McKesson & Robbins, Inc.

In the Matter Of MCKESSON & ROBBINS, INC., MCKESSON -STEWART- HOLMES DRUG DIVISION and INTERNATIONAL LONGSHOREMEN & WARE- HOUSEMEN'S UNION, LOCAL No. 9, DISTRICT 1, AFFILIATED WITH THE C. I. O. In the Matter of MCKESSON & ROBBINS, INC., BLIIMAUER FRANK: DRUG DIVISION and INTERNATIONAL LONGSHOREMEN & WAREHOUSEMEN'S UNION, LOCAL No. 9 , DISTRICT 1, AFFILIATED WITH THE C. I. O. Cases Nos . C-1103 and C-1104, respectively.Decided January 03,1940 Wholesale Drug and Liquor Industry-Jurisdiction of Board: effect of injunc- tion order in proceeding for reorganization of respondent under Chapter X of Bankruptcy Act-Interference, Restraint , and Coercion : aiding in solicitation of members by labor organization ; warning employees operations might have to be discontinued unless employees joined such organization ; signing closed-shop contract with organization not representing majority of employees in appro- priate unit covered by contract when made ; reproving employees because of refusal to join Contracting labor organization-Jurisdictional Dispute : agreement between two unions to submit jurisdictional dispute . to convention of organiza- tion with which both unions were affiliated ; effect of termination of affiliation by one union ; unfair labor practices committed because of pressure by union in- volved in jurisdictional dispute-Representatives : proof of choice : agreement by individual employees to be bound by agreement between two unions to submit jurisdictional dispute to convention of organization with which both unions were affiliated , and grant of jurisdiction by said convention to one union after the other had terminated its affiliation ; election as proof of majority prior to election ; election following unfair labor practices by employer-Closed-shop Contract : with union not representing majority of employees-Discrimination: refusal to continue in employment persons who would not join labor organiza- tion having invalid closed -shop contract ; failing to fill openings by transfer of em- ployees from closed plant and, in so far as work was unavailable , failing to retain such employees as laid-off employees to be recalled as work became available, where the employees would have been so transferred and/or retained but for their refusal to join labor organization having invalid closed-shop contract- Reinstatement Ordered : employees found discriminated against ; displacement of newly hired employees ; displacement of old employees given favored treatment ; preferential list to be followed in further reinstatement-Back Pay: not awarded, except for refusal to comply with Order, because rights of parties involved in doubtRemedial Order: special form of ; employer to cease giving effect to closed-shop contract found invalid , and to cease recognizing contracting union as exclusive representative of employees unless and until certified by Board- Procedure : directing and holding election during pendency of charges based upon facts brought out at hearing in representation proceeding ; estoppel : failure of union filing charges to raise issue as to unfair labor practices at time of repre- sentation proceeding-Evidence : activities of union organizers in preventing 19 N. L. R. B., No. 85. 778 \IcKESSON & BOBBINS, INCORPORATED 779 employees from working deemed, in view of circumstances , attributable to employer. Mr. William A. Babcock, Jr., for the Board. Bogle, Bogle d Gates, by Mr. Cassius E. Gates, of Seattle , Wash.; Mr. Frederic Wingersky, of New York City; and Mr. Aaron J. Bron- stein, of Boston, Mass.; for the respondent. Houghton, Cluck d Coughlin, by Mr. Paul Coughlin, of Seattle, Wash., for Local No. 9. Mr. George Twritz, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On November 23,1937, International Longshoremen and Warehouse- men's Union, Local 9, District 1, herein called Local No. 9, filed with the Regional Director for the Nineteenth Region (Seattle, Wash- ington) charges alleging that McKesson & Robbins, Inc., Bridgeport, Connecticut, herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of the National Labor Relations Act, 49 Stat. 449, herein called the Act, with respect to employees of the respondent at its McKesson-Stewart-Holmes Drug Division, Seattle, Washington, herein called McKesson-Stewart. On the same day Local No. 9 filed with the Regional Director charges alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of the Act, with respect to employees of the respondent at its Blu nauer Frank Drug Division, Seattle, Wash- ington, herein called McKesson-Blumauer. On June 4, 1938, the Na- tional Labor Relations Board, herein called the Board, acting pur- suant to Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered that the aforesaid cases and a case entitled "Matter of West Coast Whole- sale Drug Company and International Longshoremen cC Warehouse- men's Union, Local No. 9, District 1, affiliated with the C. I. 0." be consolidated for the purpose of hearing. On January 13, 1939, the Board, acting pursuant to the same provision of the Rules and Regulations, ordered that the last-named case be severed from the other two. Upon the aforesaid charges and upon amended charges duly filed by Local No. 9 on July 5, 1938, the Board, by the Regional Director, issued two complaints against the respondent, dated July 13, 1938, 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleging, respectively, that the respondent had engaged in and was engaging in unfair labor practices - affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, with respect to employees of the respondent at McKesson-Stewart and with respect to employees of the respondent at McKesson- Blumauer. Copies of the complaints and the accompanying notices of hearing were duly served upon the respondent, upon Local No. 9, and upon Warehousemen's Union, Local 117, International Brother- hood of Teamsters, Chauffeurs, Stablemen, and Helpers of America, herein called the Teamsters' Union, a labor organization with which the respondent had made certain collective labor agreements referred to in the complaints. With respect to the unfair labor practices, the complaints alleged in substance, (1) that on or about November 15, 1937, at which time the Teamsters' Union represented practically no employees of the respond- ent at McKesson-Stewart or McKesson-Bluma.uer, the respondent signed two closed-shop agreements with the Teamsters' Union covering employment, respectively, in each of the said Divisions, thereby inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act; (2) that on or about November 16, 1937, the respondent discharged, and at all times thereafter refused to reinstate, R. G. Fields, E. W. Hope, G. C. Rogers, Frank Schoener, Glen Schoener, and Claire E. Short, employees of the respondent at McKesson-Stewart, and Warren Alderson, Earl Bergum, Leonard Dahlheimer, Lloyd Ellingson, Art Hardy, Austin House, Andy Huffine, B. (Tink) Johnson, Ray Martinson, O. E. Peterson, Stuart Phalan, William Purvis,' Tom Weiss, Leslie Wellwood, and Elmer Williams, employees of the respondent at McKesson-Blumauer, solely for the reason that they were members of Local No. 9 and refused to join the Teamsters' Union, thereby discriminating against them with regard to tenure of employment, for the purpose of encouraging membership in the Teamsters' Union and for the purpose of discourag- ing membership in Local No. 9; and (3) that.by discharging the said employees, by signing the above-mentioned closed-shop agreements with the Teamsters' Union, and by various other acts and statements, the respondent has interfered with, restrained, and coerced its em- ployees in the right to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargain- ing for their mutual aid and protection. On or about July 28, 1938, the respondent filed an answer to both complaints, in which it admitted the signing of the closed-shop agree- i Referred to in the complaint as Wm . Purvis. llcKES'BO'N` & ROBINS, INCORPORATED 781 ments, but otherwise denied all the material allegations, of the com- plaints relating to unfair labor practices. The answer alleged, among other things, that the Teamsters' Union was the choice of a majority of the employees ; that the closed-shop agreements were executed pur- suant to the terms of a certain agreement, herein called the Truce Agreement, by the terms of which all the employees at McKesson- Stewart and McKesson-Blumauer had agreed to be bound; that the employees referred to in the complaints were not discharged, but quit the respondent's employ in violation of the Truce Agreement; that on November 15, 1937, the operations at McKesson-Blumauer were discon- tinued, causing a reduction in the number of employees necessary to operate the respondent's business; that the respondent was willing to reemploy any of its former employees, upon application, as soon as business would permit; and that the labor difficulties were solely the result of a jurisdictional dispute between Local No. 9 and the Team- sters' Union. Pursuant to the notices of hearing and orders of postponement of hearing, which were duly served upon the respondent, Local No. 9, and the Teamsters' Union, a hearing was held at Seattle, Washington, on September 19, 20, 21, and 22, 1938, before Dwight W. Stephenson, the Trial Examiner duly designated by the Board. The Board, the respondent, and Local No. 9 were represented by counsel and