Certified Corp.

National Labor Relations Board - Board Decisions

Mar 23, 1979

241 N.L.R.B. 369 (N.L.R.B. 1979)

CERTIFIED CORPORATION
Certified Corporation and Hawaii Teamsters & Allied
Workers, Local 996, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America
Certified Corporation and Bernard Rios Santiago, Pe-
titioner and Hawii Teamsters & Allied Workers Lo-
cal 996. Cases 37-CA-1426 and 37-RD-115
March 23, 1979
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On September 11, 1978, Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommend Order.' 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be dismissed in its entirety,
and that all objections to the election in Case 37-RD-
115 be overruled in their entirety.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Hawaii Teamsters &
Allied Workers, Local 996, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
' Respondent's motion to dismiss General Counsel's exceptions is hereby
denied because we conclude that Respondent was not prejudiced by any
alleged defect in the service of General Counsel's limited exceptions and
supporting brief on Respondent's counsel.
2 We agree with the Administrative Law Judge's finding that all objections
to the election in Case 37-RD-115 are without merit. Consistent with this
finding, we shall certify the results of the election.
Helpers of America, and that said labor organization
is not the exclusive representative of all the employ-
ees, in the unit herein involved, within the meaning of
Section 9(a) of the National Labor Relations Act, as
amended.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard before me in Honolulu, Hawaii, on April 4, 1978,
pursuant to a complaint and notice of hearing that issued in
Case 37-CA-1426 on December 2, 1977, alleging Certified
Corporation (herein Respondent) to have violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, 29 U.S.C. §151, et seq. (herein the Act).'
The Respondent and Teamsters Local 996 (herein Union
or Charging Party) had a successful collective-bargaining
relationship for a number of years until their most recent
collective-bargaining agreement expired on February 28.
Thereafter a strike commenced and on August 11 a Deci-
sion and Direction of Election was issued in Case 37-RD-
115 filed by an individual, Bernard Rios Santiago (G.C.
Exh. 2(a)).
An election was conducted on September 22, in a unit of
all employees employed by Respondent at its warehouses in
Honolulu, Kauai, and Hilo, Hawaii, including driver-selec-
tors, driver-receivers, order selectors, laborers, machine op-
erators, price labelers, load chiefs, and maintenance super-
visors; excluding office clerical employees, guards and/or
watchmen, professional employees, and supervisors as de-
fined in the Act. The election provided numerous chal-
lenged ballots and the Union filed objections to the elec-
tion. All of the challenged ballots, except one which could
not affect the final results of the election, were resolved and
set forth in the corrected revised tally of ballots issued to
the parties on February 2, 1978 (G.C. Exh. 2(j)). All of the
Union's objections to the conduct of the election were dis-
posed of in the acting Regional Director's Supplemental
Decision and Order issued December 22, except one which
related to an allegation that Respondent by its agents had
interfered with, restrained, and/or coerced its employees in
the exercise of their rights as guaranteed by Section 7 of the
Act (G.C. Exh. 2(f)). The cases were consolidated for pur-
poses of a hearing before a duly designated Administrative
Law Judge. Respondent's answer has denied any and all
allegations of conduct that would be violative of the Act.
At the hearing all parties were represented by counselors.
The parties were given full opportunity to examine and
cross-examine witnesses, to introduce evidence, and to file
briefs. Excellent briefs were filed by the General Counsel
and Respondent and have been carefully considered.
Upon the entire record in this case, including the briefs
and my careful observation of the witnesses, I hereby make
the following:
I Most of the relevant events which are to be discussed hereinafter oc-
curred in 1977, and, unless otherwise indicated, all dates shall refer to the
year 1977.
241 NLRB No. 55
369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OI FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein Respondent has been a Ha-
waii corporation with a place of business at 2888 Ualena
Street, Honolulu, Hawaii, where it has been engaged in the
nonretail distribution of grocery products and fresh pro-
duce. During the past calendar year in the course and con-
duct of its business operations, Respondent purchased and
received goods and supplies valued in excess of $50,000 di-
rectly from suppliers located outside the State of Hawaii.
