Laabs, Inc.

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laabs, Inc. and Bakery Sales Drivers Union, Local No. 344. Case No. 13-CA-3330. July 29, 1960 DECISION AND ORDER On March 9, 1960, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding the Respond- ent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and 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 affirmed. The Board has considered the Intermediate Report, the 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 exceptions, additions, and modifications : 1. We find in agreement with the Trial Examiner that Respondent unlawfully refused to bargain with the Union, although we date the initial refusal from June 18, 1959, the date Respondent received the Union's first request for bargaining, rather than from June 15, 1959, the date the Union filed its representation petition.' Respondent cor- rectly contends that the filing of a petition does not constitute a re- quest for bargaining, so as to make its failure to bargain, without more, a violation of Section 8(a) (5) of the Act. We find no merit, however, in Respondent's further contention that the pendency of the petition justified its refusal to bargain after re- ceipt of the Union's claim of majority designation and bargaining demand. It is true that an employer may in good faith insist upon a Board election, as proof of a union's majority status. However, when its insistence upon an election is motivated, not by any bona fide doubt as to the union's majority status, but rather by a rejection of the col- lective-bargaining principle, or a desire to gain time within which to undermine the union, such insistence is unlawful.' This question of good faith is one, which, of necessity, must be determined in the light of all relevant facts in the case, including any unlawful conduct of the employer. Here the record clearly establishes that Respond- ent's failure to bargain was motivated by its complete rejection of the collective-bargaining principle. Its response to notification that the Union had petitioned for an election among its truck-drivers was to i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Rodgers , Jenkins, and Fanning]. 'The Union withdrew its petition on June 30, 1959 'Joy Silk Mills, Inc, 85 NLRB 1263, enfd . 185 F. 2d 732 (C.A.D.C ). 128 NLRB No. 44. LAABS, INC. 375 attempt to subvert the drivers' allegiance to the Union by offering them a wage increase conditioned upon their withdrawal from the Union. Failing in this, Respondent discriminatorily discharged the drivers at 5 o'clock on the day the Union mailed its letter demanding that Respondent bargain with it as the representative of drivers and shipping room employees. Respondent's response to that letter was immediately to interrogate and assist Balaz Meekesh, the only ship- ping room employee then at work' who had signed a union authoriza- tion card, in the preparation and mailing of a letter of withdrawal from the Union. These circumstances negate any possible claim of good-faith doubt as to the Union's majority status, and clearly demon- strate that Respondent's failure to bargain did not stem from any con- fusion as to the unit in which the Union claimed majority representa- tive status.5 On the contrary, we are convinced that Respondent's conduct at all times material herein was designed to undermine the Union's support in order to avoid being placed in a position in which it would be obligated to bargain with the Union, and that such conduct was motivated by Respondent's complete rejection of the collective- bargaining principle. In these circumstances we find that Respond- ent's failure to bargain, upon request of the Union on and after June 18, 1959, violated Section 8 (a) (5) of the Act. 2. In its brief, Respondent argues that a remedial order directing it to bargain with the Union would not effectuate the policies of the Act. It points out that it has never objected to the holding of an election, which it regards as the only proper method of determining its bargaining obligations at this time. This argument comes with ill grace from an employer who immediately upon the filing of the Union's petition engaged in conduct which made the holding of a free election impossible. As we have found that on and after June 18, 1959, Respondent unlawfully refused to bargain with the Union, we shall order the Respondent to recognize the Union as the repre- sentative of the employees in the unit described in the Intermediate Report and to bargain with the Union upon request. 