Brown Food Store

BROWN FOOD STORE, CASHWAY FOOD STORE, ETC. 73 of America, AFL-CIO, shall notify the Regional Director for the Twenty-third Region, in writing, whether or not it will refrain from forcing or requiring Abbott Contractors, Inc., by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to its members rather than to employees of Abbott represented by Local Union 14, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. MEMBER FANNING took no part in the consideration of the above Decision and Determination of Dispute. John Brown , Irvin L. Gossett and J . C. West, Jr., d/b/a Brown Food Store; Tootie Schnaubert d/b/a Cashway Food Store; Safeway Food Store, Inc.; Arnold Crabb d/b/a Thrifty Way Food Store; Food Jet, Inc.; and Lenn Jones, Agent of Multi- Employer Bargaining Association and Retail Clerks Inter- national Association, Local 462. Cases Nos. 28-CA-626, 28-CA- 697, 928-CA-6929-1, 28-CA-6929-92, 28-CA-630, and 28-CA-640. May 4, 1962 DECISION AND ORDER On August 23, 1960, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled consolidated proceeding, finding that the Respondents, with the exception of Food Jet, Inc., and the individual Respondent, Lenn Jones, had engaged in and were en- gaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondents, except for the two mentioned above, filed exceptions to the Intermediate Report together with a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner for the reasons stated below. Each of the Respondents operates one or more retail food stores in Carlsbad, New Mexico. They have been bargaining on a multiem- ployer association basis with the Union since 1957 and have had a series of collective-bargaining contracts since that time.' In January 1960, the Employer Association and the Union opened negotiations for a new contract, and by March 2 they had agreed on all terms except the Union's proposal for retroactive wage increases and the effective 1 The relationship between the contracting parties has always been an amicable one, and their contracts have contained union -shop provisions. 137 NLRB No. 6. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date for such increases. On March 2, the Union authorized a strike to implement these demands and notified the Association of this decision. The Association thereupon advised the Union that the employers would consider a strike against any member of the group to be a strike against all. On March 16, the Union struck and picketed Food Jet, one of the five Association members involved here. The other four employers, operating six stores, immediately locked out all of their employees, telling them that they would be returned to work at the conclusion of the strike . Each Respondent thereafter individually attempted to continue operating . Food Jet obtained replacements for its strik- ing employees . The other four employers functioned with the as- sistance of supervisory personnel, relatives of management, and new employees hired on a temporary basis.2 Thus, none of the Respondents who locked out its employees in fact closed down during the period of the lockout. During this period the parties continued their negotiations, and on April 22 they reached a final agreement . Accordingly, the strike and lockouts were terminated and the employers immediately recalled all their employees . Throughout the strike and lockout the Respondents continued in effect all employee benefits in behalf of their regular employees. The Trial Examiner found that the initial lockout by the nonstruck employers was a permissible defensive measure to protect the solidarity of the multiemployer unit under the rule of Buffalo Linen Supply Company.' However, he reasoned that the additional action of those employers in continuing to operate their businesses during the lockout had upset the delicate balancing of interests struck in the Buffalo Linen case and hence was not privileged under that decision . He therefore concluded that by continuing to operate during the period of the lock- out, the nonstruck employers discriminated in regard to the hire and tenure of employment of their locked-out employees to discourage membership in the Union in violation of Section 8 (a) (3) and (1) of the Act and that the lockout was thereby rendered unlawful. We agree with the Trial Examiner's conclusion that the nonstruck em- ployers violated the Act by locking out their employees in the circum- stances involved here. The Buffalo Linen case involved a whipsaw situation where non- struck members of a multiemployer association unit temporarily shut down operations when a union struck an employer member of the association to implement bargaining demands in the multiemployer 2 Each of these employers hired temporary replacements who were told at the time of hiring that their employment was only for the duration of the strike Several of the chain stores also brought in supervisors and clerks from other stores in outlying areas 3 D'.L R B v. Truckdrivers Local 449, International Brotherhood of Teamsters, etc (Buffalo Linen Supply Company), 