Sakrete of Northern California, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1963

142 N.L.R.B. 293 (N.L.R.B. 1963)

SAKRETE OF NORTHERN CALIFORNIA, INC. 293
August 9 that Steffan would have to be discharged , did not have knowledge on
August 9 , that the charge had been filed.
In sum , General Counsel has failed to support the allegations of the complaint
by substantial evidence on the record considered as a whole . For the reasons I
have stated , I shall recommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent Harris-Hub Company , Inc., is engaged in commerce within the
meaning of Section 2 (6) of the Act.
2. Respondent has not engaged in conduct violative of Sections 8(a) (1) and
(4) of the Act.
RECOMMENDED ORDER
It is recommended that the Board issue an order dismissing the complaint in
its entirety.
Sakrete of Northern California , Inc. and Freight, Construction,
General Drivers and Helpers , Local 287, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America .' Case No. 2O-CA-2069. April 24, 1963
ORDER ON MOTION
On January 22, 1963, the Board issued its Supplemental Decision
and Order (140 NLRB 765) in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and ordering it to cease and desist therefrom and
take certain affirmative action, as set forth in the Supplemental De-
cision and Order.'
On February 8, 1963, the Respondent filed with the Board a motion
to modify the Board's Order, requesting that we eliminate the provi-
sion for backpay mentioned in footnote 2, since investigation had
showed that Ellis had "lost interest" in the strike on August 26, 1961,
and obtained employment on September 14, 1961, and that Escajeda
and Patino had continued to strike until March 5, 1962, but now have
other employment and do not desire reinstatement of their employ-
ment with Respondent. The Respondent also requested that the
Board eliminate the requirement to bargain with Local 287. Local
287, on February 15, 1963, filed a letter of opposition to Respondent's
motion, taking exception to the relief requested, but not to the state-
ment of facts alleged in support of the Respondent's motion.
1 Hereinafter referred to as Local 287.
2 The Board found that the Respondent had violated Section 8(a) (1), (2 ), ( 3), and (5)
of the National Labor Relations Act. The Board , inter alia, ordered the Respondent to
make whole Manuel Escajeda , Rual Dean Ellis, and Juan Patino for any loss of pay they
may have suffered by reason of their discriminatory discharge of August 16, 1961, and to
reinstate those employees to their former or substantially equivalent positions This
Order was conditioned upon a determination whether any of these three employees had
abandoned their strike before September 15, 1961 . The Board reserved the right to modify
its Order . The Board also ordered the Respondent , upon request , to bargain collectively
in good faith with Local 287
142 NLRB No. 27.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 15, 1963, the Board issued its notice to show cause 3
why the Board should not incorporate the statement of facts contained
in the Respondent's motion, and in Local 287's letter of opposition,
into the record in the instant case . The notice was answered only by
Respondent, who took no exception to the few facts contained in Local
287's letter of opposition. Accordingly, we hereby incorporate into
the record in the instant case the statement of facts contained in the
Respondent's motion of February 8, 1963, and in Local 287's letter of
opposition thereto of February 15, 1963, and shall proceed to disposi-
tion of that motion.
We are satisfied from the record in this case that none of the three
employees involved abandoned their strike before September 15, 1961.
Escajeda and Patino admitted continuing their strike past that date,
and Ellis, although he "lost interest" on August 26, did not inform
Respondent either that he had abandoned the strike or that he was
willing to return to work. Thus, none of the three is entitled to back-
pay as to this period. However, they are still entitled to backpay for
the discriminatory layoff of June 9, 1961, as set forth in our Supple-
mental Decision and Order.
We are also satisfied from the record as now amplified that the Re-
spondent has satisfied its obligation to offer reinstatement to the em-
ployees involved. All of the employees have already stated unequiv-
ocally that they have employment elsewhere, and that they do not
desire reinstatement of their employment with the Respondent.
Hence,
IT IS HEREBY ORDERED that the Respondent's duty to continue its
offer of reinstatement to Rual Dean Ellis, Manuel Escajeda, and Juan
Patino, is eliminated from the Order.
IT IS HEREBY FURTHER ORDERED that the Respondent's request that
the Board eliminate or rescind its order that the Respondent, upon
request, bargain collectively in good faith with Local 287, be, and it
hereby is, denied as lacking in merit .4
MEMBERS LEEDOM and BROWN took no part in the consideration of
the above Order on Motion.
3 Not published in NLRB volumes.
* It is the Board's long-established policy to remedy unlawful refusals to bargain by re-
quiring an employer to bargain with the union that represented a majority of its employees
at the time of the wrongful refusal to bargain . See, for example, Karp Metal Products
Co., Inc, 51 NLRB 621. This policy has been applied to a variety of factual situations
and has received review and affirmance by the Supreme Court. N L.R.B. v. Bradford
Dyeing Association , 310 U . S. 818; International Association of Machinists etc. v N.L R B ,
311 U.S. 72; N.L R .B. v. P. Lorillard Company, 314 U.S. 512; Franks Bros Company v
N.L R B, 321 U. S. 702 ; Ray Brooks v. N.L.R.B., 348 U.S. 96; N.L R B. v. Warren Com-
pany, Inc ., 350 U.S. 107. As indicated in those cases, this policy is designed , inter else, to
deny the employer who has wrongfully refused to bargain , the fruits of his unfair labor
practice, and to insure, insofar as possible , that such practice does not deter his employees
from freely exercising their rights under the Act. We apply it here for these reasons.