Riverside Wholesale Distributors

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mayer B. Cohen, Bernard Cohen and Peary Cohen, d/b/a River- side Wholesale Distributors and Local 597, Chauffeurs, Team- sters, Warehousemen & Helpers, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 1-CA-3863. May 14, 1963 DECISION AND ORDER On February 12, 1963, Trial Examiner Benjamin B. Lipton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations,' as modified herein. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modifications : 1. The following paragraph shall be substituted for paragraph 2 (a) of the Recommended Order : (a) Reinstitute its ticketing operation at its place of business in Burlington, Vermont, and offer to Mary Piche, Theresa Francis, i Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three -member panel [Chairman McCulloch and Members Fanning and Brown]. 2 The General Counsel excepts to the Trial Examiner's failure to order the reinstatement of the discriminatees and to his failure to affirmatively order the Respondent to resume its ticketing operation . We find merit in these exceptions . While the Respondent did resume its ticketing operation sometime in August 1962 , it apparently did so on a limited or temporary basis , in order to perform the marking for a new store opening , and reemployed four of the five discriminatees ( Stoddert, Cruickshank , and Lillian and Theresa Francis) on a similar temporary basis . This cannot be regarded as a restoration to the status quo ante We have rejected Respondent 's contention that the marking operation always existed solely for marking merchandise to be used in the initial stocking of new stores. We have found , instead, that only 20 percent of its marking operation involved such merchandise, and that 80 percent involved merchandise sold through old stores and inde- pendent outlets on a continuing and permanent basis. In these circumstances , and con- sidering also Respondent's prior unfair labor practices found by the Board, we shall modify the Recommended Order of the Trial Examiner and affirmatively order the re- instatement of the ticketing operation on a permanent basis, i.e., to the status quo as it existed prior to May 25, 1962, along with the reinstatement of all the discriminatees. Town & Country Manufacturing Company, Inc., et al, 136 NLRB 1022, enfd . 316 F. 2d 846 (C A. 5). 142 NLRB No. 72. RIVERSIDE WHOLESALE DISTRIBUTORS 581 Gloria Stodd,ert, Olivia Cruickshank, and Lillian Francis immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by them in the manner set forth in the section of the Intermediate Report entitled "The Remedy" as modified by the Decision and Order herein. 2. The following paragraph shall be substituted for paragraph 2(b) of the Recommended Order. (b) Upon request, bargain collectively with the above-named Union as the exclusive representative of all the employees in the appropriate unit in respect to rates of pay, wages, hours of employ- ment, and other conditions of employment , and embody any under- standing reached in a signed agreement. 3. Substitute in the notice for the last paragraph beginning "WE WILL make whole" . . . the following paragraph : WE WILL reinstitute our ticketing operation at Burlington, Vermont, and we will offer to the employees named below im- mediate and full reinstatement to their former or substantially equivalent positions and make them whole for any loss of earn- ings by reason of the discrimination against them. Theresa Francis Gloria Stoddert Mary Piche Olivia Cruickshank Lillian Francis 4. The following note shall be added to the bottom of the notice immediately below the signature line : NoTE.-We will notify any of the above -named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act of 1948 , as amended, after discharge from the Armed Forces. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, which was heard before Trial Examiner Benjamin B. Lipton in Burlington , Vermont, on October 16, 1962 , involves allegations by the General -Counsel that the Respondent violated Section 8(a) (1), (3), and (5) of the National Labor Relations Act.' All parties were represented and participated in the hearing, and they waived oral argument on the record . The General Counsel and the Respondent filed briefs which have been duly considered. Upon the entire record in the case,3 and from my observation of the witnesses,3 I make the following: 1 The charge was filed and served on June 25 , 1962, and the General Counsel's complaint thereon was issued on October 31, 1962. 2 On the Trial Examiner's own motion, the record transcript is corrected at page 21, line 4, to read "And" instead of "In." 8 All credibility findings herein are based , at least in part, on the demeanor of the wit- =nesses at the hearing. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is engaged at two locations, "Main Street" and "Chase Mills," in Burlington, Vermont, in the distribution of paper goods, household items, sporting goods, toys, and related products. During the year preceding issuance of the com- plaint, Respondent shipped goods directly in interstate commerce valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 597, Chauffeurs, Teamsters, Warehousemen & Helpers, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The prior case On January 30, 1962,4 the Board issued a Decision and Order against the instant Respondent,5 finding independent violations of Section 8(a) (1), (3), and (5) of the Act. Those unfair labor practices, which occurred in June 1961 during the time the Union was organizing Respondent's 18 employees in Burlington, Vermont, consisted of (a) various acts of interference, restraint, and coercion of employees, (b) the discriminatory discharges of Theresa Francis and Olivia Cruickshank (who worked as "ticket girls" and are again involved in the present case) and John Cruick- shank, and (c) a refusal to bargain with the Union, demonstrated as the majority representative of Respondent's employees in an appropriate unit 6 The Board ordered that Respondent cease and desist from its unlawful conduct, reinstate the unlawfully discharged employees, make backpay restitution, and, upon request, bargain collectively with the Union. Prior to the Board's Order, Theresa Francis had been restored to her job; on March 5 Olivia Cruickshank was reinstated; and on May 18 Respondent submitted to the Board backpay checks which were there- after turned over to the three discharged employees. The Board's earlier findings are properly considered evidence relevant in the present case with respect to questions of Respondent's union animus and discrimina- tory motivation, and generally these findings form the background against which Respondent's further violations alleged herein must be evaluated? B. The pleadings The General Counsel alleges in substance that on May 25, Respondent unilaterally terminated its ticketing operation; removed, subcontracted, and transferred the same out of the appropriate unit (to be performed instead at certain retail stores which it controls) ; and discharged five named "ticket girls" who had theretofore performed the ticketing operation. A dual theory is advanced by the General Counsel,8 in substance, that: (1) Respondent engaged in the foregoing conduct for unlawful reasons, thereby discouraging membership in the Union in violation of Section 8(a)(3); and (2) Respondent had engaged in a failure to bargain in violation of Section 8(a)(5), by unilaterally undertaking the described acts without notifying, consulting, or bargaining with the Union, and that the remedy therefor is the same as in the case of a Section 8(a)(3) violation, namely, restoration of the ticketing operation and reinstatement of the discharged ticket girls with backpay. Respondent in its answer, as amended at the hearing, indicates its acceptance of the Board's Decision and Order and therefore concedes that the Union is the majority representative of Respondent's employees in an appropriate unit, which includes the "ticket girls," and that it is obligated to bargain collectively with the Union. However, it denies commission of the alleged unfair labor practices, and asserts as an affirmative 4 All dates are in the year 1962 unless otherwise specified. 5135 NLRB 686. 6 Documentary evidence established that 13 of the 18 employees In the unit signed cards authorizing the Union to represent them. 7N.L.R.B. v. Reed c6 Prince Manufacturing Company, 205 F. 2d 131, 139 (C.A. 1), cert. denied 346 U.S. 887; E. V. Prentice Machine Works, Inc., 120 NLRB 1691. 8 As clarified at the hearing. RIVERSIDE WHOLESALE DISTRIBUTORS 583 defense, in substance, that: (a) it has acted to achieve compliance with the Board's Order; (b) before terminating its ticketing operation, its intention to discontinue the operation and the reasons therefor were fully explained to the Union, which made no objection "whatever" to the discontinuance; (c) the discontinuance was not a unilateral act on its part but was effected with the agreement of the Union; (d) the ticketing operation is a function "normally performed by the retail dealers who are purchasers from the Respondent and the operation is most efficiently, economically, and satisfactorily done by such persons"; and (e) the Respondent has not sub- contracted the ticketing operation, or any part thereof, but has "completely terminated all connection with this operation" and had done so "with the concurrence" of the Union. C. The evidence In February or March, after the Board's Decision and Order, the Union requested Respondent to enter into collective-bargaining negotiations. Thereafter, the parties were in communication with each other in an effort to set up a bargaining conference, but were unable to meet until May 31.9 About 3:15 p.m. on May 25, Frederick Dykeman, the Union's secretary-treasurer, received a telephone call from A. Pearley Feen, Respondent's attorney. Feen in- formed Dykeman that Respondent was going to lay off the ticket girls that afternoon and wanted to know what the Union was going to do about it. Dykeman replied that he was not prepared to