American Products, Inc.

In the Matter of AMERICAN PRODUCTS, INC. and INTERNATIONAL LONG- SHOREMEN 'S AND WAREHOUSEMEN'S UNION, LOCAL 1-38, C. I. O. Case No. C-1708.-Decided August 19, 1941 Jurisdiction : construction material wholesaling industry. Unfair Labor Practices Interference, Restraint, and Coercion: charges of, dismissed. Discrimination: charges of, dismissed where employer is found not to have dis- charged or refused to reinstate non-unfair labor practice strikers. Collective Bargaining: charges of, dismissed. An employer has not refused to bargain collectively where in good faith when confronted with conflicting claims of rival labor organizations , refused to enter into agreements or negotiate further with either of the organiza- tions until the unions arrived' at an amicable settlement independently of the Board's assistance or until the Board through the pending representa- tion proceedings instituted by the charging union resolved the question concerning representation. Practice and Procedure : complaint dismissed. Mr. William R. Walsh, for the Board. Gray, Cary, Ames & Driscoll, by Mr. J. G. Driscoll, Jr., of San Diego, Calif., for the respondent. Gallagher, Wirin, and Johnson, by Mr. William M. Samuels, of Los Angeles Calif., for the Warehousemen. Mr. John Murray, of San Diego, Calif., and Mr. Arthur Garrett, of Los Angeles, Calif., and Mr. Joseph Padway and Mr. Robert A. Wilson, of Washington, D. C., for the Millmen. Mr. A. H. Peterson and Mr. Arthur Garrett, of Los Angeles, Calif., and Mr. Joseph Padway and Mr. Robert A. Wilson, of Washington, D. C., for the Teamsters. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges filed by International Long- shoremen's and Warehousemen's Union, Local 1-38, herein called the Warehousemen , the National Labor Relations Board, herein called the Board, bythe Regional Director for the Twenty-first Region (Los ,34 N. L. R. B., No. 66. 442 AMER.I'CAN PRODUCTS, INC. 443 Angeles, California), issued its complaint, dated March 1, 1940, against American Products, Inc., San Diego, California, herein called the re- spondent, alleging that the respondent had engaged in and was engag- ing 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. Copies of the ,complaint'and notice of hearing were duly served upon the respondent and the Warehousemen and upon International Brotherhood of Team- sters, Chauffeurs, Stablemen and Helpers, Local 542, herein called the Teamsters, and Millmen's Local No. 2020, United Brotherhood of Carpenters 'and Joiners of America, herein called the Millmen, labor organizations claiming to represent employees directly affected by this proceeding.' The Teamsters and the Millmen are herein collectively called the Intervenors. In respect to the unfair labor practices, the complaint alleged in substance that on or about January 15, 1940, and thereafter a majority of employees' of the respondent in an appropriate bargaining unit 2 had designated the Warehousemen as their representative for the pur- poses of collective bargaining with the respondent and that the Ware- housemen was the exclusive representative of all employees in such unit; that on or about January 15, 1940, and at all times thereafter, the respondent had refused to bargain collectively with the Ware- housemen; that the respondent on or about February 22, 1940, and thereafter, discriminated' in regard to the hire and tenure of employ- ment of Boy Berryman, Rease Berryman, John Dickson, Clarence Fimpel, Joe Keniston, and Roy Keniston, because of their union activi- ties; that on or about February 22,1940, by reason of the respondent's refusal to bargain collectively in good faith and'other unfair labor practices, employees at the respondent's plant went on strike; and that by the above 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. The respondent filed its answer on May 11, 1940, admitting that cer- tain of its employees on and subsequent to February 22, 1940, purported to go on strike, but denying all allegations of unfair labor practices. Pursuant to notice,-a hearing was held at San Diego, California, on May 14, 15, 20, 21, 22, 23, 24, and 27, 1940, before Webster Powell, the Trial Examiner duly designated by the Board. The Trial Examiner granted motions to intervene filed by the Teamsters and the Millmen. ' Copies of the complaint and notice of hearing were also served on Central Labor Coun- cil and Los Angeles Industrial Union Council. - a The complaint alleges that persons engaged in the business of handling and piling of lumber in the respondent's'yard, exclusive of the truckers who transport the lumber from the docks to the yard; constitute an appropriate unit. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board and the respondent were represented by counsel, and the Intervenors by counsel and their union representatives. All partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to' introduce evidence bearing upon the issues was afforded all parties. At the commencement of the hearing and at the conclusion of the Board's case, the respondent and the Inter- venors moved that the complaint be dismissed. The Trial Examiner took the motion under advisement. For reasons which appear below, the motion is hereby granted. During the course of the hearing, the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On October 14, 1940, the Trial Examiner filed his Intermediate Report, copies of which were duly served on all parties, in which he found that the respondent had not engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act and recommended that the com- plaint be dismissed. The Warehousemen thereafter filed exceptions to the Intermediate Report and a brief in support thereof. The respondent and the Inter- venors filed briefs in support of the Intermediate Report. By letter dated June 5, 1941, filed after the close of the hearing, the Warehousemen in substance requested that a decision of the California Employment Commission be incorporated into the record. By letter dated June 7, 1941, the respondent objected to the receipt in evidence of this decision. - We have considered the proffered document and find that it would not affect our determination of the present proceedings. Accordingly, the request is hereby denied. The Board has considered the exceptions and briefs and, save in so far as the exceptions are consistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT ' American Products, Inc., is a corporation existing under the laws of the State of California. Its principal office and place of business is located in San Diego, California. The respondent is engaged in the business of wholesaling lumber and construction material. For the year ending February 1, 1940, the respondent purchased approximately $400,240 worth of lumber and construction material. About 90 per cent of said purchases were made AMEILTOAN PRODUCTS, INC. 445 outside the State of California. For the same period, the sales of the respondent otaled $423,759.80, of which 97.88 per cent were sold to purchasers in i the State of California and 2.12 per cent were sold to purchasers in the State of Arizona. The lumber which is purchased by the respondent is largely shipped in by steamship. The respond- ent is the largest exclusive wholesale lumber and construction material concern in the city of San Diego, and sells to a majority of the 32 retail lumber dealers located in San Diego County. H. THE ORGANIZATIONS INVOLVED International Longshoremen's and Warehousemen's Union, Local 1-38, C. I. 0., is a labor. organization affiliated with the Congress of Industrial Organizations. Local 542, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, is a labor organization affiliated with the American Federation of Labor. Millmen's Local 2020, United'Brotherhood of Carpenters and Join- ers of America, is a labor organization affiliated with the American Federation of Labor. These labor organizations admit to membership employees of the Company. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged refusal to bargain Sometime in the spring or summer of 1937, yard employees 3 of the respondent who at that time belonged to International Longshore- men's Association, affiliated with the American Federation of Labor, transferred their membership to the Warehousemen. During 1937 and 1938 there were conferences between the respond- ent and the Warehousemen, at which contracts for the respondent's yard employees were discussed. No contract was effected. The rec- ord does not disclose the number of the respondent's yard employees nor the extent of the Warehousemen's membership among them dur- ing these years. Relations were friendly between Justin Evenson, president of the respondent, and Thad H. Black, who became business agent of the Warehousemen in August 1939. In the fall of 1939, at the request of the Warehousemen, the respondent reclassified Clarence Fimpel, a yard employee, who, hired as a clean-up man, was there- after required to spend part of his time piling lumber.4 3 The term yard employees includes lumber handlers and pliers , crane operators, clean-up men, hook tenders, and warehousemen and excludes truck and carrier drivers. * Although representatives of the warehousemen testified that the respondent agreed to hire men through its hiring hall, the respondent denies such agreement. We do not find it necessary to resolve this conflict. It does not appear from the record that any yardsman in the respondent's employ was so hired. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the first parx of December 1939, Black and Eldon Coats,5 representatives of the Warehousemen, 'conferred with Justin Evenson, the respondent's president, about its yard employees. Black testified that the discussion was of a general, casual nature, that there was. some talk of an oral contract, but that thel Warehousemen was not then negotiating a contract. Coats, in his testimony, confused the brothers Frank 'and Justin Evenson and was.vague and indefinite in his recol- lections of what was said at this meeting and when and where it was held. Neither Evenson nor Coats remembered clearly who was pres- ent. Evenson testified that the Warehousemen's representatives ad- vised him that they would return later and submit a contract to him. ; On December 12, 1939, pursuant to instructions from ,the Ware- housemen, Black wrote to Justin Evenson, in part, as. follo.w9:. At a meeting of our Local Union, December 11, 1939; members of the Union who were working in your lumber yard, selected-this Local to represent them for collective bargaining. It is our desire to have this meeting with.you to discuss a con- tract between your company and this Local. ' , . On December 21, 1939, the respondent replied that it would be glad to meet with 'the Warehousemen after the holiday rush. Sometime between December 21, 1939, and January 12, 1940, a contract, sug- gested by the Warehousemen as a basis for negotiation, was put in the hands of the respondent. The contract covered lumber pilers. clean-up men, checkers, carloaders, crane swampers, and crane opera- tors., Among other things, the proposed contract provided for the respondent's recognition of the Warehousemen as the sole collective bargaining agency for such employees. ^ , On January 12, 1940, a meeting took place between Evenson and a committee of the Warehousemen, consisting of Black,-D. C. Mays," James Brady,' Joe Ring,8 John Dickson, and Rease Berryman, the last two being employees of the respondent. The meeting lasted only 10 or 15 minutes. Ring, acting as spokesman for the Warehousemen, proposed that the entire contract be discussed and approved section by section. ,Evenson objected to the wage scale set forth in the, con- tract. He also took the position that the contract should be first discussed as a whole and that agreement upon the ,several provisions seriatim without such general preliminary discussion was not the proper way to proceed. During this conference, Evenson also stated that he would not recognize the Warehousemen as bargaining agent. 8 Coats, formerly a representative for the A. F. of L., had conferred with Evenson for the respondent's employees before the split occurred in International Longshoremen 's Associa- tion, noted above . Black was also formerly a representative of the A. F. of L. , O Mays is president of Local 1-20, a longshoremen's local, affiliated ,with the ware- housemen. ' Brady, not an employee of the respondent, is president of the warehousemen. 8 Joe Ring is district organizer for the Congress of Industrial Organizations. AMERICAN PRODUCTS, INC. 447 Ring became angry and abruptly interrupted the discussion, saying that the Warehousemen had better get the yard certified by the Board. The meeting thereupon adjourned.' Following this meeting, on January 18, 1940, the Warehousemen filed with the Regional Director a petition for investigation and certification. In the meantime; during the latter part of December 1939 and the first part of January 1940, Justin Evenson took part in two or three discussions between representatives of the Intervenors and repre- sentatives of Lumbermen's Service Bureau, herein called the Bureau, an association whose membership included all the larger retail lum- ber dealers in the San Diego area.10 Al Frowiss and-Leslie Dayton represented the Teamsters, and George Petry the Millmen at these conferences. These discussions were held in connection with pro- posals for a new contract between the Intervenors and the Bureau. The proposed wage schedule made no change in the basic pay of yard employees. The basic wage of carrier drivers was the subject of controversy between the Teamsters and the Bureau until' February 24, 1940, at which time a compromise was effected.' The respondent raised the wages of its carrier drivers in accordance with the wage standard thus established. , On February 17, 1940, Charles M. Ryan, a Field Examiner from the Board's Los Angeles office, and Evenson conferred. Ryan told Evenson that the yard "was to be certified by the Board" and the two agreed that it would be a good thing if the A. F. of L. and the C. I. O. would get together so that "if one should receive a contract," the other would not boycott and refuse to work. Ryan said, that he would see what he could do about bringing the unions together. On or about February. 17, 1940, after Evenson's conference with Ryan, the Intervenor's representatives, Frowiss, Petry, and Dayton, again called upon Justin Evenson. They inquired of him concerning the petition for -investigation and certification filed by the Ware- housemen and requested that he enter into a written agreement with them. They did not state what categories of employees this pro- posed agreement was to cover. Evenson testified that he presumed O Brady, Berryman , and Dickson, who testified at length concerning other matters, were not questioned concerning this conference. 