Norwich Dairy Co., Inc.

In the Matter of NORWICH DAIRY COMPANY, INC. AND VERMONT DAIRY COMPANY, INC. and INTERNATIONAL BROTHERI3006 OF TEAMSTERS, CHAUFFEURS, STABLEMEN AND HELPERS OF AMERICA, LOCAL No. 671, AFFILIATED' WITH THE AMERICAN FEDERATION OF LABOR , Case, No.: C-150I.Decided July 31, 1940 Jurisdiction : dairy industry. Unfair Labor Practices Discrimination: discharges for union membership and activity. Collective bargaining: majority indicated by membership inmunion. Where one of two corporate enterprises under identical ownership and control transferred its business to the second, a union demand, prior to such sale, for recognition from the president of the first corporation who was also president of the second,, was held to constitute a continuing demand for recognition from the second corporation. Remedial Orders : employer ordered upon request to bargain collectively with the union ; reinstatement and back pay awarded. Definitions ' No-change in employer-employee relationship held to have resulted from acquirement by one of two corporate enterprises, under identical owner- ship and control, of the other's assets and business where both corporations are so interrelated as to be jointly and severally liable for unfair labor practices of both and where, in so far as the Act is concerned, the one is a successor to the other. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees exclusive of supervisory aild clerical employees.' 1 Mr. B. E. Gordon, for the Board. Mr. Frank Bausola, of 'Hartford,, Conn., for International. Greer, Dalton & Crane, by Mr. David Greer, of Boston, Mass., for Norwich Dairy Company, Inc., and Vermont, Dairy Company,, Inc. Finn d Monti, by Mr. Gelsie J. Monti,, of Barre,,Vt.,, for Vermont Dairy Company, Inc. Mr. Walter B. Wilbur, of counsel to the Board. „ DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by International Brotherhood of Team- sters, Chauffeurs, Stablemen and Helpers of America, Local No. 671, 25 N. L. R. B., No. 121. 1166 NORWICH DATRY COMPANY, INC., 1167 herein called the Union, the National Labor Relations Board, herein called the Board, through its Regional Director for the First Region (Boston, Massachusetts)), issued its complaint dated December 7, 1939, against Norwich Dairy Company, Inc., herein called the Con- necticut respondent, and Vermont Dairy Company, Inc., herein called the Vermont respondent, alleging that the respondents had engaged in and were 'engaging in unfair labor practices, affecting commerce within the meaning of'Section,8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the complaint alleged in substance (1) that on^'or about March 2, 1939, and thereafter, the Connecticut respondent failed and refused to bargain collec- tively with the Union as the representative of its employees in an appropriate bargaining unit; (2) that on or about March 2,1939, the Connecticut respondent discharged Merlin F. Hayward, 1 Fred W. Benjamin, William James Wilcox, Leon L. Du Pont, Maurice Gagne, Henry E. Manning, Kenneth Troeger, Patrick Zigaro, and James R. Johnstone, and thereafter refused to reinstate them, for the reason that they joined and assisted the Union and engaged in concerted activities with other employees for their mutual aid and protection; (3) that by the aforesaid and other acts the Connecticut respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; (4) that on or about June 1, 1939, the Connecticut respondent transferred its .assets and liabilities to the Vermont respondent (alleged.to be owned, con- trolled, and operated by the same individuals as the Connecticut respondent) for the -purpose of and with the intention of evading, avoiding, and escaping its 'obligation to reinstate the above,-named employees and its obligations under the Act; and (5) that by the said acts the' Connecticut respondent and the Vermont respondent engaged and are now engaging in unfair- labor practices within the meaning of Section 8 (1), (3),,-and (5) and Section 2,(6) and (7) of the Act. ' Copies of the complaint accompanied by notice of hearing were -duly served upon respondents and the Union. , Thereafter the respondents filed separate answers putting in issue the material averments of the complaint as to the unfair labor practices. Pursuant to notice, a hearing was held in Norwichtown, Connecti- cut, on December 21, 22, 27, 28, 1939, before Henry J. Kent, the Trial Examiner duly designated by the Board. The Board, the respond- ents, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- 1 Incorrectly spelled Haywood in complaint. 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made various rulings on motions and on objections to the admissions- of evidence. At the close of the hearing counsel^ foh the Vermont respondent moved that the complaint be dismissed as to it. The Trial Examiner reserved ruling and the motion was- subse- quently denied in his Intermediate Report. The Trial Examiner granted without objection a motion of counsel for the Board to amend the pleadings to conform to the proof. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Subsequent to the hearing counsel for the respondents filed a brief with the Trial Examiner on their behalf. Under date March 5, 1940, the Trial Examiner issued his Inter- mediate Report, copies of which were duly served upon the parties, in which he found that the respondents had engaged and were engag- ing-in,unfaindabornpractices within-the meaning of•Section 8°*(1), (3). and (5) and Section 2 (6) and (7) of the Act, and recommended that the respondents cease and desist therefrom, that they offer reinstate- ment with back pay to eight employees found to have been discrimi- natorily discharged, that they bargain collectively with the Union upon request, and that they take other affirmative action remedial of the unfair labor practices. As to one other employee, James R. John- stone, the Trial Examiner found that he had been discriminatorily dis- charged but that the respondent was subsequently justified in refusing him reinstatement. On March 30 and April 1, 1940, the Vermont respondent and the Connecticut respondent filed their respective exceptions to the Inter- mediate-Report,- and subsequently- -filed briefs.' - The Union'-filed no exceptions. Pursuant to notice, a hearing for the purpose of oral argument was had before the Board at Washington, D. C., on May 16, 1940. David Greer, attorney, appeared and argued for both respondents. The Union did not appear. The Board has considered the exceptions to the Intermediate Report and the briefs filed by respondents and the argument of counsel. In so far as they are inconsistent with the findings, conclusions, and order set forth below, the said exceptions are found to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS"OF' F \CT 1. THE BUSINESS OF THE RESPONDEN TS Norwich Dairy Company, Inc., is a Connecticut corporation, char- tered August 4, 1930, with its principal office and place of business NORWICH DAIRY COMPANY, INC. 1169 in Norwichtown, Connecticut., Prior to about May 13, 1939 , it was, engaged in the business of buying , selling, and distributing milk, cream, and milk products . During the yei r 1938 it purchased ma- terials and products to the approximate value of $270 ,000, of which amount $231,000 was expended for materials and products purchased in and transported from States other than the State of Con- necticut. During the sum year this respondent sold products to the approximate value of $370,000, 8 per cent of which in value were sold in States other than the State of Connecticut.. During all of the times mentioned and referred to in the com- plaint, and at the time of the hearing, the officers and directors of the Connecticut respondent consisted of Dwight A. Beebe, president; Leslie Beebe, treasurer ; and Lee R. Robbins, secretary . Of a total of 5,951 shares of capital stock outstanding, par value $10 , Dwight A. Beebe owned 4,521 shares , Leslie Beebe owned 1,420 shares, and Lee R. Robbins owned 10 shares. Vermont Dairy Company , Inc., the Vermont respondent , is a Ver- mont corporation, chartered May 26, 1938, with its principal office and plaee,of business ill.