Hoyt Motor Co., Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1962

136 N.L.R.B. 1042 (N.L.R.B. 1962)

1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violate Section 8 (a)(3) of the Act. Accordingly, I shall recommend dismissal of
the complaint insofar as it alleges such a violation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. However, although I have
found that the Respondent took unilateral action in violation of Section 8(a)(5)
of the Act, I shall not recommend that it be ordered to bargain with the Union on
request as I have also found that the Respondent has not unlawfully terminated its
trucking operations. In the circumstances, it is apparent that an affirmative bargain-
ing order would serve no useful purpose.18
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Town & Country Manufacturing Company, Inc., and Town & Country Sales
Company, Inc., are employers within the meaning of Section 2(2) of the Act.
2. General Drivers, Chauffeurs and Helpers Local Union No. 886, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All truckdrivers of the Respondent at its Lawton, Oklahoma, plant, excluding
carpenters and helpers, electricians, cabinetmakers, welders, plumbers, painters,
laborers, clerical and office employees, guards, watchmen, and supervisors as de-
fined in the Act, and all others not listed as truckdrivers, constitute a unit appropri-
ate for the purpose of collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times since September 24, 1959, the Union has been the exclusive repre-
sentative of all the employees in the aforesaid appropriate unit for the purpose of
collective bargaining within the meaning of Section 9(a) of the Act.
5. By unilaterally discontinuing its trucking operations without first bargaining
collectively with the Union as the exclusive representative of the employees in the
aforesaid appropriate unit, the Respondent has committed unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
6. By the foregoing conduct and by engaging in the conduct detailed in sec-
tion III, A, supra, the Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed them by Section 7 of the Act and
has thereby committed unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not violate Section 8(a) (3) of the Act by discharging the
employees named in the complaint.
[Recommendations omitted from publication.]
18 Cf. J. M. Lansing, et al, d/ b/a Consumers Gasoline Stations, 126 NLRB 1041.
Hoyt Motor Company, Inc. and International Association of
Machinists , Lodge No. 1735, AFL-CIO. Case No. 19-CA-2216.
April 13, 1962
DECISION AND ORDER
On October 27, 1961, Trial Examiner Eugene K. Kennedy issued
his Intermediate Report in the above-entitled proceeding, finding
136 NLRB No. 97.
HOYT MOTOR COMPANY, INC. 1043
that the Respondent had engaged in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
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 In-
termediate 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 except as modified herein.
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8(a) (1) of the Act by the coercive statements of
Co-owner Hoyt and by Sales Manager Leslie's solicitation of em-
ployees to disavow the Union. We also agree with the Trial Exam-
iner's findings that the Respondent violated Section 8(a) (5) of the
Act by its failure to meet and negotiate with the Union as requested
on and after March 30, 1961. We find that the subsequent withdraw-
als from the Union, in May 1961, were caused by the Respondent's
unfair labor practices, and did not destroy the Union's majority
status.
2. The remaining question in the case arises out of the discharge
of Orwell Wolford. The complaint alleged that Wolford was dis-
criminatorily discharged in violation of Section 8(a) (3) of the Act,
and alleged further that the discharge was violative of Section 8(a)
(5) in that it had the intended effect of undermining the Union and
destroying its majority. The Trial Examiner found inadequate evi-
dence in the record to support a finding that Wolford was discharged
discriminatorily, and accordingly concluded that Section 8(a) (3)
of the Act had not been violated. No exceptions were taken to these
findings. Accordingly, we adopt them pro forma.
The question remains whether the discharge was violative of Sec-
tion 8(a) (5) as alleged in the -complaint, i.e., whether it had the
intended effect of undermining the Union and destroying its ma-
jority. The Trial Examiner did not so find, and such a finding is
plainly not warranted in view of the Trial Examiner's conclusions,
not excepted to, as to the nondiscriminatory character of the dis-
charge. The Trial Examiner did, however, find the discharge viola-
tive of the Act on the ground that neither Wolford nor the Union
was given advance written notice by Respondent prior to the dis-
64179 5-63-vol. 136-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge, as assertedly required in the collective -bargaining agreement
between Respondent and the Union.