partici- pated in the hearing. The Teamsters' Union did not participate in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Ex- aminer made a number of rulings on motions and on objections to the admission of evidence and, on motion by counsel for the Board, dis- missed the complaint with respect to Art Hardy, Austin House, Stuart Phalan, and Elmer Williams. The Board has reviewed such rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. At the outset of the hearing and again at the close of the Board's case counsel for the respondent made motions to dismiss the complaints, rulings on which were reserved by the Trial Examiner. By order made on December 8, 1938, by Alfred C. Coxe, United States District Judge, in proceedings entitled, "In the Matter of McKesson cf Robbins, Incorporated, Debtor," brought in the United States District Court for the Southern District of New York for the reorganization of the respondent under Chapter X of the Bankruptcy Act, William J. Wardall was duly appointed Trustee of the estate and all the assets of the respondent, whether situated within or without the Southern District of New York, and was empowered to manage, operate, and conduct the business of the respondent, wherever situ- 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ated.2 The • order restrained certain classes of persons from doing certain acts there enumerated, and stayed all suits against the re- spondent until after final decree in the reorganization proceedings. A copy of the said order was received by the Board on January 23, 1939. We find that the instant proceedings are not affected by the said restraining order. On or about December 24, 1938, the Trial Examiner filed his Inter- mediate Report, copies of which were duly served upon the respondent, Local No. 9, and the Teamsters' Union. In the said Report the Trial Examiner denied the respondent's motions to dismiss the complaints above referred to, found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from such practices. He also recommended that the respondent offer to rein- state with back pay R. G. Fields, E. W. Hope, G. C. Rogers, Frank Schoener, Glen Schoener, and Claire E. Short, discharging, if neces- sary, employees hired by the respondent since November 17, 1937; that it offer Warren Alderson, Earl Bergum, Leonard Dahlheimer, Lloyd Ellingson, Andy Huffine, Ray Martinson, O. E. Peterson, William Purvis, Tom Weiss, and Leslie Wellwood employment at its plant in positions the same as, or equivalent to, those formerly held by each of them at McKesson-Blumauer, to the extent that such positions were then filled by persons hired subsequently to the hiring of eight former employees at McKesson-Blumauer and six new employees referred to in the Intermediate Report, the offer to be made to the above-named employees in the order of their seniority; that the respondent place those of the above-named employees for whom no positions were avail- able upon a preferential list and offer them employment before engag- ing any additional new employees, and that such offers continue until sufficient acceptances were received to fill all positions created since the hiring above referred to, or to be created. Local No. 9 and the respondent, by Wardall, the Trustee of its estate, filed exceptions to the Intermediate Report. The respondent, by said Trustee, also filed a brief in support of its exceptions and requested oral argument. On March 23, 1939, pursuant to notice duly served upon the re- spondent, Local No. 9, and the Teamsters' Union, a hearing was held before the Board at Washington, D. C. for the purpose of oral argu- ment. The Trustee of the estate of the respondent was represented by counsel and participated in the oral argument. On June 17, 1939, the 2 Under the said order Charles F . Michaels was appointed an additional Trustee, but by order of Judge Core made in the above-mentioned reorganization proceedings on De- cember 19, 1938, the resignation of the said Michaels was accepted and Wardall was continued in office as sole Trustee. IIcKES`SON & ROBBII S, INCORPORATED 783 Board, by its Secretary , duly notified the parties that they were granted the right to request further oral argument. No such request has been filed. The Board has considered the exceptions to the Intermediate Re- port of the Trial Examiner and the arguments advanced on behalf of the respondent in its brief and upon the oral argument. The Board finds the exceptions to be without merit, save for those which are con- sistent with the findings , conclusions, and order set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT McKesson & Robbins , Inc., is a Maryland corporation having its principal place of business at Bridgeport, Connecticut. It is engaged in the business of the manufacture , sale, and distribution of wholesale drugs, drug products, liquors , and sundry goods and products com- monly sold in drug .,stores, and has a large number of wholesale houses in different States of the United States, each of which is a division under local management having its own warehouse. Prior to October 1, 1937, the respondent operated one such division , the McKesson- Stewart-Holmes Drug Division , in Seattle. As of October 1, 1937, the respondent purchased and took possession of the assets of Blumauer Frank Drug Company, including a wholesale drug house in Seattle which the respondent operated as a second Seattle division, the Blumauer Frank Drug Division, under the general supervision of C. H. Gertridge, the manager of McKesson -Stewart. On November 16, 1937, the Blumauer Frank Drug Division was closed , and there- after the business of both divisions was conducted at McKesson- Stewart. Eventually the name used was McKesson & Robbins, Inc., Stewart Holmes and Bhunauer Frank Division , herein at times called Stewart-Blumauer , but the record does not show exactly when this name was first used. Most of the goods and products sold by the respondent through its Seattle divisions are and have been shipped to the said divisions from points outside of the State of Washington . In 1937 the sales of the Seattle houses of the respondent and of Blumauer Frank Drug Com- pany amounted to approximately $2,000,000.00 , and in the first half of 1938 the sales of Stewart-Blumauer amounted to approximately $1,200,000.00. About 92 per cent of the sales of the respondent's Seattle divisions represent products sold and shipped to persons within the State of Washington, and the remainder products sold and shipped to persons in the Territory of Alaska. Substantial quantities of goods 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and products are also shipped from Stewart-Blumauer to the respond- ent's divisions in Portland, Oregon, and Spokane, Washington. At the time of the hearing the respondent had approximately 108 employees at Stewart-Blumauer, including 40 employees engaged in work in and about the warehouse. TI. THE ORGANIZATIONS INVOLVED International Longshoremen and Warehousemen's Union, Local 9, District 1, is a labor organization chartered by District 1 of Interna- tional Longshoremen and Warehousemen's Union, herein called the I. L. W. U., which is affiliated with the Committee for Industrial Or- ganization,3 herein called the C. I. O. It admits to its membership all employees of the respondent at Stewart-Blumauer engaged in work in and about the warehouse, and formerly admitted all such employees at McKesson-Stewart and McKesson-Blumauer. It was formed in September 1937 by the officers and members of Weighers, Warehouse- men and Cereal Workers, Local 38-117, of International Longshore- men's Association, herein called the Longshoremen's Union, when the Pacific Coast District of the International Longshoremen's Associa- tion, herein called the I. L. A., gave up its affiliation with the Ameri- can Federation of Labor, herein called the A. F. of L., and became affiliated with the C. I. O. Warehousemen's Union, Local 117, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, is a labor organization chartered by International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, herein called the Teamsters' Brotherhood, which is affiliated with the A. F. of L. It admits to its membership all employees of the respondent at Stewart- Blumauer engaged in work in and about the warehouse, and formerly admitted all such employees at McKesson-Stewart and McKesson- Blumauer. ITT. THE UNFAIR LABOR PRACTICES A. Chronology of events The Longshoremen's Union was formed in June 1935 and the Team- sters' Union in October or November 1936. A large number of thef warehouse employees at McKesson-Stewart and at the Seattle plant of Blumauer Frank Drug Company had joined the Longshoremen's Union by October 1936, and on December 29, 1936, after shut-downs caused by labor disputes, the managements of those two plants agreed with the Longshoremen's Union upon a statement of policies govern- ing labor relations. The plants reopened, but within a few days the 8 Now the Congress of Industrial Organizations. 