Petition for Writ of Certiorari — Atlas Engine Works, Inc. v. NLRB

Supreme Court brief1969

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A. The factual setting--_------- Seog alae 3

B. The unfair labor practice findings--- -__-- 8.

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Appendix ee aaa 29a

CITATIONS

Cases:

Fibreboard in v. N dtional Relations Board,

3 F&I ee 14

Franks Bros. v. National Labor Relations Board,

i ee ee 11,.12, 14

Intl - Ladies’ Garment Workers’ Union v.

National Labor Reldtions Board, 366 U.S.

a ae en

S POD pe

Medo Photo Supply Corp. -v. National Labor

Relations Board, 321 U.S. 678--~--------- 10,11.

National. Labor Relations Board v. Adhesive

_ Products Corp., 281 F. 2d 89_____-2------- 13

National Labor Relations-Board v. Better Val- '

U Stores, 5 & Spee yen ae

National Labor Relations Board v. Flomattc |

Gare.. SST F. Te Peck coisas teense 13

3 ‘ (1)

i tia

taaitatiale cin elite

Cases—Continued

National Labor ‘Relations Board v. I ntl Union

Progressive Mine Workers, 375 U.S. 396, re- — page *

versing 319 F, 2d 428________- pce 12

National Labor Relations Board v. Katz, 369

U. S. i SPEARS Waoeeary, PR eae 12

News Shipbiding Dry Dock Co., 308 U.S.

ice ina id, pA deen beatae ies . 14

National Labor Relations Board v. Strong, 393

. ee EEE CS EAS at a, 15

N ational Licorice Cé* v. National Labor Rela-

tions Board, 309 U.S. 3502___-_-.2_.-___- 14

' Phelps-Dodge Corp. v. National mentions

Board, 313 U.S. 177.......-:-.-----: 14

Virginia Electric Co. v. National Labor Rela-

tions Board, 319 U.S. 533_..__-___- seus 14, 15

Statutes: | if

National Labor Relations Act, as amended -

(61 Stat. 136, 73 Stat. 519, 2 US.C. 151,

et seq.) .

; ME IEE a. 2 cc cc dnwaceacaucoucedon 8,9

Section S(a)@)..... 2... nnccecencs. . 89

Section 8(a)(5)_......-.-_---- aohaeh 2,9

Section 10(c)

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In the Supreme Gout of the nite _—

OctoseR TERM, 1968

"No. —

NatyonaL LaBor RELATIONS BOARD, PETITIONER

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THR PEMBEK O1l CoRPORATION

PETITION FOR A-WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

The Solicitor General, on behalf of the National

Labor Relations Board, petitions for a writ of cer- -

tiorari to review the judgment of the United States

Court of Appeals for the Second Circuit in this case

insofar as it denied enforcement to part of the Board’s

remedial order. ,

OPINIONS BELOW

‘The opinion of the court of appeals (App. A, infra, °

pp. la-19a) is reported at 404 F. 2d 105. The decision

and order of the Board (App. ©, infra, pp. 29a-79a), |

are reported at 165 NLRB No. 51. .

. JURISDICTION

The judgment of the court of appeals (App. B,

infra, pp. 20a-26a), was entered on December 19, 1968.

(1)

:. «

The Board’s timely petition for rehearing en bane was:

denied on January,16, 1969 (App. B, infra, pp. 27a-

28a). The jusisdiction of this Court is invoked under

. 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the court of appeals properly concluded

that an order directing an employer to bargain with

the union selected by a majority of its employees was

an inappropriate remedy although the court acknowl- |

edged that there was an unlawful refusal to bargain

and other unfair labor practices that had dissipated the

union’s support.

STATUTE INVOLVED

The: relevant provisions of the National Labor

Relations Act (61 Stat. 136, 73 Stat. 519, 29 U.S.C.

151, et seq.) are as follows:

Sec. 8(a) It shall be an unfair labor practice for .

an employer—

* * % + * *

(5) to refuse to bargain collectively with the repre-

sentatives of his employees, subject to the provisions

of section 9(a).

ae * + * oa

Sec. 10 * * *

mony_taken the Board shall be of the opinion that

an named in the complaint has engaged in

or is engaging in any such unfair labor practice, then .

the Board shall ‘state its findings of fact and shall

issue and cause to be served on such person an order

requiring such person to cease’ and desist from such

unfair labor practice, and to take such affirmative

action including reinstatement of employees with or

without back pay, as will effectuate the policies of

this Act: * * *.

ee STATEMENT

The court of appeals, on review, accepted the

Board’s view of the factual setting of this case. It

also sustained the Board’s unfair labor practice find-

_ ings. It disagreed, however, regarding the appropriate

remedy, and this questian of remedy is the sole subject

of this petition. It is important, however, to state in

some detail the findings which set the context for the.

Board’s remedial determination.

A. THE FACTUAL SETTING

Pembek Oil Corporation sells fuel oil and installs

- and services oil burners (App. ©, infra, p. 33a).

_ For some time prior to August 1966, the Company’s

non-clerical employees had been dissatisfied with their

working conditions. Accordingly, when Carl Collins,

a known’ union member, was hired that month, his

fellow workers asked him to put them in touch with

‘a union representative (App. C, infra, pp. 38a-39a,

44a; Tr. 160, 245-246).' Collins phoned James Galullo,

Business Agent of the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, Local Union 67% Galullo provided literature

and authorization cards which Collins distributed

(App. C, infra, p. 39a; Tr. 163-165).

»“Tr.” refers to the transcript of the testimony at the Board °

hearing; “G.C. Exh.” and’“R. Exh.” refer to the exhibits in-

troduced at the hearing.

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By September 8, nine of the 15 non-clerical em-

ployees had signed union. authorization cards (App.