4 In addition to the truckdrivers and Meekesh, Dennis Emory, a shipping clerk, also signed a union authorization card Emory was on vacation at the time of the above events Upon his return , Respondent promoted him out of the unit. e Respondent argues in its brief that the variance between the unit described in the petition and the unit described in the Union's letter of June 17 created confusion as to the exact nature of the unit for which the Union requested bargaining rights . This is belied, however, by Respondent's prompt and successful attempt to subvert Meekesh's union adherence immediately upon its receipt of the June 17 letter . There is clearly no merit in Respondent 's further contention that the unit involved in the Union 's request for bargaining-drivers and shipping room employees-is at variance with the unit alleged in the complaint and found herein to be appropriate-drivers, order fillers , and shipping and receiving room clerks . The latter merely details the particular classifications of Respondent's shipping room employees The Union's request clearly communicated to the Respondent the extent of the unit of employees for which it wished to bargain, and it was therefore a proper request. Cf. The C. L. Bailey Grocery Company, 100 NLRB 576, 580 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have also found in agreement with the Trial Examiner that Respondent discriminatorily discharged truckdrivers LaPorte and Sanfelippo. Contrary to the Trial Examiner, we deem it unneces- sary to direct Respondent to offer them immediate and full reinstate- ment to their former or substantially equivalent positions, because we view Respondent's offer of reemployment, made on or about August 28, 1959, as an offer of reinstatement. Sanfelippo accepted such offer and returned to work on September 15 or 16, 1959, and LaPorte re- jected such offer when tendered to him. Accordingly, we shall toll Respondent's backpay liability in the case of Sanfelippo, as of the date he returned to work, and in the case of LaPorte, as of the date he refused such offer. 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 Laabs, Inc., its officers, agents, supervisors, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Bakery Sales Drivers Union, Local No. 344, as the exclusive bargaining representative of all drivers, order fillers, and shipping and receiving room clerks of Laabs, Inc., at its Milwaukee, Wisconsin, warehouse and stores, ex- cluding office and clerical employees, watchmen, guards, professional employees, supervisors as defined in the Act, and all other employees. (b) Interrogating its employees concerning their organizational activities, or in any manner soliciting, offering inducements to, or assisting them with respect to withdrawing their support of or affilia- tion with any labor organization. (c) Discouraging membership in Bakery Sales Drivers Union, Local No. 344, or any other labor organization, by discriminating in regard to hire or tenure of employment, or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees, or infringing upon their exercise of the rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act, as amended : (a) Upon request, bargain collectively with Bakery Sales Drivers Union, Local No. 344, as the exclusive representative of all drivers and shipping room employees in the aforesaid appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. LAABS, INC. 377 (b) Make Ronald F. LaPorte, Jr., and Jack M. Sanfelippo whole for any loss of pay in the manner set forth in paragraph 2 of the Decision herein. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity reports, timecards, personnel files, and all other records necessary to analyze, compute, and determine the amounts of backpay to which the discriminatees herein may be entitled under the terms of this Order. (cl) Post at its stores and warehouse in Milwaukee, Wisconsin, copies of the notice attached hereto marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Thir- teenth Region, shall, after being duly signed by a duly authorized representative of Laabs, Inc., be posted by Respondent immediately upon receipt thereof, and maintained by it for 60 days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith. I 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, Entoreing 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 in good faith with Bakery Sales Drivers Union, Local No. 344, as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, hours of employment, and other conditions of employment, and, if an understanding is reached, we will embody such understanding in a signed contract. The bargaining unit is: All drivers, order fillers, and shipping and receiving room clerks of Laabs, Inc., at its Milwaukee, Wisconsin, warehouse and stores, excluding office and clerical employees, watchmen, guards, professional employees, supervisors as defined in the Act, and all other employees. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make Ronald F. LaPorte, Jr., and Jack M. Sanfelippo whole for any loss of pay they may have suffered by reason of our discrimination against them. WE WILL NOT in any manner interfere with, restrain, or coerce our employees or otherwise infringe upon their exercise of the right to self-organization, to form, join, or assist Bakery Sales Drivers Union, Local No. 344, or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as 'a condition of employment as authorized in Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All of our employees are free to become and remain or to refrain from becoming or remaining members of the above-named Union, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8 (a) (3) of the Act. LAABS, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE With all parties represented, this proceeding was heard before the duly designated Trial Examiner at Milwaukee, Wisconsin, on November 23 and 24, 1959, upon a complaint filed by the General Counsel of the National Labor Relations Board, herein respectively