Cambridge-Dairy, Inc.

718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cambridge-Dairy, Inc. and International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 537. Case 27-CA-2114 February 7,1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On July 27, 1967, Trial Examiner William E. Spencer issued his Decision in this proceeding, finding that Respondent had engaged in and was en- gaging in certain unfair labor practices, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices and recommended that the al- legations of the complaint pertaining thereto be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and Respondent filed an an- swering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs,' and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified below.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- ' Respondent's request tor oral argument is hereby denied as, in our opinion, the record, exceptions, and briefs adequately present the issues and positions of the parties 2 At the time Respondent terminated its retail business , City Park hired all of Respondent's retail employees except Charles Herman. Herman was allowed by Respondent to stay on its payroll for approximately a month, but the job he was given to perform was by its nature, and by Respondent's admission, a temporary one, connected with the turning over of Respondent's routes to City Park. Herman thus did not become part of Respondent's wholesale operation and when his job was completed he was discharged. But for Respondent's closing of its retail business, which we herein find to have been for unlawful reasons, Herman would not have been discharged. We are not ordering Respondent to give backpay to the other employees from the date of its closing only because it found substantially equivalent employment for them It did not do the same for Herman. Nor does it appear what Herman's compensation was for that last month of employment with Respondent . We shall order mended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Cambridge Dairy, Inc., Glendale, Colorado, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as herein modified: 1. After the words "and conditions of employ- ment" in paragraph 2(a) of the Trial Examiner's Recommended Order and in the third paragraph of the notice attached to his Decision, insert the fol- lowing words: "including bargaining about the ef- fects Respondent's closing of its retail delivery ser- vice on August 31, 1966, had on the employees thereby terminated, and as to the matter of resum- ing such retail delivery service." 2. Delete paragraphs 2(c) and (d) of the Trial Ex- aminer's Recommended Order and substitute therefor the following: "(c) Make Charles Herman whole for any loss of pay he may have suffered as a result of the dis- crimination against him, in the manner set forth in the Board's Decision herein." "(d) In the event it resumes its retail delivery business, notify all its employees in the unit found appropriate whose employment it terminated on August 31, 1966, and also Charles Herman, if then serving in the Armed Forces of the United States, of their rights of reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended." 3. Delete the fourth indented paragraph of the notice, and substitute therefor the following: WE WILL, if and when we resume our retail delivery business, offer immediate and full reinstatement to Charles Herman and to all our employees in the aforestated appropriate unit whose employment was terminated on August 31, 1966, and make them whole for any loss of pay they may have suffered because of the dis- crimination against them. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges violations not found herein. Respondent to make Charles Herman whole for any loss of pay suffered because of the discrimination against him by payment to him of a sum of money equal to that which he normally would have been paid in Respond- ent's employ from the date Respondent closed its retail business to the date he did secure or shall hereafter secure substantially equivalent em- ployment, whether with Respondent or elsewhere. The month's work with Respondent after the closing of its retail business may be offset for pur- poses of backpay, but shall not be considered as the obtaining of substan- tially equivalent employment, regardless of the amount of compensation received Loss of pay shall be computed upon a quarterly basis in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 per- cent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716. Herman shall, in any event, be placed on the preferential hiring list which Respondent is, in the event of reopening its retail business, required to establish. 169 NLRB No. 83 CAMBRIDGE DAIRY, INC. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM E. SPENCER, Trial Examiner: Upon a charge filed by the Union herein on September 15, 1966, the General Counsel of the National Labor Relations Board, the latter hereinafter the Board, issued his complaint dated November 14, 1966, alleging in substance that the Respondent herein engaged in conduct violative of Sec- tion 8(a)(1), (3), and (5) of the National Labor Relations Act, hereinafter called the Act. Respondent in its duly filed answer denied the Board's jurisdiction and that it had engaged in any of the alleged unfair labor practices Pursuant to notice a hearing on the General Counsel's complaint, with all parties participating, was held by me in Denver, Colorado, on January 17 and 18, 1967. On the basis of the entire record in this proceeding, my observation of witnesses appearing before me, and con- sideration of briefs filed with me respectively by the General Counsel and