-Bradford ,`Vermont.=, It is engagecLin- the business of buying, selling, and distributing milk, cream, and milk products. During the year 1938 it purchased materials and products to the approximate value of $60,000, of which amount materials and products of the approximate value of $15 ,000 were purchased and transported from States other than the State of Vermont . During the same year it sold products to the value of $67,000, of which $60,000 in value ''^vere sold in States other than the State of Vermont. On March 2, 1939, the officers and directors of this respondent con- sisted of Dwight A. Beebe, president ; Leslie Beebe, treasurer; and Gelsie Monti, clerk . At this time the total of 80 shares of capital stock outstanding , par value $100, was held as follows : Dwight A. Beebe, 1 share; Leslie Beebe , I share; Gelsie Monti, 1 share; Norwich Dairy Company , Inc., -77 shares. The shares in the name of Nor- wich Dairy Company, Inc., were reissued under date of May 11, 1939, as follows : to,,Chai:les W. Sil noway , 25 ,shares ;,to Clyde A.-Beard, 25 shares ; to Dwight A. Beebe, 17 shares ; to Gelsie Monti, 10 shares. At or about the same time Leslie Beebe resigned as treasurer and Clyde A. Beard was elected in his stead.' On or about May 13, 1939, the Connecticut respondent transferred to the Vermont respondent the good will of its business and certain of its assets , and thereafter the Connecticut respondent discontinued operations and the Vermont respondent operated the Norwichtown plant as a branch of its own. 'A nine-detailed anah ^,i.,II tIio e,tr,ansactious appeal, in section 111, B, infra 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local No. 671, is a labor organization affiliated with the American Federation of Labor. It admits to mem- bership employees of the respondents in the appropriate bargaining unit as hereinafter found.3 III. THE UNFAIR LABOR PRACTICES A. As to the Connecticut respondent 1. The discriminatory discharges The complaint alleged that on or about March 2, 1939, the Con- necticut respondent discharged nine of its employees in violation of Section 8 (3) of the Act. , It was stipulated at the hearing and we find that on February 27, 1939, 10 employees of the Connecticut respondent met at the home of one of them, and that 9 of said employees thereupon joined the Union; that on March 2, 1939, all those who had joined the Union, and being the 9 employees named in the complaint, were discharged; and that such discharge was in violation of Section 8 (1) and (3) of the Act. The employees so discharged were respectively Maurice Gagne.-Gagne was employed by-the Connecticut respond- ent in the spring of 1936 as a route driver and was so employed at the time of his discharge on March 2, 1939, when he was earning approxi- mately $30.00 a week. Fred W. Benjamin.-Benjamin was employed by the Connecticut respondent in January 1934 as a mechanic and was so employed at the time of his discharge on March 2, 1939, when he was earning $39.00 a week. Harry Manning.-Manning was employed by the Connecticut re- spondent in 1936 as an ice-cream maker and was so employed at the time of his discharge on March 2, 1939, when he was-earning $27.00 a week. James B. Johnstone.Johnstone was employed by the Connecticut respondent in 1936 as a route driver and was so employed at the time of his discharge on March 2,1939, when he was earning approximately $30.00 a week. Merlin Hayward.-Hayward was employed by the Connecticut re- spondent in February 1938, as a truck route driver, and was so em- ployed at the time of his discharge on March 2, 1939, when he was earning approximately $20.00 a week. Sections III A, 2, a, and III B, 3, infra. NORWICH DAIRY 'COMPANY, INC. 1171 Leon Du Pont.' Du Pont was employed by the Connecticut respond- ent in 1936, and at the time of his discharge on March 2, 1939, was employed as a route driver and earning approximately $30.00 a week. Patrick,Zigaro.Zigaro was employed by the Connecticut respond- ent in 1934' as a fireman and was so employed at the time of his dis'- charge on March 2,1939, when he was'earning $19 a week. Kenneth Troeger.-Troeger was employed by the Connecticut re- spondent in January 1937 as a wholesale delivery driver and was so employed at the time of his discharge on March 2, 1939, when he was earning $23.00 a week. William James Wilcox.-Wilcox was employed by the Connecticut respondent in the summer of 1935 as a spare helper. At the time of his discharge on March 2, 1939, he was a "pasteurizer-man," and earn- ing $35.00 a week. i As found above, the nine employees of the Connecticut respondent who had joined the Union were discharged on or about March 2, 1939. The evening of the same day Frank Bausola, the business agent of the Union, called at the plant and introduced himself to Dwight A. Beebe, stating that the purpose of his visit was to bargain collectively for the men and requesting their reinstatement. Beebe refused to have any discussion with him and ordered him off the premises. On March 6, 1939, the Union filed charges against the Connecticut respondent alleging violation of Section 8 (1), (3), and (5) of the Act. On March 25, 1939, the' Board of Directors of the Connecticut respondent adopted a resolution authorizing and empowering David Greer, its counsel in this proceeding, to act for it "in any and all- bargaining respecting labor conditions of every name, - nature and description in negotiations to be conducted with such person as may be duly authorized under the provisions of the National Labor Rela tions Act, to act on behalf of any or all of the employees of the corporation."' ' . ' On March 29, 1939, as a result of conferences between representa- tives of the Union, the Board, and, the Connecticut respondent, the Union and the said respondent entered into a written agreement providing for the withdrawal of'the charge filed by the Union upon the respondent's complying with the following conditions : 1. The Employer will reinstate the following persons to their employment with all rights and privileges previously enjoyed by them : Merlin F. Haywood (sic)* Henry E. Manning - Fred W. Benjamin - Kenneth Troeger ' William James Wilcox Patrick Zigoro (sic) Leon L. Du Pont James R.•Johnstone Maurice Gagne 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making whole the said employees for any loss of pay they may have suffered by reason of their cessation of employment on or about March 2, 1939. 