Wilson & Co., Inc.

In 'the 'Matter cof WitsoN , &- Co., Ixc. and UNITED - PACKINGI OTTSE WORKERS OF AMERICA, LOCAL NO.; 49, C. I. O. Case No. C-1551.-Decided, March 14, 1941 ' Jurisdiction : meat packing',industry. _ Unfair !Labor Practices Discrnmi?iation: employer refused to reinstate -striking employees to sacancies which occurred after termination of strike despite promised reinstatement when work became available-refusal, to reemploy striking employee to his former job: alleged acts of insubordination as justification for, without merit. ColjectiV,e Bargaining: charges of, dismissed. Remedial Orders : reinstatement and back pay awarded. Mr. Will Maslow, for the Board. Mr. James D..Cooney and Mr. Paul 'Ware, of Chicago, Ill., for the respondent. _ Mr. Meyer Stern,, of New York City, for the Union. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE 'Upon amended charges .drily filed by United Packinghouse Workers of America, Local 'No. 49, C. I. 0., herein called the Union, the Na- tional Labor Relations Board, herein called the Board,'by the Regional Director for -the Second Region (New York City), issued its com- plaint, dated October 23, 1939, against 'Wilson & Co., Inc., Chicago, Illinois, herein called the, respondent, alleging that the respondent had engaged in and was 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. Concerning the unfair labor practices' the complaint, as amended at the hearing, alleged in substance, that on or about December 10, 1938, and at all times thereafter the respondent refused to bargain with the Union as the certified representative of its employees at each of its seven New York metropolitan branches; that the respondent's 30 N. L. R. B., No. 51. 314 - = WILSON & "COMPANY, INC -315 refusal 'to bargain caused a strike of its employees at each of its seven 'branches from December 12,,to 19, 1938; 1 that, of December •19, 1938, and at all. times thereafter except as indicated below, the respondent has discriminatorily refused upon application to reinstate 15 named striking employees 2 because of their union activity and participation in the, strike; and that by the foregoing acts and by other acts the respondent has interfered with, restrained, and coerced its, employees in ,the exercise, of the rights guaranteed by Section 7 of the Act. 4 Copies of the complaint and accompanying notice of hearing were duly served upon the respondent and the Union. On November, 15, '1939, the respondent filed its. answer to the complaint' denying, the ma- terial allegations of the complaint. Pursuant to notice, a hearing was' held from November 27 to De- cember 5, 1939, at New York City, before Madison Hill, the Trial Examiner duly designated by the Board. The Board and the re= :spondent were represented by counsel and the Union by a repre- sentative ; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses,,, and to introduce evi- dence bearing upon the issues was afforded all parties. During the course of the hearing the respondent filed a written motion to quash three subpenas duces tecubn issued by the Board against the respond- ent and its officials requiring the production of certain correspondence and records. The Trial Examiner denied these motions. This ruling is, hereby reversed and the subpenas are hereby quashed.3 During the course of the hearing the Trial Examiner made other rulings upon,motions and objections to the admission of evidence. At the close of the hearing the Trial, Examiner denied a motion, by the re- spondent to dismiss, the complaint and granted a motion by counsel for the Board to conform the pleadings to the proof. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings, are hereby affirmed, with the exception of the ruling concerning the subpenas hereinabove discussed. I The complaint erroneously alleged December 19, 1939, as the date on which the strike terminated 2 Pursuant to notice, the complaint was amended at the hearing, upon motion by counsel for the Board without objections by adding the names of Albert Levine, Fred, Fisher, and Silvio Credidio , employees who bad been reinstated by the respondent prior to the hearing. a The subpenas duces tecum required the production of records and correspondence relat- ing to eight matters. The respondent voluntarily complied with all terms of the subpenas except the one requiring the production of correspondence and communications between C S. Briggs , New York district manager of the respondent , and Maury Hopkins, ands the "Industrial Relations Department" of the respondent between October 28, 1937, to date. Thereafter, counsel for the Board elected to proceed with the hearing pending ruling by the Board on , the respondent 's refusal to satisfy completely the requirements, of the subpenas. We do not deem complete compliance with the subpenas necessary to a disposition of the Issues, which, accordingly, will be decided on the record as made. S16 DECISIONS OF-NATIONAL, LABOR'RELATIONS BOARD 1 -On -April 20, 1940, the Trial Examiner -filed' his Intermediate: Re- port, ,copies of which were served'upon'all the, parties, wherein.:he found that the respondent had not engaged in and was not engaging ,in unfair labor practices affecting commerce within the meaning.of Sedtion •8 (1), (3), 'and (5). He recommended that the complaint •be dismissed. Exceptions to the Intermediate Report were thereafter ,filed and oral argument requested by the Union. The respondent filed a brief in reply to the Union's exceptions and in support of the Intermediate Report. ,1 Pursuant to notice, a hearing was scheduled to be held before the Board on August 27, 1940, at Washington, D. C:, for the purpose,of oral argument. Prior to the date set for argument the Union and the respondent notified the Board, that they did not intend to appear at the hearing for oral argument and the Board cancelled, the hearing. The Board has considered, the exceptions to the Intermediate Report and the brief filed by the respondent and, in so far as the exceptions are, inconsistent with the findings, conclusions, and order set.forth below, finds them to be without merit. Upon the entire record in the-case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Wilson & Co., Inc., a Delaware corporation with its principal- office at Chicago, Illinois, is chiefly engaged in purchasing and slaughtering livestock and in the processing, sale, and distribution of meat and meat' products. The respondent operates nine packing plants' in'-as many States. During 1939 the respondent purchased livestock valued .at'; approximately' $127,000,000, which was slaughtered and packed at its' nine packing' plants. -Approximately 85 per cent of the live= stock slaughtered annually at these plants is purchased in cities where the said plants are located, and the remaining 15 per cent is pur- chased outside the States in which the plants are located. During the same period the respondent sold meat and meat products, slaughtered and processed at it's packing'plants, valued at approximately $250,- 000,000. The respondent's products are distributed by branch houses -located throughout the United States. • • ' . This case involves seven such branch houses owned and operated by the respondent in the metropolitan district of New York City 4 During 1939 these seven branch houses received from the respondent's ,packing houses approximately 95,000,000 pounds of meat and meat products, all of which originated outside the 'State of New York: These branches are commonly referred to as Empire ; Fort Greene : Harlem ; Jamaica. Mineola ; North Sixth ; and Westchester. WILSON- & `COMPANY,'-INC. `317 ',During the same' period" the branch 'houses sold' 95,000,000 pounds -of 'meat and meat produc`ts^'to`loc'al detail butchers and jobbers, 'none;of 'which i^as' shipp'ed' outside the "State of Ne`v York' ' f .-. . Sid. ... II. THE IiABOR ORGANIZATION INVOLVED United Packinghouse Workers ofAmerica, Local No. 49,5 is a labor organization affiliated with-the Congress of Industrial Organizations. It- admits to membership employees of the respondent at its, branch ,houses. III, `THE. 'UNFAIR , LABOR' PRACTICES. 'A. Background;` .relation's between the respondent and the 'Union prior to alleged re fus'al to bargain The Unions commenced to organize the respondent's employees at sits, seven branches 'iil the metropolitan area of New York City late in September or in the early part of October 1937. Shortly=there- after, the respondent informed the Buggers at the' Fort Greene branch that due:to slack busin ess it was= necessary to reduce' the force, and asked them whether they wanted the reduction effected by'laying Off 'one l ugger'-for the entire period or by, rotating the lay-offs 'so that 'eaclh lugger- would oily be ,off 'for a "week ,it a `time. The luggers stated that they- would tr-y the rotation plan. On Friday, October 8, the manager of the ' Fort 'G"re'ene ,brth ch told a lugger named Levine not'to report•to wo'rk'the'follo«ilig week..' The next day the luggers, having `decided to- oppose all lion-offs, informed the manager that none .of them would work 'if any'lay-off practice was put in effect. On the 'following Monday, October 11, the' huggers reported at the branch ,but refused `to work unless" Levine was reinstated. 