Sam Zall Milling Co.

National Labor Relations Board - Board Decisions

Jun 29, 1951

94 N.L.R.B. 1749 (N.L.R.B. 1951)

SAM ZALL MILLING CO. 1749
3. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Respondents have engaged in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondents have not engaged in any unfair labor practices by threat-
ening, instructing, and ordering employees of Huffman, Lynch, and Saul and
other employers to engage in a strike or concerted refusal in the course of their
employment to transport or otherwise handle or work on mine posts, mine
lumber, and other materials, an object thereof being to force and require their
employers to join United or District 50 and the Association as alleged in the
complaint.
[]Recommended Order omitted from publication in this volume.]
SAM ZALL, AN INDIVIDUAL DOING BUSINESS AS SAM ZALL MILLING CO.
and AMERICAN FEDERATION OF GRAIN MILLERS INTERNATIONAL
UNION, A. F. L. Case No. 2O-CA-503. June ^09, 1951
Decision and Order
On March 6, 1951, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and (5) of the Act,
and recommending that he cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Re-
port attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and 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
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings; conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications.1
1. The Trial Examiner found, and we agree, that the Respondent'
interfered with, restrained, and coerced his employees in the exer-
i The Respondent has excepted to the Trial Examiner's finding that he is engaged in
commerce and business activities which affect commerce, within the meaning of the Act.
The jurisdictional facts, as fully set forth in the Intermediate Report, show that during
the year 1949 the Respondent sold feeds valued in excess of $75,000 to the Vantress
Hatchery and Breeding Farms, an enterprise which shipped eggs and poultry valued
in excess of $60,000 to points outside the State of California during the same calendar
period. On the basis of these facts we find that the Respondent is engaged in commerce,
within the meaning of the Act, and that it will effectuate the policies of the Act to
assert jurisdiction in the case. See Camp Concrete Rock Company, 94 NLRB 296, in
addition to the cases cited by the Trial Examiner.
94 NLRB No. 235.
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cise of the rights guaranteed in Section 7 of the Act, thereby violat-
ing Section 8 (a) (1) of the Act, as amended, by interrogating his
employees concerning their union affiliations,2 by bargaining sepa-
rately with his employees, and by granting them wage increases and
more favorable conditions with regard to the assignment of overtime
work, in an effort to induce them to forsake the Union.'
2. We agree with the Trial Examiner's finding that the Respondent
has refused to bargain with the Union in violation of its obligations
under Section 8 (a) (5) of the amended Act, for the following rea-
sons:
The record is clear, as the Trial Examiner found, that the Union
had secured authorization cards 4 from a majority of the employees
in the appropriate unit 5 by October. 3, 1950, the date of its second
conference with the Respondent. As of that date the Respondent
was obligated by law to recognize and bargain with the Union as the
representative of his employees unless he entertained a good faith
doubt as to the Union's majority status. Union Organizer Gamble's
version of his conversation with the Respondent on October 3, 1950,
indicates that the union agent did not state in so many words that
the Union represented a majority of Respondent's employees and was
formally requesting that the Respondent bargain with it. But Re-
spondent was in no doubt, as his testimony reveals, that the Union was
there to do business. And its business was the representation of his
employees for the purposes of collective bargaining. "Words are not
pebbles in alien juxtaposition." 6
The Respondent testified that he interpreted the conversation to be
what it obviously was, an attempt on the part of the Union to nego-
tiate with him as the representative of his employees.7 Previously
the Union had left with the Respondent a collective bargaining agree-
ment of the type that it normally executed with employers on behalf
of their employees. The Respondent had read the contract which,
2 Cf. Baxter Bros., 91 NLRB 1480; Standard - Coosa-Thatcher Company, 85 NLRB 1358.
a Cf. Continental Nat Company, Inc., 91 NLRB 1058; Tennessee Valley Broadcasting
Company, 83 NLRB 895.
" In agreement with the Trial Examiner , we find that the employees' reasons for
signing cards cannot affect the validity of those cards insofar as they establish the
Union' s status as bargaining representative of the employees who signed the cards.
Also in-agreement with the Trial Examiner , we find that all production and main-
tenance employees at the Respondent 's Marysville , California , plant, including the truck
driver, but excluding office employees , salesmen, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act. Respondent , in his exceptions , does not question the
appropriateness of the unit.
L. Hand, C. J., in N. L. R. B. v. Federbush, 121 F. 2d 954, 957 (C. A. 2).
Our dissenting colleague interprets this testimony as being with reference to a
consent election agreement. However, the Respondent testified as follows : "Air. Gamble
or Mr. Hanitlin [Union agents] stated that they would like to negotiate , and I told them
that I wasn' t interested in negotiating, and then they said , I believe , that in that case
we would have to have an election . . . ( Emphasis added.)
SAM ZALL MILLING CO. 1751
among other provisions, expressly required recognition of the Union
as the sole collective bargaining agent for those units of employees
in which it had secured majority standing. We find that the Union,
on October 3, 1950, in effect, requested recognition by the Respondent
as the majority bargaining representative of his employees.8 We do
not believe that the Union's attempt to secure the Respondent's agree-
ment to a consent election after he had made it clear that he was
otherwise opposed to collective bargaining in his plant means that
the Union was not also seeking immediate recognition to which, on
October 3, 1950, it was lawfully entitled. At most, the Union's
conduct in this respect may reasonably be interpreted as an alternative
attempt to achieve recognition without resorting to charges of unfair
labor practices.