10 In December 1937 the Bureau effected a contract with the Intervenors . The making of the contract involved a series of conferences , at the conclusion of which the Bureau posted a schedule of hours, wages , and conditions of employment which its members would maintain until December 1, 1938. The Intervenors accepted the schedule on behalf of their members. The provisions of the schedule became the prevailing work and wage standards for lumber employees in the community . The respondent , a wholesale dealer, with some smaller lumber concerns , who like the respondent were not members of the Bureau , shared in son of the conferences which effected this schedule . In December 1937 the respondent adopted the provisions of the schedule as a labor policy and raised the wages of its em- ployees in accordance therewith. In December 1938 the Bureau and the Intervenors agreed to maintain without change the 1937-1938 schedule until December 1939. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it was to cover all employees.- At this conference Evenson refused to sign a contract with the Intervenors. On February 19, 1940, the Warehousemen's representatives, Black, Brady, and Coats, again called upon Justin Evenson and requested him to sign some type of agreement. Black, as spokesman, called specifically to his attention the petition filed by the Warehousemen. Evenson testified that he replied to their request for an agreement as follows : Well, in substance, I mainly told him that we didn't want to have any trouble. If he [we] signed with one union, we didn't want to have the other union picketing us, and that I felt that the two groups must come together and have some uniform method of establishing their differences and getting together so that it would be a peaceful operation. According to Evenson, the representatives of the Warehousemen did not seem to think that this was possible and the meeting closed without further discussion. Coats testified relative to this meeting as follows : At that meeting we again approached Mr. Evenson with the statement that we dick represent the employees and that we wanted an agreement with them, to enter negotiations and con- tract. He refused on the ground that it would be utterly suicide on his part, he figures, to deal with us, being C. I. O. and him being A. F. of L., unless we would be willing to bring into him in writing a written guarantee by the officials of the A. F. of L., both Teamsters and Local 2020 of the Millmen's union, that they would not boycott, strike, picket, or anything else any of his merchandise, .. . We told him that we would have to take whatever action we could to go ahead and overcome such an objection on his part. Brady's version of this meeting is essentially the same as that of Coats : We asked Mr. Evenson if he was ready and willing to nego- tiate with us, and Mr. Evenson said he was willing to negotiate with us if we would give him a written statement from the A. F. of L. officials that they would not bother in any way or cause any break up or anything of his work or goods. We u This presumption was evidently based upon Evenson's knowledge that these repre- sentatives negotiated together with the Bureau for contracts covering all categories of employees in the lumber industry in the -San Diego area In most of the lumber concerns in San Diego , the Intervenors represented both drivers and yardsmen . In this proceeding the Intervenors contend that the yard employees and carrier and truck drivers of the respondent constitute an appropriate bargaining unit for which they would jointly bargain. AMERICAN PRODUCTS, INC. 449 told Mr. Evenson that we had represented the men in that yard and Mr. Evenson offered no argument whatever that it wasn't true . . . Brady further testified that they offered to show Evenson the books in their possession of the men-who were working at the respondent's yard and that Evenson replied in substance that he was satisfied that the Warehousemen had the men involved.12 Evenson testified that he did not remember any offer concerning dues, books 13 and would not know what dues books could prove. He testified that he believed that the membership of the men had shifted, "to what extent, I didn't know. I felt at that time it wasn't my decision to make in the first place, that the certification was up and that was out of my hands." No further negotiations took place between the representatives of the Warehousemen and the respondent until February 22, 1940. On this day, and thereafter, conferences for the settlement of a dispute, set forth more particularly in Section B, below, supplanted negotia- tions in respect to the proposed contract. For over 2 years the respondent cooperated on an informal basis with both union groups. Prior to February 19, 1940, the date nego- tiations broke down, claims involving different bargaining units had been made by the Warehousemen and the Intervenors. In this con- nection, the respondent had been assured by a Board representative that an investigation of the petition filed by the Warehousemen was then being conducted. The Board representative also stated that he would try to bring the representatives of the Warehousemen and the