C, infra, p. 39a) ;* the next day, the Union wrote the

Company (App. C, infra, pp. 39a—40a; G.C. Exh. 2):

Teamsters Local Union No. 677, hereby noti-

fies you that a majority of your truck drivers,

oil burner servicemen and installers, mechanics,

and helpers have authorized our Union to act

as their collective bargaining representative

for the purpose of negotiating a labor contract

covering their wages, rates of pay, hours of

work, and other working conditions. |

I suggest that the first negotiating session

be held during the week beginning Sunday,

September 11, 1966, at a time which is con-

/ venient.

When Pembek’s President, Fred Knell, received the

Union’s letter, he retained an, attorney (Tr. 385-386),

and the next day the attorney wrote the Union (App.

C, infra, pp. 40a-41a; Tr. 386, G.C. Exh. 6):

~ * ee Ponbek’ Oil Corporation disputes

your claim that a majority of the truck drivers,

oil burner servicemen and installers, mechanics, »

and helpers employed by that Company ‘have

authorized you to act as their bargaining repre-

sentative.

In addition, the Pembek Oil Corporation dis-

putes the appropriateness of the unit. ;

The Pembek Oil Corporation -will recognize

you only if you are certified as the hargain-

ing agent as a result of an election conducted

by the National Labor Relations Board. The

*In relevant part, each card stated that the signer authorized

the Union “to represent me for the purpose of collective bar-

gaining in respect to rates of pay, wages, hours of employment,

or other conditions of employment” (App. C, infra, p. 42a).

Company has received a copy of a petition

filed by you with the Board, known as Case

No. 1-RC-9178. [*] :

It is the Company’s opinion and position

that any cards signed by any of its employees

were cards signed solely for the purpose of ob-

taining a representation election conducted by

the National Labor Relations Board and, if not

for that purpose, were signed based upon mis-

representations by representatives of your .

Union as to the import, of these cards. _

Several hours after the Company received the

Union’s letter, union. activist Collins was discharged,

ostensibly because he had ‘‘made too, many mistakes

in computing the price of fuel oil’’ (App. C, infra, p.

44a: Tr. 175, 421-422). The following ‘evening, Collins

and about nine other employees met with Union Rep-

resentative Galullo at the Union headquarters (App.

C, infra, p. 48a; Tr. 101-102, 113). They discussed the .

' discharge and submitted a series of proposals regard-

ing conditions of employment which they wanted the

Union to discuss with the Company; a tenth employee

submitted a signed authorization card at that time

(App. C, infra, pp. 48a—49a, 41a; Tr. 102-105, 114-117,

164-165). Galullo outlined measures which might be

taken, including a strike, to procure Collins’ reinstate- _

ment and a contract (App. ©, infra, pp. 48a-49a; Tr.

103-105). The employees decided to go on strike the

next day for those purposes (App. C, infra, p. 49a; ‘Tr.

150, 240-241, 322-324). a

*The Union had filed a representation petition with the

Board on September 12; it was later withdrawn (App. C, infra,

p.40a; Tr. 101). |

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On September. 14, most. of the employees who had

attended the previous night’s meeting picketed the’ °

Company’s premises App. C, infra, p. 49a; Tr. 121,

307-309). Union and Company representatives met

with Federal and State mediators, but the Company

again. Fejected the Union’s request for recognition,

asserting that the unit was inappropriate (App. C,

infra, p. 41a; 144-147, 425). Early the next morning,

the strikers decided to return to work, apparently be-

cause two of the Company’s servicemen, members of

~ another union, did not honor the picket line (App. C,

— mnfre, p. 49a; Tr. 220-221, 234-235, 324), Employee

Carlson telephoned Pembek’s Seer etary, John Gra

to ask whether they ‘‘could come in and sit down a ‘ |

talk,” and Grant agreed to a meeting between the em-

ployees and. President Knell, a supervisory employee

and Grant (App. C, infra, P. 49a ; Tr. 221-222, 235,

427-428).

At the meeting, Carlson leche the em-

ployees were there to discuss their “gripes.” Knell

said that he ‘“‘had no idea things had gotten as bad

as. they were,’’ that maybe “this was a good thing: that

it did come out,” and. that “we could straighten some-

thing out by having this get together” (App. C, infra,

p. 00a; Tr. 222-223, 271, 428). The employees asked for

a pension plan, and for a posted pay scale. In addi-

tion, they spoke of sick and holiday pay (App. C,

infra, p. 50a; Tr. 271-272, 429). The Company repre-

sentatives indicated that they had already made in-

quiries of several insurance companies about pensions ;

Grant added that sick pay benefits would not be

granted where‘absence from employment was due to

sickness of a member of the employee’s family. (App.

C, infra, p. 49a; Tr. 272, 429.) The parties agreed to

meet again during the following week, and the em- -

ployees retired to “‘the back shop” to prepare pro-

posals (App. C, infra, p. 5la; Tr. 223-224, 273, 439).

Before the meeting had started, Knell had tried to

telephone the Company’s attorney for advice as to

what the Company ought to do under the circumstances

(App. ©, infra, p. 50a; Tr. 389). Counsel, away atthe

time, returned the call while the employees were work-

ing on prospective proposals in the back shop. He

forbade further meetings with the employees because,

as Knell put it, “having signed the cards, they are

considered members of the Union, and until this thing

is settled one way or the other, you cannot bargain with ~

them no how.” (App. ©, infra, p. 51a; Tr. 389-390.)

Grant and Knell-immediately told the employees that

upon the advice of counsel they would not meet with

them again. The employees pressed for the reason and

Grant explained that the Company’s attorney “‘has in-

formed us that you have signed cards, and you are

automatically represented by the Union,” and added

that they were now Union members (App. C, infra,

p. 5la; Tr. 429, 225, 389-390).