Another question would be presented had the Respondent, without
more, suggested that the Union claiming to represent his employees
secure certification through the normal processes of the Board. But
the Respondent was not satisfied so to conduct himself. On the very
day of his conversation with the Union he sought out and unlawfully
interrogated his employees as to whether they had signed union-
authorization cards. By such unlawful tactics he had reason to know
on October 3, 1950, that the Union actually had been selected as the
majority bargaining representative of his employees. He continued,
nevertheless, to reject the Union's efforts to engage in collective bar-
gaining. Instead of complying. with his statutory duty to recognize
and bargain with the Union, he proceeded through other unfair
labor practices, detailed in the Intermediate Report, to destroy the
Union's majority among his employees. In this context the Re-
spondent cannot argue that his refusal to recognize and bargain with
the Union on October 3, 1950, was motivated by a good faith doubt
as to its majority status."
We find, contrary to the opinion of our dissenting colleague, that
the Respondent's conduct on and after October 3, 1950, amounts to a
refusal to bargain within the meaning of Section 8 (a) (5) of the
amended Act.
The Remedy
The Respondent's unlawful conduct consisting of interrogation,
negotiating individually with his employees to defeat the Union's
organizational drive, and granting benefits for the same purpose, in
our opinion, discloses a fixed purpose to defeat self-organization and its
objectives. Because of this and its underlying purpose, we are con-
6 For this reason we do not adopt the Trial Examiner 's finding that no claim to majority
status was-made by the Union.
9 Cf. N. L. R. B. V. Morris P. Kirk d Son, Inc., et al ., 151 F. 2d 490 , 492 (C. A. 9)
Job Si lk Mills , Inc. v . N. L. R. B., 185 F . 2d 732 (C. A. D. C.).
1752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vinced that the unfair labor practices found are persuasively related to
other unfair labor practices proscribed by the Act; that the danger of
their commission in the future is to be anticipated from the Respond-
ent's conduct in the past; and that the preventive purposes of the Act
will be thwarted unless our order is coextensive with the threat. In
order, therefore, to make effective the interdependent guarantees of
Section 7, and to prevent a recurrence of unfair labor practices, and
thereby minimize industrial strife which burdens and obstructs com-
merce, and thus effectuate the policies of the Act, we shall, iii addition
to entering a bargaining order against the Respondent, order the Re-
spondent to cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the amended Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Sam Zall, an individual d/b/a
Sam Zall Milling Co., Marysville, California, his agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the American Federation
of Grain Millers International Union, affiliated with the American
Federation of Labor, as the exclusive representative of all his pro-
duction and maintenance employees, including the truck driver, but
exclusive of supervisors as defined in the Act, salesmen, and office
employees.
(b) Giving effect to the agreement made with his employees on
October 5 or 6, 1950, or any modification, continuation, extension, or
renewal thereof, to forestall collective bargaining or deter self-organ-
ization; provided, however, that nothing herein shall be construed to
require the Respondent to vary any • substantive provisions of such
agreement, or to prejudice the assertion by the employees of any rights
they may have thereunder.
(c) In any other manner interfering with, restraining, or coerc-
ing his employees in the exercise of their rights to self-orgainzation,
to form labor organizations, to join or assist the American Federation
of Grain Millers International Union, A. F. L., or any other labor
organization, to bargain collectively through representatives of their
own free choice, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to re-
frain from any and 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 National Labor Relations Act.
SAM ZALL MILLING CO. 1753
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with American Federation
of Grain Millers International Union, A. F. L., as the exclusive rep-
resentative of his employees in the aforesaid bargaining unit, with
respect to their rates of pay, wages, hours of work, and other terms
or conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
(b) Give a separate written notice to each of the employees who
executed the agreement of October 5 or 6, 1950, or any modification,
continuation, extension, or renewal thereof: (1) That he will not en-
force or attempt to enforce the agreement in question to forestall col-
lective bargaining or deter self-organization; (2) that employees will
not be required or expected, by virtue of that agreement, to deal with
the Respondent directly in respect to their rates of pay, wages, hours
of work, or other terms and conditions of employment; (3) that such
discontinuance of the contract is without prejudice to the assertion
of any legal rights employees may have required under it, or to the
assertion of any defenses- thereto acquired by the Employer.
(c) Post at his establishment in Marysville, California, copies of
the notice attached hereto and marked "Appendix. A." 10 Copies of
the notice, to be furnished by the Regional Director for the Twentieth
Region, as the agent of the Board, should be posted by the Respondent
immediately upon their receipt, after being duly signed by him or a
person qualified to act as his representative, and should be maintained
by him for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps should be taken by the Respondent to insure
that these notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Twentieth Region in writ-
ing within ten (.10) days from. the date of this Order what steps Re-
spondent has taken to comply herewith.
MEMBER MURDOCK dissenting in part :
While joining my colleagues in finding a violation of Section 8
(a) (1) of the Act, I cannot further agree on the facts in this case
that the Respondent on October 3, 1950, refused to bargain with the
Union in violation of Section-8 (a) (5) of the Act.
It is axiomatic that a refusal, particularly an employer's refusal
to recognize and bargain with a union, must be preceded by a specific
request. The Board has heretofore characterized such a request as. "a
'0 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted, before the words, "A Decision and Order," the words, "A Decree
of the United States Court of Appeals Enforcing."