the Respondent. I make the follow- ing: FINDINGS OF FACT 1. JURISDICTION Respondent is a Colorado corporation with an office and principal place of business in or near Denver,' Colorado, engaged at all times material herein in the processing, bottling, and selling, both wholesale and retail, of milk and other dairy products. Direct and in- direct inflow of goods through channels of interstate com- merce, used in the operation of its Denver business, total at least $47, 863.19, and this is sufficient to establish the Board's jurisdiction. The only jurisdictional issue is whether the Board's standards for asserting jurisdiction have been established. In addition to the direct and in- direct inflow of an excess of $47,000, virtually uncon- tested, the Respondent during the period in question purchased from the Fibreboard Paper Products Corpora- tion paper plates and cartons in an amount of approxi- mately $20,000. These paper products are derived from rolls of coated paper shipped by Fibreboard from its California plant to its headquarters in Denver where Respondent's purchases are made, and the only processing of the product that occurs in the State of purchase is the addition of printed matter and the cutting and sealing required to make a flat container. The essen- tial identity of the product is not changed. Contrary to Respondent's contention I would add the amount of purchases from Fibreboard to the combined indirect and direct inflow figure which would bring it well over the $50,000 required to satisfy the Board's standard for as- serting jurisdiction. I further find, as stipulated by the parties, that Respondent's gross sales for the fiscal year 1965 approximated $600,000, that figure representing its combined retail and wholesale business revenue, and that on the basis of this stipulation alone the Board has and will assert jurisdiction. Respondent's disposal of its retail delivery service as of August 31, 1966, to be discussed hereinafter, contrary to Respondent's contentions, did I It appears from the statement of Respondent's counsel that Respond- ent has "its actual plant and operations in a small suburb ... of Denver called Glendale in Arapahoe County, but its business function is in the 719 not divest the Board of its jurisdiction under applicable standards. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 537, the Union herein, is a labor organization within the mean- ing of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Events On July 21, 1966, Respondent's employees Jim Harrell and Joe Ziereis met with the Union's business agent, Gerald I. Friedman, with respect to the organization of Respondent's wholesale and retail drivers. Both signed union authorization cards. On July 22, Friedman met with employees of Respondent and at this meeting six ad- ditional employees signed union cards. Later on that same day, Friedman obtained signed authorization cards from two additional employees. Therefore as of July 22 the Union held authorization cards duly executed by 10 of Respondent's employees. On July 22, the Union advised Respondent that it represented a majority of Respondent's employees in an appropriate unit; stated that it was in a position to prove its majority; and requested negotiations on a contract. Respondent replied by letter dated -July 26, stating that the matter of the Board's jurisdiction had been raised with an agent of the Board, and that as soon as the Board's ju- risdiction was "confirmed and asserted" Respondent would further advise with the Union. Concurrently with its bargaining demand, the Union filed a representation petition with the Board on July 22, and on July 27 filed a charge of unfair labor practices. This charge was withdrawn on August 16 to permit the processing of the representation petition. Hearings on the Union's petition were held on August 26 and 29. During the interval allowed for the filing of briefs in this matter, the Respondent transferred its entire retail business to another dairy, the changeover becoming effective on Sep- tember 1. Following the changeover, Respondent moved the Board's Regional Director to reopen the representa- tion proceeding. The Regional Director granted the mo- tion but when the Union filed the charge initiating the present proceeding issued an order indefinitely postpon- ing a further hearing in the representation case. Aside from the matter of jurisdiction, the principal is- sues now before us are: an alleged unlawful refusal to bar- gain; numerous incidents alleged to constitute a violation of Section 8(a)(1) of the Act; and the alleged discrimina- tory discharge of Respondent's retail drivers at the time Respondent's discontinuance of its retail business became effective. B. The Appropriate Unit and the Union's Majority Therein It was agreed at the representation hearing and I find that as of the date the Union requested recognition the Denver Metropolitan Area " All references herein to Respondent's Denver operations will accordingly be understood to incorporate Glen- dale as its actual plant site. 720 CAMBRIDGE DAIRY, INC. following constituted an appropriate unit for all purposes of collective bargaining: All wholesale and retail driver salesmen and/or route drivers including relief drivers employed by the Respondent in its Denver, Colorado operation, ex- cluding office clerical employees, plant employees, guards, professional and supervisory employees as defined in the Act. On July 22, the date on which the Union made its bar- gaining demand, there were approximately 17 employees in the bargaining unit, and of these 10 had designated the Union their bargaining representative. Therefore, as of the date it made its bargaining