Later that day, the employees decided that they no

longer wanted the Union to represent them (App. ©,

infra, p. 51a; Tr. 227-229). Employee Emery phoned

_ Union Agent Galullo 3 d told him that the workers

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the Teamsters Union because they believed they were

misled into it’? and ‘‘didn’t want it to represent’’

them. (App. C, infra, p. 51a; Tr. 269, 122-123). The

employees, except Collins, then engaged a lawyer. On

October 10, the employees’ lawyer sent the Union

formal notices, dated October 5 and signed by each

| employee except Collins, advising that the employees

were rescinding the authorization previously given

the Union to represent them (App. C, infra, pp. 5la-

d2a; Tr. 134-136, 233, R. Exh: 7Ta-j).

B. THE UNFAIR LABOR PRACTICE FINDINGS

In this context, the Board made the following find-

ings, all of which were sustained by the court of ap-

peals: The Company had ischarged Collins because

of his union activity, in viola i of Sections 8(a) (3)

and (1) of the Act (App. C, in ra, pp. *}2a-56a). By

dealing directly with its employees and leading them to

expect that it would improve their conditions of em- .

ployment but for their union membership, the Com-

-pany had caused them to repudiate the Union in

further violation of Section 8(a)(1) (App. C, i :

pp. 99a-60a). Finally, when the Union requested recog-

nition, it possessed valid authorization cards from.a

majority of ue in an appropriate unit *; and,

“as shown |

the Company’ s refusal to bargain with the Union was

not made in good faith because of any doubt about

its majorify: status, and therefore violated the Com-

*The Examiner invalidated the card of employee Emery, but

this still left the U nion with a majority ( App. C, infra, p. 68a).

its Section 8(a)(3) and (1) violations, -

pany’s obligation td bargain with the Union under

Sections 8(a) (5) and Q) (App. C, infra, pp. 65a—-70a).

C. THE REMEDIAL ORDER

On the basis of the foregoing findings, the Board

ordered the Company to cease and desist from the

unfair labor practices found; to reinstate Collins with

back: pay; and to bargain with the Union upon its re-.

quest (App. ©, infra, pp. 74a-76a). The court of ap-—

peals, sustaining all of the Board’s findings, agreed

that the remedies ordered for the Section 8(a) (1) and

(3)- violations were appropriate, and ordered them en-

forced(App. A, infra, pp. 10a-13a). However, a major-

ity, Judge Hays dissenting, refused to enforce the

Board’s remedy for the Section 8(a) (5) violation. Des-

pite the findings that there was an obligation to. bargain

which had not been respected and that the repudiation :

_of the Union had been caused by the employer’ s unfair

labor: practices, the ‘majority expressed “considerable

doubt as to the employees’ continued desire to be repre-

sented by the Union”’ (App. A, infra, p. 16a). Because

of this doubt and its own feeling that “there has been

~ no-such display of flagrant hostility as would suggest

that a future election would not actually reflect the de-

- sires. of the employees,” (id. at 14a), it concluded that.

“the Board should have permitted the bargaining rep-

_ resentative to be defermined by an election held within

a reasonable time. A bargaining order in this case would

be excessively strong medicine for the ailmerit and un-

_ fair not only to the employer but to the employers as

well” (id. at 16a).

f 10 ; « <> :

: REASONS FOR GRANTING THE WRIT

-. 1. The issue presented in this case is implicit in

several cases recently argued and submitted to this

Court, National Labor Relations Board v. Gissel

Packing Co., Heck’s Inc., General Steel Products,

Inc., et al.; Food Store Employees Union v. Gissell

Packing Co. et al.; and The Sinclair Co. v. National

Labor Relations Board, Nos. 573, 691, 585, this Term.

In those cases, the issue is primarily whether the |

Board may find an unlawful refusal to bargain when

‘an employer declines to recognize and deal with a

union holding valid authorization cards from a major-

ity of an appropriate unit of its employees, and also

engages in substantial unfair labor practices. But if

there were indeed violations of Section 8(a) (5) in those

cases, this Court will have to consider further whether

bargaining orders were appropriate remedies. In two

of the submitted cases, Sinclair and General Steel

Products, the remedy issue is very. similar to that in

the instant case; there, elections held under the cloud

of unfair. weak practices showed that the unions’

strength | had been dissipated, and the employers claim

that the absence of a union majority—without regard

to its cause—makes a bargaining order ——

as a remedy. |

As shown in our iuheninetonn in those cases, this

Court has clearly endorsed use of the bargaining order

remedy where an employer’s unfair labor practices

have dissipated a union’s majority. ‘Thus, in Medo

Photo Supply Corp v. National Labor Relations

Board, 321 U.S. 678,.a majority of employees desig-

nated a union as their representative, and he: em-

ployer agreed to bargain with it. The employees then |

offered to abandon the union if their wages were —

raised. The employer agreed to the wage increase, the

employees withdrew from the union, and the employer

declined to-bargain further with the unior. On com-

plaint, the Board found that the revocations had not ~

occurred until the irregular negotiations with the em-

ployees, and that the subsequent refusal to bargain

with the union was therefore unlawful. This Court

sustained that conclusion because the entployees’ with-

drawal from the union had been encouraged by the

employer’s unlawful acts. |

Although the propriety of the ensuing bargaining

order was not challenged in. Medo, 321 U.S. at 687-688,

that issue was considered in Franks Bros. v. Nationa?

Labor Relations Board, 321 U.S. 702, decided the same

day. In Franks Bros., this Court made clear that such.

an order is appropriate if a union’s loss of majority

following an unlawful refusal to bargain is attributable —

to the employer’s unfair labor practices.

