Brown Food Store

National Labor Relations Board - Board Decisions

May 4, 1962

137 N.L.R.B. 73 (N.L.R.B. 1962)

BROWN FOOD STORE, CASHWAY FOOD STORE, ETC. 73
of America, AFL-CIO, shall notify the Regional Director for the
Twenty-third Region, in writing, whether or not it will refrain from
forcing or requiring Abbott Contractors, Inc., by means proscribed by
Section 8(b) (4) (D), to assign the work in dispute to its members
rather than to employees of Abbott represented by Local Union 14,
United Brotherhood of Carpenters and Joiners of America, AFL-CIO.
MEMBER FANNING took no part in the consideration of the above
Decision and Determination of Dispute.
John Brown , Irvin L. Gossett and J . C. West, Jr., d/b/a Brown
Food Store; Tootie Schnaubert d/b/a Cashway Food Store;
Safeway Food Store, Inc.; Arnold Crabb d/b/a Thrifty Way
Food Store; Food Jet, Inc.; and Lenn Jones , Agent of Multi-
Employer Bargaining Association and Retail Clerks Inter-
national Association , Local 462. Cases Nos. 28-CA-626, 28-CA-
697, 928-CA-6929-1, 28-CA-6929-92, 28-CA-630, and 28-CA-640.
May 4, 1962
DECISION AND ORDER
On August 23, 1960, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondents, with the exception of Food Jet, Inc., and
the individual Respondent, Lenn Jones, had engaged in and were en-
gaging in certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the Intermediate Report attached hereto. Thereafter, the
Respondents, except for the two mentioned above, filed exceptions to
the Intermediate Report together with a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner for the reasons stated below.
Each of the Respondents operates one or more retail food stores in
Carlsbad, New Mexico. They have been bargaining on a multiem-
ployer association basis with the Union since 1957 and have had a
series of collective-bargaining contracts since that time.' In January
1960, the Employer Association and the Union opened negotiations
for a new contract, and by March 2 they had agreed on all terms except
the Union's proposal for retroactive wage increases and the effective
1 The relationship between the contracting parties has always been an amicable one, and
their contracts have contained union -shop provisions.
137 NLRB No. 6.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date for such increases. On March 2, the Union authorized a strike to
implement these demands and notified the Association of this decision.
The Association thereupon advised the Union that the employers
would consider a strike against any member of the group to be a
strike against all.
On March 16, the Union struck and picketed Food Jet, one of the
five Association members involved here. The other four employers,
operating six stores , immediately locked out all of their employees,
telling them that they would be returned to work at the conclusion
of the strike . Each Respondent thereafter individually attempted
to continue operating . Food Jet obtained replacements for its strik-
ing employees . The other four employers functioned with the as-
sistance of supervisory personnel , relatives of management , and new
employees hired on a temporary basis.2 Thus, none of the Respondents
who locked out its employees in fact closed down during the period
of the lockout.
During this period the parties continued their negotiations, and on
April 22 they reached a final agreement . Accordingly, the strike and
lockouts were terminated and the employers immediately recalled all
their employees . Throughout the strike and lockout the Respondents
continued in effect all employee benefits in behalf of their regular
employees.
The Trial Examiner found that the initial lockout by the nonstruck
employers was a permissible defensive measure to protect the solidarity
of the multiemployer unit under the rule of Buffalo Linen Supply
Company.' However, he reasoned that the additional action of those
employers in continuing to operate their businesses during the lockout
had upset the delicate balancing of interests struck in the Buffalo Linen
case and hence was not privileged under that decision . He therefore
concluded that by continuing to operate during the period of the lock-
out, the nonstruck employers discriminated in regard to the hire and
tenure of employment of their locked -out employees to discourage
membership in the Union in violation of Section 8 (a) (3) and (1) of
the Act and that the lockout was thereby rendered unlawful. We
agree with the Trial Examiner 's conclusion that the nonstruck em-
ployers violated the Act by locking out their employees in the circum-
stances involved here.
The Buffalo Linen case involved a whipsaw situation where non-
struck members of a multiemployer association unit temporarily shut
down operations when a union struck an employer member of the
association to implement bargaining demands in the multiemployer
2 Each of these employers hired temporary replacements who were told at the time of
hiring that their employment was only for the duration of the strike Several of the
chain stores also brought in supervisors and clerks from other stores in outlying areas
3 D'.L R B v. Truckdrivers Local 449, International Brotherhood of Teamsters, etc
(Buffalo Linen Supply Company), 353 U S. 87, affg. 109 NLRB 447.
