The Greeley Ice & Storage Co.

In the Matter of THE GREELEY ICE & STORAGE COMPANY and INTER- NATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSE- MEN AND HELPERS OF AMERICA, PRODUCE DRIVERS , HELPERS AND WAREHOUSEMEN, LOCAL No. 452, AND INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL No. 1 Case No. C-1945.-Decided September 13, 1941 Jurisdiction : ice manufacturing and selling, beer wholesaling, and coal retailing industry. Settlement : stipulation providing for compliance with the Act. Remedial Orders : entered on stipulation. Mr. Paul S. Kuelthau, for the Board. Mr. John W. Henderson, of Greeley, Colo., for the respondent. Mr. Earle, Christal; of Denver, Colo., for the Teamsters. Mr. H. H. Herbolsheimer, of Denver, Colo., for the Engineers. Mr. Dan M. Byrd, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Produce Drivers, Helpers and Warehousemen, Local No. 452, herein called the Teamsters, and International Union of Oper- ating Engineers, Local No. 1, herein called the Engineers, the Na- tional Labor Relations Board, herein called the Board, by its Regional Director for the Twenty-second Region (Denver, Colorado) issued its complaint dated July 23, 1941, against The Greeley Ice & Storage Company, Greeley, Colorado, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Sec- tion 8 (1), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing were duly served upon the respondent, the Teamsters, and the Engineers. 35 N. L. R. B., No. 85. 398 GREELEY ICE & STORAGE COMPANY 399 Concerning the unfair labor practices, the complaint alleged, in substance, (1) that on or about November 8, 1940, and thereafter, the respondent refused to bargain collectively with the Teamsters and the Engineers as the.exclusive representative of its employees within separate appropriate bargaining units; (2) that on or about January 6, 1941, as a direct result of the aforesaid refusals to bargain, the respondent's employees went on strike; (3) that on or about April 10, 1941, the respondent refused to reinstate 19 named employees because of their membership in the Teamsters and Engineers, and because of their participation in the strike; (4) that during the period from September 1940 down to the date of the complaint, the respondent interrogated its employees concerning union membership and activity, warned its employees against said membership and activity, and threatened its employees with loss of jobs if they assisted and sup- ported the Teamsters and the Engineers or engaged in concerted activities with other employees for the purpose of collective bargain- ing or other mutual aid and protection; and (5) that by these and other acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Prior to a hearing,' on August 6, 1941, the respondent, the Team- sters, the Engineers, and the Regional Attorney for the Twenty- second Region entered into a stipulation, subject to approval by the Board, for settlement of the case. The stipulation provides as follows : STIPULATION Charges having been filed with the Regional Director of the National Labor Relations Board, 22d Region, a complaint and notice of hearing was issued and served on all parties wherein and whereby it was alleged that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (5) of the National Labor Relations Act (49 Stat. 449). All parties hereto acknowledge service of said complaint, notice of hearing, and charge. It being the intention of the parties to dispose of the matters which have arisen, it is hereby stipulated and agreed by and among The Greeley Ice & Storage Company, by its attorney John W. Henderson; International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Produce Drivers, Helpers and Warehousemen, Local No. 452, by its representative ' Proper cause having been shown by the respondent, on August 1, 1941, the Regional Director issued an order extending the time during which the respondent could file an answer, and an order postponing the date of hearing to a later date. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' Earle Christal; International Union of Operating Engineers, Local No. 1, by its representative H. H. Herbolsheimer; and Paul 'S. Kuelthau, Regional Attorney, 22d Region, National Labor Relations Board, as follows : I The respondent, The Greeley Ice & Storage Company, is and has been since September 30, 1901, a corporation organized under and existing by virtue of the laws of the State of Colorado with its principal office' and place of business in Greeley, Colorado. It is engaged in the manufacture and sale of ice, the operation of a cold storage warehouse, the wholesaling of beer, and the retailing of coal. The respondent, in the course and conduct of its business, annually wholesales beer and delivers the same within the State of Colorado, which is shipped to it at its warehouse in Greeley, Colorado, from and through States of the United States other than the State of Colorado, and of the gross sale value in 1940 of $48,629.30. The respondent annually ships from its warehouse at Greeley, Colorado, empty beer bottles and kegs returned to it by its customers -into and through States of the United States other than the State of Colorado and in the year 1940 so returned 34 cars of beer bottles and kegs. The respondent manufactures ice which is sold and delivered by it within the State of Colorado; that in the year A. D. 1940, respondent manufactured 4464 tons of ice, and 346 tons thereof of the sale value of $1384.00, were sold by it at Greeley, Colorado, to customers who used said ice for the icing of 78 freight cars loaded with turkeys which moved from the State of Colorado into and through