say what the Union would do, that when the Union found out the circumstances of the layoff it would then have an answer. At the end of that workday, May 25, five of the six ticket girls in the department were terminated.io They received their pay together wtih a written notice that they were being "laid off" because Respondent was "temporarily discontinuing the ticket operation." The employees had no prior notice or indication of any kind of an impending "layoff." Beginning on May 31, the record shows four collective-bargaining sessions between the parties, all attended by Attorneys A. Pearley Feen and Samuel H. Rothman for the Respondent, and by Secretary-Treasurer Dykeman and Business Agent Charles Ray- mond for the Union. Only limited discussion was had concerning the ticket girls. At the first meeting, Rothman brought up the subject of the ticket girls and asked what the Union's intentions were in that regard. Raymond then merely raised a question concerning Respondent's retention of one of the ticket girls (presumably Johnson, who was given office work) which was not in accord with seniority, and Rothman said, "Well, if you're going to make an argument about this particular girl, we'll drop her and there won't by any discussion about it." At the second meeting, on June 6, Mayer B. Cohen, partner and operating head of Respondent, was also present. For Respondent it was stated that it was not doing the ticketing work any more, and that it was not its job as a wholesaler to mark goods for other retail companies. At this time, Respondent's position was that since it had no ticket girls, there was no reason to include them under the terms of the contract. Within a week, at the third meeting, the parties agreed that if Respondent resumed the operation, the ticket girls would be included. On June 15, the parties held their final meeting, and having no success in reaching a contract, further negotiations were ceased. In addition, at unspecified times, Business Agent Raymond had one meeting with Attorneys Feen and Rothman and two other meetings just with Feen. Raymond testified without contradiction that at his last meeting with Feen he indicated that the Union was going to complain to the Board that the ticket girls were illegally dis- charged, and Feen replied, "What do you want to get the Board here for, to put us out of business?" ii Respondent does busines with 1,000 to 1,500 retail customers. The three partners constituting Respondent are majority stockholders and effectively control a number of retail establishments. It is evident, and virtually admitted, that Respondent is the alter ego of these separate companies, which are sometimes referred to in the record as Respondent's retail "outlets." A stipulation in evidence shows that, as of May 25, I It does not appear, and there is no allegation, that Respondent refused to meet with the Union. "Those terminated were Theresa Francis, Mary Plebe, Gloria Stoddert, Olivia Cruick- shank, and Lillian Francis. The sixth ticket girl, Claire Johnson, was apparently assigned to work in the office. 11 I do not credit the testimony of Mayer B. Cohen that he told the Union in June that the ticket girls were "laid off" on May 25 because Respondent had no new openings. Cohen is generally discredited, infra That he made such a statement is uncorroborated by Dykeman and Raymond, whose testimony is substantially unrefuted as to what was said at the meetings. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there were in existence nine of Respondent's own retail outlets which Respondent had opened on various dates, as follows: 12 one store in 1957; three in 1958; one in 1959; two in 1960; and two in 1961.13 As earlier noted, Respondent made an affirmative statement in its answer that, on May 25, it had "completely terminated" all connection with the ticketing operation, and that the ticketing function was "most efficiently, economically and satisfactorily done" by the retail stores or outlets which "normally" perform this operation. At the hearing, Mayer B. Cohen, managing partner, testified as to Respondent' s reasons for discontinuing the ticketing, viz: The ticket girls were terminated on May 25 because Respondent had no more openings of new retail outlets. The only reason for the existence of the ticketing operation was to make it easier to open up a new store, by relieving the store of the task of marking the initial shipment of merchandise it re- ceived from Respondent. The discontinuance was not based on any savings to be gained by having the retail stores do all the ticketing.14 In April, Cohen left on a vacation to Europe. At the time, there were five new stores 15 "in the works" which were expected to be opened by May 10. When Cohen returned from vacation on May 9, he learned that the plans for the five new stores had "fallen through." 16 Upon this information, Cohen made the decision to elim- inate the ticketing operation. After May 25, he said, all marking of merchandise was done by the retail stores themselves. Elsewhere in his testimony he indicated that the termination of the ticketing department resulted in an economy to Respond- ent which was "substantial." 