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear and unequivocal demand for recognition."" An examination
of the facts in the instant case reveals , as the majority concede, no
evidence that the Union at. any time specifically requested the Re-
spondent to recognize it as the majority bargaining representative of
his employees. Moreover, there is no evidence that the union repre-
sentatives , who met twice with the Respondent, informed him that
they were authorized by a majority of his employees to bargain on
their behalf. Rather, it is apparent from the very testimony of the
union agent , Gamble, that on October 3, 1950, the Union claimed only
"over thirty percent of the membership signed up." The majority,
however, are satisfied that Gamble's conversation with the Respondent
on October 3, 1950, together with the language of the general recog-
nition clause contained in the blank "Master Agreement," which the
Union had left with the Respondent to "study," constitute a sufficient
request and claim to majority representative status. But the evidence,
according to the credited testimony of the Union's representative, re-
veals merely that the Respondent was put on notice that the Union
was organizing his plant and was requesting him to agree to a con-
sent election. It was in this context that Gamble, the union agent,
left the blank contract with the Respondent, expressing sympathy
for the Respondent's antiunion position and suggesting that the Re-
spondent did not know "too much about the principles and policies
of the organization." 12
The majority stress the Respondent's testimony that he interpreted
the remarks of Gamble as an attempt to negotiate. But words in the
mouths of inexpert witnesses are not words of art. It is clear that
Gamble wanted to negotiate a consent election agreement. It is not
clear, and I do not think the Board should so hold, that the Union
was also requesting immediate recognition as the bargaining repre-
sentative of the Respondent's employees 13 While I fully agree with
" The Solomon Company, 84 NLRB 226. This view has recently been affirmed by the
U. S. Court of Appeals for the Sixth Circuit in N. L. R. B . v. Valley Broadcasting Co.,
189 F . 2d 582 , where the court, reversing the Board majority 's finding in that case
(77 NLRB 1144 ) and in agreement with my dissenting opinion, held that the respondent
had never been presented with "a clear demand to bargain."
12 Although I agree with the Trial Examiner 's finding that the Union made no claim
to majority status , I cannot agree with his further finding that to do so would have
been "futile ." The record will not support a conclusion that the Respondent had demon-
strated an inflexible determination to have no dealings with the Union. Indeed, he
accepted the contract , read it , and subsequently told Gamble he thought it was "a good
contract." Under these circumstances , it was incumbent upon the Union to speak up
and state Its claim to a majority and make a request to negotiate a contract so providing,
if it was actually requesting anything more than a consent election agreement.
19I cannot agree with the majority that the Respondent ' s use of the word "negotiate" In
his testimony means "collective bargaining ." Gamble's testimony , which the Respondent
agreed was accurate , and which the Trial Examiner credits , reveals that Gamble said :
"I asked him [tall] if he would consent to an election if we had over thirty percent."
The Respondent asked to see the authorization cards and Gamble refused. It was then,
according to Gamble ' s credited testimony , that the Respondent said : "Go ahead and have
your election ." I interpret the testimony of the Respondent, cited in footnote 7 of the
majority's opinion , to be in accord with Gamble 's version of the conversation between them.
SAM ZALL MILLING CO. 1755
the majority that the Respondent's conduct following his conversation
with Gamble on October 3, 1950, was in violation of the rights of his
employees under the Act, I do not believe that such conduct may prop-
erly be substituted for the requirement that a union must clearly and
affirmatively make known to an employer that it is the majority
bargaining representative of his employees and desires immediate
recognition for the purposes of collective bargaining. - In my opinion,
this requirement is a condition precedent to a finding that an employer
had refused to bargain with a labor organization.
Accordingly, I would. dismiss the allegation in the complaint that
the Respondent has refused to bargain within the meaning of Section
8 (a) (5) of the Act.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, I hereby notify my employees that:
I WILL NOT in any manner interfere with, restrain, or coerce
my employees in the exercise of their right to self-organization,
to form labor organizations, to join AMERICAN FEDERATION OF
GRAIN MILLERS INTERNATIONAL UNION, A. F. L., or any other
labor organization, to bargain collectively through representa-
tives of their own free choice, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities, ex-
cept to the extent that such right may be affected by an agreement
which requires membership in a labor organization as a condition
of employment, as authorized in Section S (a) (3) of the Act.
I WILL bargain collectively upon request with the above-named
union as the exclusive representative of all the employees in the
bargaining unit described below with respect to rates of pay,
wages, hours of work, and other terms and conditions of employ-
ment, and if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is :
All of my production and maintenance employees, includ-
ing the truck driver, but exclusive of supervisors as defined
in the Act, salesmen, and office employees.
I WILL NOT give effect to the agreement executed by the em-
ployees on or after October 5, 1950, or any modification, continua-
tion, extension, or renewal of it to forestall collective bargaining
or deter self-organization.
All of my employees are free to become, remain, or refrain from
becoming members of the above-named union, or any other labor or-
1756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganization, except to the extent that their right to refrain may be
affected by a lawful agreement which requires membership in a labor
organization as a condition of employment.
SAM TALL MILLING CO.,
Employer.
Dated--------------------
B3' -----------------=---------
(Representative ) ( Title)
This notice must remain posted for 60 days after its date, and must
not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Mr. Benjamin B. Law, of San Francisco, Calif., for the General Counsel.
Messrs. Rich, Carlin. and Fuidge, by Richard. H. Fuidge, of Marysville, Calif.,
for the Respondent.
Mr. Cecil F. Gamble, of Vallejo, Calif., for the Union.
STATEMENT OF THE CASE
Upon a charge and amended charge duly filed by the American Federation of
Grain Millers International Union, affiliated with the American Federation of
Labor and designated herein as the Union, the General Counsel of the National
Labor Relations Board' in the name of the Board, caused the. Regional Director
of its Twentieth Region, at San Francisco, California, to issue a complaint dated
January 5, 1951, against Sam Zall, an individual doing business in Marysville,
California, as the Sam Zall Milling Co., herein called the Respondent. The com-
plaint alleged that the Respondent engaged and has continued to engage in unfair
labor practices affecting commerce, within the meaning of Section 8 (a) (1) and
(5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, as amended and reenacted in the Labor Management Relations Act of 1947,
61 Stat. 136, designated herein as the Act. Copies of each charge, the complaint,
and a notice of hearing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance :
(1) that all of the Respondent's production and maintenance employees, in-
cluding the truck driver, but exclusive of supervisors, buyers, salesmen, and
office employees, constitute a unit appropriate for the purposes of collective
bargaining; (2) that a majority of the employees in the unit above defined
had, by October 2, 1950, designated the Union as their representative for the
purposes of a collective bargain with the Respondent, and that the Union, at
all times since October 2, 1950-by virtue of Section 9 (a) of the Act-has been,
and is now, entitled to act as the exclusive representative of the employees in
the unit for the purpose of collective bargaining in regard to their rates of pay,
wages, hours of employment, and other conditions of work; (3) that the Re-
spondent, on and after October 3, 1950, failed and refused, and continues to fail
and refuse, to bargain collectively with the Union as the exclusive representative
of, the employees in the unit, with respect to their rates of pay, wages, hours
of work, and other conditions of employment; and (4) that the Respondent,
I The General Counsel and his representative in this case are designated herein as the
General Counsel, and the National Labor Relations Board as the Board.