Putting aside the question whether the collective-bargaining agree-
ment in fact required the notice asserted by the Trial Examiner,"
the fact is that the theory here expounded by the Trial Examiner
was neither alleged nor litigated. Nor are we satisfied that this single
instance, assuming arguendo that it were properly alleged and found
to be a breach of the bargaining agreement , can be read as a repudia-
tion by Respondent of its bargaining obligation. Accordingly, we
reject the Trial Examiner's finding in this regard and -the portion
of the recommended remedy based thereon. Under all the circum-
stances, we also deem a broad cease-and -desist provision in the Order,
as recommended by the Trial Examiner, inappropriate.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Hoyt Motor
Company, Inc., Anchorage, Alaska, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with the Union as the exclusive
representative of all the employees in the appropriate unit.
(b) Interfering with, restraining, or coercing employees in the ex-
ercise of rights guaranteed in Section 7 of the Act, including threaten-
ing employees because of their activities in behalf of the Union, or
instituting action designed to have the employees disavow the Union
as their bargaining agent.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of all employees in the appropriate unit, and,
if an understanding is reached, embody such understanding in a signed
agreement.
(b) Post at its place of business in Anchorage Alaska, copies of
the notice attached hereto marked "Appendix." 2 Copies of said
notice, to be furnished by the Regional Director of the Nineteenth
Region, shall, after being duly signed'by Respondent's representative,
be posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
1 The contract provision cited by the Trial Examiner contains a clause exonerating the,
employer from the advance notice requirement where a discharge is for "just cause "
a In the event that this Order is entorced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."'
HOYT MOTOR COMPANY, INC. 1045
ing all places where notices to employees customarily are posted.
Reasonable steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 10 days from
the date of this Order what steps the Respondent has taken to comply
herewith.
APPENDIX
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, we hereby notify all employees that :
WE WILL upon request of International Association of Machin-
ists, Lodge No. 1735, AFL-CIO, negotiate with said Lodge for
the purpose of modifying, amending, or executing a collective-
bargaining agreement and, if agreement is reached, reduce such
agreement to writing. The bargaining unit is :
All mechanics, lubemen, washmen, partsmen, and janitors at
our sales and service agency in Anchorage, Alaska, excluding
all office clerical employees, new and used car salesmen,
guards, professional employees, and supervisors as defined in
the Act.
WE WILL NOT interfere with, restrain, or coerce employees in
the exercise of rights guaranteed in Section 7 of the Act, includ-
ing threatening employees because of their activities on behalf
of the Union, or instituting action designed to have the employees
disavow the Union as their bargaining agent.
HOYT MOTOR COMPANY, INC.,
Employer.
Dated-----`----------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 327 Logan Building, 500 Union Street, Seattle, Washington,
Telephone Number, Mutual 2-3300, Extension 533, if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Hoyt Motor Company, Inc ., herein called Respondent , is charged by the Generar
Counsel of the National Labor Relations Board , herein referred to as the General
Counsel and the Board, respectively, with violations of Section 8(a),(1), (3), and (5)
of the National Labor Relations Act, herein called the Act . In general , these vio-
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lations stem from alleged threats aimed at union association, the discriminatory dis-
charge of an employee named Orwell Wolford, and the failure of Respondent to meet
its statutory obligation to engage in collective bargaining with International Associ-
ation of Machinists, Lodge No. 1735, AFL-CIO, herein called the Union. This
matter was tried in Anchorage, Alaska, on July 25, 1961.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
1. FINDINGS OF FACT
A. Summary of events and background
Respondent is engaged in the business of selling new and used automobiles and in
their maintenance and service at Anchorage, Alaska.' On November 2, 1959, the
Union 2 was certified as the collective-bargaining representative of Respondent's em-
ployees to represent the following described bargaining unit:
All mechanics, lubemen, washmen, partsmen, and janitors at the Employer's
sales and service agency in Anchorage, Alaska, but excluding all office clerical
employees, new and used car salesmen, guards, professional employees, and
supervisors as defined in the Act.