designated as General Counsel and the Board, and an answer thereto filed by Laabs, Inc., herein called the Respondent. The principal issues litigated were as follows: .1. Whether the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by (a) interrogating certain employees concerning their membership in a labor organization and con- certed activities for the purpose of collective bargaining or other mutual -aid or protection; (b) assisting and soliciting employees to withdraw their support, affili- ation, and membership from a labor organization; and (c) offering economic benefits to employees if they would refrain from engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Whether the Respondent discriminated in regard to hire or tenure of employ- ment to discourage membership in a labor organization by discharging and refusing to reinstate Jack M. Sanfelippo and Ronald F. LaPorte, Jr., because of their membership in and concerted activities on behalf of a labor organization. 3. Whether the Respondent refused to bargain collectively with Bakery Sales Drivers Union, Local No. 344 (herein called the Union), as the exclusive repre- sentative of its employees, subject to the provisions of Section 9(a) of the Act. LAABS, INC. 379 Upon motion of the General Counsel, paragraph II of the complaint was amended to allege that Respondent was incorporated under the laws of Wisconsin; and paragraph VII was amended to allege that the appropriate unit herein consists of "all drivers, order fillers, and shipping and receiving room clerks of Respondent at its Milwaukee, Wisconsin, warehouse and store, excluding office and clerical employees, watchmen, guards, professional employees, supervisors as defined in the Act, and all other employees " Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF RESPONDENT EMPLOYER Laabs, Inc., is a corporation organized and existing under and by virtue of the laws of Wisconsin, having its principal offices and places of business in the city of Milwaukee, Wisconsin, where it is engaged in the wholesale and retail sale of surgical equipment, hospital, laboratory, and physician supplies, chemicals, drugs, pharmaceuticals, and related products to doctors, hospitals, colleges, high schools, industrial plants, and the general public. During the calendar year 1958, which period is representative of all times material herein, the Respondent in the course of its business operations purchased and received directly from sources outside the State of Wisconsin merchandise and materials valued in excess of $500,000; and during the same period sold and delivered such products valued in excess of $700,000 to its own customers within said State. I find, therefore, and it is stipulated by all parties that the Respondent is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Corporate officials and supervisors of the Respondent include August Stegeman (president), Elmer Volkmann (vice president-treasurer-general manager), Edgar Volkmann (secretary), and Gerald (Jerry) Valentine (supervisor in charge of re- ceiving, shipping, and delivering merchandise). Headquarters of Laabs, Inc., is located in the primary store located at 1937 West Vliet Street at 35th Street in the business section of Milwaukee, and under a separate manager Respondent operates a branch store on North Avenue at 85th Street about 6 or 7 miles from the parent store, which is exclusively devoted to compounding doctors' prescriptions for resi- dents in a suburban area. The parent store consists of a pharmacy, wherein more than 30 professional pharmacists are employed, the general offices of the corpora- tion, and ample warehouse facilities. President Stegeman devotes his time to public relations and operation of the pharmacy. General Manager Elmer Volk- mann is responsible for office administration and overall operations. Secretary Edgar Volkmann is himself a professional pharmacist and is primarily engaged in operation of the pharmacy and truss fitting department. These three officials jointly determine, establish, and carry out the business policies of the corporation. II. THE LABOR ORGANIZATION INVOLVED Bakery Sales Drivers Union, Local No. 344, is a labor organization within the meaning of Section 2(5) of the Act, and exists in whole or in part for the purpose of representing employees in dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. In. THE UNFAIR LABOR PRACTICES A. The appropriate unit At its parent store Respondent operates a receiving, shipping, and delivery de- partment under the supervision of Gerald (Jerry) Valentine, who is classified as billing clerk. Personnel normally under his supervision include all shipping room employees and delivery truckdrivers. By reason of common supervision, interrela- tion and integration of their employment, and the similarity of work performed for their employer, I find, as alleged in the amended complaint, that within the meaning of Section 9(b) of the Act the following employees constitute an appropriate unit for the purposes of collective bargaining, to wit: All drivers, order fillers, and shipping and receiving room clerks of Laabs, Inc., at its Milwaukee, Wisconsin, warehouse and stores, excluding office and clerical employees, watchmen, guards, professional employees, supervisors as defined in the Act, and all other employees. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Interference and discrimination In June 1959 the aforesaid appropriate unit under the supervision of Jerry Valen- tine consisted of Dennis M. Emery (shipping clerk), Donald Kruecke (receiving clerk),' Balaz Meekesh (stock man and order filler), Ronald F. LaPorte, Jr. (truck- driver), and Jack M Sanfelippo (truckdriver). Prior to June a third truckdnver (unnamed) had been terminated, and Respondent had promised summer employ- ment to a high school student named Melvin Slutzky, who was the son of a valued customer physician of Laabs, Inc. On or about June 12, 1959, truckdriver Sanfelippo signed an application for mem- bership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 344, and designated it as his representative for the purposes of collective bargaining. At the solicitation of Sanfelippo identical union cards were also signed by Dennis M. Emery, Balaz Meekesh, and Ronald F. LaPorte, Jr., on the same day. These authorization cards were thereupon delivered to Don Beatty, Business Agent for Bakery Sales Drivers Union, Local No. 344, which is the Local Union designated therein. The four cards submitted involved all em- ployees in the aforesaid appropriate unit, excepting Don Kreucke, and constituted a majority of four-fifths thereof. Thereupon, the Union filed a representation petition with the National Labor Relations Board in Case No. 13-RC-6642 on Monday, June 15, 1959, requesting certification as the bargaining representative of employees of Laabs, Inc., in a unit consisting of five employees, including drivers, but excluding all clerical employees, supervisory employees, guards, and other employees specifically excluded by the Act. Thereafter by letter dated June 17, 1959, the Union notified Respondent that it had been designated as collective-bargaining agent by a majority of its drivers and shipping room employees, and thereby corrected the limitation of "drivers" in the original petition to include shipping room employees also. In this letter the Union requested that Respondent fix a time and place of meeting to discuss the terms and conditions of a collective-bargaining agreement. Following this letter the Union on June 18, 1959, further notified Respondent by telegram (Western Union) that Bakery Sales Drivers Union Local No. 344, had been designated as collective- bargaining agent in a collective bargaining unit of drivers and shipping room em- ployees, and again requested that Respondent meet with the Union immediately for the purpose of collective bargaining in behalf of these employees. The Union also offered to submit signed authorization cards for comparison with payroll signatures to support its claim of majority representation. The Respondent made no reply to either communication, although it is admitted that both were received. Respondent received a copy of the aforesaid petition by registered mail on the morning of June 16, 1959, before its truckdrivers had gone out on their delivery routes. At approximately 10 am. General Manager Elmer Volkmann, with the document in hand, went upstairs into the warehouse to see Ronald F. LaPorte, Jr., and Jack M. Sanfelippo. In the presence of Supervisor Jerry Valentine, he inquired in substance why they were trying to get a union to handle their grievances, if any, instead of coming directly to him about such matters. According to LaPorte, Elmer Volkmann at that time also made a statement to the effect that the Company could not afford to pay union wages. In reply, LaPorte inquired, "Did you ever try to sup- port a family on $1.40 per hour9", and then went downstairs to his truck. Sanfelippo made a statement to the effect that the drivers should be getting a raise in pay and more benefits-that Respondent had repeatedly promised health and welfare pro- grams, which they had never received. Later during the afternoon of the same day and following his conversation with the two truckdrivers, Elmer Volkmann dis- cussed the subject with Supervisor Jerry Valentine, and authorized him to offer an increase in wages of 15 cents per hour to the truckdrivers and to tell them that he was working on the health and welfare program. Thereafter at approximately 6 p m of the same day, Supervisor Valentine approached each of these drivers separately at their trucks in the parking lot and offered them the increase in pay and other proposed benefits upon condition that they drop the Union. Both Ronald F. LaPorte, Jr., and Jack M. Sanfelippo credibly testified that the offer was conditioned upon their abandonment of the Union; which was incredibly denied by Supervisor Jerry Valentine, although admitting that he expected an answer as to whether the proposal would satisfy them. In any event, each of the truckdrivers refused to accept this proposal, and no such wage increase was ever put into effect. Although Supervisor Valentine denies having made any report whatever as to acceptance or nonacceptance of the proposed wage increase, General Manager 1 Kruecke was a nephew of Stegeman , one of the principal owners of the business. LAABS, INC. 381 Elmer Volkmann called his brother, Edgar Volkmann, between 6 and 9 p.m. that night, and gave him undisclosed