The Board might well think that, were it not

to adopt this type of remedy, but instead order

elections upon every claim that a-shift in union

membership had occurred during proceedings

occasioned by an employer’s wrongful refusal

to bargain, recalcitrant employers might be

able by continued opposition to union member-

ship indefinitely to postpone performance of

their statutory obligation. [321 U.S. at 705.]

Indeed, in such cases a bargaining order is not an un-

usual. remedy, ‘but the only adequate means ‘of redress-

ing the unfair labor practices committed. Nor does such

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an order “involve any injustice to employees. who may

wish to substitute for the particular union some other

bargaining agent or arrangement. For a Board order

which requires: an employer to bargain with a desig-

nated union is not intended to fix a permanent bar-

gaining relationship without regard to new situations

that may develop” (ibid.).° | il

~» It is immaterial that in the pending cases the

union’s loss of majority was shown by dn election.

whereas here (as in M edo) it was shown by notices

rescinding the authority previously given the union.

The ‘important feature in both cases is the Board’s

determination—sustained in the present case by the

court of appeals—that the loss was attributable to-em-

‘ployer unfair labor practices. The situation thus

brought about can be fully remedied in either situation

only by a bargaining order; for a new election would

necessarily reflect the altered. employee sentiment,

which is attributable, at least. in part, to ‘the em-

ployer’s unfair labor practices. Thus~the court of

appeals’ modification of the remedial order made its

- affirmance of the Board’s findings in this regard sub-

- stantially nugatory.

This case is one of ‘a number of cases in which the

Second Circuit has tended to weigh de novo the

severity of an employer’s unfair labor practices in

authorization card cases. In earlier casts that court has

reversed the Board’s findings of refusal, to bargain or

has declined to enforce a bargaining order based on

Section 8(a) (1) and (3) violations where it was its own

5 See also National Labor Relations Board v. Katz, 369 U.S.

736, 748, n. 16; National Labor Relations Board v. Int'l Union,

Progressive Mine Workers, 375 U.S. 396, summarily reversing

319 F. 2d 498 (C.A. 7). 7

13 a

judgment that the unfair labor practices were not fla-

grant. See, e.g., National Labor Relations Board V..

_ Adhesive Products Corp., 281 F. 2d 89, 91-92 (C.A.

2); National Laber Relations Board Vv. Flomatic

Corp., 347 F. 2d 74, 77-80 (C.A. 2) ; “National Labor

. Relations Board v. Better Val-U Stores, 401 F. 2d 491,

494-496 (C.A. 2). Here, that court affirmed refusal-to-

bargain findings but denied the Board’s order much of.

its force by eliminating the bargaining requirément,

and did so on the same general basis .of reevaluating

the employer’s culpability.’ As in the earlier cases, the

court of appeals’ action stemmed from its view that

since a bargaining order baséd on authorization cards

“dispenses with the necessity of an election, there is —

always the risk that a bargaining representative may

be imposed on employees, at least for a time, when

they no longer wish it to sana them’’ (App. A,

infra, p. 14a).

Thus, the basic justification for the court’s inter-

ference with the Board’s remedial choice in this case

is the same doubt regarding the Board’s handling of

‘authorization. cards which danimates the’ pending Sin-

clair and Gissel cases generally.If the Court sustains

the Board’s findings in those eases, it may accordingly

follow that the fundamental basis for the decision be-

low in this case is Fepudiated: And any decision. the

Court’reaches on the remedial question in Sinclair and

6° The court's, ev aluation of the factual circumstances of this

case is unw arranted: the Company’s meeting with the employ-

ees. which constituted an unfair labor practice, was not as

“innocent” as the court suggests; and the court overlooks the

Company's earlier coercive action in discharging Collins, the

instigator of the union activity.

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BOER: rpg apm LIE AN ONT Ser ope -

General Steel Products will be determinative of—or at

least illuminate—the issue in the present case.’ =

' « 2. The decision below is inconsistent with the gén-

eral principles which this Court has enunciated re-

-specting the scope of the Board’s remedial authority.

_ Section 10(c) of the Act empowers the Board to order

a pérson who has engaged in an unfair labor practice

“to take such affirmative action * *’* as will effectuate

the policies of this Act.” Under this provision, the

Board has power to enter an order which will restore

“the situation, as nearly as possible, to that which

‘ would have obtained but for the [unfair labor prac-

tices].’’ Phelps-Dodge Corp. v. National Labor Rela-

tions Board, 313 U.S. 177, 194. This Court has con-

tinually emphasized the breadth of the Board’s au-

thority to mold a remedy to fit a particular violation |

and undo its ill effects.° What the Board ordains will

not be set aside “unless it can be ela gp the or-—

_ der is a patent attempt to achieve s other than

those which can fairly be said to effectuate the policies

of the Act.” Fibreboard Corp. v. National Labor Re-

7If the pending cases were to be’ decided adversely to the

Board, there would, of course, be no occasion for further re-

view here, since here the basic refusal-to-bargain finding was

premised upon a union majority as shown by authorization

cards.

8 See e.g., F ibreboard Corp. v. National Labor Relations Board,

379.U.S. 208, 216; National Labor Relations Board vy. Newport

News Shipbuilding & Dry Dock Co., 308 U.S. 241, 250; National

Licorice Co. y. National Labor Rilstions Board, 309 U.S. 350,

- 361-366 ; Virginia Electric Co. v. National Labor Relations Board,

319 U.S. 533, 538-544; Int’l Ladies’ Garment Workers’ Union

~v. National Labor Relations Board, 366 U.S. 731, 735, 736, 739-

740; Franks Bros., supra.

lations Board, 379 U.S. .208, 216, quoting from Vir-

ginia Electric Co. v. National Labor Relations Board,

319 U.S. 533, 540.

If the refusal-to-bargain violation was properly

found in this case, it can. hardly be said that the relief

ordered by the Board sought to achieve improper

ends. As shown, a bargaining order is the usual and

perhaps only adequate remedy. for’such a violation.