785 TIcKEi ;S0N '& RO1BBII4S, IN CORPORATED Teamsters' Union began to picket them and to prevent their trucks from running, such action being taken in order to persuade the em- ployees to join the Teamsters' Union. As a result of those activities the two plants closed again on January 7, 1937. In February 1937 the executive council of the A. F. of L. extended the jurisdiction of the Teamsters' Brotherhood, by which the Teamsters' Union had been chartered, so as to cover persons employed in warehouses away from the marine docks and the actual waterfront. The plants here in question are located away from the actual waterfront. It does not appear that prior to the action of the Executive Council the A. F. of L. had granted the Teamsters' Brotherhood jurisdiction over such work- ers. The conflict between the two unions extended also to three other plants in Seattle having warehouses, namely, West Coast Wholesale Drug Company, West Coast Kalsomine Company, and Bemis Brothers Bag Company, herein called the West Coast and Bemis Companies, where events took approximately the same course as at McKesson- Stewart and at the Seattle plant of Blumauer Frank Drug Company.' Various attempts were made to negotiate a settlenielit of the dispute between the two unions at the five plants, and a committee of business and professional men of Seattle, herein called the Citizens' Committee, was formed to aid in the negotiations. Each union and the Citizens' Committee in turn submitted a proposed agreement; 5 but the pro- ,' A large majority of the employees of the West Coast and Bemis Companies had joined the Longshoremen ' s Union by February 1937. The Longshoremen 's Union entered into a written closed-shop agreement with West Coast Wholesale Drug Company on October 9. 1936 , and it agreed with West Coast Kalsomine Company and Bemis Brothers Bag Com- pany upon statements of policy as to labor relations . The Teamsters ' Union commenced to picket West Coast Wholesale Drug Company and Bemis Brothers Bag Company and to prevent trucks from being furnished to them , and as a result those two plants were closed in March 1937. In March 1937 the Teamsters' Union began to picket the plant of West Coast Kalsomine Company and to prevent trucks from being furnished to it. The majority of the employees thereupon joined the Teamsters' Union, and the plant continued to operate . After about 10 days, however, it was closed because of picketing by the Longshoremen ' s Union. 61n Matter of McKesson & Robbins, Inc., Blumauer Frank Drug Division and Inter- national Longshoremen & Warehousemen's Union, Local 9, District 1, affiliated with the C. 1. O. and four other cases consolidated therewith, 5 N. L. It. B. 70, we stated as those proposals, 5 N. L. It . B. 76, footnote 3 : The Longshoremen 's Union's proposal ( Bemis Bag Exhibit No. 5) provided that representatives of both unions would meet to make a final settlement of the mat- ter, and that if, upon such final settlement either union turned out to have mem- bers who should be in the other one, a transfer of membership would be "made upon agreement of the members themselves ." The Teamsters' Union 's proposal (Bemis Bag Exhibit No. 6) provided that the Longshoremen's Union was to be given the discretion to appeal to the A. P. of L. convention to be held in Denver the following October, that in the meantime the five plants would reopen, both unions obeying the jurisdictional decision of the A. F. of L. Executive Council. The Citizens' Committee proposal , made about April 7 , 1937 ( contained in I'eli- tioner's Exhibit No . 23), provided for the reopening of the five plants, the em- ployees of the three drug companies to go back to work under the jurisdiction of the Teamsters' Union, those of Bemis Bag to go back to work under the jurisdic- tion of the Longshoremen's Union, and those of West Coast Kalsomine to remain with whichever of the"two unions they were then affiliated, and that the con- troversy be referred to the aforesaid convention of the A. F. of L. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posals were all rejected by one union or the other. Finally, on or about June 9, 1937, the Citizens' Committee submitted to both unions a proposal, herein called the Truce Agreement, which provided that the five plants would reopen under guarantees by both unions that the workers would be permitted to return to work and that products would be hauled and delivered without interference ; that the em -ployes would return to work under their then union afiliations; that the I. L. A. would appeal from the decision of the A. F. of L. execu- tive council above referred to extending the jurisdiction of the Team- sters' Brotherhood to cover persons in warehouses located away from the marine docks or the actual waterfront and that both unions would be bound by the final decisions of that convention as to which union should have jurisdiction; that if the I. L. A. did not so appeal, both unions would abide by the decision already made by the executive council; that the Truce Agreement would become effective when it was signed by the officers of the unions ; and that the signing of the Truce Agreement by the employees would entitle each one signing to the same position which he had held before the plant in which he worked had ceased operations. The officers of the Longshoremen's Union indicated their agreement with the terms of the proposal. Upon being informed of the position of the Longshoremen's Union, Dave Beck, the International Organizer of the Teamsters' Brotherhood on the West Coast, stated that he would sign if the individual employees and Harry Bridges, the West Coast Organizer for the I. L. A., signed , and if the proposal was approved by the attorney of the Teamsters' Union. The latter approved the proposal, subject to the addition of a provision for the dismissal of a pending injunction suit, to which the Longshoremen 's Union con- sented. On Friday, June 11, 1937, officials of the Longshoremen's Union and two employees of Bemis Brothers Bag Company signed the Truce Agreement, and that night or early the next morning Bridges, who was in Portland, signed. The Truce Agreement was then brought by E. L. Skeel, the attorney for the West Coast and Bemis Companies , accompanied by the manager and several employees of Bemis Brothers Bag Company and by attorneys for the Longshore- men's Union , to Beck for his signature . Beck, after consulting his attorney, insisted that the individual employees sign before he did and that the individual employees also sign the following supplemental agreement : Supplementing the foregoing agreement, we do hereby agree that if the International Longshoremen's Association shall sever its connection with the American Federation of Labor, we will nevertheless obey the jurisdictional decision of the American McKES.SO\ & ROBBINS, I\ CORPORATED 787 Federation of Labor and if the decision of the Executive Council is not reversed, we will immediately make application for mem- bership in the Teamsters' Union. Skeel testified that the attorneys for the Longshoremen's Union con- sented to the addition of the supplemental agreement at the time the Truce Agreement was presented to Beck for signature. It does not appear that Bridges or the officials of the Longshoremen's Union knew of the supplemental agreement at the time they signed the Truce Agreement or at any time prior to the signing of the Truce Agreement or of the supplemental agreement by employees of the companies. About midnight, Sunday, June 13, the attorney for the Teamsters' Union signed on behalf of Beck, and stated at the time that such sign- ing was upon the condition that the agreement should not become effective until the employees had signed it and also the supplemental agreement. A signed copy of the Truce Agreement was handed to a representative of the Citizens' Committee, who was to keep it in his custody until the employees had signed, and Skeel delivered copies of the agreement, with the supplemental clause omitted.6 to the respondent at McKesson-Stewart and to Blumauer Frank Drug Company. The morning newspapers of Monday, June 14, carried news stories stating that the dispute at the five companies had been settled, and many of the employees went to the plants. The respondent reopened McKesson-Stewart and Blumauer Frank Drug Company reopened its Seattle warehouse that day, and all employees at each signed the fol- lowing statement which was annexed to a copy of the Truce Agree- ment : The undersigned employees of (here was inserted the name of the particular company) fully understanding the within agree- ment, hereby approve the same and agree to be bound thereby. Gertridge, the manager of McKesson-Stewart, testified that the re- spondent expended a large sum in order to reopen the plant, and that it would not have done so if it had not understood that the Truce Agreement finally settled the dispute between the two unions. Early in June 1937 the executive board of the I. L. A. ordered that a referendum be taken among the membership of its locals on the question of whether or not the organization should become affiliated with the C. I. 0. The referendum resulted in a vote favorable to affiliation with the C. I. 0. In August 1937 the officers of the I. L. A. received from the C. I. 0. a charter for a new union, the I. L. W. U., and thereafter the officers of the Longshoremen's Union received from the I, L. W. U. the charter for Local No. 9. About September 27, 1937, Local No. 9 distributed among the warehouse employees at McKesson- 0 Skeel testified that this omission was accidental. The copies' delivered to the wort Coast and Bemis Companies had the supplemental clause annexed. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stewart and at the Seattle warehouse of Blumauer Frank Drug Com- pany cards, which most of the employees signed, whereby they author- ized Local No. 9 to represent them in collective bargaining while working under its jurisdiction and whereby they agreed to observe its constitution and bylaws. About this same time, the Employees' Rela- tions Committee of Local No. 9 at McKesson-Stewart wrote the re- spondent that proof had been submitted to the Board that Local No. 9 represented a majority of the employees at McKesson-Stewart and that the committee desired to begin bargaining negotiations. On October 1, 1937, the respondent purchased and took over the operation of Blumauer Frank Drug Company, including the whole- sale drug warehouse of the company located at Seattle. The ware- house was operated by the respondent as a second Seattle division and, as noted above, such division is herein called McKesson-Blumauer. The respondent posted at McKesson-Blumauer on October 1, 1937, a notice advising the employees that the warehouse would continue to be operated indefinitely and that the jobs of the employees would be secure. On October 13, 1937, the A. F. of L. convention in Denver adopted a, supplementary report of the executive council to the effect that it had extended the jurisdiction of the Teamsters' Brotherhood to per- sons employed in warehouses located away from marine docks and the actual waterfronts. On October 27 the respondent, at the request of the Teamsters' Union, delivered to the employees at McKesson- Stewart and McKesson-Blumauer copies of a letter signed by W. L. Glazier, secretary-treasurer of the Teamsters' Union, informing them of the action taken by the convention. The letter stated that the em- ployees were expected to live up to the terms of the Truce Agreement signed by them, including, according to the letter, the supplemental agreement, and stated that employees coming under the jurisdiction of the Teamsters' Union would have to make application for transfer into it by 4 o'clock on October 30, 1937. At the time of the distribu- tion of the letters, Charles E. Fritsch, the superintendent at McKes- son-Blumauer, stated to employees that he hoped the warehouse could continue operation and that the management hoped the employees would govern themselves accordingly. J. C. Anderson, sales man- ager at McKesson-Stewart, stated to a number of employees with respect to the letter, "Of course, this is following out what has taken place as a result of the June 9 agreement [the Truce Agreement]," and also stated that McKesson-Stewart would probably have to dis- continue operation unless the employees joined the Teamsters' Union. On October 28, 1937, Local No. 9 filed with the Regional Director for the Nineteenth Region two petitions alleging that questions had arisen concerning the representation of employees of the respondent i1clir3SON & ROBBINS, INCORPORATED 789 at McKesson-Stewart and at McKesson-Bl mzauer, respectively, and requesting investigations and certifications of representatives for the purposes of collective bargaining. When question was raised at the hearing as to whether the respondent received notice of the filing of the petitions prior to the signing of certain agreements of November 15, 1937, which are discussed below, counsel for the respondent stated that the respondent had notice of the filing of the petitions. We find that the respondent had notice of the filing of the petitions prior to November 15, 1937. On November 15, 1937, the respondent and the Teamsters' Union signed two "Labor Relations Schedules" which provided that all em- ployees engaged in warehouse operations of the respondent at McKes- son-Stewart and McKesson -Blumauer, respectively, should be members in good standing of the Teamsters' Union. The aforesaid Schedules provided that they were to be attached to a Nation-wide agreement of August 18, 1937, between McKesson & Robbins, Inc., and the A. F. of L., which provided, among other things, that McKesson & Robbins, Inc. recognized the A. F. of L. as the representative of all employees of that corporation who are members of the A. F. of L., its affiliated organizations and/or member local unions, and as the sole collective bargaining agency for the employees in those of the corporation's places of business where. a majority of such employees are such members. On the same clay the Labor Relations Schedules were signed, each employee at McKesson-Stewart and at McKesson- Blumauer was handed a letter signed by John Van Vaerenewyck, an organizer for the A. F. of L., in which was enclosed a membership application card of the Teamsters' Union. The letters gave notice of the Labor Relations Schedules and requested that the employees sign the application cards and either mail them to the office of the Teamsters' Union or deliver them personally to Van Vaerenewyck who would be present at the respective plants on November 16. The letters and application cards were distributed to the employees at McKesson- Stewart by Van Vaerenewyck and by Nelson, one of the respondent's officials at McKesson-Stewart. Fritsch, the superintendent at Mc- Kesson-Blumauer, distributed the letters and application cards to the eiiiployees at McKesson-Blumauer. On the,morning of November 16, 1937, representatives of the Team- sters' Union appeared at McKesson-Blumauer before work began and demanded submission of signed application cards for membership in the Teamsters' Union. The employees refused to submit such applica- tions and the Teamsters' Union commenced to picket the plant. Wood- ruff, manager at McKessen-Blumauer, remarked to one of the em- ployees, "What is the matter with you fellows? ... You seem to take the attitude that you don't care whether the company closes or not _'83030-41-vol. ]fl--:,1 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ... You fellows don't seem to care whether you keep on working or not ... It seems like you don't want to when you have a chance to keep on working." Nothwithstanding the picketing the respondent continued operation at McKesson-Blumauer on November 16, but no transportation was. available to move the products in or out. At the close of the workday, Woodruff called a meeting of the employees and informed them that because of the picketing and Tack of trans- portation facilities work at the plant was being suspended and the employees temporarily laid off but that the employees would be re- called when the plant reopened. He also stated that James H.. Parks, the respondent's divisional vice president for its western division, had said that the employees would be transferred to McKesson- Stewart as work became available there and that the McKesson- Blurnauer employees would be assigned to the transfer of stock from McKesson-Blumauer to McKesson-Stewart when such work was un- dertaken. When questioned at the hearing as to whether he had au- thorized Woodruff to state that "the Blumauer employees would be taken care of," Parks testified as follows : "Not all inclusive, no." He did not, however, otherwise deny the accuracy of the statement which Woodruff informed the employees Parks had made. We con- clude that the respondent held out to employees at McKesson-Blu- mauer assurance of work at McKesson-Stewart as work became avail- able there. On November 16 Woodruff also offered four employees at McKesson- Blumauer, namely, Andy Huffine, Percy Miles, Elmer Williams, and Ronald Graham, work at McKesson-Stewart commencing the next morning if they joined the Teamsters' Union. Acting upon instruc- tions from Gertridge, Woodruff informed the four men that an im- mediate answer relative to their joining the .Teamsters' Union was necessary. The men refused to give an immediate answer and hence were not transferred at that time to McKesson-Stewart. Subsequently a number of the employees at McKesson-Blumauer, including Miles and Graham, agreed to join the Teamsters' Union and were then given work at McKesson-Stewart. Three 7 of such employees had less seniority than all but one or two of the employees at McKesson-Blu- rnauer on November 16 who were not given employment at McKesson- Stewart and a fourth 8 had less seniority than three of such employees at McKesson-Blumauer. Although Gertridge testified that the melt transferred to McKesson-Stewart were selected solely on the basis of proficiency, the record as a whole shows clearly that the respondent would not transfer any employee who refused to join the Teamsters' Union, irrespective of the proficiency of that employee. Subsequent to Claude Curtis, Melvin Klein, and Ronald Gral,am. Percy Miles. McKEwSOI _ 'RO'BBINS, INCORPORATED 791 November 16 the respondent also employed at McKesson -Stewart a number of persons who had not previously been in its employ either at McKesson-Stewart or at McKesson -Blumauer. At various dates after November 16 many of the persons who were employed at McKes- son-Blumauer applied to the respondent for work but were refused employment. A number of these persons were informed that mem- bership in the Teamsters ' Union was a condition of employment. On November 16, 1937, considerable discussion took place at Mc- Kesson-Stewart among the employees and the management regarding membership in the Teamsters' Union. About noon that day Glen Schoener, shop steward of Local No. 9, called a meeting of the members of Local No. 9 at McKesson-Stewart which was addressed by Van. Vaerenewyck, who informed the employees concerning the Nation-wide agreement between the respondent and the A. F. of L., and which was.