353 U S. 87, affg. 109 NLRB 447. BROWN FOOD STORE, CASHWAY FOOD STORE, ETC. 75 unit. Departing from a long line of its own precedents, the Board there held in effect that the resulting lockout was a legitimate defensive means of protecting the integrity of the multiemployer bargaining unit against the disintegration threatened by the whipsaw strike. The Supreme Court, in affirming the Board's decision, observed that the "ultimate problem is the balancing of the conflicting legitimate inter- ests [of employees and employers]" and that the "difficult and delicate responsibility" for striking that balance was committed primarily to the Board. While the present case has its similarity to the Buffalo Linen situa- tion, there is a critical difference between the two cases. The under- lying rationale of Buffalo Linen was that a shutdown was deemed appropriate to preserve the established unit, and that the lockout incidental to such shutdown was not unlawful. In the instant case, however, there was no shutdown to protect a bargaining unit, for Respondents continued to operate by hiring replacements after lock- ing out their employees. Therefore, whatever defensive validity there may be for shutting down in the whipsaw context, such consideration is inapposite where, as here, the employers do not shut down. A lockout, needless to say, is a drastic form of discrimination and its use in the present case far exceeds the justification for the otherwise discriminatory measure endorsed in Buffalo Linen. That the non- struck Respondents, in replacing their employees, may have acted in self-interest rather than specifically to discourage union membership, or the Union's strike at Food Jet, does not negate their unlawful in- tent. The Supreme Court in its recent Local 357' opinion thus took the occasion to reiterate its holding in Radio Officers 5 that "[s]ome conduct may by its very nature contain the implications of the required intent [where] the natural forseeable consequences of [the] ac- tions . . . warrant the inference." Cf. Gaynor News Company, Inc. v. N.L.R.B., 347 U.S. 17, 37; Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 795. We conclude, in balancing the conflicting interests of the employees and the Respondents under the particular circumstances of this case, that the nonstruck Respondents were not justified in replacing their employees because of a strike called by the Union against Respondent Food Jet. Locking out employees in order to replace them with other workers may hardly be viewed as equivalent to the defensive action of a shutdown to preserve the solidarity of the Association unit. On the contrary, since the Respondents were continuing to operate and since no reason appears why they could not have continued to operate with their own employees during the strike, this constitutes a tem- It Local 357, International Brotherhood of Teamsters , etc v N L R B , 365 U.S 667, 675-676. 6 Radio Officers' Union of the Commercial Telegraphers Union, AFL (A H. Bull Steam- ship Company ) v. N.LR.B., 347 U.S. 17, 45. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porary replacement of employees solely because they were engaging in protected concerted activity, i.e., striking against Food Jet. With all respect, we think our dissenting brethren, in equating Food Jet's right to replace strikers with the asserted right of Respondents to operate with replacements during the lockout, are overlooking a significant difference in the respective positions of Food Jet and Respondents, and are also overlooking the basic considerations which give rise to the right to lockout. It must be remembered that the statutory protection accorded to strikers is diminished under the Mackay case,' to the extent that an employer is free to replace eco- nomic strikers, and that the reason for this impairment or diminution of the protection is the need to accommodate the employer's legiti- mate conflicting interest in maintaining production. As applied to this case, Food Jet is free to operate with replacements, because only by hiring such replacements can it operate at all; its regular employees are unwilling to work at its terms. But the other members of the employer unit are not required to resort to replacements; their regular employees are willing to work at the employers' terms. It is, of course, true that under Buffalo Linen, Respondents are not required to operate and await a whipsawing strike. That case, like Mackay, permits an abridgement or diminution of the statutory pro- tection, and holds that where a union strikes one member of a bar- gaining unit as part of a whipsawing operation, the other members for the purpose of protecting the bargaining unit may lawfully shut down and lock out the employees. The purpose of this exception to the rule against lockouts for union activity is to prevent unfair advantage being taken of the members of an employer unit. If the union could successfully strike one at a time, the other members of the employer unit would in ordinary circumstances continue operating to the severe