BROWN FOOD STORE, CASHWAY FOOD STORE, ETC. 75
unit. Departing from a long line of its own precedents, the Board
there held in effect that the resulting lockout was a legitimate defensive
means of protecting the integrity of the multiemployer bargaining
unit against the disintegration threatened by the whipsaw strike. The
Supreme Court, in affirming the Board's decision, observed that the
"ultimate problem is the balancing of the conflicting legitimate inter-
ests [of employees and employers]" and that the "difficult and delicate
responsibility" for striking that balance was committed primarily to
the Board.
While the present case has its similarity to the Buffalo Linen situa-
tion, there is a critical difference between the two cases. The under-
lying rationale of Buffalo Linen was that a shutdown was deemed
appropriate to preserve the established unit, and that the lockout
incidental to such shutdown was not unlawful. In the instant case,
however, there was no shutdown to protect a bargaining unit, for
Respondents continued to operate by hiring replacements after lock-
ing out their employees. Therefore, whatever defensive validity there
may be for shutting down in the whipsaw context, such consideration
is inapposite where, as here, the employers do not shut down. A
lockout, needless to say, is a drastic form of discrimination and its
use in the present case far exceeds the justification for the otherwise
discriminatory measure endorsed in Buffalo Linen. That the non-
struck Respondents, in replacing their employees, may have acted in
self-interest rather than specifically to discourage union membership,
or the Union's strike at Food Jet, does not negate their unlawful in-
tent. The Supreme Court in its recent Local 357' opinion thus took
the occasion to reiterate its holding in Radio Officers 5 that "[s]ome
conduct may by its very nature contain the implications of the required
intent [where] the natural forseeable consequences of [the] ac-
tions . . . warrant the inference." Cf. Gaynor News Company, Inc.
v. N.L.R.B., 347 U.S. 17, 37; Republic Aviation Corporation v.
N.L.R.B., 324 U.S. 793, 795.
We conclude, in balancing the conflicting interests of the employees
and the Respondents under the particular circumstances of this case,
that the nonstruck Respondents were not justified in replacing their
employees because of a strike called by the Union against Respondent
Food Jet. Locking out employees in order to replace them with other
workers may hardly be viewed as equivalent to the defensive action
of a shutdown to preserve the solidarity of the Association unit. On
the contrary, since the Respondents were continuing to operate and
since no reason appears why they could not have continued to operate
with their own employees during the strike, this constitutes a tem-
It Local 357, International Brotherhood of Teamsters , etc v N L R B , 365 U.S 667,
675-676.
6 Radio Officers' Union of the Commercial Telegraphers Union, AFL ( A H. Bull Steam-
ship Company ) v. N.LR.B., 347 U.S. 17, 45.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porary replacement of employees solely because they were engaging
in protected concerted activity, i.e., striking against Food Jet.
With all respect, we think our dissenting brethren, in equating Food
Jet's right to replace strikers with the asserted right of Respondents
to operate with replacements during the lockout, are overlooking a
significant difference in the respective positions of Food Jet and
Respondents, and are also overlooking the basic considerations which
give rise to the right to lockout. It must be remembered that the
statutory protection accorded to strikers is diminished under the
Mackay case,' to the extent that an employer is free to replace eco-
nomic strikers, and that the reason for this impairment or diminution
of the protection is the need to accommodate the employer's legiti-
mate conflicting interest in maintaining production. As applied to
this case, Food Jet is free to operate with replacements, because only
by hiring such replacements can it operate at all; its regular employees
are unwilling to work at its terms. But the other members of the
employer unit are not required to resort to replacements; their regular
employees are willing to work at the employers' terms.