Shortly after the certification, Respondent advised the Union that it was fruitless to
enter into collective-bargaining sessions as Respondent contemplated closing down
the service department where the employees in the abovedescribed unit performed
their work. From November 1959 until March 1960, the Respondent "farmed out"
service and maintenance work that otherwise would have been performed by the
employees in the unit certified by the Board as appropriate and which is found for
the purpose of this proceeding to be an appropriate bargaining unit.
Because of Respondent's conduct in closing down its service department after the
Board certification of the Union, the Union filed an unfair labor practice charge which
eventuated in a settlement agreement executed on March 3, 1960. By this agreement
Respondent agreed to bargain with the Union for the employees in the unit noted
above.
A collective-bargaining agreement was executed on May 16, 1960, between Re-
spondent and the Union with an expiration date of May 31, 1961. This agreement
contained a union-security clause requiring employees in the bargaining unit to pay
regular dues to the Union after 31 days of employment. It also provided that prior
to the discharge of any employee in the unit for alleged unsatisfactory work or mis-
conduct, Respondent give written notice of the alleged faulty workmanship or mis-
conduct to the employee involved, with a copy to be sent to the Union. The agree-
ment also contained a reopening provision requiring negotiation within 15 days after
notice by either party of a desire to modify or amend the agreement.
Orwell Wolford was first employed by Respondent in July 1960, in the capacity
of a salesman. Respondent did not regard his performance in the sales department
as being satisfactory. Through the intervention of Jerry Chadwick, Respondent's
then sales manager, Wolford was given a job which was characterized as that of a
wash boy. This work involved not only washing cars but otherwise preparing both
new and used cars for sale or delivery to purchasers or customers. Wolford held
the job of wash boy from December 1960 until April 4, 1961. He had been given
notice 2 weeks before April 4 of his termination by Charles Leslie, the sales manager
who succeeded Chadwick and under whose supervision Wolford worked. Prior to
his being given notice, Leslie had encouraged Wolford to seek other employment on
company time, if necessary. When Wolford was offered the job of wash boy, Willard
Jordet, the general manager for Respondent and the man who actually ran the
business , informed Wolford that if he took the job of wash boy, he would have to
join the Union. However, it was not until March 1961 that Wolford signed a union
application card when the Union's business agent , James Moody, came to Respond-
ent's shop and there obtained Wolford's signature . On this occasion, a Mr. Hoyt, a
part owner of Respondent, was in the service department. Hoyt was under the im-
pression that Moody had no right to be on Respondent's premises and so informed
Moody. Moody, however, went ahead with his business of contacting the union
steward, a Roy Craig, who introduced him to Wolford, and Moody then obtained
' Respondent Hoyt Motor Company, Inc , annually purchases automobiles valued in
excess of $ 500,000 which are shipped to its place of business in Anchorage, Alaska, from
points outside the State of Alaska It is engaged in commerce and in a business affecting
commerce within the meaning of the Act.
2 International Association of Machinists, Lodge No. 1735, AFL-CIO, is a labor organi-
zation within the meaning of the Act.
HOYT MOTOR COMPANY, INC. 1047
Wolford's signature on a union application . On this occasion, Hoyt told Wolford
that if he signed the application he could punch his timecard ; and also stated that if
he had known Roy Craig was the union steward he would have fired him long ago.
B. Analysis and concluding findings
1. Threats and interference
The comments of Hoyt that were heard at least by Wolford and Craig , employees
of Respondent , are clearly coercive . They would have a tendency to inhibit an em-
ployee in his right to be a union steward or to support the Union , as these remarks
indicate Respondent's hostility toward the Union. Hoyt was in error in believing
that Moody did not have a right to be in the service area as the collective-bargaining
agreement expressly gives the union representatives a right to visit the service area of
Respondent's shop.