SAM ZALL MILLING CO. 1757
(a) on or about October 3, 1950, interrogated his employees about their union
sympathies and activities, (b) on or about October 6, 195.0, induced employees
within the unit to sign-personally-an agreement with him covering their wages
and conditions of work, and (c) within a few days thereafter, granted them pay
increases and improved conditions of work-all to discourage their continued
membership in the Union and activity in its behalf.
In due course, on January 15, 1951, the Respondent filed an answer, in which
he admitted certain jurisdictional allegations of the complaint, but denied others
with respect to the interstate activity of his customers. The Respondent also
challenged the complaint's allegation with respect to the status of the Union
as a labor organization, and denied the commission of any unfair labor practice.
Pursuant to notice, a hearing was held at Marysville, California, on January
30, 1951, before me, a Trial Examiner duly designated by the Chief Trial Ex-
aminer. The General Counsel and the Respondent were represented by counsel,
and the Union by a business representative. All of the parties participated in
the case, and were afforded a full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence pertinent to the issues. At the
outset of his presentation, the General Counsel moved to amend the complaint
in order to clarify one of its jurisdictional allegations. There was no objection ;
the motion was granted. A motion to amend the Respondent's answer was also
granted. Certain stipulations with respect to the business activities of the
Respondent and its principal customer were then noted for the record. At the
close of the testimony, a, motion on behalf of the General Counsel to conform
the pleadings to the proof in certain immaterial matters was granted, without
objection. Thereafter, counsel and the Trial Examiner engaged, informally, in
a discussion of the issues in lieu of oral argument. The discussion has been
made a part of the record. No one reserved the right to file a brief or proposed
findings and conclusions, and no briefs have been received.
FINDINGS OF FACT
Upon the entire record in the case, and from my observation of the witnesses,
I make the following findings of fact:
I. THE BUSINESS OF THE RESPONDENT
Sam Zall, designated in this Report as the Respondent, is an individual doing
business as the Sam Zall Milling Co., at Marysville, California, where he is
engaged in the production and sale of animal and poultry feeds. During 1949,
he purchased grains, alfalfa, concentrates, and other materials valued at more
than $250,000, of which materials valued at more than $90,000 were shipped
directly to his place of business from points in the United States outside of the
State of California. With respect to the materials shipped directly to the
Respondent from points outside of California, it was stipulated that all of the
material thus purchased was secured through brokers within the State of
California under contracts with such brokers, and that payment for the material
thus purchased was made to the brokers within the State.
In 1949, also, the Respondent sold, in California, poultry feeds valued at more
than $75,000 to the Vantress Hatchery and Breeding Farms, a business enter-
prise, which used these feeds in the production of poultry and eggs at its farms
near Marysville. During 1949, the Vantress Hatchery and Breeding Farms sold
and shipped to points in the United States outside of California, eggs and
poultry valued at more than $60,000. . The record establishes, by stipulation,
that I. K. Vantress, a member of the Vantress enterprise, would testify, if
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called, that feed purchased from the Respondent is fed only to its breeding stock,
not to baby chicks; that the breeding-stock is not shipped out of the State;
and that its out-of-State shipments consist principally of hatching eggs. Ship-
ments of chicks are rare and represent a "very minor percentage" of total ship-
ments.
The total annual sales of the Respondent approximate $500,000 in value ;
all of his sales are made in California, to purchasers within the State. The
Vantress enterprise is his largest single customer. It was stipulated, and I find,
that the figures with respect to the business activities of the Respondent and
Vantress Hatchery and Breeding Farms in 1950, if given, would be approximately
the same as those for the previous year, noted.
The Respondent contends that his business relationships with the Vantress
enterprise are insufficient to subject him to the Board's jurisdiction, on the
ground that his own business activities are primarily local in character and
do not involve the production of a commodity which, itself, moves in commerce,
either in pure or processed form. At the most, it is argued, use of the Re-
spondent's feed at the Vantress Farms may increase the productivity of its
breeding stock, and thus make possible increased interstate shipments of the
hatchery eggs which they in turn produce-but would produce, in some degree,
even without the Respondent's feed.
I find no merit in the contention that the activities of the Respondent are not
subject to the Board's jurisdiction. It is well established, now, that the juris-
diction conferred upon the Board by statute is coextensive with the constitu-
tional authority of Congress to legislate with respect to matters affecting
interstate and foreign commerce. In determining the limits of this authority,
the Supreme Court has declared that "the effect upon interstate and foreign
commerce, not the source of the injury" determines the Board's jurisdiction?
In the present case, applying this test, I find no difficulty in reaching the con-
clusion that the Respondent is engaged in the manufacture of a product closely
connected with, and necessary to, the production of goods for commerce, and
that unfair labor practices on the part of the Respondent might very well lead
to labor disputes which would burden and obstruct commerce.