Intervenors together to resolve the conflict. While the record is not entirely clear as to what occurred at the February 19 conference, we believe that Evenson's essential position, taken in good faith, was that he would only get into trouble if, in the face of the contest between them, he made an agreement with either of the demanding unions and that he would take no step which would disturb the status quo until the unions arrived at an amicable settlement independently of the Board's assistance or until the Board through the pending representation proceeding resolved the question concerning represen- tation. In another case involving requests for recognition made upon an employer by two labor organizations, the Board stated in language equally applicable to the instant case : ". . . when con- fronted with conflicting claims of rival labor organizations, in in- sisting upon resolution of the issue of representation by the Board a At the hearing, all 10 yardsmen testified to their membership in the Warehousemen. Is Black testified that he had the books with him at the meeting, but that he did not remember an offer to show the books to Evenson. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or by agreement of all parties, the respondent does not appear to have acted other than in good faith." 14 In view of the foregoing, we find that the respondent, in refusing to negotiate further until the Board resolved the question of representation or until a solution as to the appropriate bargaining agent.was reached by agreement of all parties, has not refused to bargain in violation of Section 8 (5) of the Act. In view of the foregoing, and since we are not here concerned with any representation proceeding, it is unnecessary to make any deter- mination as to the appropriate bargaining unit or as to representation by the Warehousemen of a majority in the appropriate unit. B. Alleged discriminatory discharges The complaint alleges that Boy Berryman, Rease Berryman, John Dickson, Clarence Fimpel, Joe Keniston, and Roy Keniston were discharged on the morning of February 22; 1940, and thereafter were refused reinstatement because of their union activities and that, be- cause of the respondent's refusal to bargain, and other unfair labor practices, the employees of the respondent went on strike. The answer denies that said six employees were discharged and admits that certain of the respondent's employees purported to go on strike on February 22. During the hearing, the respondent con- tended that the above six employees quit work or refused to go to work on the morning of February 22 because the respondent put •a new yard employee, Jack Roberts, to work on that day, who did not belong to the Warehousemen and who was unwilling to join,the Warehousemen. ..On the morning of February 22, Boy Berryman, 'one of the yard employees, reported for work at approximately 7:40, 20 minutes before starting time. He noticed the new man, Roberts, standing in the yard. At 7:47 a. m. he and John Dickson, another yard em- ployee, punched the time clock. About this time Jens Jensen,15 the yard foreman, walked over to him and said, "Boy, you take the new man and work with him today." Berryman walked over to Roberts and asked him whether he was a union man. Roberts replied in the negative., Berryman then asked Roberts, "Well, you will join a union, won't you?" 16 Again Roberts replied in the negative. 'Berry- man then turned to Jensen and said, "John, what about it?" There- u Matter of Brewer-Titchener Corporation and 'International Assn of Machinists and International Brotherhood of Blacksmiths, Drop Forgers and Helpers, A. F. of L., 19 N. L. R. B. 160. ' Called John by the yard employees. ie There is conflict in the testimony respecting the exact words addressed to Roberts by Boy Berryman . In view of the explanation given to Black about an hour later , set forth below, it is clear that the questions which were directed to Roberts were to ascertain his membership in the Warehousemen and his willingness to join the Warehousemen. AMERICAN PRODUCTS, IN'C. 451 upon Jensen, in Berryman's presence questioned Roberts as to his union connection. Roberts again denied that he belonged to any union or that he would join a union. During the course of the conversation, Jensen informed Roberts that all the rest of the men were union men .17 At the end of the colloquy between Jensen and Roberts, Boy Berryman said, "Well, John, I don't want to work with him under those conditions." 