Respondent admits, and I herewith find, the Employer to
be engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II1. THE LABOR ORGANIZATION
Respondent admits, and I herewith find, the Union to be,
and at all times material herein to have been, a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTIC(ES
A. The Issues
The issue litigated herein was accurately phrased by the
General Counsel in his brief as follows:
Did Respondent violate Section 8(a)(I) and (3) of the Act
by placing two employees on its payroll to perform bargain-
ing unit work subsequent to an unconditional offer to re-
turn to work by striking employees in an appropriate bar-
gaining unit? In the event the allegations are found to have
merit, afortiori the violative conduct requires that the elec-
tion be set aside.
B. Background
Respondent and the Union have had a history of peace-
ful and lawful collective bargaining. The most recent collec-
tive-bargaining agreement between the parties expired on
February 28. On March 1, following a breakdown in nego-
tiations for a new contract, all of Respondent's 66 employ-
ees went out on strike and commenced picketing. Takashi
Sakabe, a picket captain, testified that the purpose of the
strike was to get Respondent Employer to agree to the
Union's position on their contract demands. There appears
to be no conflict between the parties that the strike was
initially an economic strike, and I so find.
Sakabe testified that on or about August 23 he and Abra-
ham Hall, another rank-and-file employee, met with Roger
Godfrey. a vice president of Respondent, at which time
they presented Godfrey with a sealed envelope, addressed
to Mr. Damore, Respondent's president, containing the
names of 42 employees who requested unconditional rein-
statement to their jobs (G.C. Exh. 6). When the two em-
ployees learned from Godfrey that Damore was out of
town, they requested that the letter remain unopened and
delivered directly to Damore upon his return. Godfrey indi-
cated that he would comply with their request, and ap-
proximately 2 weeks later Hall and Sakabe returned to Re-
spondent's premises and met with Damore. At this meeting
Damore asked if the Union had any more names to add to
the list of striking employees requesting unconditional rein-
statement to their former jobs. Hall and Sakabe submitted a
supplemental list of 16 other employees requesting uncondi-
tional reinstatement "to our jobs" (G.C. Exh. 9). There ap-
pears to be no serious conflict between the parties, and I
herewith find that as of September 2, the Union had pro-
vided Respondent Employer with the names of 58 employ-
ees that were requesting unconditional reinstatement "to
their jobs" (Resp. Exhs. 4 and 5).
C. The Evidence
I. Concerning John Boone
On March 7 John Boone was hired as a strike replace-
ment and worked as a forklift operator at a wage rate of
$6.01 per hour. On April 22 Boone was involved in a "scuf-
fle" with a fellow employee, identified only as Paul, follow-
ing which both employees were taken to the office of
George Madden, warehouse manager and vice president for
Respondent. Following a full investigation and a review of
the incident with the various employees involved, Boone
was removed from the payroll. Because Boone was returned
to Respondent's payroll on September 20-2 days before
the election and at a point in time following the uncondi-
tional request of some 58 employees to return to their
jobs-a critical conflict arises. Was Boone a "new hire" that
would be violative of the Act in view of the unconditional
request of striking employees to return to their jobs?2 The
resolution of this question is made difficult because George
Madden did not testify3 and Boone gave conflicting pretrial
affidavits. Moreover, his testimony at the trial was some-
thing less than totally candid, coherent, and/or convincing.
At the hearing Boone testified concerning the circum-
stances of the little scuffle between him and another em-
2 The Laidlaw Corporation, 171 NLRB 1366 (1968).
At the hearing Respondent offered an affidavit of George Madden dated
September 28 which was submitted to the Board in connection with the
Board's investigation of the Union's objections to election. General Counsel
and the counsel for the Charging Party objected to the receipt in evidence of
this particular affidavit, contending that Madden was available and should
have been called to testify. Respondent's counsel acknowledged that he had
not subpoenaed Madden, but represented to the court as follows: Madden is
no longer employed by Respondent; that Madden had gone to the mainland
for medical treatment shortly after being separated from Respondent; that
Madden had returned to Hawaii sometime in December at which time Re-
spondent's counsel spoke to him and reminded him of the date for this trial;
that Madden stated he was only there to pick up some mail and would then
return to the mainland for further medical treatment: that Madden did not
know whether he would be available for trial, because it would depend on
the success or lack of success of the medical treatment he intended to re-
ceive: that counsel had written to Madden's last known address-a post
office box number-reminding him of the date of this trial and requested
Madden to contact him; that neither counsel nor any other member of Re-
spondent Company had had any contact with Madden since December
1977. On the basis of this representation. I consented to have the affidavit
placed in the file, but advised the parties that I would neither read nor
consider the affidavit until such time as I had made a definitive ruling as to
its receivability which I would make in the course of my written Decision in
this case. I am of the opinion that the affidavit should not be received and
admitted in evidence as an exception to the hearsay rule; Madden was not
subpenaed, and I am not convinced that every available means were taken to
prove Madden's unavailability to personally testify.