17 Cohen testified that it takes "almost a month" of marking to get merchandise ready for a new store. Thus, it should only have absorbed about 9 months to prepare for the 9 new openings of Respondent during the 4 years of the ticketing operation from June 1958 to May 25, 1962. Cohen attempted to explain that when Respondent has 12 The pertinent data follows: Store Approximate date of opening Location Bur-Win Sales, Inc__________________________ March 27,1957____-_-_ Winooski, Vermont Fairland, Inc (two stores)__________________ June 10, 1958_________- Rutland, and Fair Haven, Vermont Man-Bur Sales, Inc----- -------------------- September 22,1958---- Manchester, Now Hamp- shire. Buff-Sales Company, Inc__ __ Oct ober 28, 1959------- Cheektowaga, New York Newco Sales, Inc____________________________ Jul v 20, 1960___________ Dayton, Ohio Seneca-Buff, Inc_____________________________ September 23, 1960 --- West Seneca, New York Hertel-Buff, Inc_ __________________ March 22, 1961________ Buffalo, New York Niagara-Buff, Inc___________________________ March 22, 1961________ Nia,ara, New York 1E Cohen's positive and repeated assertions that Respondent commenced its ticketing operation in 1960 is discredited, inter aiie, as against Olivia Cruickshank's testimony that she has been doing full-time ticketing work for Respondent since June 1958, when the department was being operated with two ticket girls. 14 However, in reply to a leading question by Respondent at a later point in his testi- mony, Cohen averred that there was no other reason for discontinuing the ticketing opera- tion except for economic purposes and the fact that it could be done by the people that bought the merchandise 16 One in Plattsburgh, New York ; one in 'Colony, New York ; and three in Virginia 15 Cohen's testimony as to when he realized he had no more new openings was shifting, evasive, and, I find, generally unbelieveable. The point is significant regarding Respond- ent's failure to notify the Union and the ticket girls earlier than May 25 of the decision to discontinue the ticketing operation Cohen gave varying statements as to when he acquired this information, e g , (1) when he came back in May he was "definitely sure" ; (2) sometime between May 9 (the date of his return) and May 25 (the date of the dis- continuance) ; (3) between May 19 and 25 Cohen also testified that Respondent could not stay in business without new openings. It seems curious that Cohen, as manager of the business, would not receive word of such an important development even while he was on vacation. 17 However, Cohen stated that he had "no idea" what the employees were paid to do the ticketing at Respondent's retail outlets . He also said it was a "normal" assumption that the Union was going to ask for more money for the ticket girls, but denied that he con- sidered this factor when he decided to "lay off" the ticket girls RIVERSIDE WHOLESALE DISTRIBUTORS 585 two or three new openings scheduled, and they were not going to be opened "for a week or so, or a month, and there was a week or so that there was no marking," the ticket girls were not let go but were put on ticketing "for whoever there was, for Harry's Discount or Man-Bur." (The latter store is one of Respondent's outlets, supra, and the former is not.) At another point, Cohen said the ticket girls were kept on even though they were not needed, because Respondent thought they were going to open up a new store. Theresa Francis testified that during her 2-year tenure most of the ticketing work was done for the "old" or established outlets of Respondents. Cohen later conceded that when the girls were not ticketing for new openings (i.e., the great portion of the time) they were ticketing for "old" stores of Respondent and for one or two independent stores. Respondent also sought to show that ticketing work was "slack" in May when the decision was made to discontinue the department. However, Olivia Cruickshank testified that on May 25 the girls were ticketing for seven of Respondent's outlets (which Cohen substantially confirmed in his testimony) and that the work then was "busy." Two other ticket girls indicated that there was "some" slack in the period from the end of April to the end of May, of about a day a week, and that the time was filled in with other work, e.g., "circling catalogs," but that this "slack" was not different from those in the past during which there had never been a layoff As already shown, contract negotiations between the parties had broken off on Friday, June 15. On June 20, the Union commenced a strike against Respondent which was ended sometime in July or August. On June 25, the charge alleging the particular violations involved herein was filed by the Union. During the week end- ing August 10, Respondent recalled three of the "discontinued" ticket girls, and in the week of September 14, it recalled the remaining two.18 Cohen stated that as soon as he was