As in National Labor Relations Board v. Strong, 393

U.S. 357, and National Labor Relations Board v. The

Kroger Co., petition for a writ of certiorari pending,

No. 1130, this Term, the court’s refusal to enforce the

Board’s remedy despite its agreement as to the unfair

labor practices committed is a serious departure from

' settled principles governing the Board’s authority to

devise appropriate remedies for unfair labor practices.

CONCLUSION

Because this Court’s decisions in the Sinclair and

Gissel cases will undoubtedly affect the questions pre-

sented here, we urge that this case be held pending

decision in those cases, and that the petition for a writ

of certiorari be granted if the Board is upheld in Sin-

clair.and Gissel. In that event, we suggest that the case

would be an appropriate one for summary reversal or

for vacation and remand for further consideration.

Alternatively, it would be appropriate that the case be

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argued with respect to the appropriate scope of court

of appeals review of Board remedial orders.

Respectfully submitted.

ERWIN N. GRISWOLD,,

| Solicitor General.

ARNOLD ORDMAN, |

General Counsel,

Dominick L. MANOLI,

Associate General Counsel,

Norton J. CoME, |

Assistant- General -Counsel,.

Linpa SHER,

Attorney,

National Labor Relations Board.

APRIL - 1969.

APPENDIX A

In the ‘United States Court of Appeals

for the Second Circuit

No. I a il Term, | 1968

(Argued October 30, 1968 Decided November 27,

1968)

Docket No. 32120

NatTionaL Lasor RELATIONS BoarD, PETITIONER

v. ‘

THE PEMBECK OIL CORPORATION, RESPONDENT

Before LumBarb, Chief Judge, Kavrman and Hays,

Circuit Judges

Petition by the National Labor Relations Board

for enforcement of its order requiring an employer

to cease and desist from any further violations of

§8(a)(1) and (5) ef the National Labor Relations

Act, to reimburse an employee it had discharged in

violation of §8(a)(3) and subsequently offered to

rehire for any wages lost as a result of the discrimi- .

nation against him, to recognize and bargain with the

Union, and to post the customary, notices. Enforce-

ment granted as to all portions of the order except

‘that requiring direct bargaining, as to which the-

Board’s order is modified.

Wiuiam J. Avrutis (Arnold Or dman; General

Counsel, Dominick L. Manoli, Associate General Coun-

(la)

SERIE LIT PS Hae te:

sel, Marcel Mallet-Prevost, Assistant General Counsel,

Elliot Moore, Attorney), for Petitioner. .

Wuuiam J. Larkin, II (Waterbury, Conn.), for

Respondent.

KavurMan, Circuit Judge. This case comes before us

on petition of the National Labor Relations Board

for enforcement of its order against The Pembeck

Oil Corporation (hereinafter referred to as the Com-

pany). The Trial Examiner found that the Com-

pany had violated § 8(a)(1), (3) and (5) of the Na-

- tional Labor Relations Act by 1) refusing to bargain

with the International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America,

Local Union -No. 677 (hereinafter referred to-as the

Union), 2) bargaining directly with its employees,

3) causing them to repudiate the Union, and 4) dis-

eriminatorily discharging Collins, one of its employees,

for union activity. Accordingly, he recommended that

the Company be ordered to cease and desist from

further violations of § 8(a)(1) and (5), to reimburse

Collins for the loss of wages he suffered as a result of

the discrimination” and to bargain with the Union.

The Board adopted the Trial Examiner’s findings and

_ recommendations in their entirety. Since we believe,

‘upon review of the record, that thére is substantial

evidence to support these findings, we grant enforce-

ment of the Board’s order, except that, for reasons _

discussed below, we modify that portion of the order

requiring the Company to bargain with -the Union.

1 Pembeck is a Connecticut corporation engaged in commerce

within - the meaning of the Act, and the alleged unfair labor

practices occurred in Meriden, Connecticut, its principal place -

of business, all within the jurisdiction of this court.

Since the Company had voluntarily offered to rehire Collins,

there was no need for an order directing his. reinstatement.

3a.

The Company is engaged in the business of selling

fuel oil, and installing-and servicing oil burners in

homes and commercial establishments. In the opera-

tion of its business the Company employs servicemen

who install, service, and repair industyial and domes-

tic oil arate 's, truck drivers who deliver fuel oil to its

customers, sootmen who clean oil burners and related

equipment, and a maintenance man who works n th

Company’ s warehouse keeping the shop clean and tak-

ing care of the stock.’ At the time of the events in

question, the Company employed 15 such workmen:

_ eight servicemen, two drivers, four sootmen and one

maintenance man. Two of the servicemen performed

only domestic work, while the other six were engaged

in both industrial and domestic .work; additionally,

two of these six also installed oil- burners in buildings

under construction, work which the Tria] Examiner

found occupied their time for only about six weeks out

of a year. During the summer when few oil deliveries

were made, the drivers were engaged primarily in

assisting the servicemen, a task also performed on

rare occasiens by the sootmen. All these employees are

hourly rated and carry timecards, and, except for the

maintenance man, all wear the same uniform. In addi-

tion, all are covered by a Company insurance program,

have the same vacation and sick privileges, and share

the same shop facilities. -

Prior to the events in question, no labor organiza-

tion had represented all of the Company’s employees.

The two servicemen who install oil burners in build-

‘ings under construction were, however, covered by a

collective bargaining contract between the Company

*In addition, the Company employs several office clerks, but

POR ORIEL

they are not in any way affected by the events here in question. — Z

and\ Local Union No. 21, United Association of Jour:

neymen: and Apprentices of the Plumbing and Pipe

Fitting Industry (hereinafter referred to as the

Plumbers Union). This contract applied only. when

these two employees were actually performing the

special work of installing oil burners in buildings

under construction. When they were engaged in their ©

usual tasks as servicemen, it was not operative except

that it permitted them to participate ip a health, wel-

fare, and pension program provided for in the

agreement.