18 Jensen testified -that following this incident, at about 10 minutes to 8 o'clock, he went over to the men standing around an oil drum in.the yard in which they had built a fire,'9 and asked them whether they, were going "to go back to work or not," and that they replied in the negative. Jensen immediately reported the incident to Carl E. Cromer, dock foreman, who telephoned Frank Evenson,,vice president of the re- spondent. , In substance, Cromer t9ld Evenson that the men were not going to work that morning. Meanwhile, Dickson and Boy Berryman had left the plant in an effort to locate Black. Dickson denied that he had refused to go to work that morning as testified to by Jensen. Rease Berryman' testified that nothing was said by the foreman about anyone going to work on the morning of February 22, but his credibility is somewhat impugned by his testimony deny- ing his brother's refusal to. work, thereafter admitted by Boy on rebuttal. In this connection it may also be noted that Rease testified that he advised Roberts "to get a union card," adding, "Otherwise you, are subject to be holding up the works." Roy Keniston testified that the rest of the boys would not work that morning and so he would not. At 7: 50 a. in. while the four men were standing around the fire in the yard, Joe Keniston, crane operator, checked in and shortly thereafter went up on the crane and started to grease it. At the same time he turned on,the power. Soon after starting time, he ran out of grease and came down to the garage to get more. ^ There he met Fimpel. Watts arrived at the yard that morning about 7: 30 o'clock and was already at work by 8: 00 o'clock. At 8: 12 or 8: 15 a. m.,on the morning of February 22, Frank Even- son arrived at' .the plant pursuant to Cromer's telephone call. As he, proceeded through the main gate of the plant, he saw Rease Berryman and, Roy. Keniston standing beside the drum in which 17 Dickson testified that at this point he walked up to Jensen and said , "John, what is the idea of cutting wages and putting on more help?" According to him , Jensen replied, "Orders is orders." Jensen denied making any reply to Dickson's remark. We find it unnecessary to resolve the conflict. '8 On direct examination , Berryman denied the last quoted remark. ' Later, after Jensen had testified that Berryman had, in substance made said remark, Berryman on rebuttal testified that he then recollected that be had made the remark quoted. 19 John Dickson , Rease Berryman , Roy Keniston , and a fourth man whose name he could not recall were the individuals standing around the drum, according to Jensen. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fire was burning. Without asking them whether or not they had refused to go to work at 8 o'clock or why they were not working, Evenson said, "All right, you fellows can have your checks by 12 o'clock." 20 He then proceeded into the office and directed Dick Bell, the bookkeeper, to prepare checks for the men who would not go to work. Following Evenson's remark, Rease Berryman informed Fimpel and Joe Keniston, who were still in the garage as hereinabove de- scribed, that they were fired. The four men stood at the gate. At about the same time, Boy Berryman and Dickson returned to the plant after telephoning Black. They were told by Rease Berryman and Roy Keniston that they had been fired. The six men remained at the gate waiting for Black. Sometime before 8: 30 a. in. Frank Evenson talked to Roberts, who inquired of Everson what he wanted him to do. Evenson told Rob- erts in substance that he had hired him and was not going to let him go. During the conversation Roberts told Evenson that he be- longed to the A. F. of L. About 8: 45 a. m. Black arrived at the yard. In response to his questions, the men at the gate told Black that the respondent had hired a new man who was not a member of the Warehousemen. Black then had a talk with Frank Evenson. Both witnesses agreed that in general the conversation pertained to the resumption of work by the yard employees. 'Black asked Evenson to "have the men go back to work and . . . discharge the new man as a condition precedent to their going back to work." Evenson took the position that the menu had quit and testified that in the course of the con- versation Black stated, "They shouldn't have quit. They put me in a bad way." Black denied that the men had quit and also denied the last quoted remarks attributed to him by Evenson. In view of all ' the facts and from his observation of the witnesses, the Trial Examiner credited Evenson's version of the conversation. On the basis of the whole record, we concur with the Trial Examiner in crediting Evenson's testimony. Shortly before 10 o'clock, Justin Evenson and Brady arrived at the plant. These two men and Frank Evenson and Black resumed the conversation begun by Frank Evenson and Black relative to the resumption of work. Frank Evenson informed Black and Brady that the respondent would not fire Roberts since it had never'had any agreement with the Warehousemen to employ its members only.n 20 Besse Berryman testified that Evenson added, "You are all fired." This Evenson denied. The Trial 'Examiner credited Evenson's version of the incident. In view of the Trial Examiner's opportunity to observe the demeanor of the witnesses and upon the whole record, we concur with the Trial Examiner. 