'Levine' was not reinstated and the Buggers did not work that day. That afternoon they joined the Union.. Shortly thereafter on the same- day repre- sentatives of the Union met with C. S. Briggs, the respondent's dis- trict manager in charge 'of all seven branches, and the 'strike was set- tled.' The respondent "agreed to pdy' the'strikers for the one day ,they failed to work, to discontinue the lay-offs, and to work all lug- gers full 'time, but Levine was to -remain off for the balance of "the week. In November -1937 the 'Union presented to the respondent a pro- posed bargaining contract for six of its metropolitan branch houses,' The organization was formerly known ,as United Meat workers Loea1 Industrial Union No '635; affiliated with 'tfie' Packinghouse workers Organization.' On January 27, 1039, at the instance of the parent bod9, the name of `the organization was changed to read as- above stated. ° See footnote 5, supra., 7 One of the `respondent's branches was not included for reasons which the record: does not disclose. 318 DECISIONS OF, NATIONAL LABOR-RELATIONS BOARD which, provided, among other things,, for, a. closed shop,. seniority .ar- rangement, wage increase, arbitration, of grievances, 40-hour week and 8-hour day. Union representatives met and discussed in detail the terms of this contract with Briggs and Maury. Hopkins, industrial relations manager for the respondent. The respondent's representa- tive stated that a closed shop was against -the respondent's policy, that a wage increase could not be granted, and that practically all of the- other terms were objectionable for specified reasons. As a result no accord was reached. Briggs investigated the Union's claim, made at this conference, that certain wage inequalities existed and thereafter put into effect `a number of individual increases." In January 1938 the Union presented to Briggs for consideration another contract, similar to the one mentioned above. Represent- atives of the Union again met with Briggs and discussed this con- tract. The parties maintained the same relative position which they had previously taken on the controversial terms of the contract and no accord was reached. In January or the first,part of February 1938 Hall, manager of the Mineola branch, acting-upon instructions from Briggs, dis- charged a chauffeur named Piscitelli at that branch. Hoffman, a union representative, called on Hall and requested that Piscitelli be reinstated, claiming that he had been unjustifiably discharged. Hall explained that Piscitelli had had three' accidents, and that because of his accident record it was against the respondent's safety policy to continue him in service. On February 3, 1938, all the chauffeurs at the Mineola branch went out on a strike called by the Union to secure the reinstatement of Piscitelli. Thereafter, on the same day, at a meeting between representatives of the Union and Briggs. and Hopkins the strike was settled. The respondent refused to reinstate Piscitelli but agreed to restore the strikers to their positions and to displace the new chauffeurs who had been hired the day of the strike. On about October 22, 1938, representatives of the Union -met with Briggs and discussed the Union's requests, previously presented to the respondent, for certain changes in hours and working conditions at all its branches to conform with the Wage-Hour Law which was.to become effective oh October 24, 1938. The Union also requested that the respondent establish, for all branches an 8-hour day from 6'a.- in. to 3 p. in., and allow time and 'a half, for, overtime. Briggs stated that the respondent would comply with the Wage-Hour Law and establish a 44-hour week but refused td agree to an.8-hour workday and informed, the union. representative that the respondent would 9 The record shows that the Union was notified of these raises before they were made effective. WILSON & COMPANY, INC. 319 change'the opening and closing time in accordance' with the Union's request at all metropolitan branches except Fort Greene. -On about Oc- tober 24 the respondent in conjunction with other packing firms in the, New York City area changed the opening hour from 5 to 6: 30 a. m. at all branches except Fort Greene. The respondent insisted upon the 5 a.,m. opening hour at this latter branch because of the nature of the railroad, siding facilities, but the Union refused to make this ex- ception. Beginning on October 24, 1938, and continuing for several .months thereafter, the Fort Greene employees started work at that' branch at 6 a. m.9 On or about November 12, 1938, a lugger at the Fort Greene branch named Vander Werve was discharged allegedly for drunkenness. Shortly thereafter, Stern, business manager for the Union, and other union representatives met with Briggs and requested that Vander Werve be reinstated and given another chance. Briggs refused to, reemploy Vander Werve explaining that the latter had been warned. and reprimanded on several prior occasions. Pursuant to a vote, taken among the Fort Greene luggers at a meeting with union rep- resentatives, the huggers went out on strike on November 14, 1938, in order to secure Vander Werve's reinstatement. After several days the strike was settled.19 B. The alleged refusal to bargain 1. The certifications On' November 4, 1938, the Board issued a Decision 11 -wherein it found, among other things, that the processing and operative em- ployees at each of the respondent's seven metropolitan branches, including chauffeur luggers, scalers, shipping clerks, cutters, egg handlers, sausage workers, and ham workers, but excluding super- visory employees, clerical employees, salesmen, and schoctim, consti- tuted separate and distinct units' appropriate for the purposes of collective bargaining within the meaning of Section 9 (c) 'of the Act. 'The Board therein certified the Union, then known as United Meat WTorkers Local No. 635, as the exclusive bargaining representa- tive of all such employees at six of the respondent's branches .52 On December 15, 1938, after an election, the Board certified this Subsequently the Union permitted their members to begin work at this branch at 5 a. in. "At a conference on November 16, 1938, between representatives of the Union and the respondent the strike was settled . The respondent agreed to pay the strikers their wages for the last day of the strike provided they returned to ivork the next day ; Vander Werve was not reinstated but was replaced by a man sent by the Union. n Matter of Wilson tt Co., Inc. and United Meat Workers Local Industrial Union No Gat. affiliated with the Committee for Industrial organization, 9 N. L. R. B. 650. 'Fort Greene, North Sixth, Jamaica, - Empire , Harlem, and Westchester. 320; DECISIONS OF - NATIONAL LABOR RELATIONS BOARD labor organization-as ,the exclusive bargaining representative of em- ployees within the.above-mentioned classifications at the respondent's Mineola branch .13 2. The alleged refusal to bargain On November' 15, 1938, the Union sent the respondent and five other' packing firms doing business in the New York City area' '14- copies 'of a proposed exclusive bar(raining contract, substantially similar to the-one p'rerented'to the respondent in November 1937, and requested, a conference with the respondent. After otlie Tort' Greene strike was settled at the November 16 conference, mentioned above; ;and' before that'conference' adjourned, James D. Cooney; vice- president of `the' respondent,' requested the , union representatives to remain' in order to discuss the ' proposed' contract which the respond ent lied received from the Union that same morning. Although the union representatives hid another conference scheduled for that' afteirnoon'they remained-and a discussion of the contract ensued. `While substantially all 11 clauses of this contract were conside_ red during the meeting, the'discussion centered principally around-the closetl=shop' and' wage--increase provisions. Cooney, the spokesman for the respondent, stated definitely that it was against the policy- of the respondent to sign a closed-shop agreement for reasons which he specified. Concerning the wage increases, Cooney stated that the respondent was paying the going wage -rate in accordance with its policy, that it had previously granted the Union several wage in- creases, and that'at the present'it could not afford to give additional increases. Cooney then, discussed ^ in some detail the financial con-'- dition:of the respondent. The respondent's ,position on, the other features of the proposed contract-may be summarized, as follows : The respondent- stated that the, sentence embodying exclusive recognition of the Union was ac-,- ceptable. The, clause requiring arbitration of,grievances upon which the parties could not reach an 'agreement was rejected: The respond- ent deemed this clause unnecessary, claiming that the parties should. be able to- adjust' their grievances among themselves 15 The hours- of-work clause, providing for division of work, 40-hour week, 8-hour day, a:nd- 6 a., in. opening, was rejected except to the extent that the, respondent agreed to 6 a. m. opening at all branches except Fort Greene. The respondent rejected the' seniority clause goverliing p'rp'- 1310 N L_R B. 675. ' 14 These firms' are referred to In the record as Armour & Company, ' Swift & Company, Cudahy. Morrell, and Rath. ` 1a In this connection Cooney expressed disapproval of the Union's resort -,to strikes•In the past to settle grievan-tes and stated "that in case of,ano (her strike, [the, respondent] would be less inclined to take the men [strikers ] back." WILSON & COMPANY, INC. 321` rhotions-and lay-offs:' The respondent stated that length of; service would' control in lay-offs when all other factors, were equal., - The, saiiithtion and, health, clause was acceptable to the respondent.; The, vacation, clause, which .enlarged