The. company supervisors are its president, Fred J.

Knell, secretary John W. Grant, dispatcher Robert J.

Thuotte, and sales engineer Arthur Moskaluk. Knell

oversees the entire operation. Moskaluk assigns work

to all servicemen, assists them with technical problems,

and oceasionally directs the work of the sootmen, driv-

ers and maintenance man, although these employees

are normally supervised by Thuotte and Grant.

The events giving rise to the unfair labor practices

here in question began on August 18, 1966, when the

Company hired Carl Collins as a fuel delivery driver.

According to Collins’ testimony before the Trial Ex-

aminer, at the time he was hired he was told about the

Company’s’ ‘‘job training,” in reference to which

Thuotte said that Collins would “go out with akother

man for a while to learn the job and that (the Com-

pany) invested approximately a year in a man before

he would become efficient like they like their employees

to be.” During this interview Collins was wearing a

union button, and he. informed his interviewers that

he had been a union member.

Shortly after August 19, when Collins iaseanenl

his employment, other employees expressed to him dis-

satisfaction with their working conditions, and, know-

ing that he was a union member, requested that he

contact someone to whom they could talk about join-

ing a union. Collins called James Galullo, the Union’s

- Business Agent, who sent authorization cards and lit-

erature to the employees and additional authorization

eards to Collins. Collins distributed these cards among

the employees and also.discussed with them, individ-

ually and in groups, the benefits they might derive

from representation by the Union.

By September 8, nine of the fifteen employees had

signed authorization cards.‘ The following day, the

Union sent'a letter to the Company stating: |

“Teamsters Local Union No. 677, hereby no-

‘tifies you that a majority of your truck drivers,

oil burner servicemen. and installers, mechanics,

and helpers have authoized our Union to act as-

their representative for the purpose of nego-

tiating ‘a labor contract covering their wages,

rates of pay, hours of work, and other a

. conditions.

“T suggest that the first negotiating session

be held during the week beginning Sunday, Sep-

tember 11, 1966, at a time which is convenient.”

Knell received this letter the morning of Septem-

ber 12.° According to his testimony, he was taken by

_ surprise .and “overwhelmed” by its contents; and’ he

immediately retained an attorney, who replied to the

Union the following day, saying:

«* * * The Pembeck Oil Corporation dis-

putes. your claim that a majority of the truck

drivers, oil burner servicemen and installers,

mechanics, and helpers employed by that Com-.

* These cards, stated: “I hereby authorize the International

Brotherhood of Teamsters, Chauffeurs, Warehousemen: and Help-

ers of America to represent’ me for the purpose of collective bar-

gaining in respect to rates of pay, wages, hours of employment,

or other conditions of employment * *: *.”

5 On this day the Union filed a representation petition, which

was later withdrawn without prejudice.

i a le A cel

Cn ee ee $3.

pany have authorized you to act as their

bargaining representative.

“In addition,-the Pembeck. Oil. Corporation

disputes the. appropriateness of the unit.

“The Pembeck O11 Corporation will recognize

you only if you are certified as-the bargaining

agent as a result of an election conducted by the -

Natidal Labor Relations Board * * *.

“It is the Company’s opinion and position

that any cards signed by any of its employees

were cards signed solely for the purpose of ob-

taining a representation election conducted by

the National Labor Relations Board and, if not

for that purpose,. were signed based upon mis-

representations by representatives of your

Union as to the import of these cards.” _

On the same day that the Company received the

Union’s letter requesting recognition and bargaining,

it discharged Collins. At the time, Grant explained to

Collins as the reason for his discharge that he had

made “too many mistakes in computing the price of

fuel oil.” And later that day Grant gave Collins a

Connecticut Employment. Security Division form in

which, under the caption “Reason for Unemploy-

-ment,’’ he had specified “Inability to Figure or Com-

pute Prices.” Before the Trial Examiner, both Thuotte

and Grant stated that they had made the decision to

fire Collins jointly, after conferring together, but they

gave somewhat different explanations for the dis-

charge. Thus, Thuotte testified that their decision was |

based on Collins’ errors in computing oil prices and his -

failure to deliver oil to a customer at the specified

time, while Grant added to these reasons Collins’ spill-

age of oil on a customer’s cellar floor, delivery of oil to

a customer who did not order any, and giving a cus-

tomer an invoice intended for another.

On the following evening, about 10 of the Com-

pany’s employees and Collins met with Galullo at the

Union’s headquarters, where they discussed Collins’

discharge and the Company’s refusal to recognize the

Union. In addition, the employees submitted to Gal-

ullo a list of #enefits which they expected the Union

to obtain for them through negotiation with the Com-

pany. It was decided at this meeting that the employ-

ees should strike for the purpase of securing Collins’ .

reinstatement and re a collective bargaining

contract.

Accordingly, the next day, ictal 14, most of

the employees who had attended the meeting the pre-

vious evening. strick and picketed the Company's

- premises. Early the following morning, however, the

a employees abandoned the strike, apparently because

the two servicemen employed by the Company who -~

were members of the Plumbers Union had not honored

their picket line during the previous day. Then one of

the employees, Carlson, acting for all the striking -

employees, telephoned Grant to ask whether. they

*‘could come in and sit down and talk.” When Grant

agree®, the employees went to the Company premises,

wher@they met with Knell, Thuotte, and Grant.