It has been judicially determined that employees who prepare fertilizer, or
supply electricity and irrigation water, used in the production of agricultural
commodities which move in commerce, perform operations necessary to the
production of such goods for commerce. And the fact that, in this case, the
Respondent's feed sustains and promotes the productivity of poultry stock which
does not, itself, move in commerce but merely produces eggs which are the
subject of interstate shipment, creates a situation clearly, but not materially,
different. No substantial distinction, in my opinion, can be drawn between
operations necessary to the production of finished goods for commerce and
operations necessary to the production or maintenance of a "source" of goods
for interstate shipment a As the Supreme Court, in a case involving the Fair
Labor Standards Act; has declared :
[the Act] does not require the employee to be employed even in the produc-
tion of an article which itself becomes the subject of commerce or transpor-
2 Consolidated Edison Co. v. N. L. R. B., 305 U. S. 197, 222.
3 Cf. McComb v. Super-9. Fertilizer Works, Inc., 165 F. 2d 824, in which an analogous
question under the Fair Labor Standards Act, involving a manufacturer of chemical
fertilizers, was decided. The Court held the statute applicable to the employees of the
fertilizer manufacturer engaged in mixing the fertilizer , bagging it , and delivering it to
trucks for transportation to farms, on the ground that their activity was "necessary to
the production" of goods for commerce.
• Roland Electrical Co. v. Walling , 326 U . S. 657, 663.
SAM ZALL MILLING CO. 1759
tation among the several States. It is enough that the employee be
employed , for example , in an occupation which is necessary to the produc-
tion of a part of any other "articles or suLjects of commerce of any charac-
ter" which are produced for trade , commerce or transportation among the
several States . This does not require an employee to be employed exclusively
in the specified occupation . This does not require that the occupation in
which he is employed be indispensable to the production under considera-
tion. It is enough that his occupations be "necessary to the production."
There may be alternative occupations that could be substituted for it but
it is enough that the one at issue is needed in such production and would,
if omitted, handicap the production.
The fact that the Vantress enterprise , as a hatchery and breeding farm, may
not be subject to the Fair Labor Standards Act in its own right , also, is not
material . There is nothing in the National Labor Relations Act, as amended,
or its legislative history to suggest that Congress intended to exempt from the
Board ' s jurisdiction employers engaged in industrial activity necessary.to the
production of agricultural commodities which move in commerce.
I find that the Respondent is engaged in commerce and business activities
which affect commerce, within the meaning of the Act. In conformity with
the Board 's recently articulated policy in regard to the assertion of its jurisdic-
tion over local enterprises that furnish services or material necessary to the
operation of other enterprises engaged in the production of goods destined for
out-of-State shipments ,' I find that its assertion of jurisdiction in this case would
effectuate the policies of the statute.
II. THE LABOR ORGANIZATION INVOLVED
The American Federation of Grain Millers International Union, affiliated with
the American Federation of Labor, is a labor organization , within the meaning
of the Act , which admits employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
The Respondent is associated with two business enterprises in Marysville. One,
a corporation known as the Farmers Public Warehouse and the High and Dry
Warehouse , Inc., operates a public warehouse for the storage of grain and other
materials . Adjacent thereto, in a separate building , the Respondent prepares
animal and poultry feeds, doing, business as the Sam Zall Milling Company.
Although some of the ingredients used in the manufacture of his finished product
are stored in the public warehouse and are handled by warehouse employees, the
present case is concerned only with the persons employed by the Respondent
in his milling enterprise.
His. employees as a sole proprietor , in September and October of 1950, consisted
of an office clerk, an outside salesman , one supervisor designated as in charge of
production and sales , six men employed in the plant , and a truck driver. Although
each of the men employed in the plant was qualified to perform every function
involved in its operation , they did have definite duties . One, I find, worked pri-
I Hollow Tree Lumber Company , 91 NLRB 635.
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
niarily as a feed mixer , another as a grinder man, a'third as a take-off man. tile
fourth as a sack sewer. Two employees worked in the plant part of the time and
drove a truck for the Respondent upon occasion as required ..' In September and
October of 1950, the Respondent 's full-time truck driver delivered feed to the
Respondent ' s customers ; occasionally , he was required to bring to the mill ma-
terials required in the production of the feed . All of the men were paid at an
hourly rate ; there were differentials , but the spread between the lowest and the
highest rate paid by the Respondent did not exceed 10 cents per hour. These
differentials , apparently , were based primarily on differences in the work per-
formed and the factor of seniority.
The General Counsel alleges that the unit appropriate for collective bargaining,
in September and October of 1950, at the Respondent ' s plant . included all of his
production and maintenance. employees and the truck driver but excluded his
office employee , the outside . salesman , and Mr . Cotton-the supervisor previously
mentioned . The Respondent , in his answer , denied the appropriateness of the
unit thus defined ; at the hearing , however, he objected only to the inclusion in
the unit of the full-time truck driver and the part-time drivers, insofar as their
assignments might involve driving work . The objection , as advanced , appears
to be grounded in the Respondent ' s opinion that persons assigned to work as
drivers ought to be represented , if at all, by another Union.
I find no merit in the Respondent 's objection . The fact that persons employed
as truck drivers on a full -time or part-time basis might be appropriately repre=
sented by a labor organization other than the Union involved in this case cannot,
clearly affect the appropriateness of the unit for which the Union seeks repre-
sentative status . The Board has, in many cases , considered the relationship be-
tween truck drivers and other persons employed in a proposed production and
maintenance unit. Its decisions with respect to their inclusion or exclusion from
such units have been based upon a number of factors ; the record in this case, how-
ever, is silent with respect to most of them . Whatever the present record shows
or fails to show in this connection , however , it is clear in the light of previous
decisions that a production and maintenance unit which includes part -time and
full-time truck drivers is not inherently inappropriate . Since all of the Respond-
ent's employees are paid at an hourlly rate , with relatively insignificant differ-
entials, and since the only available evidence with respect to the desires of the
full-time truck driver and one of the part-time drivers in regard to representation
indicates , without contradiction , that they desired the Union to represent them,
I conclude that the Respondent 's full-time and part -time truck drivers may
properly join the production and maintenance workers in his employ in a single
unit, appropriate for the purposes of a collective bargain.