2. Upon request, the Employer will bargain collectively with the Union or its representatives, as the exclusive representative of the employees of the Employer. The day preceding the execution of this agreement Greer wrote to the Connecticut respondent advising it of the amounts to which the nine employees, were respectively entitled, computed to Saturday, March 25. The letter contained the following paragraphs : I understand that these men will be paid on Wednesday the 29th and the amounts listed will pay them up to and including the preceding Saturday, March 25th. I assume that when the men are paid they will be told to report for instructions probably Thursday or Friday but in this respect you should be guided by instructions which you receive from Mr. Dwight A. Beebe. If he has not already told you please get in touch with him immediately. None of the employees in question was ,ever in fact reinstated in the respondent's employ, and it is clear from the record in this case that there was no intention on the part of Dwight A. Beebe, who was in complete control of the respondent's employment policies, or, of Leslie Beebe, his son, who acted as manager of the Norwich plant, that they ever should be.4 On April 5, 1939, the Connecticut respondent sent identical' letters, signed on its behalf by Leslie Beebe, to William Wilcox, Fred Ben- jamin, and Merlin Hayward, in form as follows: a W J. Wilcox, one of the discharged employees, testified that when lie reported at the plant on March 29 he asked Leslie Beebe if he had any idea when they would go back to work. "And he told me that as far as he was concerned , we would never go back there" On direct examination as a Board witness Dwight A Beebe testified as follows : Q. Will you state why the employees were not reinstated to their employment, put back to work , at the time that they applied for their jobs , in accordance with their agreement , with. Mr Gieer 3 A. Well, it was just that their services were not required Q. At the time you authorized Mr Greer to sign the agreement , did you intend to put the men back to work? A. Well; we didn't know what the future situation was. We were acting on the present Q What did you intend to do by entering into that agreement? A If their services were required , to use them. Q Why didn't you return them to your work? A Well, we had other men working. We could not use two men on the same job. Q Now, what did you have in mind doing with them when you paid them their back wages on March 29, but did not put them back to work? A I don't know as I had anything in mind Q Did you intend to keep them on the pay roll and pay them their wages every week from then on, ad riifinittini, and not put them back to iuork? A. Well, perhaps, if I died before they did NORWICH DAIRY COMPANY, INC. 1173 We have changed our methods of operation so that we no longer need anybody to perform the services which you performed prior to March 2. Your employment twill terminate April 8, 1939 and you will be paid until this date. On the same clay the Connecticut respondent wrote to James John- stone as follows: Sometime ago shortages were found in your accounts and were called to your attention, more recently additional shortages were discovered. Under the circumstances we do not desire to have you continue in our employment. Your employment will cease ,April 8th, 1939, and you will be paid up to this time less what- ever is short in your accounts. On April 11, 1939, the Connecticut respondent wrote to Leon Du Pont, terminating his employment as of April 15. Except as to its effective date, the letter is identical with that sent ^to Wilcox and others on April 5. On April 13, 1939, the Connecticut respondent wrote to Maurice Gagne and Kenneth Troeger in the same terms, terminating their em- ployment as of April 15. On April 14, 1939, the Connecticut respondent wrote an identical letter to Harry Maiming, and on the same day wrote to Patrick Zigaro as follows : As we no longer desire your services your employment will terminate as of April 15th, 1939, and you will be paid to that date. With the possible exception of Manning, all of the above-named employees were paid in full to the effective dates of discharge as set forth in the letters sent to them, respectively. None of them has since been employed by either of the respondents in this proceeding. It is contended on behalf of the respondents that these letters stand on the record as unchallenged prima facie proof of the termination of the services of these employees for causes unrelated to those pro. scribed by the Act. Such a view ignores the entire context in which these letters have their setting, the initial unlawful discharge of March 2, 1939, the equivocal status of the men concerned subsequent to March 29, and the express lack of intention on the part of both Dwight Beebe and Leslie Beebe, since the initial discharge of March 2, ever to put them back to work. The record lends no substantial support to the claim of "changes in methods of operation" antedating the letters of 253036- 42-'. oI 25-73 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge.5 At some unidentified date deliveries of milk from the Ver- mont respondent to the Connecticut respondent were effected by the trucks of the former rather than as theretofore by those of the latter, but there is no attempt to justify this change, which, in the light of all the circumstances, we find to be merely a device to eliminate one of the jobs theretofore filled by one of the discharged employees in at- tempted defeat of the remedial powers of the Board. Early in April a more transparent and wholly abortive attempt was made, with the same intent, to change the route delivery drivers into independent com- mission salesmen.6 Certainly the letters of discharge, other than that to Johnstone, merely assert what the record as a whole refutes. The letter to Johnstone raises a somewhat different problem. However, his original discharge on March 2 was on admittedly unlawful grounds and there is nothing in the record to suggest that he would in any-case 5 The following from Dwight A. Beebe's testimony is a fair indication of the weight to be accorded the ground assigned for these wholesale discharges : Q. As a matter of fact, the general run of the business is no different today than it was [on March 29, 1939], is it? A. Oh, yes, it is. Q. In what respect? A. Quite a little. Q. In what respect is the general run of the business any different today? A. Well, it is considerably different. Q. Will you answer my question, please? A. Well, in operation it is different ; It is different in supervision ° On this point Dwight A. Beebe testified as follows : Q. . During April, 1939, will you state whether or not the Company transferred any trucks to any of the employees of the Norwich Dairy Company? A. Yes, we did: Q. What truck was transferred to what employee? A. There were two wholesale trucks transferred, one to Raymond Beebe and the other to Charley Still. Q. Now, Charley Still and Raymond Beebe were employees of the Norwich Dairy Company, who were hired after these nine employees bad been discharged, is that right? A. That is right. Q. Will you state the cause of the transfer of those trucks to the employees? A. Well, we had in mind changing the policy of distribution of the products of the Company, selling the meichandise at the plant, possession and ownership of the products to the drivers from the plant on. Q. That is, the Norwich Dairy Company at the time intended to sell its milk to its drivers, and they be independent contractors in reselling the milk? A. Yes. s s s s s s s Q. Now, Mr. Beebe, who first advanced the suggestion of changing the methods of operation so that the drivers would become