It is, of course, true that under Buffalo Linen, Respondents are not
required to operate and await a whipsawing strike. That case, like
Mackay, permits an abridgement or diminution of the statutory pro-
tection, and holds that where a union strikes one member of a bar-
gaining unit as part of a whipsawing operation, the other members for
the purpose of protecting the bargaining unit may lawfully shut down
and lock out the employees. The purpose of this exception to the rule
against lockouts for union activity is to prevent unfair advantage
being taken of the members of an employer unit. If the union could
successfully strike one at a time, the other members of the employer
unit would in ordinary circumstances continue operating to the severe
economic damage of the struck member, and each in turn could be
driven to the wall in the "whipsaw." For this reason, if one member
is shut down by a strike, the others may also shut down, but they are
not required to do so. If the struck member operates through replace-
ments, no economic necessity exists for the other members shutting
down. If in those circumstances they resort to a lockout and hire
replacements, it may be reasonably inferred that they do so not to
protect the integrity of the employer unit, but for the purpose of in-
hibiting a lawful strike. In short, the lockout in these circumstances
ceases to be "defensive" and becomes "retaliatory." Buffalo Linen
Supply Company; et al., 109 NLRB 447, 448, quoted at 353 U.S. 87, 91.
We find, therefore, that the Respondents, other than Food Jet, in-
terfered with, restrained, and coerced employees in the exercise of
their right to bargain collectively and to strike in furtherance of
economic demands, and violated Section 8(a) (1) of the Act by re-
6 N.L R B v. Mackay Radio & Telegraph Co, 304 U.S. 333.
BROWN FOOD STORE, CASHWAY FOOD STORE, ETC. 77
placing them while they were still willing to work and were not on
strike. We also find that such conduct constituted unlawful discrim-
ination within the meaning of Section 8(a) (3) of the Act, in dis-
couraging employees from supporting the Union and from engaging
in concerted activities for mutual aid and protection 7
ORDER
The Board adopts the Recommendations of the Trial Examiner
with the modification that provision 2(d) read : "Notify Regional
Director for the Twenty-eighth Region, in writing, within 10 days
from the date of this Order, what steps the Respondents have taken
to comply herewith." 8
MEMBERS RODGERS and FANNING, dissenting :
The majority acknowledges that members of an employer associa-
tion, faced with the threat of successive whipsaw strikes, may lock
out their employees in accordance with the Supreme Court's explicit
holding in Buffalo Linen, supra, but finds they may not thereafter
attempt to operate with temporary replacements, even though no
unlawful motivation is alleged or shown. We believe this decision is
illogical and not warranted by either the statute or the realities of
multiemployer bargaining.
As a matter of statutory interpretation, we do not believe the secur-
ing of temporary replacements in this situation can be held to have
unlawfully discouraged union membership. Granting that the em-
ployers' initial lockout was permissible, as the Supreme Court has
held, it seems clear that temporarily replacing the employees for the
duration of the strike did not further affect their employment status
or union adherence, particularly since the employees in this case were
expressly told by Respondents they would have their jobs at the end
of the strike.' The discrimination, if any, took place at the point of
the initial lockout, and the Supreme Court has held this to be priv-
ileged in the "whipsaw" situation. How can the performance of a
nondiscriminatory act make unlawful something which was thereto-
fore privileged? 10
7 See Utah Plumbing Contractors Association v. NLRB., 294 F. 2d 165 (CA. 10) ,
Quaker State Oil Refining Corporation v. NL.R .B, 270 F 2d 40 ( C.A. 3), cert denied
361 U S. 917 . Compare. Betts Cadillac, Olds, Inc, 96 NLRB 268 ; International Shoe
Company, 93 NLRB 907; Duluth Bottling Association , et al , 48 NLRB 1335.
"In the notices attached to the Inteimediate Report as Appendixes, the words "A Deci-
sion and Order" are hereby substituted for the words "The Recommendations of a Trial
Examiner " In the event that this Order is enforced by a decree of a United States Court
of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order " shall be substituted for the words "Pursuant to a Decision and
Order."
9 All employees were retained during the lockout on company records as employees, and
continued to receive vacation, insurance , and other company benefits All were returned
to their jobs , and the replacements discharged , at the end of the strike and lockout
10 Our colleagues in the majority imply that we have viewed the lockout here, accom-
panied by temporary replacement of the locked-out employees, as "equivalent" to the
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, the majority appears to overlook the rationale behind
the Supreme Court's Buffalo Linen decision. It was therein stated
that "the preservation of the integrity of the multiemployer bargain-
ing unit" was sufficient justification for a lockout in the "whipsaw"
situation. Thus, members of an association could require that all em-
ployers be struck, if any; partial-unit strikes were subject to being
made full-unit strikes by the employer's lockout action. Granting this,
it would seem to follow that temporary replacement of the employees
in strike status was well within the employers' rights under Mackay."