- also addressed by Gertridge , manager at McKesson -Stewart, who read to the employees the provisions of the Labor Relations Schedule. Gertridge refused, however, to answer directly when questioned as to whether the employees had to join the Teamsters ' Union in order to remain in the respondent's employ. At the close of the meeting the employees present voted unanimously to defer any action relative to joining the Teamsters' Union until after the executive committee of Local No. 9 had held a meeting which was scheduled for that even- ing. During the afternoon Gertridge informed E. W. Hope, president of Local No. 9, that Van Vaerenewyck demanded an immediate an- swer and that the plant would be closed the next morning unless it was given. He added, "Before this thing comes to a head-it is not a fight, . . . once you fellows are outside , why, then, it becomes a fight and it is much more difficult to settle than if you fellows were inside." At Hope's suggestion Schoener called another meeting of the members of Local No. 9 and the members again voted to defer action. Schoener then informed Gertridge of results of the meeting. The latter stated that he was almost certain that the plant would be closed and that Schoener need not report for work the next day.' At the meeting of the executive committee of Local No. 9, which was held as scheduled, almost all the members of Local No . 9 employed at McKesson -Stewart attended and voted unanimously not to join the Teamsters '. Union. When the employees at McKesson -Stewart came to work on the morning of November 17, they were met within the plant by organizers for the Teamsters' Union . J. C. Anderson and several city policemen, were also present . Numerous other city policemen were on the street outside the plant . Each employee , as he arrived at the plant, was asked by the organizers to sign an application for membership in the Tea.u.isters' Union. Those who signed applications were permitted to oThrough what is clearly a typographical error the transcript refers to Gertridge as Dietrich at this point. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work; those who refused were told by the organizers that they could not work, and some who attempted to do so were ejected from the plant by the organizers or otherwise forcibly prevented from working. All the employees of'the respondent who are named in the complaint relating to McKesson-Stewart were among the members of Local No. 9 who, in the presence of Anderson, reported for work and, having refused to sign applications, were prevented from working. There is no evidence that Anderson or any other person on behalf of the re- spondent manifested disapproval of or made any attempt to interfere with the activities of the organizers of the Teamsters' Union, except that Anderson asked the organizers to stop using force against one of the employees. During the latter part of November 193'7 four of the employees who had refused to sign application cards, namely Fields, Rogers, F. Schoener, and G. Schoener, were apparently willing to join the Team- sters' Union and asked Gertridge for reinstatement. The latter in- formed Fields that the Teamsters' Union refused to permit employ- ment of those individuals who had not joined the Teamsters' Union by November 23 or 24. The other three men were informed that no work was available. The respondent did not reopen the McKesson-Blumauer plant after operations ceased on November 16, 1937, but transferred the stock to McKesson-Stewart. On December 4, 1937, the respondent notified the employees who had been at work at McKesson-Blumauer on Novem- ber 16 and who had not been given employment at McKesson-Stewart, including all the persons named in the complaint which relates to McKesson-Blumauer, that subsequently to November 16, 1937, it had decided to close down McKesson-Blumauer permanently and that no further work would be available. Following a hearing on the petitions filed by Local No. 9 on October 28, 1937, the Board on February 4, 1938, issued a Decision and Direc- tion of Elections.10 Pursuant to the Direction of Elections, as amended on February 14, 1938,11 an election was conducted among the persons who were employed in and about the warehouse at McKesson-Stewart or at McKesson-Blumauer on October 28, 1937, to determine whether they desired to be represented by Local No. 9 or by the Teamsters' Union, for the purposes of collective bargaining, or by neither. In the election 32 votes were cast for the Teamsters' Union, 27 for Local No. 9, and no votes were cast for neither. No action has, however, been taken on the petitions pending a determination of the issues presented in the instant case. 10 5 N. L. R. B. 70. 115 N. L. R. B. 88. TcKES'S'0'N & BOBBINS, II3CORPOR.ATED II 793 At the time of the hearing beginning on September 19, 1938, the respondent employed at work in and about the warehouse at McKesson & Robbins, Inc., Stewart Holmes and Blumauer Frank Division,''-' the following 40 employees : 26 who had been in the respondent's employ at McKesson-Stewart on November 16, 1937; 6 who had been in the respondent's employ at McKesson-Blumauer on November 16, 1937; 1 who had been in the respondent's employ at McKesson- Blumauer during October 1937; 1 who had been employed at a time not stated in the record as a foreman in a plant in Spokane pur- chased by the respondent from Blumauer Frank Drug Company; 4 who had not been in the respondent's employ prior to November 16, 1937; and 2 who had been. in the respondent's employ at McKesson- Stewart as temporary helpers or apprentices on November 16, 1937. B. Discrimination with regard to hire and tenure of employment and other interference, restraiint, and coercion We have found above that the respondent in October 1937, at the request of the Teamsters' Union, distributed to employees at McKes- son-Stewart and at McKesson-Blumauer copies of a letter signed by W. L. Glazier, secretary-treasurer of the Teamsters' Union, informing the employees of the action of the A. F. of L. convention in Denver relative to the jurisdictional dispute and stating that the employees should make application for membership in the Teamsters' Union; that at the time of the distribution of copies of the letter officials of the respondent at McKesson-Stewart and at McKesson-Blumauer indicated that the respondent might have to discontinue operation of the plant unless the employees joined the Teamsters' Union; that on November 15, 1937, the respondent signed with the Teamsters' Union Labor Relations Schedules which provided that all- employees en- gaged in warehouse operations of the respondent at McKesson-Stewart and at McKesson-Blumauer, respectively, should be members in good standing of the Teamsters' Union; that supervisory employees of the respondent participated in the distribution of notices relative to the Labor Relations Schedules which had enclosed therewith application cards for membership in the Teamsters' Union; and that the manager at McKesson-Bhunauer on November 16 chided one of the employees about the refusal of the employees to join the Teamsters' Union. We have also found above that when the respondent closed down operations at McKesson-Blumauer on November 16,1937, the respond- ent offered employment ,it McKesson-Stewart to four employees, in- 12 As noted in Section I., the respondent after November 16, 1937, carried on at McKes- son-Stewart the business formerly done at both McKesson-Stewart and at McKesson- Blumauer under the name "McKesson & Robbins, Inc., Stewart Holmes and Blumauer Frank Division." 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eluding two of the persons named in the complaint relating to McKesson-Blumauer,13 on condition that they join the Teamsters' Union, but refused to give such employment when the four employees refused to comply with the condition ; that although the employees at McKesson-Blumauer were given assurance that after the consolidation of the operations of McKesson-Stewart and McKesson-Blumauer at McKesson-Stewart they would be transferred to McKesson-Stewart as work became available, the only employees so transferred were persons who joined the Teamsters' Union and who had less seniority than a number of the persons not given employment; that subsequent to November 16 the respondent employed at McKesson-Stewart a number of persons who had not previously been employed either at McKesson-Stewart or at McKesson-Blumauer; that at various dates after November 16 the respondent informed persons who had worked at McKesson-Blumauer on November 16 and who applied for work at McKesson-Stewart that membership in the Teamsters' Union was a necessary prerequisite; and that on December 4, 1937, the respondent notified the employees who had worked at McKesson-Blumauer on November 16 and who had not been given employment at McKesson- Stewart, including all the persons named in the complaint relating to McKesson-Blumauer, that it had decided to close down McKesson- Blumauer permanently and that no further work would be available. We find that the respondent failed to fill openings as they occurred at McKesson-Stewart on and after November 16 with persons who were employed at McKesson-Blumauer on November 16, giving due weight in filling the openings to the seniority of such persons, because of the refusal of such persons