demands, the Union represented a majority of Respondent's employees in an appropriate unit. C. The Refusal to Bargain Respondent in its July 26 answer to the Union's de- mand for recognition, raised the matter of the Board's ju- risdiction as explanation of its failure to respond directly to the bargaining demand. It is assumed that the Re- spondent, on advice of its attorneys, considered the jurisdictional issue substantial. Be that as it may, begin- ning almost immediately upon receipt of the Union's demand, the Respondent engaged in a course of conduct calculated to discourage, forestall, and thwart unioniza- tion of its employees. These matters being virtually undisputed in the record, and the witnesses testifying to them to all appearances credible, will be presented in outline. D. 8(a)(1) Conduct On July 22, employee Schweider was called to the of- fice of Donald Denton, an officer of Respondent, where in the presence of other managerial personnel Denton asked Schweider if he had seen a union card, or knew anything about a union seeking to represent Respondent's employees. On the following day, again in Denton's office in the presence of supervisory personnel, Denton asked employees Walter B. Crossman and John Young if either had signed union cards, and wanted to know the circum- stances under which the cards were signed, whether in a group or singly. At this time Denton said that he wished the employees had not signed union cards but now that they had, they would have to put in an 8-hour day and work harder;2 the Respondent might have to cut some routes and pull bigger routes. On July 25, at a meeting of all its driver-salesmen, Denton said that the employees had been called to the meeting because of their having signed union cards; that the paycheck they received that day would reflect an in- crease in the guaranteed salary from $430 to $470 a 2 Technically, the employees were already working an 8-hour day. Without timing devices, such as meters on trucks, clocking in and out, em- ployees had been allowed a certain latitude with respect to hours worked Denton's reference to a requirement that employees work an 8-hour day, in connection with the threat to install timing devices, obviously was meant to impress on the employees that under union representation em- ployees would be required to work harder, and therefore there is nothing palpably false in testimony that Denton made reference to the require- ment of an 8-hour day. The same is true of the testimony that Denton promised a commission on sales over quotas if the Union was rejected. Again technically, a commission was authorized by Respondent's con- tracts with its employees but none had been paid, and the employees month; and that the employees would receive an extra $50 in that day's check which would represent retroactive pay,3 but that if the employees "went union" this retroac- tive pay would be withdrawn. Denton further advised the employees that whereas in the past they had received straight pay for working on their day off, in the future they would receive a stipulated amount for such work as overtime pay; remarked that the employees did not have to join the Union in order to get union pay, but did not commit the Respondent to pay union wages; and stated that if the men did go union, he would have to change the delivery routes and make other changes in order to make the routes pay more, such as consolidating routes and requiring the men to work longer and harder. Robert Lobb, Respondent treasurer, also in attendance at the meeting, remarked that an officer of the Union, Paul Ash- craft, had never been allowed on company premises, and he, Lobb, saw no reason why he should not be allowed this privilege; that if the employees chose the Union he would put meters in the trucks to insure the requirement that the employees worked a specific number of hours, and that the men would have to put in more hours, do more work, more soliciting and collecting. Previously, there had been no timing devices on the delivery trucks and the men had not been required to check in and out, by time clock at the plant. Following these various comments by supervisory per- sonnel, Denton expressed a desire to know if the em- ployees intended to go union, and asked that a vote be taken stating, "Well, now that you have heard our proposition what do you think?" After some further discussion, the matter of taking a vote was dropped and the meeting was closed with Denton's statement that if the Union did get in he would rather close the whole retail business than deal with the Union. Prior to the July 26 meeting, employee drivers were al- lowed to take home used merchandise, which though still fit for consumption was no longer saleable. Such merchandise was called "dumps." Following the meeting the employees were no longer granted this privilege. About 2 weeks later, some or all of the employees were told that on the advice of Respondent's lawyer the retroactive paycheck of $50 would have to be rescinded. It was, in fact, deducted from the checks received on Au- gust 10, with some, or all, of the employees being advised that if they could not afford the deduction in full at that time, it could be continued as a loan and paid back in inst- allments.4 E. Respondent's Transfer of its Retail'Business and Discharge of its Retail Drivers Without prior consultation with or notice to the Union, the Respondent on August 31 consummated an agree- would understand Denton 's reference to mean that commissions would in fact be paid in the future if they rejected the Union. 