economic damage of the struck member, and each in turn could be driven to the wall in the "whipsaw." For this reason, if one member is shut down by a strike, the others may also shut down, but they are not required to do so. If the struck member operates through replace- ments, no economic necessity exists for the other members shutting down. If in those circumstances they resort to a lockout and hire replacements, it may be reasonably inferred that they do so not to protect the integrity of the employer unit, but for the purpose of in- hibiting a lawful strike. In short, the lockout in these circumstances ceases to be "defensive" and becomes "retaliatory." Buffalo Linen Supply Company; et al., 109 NLRB 447, 448, quoted at 353 U.S. 87, 91. We find, therefore, that the Respondents, other than Food Jet, in- terfered with, restrained, and coerced employees in the exercise of their right to bargain collectively and to strike in furtherance of economic demands, and violated Section 8(a) (1) of the Act by re- 6 N.L R B v. Mackay Radio & Telegraph Co, 304 U.S. 333. BROWN FOOD STORE, CASHWAY FOOD STORE, ETC. 77 placing them while they were still willing to work and were not on strike. We also find that such conduct constituted unlawful discrim- ination within the meaning of Section 8(a) (3) of the Act, in dis- couraging employees from supporting the Union and from engaging in concerted activities for mutual aid and protection 7 ORDER The Board adopts the Recommendations of the Trial Examiner with the modification that provision 2(d) read : "Notify Regional Director for the Twenty-eighth Region, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." 8 MEMBERS RODGERS and FANNING, dissenting : The majority acknowledges that members of an employer associa- tion, faced with the threat of successive whipsaw strikes, may lock out their employees in accordance with the Supreme Court's explicit holding in Buffalo Linen, supra, but finds they may not thereafter attempt to operate with temporary replacements, even though no unlawful motivation is alleged or shown. We believe this decision is illogical and not warranted by either the statute or the realities of multiemployer bargaining. As a matter of statutory interpretation, we do not believe the secur- ing of temporary replacements in this situation can be held to have unlawfully discouraged union membership. Granting that the em- ployers' initial lockout was permissible, as the Supreme Court has held, it seems clear that temporarily replacing the employees for the duration of the strike did not further affect their employment status or union adherence, particularly since the employees in this case were expressly told by Respondents they would have their jobs at the end of the strike.' The discrimination, if any, took place at the point of the initial lockout, and the Supreme Court has held this to be priv- ileged in the "whipsaw" situation. How can the performance of a nondiscriminatory act make unlawful something which was thereto- fore privileged? 10 7 See Utah Plumbing Contractors Association v. NLRB., 294 F. 2d 165 (CA. 10) , Quaker State Oil Refining Corporation v. NL.R.B, 270 F 2d 40 ( C.A. 3), cert denied 361 U S. 917 . Compare. Betts Cadillac, Olds, Inc, 96 NLRB 268 ; International Shoe Company, 93 NLRB 907; Duluth Bottling Association, et al , 48 NLRB 1335. "In the notices attached to the Inteimediate Report as Appendixes, the words "A Deci- sion and Order" are hereby substituted for the words "The Recommendations of a Trial Examiner " In the event that this Order is enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 9 All employees were retained during the lockout on company records as employees, and continued to receive vacation, insurance , and other company benefits All were returned to their jobs , and the replacements discharged , at the end of the strike and lockout 10 Our colleagues in the majority imply that we have viewed the lockout here, accom- panied by temporary replacement of the locked-out employees, as "equivalent" to the 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, the majority appears to overlook the rationale behind the Supreme Court's Buffalo Linen decision. It was therein stated that "the preservation of the integrity of the multiemployer bargain- ing unit" was sufficient justification for a lockout in the "whipsaw" situation. Thus, members of an association could require that all em- ployers be struck, if any; partial-unit strikes were subject to being made full-unit strikes by the employer's lockout action. Granting this, it would seem to follow that temporary replacement of the employees in strike status was well within the employers' rights under Mackay." Unlike other possible forms of employer action,12 temporary replace- ment is less, not more, than the right of permanent replacement granted in Mackay. The inequity of the majority's holding becomes evident when con- trasted with its holding as to Food Jet, the first employer struck. Food Jet attempted to obtain replacements and is found not to have violated