the respondent's existing,-practice,; was unacceptable for economic reasons. All holidays set forth, in, the contract-except Armistice Day were acceptable. As to the privi- lege clause which contained three paragraphs, the, respondent .stated' that the first paragraph relating to existing privileges was acceptable,, but= rejected the,-other two concerning group insurance and transfer, 'of employees. No comment was made on the suggestion that the, contract remain in effect for a 1-year'period., - :As:'the- discussion on the contract, which had lasted approxi- mately an Hour,- concluded, Cooney suggested that Briggs refer the; contract as ti matter of courtesy to his superior, J., A. Hamilton,, at'tlie'"resp`ondent's Chicago office for,his opinion. This-Briggs did. Stern' requested an answer by December 7 and stated that -lie was afraid that; there would be trouble unless the parties reached an, understanding on some of the terms of the contract, but that if a small wage increase-was granted, and a few other points in the con tract including an adjustment of hours could be agreed, upon, he- was sure that a strike could be avoided. The conference adjourned pending' receipt of a reply from the respondent's Chicago office con- cerning the contract. ' Thereafter Stern communicated with Briggs on several occasions- prior to December 1, and was informed by Briggs that an answer from Chicago had'not been received. ' Pursuant to a decision by its; executive 'committee, the Union sent a letter to the respondent's Chicago office, dated' November 25, 1938, stating that it desired a, conference without further delay to discuss the contract previously, presented and that it "would be compelled to take action on December 10, 1938". On or about November 25 Stern informed Briggs that matiy-of the'it embers of the Union desired to strike before Thanks giving,"' but that he had prevailed upon them not to strike then in order'to give the respondent's Chicago office an opportunity.to reply concerning the contract. Pursuant to a suggestion made by' Brigg,3- at about the same time, Stern informed Briggs in a letter dated Deeember 5 of certain wage inequalities existing at the Alineola- bra'nch and requested an early- conference with, Briggs to discuss that-condition. Briggs failed to acknowledge that letter."? '^ In discussing strike plans at meetings , members of the Union considered, among other things, } that the respondent - always received large shipments of t:.rkeys before Thanks- giving and Christmas for this holiday business 17 At a conference on. February 16, 1939, discussed infra, certain matters affecting the Mineola branch ' were considered. - ' ' 322 DECISIONS OFD NATIONAL LABOR -RELATIONS BOARD ` On or about December 1, 1938, Briggs received-',a letters : dated' November 29, 1938, from Hopkins,"' the respondent's industrial ,re-, lations, manager at 'Chicago, concerning the proposed contract 19 ' In summary, Hopkins' letter to Briggs set forth-the respondent's 'posi- tion on the 11 clauses of the proposed contract as follows : _ - Article I provided for exclusive recognition and a -closed -shop. The letter stated that there was no question concerning recognition; that for over a year the respondent-had negotiated with the Union ; that it was "beside the point to sign any agreement on recognition';" and that•the respondent would not agree to a closed shop. ' Article II provided for the adjustment of grievances and the estab- lishment of arbitration procedure. The letter stated` that the re- spondent's present method of handling grievances was 'more' satisfactory than the proposed procedure. • Article III provided that discharged employees could invoke the arbitration procedure set forth in Clause II. The letter stated that, the "management must reserve to itself the matter of selection of employes and 'it must be left to us to determine whether or not • an employe should be discharged. 'We can not agree to anything which would impair this right of management." Article IV provided for a-40-hour week and an 8-hour work, day starting at 6 -a. in. The 'letter stated that,the 40 'hou'r -week would render the respondent "non-competitive" and failed to provide the "flexibility" necessary to'handie perishable products. Article V established a policy of seniority for promotions and lay- offs. The letter stated that this ,policy would not fit -the respondent's operations and that promotions are made upon the basis of respond-- ent's discretion and judgment, length of service being only gone of the considerations. A'rtic'le -VI required the respondent to maintain conditions of health and safety in -accordance with laws of the State of New 'York. - The letter stated that this clause was unnecessary since the respondent always 'attempted to maintain 'those conditions. Article VII set forth a vacation policy. The -letter stated that the • respondent's vacation policy was determined from year to year and that it could not commit itself at the time on the policy -for the next year. Article VIII 'set forth a definite schedule of rates of pay according; to work classifications. 'The letter stated that due to economic, rea- sons the respondent was unable to put in effect ,a general wage in- '- Although Briggs had sent the proposed contract to Hamilton , the reply thereto was from Hopkins. - 19 Briggs did not inform Stern of the receipt'of this letter until December 19, as Jlerean- after discussed. WILSON- & CO VIPA•NY; INC. - 323 crease; that the present wages were excessive, and that if there were negotiations on this subject it would be necessary for-the-respondent to ask that the present wages be, reduced. Article IX ;set forth certain. holidays ' on which the employees would not be required to work and for which there would be no deduction of pay. The letter stated that this provision was "beside the point" since the respondent already observed the practice, except as to Armistice Day. Article,X provided (1) that all other conditions and privileges not mentioned in the agreement should not be changed to the detri- ment of the employees; (2) that respondent maintain group' life insurance for the employees; and (3) that certain rights of trans- ferred employees should be protected. The letter stated that parts 1• and 3 were not clear and that respondent would not agree to part 2. Article XI was the termination clause. The letter stated that since the respondent could not sign the agreement it was not necessary to discuss this clause. On December 9 Cooney asked Briggs in a telephone conversation whether he had communicated with Stern. Briggs replied that he had not and Cooney instructed him to communicate with Stern im- mediately. Briggs unsuccessfully attempted to communicate with Stein that day. However, on the morning of the next day, December 10, Briggs spoke to Stern on the telephone and informed him of the receipt of the letter from Chicago and requested Stern to come to his office. Immediately thereafter, Stern met Briggs in the latter's office. Briggs' assistant, Pratt, was also present. At this conference Briggs and Stern discussed separately each paragraph of the Union's proposed contract which had been submitted on November 16?° At this meeting, however, the parties failed to reach an accord on the contract as a whole and neither requested nor offered counter- proposals on those clauses upon which there was no substantial agree- ment. The final position of the respondent, as stated by Briggs to Stein, concerning the 11 clauses in the proposed contract is epito- mized in a memorandum drafted by Stern from notes taken during the conference.21 The memorandum reads in parts as follows : "(I)- The Union stands recognized as sole collective bargaining agent. (2) The closed shop is refused. (3) Grievances will be taken up with Mr. Briggs. (4) The same hours will prevail. (5) Seniority will be observed in lay-offs and rehiring but not on promotions. (6) Our request for sanitation is accepted. (7) That the Company will give notice to the Union of intended firing of an employee, whenever ° Briggs used the letter of November 29 from the respondent 's Chicago office as the basis for his discussion with Stern. . 21 Stern drafted this memorandum from his notes immediately upon his return to his office after the conference. 440135-42-vol. 30-22 324' DECISIONS OF: NATIONAL -LABOR RELATIONS BOARD possible, but'maintains,that the company shall'be sole judge of the) proper cause;::, (8)'. Vacations will ,begra;itedl as -long. as,business .per mits. (9) All legal holidays.-will-be paid for without work._ :(10) A11 present - privileges will .continue. (11);The -present -wage scales will,continue." Stern testified that he believed that Briggs stated at this meeting, that it was, against the policy of the respondent to sign contracts with unions. Briggs denied making this statement on that or any, other' occasion, admitting, however,, that he'caid,that it was against the policy of the respondent to sign closed-shop contracts. On the: whole record we are satisfied and find;:that Briggs did not, iiiakei the statement attributed to by Stern.22 Stern.further testified. that, Briggs stated that lie'had no, authority to' deviate, from :the. respondent's position concerning, the contract` as -set forth in the. letter from Hopki s.23 .,,At the -hearing Briggs denied making.