3 It appears that the Respondent regularly adjusted its wage scale to correspond with the scale paid under union contracts in that region, and that the employees had previously been given to understand that some ad- justment in pay would be made as soon as the current union contracts with union dairies were executed. 4 There was other alleged 8(a)(1) conduct , such as a discriminatory denial of vacation pay, but I am not satisfied that the evidence supports such an allegation, and in other instances additional findings would be merely cumulative, with no substantial effect on a proposed remedy. CAMBRIDGE DAIRY, INC. ment with City Park-Brookridge Farm Dairy, hereinafter City Park, an operator of home delivery routes in Denver, whereby City Park took over and assumed complete control of all of Respondent's home delivery routes, effective September 1. The Respondent's em- ployees were advised by Denton of this action on August 31 and the retail drivers then in Respondent's employ were told that all who wished to accept employment with City Park would be so employed. An officer of City Park spoke to the men, stating that City Park had not "bought" the Cambridge routes but was merely taking them over. The transaction by which City Park took over Respond- ent's delivery routes was oral and there was no direct money consideration binding the agreement. It does ap- pear however that there was at least a month-by-month agreement that City Park would continue the use of Cam- bridge milk and services on the routes it was taking over. All of Respondent's retail drivers except one were of- fered and accepted employment with City Park, and beginning September 1 were carried on the City Park payroll. Some of these are still employed by City Park; others have voluntarily left this employ. There is no evidence that any of them suffered any loss of pay because of the changeover, and as employees of City Park they were under a union contract. Nor was there any substantial change in working conditions: they wore the same uniforms, delivered the same products with the same labels, had the same routes, and used the same billing sheets in their account books. Respondent disposed of all the trucks it had used prior to September 1 in its retail delivery service. Charles Herman, a driver and relief man, the one per- son employed by the Respondent in its retail delivery ser- vice prior to September 1 who was not offered a job by City Park, was retained on Respondent's payroll for about a month after September 1 in odd jobs. City Park had objected to transferring him to its payroll. F. Conclusions on Interference, Restraint, Coercion Respondent argues in substance that assuming arguendo conduct occurred as set forth in section D, above, the said conduct, allegedly constituting threats and coercion, actually amounted to no more than predictions of what might occur if the employees became organized, and was therefore permissive, and that conduct allegedly constituting inducements to thwart unionization was ac- tually independent of and unrelated to organizational ac- tivities. I do not agree. The interrogations of employees by top management concerning their union affiliation and activities were not privileged because they occurred in a context of Respondent's overt and vehement opposition to the Union culminating in its disposal of its retail delivery service, to be discussed hereinafter. Nor are Denton's statements, to the effect that if the employees accepted Union representation, routes would be cut thereby requiring the release of some drivers, certain devices would be installed, such as meters on trucks, to require that the drivers put in an 8-hour day, and drivers would be required to work harder and do more soliciting and collecting, properly regarded as mere predictions of what might occur if the plant became organized. It may well be that Denton did not state these matters as a foregone conclusion in the event the Union was success- 721 ful, but I am convinced that that was the impression he wished to convey and that the employees would reasonably so construe his remarks. When such state- ments were attended by verbal attack on an officer of the Union and the declaration that he would not be allowed on company premises; and the threat that the Respondent would dispose of its retail delivery business rather than deal with the Union, they can hardly be construed as mere opinions on what might happen in the event of a union victory. Remarks made in spirit of "come let us reason together" may well be permissive whereas the same or kindred statements made in an atmosphere of unequivocal hostility and overt threats lose their permis- sive character. The promise of beneits in the event the employees re- jected the Union were equally coercive and unlawful. While the retroactive wage increase granted the em- pboyees while the matter of union representation was pending may well have been agreed on in principle prior to the advent of the Union, its timing was crucial, and ob- viously meant to wean the employees away from their union affiliation, and when, shortly thereafter, it was withdrawn, ostensibly on the basis of some warning by Respondent's attorney not to- interfere with the wage structure while the matter of union representation was pending, its effect, in the context of Respondent's overall attitude of opposition to the Union, as exemplified by its statements and conduct, was a demonstration of Re- spondent's power either to reward its employees for repudiating the Union or to penalize them if they con- tinued their Union support. The withdrawal of the em- ployees' privilege of availing themselves of "dumps" belongs in the same category. Respondent was no more privileged to withdraw what it might well have regarded as "gifts" in order to discourage