information and instructions concerning the situation. He then departed the city of Milwaukee and did not report for duty at the Vliet Street store on June 17, 1959, purportedly for the reason that it was his day off. Edgar Voklmami credibly testified in substance that between 6 and 9 p.m. on Tuesday, June 16, 1959, General Manager Elmer Volkmann called him by telephone at his home, and said: We are involved in some difficulties at the store with some of the help I think that we're going to have to carry into operation that thing that we have planned for sometime and that is that we will have to change our delivery system over. For economic reasons, I think that we are going to have to employ United Parcel and work out a plan that we had talked about on previous occasions to make our delivery system more efficient and more economic to the store. I would like to have you contact United Parcel and see what arrangements can be made for them to take the bulk of our deliveries. We have already hired Melvin Slutzky, who is supposed to start any day. I suggest that we lay off LaPorte and Sanfelippo, and we will have Melvin Slutzky as an emergency driver and try out the new system. The boys are demanding a higher wage rate and they want us to pay their Blue Cross and give them extra hospital benefits. You know very well that we cannot afford the extra expense right now. Pursuant to the foregoing telephone conversation, Edgar Volkmann on Wednesday, June 17, 1959, reached an agreement with United Parcel Service to deliver packages, within the city of Milwaukee, not exceeding 40 pounds in weight and limited in size to dimensions prescribed by the United States Post Office Department for packages sent by parcel post; with service restricted to one pickup daily and delivery within 24 hours on the following day to a particular place, but not to a specified individual or department. Upon the consummation of this arrangement and the expectation of Melvin Slutzky reporting to work as an emergency truckdriver for the summer season, Edgar Volkmann indefinitely laid off or discharged Ronald F. LaPorte, Jr., and Jack M. Sanfelippo at approximately 5 p.m. on Wednesday, June 17, 1959. On June 18, 1959, Balaz Meekesh (order filler) was called into the fitting room for interrogation concerning his union activities by Elmer Volkmann and Edgar Volkmann. First they inquired whether he had signed the petition, and what he knew about it. Elmer Volkmann mentioned the fact that Sanfelippo had gone around getting signatures on union cards, and in substance said "we know you signed for the Union. We know you did not organize. The organizer was Sanfelippo. We do not think the guys are organized right. You are not a truckdriver, so you are not part of it You fellows did not organize right. You should have come to us first." Thereafter, on June 20, 1959, Meekesh went back to see Elmer Volkmann, and requested him to prepart a letter of withdrawal from the Union. Volkmann prepared such a letter in longhand, and it was then prepared in typewritten form by Irwin Wiczinsky (the buyer) while still in the office, and addressed for mailing to the Union in an envelope bearing the return address of Labbs, Inc. Salesman Kull- man took Meckesh to the post office in his car and witnessed the posting of the letter by registered mail. Thereafter, Meekesh delivered the post office receipt for the registered letter to Elmer Volkmann for safekeeping and as evidence of the posting thereof. Shipping clerk Dennis M. Emery signed a union card at the solicitation of Jack M. Sanfelippo on June 12, 1959, while on vacation, and did not return to work until the early part of July 1959. Upon return from vacation, he admittedly dis- cussed the union situation with Supervisor Jerry Valentine, but when called as a witness herein could not remember the substance of their conversation. At any rate, shortly thereafter on July 13, 1959, Respondent promoted Emery to the rank of supervisor of its chemical department, thereby removing him as an eligible member of the Union in the appropriate unit Although Emery became the suc- cessor to a graduate chemist, who had recently been terminated by the Respondent as manager of its chemical department, a degree in chemistry was not required to hold that position. Since the Respondent found this man qualified by experience for such promotion, I find it unnecessary to determine, under the circumstances of this case, whether Respondent was moved by other considerations in making the appointment. C. The refusal to bargain It is entirely clear from all of the evidence in this case that at all times on and after June 12, 1959, the Union was and is the duly authorized and exclusive repre- sentative of a majority of Respondent's truckdrivers and shipping room employees 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the appropriate unit. Having by petition filed on June 15, 1959, by letter of June 17, 1959, and by telegram of June 18, 1959, together with an offer to submit proof of its majority in the form of authorization cards, repeatedly requested the Re- spondent to bargain and negotiate in good faith with respect to a collective- bargaining agreement, Business Agent Don Beatty again on June 22, 1959, went to the Vliet Street store