States of the United States other than the State of Colorado. The respondent admits for the purpose of this proceeding that it is engaged in interstate com- merce within the meaning of Section 2 (6) and (7) of the National Labor Relations Act. II All parties hereto waive all further and other procedure pro- vided by the National Labor Relations Act or the Rules and Regu- lations of the National Labor Relations Board, including the taking of testimony and the making of findings of fact and conclusions of law. III This stipulation; together with the charge, complaint, and notice of hearing, may be introduced in evidence by filing them" with`- GREELEY ICE & STORAGE COMPANY 401 the Chief Trial Examiner of the National Labor Relations Board, Washington, D. C., and shall constitute the record in this case. IV The respondent agrees to reinstate upon application , provided said application is made in writing within twelve days after the approval of this stipulation by the National Labor Relations Board, the following employees : Irving C. Neville William Bettger Robert C. Billings Ralph M. Cox Antone Schaub - Paul Grossaint Glen Timothy Gearold Myers Delbert Lester J. B. Busch Ivan Eppler Milton B. Right- Leonard Carlson Charles E. Billings mire Harold .B. Dooling John Berry Martin Reed Charles F. Ireland Press Arnold The aforementioned employees making written application there- for are to be reinstated to their former or substantially equivalent positions. Their rate of pay upon reinstatement shall be the rate they were receiving prior to going on strike on January 6, 1941, or if an agreement is reached between the respondent and the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Produce Drivers, Warehousemen and Helpers, Local No. 452, and International Union of Operating Engineers, Local No 1, at the rate of pay specified in said agree- ment. Said reinstatement is to take place in the following manner : All persons hired since the beginning of the strike on January 6, 1941, are to be discharged if necessary to provide full time em- ployment for any of the aforementioned employees applying for reinstatement. If after such discharges the respondent does not have sufficient jobs available for all those applying for reinstate- ment, the employees not reinstated excepting those who fail to make written application therefor, are to be placed on a preferen- tial list and offered employment before any other persons are hired in the order of the length of service with the respondent, the employee with the longest service to be employed first and so on until the list is exhausted. It is further understood and agreed that said employees making written application for reinstate- ment are to be reinstated with all their former rights, privileges, and seniority. V The respondent agrees to make whole the employees named in paragraph IV hereof for any loss of pay they have suffered by 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason of the refusal of their applications for reinstatement on April 10, 1941, by payment to them of a sum of money equal to that which each would have earned had he been employed by the respondent from April 10, 1941, to the date of his reinstate- ment or placement on the preferential list, deducting therefrom, however, the net earnings of said employees during that period. It is further understood and agreed that the net earnings of the employees during said period are the amount earned elsewhere during said period less expenses incurred in working and seeking work elsewhere. It is also understood and agreed that if an em- ployee does not apply for work before the expiration of the period set forth above, he shall be entitled to be made whole for his loss of pay from April 10, 1941, to the date of the approval of this stipulation by the National Labor Relations Board, deducting from the payment to any such employee, his net earnings during that period. VI The truck drivers, warehouse laborers, and checkers employed by the respondent, except warehouse laborers who operate and maintain machinery, supervisors, and bookkeepers, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Produce Drivers, Helpers and Ware- housemen, Local No. 452, is the representative for the purposes of collective bargaining of a majority of the employees within said unit and, therefore, is the exclusive representative of all the em- ployees in said unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the National Labor Relations Act. VII The warehouse laborers engaged in maintaining and operating machinery in the respondent's plant constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. International Union of Operating Engineers, Local No. 1, is the representative for the purposes of collective bargaining of a majority of the employees within said unit and, therefore, is the exclusive repre- sentative of all the employees in said unit for the purposes of col- lective bargaining within the meaning of Section 9 (a) of the National Labor Relations Act. GREELEY ICE & STORAGE COMPANY 403 VIII On the basis of the facts stipulated in paragraph I above, the pleadings and the record described in paragraph III above of this stipulation, and by agreement of the parties hereto, the National Labor Relations Board may enter its order in the fol- lowing form in the above entitled case : ORDER The National Labor Relations Board hereby orders that The Greeley Ice & Storage Company, its officers, agents and successors, will : 1. Cease and Desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Produce Drivers, Warehousemen and Helpers, Local No. 452 and International Union of Operating