Northwestern Publishing Co.

NORTHWESTERN PUBLISHING COMPANY 457 Either assertion relied upon by the Respondent , to be accorded merit, must be premised upon a finding that Bridge, in privately negotiating with Schwartz as above recited, was acting for and on behalf of the Respondent , the New York Central Transport Company. The burden of establishing , the validity of this premise, such constituting a part of an affirmative defense, rests upon the Respondent. I find that the record does not support such a finding and that, accordingly, the Respondent has failed to meet its burden. - Simply stated, the evidence shows merely that a person, unknown to Schwartz, induced him to attempt to withdraw his charges against the Respondent in return for a check for $600 . Other than the fact that Pronyk's name was used by Bridge as a partial inducement to Schwartz,10 and the contrary inference which might otherwise be drawn from the fact that the subject unfair labor practice charges in- volved the Respondent , there appears to be no real evidence linking the Respond- ent with the $600 payment to Schwartz . Thus, the record does not indicate, nor did the Respondent attempt to show that : (a) Bridge was even known to the Respondent, much less that, in dealing with Schwartz, he was acting for the Re- spondent at the latter's request; (b) at the time of the dealings between Bridge and Schwartz, the Respondent was aware of the attempt to induce Schwartz to withdraw the charges or that it subsequently condoned the transaction ; and (c) the Canadian Tran Rail System, Ltd., upon whose account the check was drawn , is associated with or in any way connected with the Respondent . For some unexplained reason, the Respondent, upon whom the burden rests of proving its affirmative defense, chose not to produce Bridge, or any official of the Respondent Company, as a witness at the hearing in an attempt to prove the existence of an agency relation- ship between Bridge and ,the Respondent. ` Thus, without attempting to discuss the many ramifications of this type transac- tion and the effect which might otherwise be accorded it,li it would appear 'that, under these circumstances, the Respondent is estopped to assert the proposition that it has fulfilled its backpay obligation or any part of it to Schwartz. III. CONCLUSIONS AND RECOMMENDATIONS Having found without merit the Respondent's position as to its second affirma- tive defense, upon the basis of the foregoing findings, and upon the entire record in this case , I hereby adopt in full the backpay specification as submitted by the General Counsel, and conclude that the obligations of the Respondent to make whole Sidney Schwartz in accordance with the Board's Order will be discharged by its payment to Sidney Schwartz of the amount of $ 1,641 .99, less the tax with- holding required by Federal and State laws. It,is recommended that the Board adopt the foregoing findings and conclusions and order the Respondent to pay to Sidney Schwartz the amount above set forth. It is further recommended that the above adjudicated indebtedness bear interest at 6 percent per annum from the date of this adjudication until paid. Isis Plumbing & Heating Co., 138 NLRB 716. 10 There is no evidence that Schwartz ever received the promised Pronyk document per- taining to the threatened libel action. n In' view of my finding that ,the Respondent failed to prove that it made payment to Schwartz , I deem it unnecessary to reach or pass upon the other arguments asserted by the parties. Northwestern Publishing Company and Chauffeurs, Teamsters and Helpers, Local No. 26, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 13-CA-5083. March ?3,1964 SUPPLEMENTAL DECISION AND ORDER Northwestern Publishing Company, the Respondent herein, is a publisher of, a newspaper in Danville, Illinois. `In January 1962, Chauffeurs, Teamsters and Helpers, Local No. 26, the Union-herein, 146 NLRB No. 59. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petitioned for an election in a unit of the Respondent's newspaper delivery drivers (Case No. 13-RC-8319). Following a hearing, the Regional Director for the Thirteenth Region issued a Decision and Direction of Election, finding appropriate a unit of all the Respond- ent's bundle and tube drivers, and rejecting the Respondent's conten- tion that these drivers were independent contractors.- Thereafter, the Respondent filed with the Board a request for review of said De- cision and Direction of Election. The Board, by telegraphic order dated May 3, 1962, denied the request for review. On May 17, 1962, after an election, the Regional Director certified the Union as the representative of the employees in the above unit. On October 14, 1963, the Board in the present case (Case No. 13- CA-5083) issued its Decision and Order,' finding that the Respond- ent had violated Section 8(a) (1), (3), and (5) of the Act. On November 1, 1963, the Respondent filed a motion for recon- sideration of the Board's Decision and Order in the present case. In its memorandum in support of its motion for reconsideration, the Respondent contends that the request for review of the Regional Di- rector's determination in Case No. 13-RC-8319 was denied in a de- cision made by a single member of the Board and that such decision therefore did not conform with Sections 9 and 3(b) of the Act. The Respondent further contends that since the Board in the present pro- ceeding made no finding on the merits regarding the status of the Respondent's drivers, but instead refused to allow the Respondent to relitigate the unit determination, there is no support for the con- clusion that the Respondent's drivers are employees and therefore no basis for the Board's unfair labor practice findings as well as its reinstatement and bargaining order. Finally, the Respondent argues that on the merits its drivers are independent contractors and not employees. On January 6, 1964, the General Counsel filed an opposi- tion to motion for reconsideration. The Board, having duly considered the matter, has decided to grant the Respondent's motion for reconsideration of the Board's De- cision and Order in the present case, which is based in part on the prior representation proceeding (Case No. 13-RC-8319). The Board has reconsidered the Respondent's request for review filed in said representation proceeding and is of the opinion that it raises no sub- stantial issue of fact or law warranting reversal of the Regional Di- rector's findings that the tube and bundle drivers are employees within the meaning of the Act. Accordingly, we hereby affirm the prior denial of the request for review. Furthermore, the Board has con- sidered the transcript of testimony and exhibits in the representation proceeding, as well as the transcript of testimony, including the offers 3 144 NLRB 1069, Member Leedom dissenting in part. GEORGE SCHUWIRTH 459 of proof, and the exhibits, in the instant case, and concludes on this additional basis that the prior denial of the request for review was proper. In these circumstances, and as the motion for reconsidera- tion raises no other matters not previously considered by the Board, we shall reaffirm the Decision and Order in the present case. [The Board granted the motion for reconsideration and upon re- consideration, reaffirmed the original Decision and Order.] MEMBER JENKINS took no part in the consideration of the above Supplemental Decision and Order. George Schuwirth and International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, Local Union No. 110, Petitioner. Case No. 23-RC- 2127. March, 23, 196.E DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer C. L. Moser. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds : 1. The Employer, an individual, doing business in San Antonio, Texas, is engaged in selling spent grain, the residual byproduct of brewing, to dairymen in the San Antonio area, including Bexar County and adjoining counties in Texas. During 1962, he purchased approximately $93,000 worth of this spent grain from the Lone Star Brewing Company in San Antonio, Texas, and his purchases during 1963 were running ahead of that year. The Employer makes no sales or purchases from outside the State of Texas. The Brewing Com- pany, during 1962, purchased barley and corn grain in the amount of $1,970,227 that was shipped directly from outside the State of Texas. The Employer employs approximately nine drivers, who comprise the unit sought by the Petitioner. These drivers pick up the spent grain at the Lone Star Brewing Company, where it appears in mush- like form after having been processed through Lone Star's brew kettles into its tanks. It is estimated that this brewing process re- moves approximately 80 percent of the food value from the grain, leaving a residue unfit for human consumption. The spent grain is 1 This case was transferred to the Board by the Regional Director for the Twenty-third Region. 146 NLRB No. 51.