The record reflects another incident of interference by the Respondent with the
right of the employees to engage in union activity. On the evening of May 10, 1961,
Charles Leslie, Respondent 's sales manager and a supervisor within the meaning of
the Act, suggested to employees Craig and Hollenbeck that the employees should
get together and sign a paper stating that they "wanted out of the Union ." Hollen-
beck's testimony is credited in connection with this incident . Leslie admitted talking
to Craig and Hollenbeck and suggesting they should make it clear whether or not
they wanted the Union , but denied suggesting that the employees sign anything.
Craig denied Leslie suggested that the employees sign a paper and claimed he could
not recall whether Leslie played any part in its preparation . This claim appears
totally implausible . A proper evaluation of Craig's testimony requires a recognition
that he admitted that Respondent had on many occasions good cause to discharge
him. The wording of the communication sent to the Union , with a copy to Re-
spondent , is not easily reconcilable with the language used in Craig 's oral testimony,
and his claim that he prepared the petition is rejected. The petition, which I find
was prepared at Leslie's suggestion by a clerical employee of Respondent and which
was sent to the Union and Respondent, read as follows:
MAY 11, 1961.
MACHINISTS UNION LODGE 1735,
Anchorage , Alaska.
This is to advise that upon expiration of the now existing contract with Hoyt
Motor Company that we , the undersigned , no longer wish to have Machinists
Union Local 1735 act as our bargaining agent.
We trust this letter will act as proper notice.
(S) Roy Craig,
(S) Jerry McIntyre,
(S) Al Tophok,
(S) Lloyd Thompson.
In summary , I find the remarks of Hoyt addressed to Wolford and Craig to be co-
ercive and unlawful , and also the conduct of Sales Manager Leslie in causing a
petition for withdrawal from the Union to be prepared and signed.
2. The alleged discriminatory discharge of Orwell Wolford
The only evidence pointing to a discriminatory motivation in discharging Wolford
is to be found in Hoyt's statement to Wolford that if he signed the union application
he could punch his timecard. Although Wolford did sign the union application, he
did not punch his timecard and he continued to work for Respondent for some weeks
after this statement was made.
The testimony of Chadwick and Leslie, who succeeded Chadwick as sales manager,
in relation to the manner in which Wolford performed his work is credited. In sum-
mary, their testimony was to the effect that Wolford was not a satisfactory employee
in his capacity of wash boy. This testimony in some respects is supported by
General Counsel' s witnesses Craig and Hollenbeck.3 Inasmuch as there was a
provision in the collective-bargaining contract requiring an employee to pay dues
s The General Counsel requested that notice be taken that the witnesses called by him
occupied a portion of the courtroom in which Respondent's witnesses, including manage-
ment representatives, were seated Hollenbeck. In particular was a witness who cave the
impression of candor and it is noted that he testified contrary to the interests of Respond-
ent in designating the sales manager, Leslie, as the individual who suggested that the
withdrawal petition be prepared
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Union after 31 days, I find Hoyt's warning to Wolford about signing the union
application a reflection of his resentment against the union business representative
interfering with the work of his employees and being on Respondent' s premises
and not an expression of opposition to Wolford's joining the Union. Supporting this
view is the fact that General Manager Jordet told Wolford when he took the job of
wash boy in December 1960 that he would have to join the Union. The fact that
Respondent had reason to believe that all the employees in the bargaining unit al-
ready belonged to the Union, together with the fact that Wolford did not sign a union
application for approximately 2 months after he was required to do so, does not
establish him as a likely target of Respondent's antiunion action. Inasmuch as the
record does not contain any evidence of Wolford's activity on behalf of the Union,
except signing a union application, I find that the General Counsel has not established
by an adequate measure of proof that Wolford was discharged because of his union
affiliation or activities, or because he signed a union application card in the presence
of one of Respondent's owners.
3. The failure to bargain
The reopening provision of the collective-bargaining agreement which had its
earliest terminal date on May 3, 1961, provided that negotiations concerning
modifications or amendments should begin not later than 15 days after receipt
of notice of desire to modify or amend. Commencing on March 15, 1961, the
Union sent four notices of desire to modify or amend the current collective-bargain-
ing agreement to Respondent. Respondent replied to none of these communications.