370
CERTIFIED CORPORATION
ployee named Paul, and then stated that Madden told him
that he (Madden) "had no other alternative but to fire him;
that he didn't need people like Boone working for him."
Boone then testified that after "all the other people had left
he told Madden that he hated to be fired and asked him.
think about it. Reconsider in a few weeks, whatever." After
which Madden said, "Well, I will think about it." There-
after Boone called the Company, "about every other day or
every day. It was quite often, quite often." After nearly 3
months had gone by, Boone stated that he went to see Mad-
den personally and again pleaded to be returned to work.
According to Boone, Madden indicated that it looked
pretty good, and it was possible he could return him within
a couple of weeks.
Boone was again placed on Respondent's payroll on Sep-
tember 20 and worked on the dock unloading containers at
a wage rate of $4.15 per hour. Boone continued working
until sometime in the first part of November when he was
fired. This time there is no question that he was discharged
by Madden. (This is not an issue in the case.)
Richard Seaman, who was then director of distribution,
testified that after Boone had been terminated "he said that
he would get Greg Torgrin, who was our receiving supervi-
sor, and beat his ass, and he would also get the company.
and he proceeded to walk out the door."'
Boone testified that immediately following his discharge
he sought to locate an attorney with whom he had an ac-
quaintance because he wanted to pursue some sort of a suit
against Certified Corporation for the unfairness he felt had
been dealt to him. When the attorney he sought to locate
was not in his office, he proceeded to the Unity House
which he had learned was the home office of the Union
involved. There he talked to Mr. Arthur A. Rutledge. pres-
ident of the Union, relating that he had been fired at Certi-
fied Corporation and that he was out of work and desper-
ately in need of a job. According to Boone, Rutledge
expressed his interest in wanting to help Boone find work.
and that he would assist him in doing so.' It was at this time
that Boone decided to give the Board a second affidavit.
According to the testimony the Board agent was contacted.
went to the Unity House, and there the second affidavit was
given to the Board agent (Court Exh. 2). Boone's first affi-
davit which was given to the Board is dated September 30
and appears in the file (Court Exh. ).6 Needless to say. the
two affidavits are diametrically opposed on the critical issue
of Boone's status following his first scuffle in April. In the
affidavit given to the Board on September 30, Boone swore
that George Madden had "said it was best if I took some
time off from the job and get things together and cool
down. He said he would be putting me on layoff status and
that I should keep in contact with him and that he would
keep me in mind when an opening came up. ... Since April
22, 1977 I1 had always expected to return to work at Certi-
fied, but it was only a question of a position becoming
'Boone denied threatening to "get the company."
Shortly thereafter, Boone went to work as a night security guard for a
hotel, The Waikiki Marina, in which the Union has a substantial financial
interest.
6 The September 30 affidavit was prepared in the office of Respondent's
counsel by Mr. Ernest Moore. However, Boone was taken to the Subregional
Office in Honolulu where he was given a full opportunity to discuss and
correct any materials in the affidavit and again swore to its contents in the
presence of a Board agent.
available." In the second affidavit, given to the Board agent
on November 17, Boone swore that Madden said "hearing
all these statements from these guys, John Boone, I see no
further action at this, but to dismiss (or fire) you at this
time."
Boone's testimony was more in accord with his second
affidavit-in other words he contended that he had been
discharged on April 22. He sought to explain the wording in
the first affidavit by stating that the attorney taking the
affidavit had suggested using the term laid off, inasmuch as
that would look better on his record than having been fired
and he (Boone) went along with the wording.
