter Castleman Joseph Dow Virgil P. Ward Gilbert Barreras Theodoie A Rondeau , Jr. Hubert H Nicholson Jerry W Hamilton Herve Rondeau Norman C Rondeau Fred J Curran Geiald Boweis Al Vasquez Jay Sanchez Gilbei t E Martinez Julian A. Garcia Bruce Litton Gerald L Sanchez James D. Hall Irwin Frailey Elmer Whitehead William Villanueva I consider that the evidence sustains the position of the General Counsel that these dis- charges were not "tactical maneuvers " Of course Biow qing hoped that his ultimatum would iesult in breaking the stiike but he also intended to and did treat the strikers as having lost their eniplo^nient status Note that Dow was ieguired to pay the entire cost of his uniform because lie had "quit." Nicholson had to wait 4 weeks tor reemployment after his application and was then returned to the payroll as a new employee COTTAGE BAKERS 855 By the discharge of Harrington and of the strikers, by telling employees that the plant would close before the Union would be recognized, and by refusing to recognize the Union as the majority representative of Respondents' employees in an appropriate unit, the Respondents have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act, and have thereby violated and are violating Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III above, occurring in connection with their operations 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 and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in and are engaging in certain unfair labor practices affecting commerce, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondents have discriminated in regard to the hire and tenure of employment of Phillip Harrington, it will be recommended that they offer to Harrington immediate and full reinstatement to his former position without prejudice to seniority and other rights and privileges previously enjoyed, and make him whole for any loss of earnings sustained by reason of his discharge by payment to him of a sum of money equal to the amount he would have earned from February 7, 1957, to the date of offer of reinstatement, less his net earnings during that period. Back pay shall be computed in accordance with the Board's Woolworth formula.? Loss of pay shall be determined by deducting from a sum equal to that which he would have earned for each quarter or portion thereof his net earnings in other em- ployment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. Having found that the Respondent has discriminated against its striking route salesmen on February 26, 1957, by discharging the named 23 who refused to oper- ate trucks that day, it will be recommended that the Respondents offer to each of them immediate and full reinstatement to his former position without prejudice to seniority and other rights and privileges previously enjoyed. No back-pay liability in connection with any of these strikers will arise until such time as he abandons the strike and offers to return to his employment. Upon such an offer to return, the Respondents must restore any or all of the strikers making such offer each to his former or substantially equivalent position, discharging if necessary any replace- ments. Failure promptly to reinstate strikers in the circumstances indicated will commence the running of a back-pay liability in the same fashion as in the case of Harrington. This applies with particularity to Hubert Nicholson. He was entitled to reinstatement when he applied for it. He must be reinstated and made whole. Having found that the Respondents have unlawfully refused to extend recognition and thus to bargain with the Union in respect to its employees in an appropriate unit, it will be recommended that the Respondents be required upon request to extend recognition to, and to bargain with, the Union. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Chauffeurs, Teamsters and Helpers Local Union No. 492, International Brother- hood of Teamsters, Chauffeurs , Warehousemen and Helpers of America , AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the tenure of employment of Phillip Harrington, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By discharging 23 salesmen for engaging in a lawful strike , the Respondents have discriminated in regard to their tenure of employment and have thus engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. All retail route salesmen, mechanics , and mechanics' helpers employed at Re- spondents' plant, excluding clerks, supervisors , and guards , as defined in the Act, 7 P. W. Woolworth Company, 90 NLRB 289. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. On and since February 6, 1957, the Union has been and is the majority rep- resentative of the employees in the appropriate unit for purposes of collective bar- gaining in respect to rates of pay, wages , hours of employment, or other conditions of employment. 6. By refusing on February 6, 1957, and thereafter to recognize and thus to bar- gain with the Union, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 7. By the discharge of Harrington, by the discharge of the 23 strikers on February 26, by unlawfully refusing to bargain with the Union, and by threatening to close the plant, the Respondents have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act, and have thereby engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The operations of the Respondents are in and affect commerce within the mean- ing of Section 2 (6) and (7) of the Act. 9. 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.] Shopmen's Local Union No. 501 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO and Oliver Whyte Company, Inc. Case No. 1-CC-186. May 8, 1958 DECISION AND ORDER On December 27, 1957, Trial Examiner Louis Libbin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in any unfair labor practices, and recom- mending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party filed exceptions to the Intermediate Report, and the General Counsel filed a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby af- firmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Oliver Whyte Company, Inc., herein sometimes called the Charging Party, the General Counsel of the National Labor Relations Board, by the Regional Director for the First Region (Boston, Massachusetts), issued a 120 NLRB No. 112.