Respondent did not have a valid reason for its neglect in replying to the Union's
communications or its failure to meet with the Union, and it is patent that this
conduct was a breach of its bargaining obligation, commencing on March 30, 1961,
which is the latest date that the Respondent was obligated to meet with the Union
for the purpose of negotiating a modification or amendment to the collective-bargain-
ing agreement.
Respondent's defense to the charge of an unlawful failure to bargain is predicated
on its contention that the Union did not represent a majority of the employees.
As far as the record shows, the only knowledge that Respondent had of the possible
lack of union majority is reflected in the petition of May 11, 1961, which Respondent
caused to be prepared and signed in violation of the Act. Respondent cannot rely on
this petition to prove a lack of majority since Respondent itself unlawfully caused
its preparation and signing. Accordingly, it is found that at all times material
herein, the Union represented a majority of the employees in the unit set forth
above, as the Union clearly represented a majority until May 11, 1961, and also
thereafter because of the circumstances attending the preparation and signing of the
petition of May 11.
The collective-bargaining agreement also contains a provision which the parties
incorporated as part of the collective-bargaining process and which relates to a con-
dition of employment, one of the basic subjects of collective bargaining, which the
Respondent and Union recognized as such by including it in their agreement. It
provides:
ARTICLE XIII-DISCHARGES
Written notice of alleged faulty workmanship or misconduct shall be given
by the employer to the employee involved, and a copy mailed to the Union.
If the employee considers the notice to be unjustified, he may file a grievance,
which will then be processed under the Grievance Procedure. If no grievance
is filed within five (5) working days, the notice becomes a matter of record.
It is reasonably inferable from the record in this matter that neither Wolford
nor the Union received the required written notice. Thus it is apparent that
here too Respondent acted in derogation of its collective-bargaining obligation in
discharging Wolford without giving the required written notice to the Union and to
Wolford.
II. THE REMEDY
In addition to the conventional recommendations for remedying the unfair labor
practices which this record reflects that Respondent has committed, it will also be
recommended that Respondent offer reinstatement to his former or substantially
equivalent position to Orwell Wolford, together with any loss of pay which Wolford
may have sustained by reason of Respondent's unfair labor practices. In making
this recommendation, consideration is given to the fact that the purpose of the pro-
HOYT MOTOR COMPANY, INC. 1049
vision of the collective-bargaining agreement which required written notice to both
the employee and the Union reasonably contemplated that such notice might alert
the business representative to take up the question of an impending discharge of an
employee with the employer and, in some instances, might eventuate in a removal
of the reason for the employer's desire to discharge an employee. If the employer
reduced his complaints to writing, this action might also serve to better communicate
with the employee and assist him in overcoming any poor work habits he may have.
The facts of this case suggest that the only effective remedial action would be to
restore Wolford to his former or substantially equivalent position together with
reimbursement for any wage loss in accordance with the formula in F. W. Wool-
worth Company, 90 NLRB 289. Otherwise, Respondent would be left in a position
of profiting by its unfair labor practice and the purpose of the provision requiring
written notice would have been frustrated by Respondent?
The Board has expressed a policy in some cases that it will "refuse to police col-
lective bargaining agreements." United Telephone Company of the West, et al.
112 NLRB 779, 783; and Morton Salt Company 1.19 NLRB 1402. Section 301(a)
of the Act permits suits for violation of collective bargaining to be brought in
Federal district courts. This expression of Board policy and the existence of a sep-
arate forum for seeking relief from breaches of contract which are also unfair
labor practices does not prevent the Board from finding acts to be unfair labor prac-
tices, where they are also breaches of a collective-bargaining agreement. This is
particularly true in a case such as the one at hand, where the contractual provisions
have a clear meaning and Respondent's violations are equally clear.