-this statement . We do-not resolve the conflict because assuming ar'guendo' that the statement was made, and that the limitation on the scope, of Briggs' authority, reflected in, the alleged' statement in fact existed '24 we do not regard it in any material degree determinative of the issue, since we are satisfied and find that Briggs had sufficient' authority to represent the respondent in collective bargaining.25 As this conference concluded, Stern stated that he did not think- that the men would, be satisfied, that he was "sorry that [the re- spondeiit and the Union] could not get. together to negotiate and ,in this way avoid a strike," and that he would "report the results of the-conference to the Union." - ' 'Later in that day, December 10, a special meeting of the Union,. which had -been scheduled a week before, was held- to receive and act- upon reports concerning the bargaining negotiations between the Union and the packing firms including the respondent. _ Stern ^ ad-. dressed :the- meeting and stated in part : - ' The managements [respondent and other packing firms] have- refused- to negotiate. They have refused to consider the 40, hour` week or the 8 hour day. They have refused to consider wage 22 Stern'R testimony on direct examination regarding this alleged statement by Briggs was not positiie and convincing ; while Briggs' unequ!Nocal' denial was corroborated at'the hearing'by'P1att, who wns the only other person present. 11 21 Stern failed to mention either of these alleged statements either in his memorandum concerning the conference , or in his speech at a union meeting held on the same day, as discussed - more fully below. - - 24 At the hearing Briggs testified that he was authorized by the respondent to execute' a binding agreement with the Union upon such terms as he would agree upon provided that It did not Include %a closed-shop provision . The Trial Examiner ' found that Briggs had authority to negotiate a contract with the Union We are not persuaded that-the scope of Briggs' actual authority was as broad as he testified ,at the hearing:but d•e do not-deem it necessary to decide the precise extent of his authority. . . L ° It may be noted that Stern -stated at 'the hearing that he was not authorized to bind the Union on any changes in the proposed contract without specific authorization by the Union.-) `- _. WILSON & COMPANY; INC. 325" increase, and, in fact, they have refused all the demands, without even so,much as.negotiations on these points., After-' some 'discussion-, and"iupoh the recommendation of Herman Hoffman, business agent, for .the' Union, the membership voted •'a general strike at the seven branch houses of the respondent and the plants of five other large packers.26 On December 12, 1938; the strike ' became effective at the respondent's seven metropolitan branches as well as the plants of the other five-packers. After the strike had been in progress for several days, representa- tives-of the Union"ants the respondent met on December-17 with John Connor, Conciliator for the United States Departlielit of 'Labor; to. discuss a. settlement. At this conference 'the respondent, agreed. in. settlement of the strike to reinstate all strikers whose jobs had not beefs filled" during the strike and to give employment to those re- maining as soon as they' were needed, refusing, however, to discharge men-hired during the strike or to grant any wage increase. Thereafter, on'the same day the members of the Union voted at a meeting to'end the strike hnd return to work. On or about Decem-• her 19 the strikers reported for work at the respective -branch houses of-the respondent and all but 15, whose cases are discussed in Section C infra were given employment. ' On- several occasions thereafter in December 1938 and January 1939, Stern requested "the respondent to reinstate these employees. The 'respondent' denied the requests. On February' 16; 1939,' StcCn,; Hoffman, and three Mineola employees, Gulotta, Remski, and Delisky,, who were not reinstated after the strike, met with Briggs at his office,, and requested that the-Mineola strikers be reinstated," Briggs stated. that there was no work then available for those employees but that if jobs which-they could fill "subsequently opened the' iespoiident would- notify the. men., .. • " There is a conflict in the evidence "as to whether or not the Uliion' sought to renew negotiations, for a contract 21 at this -conference:. Stern testified that he sought an agreement 28 on recognition '29 a' 20 See footnote 114, supra. • . 2` There is no claim that a separate - proposed contract was ever submitted by the Union' to cover only the Mineola Branch. - • 25 Stern's testimony is not clear as to whether the Union wasiseelang to bargain at this conference only for the Mineola Branch or for all the branches However, in view of our, conclusions, hereinafter stated, we regard the resolution of that ambiguity as unnecessary., -Stern testified that Briggs said that the Union was certified and that was sufficient recognition and that lie then asked-whether the respondent would,give the Union recog- nition "in a letter in writing" and that Briggs answered, "No it is ,not necessary " As hereinafter stated -Briggs testified that the reinstatement of; the Mineola strikers was the' only subject di cussed at this conference The Union committee members, other than Stern, who testified concerning the conference made no reference to this particular colloquy, as related by Stern. We do not deem it necessary to decide, w'hether- or, not this colloquy occurred, as Stern testified, since if it did we construe the request to have been made in conjunction with the Union's other proposals and not as a proposal for an agreement on recognition solely to the exclusion of the other terms of agreement sought by the Union. 326 DECISIONS OF 'NATIONAL LABOR -RELATIONS BOARD closed shop , arbitration, wages and hours, and other working con- ditions and that Briggs rejected these proposal S .30 On the 'other ]land, Briggs testified that to the best of his recollection this conference was wholly concerned with the Union's request for the reinstatement of the Mineola strikers who had not been returned to work and that other subjects were not discussed . While we find that the February 16, 1939, conference was devoted principally to the issue of the reinstatement of the strikers , we further find that in the course of the conference the Union did ask for recognition , a closed shop, wage increases and hour adjustments 31 and that these requests were refused without discussion on the ground that an impasse had been reached on those matters in prior conferences 32 and that further discussion would be fruitless.33 Stern further testified that as the conference concluded he asked whether Briggs would sign a contract with the Union covering such terms as the parties might agree upon and that Briggs replied that he would not sign a contract. Briggs denied that the question was asked and that he made the answer to which Stern- testified. The testimony of the other persons present is conflicting in some respects and otherwise inconclusive .' Upon the whole record we are satis- fied and find that Briggs did not make this alleged statement. On July 28, 1939, Briggs met with representatives of the Union and discussed separately the provisions of another contract proposed by the union covering the respondent 's metropolitan branches. This contract was substantially similar to the previous contracts submitted except that it provided for a preferential shop instead of a closed shop and for a schedule of minimum wages rather than wage increases. 80 At the hearing Stern testified that Briggs refused wage increases for the Mineola Branch on the ground that it is located outside of New York City in a small town where living costs are low In reply to the request for a 44-hour week and 8-hour day, Briggs stated the respondent would "live up to the [wage and Hour] law" The arbitration re- quest was rejected without comment. Concerning the request for recognition and a closed shop, Briggs stated that "we [the Union] were certified, and that was sufficient recog- nition " - 31 Stern was corroborated substantially in this phase of his testimony by Delisky, Gulotta, and Remski, union committeemen who were also present at the conference. ' .. 32 All the union witnesses who were present at the conference agreed in their testimony that Briggs was abrupt at this conference and he admitted that he was "provoked" since the union committee had appeared at his office without prior arrangement Remsla, one of the union committeemen, testified with respect to Briggs' position at this conference that "Every question that was asked of Mr. Briggs, he said, 'we went over that before. We could not agree on it, so' [Briggs] said, 'why go over that again , " ' There is no showing that between the December 10, 1938, and February 10, 1939, conferences either party had either requested or offered counterproposals. 