Unlike other possible forms of employer action,12 temporary replace-
ment is less, not more, than the right of permanent replacement
granted in Mackay.
The inequity of the majority's holding becomes evident when con-
trasted with its holding as to Food Jet, the first employer struck.
Food Jet attempted to obtain replacements and is found not to have
violated the Act; the other four employers did the same thing, but are
found to have acted unlawfully. We can see no justification for thus
treating the members of the Association differently; in our view, it
is not consistent with the Supreme Court's concept of preserving the
integrity of the associationwide unit, and unfairly handicaps those
employers subject to the threatened whipsaw tactics. They must
either wait to be picked off one at a time by the "whipsawing" union,
or close down completely and cease operating, contrary to their rights
under Mackay.
It is misleading to say, as the majority does, that regular employees
of the nonstruck members are "willing to work at the employers'
terms." These employees are willing only to receive wages while
their brethren in the rest of the associationwide unit are exerting
whipsaw pressure on one employer to gain benefits that will ultimately
accrue to all employees in the associationwide unit, including those
here locked out. The choice the majority is giving the nonstruck em-
ployers-to ignore the "whipsaw" or close down completely-renders
"defensive" action of a complete shutdown On the contrary , we have not made such a
characterization one way or the other , because we do not think the question of "equiva-
lence" is relevant The portion of the statute here involved speaks of discrimination'
to find a violation of Section S(a) (3), some form of discrimination must be found The
only conceivable discriminatory action in the present case , the associationwide lockout,
has been found privileged by the Supreme Court To "infer" unlawful discrimination,
as does the majority , from the performance of the further act of temporary replacement,
which does not in itself discriminate against employees , causes us to suspect that the
majority's real quarrel is with the Supreme Court's holding in Buffalo Linen that the
discrimination inherent in the original lockout was privileged
In our view , the Supreme Court's decision in Radio Officers', supra, is not applicable
where there is discrimination , intent may be inferred , as in Radio Officers', but here there
is no discrimination , other than that found privileged by the Supreme Court
11 N L R B. v Mackay Radio d Telegraph Co, 304 U S. 333, where it was held that any
employer could lawfully hire permanent replacements during an economic strike in order
to continue his business
12 See, e .g, Erie Resistor Corporation , 132 NLRB 621 , where the employer unlawfully
granted superseniority to returning strikers and strike replacements.
BROWN FOOD STORE, CASHWAY FOOD STORE, ETC. 79
largely illusory the right of lockout given them by the Supreme Court
in Buffalo Linen.
We would reverse the Trial Examiner and dismiss the complaint.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was tried before Wallace E. Royster, the duly designated Trial Exam-
iner, in Carlsbad, New Mexico, on June 21 and 22, 1960, upon the complaint of the
General Counsel, based upon charges duly filed by Retail Clerks International Asso-
ciation, Local 462, herein called the Union, alleging that John Brown, Irvin L. Gos-
sett and J. C. West, Jr., d/b/a Brown Food Store, herein called Respondent Brown;
Tootie Schnaubert d/b/a Cashway Food Store, herein called Respondent Cash-
way; Safeway Food Store, Inc., herein called Respondent Safeway, Arnold Crabb
d/b/a Thrifty Way Food Store, herein called Respondent Thrifty; Food Jet,
Inc., herein called Respondent Food Jet; and Lenn Jones, agent of Multi-Employer
Bargaining Association, herein called Respondent Jones, jointly and severally had
engaged in and are engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act.
In essence, complaint is made that the Respondents locked out the employees listed
in Appendix A attached hereto on March 16, 1960, and thereafter failed promptly to
reinstate certain of them. It is further alleged as explicated at the hearing that Re-
spondent Cashway by granting merit increases to employees failed in its obligation
to bargain with the Union.
Briefs have been received from counsel. Upon the entire record in the case, and
from my observations of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Each of the Respondents operates a retail food market or markets in Carlsbad,
New Mexico, and each, during the 12-month period preceding the issuance of the
complaint, did a gross business in excess of $500,000. Each, during the period men-
tioned, received shipments from points outside the State of New Mexico in amounts
exceeding $50,000. I find that the business of each Respondent is in and affects
commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of each
Respondent and for a substantial period of time prior to the events about to be
related was and now is the exclusive bargaining representative of all employees other
than meat department employees of the Respondents in a single unit encompassing all
such employees.