the Act; the other four employers did the same thing, but are found to have acted unlawfully. We can see no justification for thus treating the members of the Association differently; in our view, it is not consistent with the Supreme Court's concept of preserving the integrity of the associationwide unit, and unfairly handicaps those employers subject to the threatened whipsaw tactics. They must either wait to be picked off one at a time by the "whipsawing" union, or close down completely and cease operating, contrary to their rights under Mackay. It is misleading to say, as the majority does, that regular employees of the nonstruck members are "willing to work at the employers' terms." These employees are willing only to receive wages while their brethren in the rest of the associationwide unit are exerting whipsaw pressure on one employer to gain benefits that will ultimately accrue to all employees in the associationwide unit, including those here locked out. The choice the majority is giving the nonstruck em- ployers-to ignore the "whipsaw" or close down completely-renders "defensive" action of a complete shutdown On the contrary , we have not made such a characterization one way or the other , because we do not think the question of "equiva- lence" is relevant The portion of the statute here involved speaks of discrimination' to find a violation of Section S(a) (3), some form of discrimination must be found The only conceivable discriminatory action in the present case , the associationwide lockout, has been found privileged by the Supreme Court To "infer" unlawful discrimination, as does the majority , from the performance of the further act of temporary replacement, which does not in itself discriminate against employees , causes us to suspect that the majority's real quarrel is with the Supreme Court's holding in Buffalo Linen that the discrimination inherent in the original lockout was privileged In our view, the Supreme Court's decision in Radio Officers', supra, is not applicable where there is discrimination , intent may be inferred , as in Radio Officers', but here there is no discrimination , other than that found privileged by the Supreme Court 11 N L R B. v Mackay Radio d Telegraph Co, 304 U S. 333, where it was held that any employer could lawfully hire permanent replacements during an economic strike in order to continue his business 12 See, e .g, Erie Resistor Corporation, 132 NLRB 621 , where the employer unlawfully granted superseniority to returning strikers and strike replacements. BROWN FOOD STORE, CASHWAY FOOD STORE, ETC. 79 largely illusory the right of lockout given them by the Supreme Court in Buffalo Linen. We would reverse the Trial Examiner and dismiss the complaint. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter was tried before Wallace E. Royster, the duly designated Trial Exam- iner, in Carlsbad, New Mexico, on June 21 and 22, 1960, upon the complaint of the General Counsel, based upon charges duly filed by Retail Clerks International Asso- ciation, Local 462, herein called the Union, alleging that John Brown, Irvin L. Gos- sett and J. C. West, Jr., d/b/a Brown Food Store, herein called Respondent Brown; Tootie Schnaubert d/b/a Cashway Food Store, herein called Respondent Cash- way; Safeway Food Store, Inc., herein called Respondent Safeway, Arnold Crabb d/b/a Thrifty Way Food Store, herein called Respondent Thrifty; Food Jet, Inc., herein called Respondent Food Jet; and Lenn Jones, agent of Multi-Employer Bargaining Association, herein called Respondent Jones, jointly and severally had engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. In essence, complaint is made that the Respondents locked out the employees listed in Appendix A attached hereto on March 16, 1960, and thereafter failed promptly to reinstate certain of them. It is further alleged as explicated at the hearing that Re- spondent Cashway by granting merit increases to employees failed in its obligation to bargain with the Union. Briefs have been received from counsel. Upon the entire record in the case, and from my observations of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS Each of the Respondents operates a retail food market or markets in Carlsbad, New Mexico, and each, during the 12-month period preceding the issuance of the complaint, did a gross business in excess of $500,000. Each, during the period men- tioned, received shipments from points outside the State of New Mexico in amounts exceeding $50,000. I find that the business of each Respondent is in and affects commerce within the meaning of Section 2(6) and (7) of the Act. H. THE ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of each Respondent and for a substantial period of time prior to the events about to be related was and now is the exclusive bargaining representative of all employees other than meat department employees of the Respondents in a single unit encompassing all such employees. III. THE UNFAIR LABOR PRACTICES After the expiration of a bargaining agreement running between the Union and