union affiliation, than if the so-called "gifts" were apart of its wage structure. On the entire record I find that by its unlawful inter- rogation of its employees concerning their union affilia- tion and activities; its threats of worsened and more onerous working conditions in the event the employees accepted union representation; its attempted bribe of its employees to forego union representation by the timing of a retroactive wage increase and later withdrawal of the said benefit when the bribe appeared to have failed; its withdrawal of the privilege of obtaining "dumps" free of charge in order to discourage union affiliation; and its threat to dispose of its retail delivery service rather than deal with the Union, the Respondent interfered with, restrained, and coerced its employees in violation of Sec- tion 8(a)(1) of the Act. G. Conclusions on the Refusal to Bargain The refusal to bargain is so clear as to be virtually ad- mitted, and the issue therefore turns on whether the refusal was unlawful. That it was is scarcely less clear. At the time it made its recognition demand the Union had been designated bargaining representative by a clear majority in an appropriate unit. Its recognition demand was unequivocal. That it filed a petition for an election simultaneously with the demand gave the Respondent no license to defer or deny recognition unless it had a good- faith doubt of the Union's majority status. Nowhere in the record is there evidence that such a good-faith doubt 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was held or expressed. Assuming that the issue of the Board's jurisdiction was raised in good faith, it, unless well founded, provided no justification for the refusal, and it was not well founded. Respondent's whole course of action following the Union's recognition demand, belies any contention that it withheld and refused recognition because of a good- faith doubt of the Union's majority, for immediately after the recognition demand it embarked on a course of unlaw- ful interrogations of its employees concerning their union activities, made threats of worsened working conditions in the event its employees chose union representation, of- fered inducements to persuade its employees to forego such representation, and withdrew a privilege and retroactive pay previously granted once it became con- vinced that its efforts to discourage union representation. had failed. Obviously, it would not have taken such steps to undermine the Union's majority status had it not been convinced that the Union had a majority status to un- dermine. Finally, without notice to or consultation with the Union, it discharged all its retail drivers, apparently the nucleus of union organization, and disposed of its retail delivery service, actions which of themselves con- stituted an unlawful refusal to bargain. It is noted in this connection that it did not dispose of its entire business, only its retail delivery service, and therefore cases cited by Respondent's attorney holding that an employer may lawfully close down his entire business at will are not in point. A further distinction in cases relied on by the Respondent, notably N.L.R.B. v. Adams Dairy, Inc., 350' F.2d 108 (C.A. 8), is that here it is established to my satisfaction and I find that Respondent's disposal of its retail delivery service was motivated in substantial part by its desire and intent to escape its bargaining obliga- tions- Respondent presented only one witness, its controller, Richard A. Denton, who testified, in substance, to the un- soundness of Respondent's financial position, the impair- ment of its capital structure through operating losses, and its deliverations on disposing of its business altogether, or lacking a buyer, disposing of its retail delivery service which, according to Denton, was its heaviest loser. Denton testified that a 'conference of officers and stockholders was held as early as December 1965, to consider the financial dilemma, and that as early as February or March 1966, conferences were held with City Park concerning, the disposal of the retail delivery service, and that various other dairies were contacted in the matter. Questioned, What was the gist of the discussion [s] at that time? Denton testified: Oh, just kicking around the possibility of it, because it was becoming more and more difficult to pay the bills; and I think it was in February that Mrs. Denton and Mrs. Harbold said there would be no more outside funds coming in, that either the dairy made it on its own or that was it. So, City Park was contacted, as well as a number of other dairies from time to time. Further according to Denton, "it was really not a seller's market and no one was interested in taking on a business that would continue to increase the total percentages of their loss. However, as the summer progressed, from spring to summer, the price market, retail and wholesale, started stabilizing ..." About 'the middle of August, testified Denton, Re- spondent had an offer from one of the local dairies which would pay "a very small amount per customer" but the offer was rejected, apparently because this other dairy was also engaged in the wholesale business and would not agree to use Respondent's product. In the interim, negotiations with City Park were continuing and there were discussions between the parties "between the 15th and 20th of August." Concerning the conclusion of the arrangement finally arrived at with City Park, Denton testified, "I would say it probably wasn't finalized until about the 27th of August." Though the agreement was not in writing, Denton testified concerning it, "They said that they would give us so much