of the Respondent in person, and attempted to negotiate with Edgar Volkmann both with respect to wages and the reinstatement of truckdrivers Ronald F. LaPorte, Jr., and Jack M. Sanfelippo. On that occasion the Respondent contended that the truckdrivers were laid off for economic reasons by reason of a newly established delivery system under contract with United Parcel Service. With respect to any wage agreement, Edgar Volkmann asserted that Respondent could not afford to pay union wages and refused to negotiate with respect thereto on the ground that there was not an appropriate unit since the termination of the two truckdrivers, but that he would not object to holding an election. Thereupon, he referred Beatty to Respondent's lawyer. Consequently, the Union filed a charge on June 22, 1959, with the National Labor Relations Board, and with consent of its Regional Director withdrew the representation petition in Case No. 13-RC-6642, pending the determination of alleged unfair labor practices herein. D. The new delivery system An analysis of the alleged new delivery system adopted by Respondent on June 17, 1959, is necessary to determine by what good faith, if any, it was moved in discharging Ronald F. LaPorte, Jr., and Jack M. Sanfelippo, and otherwise interfering with, restraining, and coercing its employees in their exercise of the rights guaranteed in Section 7 of the Act. From all of the evidence in this case, it appears extremely doubtful that Respondent actually made any material changes in its delivery operations. Many packages delivered to customers by the Respondent consist of prescriptions, pharmaceuticals, medicines, and hospital and physicians supplies of an emergency nature requiring immediate delivery, which cannot be held over to the following day. Other supplies such as hospital beds, bulky surgical equipment, etc., exceed the weight and dimensions of parcel post packages. For this and other reasons of convenience, including prompt delivery to customers, the Respondent has always maintained its own private delivery service, and resorted to public delivery service such as that furnished by the United Parcel Service only for distant or isolated deliveries when time was not of the essence. Even on such occasions the restriction to 40 pounds in weight and parcel post dimensions imposed by United Parcel Service often required the Respondent to make such deliveries by its own truckdrivers. In June 1959 the Respondent owned three delivery trucks, one of which was tempo- rarily idle because its operator had been terminated or quit during the period from January to June 1959. The two trucks remaining in use were operated by truck- drivers, Ronald F. LaPorte, Jr., and Jack M. Sanfelippo, respectively, and the territory on the west side of Milwaukee formerly serviced by a third truckdriver had been equally divided and assigned to LaPorte and Sanfelippo in addition to other territory covered by their delivery routes. Consequently, the territory now serviced by LaPorte embraced all areas within the city limits of Milwaukee lying south of Vliet and east of 35th Streets, including the lake front extending all the way to South Milwaukee. Territory now assigned to Sanfelippo embraced all areas of the city lying north of Vliet and west of 35th Streets, including deliveries from Re- spondent's branch store at North Avenue and 85th Street. In order to cover their routes these two drivers customarily worked more than 50 hours per week. San- felippo had often complained that it was impractical for him to pick up and make deliveries from the branch store at 85th Street and North Avenue, and Respondent admits that it was a nuisance for him to do so. Following their layoff on June 17, 1959, the Respondent hired two high school students as truckdrivers to replace LaPorte and Sanfelippo for the summer months, until recalled to school in the early part of September. At the same time Respond- ent traded in one of its trucks fora station wagon more suitable for fast deliveries. Thereupon one truck and the station wagon was used for deliveries from the Vliet Street store, and the third truck was sent out to the branch store at 85th Street and North Avenue on a permanent basis to be operated by an employee at that store rather than keep the route of Sanfelippo overloaded. Thus three motor vehicles and three new truckdrivers were utilized to replace two trucks and truckdrivers employed prior to June 17, 1959, in addition to awarding more patronage to United Parcel Service. When the high school students went back to school in September 1959 it became necessary for Respondent to employ replacements for them. Consequently, on or LAABS, INC. 383 about August 28, 1959, Respondent sent a letter by registered mail to Ronald F. LaPorte offering him a position with duties similar to those performed prior to his termination. This letter appears to be an offer of new employment , but not rein- statement to his former position without loss of pay and other rights and privileges of employment. At any rate, LaPorte did not accept the offer. At approximately the same time Respondent also offered reemployment to Jack M. Sanfelippo, and on September 15, 1959, Sanfelippo went back to work as a truckdriver at his former rate of pay