34 Gulotta testified that Briggs stated that he would not sign any contract with the Union unless he was first authorized by the respondent's Chicago office Delisky testified that Briggs stated that "he had no authority to aree to anything and it was against the policy to sign any kind of contract." On direct examination Remski corroborated the above- stated testimony of Delisky, but when questioned on cross-examination Remski admitted that he did not remember whether Briggs had made either of the two statements attributed to him by Delisky r-- --WILSON- &• COMPANY, - INC- 327 The. respondent's position on the several clauses; of .this contract may be summarized as follows:, The respondent agreed to the recognition' clause provided it in- eluded • a, statement that the Board had certified the Union as the exclusive representative. Briggs also agreed to continue the respond- -ent's present policy to grant legal holidays and a week's vacation with pay. . There was no comment on the sanitation clause which ap- parently was not objectionable or to the request for the establishment of a 44-hour week which presumably was then in effect. The pref- erential shop, arbitration, 8-hour work day, wage classification, and seniority, provisions were rejected. However, Briggs stated that the respondent would agree to give equal consideration to union mem- bers who applied for vacancies and to give due consideration to length of service in regard to lay-offs and promotions. He further stated that the method of presenting grievances as set forth in the contract was agreeable. On, August 11, 1939, Stern submitted another contract to Briggs. This contract modified some of the union proposals, and contained clauses upon which there had been an accord as well as certain clauses which the respondent had previously rejected. The contract was again discussed in detail but the parties failed to agree to anything more 'substantial than had been agreed upon at the previous con- ferences. No further conferences have since been held concerning the negotiation of a contract. The course of the negotiations between the respondent and the ,Union over a protracted period, as recorded above, presents a border- line case on the issue of whether or not the respondent has bargained .collectively in good faith with the Union. The record. shows that the respondent met with the Union upon request and dealt with it ,as the exclusive representative of its employees at the various branches. However, both the Board and the courts have repeatedly held that such conduct alone is not sufficient to satisfy the employer's duty-under the Act, which requires that upon request he recognize expressly and negotiate with the statutory representative of his employees in good faith looking toward the consummation of a col- lective bargaining agreement.35 Whether the respondent met its statutory obligation, as thus defined, is the essential inquiry here. In the conferences between the parties the terms of the various con- tracts proposed by the Union between November 1937 and December 10, 1938, 'the date of the first alleged refusal to bargain, were fully 85 Matter of Highland Park Manufacturing Co. and Textile Workers Organizing Com- mittee, 12'N. L. R, . B. 1238, and cases cited therein, enf'd National Labor Relations Board v. Highland Park Manufacturing Co. 110 F. (2d) 632 (C: C. A. 4). 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'discussed 'but,-no binding, agreement ever 'eventuated.sg Hopkins' letter of November 29, 1938, to Briggs stating the respondent's=po- 'sition on the clauses in the proposed contract submitted by'the Union on November 15, 1938, indicates that the explanation for this fact -lay in 'an unwillingiless on the respondent's part to make a binding agreement on any terms, even those embodying -its current practice's 'or- those "on which -there was no, substantial' disagreement- between the parties. - However, that indication is negatived-by the fact that at the final conference before the strike on December'10,1938, Briggs, as Stern's memos andun-i,establishes; went' beyond-the' `ilnplicatioris• of that letter.37 Further, 'the Union did not seek to conclude a contract 'upon the limited terms on which the parties were in-,accord to the exclusion of the more substantial ones upon which there was no accord 'Similarly,, in, the negotiations after the strike, while the 'respondent refused any concessions on terms regarded as basic by the Union, we are satisfied that an accord was reached_ on other terms and that ,the respondent did not refuse to embody such terms in a binding agreement. The Union contends that the respondent refused to bargain col= lectively in good faith by withholding any form of written recog- nition of the Union, by purporting to bargain through Briggs 'who had no authority to bind the respondent, and by other acts inconsist- `ent with collective bargaining in good faith. 'The record fails to show that written recognition was a basic issue during the 'negotiations. The Union made no demand for written recognition except in con- junction with its several proposed contracts on which the parties failed otherwise to agree. The Union argues that the respondent de- liberately refrained throughout their' -dealings from even addressing ,any written; communications to it by name. While the- respondent wrote only olie letter to the Union ,38 we cannot' say in the face of this ' record that this fact constituted a prohibited withholding of recognition or an indication of lack of 'good faith in its negotiations with the Union.35 We have found above -that Briggs had sufficient ,authority'to negotiate with the Union, to'meet the ftiiniri-ial- require- ments of good faith ih that respect. Moreover, it is clear that Briggs' alleged lack of authority did not cause the impasse in negotiations. While Briggs' delay in notifying Stern of the receipt of the letter 30 The record , is plain that ' no accord was ever reached by the' parties on such contro- versial proposals, inter a,l a,,as the closed shop, wage increases , arbitration , and seniority. a7 See reference to Stein's memorandum .supra. "After ne,otiations had broken down the respondent addressed a letter-to the Union, dated October G, 1919 Conferences were arran_ed and held usually pursuant to informal telephonic , commu- nications between the respondent and the Union ; on some occasions the respondent elected to discuss substantive m fitters with the Union over the telephone . At no time did the Union specifically request, as far as the record discloses , that written communications be directed to it. WILSON--&. COMPANY, -INC. a '329 tir,> of November-29; " 1938, from the respondent's Chicago, office is , indica- ' ;five of personal ;dereliction on- Briggs' part at this stage,' Jof lii's `dealing with the Ul ion,'we, are not persuaded that it *establishes' the ,absence of good faith, especially 'since the fault was corrected' upon express instructions from Briggs"superiors. While, as we have stated, the determination of the issue is not 'free from doubt, upon the entire record we find that the respondent l has ,not refused tb bargain collectively with the Union within' the mean- ing-of Section 8 (5) of the Act. Accordingly, that allegation of the 'complaint will be dismissed. C. The discriminatory refusals to reinstate . The complaint, as- amended, alleges that on or about. December 10, 1938, and at all times thereafter except as hereinafter indicated, the respondent refused and failed t'o reinstate to employment at its respective branches 15 named employees 4a who, participated, in the strike of December 12, 1938, because of their membership in the Union and their participation in this strike. It is further, alleged that by suchr refusal to reemploy the respondent discriminated - in regard to hire and tenure of employment of the said individuals and discouraged membership in the Union in.violation of Section 8 (3) of ,the, Act. During the strike between December,12 and December 17, 1938, the respondent hi'red' various new employees at -its seven metropolitan branches. On Saturday, December 17, 1938, the, strike was 'fermi- hated. As mentioned 'above, in settlement of the strike the respond- ent refused to discharge men hired during the,strike, but agreed with the Union that all strikers would be reemployed as they, were needed and those of them who were not immediately, employed would 1?e recalled and reinstated when work became available. On or about December 19, -the strikers applied individually for work and all -ex- `cept the 15 strikers named in the complaint were reinstated. -When these 15 strikers applied for work.they were told, by the :respective branch managers that their services were not then heeded because 'the're was no work available or because their jobs had been filled clur- ,ing the strike, - and-. were promised future employment when work 'became available .41- William G. Hawrey,, the respondent's' manager at the Mineola branch, promised to "get in touch" with the strikers who were not reinstated at his branch whenever work ' became 'avai'l- ,able. Briggs agreed to notify Stern when -the respondent could use any ofthese, 15 'st'rikers. . '!James I3crnev, Anthony Delisl:y, Theortore-Edenfield, Anthony Gulotta,-Aenrv Iiolacz, Anthony Lopes, Walter Lang, Anthony Liiterelli. Stanley Remski, Chester'fichmidt, John A. Sparanese, John F. Viking, Albert Leylne, Fred Fisher, and Silvio Crodidio - ' 4' This does not apply to Anthony Delisky whose case is discussed in detail infra. 