Upon the record, therefore , I find that all of the Respondent 's production and
maintenance employees including the truck driver , but exclusive of his office
employees, salesmen , and supervisors as defined in the Act , constituted , and now
constitute , a unit appropriate for the purposes of collective bargaining with the
Respondent within the meaning of Section 9 (b) of the Act.
2. The Union's majority
In October of 1950, at the time of the events with which this case is concerned,
the Respondent's employees within the unit herein found appropriate were
seven in number. On September 12, 1950,. one of them, Jess Stovall, at the
Upon occasion , the Respondent employed extra workers on a part-time or temporary
basis, also.
SAM ZALL MILLING CO. 1761
solicitation of Cecil F. Gamble and John Hanifin, union organizers, signed a
card designated as an "Authorization and Application for Membership" ; by its
terms Stovall applied for membership in the Union and authorized it or a local
affiliated with it, and its officers or representatives, to represent him in collec-
tive bargaining with the Respondent in regard to his hours of, labor,. wages,
tenure of employment, and the other terms and conditions of his employment.
Thereafter, on October 2, 1950, similar cards were signed by four other em-
ployees of the Respondent : Charles H. Adams, Earnest C. Curt, Otis A. Matthews,
and R. C. Skinner. Gamble testified, without contradiction, that similar cards
were subsequently executed by Gilbert Medina, a worker then employed as a
combination truck driver and mill worker, and E. L. Howard, the Respondent's
full-time truck driver. Since only five of the authorization cards executed have
been submitted for the record, however-no cards having been offered for Medina
and Howard-I have assumed in connection with the issue now under considera-
tion, that the Union's claim to represent a majority of the employees is grounded
upon the authorization cards executed by five of the seven employees in the unit
herein found to be appropriate.
The Respondent contends that the authorization cards, received in evidence,
may not be regarded as proof of the Union's representative status because the
employees did not intend, in signing them, to apply for union membership or to
designate the Union as their collective bargaining representative, but intended
merely-in the light of representations made by Gamble.and Hanifin-to make
possible a petition for certification on the part of the Union, looking toward an
election under Board auspices, to establish its representative status. Although
two of the employees did testify that they understood only that their signatures
would permit the Union to file such a petition and bring about an election, I find
no merit in the Respondent's contention. Gamble's testimony, which I credit,
establishes that each of the employees was informed of the heading on the
card he signed; that heading; previously noted, clearly established the character
of the card as an application for membership and an authorization card. The
employees, I find, were not misled, therefore, despite Gamble's admitted indica-
tion to them at the time, that he expected, in the normal course of events, to
establish the Union's right to recognition through a Board election. In any event,
absent proof that the employees were induced to sign the authorization cards
by some unlawful means, it may be taken as datum that an employee's thoughts-
or afterthoughts-as to why he signed a union card, and what he thought that
card meant, cannot negative the overt action involved in the execution of a card
designating a Union as his bargaining agent. I find that on October 2, 1950, the
Union was, and at all times since has been, the duly designated representative
.of a majority of the Respondent's employees in the unit described above as
appropriate for the purposes of a collective bargain. Pursuant to Section 9 (a)
of the Act, it has been at all material times, and is now, entitled to act as the
exclusive representative of all the employees in the aforesaid unit for the pur-
poses of collective bargaining with respect to rates of pay, wages, hours of
employment, hours of work, and other conditions of employment.
3. The refusal
On or about September 26, 1950, having secured an authorization card from
Stovall, Gamble and Hanifin called upon the Respondent at the plant. Zall
was advised that the Union planned to organize his employees. The testimony
7 Joy Silk Mills v. N . L. R. B., 185 F . 2d 732 (C. A. D. C.) and the cases therein cited.
953841-52-vol. 94-112
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to the conversation that ensued is not in conflict on material
matters. Gamble 's detailed version of it, which I credit, reads as follows :
He said that his plant was like a big family and that whenever he had
any trouble in the plant why he went out and adjusted them and he said
that he was a man of a few words and he laid his cards on the table and
says, "I don't want a union here and my people do not need a union." And
I 'stated to him that I could appreciate his position , now not knowing too
much about the principles and policies of the organization , but after we
had got getter acquainted , why he would be more satisfied . And he says,
"I have stated my position , we do not need a Union in this plant."
In the course of the conversation Gamble supplied the Respondent with a blank
"Master Agreement " utilized by the Union as a basis for negotiations. Zall
stated that he would study it; in response to a request for an appointment he
said that he would read it, study it , and make an appointment with Gamble
to discuss it, if he ( Zall ) liked it, when Gamble returned in a week or so. The
union representatives then left.
On October 3, 1950, after having secured designation cards from a majority
of the Respondent 's employees , Gamble and Hanifin returned to the plant ; they
met the Respondent outside the plant office and held a conversation with him
on the sidewalk before the front entrance . Gamble's testimony , which I credit,
with respect to this conversation reads as follows :
I asked Mr. Zall if he had read and studied the contract , he said, "Yes,"
he had, I asked him what he thought of it and he said he thought it was
a very good contract but that was one man's opinion . I asked him if he
would consent to a joint election which was customary between unions and
employers for the purpose of recognition of the union as his employees'
representative . He stated that he had already previously stated his posi-
tion that he did not want a Union in the plant. I asked him if he would
consent to an election if we had over thirty per cent . . . thirty per cent
of the membership signed up . Signed up means the authorization cards.
He says, "Have you got them ?" I said, "Yes ." He said, "Let me see them."
I said , "Oh, no." I said, "That is for the Board and if the Board decides
to let you see the authorization cards, that will be another matter." He
stated again that he had previously made himself known on this matter and
at that time we should [ leave] and he went into the plant and we left
the premises.
Gamble also testified , credibly , that Zall, in the course of the conversation, had
invited him to go ahead and petition for an election , but stated that his good
relations with the Union would cease when it had its election . The Union,
in fact, did file a petition for an election on October 4, 1950; the petition was
withdrawn , however, on the 16th of the month.