independent contractors? A. Well, I don't know as I can recall. • 4 ► ! t ! t Q Will you state, if you know, whether it was advanced as a result of the firing of the nine persons and a desire not to reemploy the nine individuals? - A. I don't know that it was the result of it or not. s * • • a r • Q. Then is it your testimony that the desire not to reinstate the nine employees who were discharged on March 2nd had nothing to do with the discussion of changing that method of operation? A. I would not say that it did. Q You would not say one way or another, would you? A. No. Q. The answer is no? A. I would not say one way or another. NORWICH DAIRY, COMPANY, INC. 117,5 have escaped the treatment accorded his fellow workers. The letter to him can in no sense be regarded as proof of the cause of discharge assigned and there is no supporting testimony in the record. - On the present state of the record there is nothing to rebut the showing of dis- criminatory treatment of this employee. Raymond Beebe, one of the two drivers to whom the trucks were nominally transferred, stated in an affidavit which was stipulated to have the effect of testimony in this proceeding, that Leslie Beebe told affiant that the Company was selling the trucks because they were afraid they might have labor trouble. Charles Still, the other of the two drivers, by similar affidavit stated that a truck was transferred to his name in April 1939, without previous consultation or explanation. We find that Merlin F. Hayward, Maurice Gagne, Fred W. Ben- jamin, Harry Manning;'Leon Du Pont, Patrick Zigaro, Kenneth Troeger, William James Wilcox, and James R. Johnstone were dis- charged by the Connecticut respondent on March 2, 1939, and have not since been reinstated in their employment, because of their mem- bership and activities in the Union. 2. The refusal to bargain collectively a. The appropriate unit It was stipulated at the hearing that "the unit of production and maintenance employees of the Connecticut respondent, exclusive of supervisory and clerical employees, constitutes a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (d) of the Act." We find that on March 2, 1939, and at all material times thereafter, the production and maintenance employees of the Connecti- cut respondent, exclusive of supervisory and clerical employees, con- stituted a unit appropriate for the purposes of collective bargaining, and that said unit insured to employees of said respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuated the policies of the Act. b. The representative authority of the Union We find that on March 2, 1939, and at all material times thereafter, the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local No. 671 , affiliated with the A. F. of L., was the duly designated representative of the employees of the Con- necticut respondent in an appropriate unit as hereinabove found, and, pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargain- ing in respect to rates of pay, wages , hours of employment , or other conditions of employment. 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. The refusal, to bargain collectively As hereinabove found, the nine employees of the Connecticut re- spondent who had joined the Union were discriminatorily discharged on or about March 2, 1939. The evening of the same day Bausola, the business agent of the Union, called at the plant and introduced himself to Dwight A. Beebe, stating that the purpose of his visit was to bar- gain collectively for the men and see about getting them back to work. Beebe refused to have any discussion with him and ordered him off the premises. The Union shortly thereafter filed charges against the Connecticut respondent with the Regional Office of the Board and the respondent authorized David Greer, its attorney, to handle further negotiations. The negotiations resulted in the agreement of March 29 as hereinabove found. At the same time Bausola handed Greer a copy of the Union's proposals for a contract. Greer stated that he would look it over and take it back to his client and let Bausola hear from him shortly. No further communication was received by the Union from this respondent or on its behalf. Neither the discriminatory discharges of March 2, 1939, nor the subsequent letters of discharge sent to the employees in April 1939, were effective in terminating the status of the employees involved as "employees" within the meaning and protection of the Act. For the purposes of the Act they remained the total personnel of the unit which we have found above to be an appropriate unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours, and other terms or conditions of employment, and the Union remained the exclusive representative of the employees in such unit for such purposes. We therefore find from the foregoing facts and the surrounding circumstances as hereinabove found 7 that on and after March 2, 1939, the Connecticut respondent failed and refused to bargain col- lectively with the Union as the representative of its employees in an appropriate unit. R. As to the Vermont respondent 1. The transfer of assets from the Connecticut respondent to the Vermont respondent As found above, on May 10, 1939, the capital stock of the Vermont respondent, totalling 90 shares, was held as follows: Norwich Dairy Company, Inc., 77 shares ; Dwight A. Beebe, 1 share; Leslie Beebe, 1 share; Gelsie Monti, 1 share . The Beebes and Monti constituted the board of directors . As of the same date the capital stock of the Connecticut respondent, totalling 5,951 shares, was held as follows : 7 Section III A, 1, supra. NORWICH DAIRY COMPANY, INC. 1177 Dwight A. Beebe, 4,521 shares; Leslie Beebe, 1,420 shares; Lee R. Robbins, 10 shares. The Beebes and Robbins constituted the board of - directors. Pursuant to notice dated _ May 1, 1939, a special meet- ing of the stockholders of the Vermont respondent was held on May 10, 1939, at Bradford, Vermont. At this meeting Dwight A. Beebe represented in person or by proxy all but 1 share` of the capital stock. The business of the meeting was to amend the corporate Articles of Association, among other particulars by providing for two additional directors at the option of the stockholders. Under date of May 10, 1939, Leslie Beebe tendered his resignation as treasurer of the Vermont respondent, effective forthwith. On May 10, 1939, Dwight A. Beebe, Leslie Beebe, and Gelsie J. Monti, as the three directors of the Vermont respondent, signed, a waiver of notice and consent to the holding of a meeting of the board of directors on the following day for the purposes therein enumerated as follows : 1. To act upon the matter of the resignation of Leslie Beebe as Treasurer of the corporation. ' 2. To elect a Treasurer -if the resignation of Leslie Beebe be- comes effective. 3. To ascertain if this corporation shall execute a chattel mort- gage on all its machinery, machines, utensils and equipment used in, about and in connection with its business, or that may here- after be purchased to be used in, about or in connection with its business, to Dwight A. Beebe, to secure a. note to the said Dwight A. Beebe in the sum of Eighty-seven Hundred Seventy Dollars ($8,770.00) which note is dated May 1st, 1939, and to secure any other present or future indebtedness to the said Dwight A. Beebe. 4. To ascertain if the corporation desires to obtain the right to transact business in the State of Connecticut as a foreign cor- poration in the prosecution of its business. 