but was assigned to a new delivery route on the south side of Milwaukee instead of the north side. Not being able to rehire LaPorte, the Respondent hired another truckdriver to operate a route on the north side, and has also continued the use of its third motor vehicle and driver at the branch store. Concluding Findings From the foregoing findings of fact based upon a preponderance of the evidence, and the entire record in the case, I find that: (1) At all times since June 15, 1959 , the Respondent has refused to recognize and bargain with Bakery Sales Drivers Union, Local No. 344, as the exclusive representative of its employees in the appropriate unit for the purpose of collective bargaining. (2) During the period June 16 through 20, 1959, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by interrogating Ronald F. LaPorte, Jr., Jack M. Sanfelippo, and Balaz Meekesh concerning their affiliation with and concerted activities on behalf of a labor organization, by offering them increased wages and other benefits if they would withdraw from the Union, and assisting Balaz Meekesh in preparing and submitting by registered mail his resignation as a member of Bakery Sales Drivers Union, Local No. 344. (3) On or about June 17, 1959, discriminatorily laid off or discharged it truck- drivers Ronald F LaPorte, Jr., and Jack M. Sanfelippo to discourage membership in a labor organization. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of Respondent set forth in section III , above, occurring in connection with the operations described in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It will be recom- mended that the Respondent, upon request, bargain collectively with Bakery Sales Drivers Union, Local No. 344, as the exclusive representative of all employees in the unit herein found to be appropriate for the purposes of collective bargaining; that it offer to Ronald F. LaPorte, Jr., and Jack M. Sanfelippo immediate and full reinstatement to their former or substantially equivalent positions 2 without prejudice to their seniority and other rights and privileges of employment, dismiss- ing, if necessary, any persons hired to replace them, and make each of them whole for any loss of pay suffered by reason of the discrimination against them by the payment to each of a sum of money equal to the amount he would normally have earned as wages from the date on which his employment was terminated by the Respondent to the date on which Respondent shall offer to him proper reinstate- ment as herein provided, less net earnings,3 to be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 287, and N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. Earnings in one particular quarter shall have no effect upon the backpay liability for any other such period. By reason of the recurrent nature of conduct heretofore engaged in by the Respond- ent, which demonstrates its hostility toward the principles of collective bargaining and the likelihood that such conduct may continue in the future, it will also be recom- mended that Respondent cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. 2 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 8 See Crossett Lumber Company, 8 NLRB 440, 497-498. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Bakery Sales Drivers Union, Local No. 344, is a labor organization within -the meaning of Section 2(5) of the Act. 2. All drivers, order fillers, and shipping and receiving room clerks of Laabs, Inc , at it Milwaukee, Wisconsin, warehouse and stores, excluding office and clerical employees, watchmen, guards, professional employees, supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. Bakery Sales Drivers Union, Local No. 344, has been at all times since June 12, 1959, and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By failing and refusing at all times since June 15, 1959, to bargain with Bakery 'Sales Drivers Union, Local No. 344, as the exclusive bargaining repre- sentative of employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of its employ- ees Ronald W. LaPorte, Jr., and Jack M. Sanfelippo to discourage membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)1(3) of the Act. 6. Derivatively by the aforesaid unfair labor practices, and independently by interrogating its employees Ronald F. LaPorte, Jr., Jack M. Sanfelippo, and Balaz Meekesh concerning their affiliations with a labor organization, by offering induce- ments to LaPorte and Sanfelippo in the form of increased wages and other benefits if they would withdraw from the Union, and by assisting Balaz Meekesh in prepar- ing a letter of withdrawal from the Union, the Respondent has been and is now interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section &(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. [Recommendations omitted from publication.] Continental Bus System, Inc. and Division 1142, Amalgamated Association of Street, Electric Railway & Motor Coach Em- ployees of America, AFL-CIO. Case No. 16-CA-1184. August 1, 1960 DECISION AND ORDER On November 20, 1959, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in any of the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed limited exceptions and a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. 128 NLRB No. 47.