330 DECISIONS OF' NATIONAL- LABOR RELATIONS BOARD _ Between December 19 and the date of the hearing, the respondent filled 12 positions at the metropolitan branch' houses with, persons who had not previously- been in its employ. Despite its. December 17 settlement agreement and subsequent promises to, recall these strikers, the respondent failed to offer to^ them any of the 12: positions; which ,it, filled with new employees. Statements made to some of the 15 employees by Manager Hawrey when they applied for reinstatement establish that they were not recalled when vacancies occurred, as the respondent had promised, because of their union membership and participation in the, strike.42 Thus, Sparanese testified that when Hawrey refused to give him work after the strike, Hawrey "stated that"'You should have thought of that [work] - before you went out on strike." Kolacz testified that 'when he applied for work after the strike Hawrey stated that his job had 'been filled by another man and further stated that "You do know why you have lost your position-Those are the things I 'warned you against sometime ago." 43- At the hearing, Hawrey denied that`he `told any of the strikers who applied for work that he should have thought about his'job before going on strike. We do not credit this denial and find that Hawrey made the statements attributed to - ,him. , When C'redid'io was refused reinstatement after the strike, one Gundlicli, manager of the Westchester branch, stated that "he was disappointed at the initiative [Credidio had taken] during the strike." We' shall discuss separately the vacancies filled by the respondent at each branch after the strike. - Mineola Branch 44 Edenfield,, Remski, Schmidt, Lang, Gulotfa, Kolacz, rind Sparanese are the employees at this branch who were refused reinstatement after the strike, and thereafter were not offered the positions which were later filled at this branch.45 Edenfeld was hired in September 1933 as a chauffeur. Prior to the strike he worked on the platform and was an extra chauffeur. He was, a shop steward in the Union. Remski was hired in November 1935 as' a chauffeur. During his employment he also worked as a lugger and prior to the strike he was an assistant shipping clerk. Schmidt was hired in June 1937 and worked in the smoked meats department At the November 16, 103S, conference, discussed above, when' it appeared that the strike was imminent the respondent's representatives warned the, Union that if a strike ensued the strikers would have difficulty in obtaining reinstatement. 13 Kolacz testified that on November 18, 1938, the day the election was conducted by the Board at the Mineola Branch, Hawrey requested him, when he was Shop Chairman of the Union, to use his influence among the employees to vote down the Union in the election, and that he refused the request Hawrey denied that he, made, this request of Kolacz and stated that several employees asked him for advice concerning, the 'election which he refused to give. On the basis of this record-we do not credit Hawrey's denial and find that he made the request which Kolacz attributed to him .'During fhe'strike the respondent hired' at' this branch 10 men classified' as chauffeur- luggers, of whom all' but one were working at the time 'of` the hearing. 45 This group' does not include Delislcy whose case is discussed' separately infra - WILSON & iCOMP.ANY, INC. 331 wrapping hams. He has also worked as a lugger and chauffeur. Lang was employed, 'in August 1937 as a.scaler. He has also ,cut small stock and beef.. -Gulotta was hired. in January 1938 'as a chauffeur. He 'has .also worked as a lugger. During the -strike he was a :strike captain.' Kolacz was employed in May 1938 as •a ham washer. He ?has also worked as 'a lugger. He was .chairman of the Union',s membership,committee and in October 1938 was elected shop chairman. Sparanese was employed in November' 1938 as an egg clerk. After December 19, five vacancies occurred at the Mineola branch for which ,the respondent hired F. Jenkinson and A. Asaro, classified as :sausage helpers, on May 1 and June '26, 1939, respectively; J. Catapano,, !classified as a lugger, on July 10, 1939; E. :S. ;Smalling, classified as ,egg helper, on July 20; and J. L. Ziano, classified as a porter, on September 11, 1939. Jenkinson and Asaro Were- inexperi- enced when they were hired to fill the sausage helper vacancies. Hawrey ,offered, various. explanations for hiring these 5 men in preference to the strikers'46 whom the respondent had agreed to recall as' vacancies occurred. Hawrey testified that the vacancies as sau- sage helpers filled .by Jenkinson and Asaro were not offered to the strikers ;because 'he .did not 'believe that they would 'have been satis- fied to work for approximately $22.00 a week, the. wages those jobs paid., Similarly, she -testified that he did not think that "some of these men" [the strikers] would be willing to work for $25.00 a week,which was 'the amount paid Catapano.47 This explanation, is unconvincing and we ,do not believe it. Four of the 7 strikers 411 were paid approximately $22.00 or less a week prior to the strike. Mora- over, the respondent made no effort to ascertain whether or not any of the -strikers would have worked at the. was which the jobs paid. Delisky is another employee at the Mineola branch whose work ceased during the strike and who was thereafter refused reinstate- ment. Delisky was employed by the respondent at this branch as an -engineer from 1933 until December 14, 1938. Prior to the strike 16 Hawrey testified that Sparanese was a relatively new employee who had not,shown much aptitude in his work for'which Smalling was hired after the strike . However, we are not persuaded by that testimony since Hawrey admitted that he had not advised Sparanese of his alleged inefficiency ' before the strike or even after the strike when he promised to give him , along with others, work when it was available . We find that Sparanese was not inefficient ,and that even if, contrary to our finding, he was inefficient that was not the reason for the respondent's failure to reinstate him At the hearing Haevrey testified that lugging, the job for which Catapano was hired, is unskilled work d hich ,could be learned 'in about a week and admitted that .the'seven ;strikers were qualified to do this work. It is apparent from Ziano's classification as a porter that he did unskilled work. 47 Ilawrey ,explained that Catapano was' hired instead, of these employees to fill 'the lugger vacancy because Catapano was a "likely looking chap" who appeared to "fit in". 0 Kolacz, Sparanese, Schmidt, and Lang. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Delisky and two other engineers, each' of whom, worked an '8=hour shift, attended the.boilers and operated the refrigeration: machinery. Although the strike called by the Union was effective on December -12, Delisky pursuant to instructions from the Union, continued there- after, to report to work at Mineola and operate the refrigeration plant. , On about the second day of. the' strike the,. respondent at= tempted to unload; a'truck load of butter at this 'branch and the'union iepresentatives< informed, Hawrey, the branch manager,' that if this was done the engineers would also be called out on strike. Hawrey continued, his efforts to unload the truck. Whereupon the ; union representatives instructed Delisky.who was on duty at the- time; to shut, off the machinery under his supervision- and go out on -strike. Before Delisky had completely carried out these-instructions, Hawrey, after, again consulting with union representatives, stated -that .the truck: would not, be unloaded. Delisky then resumed his work and finished the day. However, when Delisky, reported to work as -usual the r nextE day,. December -14, Hawreyw said, "Well- ..' . I 'don't think I1'will need-you any more.":: ' . L,,, ' -;,After ;tlie,termination of the strike; on December 19, when Delisky asked -if he was to have-his job back,:Hawrey replied ii the negative; and stated that there was not to be a 'night shift. At .the February 16,'1939,-conference between representatives of the Union and Briggs; described above," the Union' -reglie.sted Delisky's,reinstatement.. On that} occasion Briggs 'said that Delisky had been punished enough and, if, the' respondent 'put on another night engineer Delisky would be, considered. At the 'tine of ithe hearing- Delisky had not been offered employment by the respondent. , -Since, Delisky's separation, the respondent has used only, the -two engineers who -worked with , Delisky. , before the strike, one of wliom has considerably less seniority than Delisky, at the, Mineola brallch.'19 The 'two engineers have worked.12 hours a day instead of hours as they had done priorito,the strike and have been paid time and ;a lialf,for this extra time. At some time after February 1939 another engineer worked for several days during an emergency At Milieola. Delisky as' not offered this,work.' Upon these facts we are of the opinion that Delisky ceased work on December '14, 1938, in `consequence of; and, in 'connection with, a current labor dispute at the respondent's branches and that when Delisky applied for and' was, refused, reinstatement after the strike on December 19, 1938, he was an employee within, the 'meaning of Section 2 (3) of the Act. The respondent contends the Delisky was discharged for refusing to maintain the fire lin the boilers unless the respondent refrained'from-unloading"the truck during the strike.- "After Delisky's separation these two engineers refused at the request of the Union to Join the strike. :, ;" WII:SON &' ,COMPANY, INC. ' 333 s^q..,•nt, Aside'-'from the .fact' that the respondent's statement to'Delisky that it •no longer needed him could not sever the employer-employee rela- ;tionship :within the meanin'g of the Act,' -ve`do not believe on. the basis of this record that the respondent intended to accomplish' this result: : By his behavior on December 13, Delisky had indicated that 'he; considered himself obligated'. to go on strike under' certain con- ditions. We view-the respondent's treatment of Delisky on the fol- lowing day.merely as recognition that Delisky would refuse'to work upon its terms but would join the strikers. We believe'that the re- spondent intended to and did place Delisky in the'status of the other strikers.5o Jamaica Branch : 51 Litterelli 53 and Lopes are the two strikers who % were ,refused reinstatement at this branch. Litterelli was hired in 1933 and' worked as chauffer and a lugger. Lopes vas hired in 1932 or 1933 and worked. as a lugger. - After December 19, two positions were filled by the respondent at this'.branch. F. R.