5. To ascertain if the corporation shall authorize its president, treasurer, Board of Directors or Clerk, or any of them, to prepare and file such authorizations, forms, or documents, as may be convenient, proper or necessary to be filed by it in the State of Connecticut or otherwise, in order to qualify it to transact in the State of Connecticut the business which the corporation is author- ized to transact in the State of Vermont. 6. To ascertain if the corporation will purchase any or all of the assets of Norwich Dairy Company for the purpose of acquir-, ing the business now carried on by said Norwich Dairy Company at Norwichtown and vicinity in the State of Connecticut. 7. To ascertain if the corporation will appoint a Comptroller who shall have authority to sign checks, applications for licenses 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and similar 'instruments and who shall be authorized to accept service of process in connection with the conduct of the business of the corporation in the State of Connecticut if the corporation votes to conduct business in said State, and to have such other powers as the Directors shall from time to time delegate to him and for the further purpose of appointing a Comptroller if that shall seem wise. On May 11, 1939, a meeting of the board of directors of the Vermont respondent was held at Bradford, Vermont, at which it was voted : to accept the resignation of Leslie Beebe as treasurer and to elect Clyde A. Beard in his stead; to authorize the treasurer to execute a chattel mortgage to secure certain indebtedness to Dwight A. Beebe; "that for the purpose of further extending its outlet for dairy prod- ucts in the, State of Connecticut, the corporation purchase certain assets of Norwich Dairy Company at Norwichtown in said State of Connecticut"; to authorize an offer to be made for such property on the terms proposed by the president; to appoint a comptroller and to elect Leslie Beebe to that position. On May 13, 1939, a meeting of the directors and-stockholders of the Connecticut respondent was held at Norwich, Connecticut. The min- utes of this meeting contain the following recital : Mr. Dwight Beebe presented the following offer in writing to purchase the shares of the capital stock of Vermont Dairy Com- pany held by this corporation. Dwight Beebe offers to purchase from Norwich Dairy Com- pany 77 shares of capital stock of Vermont Dairy Company at $50. per share, the money to be paid as a credit against the indebtedness of Norwich Dairy Company to him and the stock to be transferred to his nominees as follows : Clyde A. Beard______________________________ 25 shares C. W. Silloway--------------------------- ^ 25 shares Gelsie Monti_______________________________ 10 shares if and when accepted. The motion of the Treasurer that this offer be accepted and in- corporated in the minutes of this meeting was adopted without dissent. Motion was made and carried authorizing the Treasurer to take such action and execute all papers necessary to complete the sale and delivery of said stock according to the terms of the offer, and to adjust his books of financial records accordingly. At the same meeting David Greer, of Boston, as attorney. for the Vermont respondent, presented an offer for the purchase of the Con- - NORWICH DAIRY COMPANY, INC. 1179 necticut respondent's. business and certain assets "effective as of mid- night, April 30, 1939, and ally transactions which have taken place, between that time and the time of actual consummation, to be at the expense of or for the benefit of Vermont Dairy Company." The offer was formally accepted and the necessary authorization given to carry its terms into effect. Subsequently the-transfer of assets was consummated by the neces- sary formal documents bearing date May 1, 1939. Under the terms of sale no money passed from the vendee to the vendor. Whatever value the transferred assets represented was paid by the demand note of the vendee secured by a chattel mortgage on. the property conveyed. In addition certain trucks of the-vendor were leased to the vendee and the vendee took a lease- on"the business- property of the vendor at Norwichtown. 2. The identity of ownership, operation, and control of both respondents A realistic view of the above facts shows that Dwight A.' Beebe and Leslie Beebe, as the virtual owners of both the Connecticut and Vermont respondents, simply merged the two businesses under the corporate charter of the Vermont respondent. The differing cor- porate names in such circumstances represented-no underlying dif- ferences in actual ownership and control. The real owners were the Beebes and their relative ownership of the two corporations was identical. Nor was this identity confined to the matter of owner- ship. Dwight A. Beebe was the president and executive manager of both corporations. The two Beebes constituted a majority of the board of directors of each. The business operations of the two enter- prises were interrelated. Their finances were intermingled." Each constituted a mere alter ego of the Beebes. Use of the- corporate form enabled them to limit their risk in the several enterprises, but the factual situation was no different than if some statutory device to the same end had been available to them as a partnership. e The following items, taken from an audit of the books of the Vermont respondent as of the close of business December 31, 1938, indicated the extent of the intermingling: Accounts Receivable: Norwich Dairy Company----------------- -------------------------- 7818.92 Accounts Payable: D A. Beebe-----'-------------------------------------------------- 26.56 Notes Payable: D. A Beebe------------------------------------------------------- 8770.'00 Norwich Dairy Company--- ---------------------------------------- 9200.00 Mortgages Payable: D A. Beebe-- ----------------------------------------------------- 6500 00 Norwich Dairy Company------------------------------------------- 4500 00 Capital Stock: Norwich Dairy Company------------------------------------------- 7700 00 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dwight Beebe was on May 13,1939, and still is, president-of both cor- porations, and is responsible for their policies. He then owned and still owns' 4,521 of 5,951 shares of the outstanding capital stock-of the Connecticut corporation. His son, Leslie Beebe, owns 1,420 of the remaining 1,430 shares. On May 13, 1939, the Connecticut corpora- tion was the sole owner, except for three qualifying shares originally paid for by the Connecticut corporation and issued to the directors individually, of the 80 shares outstanding of the Vermont corporation. Two of the three shares of the Vermont corporation issued to individ- uals were owned by Dwight Beebe and Leslie Beebe. Both the transfer of assets from the Connecticut corporation to the Vermont corporation and the transfer of 50 shares of the stock hold- ings of the Connecticut corporation in the Vermont corporation left the Connecticut corporation, and specifically the two Beebes, in com- plete factual control of the Vermont corporation. Everything the latter owned was hypothecated to either Dwight Beebe or to the Con- necticut corporation to secure indebtedness represented by notes pay- able on demand. The stock interests of Beard and Silloway were equally tenuous. Clyde A. Beard and Charles W. Silloway were em- ployees of the Vermont