aware that Respondent had a new store opening, he hired the ticket girls right back. He referred specifically to a new store in Dover, New Hampshire, negotiations for which, he said, were begun about June 30. A stipulation reveals that three new stores were opened by Respondent in 1962; Riverside Wholesale, Ltd, in Montreal, Canada, on August 31; Man-Bur Sales in Dover New Hampshire, on October 10; and Newco Sales, in Methuen, Massachusetts, on November 15.19 Olivia Cruickshank testified that, following their return to work in August and September, the girls were ticketing for a new store in Dover and an independent, Harry's Discount. D. Concluding findings 1. The Section 8(a)(3) violation Respondent's asserted reasons for "completely terminating" the ticketing opera- tion on May 25 and discharging the five ticket girls, particularly as sought to be explained by its managing partner, Mayer B. Cohen, at the hearing, impress me as contrived and wholly unconvincing. Its initial position, set out in its answer, was in effect that the ticketing operation was "most efficiently, economically and satis- factorily" performed by the retail dealers where the function "normally" belongs. However, without more, this explanation contained serious flaws. It failed to establish a justifying motivation for discontinuing the department with six ticket girls, after 4 years of continuous operation, at a time when Respondent was. about to engage in collective-bargaining negotiations with the Union, having been so ordered by the Board following general findings of unfair labor practices antagonistic to the unionizing of its employees. At the hearing, Mayer B. Cohen, embarking on a some- what different course, strived to show an immediate economic need to eliminate the department. The theory he offered was that the only purpose for the existence of the ticketing operation was to "lend a helping hand" to Respondent's own retail outlets in advance in their opening, and that the department was discontinued on May 25 when it became evident that there would be no more new openings. In light of the plain facts and ordinary logic, this testimony of Cohen defies credulity. Over a period of 4 years, the ticketing department devoted less than 20 percent of the time marking merchandise for new openings, while the contrary appeared, that the great bulk of the work in the department was employed in servicing the "old" or established outlets of Respondent, as well as certain independent retailers. Surely, in the long gaps between new openings-only one opening in 1959 and two in each 18 The first recalled were 'Olivia Cruickshank and Theresa and Lillian Francis They worked a total of 3 days until the week of September 14, when Mary Piche and Gloria Stoddert were recalled, at which time work was resumed on a full-time basis 19 According to Cohen, the opening of the Methuen store was 95 percent certain, and ticketing was being performed for this store as of the hearing date, October 16, 1962 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the years 1960 and 1961-there were periods when there was no immediate out- look for opening new stores , as was allegedly the situation in May 1962. And in the past there were no layoffs, let alone any discontinuance of the operation, even though Cohen testified that Respondent could not stay in business without new open- ings. Particularly in view of these facts, the testimonial narrative of Cohen as to the immediate events which allegedly precipitated the elimination of the ticket de- partment on May 25 stands as highly implausible . Thus, as against a total experience of about two new openings a year, the explanation is given that (a) in April when Cohen was leaving on vacation , there were assertedly five new openings scheduled at once in different locations to be effected by May 10; (b) when Cohen returned on May 9, he discovered that in his brief absence all five of these openings had collapsed; (c) as there was utterly no contemplation of further openings , he decided to, and on May 25 did, "completely" discontinue the ticketing operation ; (d) about June 30 Respondent commenced negotiations to open a new store in Dover, New Hampshire, and thereafter it opened three new stores on October 10 and 31 and November 15; and (e ) the ticket girls who had been "discontinued" were recalled, effectively in mid- September. The Respondent offered no records or documentary proof of any kind. As a witness , Cohen appeared to me as having a careless regard for the oath. Matters about which, as operating manager of the business , he should readily have had at his command, he frequently mis-stated, was evasive, or changed his testimony In sum, Respondent's reasons for discontinuing the ticketing operation are discredited. On the record evidence , I find there was no economic necessity demonstrated to justify the discontinuance. Respondent's union animus and discriminatory disposition are evident in the prior unfair labor practices found by the Board, as to which Mayer B. Cohen himself was directly