Carlson initiated the discussion by saying that the ~

employees were there to discuss their ‘“‘gripes,” to .

which Knell replied “that he had no idea.things had

_ gotten as bad as they were * * * that this was a good

‘thing that it did come out * * * and that * * * we

could straighten something out by having this get

together.’? Among the subjects which the employees

then mentioned were the lack of a pension plan, their

desire for a posted pay scale, and their concern-about

sick and holiday pay. No specific proposals were

presented by either side, and no agreement was

reached, except that they would all meet again during

the following week. The employees then withdrew to

PEERS eRe 3

7 as

‘

ET en meme H ORONO RE rE me

' 8a

_the Company’ s shop to prepare specific proposals to

present at the next meeting.

Before the meeting had started, Knell had called

the Company’s attorney for advice as to what action

the Company should take under the circumstances, but

he had been unable to reach him. Counsel returned

the call while the employees were conferring in the

_ shop, and upon learning of the morning’s events, he

informed Knell that the Company, was not permitted

to meet further with. the employees since they had

signed authorization ecards and accordingly were con-

sidered members of the Union. Grant and Knell _.

promptly told the employees that, upon the advice of

their attdimey, they could not meet with them further,

explaining that their attorney had informed them

‘‘vou have signed cards, and you are automatically |

represented by the Union.”’

- Later the same day, the employees decided that they

no longer wished. the Union to represent them. Sub-

sequently they engaged.an attorney of their own choice

who under their instruction, sent formal notices in-

forming the Union that the employees rescinded the

authority they had previously given the Union to

represent chem... _ |

bene first to the dineiia violation of § 8(a) (3),

the Trial Examiner found, and the Board agreed, that

the Company had been motivated by antiunion con-

siderations in discharging Collins. The Company con-

tends rather that it releaséd Collins because of the

many serious mistakes he made during the short term

of his employment. Even if we view the. facts most .

charitably toward Collins, we must agree that he had

' displayed no small ineptitude in the relatively short

| per iod he was on aad job. From the Company’s un-

—_,

’

disputed evidence, it appears that Collins made num-

erous blunders in.computing the invoices for the oil

he delivered,. pumped oil on the cellar floor of one

~ customer, spilled oil on the lawn of another, and failed

to make an oil delivery at the scheduled time. Never-

_ theless, the rule is well established that although ample

\ valid grounds may exist for the discharge of. an em-

mee that discharge will violate § 8(a) (3) if it. was

t_motivated, even partially, by the employee’s

pale actiwity. N.L.R.B. v. Milco, Inc., 388 F. 2d 133

(2d ay ; N.L.R.B. v. D’Armigene, Inc., 353 F.

2d 406. (2d Cir. 1965); N.L.R.B. v. Great Eastern |

Color Lithographic Corp., 309 F. 2d 352 (2d Cir.

1962), cert. denied, 373 U.S. 950 (1963). Thus, where

there are legitimate reasons for the discharge of an

employee, the question is whether those were in fact

the only grounds for the dismissal, or whether they

were “‘put forth as a mere pretext to justify an im-:

permissible discharge.’’. N. hs R.B. v. Milco, Inc., supra

at 138.

In this instance, the Trial Examiner relied on sev-

eral factors in determining that the Company dis-

missed Collins not ‘for his inadequate performance on

the job, but because of his leadership in organizing

the Company's employees. First, he noted that Collins

was told at the time he was hired that the Company

did not expect him to become proficient at his work

for approximately a year, and the Examiner reason-

. ably inferred from this that the nature of the job

Was such that the Company must have expected a new

employee such as Collins to make mistakes. Second,

he ohserved that although Collins’ initial errors came

to the Company’s attention in the first week of his

employment, no. action was taken until two weeks

later, at which time, and within hours after Knell re-

ceived the Union’s request for recognition, Collins was

lilaacaael |

” a

PE GEOL CS OOF TART MO oes tg eD mary

ON Bee

. ahead tie ia eins hideenie a oneal ede ete

’ 10a

summarily discharged. And finally, the Trial Exam-

iner found his conclusion.that the reason for thé dis- -

aperee asserted by the Company was merely a pretext

buttressed by the. fact that Grant and Thuotte gave

somewhat. divergent, if not actually conflicting ree SONS

for their joint action.

‘Although these factors dothot od mea to -

the conclusion. reached by the Trial Exarrmer and .*

the Board, they do offer it substantial support. See

N.L.R.B. v. Great Eastern Color Lithographic Corp.,

supra; N.L.R.B. v. United Mineral & Chemical Corp., -

391 F. 2d 829 (2d Cir.-1968). The Company, neverthe-

less, argues that we should reverse the Board because

there “is no proof that it actually knew. of Collins’

union: activities prior to his discharge. But although

such knowledge is a necessary ingredient of a viola-

tion of § 8(a) (3), it need not be established hy direct

_. evidence; inferences may be drawn from the surround-,

9 ‘ing circumstances. In view of the evidence that, 1) the-

ib : Company knew Collins had been a union ember when

_ it hired him, 2) there were only a small number of em-

ployees in the Company’s plant and most of Collins’

activity .on behalf of the Union was conducted in the

plant during working hours, N.L.R.B. v. Joseph An- ,

tell, Inc., 358 F.2d 880 (1st Cir. 1966) (the “Small —

Plant Doctrine”), and 3) Collins’ discharge oceurred

abruptly within hours after the Company received the

Union’s request for recognifion, we believe there was

substantial evidence. to justify the conclusion that the

Company had knowledge of Collins’ union activity.

Accordingly, we affirm the finding that Collins’ dis-

charge was in violation of § 8(a) (3).

III

‘With respect to the other alleged unfair labor prac-

tices, the Trial Examiner found, and the Board

tia

agreed, that the ; ieee had visinted § 8(a (5) by

refusing to bargain with the Union and then by bar-

gaining directly with the employees, and that it had .

violated § 8(a)(1) by ‘causing the employees to repu-

diate the Union. As to the first charge, the Company’s

response is that it was justified in refusing to bargain

with the Union because it believed the bargaining unit

which the Union claimed: to represent (all 15 of the

-employees) was inappropriaté and because it had a

good faith doubt that the Union had been authorized

by a majority of the employees to represent them. The .