Mr. Ernest C. Moore was called to testify concerning the
manner in which the first affidavit of Boone had been pre-
pared. Moore related that the affidavits 7 were prepared in
response to a request from a Board agent that "I get the
employees down to the Board with a statement concerning
their response to the Union's allegations as to their employ-
ment status on the election date." Moore testified that he
interviewed each of the individuals separately and then dic-
tated their statements as given to him, which were then
transcribed. Each of the individuals was given an opportu-
nity to change the language, and insofar as possible the
affidavits were phrased in the affiant's own words. Moore
categorically denied that he had ever suggested the use of
the words "laid off" instead of "fired" and averred that
Boone had informed him that "at all times during his pe-
riod of absence from the company . . . he [Boone] fully
intended to come back."
2. Concerning Michael McKenna
There is no serious disagreement as to the dates of em-
ployment for Michael McKenna. He worked from October
6 until the 28. According to the testimony of Richard Sea-
man, McKenna was hired when employee Jeff Wegner, a
forklift operator for Respondent, suggested that he had a
friend who was looking for temporary work as a laborer.
Seaman testified that at that time he needed a temporary
part-time unloader for the containers and suggested that
Wegner's friend come to see him. McKenna was a helicop-
ter pilot and had just arrived in Hawaii and was looking for
some temporary work until he found permanent employ-
ment in the aviation field. Seaman testified that McKenna
worked as a temporary part-time laborer unloading con-
tainers and that he was on an "on call basis, to either call in
at 7 in the morning, or to be notified the day before if he
would work." McKenna worked only 16 hours his first
week, approximately 17 hours his second week, and each of
the last 2 weeks he worked in excess of 40 hours because of
an absentee problem. At the end of that time he was termi-
nated because the temporary work had been completed,
and because McKenna had found more suitable employ-
ment. Regular employees have their schedules for the fol-
lowing week posted each Friday (Resp. Exh. 2, page 6, par.
16.5).
7 There were three individuals involved-Mr. Albano, Mr. Ramirez, and
Boone.
371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Evidence relating to the conversion of the economic
strike to an unfair labor practice strike
Takashi Sakabe testified that he had observed Boone
working on the container dock on September 20. He further
testified that he talked to Mr. Rutledge, the union pres-
ident, about Mr. Boone working.
Jean Hagi testified that she has been personnel manager
for Respondent since October 3, and that she has no knowl-
edge of the Union ever complaining regarding the employ-
ment of either Boone or McKenna. There was no testimony
to indicate that the wording on the picket signs was ever
changed at any time. The parties further stipulated that
there "is no reference in any of the charging party's news-
papers, memoranda, minutes, notes, correspondence or
other documentation which makes any reference to the Re-
spondent's hiring to Mr. John Boone or Mr. Michael Mc-
Kenna, either addressed to the Respondent or to any other
party."
D. Analysis and Conclusions
I have carefully reviewed both of the affidavits given by
John Boone' and his testimony at the trial. Having done so
I am firmly convinced that Boone is a totally incredible
witness fully capable of contriving a concoction from whole
cloth when and where it is best suited to his own conve-
nience. I fully credit Moore and do not believe-as testified
to by Boone-that Moore suggested the use of the words
laid off after Boone had indicated that he was under the
impression that he had been fired.
While Boone's total course of conduct-his testimony
and the two affidavits-caused me to believe that he cannot
be credited or trusted, nevertheless there are a number of
factors which caused me to believe that the September 30
affidavit is more apt to contain some measure of truth than
either his testimony or the November affidavit. In the first
place, the circumstances under which the first affidavit was
taken were much more relaxed or casual than were the cir-
cumstances of the second affidavit. For example, the first
affidavit was taken primarily for the purpose of resolving a
challenged ballot. The Company had no way of knowing
how Boone had voted, and Boone had nothing to gain or
lose in a determination of the question. At the time of the
second affidavit, Boone was admittedly angry, was seeking
an attorney to bring suit against the Company, and had
threatened to "beat the ass" of the supervisor responsible
for his discharge. In addition, I am of the opinion that
Boone would have little concern for the truth if something
less would assist him in obtaining employment. The hand-
written corrections which appear on the third page of the
September 30 affidavit (the signature page) strike me as
being words which Madden would have used in talking to
an employee receiving a disciplinary layoff. These words
were added at a time when the Board's field examiner was
reviewing the typed affidavit with the affiant, out of the
I See Alvin J. Bart and Co., Inc., 236 NLRB 242, decided by the Board on
May 22, 1978, wherein the Board carefully reviewed the law concerning the
admissibility of pretrial affidavits and concluded that, "the modem trend,
however, is that prior inconsistent statements are not hearsay at all and
accordingly that they may be used substantively."
presence of the Respondent's counsel, Mr. Moore. During
cross-examination the following colloquy occured:
Q. Did Mr. Madded also tell you at this meeting
that it would be best if you just took some time off
from the job, get things together and cool down; that
he would put you on a layoff status and that you
should keep in contact with him?