involved. Two of the ticket girls, Theresa Francis and Olivia Cruickshank, were previously discharged on account of their union activities When Respondent decided to discontinue the ticketing , it was preparing to meet with the Union in bargaining negotiations , in ostensible compliance with the Board's Order. The alleged economic considerations which Respondent advanced in its answer and at the hearing, as I find, were pretextuous and seized upon by Respond- ent to cloak its real motive . It is fairly apparent that Respondent had been oper- ating the ticketing department essentially for the purpose of marking and pricing merchandise it shipped to its own retail outlets-a function which manifestly it found economically desirable over a period of 4 years . These retail outlets, under Respondent's control, could feasibly perform the ticketing work theretofore done by Respondent . By transferring the operation to its outlets , Respondent would avoid the obligation to bargain with the Union concerning the ticketing department, and at the same time relieve itself of known union adherents . Respondent effected the action with no advance notice to the ticket girls and virtually none to the Union, undoubtedly with a hope that such a summary transfer of a function within its own general operations would go unopposed Contract negotiations with the Union lasted about 2 weeks in four sessions , were broken off, and a strike ensued on June 20. The Union , as it previously told Respondent it would , filed the instant charge on June 25. About a month later the strike was terminated . Thereafter, Respondent, under pressure, retracted its "discontinuance" of the ticket operation and com- menced reinstatement of the ticket girls . From the entire record , it may be rea- sonably inferred , and it is my conclusion , that Respondent transferred or "sub- contracted" the ticketing operation out of the appropriate unit to avoid bargaining obligations imposed by the Act, and for discriminatory reasons, thereby violating Section 8(a) (3), as alleged 20 2 The Section 8(a)(5) violation As found by the Board , and conceded by Respondent herein, the Union is the majority representative in an appropriate unit consisting of- All employees employed at Respondent's Burlington , Vermont, plants, including drivers, warehousemen, checkers and ticket girls, but excluding office clerical employees, guards, professional employees , and all supervisors as defined in Section 2 ( 11) of the Act. 24 Preston Feed Corporation, 134 NLRB 629 , enfd 309 F. 2d 346 (C A 4) ; N L R.B v Brown -Dunkin Company, Inc., 287 F 2d 17 (CA. 10) ; Ethel J. Hinz, as an individual and as Executrix of the Estate of Lester F. Hinz, d/b/a Myers Ceramic Products Co, 140 NLRB 232 RIVERSIDE WHOLESALE DISTRIBUTORS 587 The finding above that Respondent discharged the ticket girls in avoidance of its statutory bargaining obligation is in itself sufficient to sustain the refusal-to-bargain allegation. The complaint on this score is made out on further grounds. At 3:30 p.m. on May 25, when Attorney Feen for Respondent telephoned Dykeman of the Union, the decision had already been made to terminate the ticketing operation. Feen told Dykeman Respondent was going to lay off the ticket girls that afternoon and asked what the Union was going to do about it. An hour and a half later, at the end of the workday, the girls were notified of their "layoff" and the discontinuance of the department. The evidence is devoid of support for Respondent's contentions that the Union concurred or acquiesced in Respondent's decision, that there was any cognizable consultation or bargaining between the parties on the subject, or that the Union waived any objection to this action by failing to protest. It is plainly apparent that the Union was effectively delivered a fait accompli on May 25 of Respondent's termination of the ticketing department. In the circumstances, I find, as alleged in the complaint, that Respondent unilaterally discontinued its ticketing operation and transferred or "subcontracted" the same out of the ap- propriate unit without notifying, consulting, or bargaining with the Union. Thus, Respondent acted in derogation of its obligation to bargain with the Union con- cerning a mandatory subject of collective bargaining, in violation of Section 8(a)(5).21 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I above, having close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. When the unfair labor practices herein were committed, including the discriminatory termination of five employees, Respondent was under order of the Board in the prior case to cease and desist from engaging in unlawful discriminations against employees and from infringing in any other manner upon the rights of employees guaranteed in Section 7 of the Act. Clearly, a cease-and-desist order in its broad form is again warranted and will accordingly be recommended 22 It has been found that Respondent unlawfully discontinued its ticketing opera- tion and discharged its ticket girls in violation of Section 