to join the Teamsters' Union. We further find that because Warren Alderson, Earl Bergum, Leonard Dahlheimer, Lloyd Ellingson, Andy Huffine, B. (Tink) Johnson, Ray Martinson, 0. E. Peterson, William Purvis, Tom Weiss, and Leslie Wellwood refused to join the Teamsters' Union, the respondent on December 4, 1937, notified them that no further work would be available, and that but for such refusal the respondent would have given them employment at McKesson-Stewart, or, in so far as work was not available at the time, would have retained them as laid-off employees to be recalled to work at McKesson-Stewart as it became available. We have also found that all persons named in the complaint which relates to McKesson-Stewart were prevented by organizers of the Teamsters' Union from working on November 17, 1937, because they refused to join the Teamsters' Union and that said persons were not thereafter returned to employment by the respondent. The activities Is Huffine and Williams . As stated above, the complaint was dismissed as to Williams, on motion by counsel for the Board. McKESS'ON & ROBBIN.S, INCORPORATED 795 of the organizers for the Teamsters' Union were carried on in the plant in the presence of an official of the respondent. The respondent took no steps to make it possible for the persons in question to work. The respondent had, moreover, shortly prior to November 17 signed the Labor Relations Schedules which provided that the employees at McKesson-Stewart should be members in good standing of the Team- sters' Union. We find that the activities of the organizers for the Team ; ters' Union in preventing from working the employees who were not members of the Teamsters' Union are attributable to the respond- ent.14 We conclude that the respondent on November 17, 1937, and at all times thereafter, refused and failed to give employment to the persons named in the complaint which relates to McKesson-Stewart because said persons refused to join the Teamsters' Union.15 . The respondent contends that it entered into the Labor Relations Schedules, which provided that all employees engaged in warehouse operations of the respondent at McKesson-Stewart and at McKesson- Blumauer should be members of the Teamsters' Union, pursuant to the terms of the Truce Agreement which, it contends, was legal and binding upon it, and that the signing of the Labor Relations Schedules and any action taken pursuant to such Schedules may not properly be held to constitute unfair labor practices. These contentions of the respondent are based in part upon the further contention that since the A. F. of L. convention upheld the decision of the executive coun- cil extending the jurisdiction of the Teamsters' Brotherhood so as to cover persons employed in warehouses away from the marine docks and the waterfront, all employees affected by the Truce Agreement must, under its terms, become members of the Teamsters' Union. We are of the opinion that the Truce Agreement was a means of adjusting a dispute between two organizations affiliated with the A. F. of L. and that the parties did not intend it to be binding in a case where, as in the instant case, one of the parties left the A. F. of L.1° That the Teamsters' Union understood the Truce Agreement to be. so. limited in its application is shown by the fact that Beck, after consulting with the attorney for the Teamsters' Union, insisted upon the execution by the employees of a supplemental agreement providing that if the I. L. A. left the A. F. of L., the employees affected by the Truce Agreement would nevertheless apply for membership in the Teamsters' Union if the' decision of the executive council was not 14 Matter of Mason Manufacturing Company and United Fare itare Workers of America, Local No. 5776, 15 N. L. R. B. 295.. See also Matter of Sunshine Mining Company and International Union of Mine, Mill and Smelter. Workers, 7 N. L. R. B. 1252, 1209. 11 The names of these persons are R. G. Fields, E. W. Hope, G. C. Rogers, Frank Schoener, Glen Schoener, and Claire E. Short. 16 See Matter of McKesson ct Robbins, Inc., Blumauer Frank Drag Division and Inter- national Longshoremen. d Warehousemen's Union, Local No. 9, District 1, affiliated with the 0. I. 0., etc., 5 N. L. R. B. 70. 80. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reversed by: the A. F. of L. convention. The supplemental 'agreements were not sent to the employees at McKesson-Stewart or Blumauer Frank Drug Company, but this was due to an oversight and was in no way indicative of a different interpretation of the Truce Agreement by the respondent or that company. Under the circumstances we conclude that the respondent was not justified on the basis of the Truce Agreement in signing the Labor Relations Schedules or in engaging in any acts pursuant thereto and that the employees who signed the statement that they approved the Truce Agreement and agreed to be bound by it did not thereby designate the Teamsters' Union as their bargaining representative. If the Teamsters' Union did not represent a majority of the em- ployees in appropriate units at McKesson-Stewart and McKesson- Blumauer at the time of the signing by the respondent and the Team- sters' Union ' of the Labor Relations Schedules, it is clear that the proviso of Section 8 (3) of the Act" furnishes no justification for the signing by the respondent of the Labor Relations 'Schedules or for any action taken pursuant to the Schedules. We find that the, Teamsters' Union did not represent a majority of such employees when the Labor Relations Schedules were entered into on November 15, 1937. The only showing relative to representation by the Teamsters' Union on November 15, 1937, of employees at McKesson-Blumauer and at McKesson-Stewart was the following: there was uncontroverted testi- mony that William Armstrong, an employee at McKesson-Blumauer, had joined the Teamsters' Union prior to November 15; five employees at McKesson-Stewart testified that they preferred the Teamsters' Union to Local No. 9; and one employee at McKesson-Stewart testi- fied that. he preferred neither organization and wanted only to do what the majority did. On the other hand, considerable evidence was intro- duced to show that Local No. 9 represented a majority of the employees at McKesson-Stewart and McKesson-Blumauer on the date in ques- tion. Two lists, one showing the membership of Local No. 9 at Mc- Kesson-Stewart and the other showing the membership of Local No. 9 at McKesson-Blumauer, were submitted in evidence. The two lists were based on the membership records of Local No. 9 and its prede- cessor, the Longshoremen's Union, as of September 1, 1937, which'W to available for inspection at the hearing, but the names of persons who had withdrawn from Local No. 9 or the Longshoremen's Union or who had joined the Teamsters' Union between September 1, 1937, and about November 18, 1937, were excluded from the lists. The secretary of 17 The proviso states "That nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of em- ployment membership therein , if such labor organization is the representative of the employees as provided in section 9 (a), in the appropriate collective bargaining Unit covered by such agreement when made." l•IcKDS'SON & ROBBINS , INCORPORATED 797 Local No. 9 testified to the effect that all persons whose names appeared on the two lists were members in good standing of Local No. 9 on November 15, 1937. There were also introduced in evidence lists of the employees at McKesson-Stewart and at McKesson-Blumauer, re- spectively; on October 28, 1937. The parties stipulated that the same persons were engaged in warehouse work at McKesson-Stewart on November 15 as on October 28 and no evidence was introduced relative to any change in the employment status at McKesson-Blumauer be- tween the two dates. In its brief the respondent takes the position that the employees at McKesson-Blumauer were the same on the two dates. A comparison of the aforesaid membership lists of Local No. 9 and the aforesaid lists of employees shows that at least 27 of the 40 em- ployees engaged in warehouse operations at McKesson-Stewart on November 15, 1937, and at least 17 of the 19 employees so engaged on November 15 at McKesson-131unauer were on that date members in good standing of Local No. 9. Although 5 of the aforesaid 27 em- ployees at McKesson-Stewart testified at the hearing that they pre- ferred the Teamsters' Union to Local No. 9, the evidence does not show designation or selection of the Teamsters' Union as bargaining representative by any, of said 5 employees on or prior to November 15. That a majority of the employees at McKesson-Stewart and at McKesson-Blumauer on November 15 did not desire representation by the Teamsters' Union is also indicated by the fact that a large; majority of the employees at the two plants refused on that date to sign applications for membership in the Teamsters' Union although strong attempts were made to persuade them to do so. The respondent also contends that "The entire controversy here involved has already once been before this Board and has been de- cided adversely to the contention of Local No. 9 and the employees complaining herein." It asserts in this regard that the Board had before it all the relevant facts at the time of the representation pro- ceeding and at the time it directed the holding of an election among the employees at-McKesson-Stewart and at McKesson-Blumauer; that the results of the said election show that the Teamsters' Union represented a majority of the employees at McKesson-Stewart and at McKesson-Blumauer prior to November 15, 1937; and that even if the election cannot be deemed to relate back so as to show the desires of the employees prior to November 15, the results of the election show that the Teamsters' Union had a majority as of February 18, 1938, the date of the election, and hence that the Labor Relations Schedules should be considered valid as of that date. The respondent further contends that since Local No. 9 and the employees here in- volved did not at the time of the representation proceedings raise any issue as to the alleged unfair labor practices they are now stopped from raising such issue. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We cannot agree that Local No. 9 or the employees here involved are estopped from raising the issue with respect to the alleged unfair labor practices or that the representation proceedings or the election held in connection therewith constitute a bar to the present proceed- ings. The representation proceedings did not involve the question of unfair labor practices, and the issues here presented with respect to unfair labor practices have not previously been determined by the Board. Although the election directed in the representation pro- ceeding might appropriately have been delayed pending a hearing relative to the matters set forth in the charges, there is nothing in the Act which requires that such a procedure be followed. It should be pointed out in this connection that the Board had not been in- formed at the time it directed the election of the charges which had been filed. Although we regret this fact, we do not think that the Board should for this reason refuse to consider the charges relative to the unfair labor practices. We think it clear, moreover, that the results of the election held on February 18, 1938, cannot be deemed determinative of the desires of the employees on November 15, 1937, the date on which the Labor Relations Schedules were executed. Furthermore, in view of the various acts which we have found the respondent and its officials and supervisory employees engaged in prior to February 18, 1938, and which are set forth in detail above, the results of the election cannot be held to reflect the desires of the employees concerning representa- tion on that date. The election' results cannot therefore be held to validate as. of February 18, 1938, the Labor Relations Schedules, exe- cuted on November 15, 1937. The respondent further contends that "This is, from start to finish, a story of jurisdictional controversy between two unions, in which controversy the employer, and the employees, have long been the vic- tims, the plants involved having been closed some nine months." The union dispute confronted the respondent with an unfortuate dilemma, which we greatly regret. The action, however, by which the respond- ent sought to extricate itself from its difficult situation is clearly for- bidden by the Act, and we may not ignore this fact. As the Circuit Court of Appeals for the Ninth Circuit stated in a recent case,'8 "The act prohibits unfair labor practices in all cases. It permits no im- munity because the employer may think that the exigencies of the moment require infraction of the statute." We find that, by entering into the Labor Relations Schedules with the Teamsters' Union, by distributing to employees at McKesson- Stewart and at McKesson-Blumauer copies of the letters signed by Glazier, by participating in the distribution to such employees of the is National Labor Relations Board v . Star Pub . Co., 97 F. (2d) 465, 470. llcKES'SO'N & ROBBINS , INCORPORATED 799 letters signed by Van Vaerenewyck and the membership cards of the Teamsters' Union, by the statements referred to above made by offi- cials and supervisory employees of the respondent, and by the other acts set forth above in this section, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find that the aforesaid Labor Relations Schedules are void and of no effect. We further find that, by failing to fill openings as they occurred at McKesson-Stewart on and after November 16, 1937, with persons who were employed at McKesson-Blumaner on November 16, 1937, giving due weight in filling the openings to the seniority of said persons, and by its action with respect to the notification sent to employees on De- cember 4, 1937, described above, the respondent discriminated in re- gard to the hire and tenure of employment of Warren Alderson, Earl Bergum, Leonard Dahlheimer, Lloyd Ellingson, Andy Huffine, B. (rink) Johnson, Ray Martinson, O. E. Peterson, William Purvis, Tom Weiss, and Leslie Wellwood, thereby encouraging membership in the Teamsters' Union and discouraging membership in Local No. 9, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that the respondent, by refusing and failing on November 17, 1937, and at all times thereafter, to give employment to R. G. Fields, E. W. Hope, G. C. Rogers, Frank Schoener, Glen Schomer, and Claire E. Short, discriminated with regard to their hire and tenure of employment, thereby encouraging membership in the Teamsters' Union and discouraging membership in Local No. 9, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Bradshaw testified that Dahlheimer, who did not testify at the hearing, was living on a ranch some distance outside of Seattle. The record does not show whether or not he was employed at the time of the hearing. The record shows that Purvis, who likewise did not.tes- tify, was irregularly employed in July 1938 in San Francisco, but does not show whether or not he was employed at the time of the hearing. Bergum had done some work after November 16 for a com- pany operating drug stores, and at a flour mill. The record indicates that he was not employed at the time of the hearing. Alderson had worked for the same drug-store company as Bergum and for the J. C. Penney Company, and at the time of the hearing was employed by the Works Progress Administration. Peterson had had several odd jobs, and at the time of the hearing was obtaining occasional temporary work. Martinson had done some part-time work in a grocery store and, with some other men, had operated a fishing boat. The record indicates that he was not employed at the time of S00 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the hearing. Wellwood had worked part time in retail drug stores and had done some longshore work, and at the time of the hearing he got work irregularly through the union hiring hall. Weiss had done some work for a retail drug store company, and at the time of the hearing was employed by the Works Progress Administration. El- lingson was employed by a pharmaceutical and biological manufac- turer at the time of the hearing as a stock or order clerk. His salary was $95 per month, as compared with $120 per month earned by him at McKesson-Blumauer. Huffine was permanently employed at the time of the hearing by the Decca Distributing Corporation at a salary of $18 per week. His salary with the respondent had been $100 per month. Johnson was employed at the time of the hearing by a phar- maceutical and biological manufacturer at a salary of $140 per month. His salary with the respondent had been $130 per month. Glen Schoener and E. W. Hope were employed at the time of the hearing on Works Progress Administration projects. Fields, Rogers, Frank Schoener, and Short were entirely unemployed. All the employees whom we have found to have been discriminated against desire reinstatement, with the exception of Johnson, who tes- tified at the hearing that he did not desire reinstatement. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate; and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the respondent has engaged in, certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found'that by entering into the Labor Relations Schedules of November 15, 1937, with the Teamsters' Union the respondent en- gaged in an unfair labor practice and that such Schedules are void and of no effect. We shall order the respondent to cease giving effect thereto, any extension or renewal thereof, or to any successor agree- ment with the said Teamsters' Union, which may now be in effect. We have found that the respondent discriminated with regard to the hire and tenure of employment of Warren Alderson, Earl Bergurn, Leonard Dahlheimer, Lloyd Ellingson, Andy Huffine, B. (Tink) McKE'SS'0'N & ROBBINS, INOORPORA.TED 801 Johnson, Ray Martinson, 0. E. Peterson, William Purvis, Tom Weiss, and Leslie Wellwood, who were employed at McKesson-Blumauer, and with regard to the hire and tenure of employment of R. G. Fields, E. W. Hope, G. C. Rogers, Frank Schoener, Glen Schoener, and Claire E. Short, who were employed at McKesson-Stewart. We shall order the respondent to offer the aforesaid persons (with the exception of Johnson, who testified at the hearing that he did not desire reinstate- ment) reinstatement at McKesson & Robbins, Inc., Stewart Holmes and Blumauer Frank Division, to their former or substantially equiva- lent positions, in the manner set forth below, without prejudice to their seniority and other rights and privileges. The reinstatement of the persons named above shall be effected in the following manner : All, or such number as may be necessary,, of the. persons hired