respondent, at Bradford, Vermont, each being engaged at a weekly salary of $35.00. Gelsi Monti was the local at- torney of said respondent at Bradford, Vermont. The 10 shares of stock issued to Monti were by way of pledge for existing indebtedness and subject to redemption by Beebe. The 25 shares issued to Beard were paid for, in part, by the assignment to Dwight A. Beebe of a note of the Vermont respondent held by Beard in the amount of $1,000, the unpaid balance of the purchase price of $2,500 being represented by Beard's demand note to Beebe in the amount of $1500.00 secured by assignment in blank of the stock so purchased. The 25 shares issued to Silloway were paid for, in part, by the assignment to Dwight A. Beebe of a note of the Vermont respondent held by Silloway in the amount of $580, the unpaid balance of the purchase price of $2,500 being repre- sented by Silloway's demand note to Beebe in the amount of $1,920, secured by assignment in blank of the stock so purchased. The anom- aly of the status of Beard and Silloway as the nominal owners of a majority of the stock of the Vermont corporation is sufficiently at- tested by the fact that whereas they each drew $35 per week salary, Dwight A. Beebe, the "owner" of only 18 shares, drew $15,000 a year, and Leslie Beebe, the "owner" of only 1 share, drew $10,000 a year. On the basis of the facts set forth above, we find the changes in cor- porate structure, the transfer of assets, and other manipulations noted above, resulted in no change in the employer-employee relationship at the Norwich plant. It is this relationship which is all-important for the purposes of the Act. Under the circumstances hereinabove found, NORWICH DAIRY COMPANY, INC. 1181 we find that the Vermont respondent is the successor of the Connecti= cut respondent in so far as the Act is concerned, and in any event that both respondents are so interrelated as to be jointly and severally liable for the unfair practices of both. However, even if it were to be held that the factual identification of the respondents with the Beebes and with each other was de- stroyed when the stock holdings of the Connecticut respondent in the Vermont respondent were distributed, and Beard, Silloway, and Monti acquired a controlling interest in the latter corporation, ex- amination of the relevant dates in the preceding section indicates that all steps necessary to be taken to complete the merger of the businesses of the two respondents, other than the execution of the formal documents, had been taken before the stock 'was distributed. The "offer" of the Vermont respondent was authorized May 11; 1939; its "acceptance" by the Connecticut respondent wits voted May 13, 1939. At the same meeting at which the acceptance of the offer of the Vermont respondent was voted, the "offer" of, Dwight A. Beebe to purchase the stock held by the Connecticut respondent in the Vermont respondent was also voted. Whatever interests in the Ver- mont respondent Beard, Silloway, and Monti acquired were ob- viously acquired subsequent to this meeting 9 Without reference .to the good faith of the transferees in the acquisition of the stock issued to them at Beebe's instructions, the merger of the businesses of the two respondents had been practically accomplished before the transfer of stock, and at a time when the Vermont respondent was the wholly controlled subsidiary of the Connecticut respondent: 3. The unfair labor practices of the Vermont respondent The attitude and intention of the Beebes with reference to the reinstatement of the discharged employees is clearly revealed by the record as hereinabove found. The record also shows that in an attempt to evade the necessity for reinstatement of the discrimina- torily discharged employees, the Beebes "had in mind- changing the policy of distribution of the products of the Company, selling the merchandise at the plant, possession and ownership to the drivers from the plant on." 10 Exploration of the possibilities of this scheme led to, the decision that "we change the entire policy of operating the Norwich business, and take over the management and operations by the purchase of certain assets of the Norwich Dairy Company The stock certificate issued to Monti was not introduced in evidence The certificates issued to Beard and Silloway, respectively, bear date May 11. 1939 Whatever reasons may have actuated the predating of the certificates would not affect the actual date of their authorization. 10 See footnote 6 sups a 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Vermont Dairy Company." Whatever other considerations may have made this step practically feasible, we find that it was inaugurated with the purpose .and intent of defeating the, rights of the discharged employees of the Connecticut respondent under the Act. In any realistic view of the facts, the Beebes, as the Vermont respondent, merely continued the unfair labor practices engaged in by them as the Connecticut respondent . With respect to the duty to reinstate the employees discharged on March 2 , 1939, in violation of the Act, the Vermont respondent , upon taking over the business of the Connecticut respondent under the circumstances hereinabove found, succeeded to the obligations imposed by law upon that cor- poration. It would be anomalous indeed if , merely by transferring its business to a wholly owned subsidiary , -a corporation engaged in unfair labor practices could permanently validate its discriminatory conduct and thereby defeat the policy of the Act. In. any event , since the scheme to defeat the policy of the Act was initiated and to all intents and purposes consummated at a time when, it is not- contested , the Beebes owned, controlled , operated, and constituted the participating corporations , the essential character of the transaction was thereupon fixed and determined . Subsequent changes in stock distribution would be as irrelevant a consideration, from the standpoint of the Act, as in the case of any other corpora- tion engaged in unfair labor practices. We find that the Vermont respondent , by refusing to reinstate and continuing to exclude from employment the employees unlawfully discharged and refused reinstatement by the Connecticut respondent, has discriminated and is discriminating against said employees in regard to their hire and tenure of employment , thereby discouraging membership in the Union and interfering with , restraining, and co- ercing its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. With respect to the duty to bargain collectively with the Union, the Vermont respondent equally succeeded to the obligations imposed on the Connecticut respondent . Had the latter complied with its duty under the Act, the Union, would, at the time of the transfer, have been recognized and dealt with as the representative of its employees in an appropriate unit. This right of the employees to representation by an agency of their own choosing cannot be extin- guished through a scheme rigged with the purpose and intent of accomplishing such result. The unit found to be appropriate for purposes of collective bargaining with respect to the Connecticut respondent we find, in the absence of any persuasive considerations to the contrary, to be appropriate for the operations of the Vermont respondent at its Norwich plant. With the reinstatement as here- NORWICH DAIRY COMPANY, INC. 1183 inafter ordered of the employees discharged in violation of