8(a) (3). It has also been found that Respondent acted in derogation of its statutory bargaining obligation in violation of Section 8(a)(5), by failing to notify, consult, or bargain with the Union concerning its decision to discontinue the ticketing department. As to either violation, standing alone, the appropriate remedy would be the same, i.e., restoration of the status quo ante by resumption of the discontinued or transferred operation, and reinstatement of the discharged employees with backpay.23 However, it appears in the record that about a month before this hearing Respond- ent undertook to reinstate the discharged girls and resume its ticketing operation. Therefore, while the recommended cease-and-desist order will enjoin Respondent from engaging in the specific Section 8(a)(3) and (5) conduct found herein, an affirmative order appears unnecessary, and will not be included, that the ticketing operation be resumed and the ticket girls reinstated. Having found that Respondent has failed to fulfill its statutory bargaining obligation, I will recommend that Respondent be ordered to bargain in good faith with the Union, upon request, as the exclusive representative of its employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. 21 Esti Neiderman and Gizela Eisner, co-partners, doing business as Star Baby Co, 140 NLRB 678; Adams Dairy, Inc., 137 NLRB 815 ; Exchange Parts Company, 139 NLRB 710. And see Town & Country Manufacturing Company, Inc„ et al„ 136 NLRB 1022 22 N L R B. v. Express Publishing Company, 312 U.S. 426; NLRB v. Entwistle Mfg Co., 120 F 2d 532 (C.A. 4). 23 E.g., Adams Dairy, Inc, supra 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that Respondent discriminatorily terminated Theresa Francis, Mary Piche, Gloria Stoddert, Olivia Cruickshank , and Lillian Francis, who apparently have since been reinstated by Respondent , I will recommend that Respondent make them whole for any loss of earnings suffered by reason of the discrimination against them by payment to them of a sum of money equal to that which they would normally have earned, absent the discrimination , from the date of their discrimination to the date of their reinstatement, less net earnings during such period , with backpay computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company , 90 NLRB 289 . Such pay loss shall be computed with interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will be further recommended that Respondent preserve and upon request , make available to the Board, all payroll records , social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due under the terms of this Rec- ommended Order. Upon the foregoing findings of fact , and upon the entire record in the case, I make the following. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 597 , Chauffeurs , Teamsters , Warehousemen & Helpers , a/w International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of America, is a labor organization within the meaning of the Act. 3. By unlawfully discontinuing its ticketing department and terminating Theresa Francis, Mary Piche, Gloria Stoddert, Olivia Cruickshank , and Lillian Francis, thereby discouraging membership in the above -named labor organization , Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By unilaterally terminating its ticketing operation and transferring or "sub- contracting" the same out of the appropriate unit without notifying , consulting, or bargaining with the above -named labor organization , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By the aforesaid unfair labor practices , Respondent has interfered with, re- strained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act , and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing finding of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent , Mayer B Cohen, Bernard Cohen and Peary Cohen, d/b/a Riverside Wholesale Distributors , Burling- ton; Vermont, its officers , agents , successors , and assigns , shall: 1. Cease and desist from: (a) Failing and refusing to bargain collectively with Local 597 . Chauffeurs, Teamsters , Warehousemen & Helpers, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America , as the exclusive representative of its employees in the appropriate unit of all employees at its Burlington, Vermont, plants, including drivers, warehousemen , checkers , and ticket girls , but excluding office clericals , guards, professional employees, and supervisors as defined in the Act, by unilaterally terminating , transferring, or subcontracting its ticketing operations without notifying , consulting , or bargaining with the above-named labor organiza- tion or with any other labor organization its employees may select as their exclusive bargaining representative. (b) Discouraging membership in the above-named labor organization, or any other labor organization , by discharging, laying off, or refusing to reinstate its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment , except to the extent permitted by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (c) In