the Respondents, negotiations looking toward a new contract began in January 1960. Respondent Jones was the authorized spokesman for all Respondents. On March 2 the Union advised the Respondents that a strike vote had been taken and a strike authorized. The Respondents told the Union on this occasion that they would con- sider a strike against any of them to be a strike against all.' On the morning of March 16 the Union established pickets at the entrances to Respondent Food Jet carrying signs reading, "On Strike, Local 462 Retail Clerks." None of the employ- ees of Food Jet in the bargaining unit reported for work. In consequence the em- ployees in the bargaining unit represented by the Union at all of the Respond- ents were locked out and remained so until the strike was settled on April 22. Assertedly, because of a belief that three assistant managers, Walter Titus, Tony Lawson, and Milton Moore were supervisory employees without the coverage of the bargaining unit, Respondent Thrifty Way permitted them to work through March 17. i Upon agreement of counsel, page 107 of the transcript is corrected by inserting follow- ing the word "that" on line 17 the following, "they would consider a strike against any of them to be a strike against all of them." 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon advice that these three were considered to be in the unit they were then locked out and not again permitted to work until the end of the strike. The evidence is convincing and not seriously controverted that the Respondents were determined to combat the attempt of the Union "to pick them off one at a time" by regarding the strike against Food Jet as a strike against all. It is asserted that the Respondents were thus taking defensive action to preserve their bargaining position and that their conduct under the holding in Buffalo Linen 2 is not unlawful. In the cited case, the Board held that a strike against one of the employers in a multiemployer unit was an exertion of economic pressure "to atomize the employer solidarity which is the fundamental aim of the multi-employer bargaining relation- ship." Thus, the Board reasoned, the action of the nonstruck employers in shutting their plants was "defensive and privileged in nature rather than retaliatory and un- lawful." Approving the Board's holding, the Supreme Court said, "in the circum- stances of this case the Board correctly balanced the conflicting interests in deciding that a temporary lockout to preserve the multi-employer bargaining basis from the disintegration threatened by the Union's strike action was lawful." Explication of the status of the locked-out employees is to be found neither in the decision of the Board nor in the opinion of the Supreme Court. They appear to have remained employees for emphasis is placed upon the fact that the shutdowns occa- sioning the lockouts were temporary. All employees were returned to their jobs. Although no such finding is made by the Board or the court the rationale of the decision seems to rest in part upon the assumption that when the employees of one employer struck, the employees of the other employers in the unit also become strikers and that the lockout did no more than recognize this to be a fact. Coming back to the case at hand, each of the Respondents attempted to lessen the economic effect of the lockout by operating its market.3 Respondent Food Jet, being faced with an economic strike, was wholly free to hire replacements on any basis it found expedient. The other Respondents hired employees on a temporary basis, transferred personnel from other operations, and used kin of managers or supervisors in order to keep their businesses open. The General Counsel contends that Buffalo Linen permits nothing beyond a shutdown following a lockout; that an attempt by an employer to operate in such circumstances is unlawful. An obvious, but not necessarily dispositive, answer to this contention is that if the employers have a right to lock out they should not be forced to accept a penalty of lost custom for exercising it. But the law is settled that a struck employer (and here I am treating the locked- out employees as strikers) may not replace a striker, even temporarily, if the striker is offering unconditionally to return to work. Here the locked-out employees had presented themselves to their employers ready to work and had been turned away Having refused the offer of these employees to work, may the employers give the work, even temporarily, to others? In Buffalo Linen the Supreme Court saw the problem of the defensive lockout as one involving "the balancing of the conflicting legitimate interests" of the employers in preserving their bargaining association and of the employees in exercising their right to strike. The Court thus has equated a "legitimate" interest with a protected one. That the Court intended this holding as a generalization is to be doubted. It seems unlikely that an employer in preservation of his "legitimate" interest in main- taining a wage scale could lawfully lock out his