the Act, the Union continues as the exclusive representative of the employees in such . unit for purposes of collective bargaining with their em- ployer. While there was no specific request made of the Vermont respondent, as such, to bargain collectively with the Union, such demand had been made on Dwight A. Beebe, as president of the Norwich Dairy Company, ' Inc., and is deemed for the purposes of this proceeding to constitute a continuing demand on Dwight A. Beebe, as president of the Vermont Dairy Company, conducting the same business in the same plant with the same personnel, as the "Norwich Dairy." We therefore find that on and after May 13, 1939, the Vermont respondent failed' and refused to bargain collec- tively with the Union as the exclusive collective bargaining represent- ative of its employees in an appropriate unit, and thereby interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondents set forth in Section III above, occurring in connection with the operations of the re- spondents described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and 'commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents have engaged in certain unfair labor practices, we shall order them to cease and desist from such practices and take certain affirmative action designed to effectuate the purposes of the Act. 1. The Connecticut respondent We have found that the Connecticut respondent refused to bargain with the Union as the exclusive representative of its employees within an appropriate unit. Although the Connecticut respondent trans- ferred its business to the Vermont respondent, on the basis of this record it is not at all impossible that the Connecticut respondent will resume the conduct of such business. We shall, therefore, order the Connecticut respondent to bargain collectively with the Union in the' event that it resumes the conduct of the business which it transferred to the Vermont corporation. ' We have found that the Connecticut respondent, by discharging Merlin F. Hayward, Fred W. Benjamin, William James Wilcox, Leon 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L. Du Pont, Maurice Gagne, Harry W. Manning, Kenneth Troeger, Patrick Zigaro, and James R. Johnstone, discriminated against them in regard to their hire and tenure of employment. We shall order that the Connecticut respondent, in the event that it resumes operations, reinstate these employees to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. We shall also order the Connecticut respondent to make said employees whole by payment to each of them of a sum of money equal to the amount he would normally have earned as wages from March 2, 1939, to May 13, 1939, the date we have found as the date upon which said respondent discontinued operations, less his net earnings 11 during such period, including the amounts already paid by said re- spondent to said employees as accrued wages during such period, and, in the event that respondent shall resume the conduct of the business which it transferred to the Vermont respondent, by the further pay- ment to each of said employees of a sum equal to the amount which he would normally have earned as wages from the date of such resumption of its business to the date of offer of reinstatement as hereinafter ordered, less his net earnings 12 during such period. 2. The Vermont respondent We have found that the Vermont respondent has discriminated against said employees in regard to their hire and tenure of employ- ment. We shall order said respondent to reinstate and offer to said employees employment at the Norwich Dairy of said respondent at their former or substantially equivalent positions, dismissing, if neces- sary, all employees working at said Dairy first hired by either re- spondent on or after March 2, 1939. We shall further order the Ver- mont respondent to make whole said employees for any loss of pay they may severally have suffered by reason of respondent's discrimination against them, respectively, by payment to each of them of a sum equal to the amount he would normally have earned as wages from May 13, 11 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 respondents, 'which would not'have'been incurred but.for his unlawful discharge - and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440 Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects are not con- sidered 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 projects See Republic Steel Corporation v N L R B. 107 F. (2d) 472 (C C A 3) enf'g as mod Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N L R B 219. cert granted 309 U S 684 12 See footnote 11, supra \ORIVICH DAIRY COMPANY, INC. 1185 1939, the date of the discrimination against him, to the date of offer of employment, less his net earnings 13 during said period; provided, however, that said respondent shall not be required to give Johnstone hack pay from March 5, 1940, the date of the Intermediate Report, to the date of this Decision. We have found that the Vermont respondent has failed and re- fused to bargain collectively with the Union as the exclusive repre- sentative of its production and maintenance employees at its Nor- wich plant. We shall therefore order this respondent to bargain collectively with the Union, upon request, as the exclusive representa- tive of its production and maintenance employees at its Norwich plant, exclusive of clerical and supervisory personnel, in respect to rates of pay, wages, hours of employment, and other conditions of employment. Upon-the basis of the foregoing findings of fact, and upon the entire record in this proceeding, the Board makes the following CONCLUSIONS OF LAw 1. International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local No. 671, affiliated with the A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in,the exercise of the rights guaranteed in Section 7 of the'Act, the respondents have engaged in and are engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Merlin F. Hayward, Fred W. Benjamin, William James Wilcox, Leon L. Du Pont, Maurice Gagne, Harry W. Manning, Ken- neth Troeger, Patrick Zigaro, and James R. Johnstone, the respond- ents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By refusing to bargain collectively with the Union as the rep- resentative of its employees in an appropriate unit, the Connecticut respondent engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By refusing to bargain collectively' with the Union as the rep resentative of its employees in an appropriate unit, the Vermont respondent engaged and is now engaging in unfair labor practices within the meaning of Section 8 (5) ` 'of the Act. 6. The aforesaid unfair labor practices are unfair labor practices ;itfecting commerce within the meaning of Section 2 (6) and (7) of the Act. 1B See footnote 11, sups a 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Act, the National Labor Relations Board hereby orders : 1. That the Norwich Dairy Company, Inc., and its officers, agents, successors, and assigns, shall: A. Cease and desist from : (1) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local No. 671, affiliated with the A. F. of L., or any other labor organiza- tion, by discharging or failing or refusing to reinstate any of its employees, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment; (2) Refusing, in the event that it resumes the conduct of the busi- ness which it transferred to the Vermont corporation, to bargain collectively