The wording of section 10(a) of the Act makes it clear that the Board's declina-
tion to determine a question involving contractual provisions is discretionary and
not based on a lack of jurisdiction.5
The United Telephone and Morton Salt cases are examples where there were
substantial questions of contract interpretation, and the Board refused to interpret
the contract preliminary to making a resolution as to whether there was an unfair
labor practice. However, in The Standard Oil Company (an Ohio Corporation),
92 NLRB 227, the Board held that it was the proper forum for determining whether
rights under a collective-bargaining contract had been waived and then proceeded
to make a finding of an unlawful failure to bargain.
In the case at hand the refusal of Respondent to meet with the Union, a clear
breach of the collective-bargaining agreement, is also action that repudiates the
very essence of the collective-bargaining process. Respondent's failure to give Wol-
ford and the Union written reasons for his discharge is conduct that also frustrates
collective bargaining, as well as being a breach of contract. To further illustrate
that the mere existence of a contractual provision, the breach of which is also an
unfair labor practice, does not operate logically to preclude the Board from deter-
mining the existence of an unfair labor practice, reference is made to the collective-
bargaining agreement in this matter. It contains this provision: "No employee shall
be discharged or disciplined without good and sufficient cause." It would seem
inconceivable that the Board would regard this provision as a reason to avoid
a determination as to whether an employee was discriminatorily discharged in
violation of Section 8(a)(3) of the Act. No reason is suggested why the 8(a)(5)
violations should not be similarly treated.
Because of the intensity of Respondent's antiunion feeling, exhibited by this record,
and the likelihood of the commossion of unfair labor practices in the future, a
broad cease-and-desist order will be recommended in this case.
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices proscribed by Section 8 (a)( I).
2. By failing to respond to the Union's request for a meeting to modify or amend
the existing collective-bargaining agreement and by failing to meet with the Union
for such purpose, and by discharging Orwell Wolford without giving written notice
* The Board in two recent cases In providing an appropriate remedy for violation of
Section 8(a) (5) has ordered employers to restore the status quo ante by paying to em-
ployees the amount of lost wages caused by unlawful unilateral action Marcus Trucking
Company, Inc, 126 NLRB 1080, and Cascade Employers Associatson, Inc., 126 NLRB 1014.
B Section 10(a) of the Act provides: "The Board is empowered, as hereinafter provided,
to prevent any person from engaging In any unfair labor practice (listed In section 8)
affecting commerce. This power shall not be affected by any other means of adjustment or
11prevention that has been or may be established by agreement, law, or otherwise:.. . .
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to him or to the Union , Respondent has engaged in unfair labor practices proscribed
by Section ,8(a) (5) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
the Act.
4. The Respondent has not violated Section 8 (a)(3) of the Act by discharging
Orwell Wolford.
[Recommendations omitted from publication.]
W. L. Rives Company and Sheet Metal Workers ' International
Association, AFL-CIO
W. L. Rives Company and W-M Corporation and Sheet Metal
Workers' International Association , AFL-CIO and Local 234,
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, Party to the Contract . Cases Nos. 1h-CA-
1707, 12-CA-1743, and 12-CA-1766. April 13, 1962
DECISION AND ORDER
On October 10, 1961, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that W. L. Rives Company and W-M Corporation 1 had not
engaged in and were not engaging in certain unfair labor practices
and recommending that the complaint be dismissed, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
both the General Counsel and Rives filed exceptions to the Inter-
mediate Report, and the General Counsel filed a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in the
case, and finds merit in exceptions filed by the General Counsel to the
Intermediate Report. Accordingly, the Board adopts only those
findings, conclusions, and recommendations of the Trial Examiner
consistent herewith.
Rives is engaged in the manufacture and assembling of stainless
steel pipe at its plant in Jacksonville, Florida. A large part of the
potential market for this pipe is in the construction industry. Prior
to 1957, Rives sold much of its made-to-order assembled pipe to
plumbing and general contractors whose employees, usually repre-
sented by the Pipefitters,2 installed the pipe at the jobsite; Rives it-
self does no installation. The contracts of these customers almost
x Herein separately called Rives and W-M, respectively, and collectively referred to as
the Respondent.
2 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada.
136 NLRB No. 84.