Engineers, Local No. 1, or in any other labor organization of its employees by discriminating in regard to their hire and tenure of employment or any term or condition of their employment; (b) Refusing to bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Produce Drivers, Warehousemen and Helpers, Local No. 452, as the exclusive representative of any of its truck drivers, warehouse laborers or checkers, except ware- house laborers who operate and maintain machinery, super- visors, and bookkeepers; " . (c) Refusing to bargain collectively with International Union of Operating Engineers, Local No. 1, as the exclusive representative of its warehouse laborers engaged in maintaining and operating machinery; (d) In any other manner interfering with,, restraining, or coercing its employees in the exercise of the right to self-organ- ization, 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 or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action in order to effectuate the policies of the National Labor Relations Act: (a) Upon application before 12 days from the approval by the National Labor Relations Board of -the stipulation 451270-42-vol 35-27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon which this order is based, reinstate to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges the following em- ployees in the manner set forth in Paragraph IV of the stipulation upon which this order is based : Irving C. Neville Ivan Eppler Ralph M. Cox Charles E. Billings Glen Timothy John Berry J. B. Busch Press Arnold Leonard Carlson Robert C. Billings Harold B. Dooling Paul Grossaint Charles F. Ireland Delbert Lester William Bettger Milton B. Rightmire Antone Schaub Martin Reed Gearold Myers (b) Make whole the following 3mployees for any loss of pay they have suffered by reason of the refusal to reinstate them on April 10, 1941, by payment to each of a sum of money equal to that which he normally would have earned as wages during the period from April 10, 1941, to the date of his reinstatement or if no application for reinstatement is made to the date of the approval of the stipulation upon which this order is based by the National Labor Relations Board, less their net earnings during said period : Irving C. Neville Ivan Eppler Ralph M. Cox Charles E. Billings Glen Timothy John Berry J. B. Busch Press Arnold Leonard Carlson Robert C. Billings Harold B. Dooling Paul Grossaint Charles F. Ireland Delbert Lester William Bettger Milton B. Rightmire Antone Schaub Martin Reed Gearold Myers (c) Upon request bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Produce Drivers, Warehousemen and Helpers, Local No.- 452, as the representative of the truck drivers, warehouse laborers and checkers employed by the respondent except the warehouse laborers who operate and maintain machinery, supervisors, and bookkeepers. (d) Upon request bargain collectively with International Union of Operating Engineers, Local No. 1, as the representa- GREELEY ICE &,STORAGE COMPANY 405 tive of. warehouse laborers engaged in maintaining and oper- ating machinery employed by the respondent. (e) Post immediately upon approval by the National Labor Relations Board of the stipulation on which this order is based in conspicuous places throughout its plant in Greeley, Colorado, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its em- ployees stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (c?) of this order; and (3) that the respondent's employees are free to become or remain members of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Produce Drivers, Warehousemen and Helpers, Local No. 452, and In- ternational Union of Operating Engineers, Local No. 1, and that the respondent will not discriminate against any employee because of membership or activity in those organizations. (f) Notify the Regional Director for the 22d Region in writing within ten (10) days) from the date of the approval by the National Labor Relations Board of the stipulation upon which this order is based what steps the respondent has taken to comply therewith. IX The respondent hereby consents to entry by the United States Circuit Court of Appeals for the appropriate Circuit, upon application of the Board of a consent decree enforcing an order of the Board in the form hereinabove set forth and hereby waives further notice of application for such decree. The Board will as soon as conveniently possible make application for said con- sent decree. X It is understood and agreed that this stipulation embodies the entire agreement between the parties and that there is no verbal agreement of any kind which varies, alters, or adds to this stipulation. ' XI It is understood and agreed further that this stipulation is subject to the approval of the National Labor Relations Board and shall become effective immediately on receipt of notice grant- ing such approval. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 15, 1941, the Board issued an order approving the stipulation, making it a part of the record, and pursuant to Article .II, Section 36, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, transferring the proceeding to the Board for the purpose of entry' of a Decision and Order pursuant to the provisions of said stipulation. Upon the above stipulation and the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Greeley Ice & Storage Company, a Colorado corporation with its principal office and place of business in Greeley, Colorado, is en- gaged in the manufacture and sale of ice, the operation of a cold- storage warehouse, the wholesaling of beer, and the retailing of coal. During the year 1940, the respondent sold and delivered within the State of Colorado beer having a gross sale value of $48,629.30, prac- tically all of which, was shipped to its warehouse from and through 'States of the United States other than Colorado. During the same year, the respondent shipped out of the State of Colorado 34 cars of empty beer bottles and kegs into and through States of the United States other than the State of Colorado. During the year 1940, the respondent manufactured 4,464 tons of ice, of which, 346 tons, having a sales value of $1,384, were sold at Greeley, Colorado, to customers who used the ice for the icing of 78 freight cars loaded with turkeys which were shipped into and through States of the United States other than the State of Colorado. The respondent admits for the purpose of this proceeding that it is engaged in interstate commerce within the meaning of Section 2 (6) and (7) of the National Labor Relations Act. We find that the above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. ORDER Upon the basis of the above findings of fact and stipulation, and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that The Greeley Ice & Storage Company, Greeley, Colorado, its officers, agents, and successors, will : 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Prod- uce Drivers, Warehousemen and Helpers, Local No. 452, and Inter- GREELEY ICE & STORAGE COMPANY 407 national Union of Operating Engineers, Local No. 1, or in any other labor organization of its employees by discriminating in regard to their hire and tenure of employment or any term or condition of their employment ; (b) Refusing to bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Produce Drivers, Warehousemen and Helpers, Local No. 452, as the exclusive representative of any of its truck drivers, warehouse laborers or checkers, except warehouse laborers who operate and main- tain machinery, supervisors, and bookkeepers; (c) Refusing to bargain collectively with International Union of Operating Engineers, Local No. 1, as the exclusive representative of its warehouse laborers engaged in maintaining and operating machinery ; (d) In any other manner interfering with, restraining, or coercing its employees 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 or other mutual aid or protection as guaranteed in 'Section 7 of the National Labor Relations Act. ' 2. Take the following affirmative action in order to effectuate the policies of the National Labor Relations Act: (a) Upon application before 12 days from the approval by the National Labor Relations Board of the stipulation upon which this order is based, reinstate to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges the following employees in the manner set forth in para- graph IV of the stipulation upon which this order is based : Irving C. Neville Ivan Eppler Ralph M. Cox Charles E. Billings Glen Timothy John Berry J. B. Busch Press Arnold Leonard Carlson Robert C. Billings Harold B. Dooling Paul Grossaint Charles F. Ireland Delbert Lester William Bettger Milton E. Rightmire Antone Schaub Martin Reed Gearold Myers (b) Make whole the following employees for any loss of pay they have suffered by reason of the refusal to reinstate them on April 10, 1941, by payment to each of a sum of money equal to that which he normally would have earned as wages during the period from April 10, 1941, to the date of his reinstatement or if no application 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for reinstatement is made to the date of the approval of the stipula- tion upon which this order is based by the National Labor Relations Board, less their net earnings during said period : Irving C. Neville Ivan Eppler Ralph M. Cox Charles E. Billings Glen Timothy John Berry J. B. Busch Press Arnold Leonard Carlson Robert C. Billings Harold B. Dooling Paul Grossaint Charles F. Ireland Delbert Lester William Bettger Milton B. Rightmire Antone Schaub Martin Reed Gearold Myers (c) Upon requests bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Produce Drivers, Warehousemen and Helpers, Local No. 452, as the representative of the truck drivers, warehouse laborers and checkers employed by the respondent except the warehouse laborers who operate and maintain machinery, supervisors, and bookkeepers; (d) Upon request bargain collectively with International Union of Operating Engineers, Local' No. 1, as the representative of ware- house laborers engaged in maintaining and operating machinery employed by the respondent; (e) Post immediately upon approval by the National Labor Rela- tions Board of the stipulation on which this order is based in con- spicuous places throughout its plant in Greeley, Colorado, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respond- ent will not engage in the conduct from which it is ordered to cease and desist in paragraphs j (a), (b), (c), and (d) of this order; (2) that the respondent will take the affirmative action set forth in para- graphs 2 (a), (b), (c),' and (d) of this order; and (3) that the respondent's employees are free to become or remain members of International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Produce Drivers, Warehousemen and Helpers, Local No. 452, and International Union of Operating Engi- neers, Local No. 1, and that the respondent will not discriminate against any employee because of membership or activity in those organizations ; (f) Notify the Regional Director for the Twenty-second Region in writing within ten (10) days from the date of the approval by the National Labor Relations Board of the stipulation upon which this order is based what steps the respondent has taken to comply therewith.