In the meantime , on October 3, 1950, the Respondent , I find, questioned a
number of his employees as to whether they had signed union authorization
cards. Three of the employees , at least, replied affirmatively ; one of these,
I find, also informed the Respondent that he had seen the others execute
authorization cards.
Thereafter , at various times, Cotton sought to determine, in conversation, the
desires of the men with respect to a modification of their rates of pay, wages,
hours, and conditions of work. As a result of these conversations , on or about
October 5, 1950, he drew up a document intended to embody the various employee
suggestions , and discussed it with the men, informally, before work began. The
consensus of opinion among the employees , apparently , was that Cotton 's draft
adequately expressed their desires . On the 6th , Cotton took the draft to the
SAM ZALL MILLING CO. 1763
Respondent . The latter , I find, came out of his office, read the draft to the men,
and asked them, at an informal conference , whether its provisions were satis-
factory. He received an affirmative reply. The draft was then reduced to
typewritten form; it was signed by Zall in his office , and was presented there-
after to the plant employees , in their turn , for signature . Stovall, Curt , Skinner,
.Adams, and Matthews signed the document.
Designated as a "contract ," the document provided that the Respondent would
pay the "same wages" as General Mills Corporation paid at its Marysville feed
manufacturing plant, but that the grinder man would receive 10 cents per hour
in excess of the General Mills scale and the mixer man would receive 5 cents
per hour in addition . The Respondent agreed that employees who had worked
40 hours in a given workweek would not be "cut off" thereafter , if their fortieth
hour of work occurred before the end of the regular workweek ; he also agreed
that, as far as possible, all available work would be assigned to the regular
employees , even though overtime might be involved . Each of these commitments,
as the record shows, involved a departure from past practice .' The record
establishes that the agreement , in fact, called for a wage increase in order to
enable the Respondent . to reach the "General Mills" scale . The exact date on
which the increase became effective is not clearly established ; the agreement,
however, was intended , by its terms, to be effective from October 2 , 1950, to
October 2, 1951, with an "option of renewal " at that time.
Conclusions
Under the Act, an employer is obligated to recognize any union which repre-
sents a majority of his employees, in a unit appropriate for collective bargaining,
as the exclusive representative of such employees. In decisions too numerous to
require or warrant citation, the Board has held that an employer's failure to
grant exclusive recognition to the Union designated by a majority of his em-
ployees in an appropriate unit constitutes a refusal to bargain. And whatever
type of conduct may be characterized, generally, as a. refusal to recognize a
union, it is clear-in this case-and I find, that the Respondent was guilty of
such a refusal when he told the Union's organizer that he did not wish to
negotiate a union contract, and thereafter, when he negotiated with the em-
ployees directly in regard to their wages, rates of pay, hours, and other terms
and conditions of employment, and presented for their signature a document
which embodied the substance of the matters agreed upon in such negotiations.'
An employer cannot, as the Respondent did, refuse to recognize the union
designated by a majority of his employees merely because he has been able to
adjust grievances satisfactorily by unilateral action in the past 10 I so find.
Ordinarily, it is true, an employer is not required to recognize and bargain
with a union until he receives a request for such recognition or the initiation
of negotiations from the labor organization." And the record, in its present
form, does give rise to some doubt with respect to the Union's compliance with
this requirement. It did not, in conformity with its usual practice, dispatch a
letter to the Employer advising him of its status as a majority representative and
requesting a conference for the purpose of initiating negotiations. Nevertheless,
despite the absence of evidence sufficient to establish that a formal request was
8 With respect to the second commitment, the record establishes that the Respondent
had, in the past, met emergency situations which required extra work, by the employment
of part-time workers.
8 Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678; J. I. Case Company v.
N. L. R. B., 321 U. S. 332; National Licorice Company v. N. L. R. B., 309 U. S. 350.
10 Atlantic Refining Company, 1 NLRB 359; Ford Motor Company, 29 NLRB 873.
'IN. L. R. B. v. Columbian Enameling and Stamping Company, 306 U . S. 292.
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made, the Respondent was, I find, effectively put upon notice with respect to
the Union's desire to negotiate as the representative of his employees. When
Gamble and Hanifin met Zall for the second time, they asked his opinion of the
contract they had previously left with him. Zall construed their inquiry as a
request to negotiate ; he so testified. A request to bargain need not be presented
in haec verba so long as there is one by clear implication.12 I find that the
Respondent, on October 3, 19"0, was requested to bargain.
The Union, it is true, never advised the Respondent that it did, in fact,
represent a majority of his employees ; Gamble made no claims in that regard
when he presented his "request" that negotiations begin, and when that sug-
gestion was rebuffed by the Respondent, he only claimed to represent a sufficient
number to raise a question of representation. While the organizer's failure to
claim, expressly, that the Union represented a majority, may have been some-
what inept, the absence of such a claim, in a formal sense, cannot be regarded
as fatal to the General Counsel's case. Zall had made it perfectly clear, at each
of his meetings with the union organizer, that he did not wish to negotiate with
the Union, and that he did not believe his employees needed union representation.
Under the circumstances, Gamble was justified, I find, in the assumption that
it would be futile to advance a claim with respect to the Union's representative
status, or to offer proof of it in the form of authorization cards. The diversion
of the conversation to the subject of a consent election and Board representa-
tion case procedure, in short, developed logically from Zall's expressed reluctance
to deal with the Union; his attitude, I find, excused the Union's failure to claim
status as a majority representative, or to offer proof in that connection.