21 See footnote 4, above. AMERICAN PRODUCTS, INC. 453 After the above conversations with the Evensons, Black told Watt, who was still working, that they were going to picket the plant and, inasmuch as he was a member of the Warehousemen, he would have to come out with the rest of them. Watt did so. A picket line was formed about 10: 00 a. in. on February 22. Six of the yardsmen who reported for work on the morning of February 22 were offered their checks at noon that day.22 None of the men accepted their checks at this time, and they were subsequently mailed to them. On the morning of February 23, Lidstone, Snover, and King, who had not reported for work on the previous day, came down to the plant to go to work.23 When they saw the picket line, they refused to go through it. On the afternoon of February 27 a meeting was held in the office of the respondent in an effort to settle the dispute. The meeting was attended by Mr: Fitzgerald, Conciliator of the United States Depart- ment of Labor, by Frank and Justin Evenson, representing the re- spondent, and by Brady, Black, Mays, and Boy Berryman, represent- ing the Warehousemen. The representatives of the Warehousemen suggested, in substance, that the respondent take the employees back for a 15-day period, during which the representatives of the respond- ent and the Warehousemen should seek to reach a permanent agree- ment. The Warehousemen through Representative Mays insisted as a condition of the temporary return to work of its members "that Roberts must join either one or at least put in an application with one or the other [A. F. of L. or C. I. O.]." 24 At the end of the con- ference, it was agreed that the respondent would give its answer to the proposal of the , Warehousemen that same afternoon. At 5 o'clock Boy Berryman and Brady again met with Justin Evenson. Evenson informed them that the respondent would not take the men back under the aforesaid conditions. On the morning of February 29, the same representatives who had met on February 27, with the exception of Fitzgerald, again dis- cussed the problem of getting the men back to work. At this meeting I The six men were Boy Berryman , Rease Berryman, Roy Keniston , Joe Keniston , Clar- ence Fimpel, and John Dickson . Ray Watt was first offered his check on the next pay day. Frank Evenson explained this by saying that Watt had been ordered out of the plant by the Warehousemen, whereas the other six men had quit. Likewise, the three men who refused to go through the picket line were not paid until the regular pay day for the work done prior to February 22, except that King was paid a little before pay day on his request. 23 King testified that he did not report for work on February 22 because it was raining and he thought that there would be no work. 24 At this time the union affiliation of Roberts was clearly known to the Warehousemen. On February 24 Boy Berryman learned that Roberts was a member of the Millmen. Mays referred to Roberts' reputed membership therein at the meeting on February 27. Conse- quently, although on February 27 Mays phrased in the alternative the condition of the Warehousemen with respect to Roberts for the resumption of work, it appears that the Warehousemen was really insisting that Roberts join the Warehousemen . It will be re- called that on the morning of February 22, before Roberts' union affiliation was known, the men at the gate attributed the cause of their dispute with the respondent to the fact that the respondent had hired a new man who was not a member of the Warehousemen. 451269-42-vol. 34-30 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Justin Evenson stated that the respondent would put them all back in their former positions provided that they would work alongside Rob- erts. Brady conveyed the respondent's offer to the employees and thereafter informed Justin Evenson that the men felt that the re- spondent should not have hired a new man without consulting the Warehousemen in accordance with their agreement 26 Brady further told Evenson that the men would go back "if Roberts could be proven a union man" 26 or, in the alternative, if the respondent would dis- charge Roberts. Evenson again refused to discharge Roberts on the asserted ground that the latter ,could bring legal action against him if he did so. On the afternoon of the same day, Frank Evenson tele- phoned Ryan at Los Angeles and offered to reinstate the men pro- vided that the Warehousemen would not insist on his discharging Roberts. On March 2 Frank Evenson met with a number of A. F. of L. repre- sentatives, including Petry, Dayton, and Frowiss. Evenson outlined to these men the status that had been reached in the negotiations. . He attempted to secure a guarantee from the Intervenors that they would not picket his plant if he settled the dispute. At this conference one of the A. F. of L. spokesmen stated to Evenson that if the respondent "made friends with the C. I. 0., they would picket . " On or about March 9 Ryan held informal discussions with officials of the Warehousemen and with some of the men involved in the dis- pute. He talked to some of the men just outside the entrance to the respondent's yard. He told them that he was not at all interested