A. No sir.
Q. Did he say anything to that effect?
A. He said the time off would do me good.
These words, as phrased by Boone, are not the typical words
that would be said to a dischargee, but are more apt to be
the words that would be directed toward an employee re-
ceiving a disciplinary layoff. Perhaps most important of all
in resolving where some measure of truth might lie, it is
inconceivable to me that if Boone had been discharged on
April 22 that the Company would have tolerated his contin-
ual and frequent phone calls inquiring as to when he might
be returned to work. Had Respondent discharged him on
April 22 with no intent of ever returning him to work, I am
confident that Respondent would have made it plain in one
of the early calls that he was not to continue to hold out
any hope for further employment.
General Counsel's arguments contrary to the above con-
clusion are not persuasive. Use of the word "termination"
by the Hawaii Medical Services Association is not a term
that can be attributed to Respondent to describe Boone's
employment status. Nor was there any obligation for Re-
spondent to carry Boone's insurance during this question-
able period because he had never worked long enough to
establish seniority (see sec. 4.1 on p. 2 of Resp. Exh. 2).
Boone's short period of employment had not qualified him
under either the dental or the Hawaiian Medical Services
Association plan. General Counsel also argues that Respon-
dent failed to include Boone's name on the Excelsior list
submitted to the Board, but stipulated that in a subsequent
supplemental list submitted by Respondent that Mr.
Boone's name did appear.
In summay I find John Boone to be a pathological pre-
varicator whose testimony in this case cannot and should
not be credited; but if forced to choose in which instance he
may have uttered some measure of truth the scales are
strongly tipped in favor of the contents of the September 30
affidavit. In any event, the General Counsel has failed to
prove by a preponderance of the evidence that Boone's re-
moval from the payroll on April 22 was a discharge and not
a disciplinary layoff with some reasonable expectation of
being returned to the payroll.9 Under Board rules, eligibility
to vote in a representation election is dependent upon em-
ployment in the designated bargaining unit during the eligi-
bility period and on the date of the election. Westchester
Plastics of Ohio, Inc. v. N.L.R.B., 401 F.2d 903, 907 (6th
Cir. 1968); See N.L.R.B. v. Pacific Gamble Robinson Co.,
438 F.2d 112 (9th Cir. 1971). Employees on layoff or leave
of absence during the relevant period who have not quit or
been terminated and have a reasonable expectation of re-
call qualify as eligible voters because of their continued ties
to the employee unit. American Motors Corporation, Parts
' Falstaff Brewing Corporation, 128 NLRB 294, 295 (1960), enfd. as modi-
fied 301 F.2d 216 (8th Cir. 1962).
372
CERTIFIED CORPORATION
Division, 206 NLRB 287, 291 (1973), Miami Rivet Company,
147 NLRB 470, 483 (1964). 1 find that the General Counsel
has failed to prove by a preponderance of the evidence that
Boone was a new hire in September 1977 in violation of the
reinstatement rights of any of the striking employees.
The evidence is undisputed that Michael McKenna was
hired and worked as a part-time temporary employee for 4
weeks during the latter part of October at a time when some
58 striking employees had made unconditional requests to
return to their jobs. The General Counsel argues that this is
a per se violation as enunciated in the Laidlaw case, supra,
because Respondent failed to advance any legitimate or
substantial business justifications for ignoring the strikers'
request for rehire as recently adopted by the Board in South
Central Timber Development, Inc., 230 NLRB 468 (1977).
However, General Counsel ignores the fact that Respon-
dent's obligation is to return the strikers to theirformer po-
sitions or substantially equivalent ones if and when such posi-
tions are available.' 0 The part-time temporary job held by
McKenna cannot be characterized as "substantially equiv-
alent" to any job formerly held by any striker since the
strikers were all employed on a regular full-time basis.