III. THE UNFAIR LABOR PRACTICES
After the expiration of a bargaining agreement running between the Union and
the Respondents, negotiations looking toward a new contract began in January 1960.
Respondent Jones was the authorized spokesman for all Respondents. On March 2
the Union advised the Respondents that a strike vote had been taken and a strike
authorized. The Respondents told the Union on this occasion that they would con-
sider a strike against any of them to be a strike against all.' On the morning of
March 16 the Union established pickets at the entrances to Respondent Food Jet
carrying signs reading, "On Strike, Local 462 Retail Clerks." None of the employ-
ees of Food Jet in the bargaining unit reported for work. In consequence the em-
ployees in the bargaining unit represented by the Union at all of the Respond-
ents were locked out and remained so until the strike was settled on April 22.
Assertedly, because of a belief that three assistant managers, Walter Titus, Tony
Lawson, and Milton Moore were supervisory employees without the coverage of the
bargaining unit, Respondent Thrifty Way permitted them to work through March 17.
i Upon agreement of counsel, page 107 of the transcript is corrected by inserting follow-
ing the word "that" on line 17 the following, "they would consider a strike against any
of them to be a strike against all of them."
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon advice that these three were considered to be in the unit they were then locked
out and not again permitted to work until the end of the strike.
The evidence is convincing and not seriously controverted that the Respondents
were determined to combat the attempt of the Union "to pick them off one at a
time" by regarding the strike against Food Jet as a strike against all. It is asserted
that the Respondents were thus taking defensive action to preserve their bargaining
position and that their conduct under the holding in Buffalo Linen 2 is not unlawful.
In the cited case, the Board held that a strike against one of the employers in a
multiemployer unit was an exertion of economic pressure "to atomize the employer
solidarity which is the fundamental aim of the multi-employer bargaining relation-
ship." Thus, the Board reasoned, the action of the nonstruck employers in shutting
their plants was "defensive and privileged in nature rather than retaliatory and un-
lawful." Approving the Board's holding, the Supreme Court said, "in the circum-
stances of this case the Board correctly balanced the conflicting interests in deciding
that a temporary lockout to preserve the multi-employer bargaining basis from the
disintegration threatened by the Union's strike action was lawful."
Explication of the status of the locked-out employees is to be found neither in the
decision of the Board nor in the opinion of the Supreme Court. They appear to have
remained employees for emphasis is placed upon the fact that the shutdowns occa-
sioning the lockouts were temporary. All employees were returned to their jobs.
Although no such finding is made by the Board or the court the rationale of the
decision seems to rest in part upon the assumption that when the employees of one
employer struck, the employees of the other employers in the unit also become strikers
and that the lockout did no more than recognize this to be a fact.
Coming back to the case at hand, each of the Respondents attempted to lessen the
economic effect of the lockout by operating its market.3 Respondent Food Jet, being
faced with an economic strike, was wholly free to hire replacements on any basis it
found expedient. The other Respondents hired employees on a temporary basis,
transferred personnel from other operations, and used kin of managers or supervisors
in order to keep their businesses open. The General Counsel contends that Buffalo
Linen permits nothing beyond a shutdown following a lockout; that an attempt by
an employer to operate in such circumstances is unlawful. An obvious, but not
necessarily dispositive, answer to this contention is that if the employers have a right
to lock out they should not be forced to accept a penalty of lost custom for exercising
it. But the law is settled that a struck employer (and here I am treating the locked-
out employees as strikers) may not replace a striker, even temporarily, if the striker
is offering unconditionally to return to work. Here the locked-out employees had
presented themselves to their employers ready to work and had been turned away
Having refused the offer of these employees to work, may the employers give the
work, even temporarily, to others?
In Buffalo Linen the Supreme Court saw the problem of the defensive lockout as
one involving "the balancing of the conflicting legitimate interests" of the employers
in preserving their bargaining association and of the employees in exercising their
right to strike. The Court thus has equated a "legitimate" interest with a protected
one. That the Court intended this holding as a generalization is to be doubted. It
seems unlikely that an employer in preservation of his "legitimate" interest in main-
taining a wage scale could lawfully lock out his employees even upon a well-founded
belief that they would strike at a time unpropitious to the employer to obtain more.