with International Brotherhood of Teamsters, Chauf- feurs, Stablemen and Helpers of America, Local No. 671, as the ex- clusive representative of its maintenance and production employees, exclusive of supervisory and clerical employees, for the purposes of collective bargaining with respect to wages, hours, and other terms or conditions of employment; (3) In any other manner interfering with, restraining, or coercing its employees in their right to self-organization,- to form, join, or assist labor organizations, to bargain collectively through represen- tatives 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 Act. B. Take the following affirmative' action which the Board finds will effectuate the policies of the Act: (1) Bargain collectively upon request with the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local No..671, as the exclusive representative of its main- tenance and production employees, exclusive of supervisory and clerical employees, with respect to wages, hours, and other terms or conditions of employment, in the event that the said Norwich Dairy Company, Inc., hereafter resumes the conduct of the business which it transferred to the Vermont corporation; (2) Offer to Merlin F. Hayward, Fred W. Benjamin, William James Wilcox, Leon L. Du Pont, Maurice Gagne, Harry W. Man- ning, Kenneth Troeger,, Patrick Z_igaro, and James R. Johnstone, full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, in the event that the said Norwich Dairy Company, Inc., \' ORWICH' DAIRY COMPANY, INT. 1187 resumes the conduct of the business which it transferred to the Vermont,corporation; (3) Make said employees `whole for any loss of pay they may severally have suffered by reason of respondent's discrimination against them respectively, by payment to each of them of a sum equal to the amount he would normally have earned as wages from March 2, 1939, to May 13, 1939, less his net earnings 14 during such period, including the amounts already paid by said respondent to said employees as accrued wages during such period; and, in the event that said respondent shall resume the conduct,of the business which it transferred to the Vermont respondent, by the further payment to each of said employees of a sum equal to the amount which he would normally have earned as wages from the date of such re- sumption of its business to the date of offer of reinstatement as herein ordered, less his net earnings 1o during such period; deduct- ing, however, from the amount otherwise due to each of them monies received by each of them during said period for work performed upon Federal, State, county, municipal, and other work-relief proj- ects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern- ment or governments which supplied the funds for such Work-relief projects ; (4) In the event that said respondent resumes the conduct of tlie business which it transferred to the Vermont respondent, imme- diately post notices'in its plant at Norwich, Connecticut, and main- tain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating : (1) that. said respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 A (1), (2), and (3) of this Order; '(2) that said respondent will take the affirmative action set forth in paragraphs I B (1), (2), and (3) of this Order; and (3) that the employees of said respondent are free to become or remain members of Inter- national Brotherhood of Teamsters; Chauffeurs, Stablemen and Helpers of America, Local No. 671, affiliated with the A. F. of L., and that said respondent will not discriminate against any employee because of membership or activity in that organization; (5) Notify the Regional Director for the First Region, in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. ` 2. That the Vermont Dairy Company, Inc., and its officers, agents, successors, and assigns, shall: i" See footnote 11, supra. See footnote 11, supra. 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Cease and desist from : (1) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local No. 671, affiliated with the A. F. of L., or any other labor organiza- tion, by discharging or failing or refusing to reinstate any of its employees or in any other manner discriminating in regard to hire or tenure of employment; (2) Refusing to bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local No. 671, as the exclusive representative of its maintenance and production employees at its Norwich plant, exclusive of supervisory and clerical employees, for the purpose of collective bargaining with respect to wages, hours, and other terms or conditions of employment; (3) In any other manner interfering with, restraining, or coercing its employees in their-right to self -organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives 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 Act. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) Offer to Merlin F. Hayward, Fred W. Benjamin, William James Wilcox, Leon L. Du Pont, Maurice Gagne, Harry W. Manning, Kenneth Troeger, Patrick Zigaro, and James R. Johnstone employ- inent at the Norwich Dairy of said respondent at their former or substantially equivalent positions; (2) Make said employees whole for any loss of pay they may sev- erally have suffered by reason of respondent's discrimination against them respectively, by payment to each of them of a stun equal to the amount he would normally have earned' as wages from May 13, 1939, to the date of such offer of employment; less his net earnings 16 during said period; deducting, however, from the amount otherwise due to each of them monies received by each of them during said period for work performed upon Federal, State, county, municipal, and 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 such work-relief projects; provided, however, that said respondent shall not be required to give Johnstone back pay from March 5, 1940, the date of the Intermediate- Report, to the date of this Decision; (3) Bargain collectively, upon request, with International Brother- hood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local No. 671, as the exclusive representative of the production and 18 See footnote 11, supra. NORWICH DAIRY COMPANY, INC. 1189 maintenance employees at its Norwich, Connecticut , plant, exclusive of clerical and supervisory personnel , in respect to rates of pay, wages and hours of employment , and other terms and conditions of employment ; (4) Immediately post notices in conspicuous places in the re- spondent's plants at Norwich, Connecticut , and Bradford, Vermont, and,maintain •sueh notices for a period of at least sixty (60) consecu- -tive days from the date of posting, stating: (1) that said respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 2 A (1), (2), and (3) of this Order; (2) that said respondent will take the affirmative action set forth in paragraphs 2 B (1), (2), and (3) of this Order; and (3) that the employees of said respondent are free to become or remain members of Inter- national Brotherhood of Teamsters, Chauffeurs , Stablemen and Helpers of America, Local No. 671, affiliated with the A. F. of L., and that said respondent will not discriminate against any employee because of membership or activity in that organization; (5) Notify the Regional Director for the First Region, in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. WILLIAM M. LEISERSON tool: no part in the consideration of the above Decision and Order. 28 3036-42-vol 25-76