•Franc was hired as an assistant shipper on'Decem- ber 27, 1938, and Holzheimer was hired as a, scaler on February 6, 1939.: Westchester Branch: 53 Credidio, Fisher, and Berney are the strikers who were not reinstated at this branch upon the termination of 'the strike.' However, Credidio and Fisher were reinstated -in February `1939; 'before any new employees` were hired. We shall dismiss the complaint as to them.' Berney has worked for the respondent, except for--several interhuptions, for the past 25 years. Prior to the strike he was a cutter and assistant salesman for lambs and calves. At times lie lias also worked as a lugger. ' ' -'After'Deceniber'l9, the respondent filled four positions with new employees at this branch., J. T. Mason was hired as a sausage lilaker,'oli September 5, 1939; A. Scalone and B. Epstein as sausage packers ' on September 11; and R. F. Ratid as a -sausage packer on October 23, 1939. - Fort Greene: 54 Viking and Levine are the strikers 'who were refused reinstatement at this branch upon the termination- of-'the- ' DO Under these circumstances acceptance of the respondent 's contention , that it discharged Deliskv on. December 14` would requite it finding of unfair . labor practice as of that clay. while the respondent was and ^r no obh ,ation to permit Delisky to work on terms other than its own , his refusal to work on the respondent 's terms was a concomitant of-the strike. We think -it was a permissible union activity, no more "insubord ination" than was the behavior of the other strikers, and that the Act protects it. Cf Matter of American Menu, factvrinq Concern and Local No R, Organized Furniture lvorhers,•7 N. L. R. B. 75.3 ciDuring the stripe the respondent, hired one lugger who was still employed at the time of-the.hear,ing , ' Litte'relli applied for reinstatement prior to.the termination of the strike and on several occasions thereafter. ° Duririglthe sty ike the •respondent hired one lugger at this branch who was not employed at the , time of the hearing. • , ci During the strike two luggers were hired at this branch-who were not employed-on the date of the hearing. ,334 -DECISIONS -OF -NATIONAL LABOR'- RELATIONS ' BOARD strike. Viking was hired in November 1937 and worked as a lugger. .Levine was first employed at'this branch in October 1, 3.S'and worked as a lugger. On- April 19 or '20, 1939, the respondent-Teinstatid Levine. One vacancy was filled at this branch ;after. December 19,,-4939, and .prior ,to Levine''s 'reinstatement. F. T. Smith was hired on January 24, 1939, as 'a cutter-lugger,. However, .since Levine was -reinstated within .3 months .after Smith was hired, we are not convinced that .the delay in his reinstatement was discriminatory and we- shall dis- miss the complaint as to him. We find that it was customary at the respondent's branches to shift and transfer employees from one,department.to another in order ,to facilitate operations, and that the work for which 12 new men were hired' -after the termiliation of the :strike could have been per- formed by the individuals listed on Appendix A.55 To summarize, we find that the strike of December 12, 1938, Was a labor dispute within the meaning of Section 2 (9) of the Act; that the work of those individuals listed 'on Appendix A ceased as a consequence of, and in connection with, a current labor dispute; that said individuals retained 'their status,as employees within the mean- ing of Section 2 (3) of the Act; that the strike was terminated on December 17, 10,38, upon-the respondent's agreement in part to con- tinue the strikers not immediately reinstated to their jobs in the status of employees with a preferential claim to reinstatement when vacancies occurred ; 5s that as such employees they were entitled to protection against the unfair labor practices denounced by the Act; 51 that only 3 of the 15 strikers were thereafter reinstated; and that between the send of the strike and the date of the hearing the respond- ent hired at its branches 12 persons who had never previously been in its employ ,to do work which,could have been performed by indi- viduals listed on Appendix A. We further find that after the strike the respondent, contending that it had abolished Delisky's job, had Delisky's work done by his two former fellow engineers, requiring 55 Elawrey testified , "In a branch like ours--if we are short in another department, we transfer the men around It does not make any difference-One department might be a little slow and we use [the employee ] in the other departments." s"-Their status was analogous to that of laid-off employees not presently working for eco- nomic reasons. -Cf. Matter of North Whittier Heights Citrus Association and Citrus Pack- ing House Workers Union, Local No. 21091, 10 N. L. R B. 1269, enf'd, North Whittier Heights Citrus Ass'n v. National Labor Relations Board, 109 F. (2d) 76 (C C A. 9 ), cert. den , 310 U. S 632; Matter of Phelps Dodge Corporation, a corporation and International Union of Mine, Mill and Smelter Workers, Local No. 30, 19 N. L R B, No. 60, enf d in part, Phelps Dodge v. National Labor Relations Board , 113 F. (2d) 202. 17 National Labor Relations Board v. Mackay Radio d Telegraph Company, 304 U S. 333, rev'g 92 F ' (2d) 761 (C C A 9) and enf'g Mattcr of Mackay Radio d Telegraph Company and American Radio Telegraphists' Association, San Francisco Local No 3, 1 N. L. R. B. 201. Cf Black Diamond Steamship Corporation v. N L. R. B., 94 F. (2d) 875 (C. C. A. 2), cert. denied 304 U. S. 579, enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneficial Association, Local No. 33, 3 N. L R. B. 84. WILSON &. COMPANY, INC'. 335 each of them to work-a.12-hour shift, and paying each' time andi a half for 4''of those hours, and' refused to restore the status: quo; in, which Delisky and the, others. worked & hours: each at straight time. The. respondent offered no explanation of its refusal to revert. to' normal operations. in respect to its, engineers. We find that Delisky's. posi-' tion was. available at the time of his, application for reinstatement. Upon this, record we. are satisfied, and we find, that the respond- ent failed to recall the employees listed on Appendix A,' other than Delisky, when vacancies occurred in order to penalize them' because of- their union membership and activities and refused to restore Delisky, to his. job because of his union membership. and' activity.5e' We find that, the respondent discriminated' in regard to the hire. and, tenure of employment' of the employees, listed in Appendix A, discouraged membership in the Union, and thereby interfered with', restrained,, and coerced its, employees. in the. exercise of the: rights, guaranteed in, Section 7 of the Act.b , IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON: COMMERCE The activities of the respondent set forth- in Section Iii above, occurring in connection with the operations- of the respondent de- scribed 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,'engagd- in unfair labor practices we will order it. to, cease. and desist, therefromi and, to. take certain affirmative: action. designed to effectuate, the policies, of the Act and to restore as nearly' as possible. the condition, which existed. prior to the commission of the. unfair labor practices. We have found that the, respondent has discriminated- in regard to the hire and tenure. of employment, of employees listed in. Appen- - dix A. - We shall,, therefore, order the, respondent, to offer. to each ss in, hik' Intermediate Report the Trial ' Examiner found , in substance, that since the, strike was not the result of aw unfair * labor practice the respondent was under.* no* duty to dismiss persons hired during the strike in order to make jobs available , when. none other- wise existed; for the 15 employees named in the complaint . We agree with these findings but for the' reasons hereinabove discussed we- do, not concur im the - Trial , Examiner's further finding that the respondent did not discriminate in regard to the hire and tenure .of. employ- ment of the employees listed in Appendix A. w Even if, , contrary, to, our finding above, these persons were ,not employees of the respond- ent after the termination of the strike . on December 17, 1938, we find, that the respondent discriminated' against them as applicants for employment within the meaning of, Section.8, (3) of the Act. She Matter of Waumbec Mills, Inc. and United Textile Workers of America, ,15-N. L R B - 412„ enf'd National Labor Relations - Board. v. Waumbec Mills,, Inc., 114 F. (-2d)'-226 (C. C. A. 1'). 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of them at the respective branches reinstatement to his former.