It is clear that a lockout to counteract the exertion of economic pressure by a
union designed to "atomize" employer solidarity is lawful if it serves to bring about
a balance of "conflicting interests." The lockout here, I am convinced and find,
satisfies that criterion. But a lockout is still a discrimination affecting tenure of em-
ployment and necessarily discourages membership in a labor organization. The
purpose of a labor organization, in part at least, is to strengthen the bargaining posi-
tion of employees by presenting a united front to an employer backed by the right
to strike. If strike action cannot be taken within an area and at a time considered
most favorable to the interest of the employees the value of the labor organization
is diminished and the attraction of membership lessened. But such discrimination
is not unlawful, Buffalo Linen holds, if it does no more than bring about a balance
of "conflicting interests."
Applying the rationale of Buffalo Linen to the facts of this case, the lockout by
the Respondents other than Food Jet brought about such a balance and was not un-
lawful. But the Respondents continued their operations as the employers com-
2 Buffalo Linen Supply Company, et al, 109 NLRB 447, enfd 353 US 87
3 Safeway closed one of its Carlsbad markets and operated the other dining the lock-
out period
BROWN FOOD STORE , CASHWAY FOOD STORE , ETC. 81
plained of in Buffalo Linen did not. The strike against Food Jet was designed to
deprive Food Jet of ,trade and to force Food Jet and the other Respondents to accept
the bargaining demands of the Union. The countering lockout deprived the locked-
out employees of earnings and lessened their ability to hold out for the terms desired
by the Union. Thus the "balance" envisioned by the Supreme Court in the cited
case was struck. Was it disturbed by the action of the Respondents in continuing
to operate? I think clearly that it was. By keeping their business establishments
open, the Respondents were enabled to make earnings or at least to minimize losses
and thus were better positioned to withstand the strike that the Union had begun
and more firmly to adhere to the bargaining position that they had taken. As the
balance spoken of in Buffalo Linen was lost by the added weight thrown into the
pan by the Respondents, thus was lost, I find, their immunity from the Act's prohibi-
tions against discrimination. Because the Respondents, other than Food Jet, con-
tinued to operate during the period of the lockout, I find that they discriminated in
regard to the hire and tenure of employment of their locked-out employees to dis-
courage membership in the Union and that the Respondent Employers, other than
Food Jet, thus violated Section 8 (a) (1) and (3) of the Act.
In accordance with past practice, Respondent Cashway, in February 1960, gave
two of its employees merit increases. Cashway had routinely taken such action in
respect to its employees on a number of occasions over the years and had never been
requested to bargain with the Union about it. The complaint alleges that the
Respondents thus refused to bargain with the Union. Merit increases are a subject
for mandatory bargaining and the cases so holding are numerous. All that have
come to my attention, however, involve a request for bargaining on the part of a
union and a denial that such matters are within the scope of bargaining on the part of
the employer. Here, Cashway was following a practice of years' standing without
notice that objection on the part of the Union existed. I do not understand that
Cashway has ever refused to bargain about merit increases. I find that no violation
of the Act is presented in the circumstances.
Because of my disposition of the central question raised by the complaint there is
no need to consider whether any Respondent was remiss in returning the locked-out
employees to work after the strike settlement. All Respondents 4 other than Food
Jet will be required to make the locked-out employees whole for loss of earnings
for the period each employee was thus prevented from working.
I find that Food Jet has not violated the Act in any particular. As a struck
employer it was of course free to continue operations as best it could. I do not find
evidence to establish that Food Jet combined with the other Respondents to continue
operations after locking out employees and thus perhaps to have participated in the
commission of the unfair labor practice found above. It seems probable that in the
nature of things the agreement among the Respondents did not go beyond an under-
taking to lock out in the event one of them was struck. There is no evidence of
cooperation among them in manning the stores where the lockouts took place.
I will recommend the dismissal of the complaint as to Food Jet.
The only unfair labor practice found is that connected with continued operations
while employees were locked out. Respondent Jones participated in this, I find, only
as an employee of Respondent Safeway. I find no unfair labor practice to have been
committed by Respondent Jones as an individual and will recommend the dismissal
of the complaint as to him.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with their operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondents other than Food Jet and Jones have engaged
in unfair labor practices , it will be recommended that they cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the
Act.
Having found that certain Respondents have discriminatorily locked out em-
ployees, it will be recommended that each such Respondent make its employees
4This includes Respondent Safeway only in respect to its store i#62 I find no viola-
tion in connection with its other Carlsbad market, #43, which did not operate during
the lockout period.