any other manner interfering with, restraining , or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. RIVERSIDE `WHOLESALE DISTRIBU'IORS 589 2. Take the following affirmative action designed to effectuate the policies of the Act• (a) Bargain , upon request , with the above -named labor organization as the exclusive representative of all the employees in the aforementioned appropriate unit (b) Make whole Theresa Francis, Mary Piche , Gloria Stoddert , Olivia Cruick- shank, and Lillian Francis for any loss of earnings they suffered by reason of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The Remedy " (c) Preserve and, upon request . make available to the Board or its agents, for examination or copying , all payroll records , social security payment records, time- cards, personnel records and reports , and all other records, as set forth in the section of the Intermediate Report entitled "The Remedy." (d) Post at its "Main Street " and "Chase Mills" plants in Burlington, Vermont, copies of the attached notice marked "Appendix " 24 Copies of said notice, to be furnished by the Regional Director for the First Region , shall, after being duly signed by the Respondent, be posted immediately upon receipt thereof, and be main- tained for a period of 60 consecutive days thereafter , in conspicuous places, includ- ing 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 material. (e) Notify the Regional Director for the First Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith.25 24 If this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pur- suant to a Decision and Order." 21 If this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order 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 NOT fail and refuse to bargain collectively with Local 597, Chauf- feurs, Teamsters, Warehousemen & Helpers, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of all our employees in the appropriate unit, by unilaterally terminating, transferring, or subcontracting' our ticketing operation without notifying, consulting, or bargaining with the above-named Union or with any other union our employees may select as their exclusive bargaining representative. WE WILL NOT discourage membership in the above-named Union, or any other union, by discharging, laying off, refusing to reinstate its employees, or in any other manner discriminating in regard to their hire or tenure of employ- ment or any term or condition of employment, except to the extent permitted by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959 WE WILL NOT in any other manner interfere with, restrain, or coerce em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist the above-named or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL, upon request, bargain with the above-named Union as the exclusive bargaining representative of our employees in the appropriate unit. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole the employees named below for any loss of earnings they may have suffered by reason of the discrimination against them: Theresa Francis Gloria Stoddert Mary Piche Olivia Cruickshank Lillian Francis All our employees are free to become, remain , or refrain from becoming or remaining members of Local 597, Chauffeurs , Teamsters, Warehousemen & Helpers, a/w International brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers, of America, or of any other labor organization. MAYER B . COHEN, BERNARD COHEN AND PEARY COHEN, D/B/A RIVERSIDE WHOLESALE DISTRIBUTORS, Employer. Dated------------------- By-------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Boston, Five Cents Savings Bank Building , 24 School Street, Boston 8, Massachusetts , 02108, Telephone No. Lafayette 3-8100 , if they have any question concerning this notice: or compliance with its provisions. Edmund A. Gray Co., Inc. and United Steelworkers of America,, AFL-CIO. Case No. 21-CA-49923. May 14, 1963 DECISION AND ORDER On February 20, 1963, Trial Examiner Martin S. Bennett issued his: Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and. take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board' has delegated its powers in connection with this case to a three-member- panel [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings made by the Trial Examiner, 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 case, and hereby adopts the findings,' conclusions, and recommenda- tions 2 of the Trial Examiner. "Member Leedom adopts, as do his colleagues , the Trial Examiner's finding that the Respondent violated Section 8 (a) (3) by terminating the employment of its female em- ployees. In view of this finding Member Leedom also adopts the Trial Examiner's further finding that the Respondent violated Section 8(a) (5) by terminating the female employees without consulting with the Union. See his separate opinion in Hawaii Meat Company, Limited, 139 NLRB 966. 2 For the reasons stated in his dissenting opinion in Isis Plumbing f Heating Co., 1318- NLRB 716, Member Leedom would not award interest on the backpay due. 142 NLRB No. 70.