volume, that volume which we already had with them which there was no con- tract about, plus the volume that was present on the Cam- bridge routes as of September 1, 1966, in paper and glass." No records were produced to substantiate Denton's claim of operating loss, and while his testimony on the whole was persuasive it is difficult not to wonder why, if the retail business was still a heavy loser as of September 1, another dairy would be interested in taking it over at any price, and one dairy was even willing to pay a money consideration based on a count of Cambridge customers. It may well be that the stabilization of prices which took place, according to Denton, during the spring and summer, brought a measure of stability to Respondent's retail business, and this would make more plausible the offers of other dairies to take over these retail routes, but Denton's testimony, uncorroborated and unsupported by records or otherwise, leaves such matters in doubt. Further, though City Park made no direct payment for its takeover of Cambridge routes, it is clear from Denton's testimony that there was a firm though oral understanding that City Park would add the volume of Cambridge's product used on its retail routes to the volume already used by City Park. In that sense there was a definite and substantial consideration for the takeover. In short, while on the whole I am not prepared to find that economic considerations did not enter into Respond- ent's disposal of its retail delivery business, on the evidence I am convinced, as previously indicated, that a primary consideration for this action was Respondent's desire and intent to escape its bargaining obligations. Donald Denton made the threat that Respondent had rather dispose of its retail business than to deal with the Union and it is obvious that at the time the takeover was effectuated Respondent feared that the Union would prevail in an election when and if an election was held, this despite its efforts to thwart organizational efforts. No plausible explanation was offered why a matter which, ac- cording to Denton, Cambridge had first raised with City Park in December 1965, and on which there had been recurring conferences at intervals thereafter, narrowed down to a final offer only in August and shortly after Respondent had received the Union's demand for recog- nition. Considering all the circumstances, Respondent's plea of economic motivation is not easily disentangled from the more obvious motivation which stems from its consternation on being confronted with a demand for union recognition, and its efforts thenceforth to discourage organizational efforts by threats and promises, a disentanglement which I am not able to undertake on this record. Why, if Respondent's retail business was under such financial stress that Respondent was ready to give it away (as it would have us view the matter) did the threat of unionization give it so much concern? If a deci- CAMBRIDGE DAIRY, INC. sion had already been arrived at to go out of the retail business at such an early date, why bother to attempt to defeat the Union's organizational efforts since in such event a union victory would avail it little if anything? Why go through the motions of participating in hearings on the Union's election petition? Respondent has not afforded a convincing answer to these and kindred questions. On the entire record, while not discounting Denton's representations that Respondent was undergoing economic stress and seeking a way out, I am convinced that Respondent's disposal of its retail business was ad- vanced and timed to meet the threat of having its freedom in such matters restricted through the requirements and obligations of collective bargaining. Were it held that Respondent's action in disposing of its retail business, re- gardless of mixed motivation, fell within the bounds of "entrepreneurial control" (Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203; concurring opinion of Mr. Justice Stewart, at 223), the Respondent was nevertheless under obligation to notify the Union of its decision with sufficient advance notice to afford the Union an opportunity to bargain over the rights of the em- ployees whose employment status would be altered by Respondent's "managerial" decision. N.L.R.B. v. Transmarine Navigation Corporation, 380 F.2d 933 (C.A. 9), remanding 152 NLRB 998. I find that on July 26, 1966, and at all times thereafter, the Respondent refused to bargain with the Union and that the said refusal constituted a violation of Section 8(a)(1) and (5) of the Act. H. Conclusions on the Discharges It having been found that a primary motivation for Respondent's action in disposing of its retail delivery business effective September 1, 1966, was its desire and intent to escape its bargaining obligations, it follows that its discharge of all its retail delivery drivers, except one, on August 31 was discriminatory and violative of Section 8(a)(1) and (3) of the Act, and it is so found. The one em- ployee engaged in its retail delivery operation not discharged on August 31, Charles Herman, was kept in its employ only about a month thereafter and then discharged. There is no showing that he would have been discharged except that Respondent had unlawfully disposed of its retail delivery operation, and therefore his discharge also, resting on an unlawful base, was dis- criminatory within the meaning of Section 8(a)(3) of the Act, and constituted, derivatively, a violation of Section 8(a)(1). It is so found. IV. THE REMEDY The facts of this case are clear enough and so is the ap- plicable law. What has given me pause and baffling con- cern is the devising of a meaningful remedy such as