in the question of the new man.and discussed with them the proposition of returning to work alongside the new man. Ryan testified that a number of the men during this informal discussion, in substance, ex- pressed their willingness to return to work alongside Roberts, regard- less of whether or not he belonged to the Warehousemen or would make any commitment about joining the Warehousemen.27 Following this interview, Ryan conferred with the two Evensons and J. C. Driscoll, counsel for the respondent. Ryan suggested to these three men that the employees be reinstated and that if the re- spondent had any legitimate reason for, believing that rival labor organizations were contending for the bargaining rights of the re- spondent's employees, the problem should be handled by, the petition for certification which had already been filed by the Warehousemen on January 18 28 Frank Evenson refused Ryan's request, saying in 25 See footnote 4, above. 28 See footnote 24, above. 27 Boy Berryman , Rease Berryman , John Dickson , and two or three others told Ryan that they would follow his advice about returning to work. 28 Ryan further explained that the Board could not proceed on the petition so long as there was a charge pending against the respondent , but that if the men were reinstated, the charges might possibly be withdrawn , in which case the Board could proceed on the petition . The petition was withdrawn on April 30, 1940. AMERMAN PRODUCTS, INC. 455 effect that if he put the men back to work, the A. F. of L. would boy- cott his plant and he was afraid to do it. However, Evenson's refusal to put the men back to work on this occasion was based on a misunder- standing of the Warehousemen's offer, as transmitted to the respond- ent's representatives' by Ryan. Upon the entire record, we believe, and we find, that Ryan did not make it clear that the men involved in the dispute were making an unconditional offer to return to work and were not insisting on the discharge of Roberts. While the above conferences and negotiations were being held, the respondent began to hire new men to replace the 10 employees who were involved in the dispute. By May 14, 1940, the date the hearing began, the respondent had replaced 5 29 out of the 10 men. The new men all belonged to the A. F. of L. and were hired through the A. F. of L. hiring hall. Upon the entire record, we find, as did the Trial Examiner, that the respondent did Snot on or about February 22, 1940, or thereafter, discharge or refuse to reinstate Boy Berryman, Rease Berryman, John Dickson, Clarence Fimpel, Joe Keniston, and Roy Keniston because they belonged to the Warehousemen or because they engaged in union or concerted activity. On the contrary, the respondent was willing and offered to employ any and all of its employees involved in the dispute over the hiring of Roberts. The respondent's employ- ment of A. F. of L. members through the A. 'F. of L. hiring hall, during the, dispute, does not impair our conclusion that the respond-_ ent did not discriminate against the members of the Warehousemen, since the respondent was entitled to conduct its business, and Ware- housemen members were refusing to pass through the picket line maintained by the Warehousemen, during the dispute which was not caused by unfair labor practices. At no time have the men involved in the dispute made clearly known to the respondent their willingness to work alongside Roberts whether or not he was or became a "union man." We find that the respondent has not discriminated against the named employees in respect to hire or tenure of employment. On the basis of the foregoing findings of fact, the Board makes the following : CONCLUSIONS OF LAW 1. The operations of the respondent,, American Products, Inc., San Diego California, occur in commerce, within the meaning of Section 2 (6) of the Act. as In addition to Roberts who was actually accepted for temporary employment on Febru- ary 21, Peter Reinke and William Wetherbee were hired on February 27 and 28, respec- tively, and Millard Harbison , Lawrence La Mora, and Eugene Brooks were hired on March 25: 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. International Longshoremen's and Warehousemen's Union, Local 1-38, C. I. 0., Local 642, International Brotherhood of Team- sters, Chauffeurs, Stablemen and Helpers of America, and Millmen's Local 2020, United Brotherhood of Carpenters and Joiners of Amer- ica, are labor organizations within the meaning of Section 2 (5) of the Act. 3. The respondent has not refused to bargain collectively within the meaning of Section 8 (5) of the Act. 4. The respondent has not, in respect to Boy Berryman, Rease Berryman, John Dickson, Clarence Fimpel, Joe Keniston, and Roy Keniston, engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. 5. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint against American Products, Inc., San Diego, California, be, and it hereby is, dismissed. MR. EDWIN S. SMITH took no part in the consideration of the above Decision and Order.