employees even upon a well-founded belief that they would strike at a time unpropitious to the employer to obtain more. It is clear that a lockout to counteract the exertion of economic pressure by a union designed to "atomize" employer solidarity is lawful if it serves to bring about a balance of "conflicting interests." The lockout here, I am convinced and find, satisfies that criterion. But a lockout is still a discrimination affecting tenure of em- ployment and necessarily discourages membership in a labor organization. The purpose of a labor organization, in part at least, is to strengthen the bargaining posi- tion of employees by presenting a united front to an employer backed by the right to strike. If strike action cannot be taken within an area and at a time considered most favorable to the interest of the employees the value of the labor organization is diminished and the attraction of membership lessened. But such discrimination is not unlawful, Buffalo Linen holds, if it does no more than bring about a balance of "conflicting interests." Applying the rationale of Buffalo Linen to the facts of this case, the lockout by the Respondents other than Food Jet brought about such a balance and was not un- lawful. But the Respondents continued their operations as the employers com- 2 Buffalo Linen Supply Company, et al, 109 NLRB 447, enfd 353 US 87 3 Safeway closed one of its Carlsbad markets and operated the other dining the lock- out period BROWN FOOD STORE , CASHWAY FOOD STORE , ETC. 81 plained of in Buffalo Linen did not. The strike against Food Jet was designed to deprive Food Jet of ,trade and to force Food Jet and the other Respondents to accept the bargaining demands of the Union. The countering lockout deprived the locked- out employees of earnings and lessened their ability to hold out for the terms desired by the Union. Thus the "balance" envisioned by the Supreme Court in the cited case was struck. Was it disturbed by the action of the Respondents in continuing to operate? I think clearly that it was. By keeping their business establishments open, the Respondents were enabled to make earnings or at least to minimize losses and thus were better positioned to withstand the strike that the Union had begun and more firmly to adhere to the bargaining position that they had taken. As the balance spoken of in Buffalo Linen was lost by the added weight thrown into the pan by the Respondents, thus was lost, I find, their immunity from the Act's prohibi- tions against discrimination. Because the Respondents, other than Food Jet, con- tinued to operate during the period of the lockout, I find that they discriminated in regard to the hire and tenure of employment of their locked-out employees to dis- courage membership in the Union and that the Respondent Employers, other than Food Jet, thus violated Section 8 (a) (1) and (3) of the Act. In accordance with past practice, Respondent Cashway, in February 1960, gave two of its employees merit increases. Cashway had routinely taken such action in respect to its employees on a number of occasions over the years and had never been requested to bargain with the Union about it. The complaint alleges that the Respondents thus refused to bargain with the Union. Merit increases are a subject for mandatory bargaining and the cases so holding are numerous. All that have come to my attention, however, involve a request for bargaining on the part of a union and a denial that such matters are within the scope of bargaining on the part of the employer. Here, Cashway was following a practice of years' standing without notice that objection on the part of the Union existed. I do not understand that Cashway has ever refused to bargain about merit increases. I find that no violation of the Act is presented in the circumstances. Because of my disposition of the central question raised by the complaint there is no need to consider whether any Respondent was remiss in returning the locked-out employees to work after the strike settlement. All Respondents 4 other than Food Jet will be required to make the locked-out employees whole for loss of earnings for the period each employee was thus prevented from working. I find that Food Jet has not violated the Act in any particular. As a struck employer it was of course free to continue operations as best it could. I do not find evidence to establish that Food Jet combined with the other Respondents to continue operations after locking out employees and thus perhaps to have participated in the commission of the unfair labor practice found above. It seems probable that in the nature of things the agreement among the Respondents did not go beyond an under- taking to lock out in the event one of them was struck. There is no evidence of cooperation among them in manning the stores where the lockouts took place. I will recommend the dismissal of the complaint as to Food Jet. The only unfair labor practice found is that connected with continued operations while employees were locked out. Respondent Jones participated in this, I find, only as an employee of Respondent Safeway. I find no unfair labor practice to have been committed by Respondent Jones as an individual and will recommend the dismissal of the complaint as to him. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection 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 to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents other than Food Jet and Jones have engaged in unfair labor practices , it will be recommended that they cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Having found that certain Respondents have discriminatorily locked out em- ployees, it will be recommended that each such Respondent make its employees 4This includes Respondent Safeway only in respect to its store i#62 I find no viola- tion in connection with its other Carlsbad market, #43, which did not operate during the lockout period. 649856-63-vol 13 7-7 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who were the subject of this discrimination whole for any loss of earnings suffered during the period of the lockout by a payment to each of a sum of money equal to that which each would have earned for the period that the market, in which he was prevented from working, operated on and after March 16, 1960, to the date when he was brought back to work . Loss of pay shall be computed on a quarterly basis in the manner set forth in F. W. Woolworth Conipany ,5 with a deduction for net earnings during that period . As all of the locked-out employees have been rein- stated to their jobs and as there is no allegation that any employee was discriminatorily given a different job upon his return , no requirement of reinstatement will be made.6 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. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By locking out employees the Respondents other than Food Jet and Jones have discouraged membership in the Union and have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By the lockout the Respondents other than Food Jet and Jones have interfered with, restrained , and coerced employees in the exercise of rights guaranteed in Sec- tion 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The evidence does not establish any violation of the Act in respect to Food Jet or Jones. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that John Brown , Irvin L. Gossett and J. C. West, Jr., d/b/a Brown Food Store; Tootie Schnaubert d/b/a Cashway Food Store; Safeway Food Store, Inc.; and Arnold Crabb d/b/a Thrifty Way Food Store, all of Carlsbad, New Mexico, the officers, agents, successors, and assigns of each, shall: 1. Cease and desist from: (a) Discouraging membership in the Union by locking out their employees to improve their bargaining position while continuing to operate their establishments. (b) In any like or similar manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization , to form, join, or assist Retail Clerks International Association, Local 462, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activity 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 Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Each Respondent shall make whole its employees who were prevented from working for it for the period of operations during the lockout in the manner set forth in the section of the report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all payroll records, social security payment records, time- cards, personnel records and reports, and all other such data convenient for a calculation of the amount of backpay due under the terms of this recommendation. (c) Each said Respondent shall post at its establishment in Carlsbad, New Mexico, copies of the appropriate notice attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region , shall, after being duly signed by authorized representatives , be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other materials. 6 90 NLRB 289 O Evidence was taken showing that two employees were returned to jobs somewhat dif- ferent from those held before the lockout but this was in support of the General Counsel's theory of a discriminatory lockout only BROWN FOOD STORE, CASHWAY FOOD STORE, ETC. 83 (d) Each shall notify the Regional Director for the Sixteenth Region, in writing, within 20 days from the date of this Intermediate Report and Recommended Order, what steps it has taken in compliance. It is further recommended that unless on or before 20 days from the date of re- ceipt of this Intermediate Report and Recommended Order each of the Respondents notifies the said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring such Respondent to take that action. APPENDIX A Brown Food Store: Juanita Blanchard Jerry Brooks Lupe Biscaine Bernice Turnbow Food Jet: Manuel Biscaino N. G. Deanda Margerite Bridges Marjorie Hoyt Joe Briones Ray Starment Larry Brodie Cashway Food Store: Bobby Barrs Beverly Fletcher Janie Miller Charles Blackburn Julian Fletcher Wayne Madrall J. H. Carbell Charles Healer O. J. Smith Dwayne Compton Bobby Johnson Weldon Stafford Jo Nell Cox Alfredo Lira