would truly effectuate the policies of the Act. While I have found that the Respondent in disposing of its retail busi- ness was motivated in substantial part by its desire to escape its bargaining obligations, there are certain facets of this action which make the conventional remedy of reinstating its retail delivery service and thereby recon- stituting the appropriate unit as it existed at the time the refusal to bargain occurred, untenable. I am satisfied that Respondent's retail delivery was unprofitable to a degree that it could successfully resist any requirement that it 723 reconstitute this portion of its business. Furthermore, for such a requirement to become viable City Park would have to relinquish the delivery routes it took over from Cambridge and, assuming arguendo, that this could be required of City Park, by this time the Cambridge routes in all probability have been so merged and intermingled with City Park routes that they have lost their separate identity. Finally, and of considerable significance, in City Park's takeover there was no actual gap in employment of Respondent's employees and they suffered no economic loss. The evidence is that they suffered no loss of any kind unless it was to be represented by the Union they had chosen, and even there we must consider that in their transfer to City Park's payroll they came under a union contract, though whether it was the union they had chosen as Respondent's employees is not shown. In the time that has elapsed since the takeover, some, perhaps many, of them have voluntarily severed their employment with City Park to accept what they considered more desirable positions, and it is not shown that in any in- stance this has occurred because City Park offered less desirable employment than they had enjoyed when in Respondent's employ. For all these reasons any attempt to restore the status quo ante by ordering Respondent to resume its retail delivery service would be impractical and, I think, unenforceable. I can, and shall make the recommendation, though doubting its efficacy, that if and when the Respondent should resume a retail delivery service it shall offer all employees engaged as drivers in its retail business as of August 31, 1966, reinstatement to their former or equivalent positions, without prejudice to their seniority and other privileges, in the order and rank as if no dis- crimination had occurred, and make them whole for any losses incurred because of Respondent's discrimination against them from the date that Respondent resumes a retail delivery service until the date the offer of reinstate- ment is made. I shall also recommend that the Respond- ent recognize and bargain with the Union in the previ- ously described appropriate unit, both as to the matter of resuming its retail delivery service and all other ap- propriate bargaining matters. Had the Union been duly recognized it would not have lost its representative status through the loss of the retail drivers to the appropriate unit but would have continued to represent those remain- ing in the unit, and it is entitled to have its status recog- nized and enforced. As to the one retail driver denied transfer to the City Park payroll as of September 1, 1966, who was thereafter discharged by the Respondent, his discharge having resulted from Respondent's unlawful refusal to bargain with the Union regarding the disposal of Respondent's retail delivery service and its effect on unit employees, was discriminatory and his reinstatement with backpay therefore required. Accordingly, it will be recommended that Respondent offer Charles Herman immediate and full reinstatement to the position he held at the time of his discharge, about a month following Respondent's disposal of its retail delivery service, or its equivalent, without prejudice to his seniority and other rights and privileges, dismissing if necessary any employee hired subsequent to the discharge in a position which Herman is qualified to fill, and make Herman whole for any loss of pay suffered because of the discrimination against him by payment to him of a sum of money equal to that which he normally would have been paid in Respondent's employ from the date of the discharge to the date of Respondent's 1 350-2 12 0-70-47 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offer of reinstatement, less his net earnings, if any, during said period. Loss of pay under all backpay orders recom- mended herein shall be computed upon a quarterly basis in the manner established by the Board in F. W. Wool- worth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Respondent's violations are of such character and scope that a broad cease-and-desist order is required. 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 Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All wholesale and retail driver salesmen and/or route drivers including relief drivers employed by the Respondent in its Denver, Colorado operation, excluding office clerical employees, plant employees, guards, professional and supervisory employees as defined in the Act, on July 22, 1966, and at all times material herein, constituted a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. At all times since July 22,1966, the Union has been the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. 5. By refusing on July 26, 1966, and at all times thereafter, to bargain collectively with the aforesaid labor organization, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 6. By discharging on August 31, 1966, all employees engaged in its retail delivery service because of their union and concerted activities, thereby discouraging membership in a 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. 