Reference has already been. made to Zall's express refusal to recognize or
negotiate with the Union as a violation of the statute. In the present state of
the law, citation of authority is unnecessary to establish that his express refusal
to negotiate with it was compounded by his subsequent action in negotiating di-
rectly with the employees. Despite the absence of evidence sufficient to establish
that Zall was, in fact, aware of the Union's majority status when he negotiated
and executed the agreement previously noted with his employees directly, there
can be no doubt, upon the record, that the agreement in question, as negotiated
and executed, was reasonably calculated to forestall and effectively to frustrate
anticipated union action.'3 Even if it be assumed, for the purpose of argument
and in conformity with the Respondent's contention, that the grievances disposed
of by the contract had been a subject of discussion at the plant before the
union organizers appeared, and before the Respondent became aware of the
Union's organizational activity, it seems clear, and I find, that the adjustment
of such grievances in a written instrument was precipitated by the Union's bid,
for recognition. Upon the entire record, therefore, I find that the Respondent,
by the negotiation and execution of the agreement in question, in addition to
his earlier statements with respect to his unwillingness to deal with the Union,
refused to bargain with it in violation of the statute.
B. Interference, restraint, and coercion
The record, with respect to the Respondent's interrogation of his employees.
in regard to their union affiliation and his course- of conduct in connection with
the negotiation and execution of the agreement which they were ultimately
induced to sign, has been detailed, adequately, elsewhere in this Report. The
Respondent's contention that his interrogation of the employees was prompted
11 Joy Silk Mills v. N. L. R. B.. 185 F . 2c1 732 (C. A. D. C.).
13 Curt testified explicitly, without contradiction-and T find-that Zall's comment after
the agreement was signed was, in substance , "Now boys, when the election comes, you;
know how I would like to have you vote. " The nren did not reply.
SAM ZALL MILLING CO. 1765
solely by a natural desire to ascertain the facts with, respect to the Union's
asserted interest-while understandable-cannot, in the light of accepted Board
.decisional doctrine, excuse his action. Upon the entire record, I find that the
interrogation in question, and the Respondent's course of conduct with respect
to the negotiation and execution of the agreement, interfered with, restrained,.
and coerced his employees in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, which oc-
curred in connection with the operations of the Respondent 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 burden-
lug and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent engaged and is now engaged in
unfair labor practices, it will be recommended that he cease and desist there-
from and take certain affirmative action designed to effectuate the policies of
the Act.
It has been found, specifically, that the Respondent refused to bargain col-
lectively with the Union as the exclusive representative of his employees in a
unit appropriate for the purposes of a collective bargain. Accordingly, it will
be recommended that the Respondent, upon request, bargain with the Union as
such representative, and if an understanding is reached, embody such under-
standing in a signed agreement.
It has been found, also, that the Respondent negotiated and executed a con-
tract with his employees, directly, immediately after being apprised of the
Union's bid for recognition, which was reasonably calculated to forestall and
frustrate anticipated union action before the Board in a representation case.
In this connection, it will be recommended that the Respondent cease giving
effect to the contract in question, or any modification, continuation, extension,
or renewal of it, to forestall collective bargaining or deter self-organization.14
Nothing in this recommendation, however, should be construed by the Re-
spondent to vary or abandon those wage, hour, seniority, or other substantive
features of the relationship between him and his employees, established in the
performance of the agreement in question, or to prejudice the assertion by the
.employees of any rights they may have under that agreement.
CONCLUSIONS OF LAW
In the light of these findings of fact and upon the entire record in the case, I
make the following conclusions of law :
1. The Respondent , Sam Zall, an individual doing business as Sam Zall Mill-
ing Co., is engaged in trade, traffic , and commerce , and business activities which
affect commerce, within the meaning of Section 2 ( 6) and ( 7) of the Act.
2. The American Federation of Grain Millers International Union, affiliated
with the American Federation of Labor, is a labor organization within the
meaning of Section 2 (5) of the Act.
34 Port Gibson Veneer and Box Company, 70 NLRB 319; ef. C. Pappas Company, Inc.,
82 NLRB 765, 796.
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All of the Respondent's production and maintenance employees, including
the truck driver, but exclusive of supervisors as defined in the Act, buyers,
salesmen, and office employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
4. The Union was on October 2, 1950, and at all times since has been, entitled
to act as the exclusive representative of the employees in the aforesaid unit, for
the purposes of collective bargaining, within the meaning of Section 9 (a) of
the Act.
5. By his refusal, on October 3, 1950, ahd at all times thereafter, to bargain
collectively with the Union as the exclusive representative of his employees in
a unit appropriate for collective bargaining, the Respondent engaged and has,
continued to engage in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
6. By his interrogation of the employees with respect to their union affilia-
tion, and by his course of conduct in connection with the negotiation and execu-
tion of an agreement with his employees, directly, the Respondent interfered
with, restrained, and coerced his employees, and has continued to interfere with,
restrain, and coerce them; thereby he did engage and has continued to engage
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affectin,(g
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
KELCO CORPORATION and UNITED ELECTRICAL, RADIO AND MACHINE
WORKERS OF AMERICA, CIO : Case No. 5-C-2218. June 29,1951
Supplemental Decision , Order, and Recommendation
On April 3, 1951, Trial Examiner William F. Scharnikow issued
his Supplemental Intermediate Report in the above-entitled proceed-
ing, pursuant to a remand order of the Board, finding that three
claimants, Raymond A. Fronckowski, Marion A. Kolb, and William
B. MacMillan, had participated in a physical attack upon a fellow
employee, thereby forfeiting their right to reinstatement and back
pay; and that two other claimants, Harold W. Ruth and Milton A.
Popiolek, had not engaged in any conduct which would justify such a
forfeiture, as set forth in the copy of the Supplemental Intermediate
Report attached hereto. Accordingly, the Trial Examiner recom-
mended that the Board amend its Order herein, which had been condi-
tionally denied enforcement by the United States Court of Appeals
for the Fourth Circuit pending proceedings on remand,2 by deleting
from paragraphs 2 (a) and 2 (b), which provided for reinstatement
'Since this proceeding originally arose the Union has severed its connections with
the CIO.
2 N. L. R. B. v. Kelco Corp., 178 F. 2d 578.
94 NLRB No. 247.