While certainly not binding as judicial precedent, it is inter-
esting to note that the division of advice in the General
Counsel's office authorized dismissal of a charge in a case
that raised an issue identical to that surrounding the hiring
of McKenna." According to the advice memorandum the
"case was submitted for advice on the question of whether
an employer is under a Laidlaw obligation to offer part-time
jobs to permanently replaced strikers who have made an
unconditional offer to return to work, even though the part-
time jobs are not substantially equivalent to the strikers
former jobs." In concluding that the charge should be dis-
missed, the memorandum cited New Era Electric Coopera-
tive, Inc., 217 NLRB 477 (1975), wherein the Board had
noted that "assuming the Charging Party was an economic
striker, the first class lineman position and the second class
lineman position were not substantially equivalent jobs be-
cause they were unequal in authority, hours, and pay." The
advice memorandum further pointed out that the employer
had not violated the Act by failing to offer strikers the non-
equivalent position since (1) the strikers' offer to return to
work did not clearly encompass an offer to take nonequiva-
lent jobs and (2) there was no evidence that the employer's
failure to offer the jobs was discriminatorily motivated.
These factors are present in the instant case. I conclude and
find that the temporary part-time employment of Michael
McKenna did not violate the reinstatement rights of any of
the strikers because McKenna's job was unequal in duties,
hours, and pay and thus not substantially equivalent to the
jobs formerly performed by the strikers.'2
There was absolutely no probative evidence to substanti-
ate the allegation that on and after September 20 the strike
was converted from an economic strike to an unfair labor
practice strike. In the first place, I have found that neither
the return of Boone to the payroll on or about September
0 It should be noted that in requesting reinstatement the employees indi-
cated only that they were requesting unconditional reinstatement to theirjobs
or to our jobs and not to any job. (G.C. Exhs. 6 and 9.)
" Case 13-CA- 14896, Howard Publications, Inc., Publisher of the Times,
July 12, 1977, reported in CCH NLRB 20.154.
12 See Western Steel Casting Company, 233 NLRB 870 (1977).
20 or the hiring of Michael McKenna for a temporary part-
time job was, violative of the Act. Second, but of equal
importance, even if I had found the allegations to be viola-
tive of the Act, it would have been necessary for the Gen-
eral Counsel to show some causal connection between the
unfair labor practices and the prolongation of the strike.
This was not done. "It is well established that an employer's
unfair labor practices during an economic strike do not per
se convert it into an unfair labor practice strike, absent
proof of a causal relationship between the unfair labor
practices and the prolongation of the strike."'" Or as the
Board more recently stated, "we are unwilling to hold that
the mere fact that a strike follows an unfair labor practice,
establishes a causal relationship as a matter of law." In
order for the Board to reach a conclusion that the economic
strike was converted to an unfair labor practice strike, it
must be shown "that these unfair labor practices played a
significant part in the Union's decision to strike or to re-
main on strike thereafter."' I conclude and find that the
strike by the Union against Respondent in the instant case
remained an economic strike at all times.
CONCL USIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6). and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All employees employed by Certified Corporation at
its warehouses in Honolulu, Kauai. and Hilo. Hawaii. in-
cluding driver-selectors, driver-receivers, order selectors, la-
borers, machine operators, price labelers, load chiefs, and
maintenance supervisors, excluding office clerical employ-
ees, guards and/or watchmen, professional employees, and
supervisors as defined in the Act, constitute appropriate
units for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. The strike which commenced on or about March I,
1977, by the Union herein, directed against Respondent
herein, has at all times been, and remains, an economic
strike.
5. Respondent has not engaged in unfair labor practices
as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER'6
It is hereby ordered that the complaint issued herein
against the Respondent, Certified Corporation, be. and it
hereby is, dismissed; any and all objections to the election
are herewith found to be without merit.
'" Harcourt & Company, Inc., 98 NLRB 892. 909 (1952).
' Capitrol Rubber A Speciality Co., Inc., 198 NLRB 260 (1972).
15 Coca Cola Bottling Works, Inc., 186 NLRB 1050, 1053 (1970).
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
373