7. Because of the aforestated conduct; by unlawfully interrogating its employees concerning their union affilia- tion and activities; threatening reprisals in the event the Union was successful in organizing the plant; promising rewards for foregoing union representation; and withdrawing benefits previously granted to discourage union affiliation, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in the case , and pursuant to Section 10(c) of the Act, as amended, it is recommended 5 In the event that 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. In the further event that the Board's Order is enforced by a decree of a United States that Respondent, its officers, agents, successors and as- signs, shall: 1. Cease and desist from: (a) Refusing, on request, to bargain collectively in good faith with the Union as the exclusive collective-bar- gaining representative of all employees in the aforestated appropriate unit. (b) Discouraging membership of any employee in the Union, or any other labor organization, by discharging or in any other manner discriminating against any employee with regard to his hire or tenure of employment, or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act. (c) Interrogating employees concerning their union be- liefs and activities; threatening them with reprisals for en- gaging in union activities; promising rewards for forego- ing union representation; withdrawing benefits previously granted in order to discourage union affiliation; or in any other manner interfering with, restraining, or coercing its employees in the right to self-organization, to form their own labor organization, to join or assist the Union, or any other labor organization, to bargain collectively with representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or for 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 agreement requiring mem- bership in a labor organization as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request bargain collectively with the Union as the bargaining representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) If and when it resumes its retail business , offer all employees in the previously described appropriate unit whose employment it terminated on August 31, 1966, reinstatement to their former or equivalent positions and make them whole for any loss of pay they may have suf- fered as a result of the discrimination against them, in the manner set forth above in the section entitled "The Remedy." (c) Offer Charles Herman immediate and full rein- statement to his former or equivalent position and make him whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth above in the section entitled "The Remedy." (d) Notify Charles Herman and, in the event it resumes its retail business, all its employees in the unit found herein to be appropriate whose employment it ter- minated on August 31, 1966, if presently or then 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 Training and Service Act, as amended, after discharge from the Armed Forces. (e) Post at its offices in Denver, Colorado, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words " a Decision and Order." CAMBRIDGE DAIRY, INC. Region 27, after being duly signed by Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 27, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.6 I In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT discourage membership in Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 537, or any other labor organization, by discharging or otherwise discriminating against employees in re- gard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concern- ing their union views and activities; threaten reprisals if they affiliate with or support a labor or- ganization; offer rewards for foregoing union affilia- tion; withdraw previously granted benefits to discourage union affiliation; or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named union, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. 725 WE WILL bargain collectively, on request, with the above-named union as the exclusive representative of employees in the bargaining unit described below with respect to wages, rates of pay, hours of employ- ment or other terms and conditions of employment, and, if an understanding is reached, embody such un- derstanding in a signed agreement. The bargaining unit is: All wholesale and retail driver salesmen and/or route drivers including relief drivers em- ployed by the Respondent in its Denver, Colorado operation, excluding office clerical employees, plant employees, guards, profes- sional and supervisory employees as defined in the Act. WE WILL offer immediate and full reinstatement to Charles Herman, and upon resumption of our retail business, if and when it is resumed, immediate and full reinstatement to our employees in the aforestated appropriate unit whose employment was terminated on August 31, 1966, and make the aforesaid em- ployees whole for any loss of pay they may have suf- fered because of the discrimination against them. All our employees are free to become, remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. We will not discriminate in regard to hire or tenure of employment, or any term or condition of employment, against any em- ployee because of membership in or activity on behalf of any labor organization. CAMBRIDGE DAIRY, INC. (Employer) Dated By (Representative) (Title) Note: We will notify the aforesaid employees if 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 Training and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 2240 New Custom House, 721 19th Street, Denver, Colorado 80202, Telephone 297-3 55 1.