-or; to a' substantially equivalent position (or if 'no such position be available, then to any position for which he may be qualified, occupied by any person hired after December 19, 1938),60 and to give each of them back pay. The offer of reinstatement shall be without prejudice to their seniority and other rights and privileges. Such reinstate-. ment shall be effected at the Mineola, Jamaica, Westchester, and Fort Greene branch houses, respectively, in the following manner : - All, or such number as may be necessary, of the persons hired at_ each of the four branch houses mentioned in the preceding pars, graph, respectively, after December 19, 1938, the date the employees listed on Appendix A applied for reinstatement, shall be dismissed, if necessary,G1 to provide employment for those to be offered rein statement. If, even after this is clone, there is not sufficient employ ment immediately available for all or any of the employees listed' in- Appendix A, all available positions shall be distributed Among such employees, without discrimination against any-employee because of his union affiliation or activities, following 'a system of seniority' or other procedure to such an extent as has heretofore been applied in the conduct of the respondent's business. Those of the said-employees, remaining after such distribution, for whom no employment is- ini-• mediately available and those who, in accordance with what has•;•been- set forth above, are reinstated not to their former or substantially. equivalent positions but to positions for which they may be qualified., shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter in accordance with such list, be reinstated to their former or to sub- stantially equivalent positions, as such employment becomes available and before other persons are hired for such work. - Further, we shall order the respondent to make whole the employees' listed in-Appendix-A,against whom it' discriminated, in the manner' hereinafter provided. We have found that between December 19,- T938^ the date'the employees 'listed in Appendix A applied for rein- statement, and the date of the-hearing, the respondent discriminatorily' filled fewer 'vacancies at certain of its, branches than there were'em-' ployees available and qualified to fill such vacancies. It is impossible on' the record to determine in those instances either which of the employees listed 'in 'Appendix A" 'absent finlawful`,discrimination' against them, • would have been reinstated to ,the limited number' of e' The world formerly done by Delisl:y is now being performed by persons who were in the respon'dent's' employ before the strike we have"found; however, ' that the respondent's,, refusal. to reinstate Delisky'was discriminatory and''that ,Delitiy's position was available at the time' of his ` application for reinstatement., Our order requires the respondent to',rein-' state him to 'it; :..._ ..^ i 81'This does not apply to reinstated ' strikers'but"applies to'persons hired for joba ,which_ the employees listed on Appendix A were qualified to fill. ''' '`.. f . J I "I I WILSON & COMPANY, INC.' 337; positions- or in: whit- order 'they would have been rreinstated.a= ' Ac- cordiri'g y;.we 1 ave•framed our back pay orde'r'with•due allowance for, those circumstances. We shall order the respondent to make payment` to each •of. the employees listed in' Appendix -A of an amount 'egiiaFto that which he would have earned as wages during the period from, the date` on which; absent 'discriminati'on' against him, he would have been reinstated `had The respondent filled the vacancies; which oc- curred at each branch after December 19; 1038; with the employees listed in Appendix A in accordance with and following such system of seniority or other procedure as had theretofore been applied in the conduct of .the respondent's business,, to the date of the Trial Examiner's Intermediate -Report 13 and from the date of our order, to the offer of reinstatement or,placement upon.a-preferential list,'less his net earnings G4 during the period. - • Upon the basis of the foregoing * findings of fact, and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW, 1. United :Packinghouse: Worke'rs of America, Local N. 49, affili -ated with the Congres of Industrial Orgaizations, formerly known' as United Meat 'Workers Local Industrial Union No. 635; is a labor organization within the"meaning of Section 2 (5) of the Act, 2. By discriminatin' in' regard to the hire and tenure' of employ- in ment, of the employees 'listed in Appendix A,' thereby discouraging membership ' in- .United Packinghouse, Workers of 'America, ' Local- No. 49, the respondent has engaged in and is engaging in ulifair- labor= priictices'within theme thing of Section 8 (3) of the Act. 3. By interfering with, restraining; ' and' coercing its'employees in' the exercise of the-rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices. within the lneaninb of Section 8 (1) of the Act. ' 02This does not apply to Anthony Delisky who, as.we,have found, would have been rein-, stated to his position on December 19, 1938, absent discrimination against him; Accord- ingly, Iris back pav shall run fi our December 19, 193S c2 Since the Trial Examiner_ recommended dismissal 'of the allecations of'discrimination, we shall not allow back pay to the employees listed on Appendix A for the peilod between, the issuance of the Intermediate ltepoit and our Decision and Order . See Matter of D. R.' Haffeifinyer and" Company, Inc., and United Wallpaper Crafts of North ,America, Local, No. 6, 1' N. L. R. B:' 7 00,`707. ' 04 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 hot have been incur red 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 Jo iners of Amer-, ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. B. B. 440 . Monies received' for work performed upon Federal, State , county , municipal , or other work-relief ' projects shall be considered as earnings See Republic Steel Corporation v National Labor _Rela-- tions Board, decided by United 'States Supreme Court, November 12,'19401 ' - ' 338` DECISIONS OF NATIONAL, LABOR -RELATIONS BOARD 4. The, aforesaid unfair labor practices are unfair labor practices. affecting commerce, within, the. meaning, of Section, 2 (6); and (7) of, the Act., 5. The respondent has not engaged in unfair labor- practices within the meaning, of Section 8 (5) of the Act. 6: The, respondent has not discriminated against Silvio, Credidio, Fred' Fisher, and Albert Levine in regard to their, hire and tenure. of employment within, the meaning of Section 8, (t3) 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 Act,, the National Labor Relations Board hereby orders that the, respondent, Wilson & Co., Inc., Chicago, Illinois, and its officers,' agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Packinghouse Workers of America, Local No. 49, or any other labor organization of its em- ployees;, by discriminating in regard to. hire or tenure of: employment or any term, or condition of employment;, (b) In any,-other manner interfering, with,, restraining,. or, coercing, its employeees'in the,exercise:of the right 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 purposes, of "collective. bargaining,, as, guaranteed, irr. Section 7 of the, Act. 2. Take the following affirmative action; which the, Board'. finds' will- effectuate the-policies of the Act : (a), Offer, to, the employees: listed> in Appendix A, immediate. and full, reinstatement„ without, prejudice to, their, seniority, and other- rights and privileges, in, the manner set forth in: the section; entitled, "Remedy" above, placing those employees for whom employment is- not immediately available and those who, although reinstated are. reinstated not to their former or substantially equivalent. positions but to` positions- for which they are' qualified upon a preferential list, in the.manner, set forthdin said section;. (b)' Make' whole each' of the employees' listed' in, Appendix. A,, respectively„ for, any loss. of pay he, may have. suffered, by reason of the, respondent's discrimination against him as'to his hire and tenure, of employment. in the; manner set. forth in the: section' entitled' "Rem- edy,"; less'his net' earnings- during said period;, (c) Post. immediately in' conspicuous: places: at, each, of its, New' York metropolitan branches, and maintain for a, period`: of' at. least. sixty- (60) consecutive days from the date of posting, notices to its WILSON & COMPANY, INC. 339 employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of the Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; (3) . that the respondent's employees are free to become or remain members of United Packinghouse Workers of America, Local No. 49, and the respondent will not discriminate against any employee because of membership or activity in that organization; (d) Notify the Regional Director for the Second. Region in writing within ten (10) days from the date of the Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act and that it has discriminated against Silvio Credidio, Fred Fisher, and Albert Levine in regard to their hire and tenure of employment within the meaning of Section 8 (3) of the Act. APPENDIX A James Berney Athony' Delisky Theodore Edenfield Anthony Gulotta Henry Kolacz Anthony Lopes Walter Lang Anthony'Litterelli Stanley Remski Chester Schmidt John A. Sparanese John F. Viking MR. EDWIN S. SMITH, dissenting in part: I dissent from the conclusion that the respondent did not discrim- inate against Albert Levine. The respondent hired a new employee in its Fort Greene-branch at a time when Levine and John F. Viking, strikers, had not been reinstated. The Board finds that the respond- ent discriminated against Viking and against strikers at other branches whom the respondent accorded similar treatment. Levine's case differs from the others only in that he was subsequently rein- stated. That circumstance does not, in my opinion, alter the fact that his reemployment was discriminatorily delayed. In all other respects I concur in the majority opinion. 440135-42-vol. 30-23