Dorothy Titus Charles Davis Jesus Lira Gary Watkins Thrifty Way Food Store: Addie Black Terrell McBee Eddie Razo Belle Coalson Militon Moore Herschel] Skaggs Robert Cummings Vonda Narramore Walter Titus Wayne Davis Roy Navarrette Joe Vasquez Allene Eggleston John Pirtle Mike Wiley Thomas Lawson Doug Pryor Safeway Food Store, Inc.: Store #62: Store #43: Ronald Bartholomew Leo Blackburn Ray Bradshaw Reuben Carrasco Harold G. Cannon Virgie Hartley Kenneth Chapman Tom Hernandez Juanita Durham John Julianna Grady Enger Tony Matta Vance Garner Wanda McClary Robert Hamblin Timo Navarrette Johnny Kimberling Carl Smith Raymond Methola Jim Wilson Mary Payte Dale Peden Glen Pike Lorene Sanders Allan Shahan David Tuttle APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL make whole the employees locked out during the period on and after March 16, 1960, and until they were reinstated for any loss of pay suf- fered at a time when this market was open for business. The employees to be made whole are : Juanita Blanchard, Lupe Biscaine, Jerry Brooks, and Bernice Turnbow. WE WILL NOT by means of unlawful lockout or in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist Retail Clerks International Association, Local 462, or any other labor organization, to bargain 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, 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 Section 8(a)(3) of the Act. JOHN BROWN, IRVIN L. GossETT AND J. C. WEST, JR., D/B/A BROWN FOOD STORE, 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. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, I hereby notify my employees that: I WILL make whole the employees locked out during the period on and after March 16, 1960, and until they were reinstated for any loss of pay suffered at a time when this market was open for business. The employees to be made whole are: Bobby Barrs, Charles Blackburn, J. H. Carbell, Dwayne Compton, Jo Nell Cox, Charles Davis, Beverly Fletcher, Julian Fletcher, Charles Healer, Bobby Johnson, Alfredo Lira, Jesus Lira, Janie Miller, Wayne Madrall, 0. J. Smith, Weldon Stafford, Dorothy Titus, and Gary Watkins. I WILL NOT by means of unlawful lockout or in any like or similar manner interfere with, restrain, or coerce my employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Retail Clerks International Association, Local 462, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, 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 Section 8(a)(3) of the Act. TOOTIE SCHNAUBERT D/B/A CASHWAY FOOD STORES, 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. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner 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 make whole the employees locked out during the period on and after March 16, 1960, and until they were reinstated for any loss of pay suffered at a time when this market was open for business. The employees to be made whole are: Ronald Bartholomew, Ray Bradshaw, Harold G. Cannon, Kenneth Chapman, Juanita Durham, Grady Enger, Vance Garner, Robert Hamblin, Johnny Kimberling, Raymond Methola, Mary Payte, Dale Peden, Glen Pike, Lorene Sanders, Allan Shahan, and David Tuttle. WE WILL NOT by means of unlawful lockout or in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Retail Clerks International Association, Local 462, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the AERONAUTICAL AND INSTRUMENT DIVISION, ETC. 85 extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. SAFEWAY FOOD STORE, INC., STORE #62, 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. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, I hereby notify my employees that: I WILL make whole the employees locked out during the period on and after March 16, 1960, and until they were reinstated for any loss of pay suffered at a time when this market was open for business. The employees to be made whole are: Addie Black, Belle Coalson, Robert Cummings, Wayne Davis, Allene Eggleston, Thomas Lawson, Terrell McBee, Milton Moore, Vonda Narramore, Roy Navarrette, John Pirtle, Doug Pryor, Eddie Razo, Herschell Skaggs, Walter Titus, Joe Vasquez, and Mike Wiley. I WILL NOT by means of unlawful lockout or in any like or similar manner interfere with, restrain, or coerce my employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Retail Clerks International Association, Local 462, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection 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 Section 8 (a) (3) of the Act. ARNOLD CRABB D/B/A THRIFTY WAY FOOD STORE, 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 Aeronautical and Instrument Division , Robertshaw-Fulton Con- trols Company and International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, UAW-AFL-CIO, Petitioner. Case No. 21-RC-7176. May 4, 1962 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before I. W. Ein, a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provsions 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 [Chairman McCulloch and Members Rodgers and Brown]. 137 NLRB No. 8.