649856-63-vol 13 7-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who were the subject of this discrimination whole for any loss of earnings suffered
during the period of the lockout by a payment to each of a sum of money equal to that
which each would have earned for the period that the market, in which he was
prevented from working, operated on and after March 16, 1960, to the date when he
was brought back to work . Loss of pay shall be computed on a quarterly basis in
the manner set forth in F. W . Woolworth Conipany ,5 with a deduction for net
earnings during that period . As all of the locked-out employees have been rein-
stated to their jobs and as there is no allegation that any employee was discriminatorily
given a different job upon his return , no requirement of reinstatement will be
made.6
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By locking out employees the Respondents other than Food Jet and Jones have
discouraged membership in the Union and have engaged in and are engaging in
unfair labor practices within the meaning of Section 8(a) (3) of the Act.
3. By the lockout the Respondents other than Food Jet and Jones have interfered
with, restrained , and coerced employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act and have thereby engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The evidence does not establish any violation of the Act in respect to Food Jet
or Jones.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case , I recommend that John Brown , Irvin L. Gossett and J.
C. West, Jr., d/b/a Brown Food Store; Tootie Schnaubert d/b/a Cashway Food Store;
Safeway Food Store, Inc.; and Arnold Crabb d/b/a Thrifty Way Food Store, all of
Carlsbad , New Mexico, the officers , agents, successors , and assigns of each , shall:
1. Cease and desist from:
(a) Discouraging membership in the Union by locking out their employees to
improve their bargaining position while continuing to operate their establishments.
(b) In any like or similar manner interfering with , restraining , or coercing their
employees in the exercise of the right to self-organization , to form , join, or assist
Retail Clerks International Association , Local 462, or any other labor organization,
to bargain collectively through representatives of their own choosing , and to engage
in other concerted activity for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities , except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section 8(a)(3) of the
Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Each Respondent shall make whole its employees who were prevented from
working for it for the period of operations during the lockout in the manner set
forth in the section of the report entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other such data convenient for a
calculation of the amount of backpay due under the terms of this recommendation.
(c) Each said Respondent shall post at its establishment in Carlsbad , New Mexico,
copies of the appropriate notice attached hereto marked "Appendix ." Copies of said
notice , to be furnished by the Regional Director for the Sixteenth Region , shall,
after being duly signed by authorized representatives , be posted immediately upon
receipt thereof , and be maintained for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not altered, defaced,
or covered by any other materials.
6 90 NLRB 289
O Evidence was taken showing that two employees were returned to jobs somewhat dif-
ferent from those held before the lockout but this was in support of the General Counsel's
theory of a discriminatory lockout only
BROWN FOOD STORE, CASHWAY FOOD STORE, ETC. 83
(d) Each shall notify the Regional Director for the Sixteenth Region, in writing,
within 20 days from the date of this Intermediate Report and Recommended Order,
what steps it has taken in compliance.
It is further recommended that unless on or before 20 days from the date of re-
ceipt of this Intermediate Report and Recommended Order each of the Respondents
notifies the said Regional Director in writing that it will comply with the foregoing
recommendations , the National Labor Relations Board issue an order requiring
such Respondent to take that action.
APPENDIX A
Brown Food Store:
Juanita Blanchard Jerry Brooks
Lupe Biscaine Bernice Turnbow
Food Jet:
Manuel Biscaino N. G. Deanda
Margerite Bridges Marjorie Hoyt
Joe Briones Ray Starment
Larry Brodie
Cashway Food Store:
Bobby Barrs Beverly Fletcher Janie Miller
Charles Blackburn Julian Fletcher Wayne Madrall
J. H. Carbell Charles Healer O . J. Smith
Dwayne Compton Bobby Johnson Weldon Stafford
Jo Nell Cox Alfredo Lira Dorothy Titus
Charles Davis Jesus Lira Gary Watkins
Thrifty Way Food Store:
Addie Black Terrell McBee Eddie Razo
Belle Coalson Militon Moore Herschel] Skaggs
Robert Cummings Vonda Narramore Walter Titus
Wayne Davis Roy Navarrette Joe Vasquez
Allene Eggleston John Pirtle Mike Wiley
Thomas Lawson Doug Pryor
Safeway Food Store, Inc.:
Store #62: Store #43:
Ronald Bartholomew Leo Blackburn
Ray Bradshaw Reuben Carrasco
Harold G . Cannon Virgie Hartley
Kenneth Chapman Tom Hernandez
Juanita Durham John Julianna
Grady Enger Tony Matta
Vance Garner Wanda McClary
Robert Hamblin Timo Navarrette
Johnny Kimberling Carl Smith
Raymond Methola Jim Wilson
Mary Payte
Dale Peden
Glen Pike
Lorene Sanders
Allan Shahan
David Tuttle
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL make whole the employees locked out during the period on and
after March 16, 1960, and until they were reinstated for any loss of pay suf-
fered at a time when this market was open for business . The employees to
be made whole are : Juanita Blanchard, Lupe Biscaine , Jerry Brooks, and
Bernice Turnbow.