by the respondent after November 16, 1937, at what is now known as McKesson & Robbins, Inc., Stewart Holmes and Blumauer Frank Divi- sion,, shall be, dismissed. to provide employment for those to be offered reinstatement. If, thereupon, despite such reduction in force, there is not sufficient employment immediately available for the persons pres- ently employed by the respondent, excluding those so dismissed, and for the persons to be offered reinstatement, all available positions shall be distributed, first among the persons presently employed by the re- spondent who were employed at McKesson-Stewart on November 16, 1937, and the persons to be offered reinstatement who were employed at McKesson-Stewart on November 16, 1937, and secondly among the persons presently employed by the respondent who were employed at McKesson-Blumauer on November 16, 1937, and the persons to be offered reinstatement who were employed at McKesson-Blumauer on November 16, 1937, the distribution of positions among the persons in the two respective groups to be in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation and activities, following a system of seniority or other procedure to such an extent as has hereto- fore been applied in the conduct of the respondent's business. Those employees remaining after such distribution for whom no employment is immediately available shall be placed upon a preferential list with priority determined among them in accordance with the principles set forth above, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent posi- tions as such employment becomes available and before other persons are hired for such work. The persons who are to be offered reinstatement would normally also be entitled to back pay for the entire period of the respondent's 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discrimination against them. However, the legal rights and obliga- tions of the parties under the Truce Agreement and the Labor Rela- tions Schedules have been involved in doubt and the respondent's course of action with regard to the persons discriminated against appears to have been predicated upon an honest reliance on what it conceived to be the proper interpretation of the Truce Agreement. Accordingly, we shall not require the respondent to give back pay for any period prior to five (5) days after the date of receipt of this Decision and Order.70 We shall, however, order the respondent to make the employees to be offered reinstatement whole for any loss of pay they may suffer by reason of the respondent's failure to offer them reinstatement or placement upon a preferential list as above set forth, by payment to each of them of a sum of money equal to the amount he would normally have earned as wages during the period from five (5) days after the date of receipt by the respondent of this Decision and Order to the date of offer of reinstatement or placement upon a preferential list, less his net earnings 20 during said period. Upon the basis of the above findings of fact and upon the entire record in the cases, the Board makes the following : CONCLUSIONS OF LAW 1. International Longshoremen and Warehousemen's Union, Local 9, District 1, and Warehousemen's Union, Local 117, International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America, are labor organizations, within the meaning of Section 2 (5) of the Act. .2. By discriminating in regard to the hire and tenure of employ- ment of R. G. Fields, E. W. Hope, G. C. Rogers, Frank Schoener, Glen Schoener, Claire E. Short, Warren Alderson, Earl Bergllm, Leonard Da.hlheimer, Lloyd Ellingson, Andy Huffine, B. (Tink) Johnson, Ray Martinson, O. E. Peterson, William Purvis, Tom Weiss, and Leslie 30 Matter of M. and At. Wood Working Uom.pony and Pliiwood and Veneer Workers Union Local No. 102, Affiliated with International Woodworkers of America, 6 N. L. R. B. 372. .383; Matter of Smith Wood Products , Inc. and Plywood and Veneer Workers Local No. 2691, International Woodworkers of America, 7 N. L. It. B. 950, 957. -b By "net earnings " is meant earnings less expenses , such as for transportation, room. and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for respondent's unlawful refusal to reinstate him or place him upon a preferential list in the manner described above and the consequent necessity of his seeking employment elsewhere. See Hatter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union . Local 2590, 8 N. L. It. B. 440. Mbnies received for work performed upon Federal , State . county . municipal, or other work -relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency. of the Federal, State , county , municipal , or other government or governments which supplied the funds for said work-relief project,-. McKG So\ &.. BOBBINS, INCORPORATED 803 Wellwood, and thereby discouraging membership in International Longshoremen and Warehousemen's Union, Local 9, District 1, and encouraging membership in Warehousemen's Union, Local 117, In- ternational Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and, pursuant to Section 10 (c) of the National Labor Relations At, the National Labor Relations Board hereby orders that the respondent, McKesson & Robbins, Inc., and its officers, agents, suc- cessors and assigns, including William J. Wardall, Trustee, and his agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Longshoremen, and Warehousemen 's Union, Local 9, District 1, or any other labor organi- zation of its employees, or encouraging membership in Warehouse- men's Union , Local 117, International Brotherhood of Teamsters, Chauffeurs , Stablemen , and Helpers of America, or any other labor organization of its employees, by discharging or refusing to reinstate employees, or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of their employment, or by threats of such discrimination; (b) Giving effect to either of its agreements, dated November 15, 1937, with Warehousemen's Union, Local 117, International Brother- hood of Teamsters, ,Chauffeurs, Stablemen and Helpers of America, or to any extension or renewal thereof, or to any successor agreement with the said Teamsters' Union, which may now be in effect; (c) Recognizing or in any manner dealing with said Warehouse- men's Union, Local 117 , International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America , as the exclusive col- lective bargaining representative of any of its warehouse employees, unless and until said labor organization is certified as such exclusive representative by the Board ; 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) In any other manner interfering with, restraining , or coercing its employees in the, exercise of their rights to self-organization, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in concerted activities, for the purpose of collective bargaining or 'other mutual aid or protection , as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to R. G. Fields, E. W. Hope, G. C. Rogers , Frank Schoe- ner, Glen Schoener, Claire E. Short, Warren Alderson, Earl Bergum, Leonard Dahlheimer, Lloyd Ellingson , Andy Huffine, Ray Martinson, O. E. Peterson , William Purvis, Tom Weiss, and Leslie Wellwood reinstatement at its Stewart Holmes and Blumauer Frank Division to their former or substantially equivalent positions or placement upon a preferential list, such reinstatement or placement upon a preferential list to be in the manner set forth in the section entitled "The Remedy" above and to be without prejudice • to the emliloy.E seniority or other rights and privileges; (b) Make whole the persons specified in paragraph (a) above for any loss of pay they may suffer by reason of the respondent 's failure, if any, following the issuance of this Order, to reinstate or place them upon a preferential list, pursuant to paragraph (a) above, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from five (5) days after receipt by the respondent of this Decision and Order to the date on which he is offered reinstatement or placement upon the preferential list, less his net earnings during said period ; deducting, however, from the amount otherwise due to each of the said em- ployees, monies received by said employee during said period for work performed upon Federal , State, county , municipal, or other work-relief projects and pay over the amount so deducted to 'the appropriate fiscal agency of the Federal, State, county , municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Immediately post notices in conspicuous places throughout its plant at the Stewart Holmes and Blumauer Frank Division, and maintain such notices for a period of at least sixty ' (60) consecutive days, stating (1) that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) to 1 (d), both inclusive , of this Order, (2) that it will take the affirmative action set forth in para- graphs 2 (a) and 2 (b) of this Order, (3) that the respondent's em- DICK ES'SON & R0Q3BIN S, INCORPORATED 805 ployees are free to become or remain members of International Longshoremen and Warehousemen's Union, Local 9, District 1, and (4) that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; (d),-Notify the Regional Director for the Nineteenth Region in writing within twenty (20) days from the date of this Order what steps the respondent has taken to comply herewith. MR. WILLIAM M. LEISERs0N took no part iii the consideration of the above Decision and Order. 283030-41-vol. 1 9- ,2