WE WILL NOT by means of unlawful lockout or in any like or similar manner
interfere with, restrain , or coerce our employees in the exercise of their right
to self-organization , to form labor organizations , to join or assist Retail Clerks
International Association , Local 462 , or any other labor organization , to bargain
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in Section
8(a)(3) of the Act.
JOHN BROWN, IRVIN L. GossETT AND J. C.
WEST, JR., D/B/A BROWN FOOD STORE,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that:
I WILL make whole the employees locked out during the period on and
after March 16, 1960, and until they were reinstated for any loss of pay suffered
at a time when this market was open for business. The employees to be
made whole are: Bobby Barrs, Charles Blackburn, J. H. Carbell, Dwayne
Compton, Jo Nell Cox, Charles Davis, Beverly Fletcher, Julian Fletcher,
Charles Healer, Bobby Johnson, Alfredo Lira, Jesus Lira, Janie Miller, Wayne
Madrall, 0. J. Smith, Weldon Stafford, Dorothy Titus, and Gary Watkins.
I WILL NOT by means of unlawful lockout or in any like or similar manner
interfere with, restrain, or coerce my employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist Retail Clerks
International Association, Local 462, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a)(3) of the Act.
TOOTIE SCHNAUBERT D/B/A CASHWAY FOOD STORES,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced, or covered by any other material.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL make whole the employees locked out during the period on and
after March 16, 1960, and until they were reinstated for any loss of pay suffered
at a time when this market was open for business. The employees to be made
whole are: Ronald Bartholomew, Ray Bradshaw, Harold G. Cannon, Kenneth
Chapman, Juanita Durham, Grady Enger, Vance Garner, Robert Hamblin,
Johnny Kimberling, Raymond Methola, Mary Payte, Dale Peden, Glen Pike,
Lorene Sanders, Allan Shahan, and David Tuttle.
WE WILL NOT by means of unlawful lockout or in any like or similar manner
interfere with, restrain, or coerce our employees in the exercise of their right
to self-organization, to form labor organizations, to join or assist Retail Clerks
International Association, Local 462, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to the
AERONAUTICAL AND INSTRUMENT DIVISION, ETC. 85
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a)(3) of the Act.
SAFEWAY FOOD STORE, INC., STORE #62,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, I hereby notify my employees that:
I WILL make whole the employees locked out during the period on and after
March 16, 1960, and until they were reinstated for any loss of pay suffered at
a time when this market was open for business. The employees to be made
whole are: Addie Black, Belle Coalson, Robert Cummings, Wayne Davis, Allene
Eggleston, Thomas Lawson, Terrell McBee, Milton Moore, Vonda Narramore,
Roy Navarrette, John Pirtle, Doug Pryor, Eddie Razo, Herschell Skaggs, Walter
Titus, Joe Vasquez, and Mike Wiley.
I WILL NOT by means of unlawful lockout or in any like or similar manner
interfere with, restrain, or coerce my employees in the exercise of their right
to self-organization, to form labor organizations, to join or assist Retail Clerks
International Association, Local 462, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
ARNOLD CRABB D/B/A THRIFTY WAY FOOD STORE,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material
Aeronautical and Instrument Division , Robertshaw-Fulton Con-
trols Company and International Union, United Automobile,
Aircraft & Agricultural Implement Workers of America,
UAW-AFL-CIO, Petitioner. Case No. 21-RC-7176. May 4,
1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before I. W. Ein, a
hearing officer of the National Labor Relations Board. The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Pursuant to the provsions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Brown].
137 NLRB No. 8.