Trial Examiner found, however, that in view of the

similarity of conditions under which all the employees

worked, and the overlapping of their functions and. .

supervision, all the employees shared a large measure ~

_ of community interest and hence constituted an 0-

priate unit for purposes of ‘collective bar ing.

United. Aircraft Corp. (Hamilton Standard Div.) v.

_N.L.R.B., 333 F. 2d 819 (2d Cir. 1964), cert. denied

380 U.S. 910 (1965). Moreover, the Trial Examiner

reasoned that the coverage of the two servicemen in ..

the contract between the Company. and the Plumbers

Union did not preclude their inclusion in the bargain-

ing unit, since they were dual-function employees, and

the Plumbers Union contract was operative oni fo

the short period during the year when they were doing

the specialized work of installing oil burners in build-

ings under construction. Since we find this result well

within the Board’s discretion, we-see no reason to up- '

set the determination that the bargaining unit chosen

by the Union was an.appropriate one. N.L.R.B. v.

Sunrise Lumber d& Trim Corp., 241 F. 2d 620 (2d

.Cir.), cert. denied 355 U.S. 818 (1957).

Furthermore, the law is settled that a sincere belief

that a bargaining unit chosen by the union is im- -

proper does not constitute a defense to a violation

12a,

- of §8(a)(5) where that unit is in fact an appropriate

one. United Aircraft Corp. (Hamilton Standard Div.)

v. N.L.R.B., supra; Florence Printing Co. v. N.L. e. B.,.

333 F. 2d 289 (4th, Cir. 1964).

The Company . contends, moreover, that me em-

ployees were: induced to sign the Union authorization

eard isrepresentations as to their purpose and

hence such cards should not be considered evidence of

a Union majority. However, the Trial Examiner

found, and his findings are supported by the evidence,

that the cards unequivocally authorized the Union to

represent those who signed for the purpose of col-

lective bargaining, and that no misrepresentations.

were made by Collins or any other Union’ representa-

tive to the employees at the time they. signed the ™

‘eards.® The -only evidence offered by the Company in

support of its contention was the testimony ¢ of several

employees that they were under the impression the

cards were intended for a purpose other than au-

thorizing the Union te-represent-them._We_hbelieve.

that the Trial Examiner was correct in concluding

that where an authorization card-is clear on its face, |

and union representatives have made no misrepresen-

tations with respect to it, an employee’s thoughts as

to what he believed was the: purpose to be served by .

the card cannot be used to discredit a majority the

Union has legitimately achieved. Joy Silk Mills, Inc.

v. N.L.R.B., 185 F. 2d 732, 743 (D.C. Cir. 1950), cert.

denied, 341 U.S. 914 (1951). Furthermore, we believe

-the Trial Examiner’s finding that the Company’s dis-

charge of Collins and commencément and abrupt ter-

6The Trial Examiner did find that Collins misrepresented.

to one of the employees that he was the only one who had not

signed a card wher in fact at the time only six of the fifteen

had done so. For this reason, he discounted Emery’s card in

ascertaining the Union’s majority status.

indicated the Company’s bad. faith in r€fusing to. ~

PREY ee : ae

shnabionn of. direct —se with the employees

bargain is adequately supported by the evidence and

should be affirmed. Additionally, since the Union was

“authorized by a majority of the employees in ah ap-

propriate bargaining unit to present them, the

Company’s direct bargaining" h the employees |

constituted. an independent Violation of § 8(a’) (5).

‘ Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678

(1944). |

Finally, the Trial’ Hraniiner and Board found that

by first meeting directly with the employees and in-

stilling in them the expectation that it would improve

their conditions of.employment, and then-withdrawing

its offer for future negotiations because they had |

signed authorization cards, the Company had induced. _

_ the employees to repudiate the Union in: violation of

§ 8(a) (1). Although the evidence was not overwhelm-

ing that the Company’s: conduct was in fact the

cause of the employees’ decision-te-withdraw from the —

nion, the Board’s inference was reasonable, and in

view of its special qualifications to determine thé ef-

fects of such actions on the minds of the employees,

. N.L.R.B. v. Stow Manufacturing Co., 217 F. 2d 900

(2d Cir. 1954), cert. denied 348 U.S. "964 (1955), we

do not feel it appropriate to disturb their deter-

mination. é

IV .

/ Having found that the Company’s conduct de--

scribed above did violate §8 (a)(1) and (5), we are ©

left with the question whether the remedy ordered by

the Board—direct bargaining with the Union—is ap-

propriate in this case. It is well established - that the

Board may properly order an employer found to have

committed unfair labor practices to bargain directly

a l4a

‘with a Union which lost: its majoity subsequent to the

employer’s wroggful refusal to bargain with it. Franks

Bros. Co. v. N.L.R-B., 321 U.S. 702 (1944). Neverthe-

less, we are not “ummnindful’ of the potency of such a

. remedy. Since it dispenses with the necessity of an

election, \there is always the risk that a b g

- representative may be imposed on employees, akleast

for -a time, when they no longer wish ttto ‘represent.

them. N.L.R.B. v. Flomatic Corp.,.347 F. 2d 74 (2d°

. Cir. 1965) ; N.L,R.B. v. Better Vl-U. Stores of Mans- ©

field, Inc, F.2d —— (2d Cir, decided September

- 10, 1968). | .

‘A bargaining: order -is ‘clearly ppropriate ‘‘where

the employer’s conduct has been so flagrantly ‘hostile

to the organizing efforts of a union” that any future

election would be tainted by his past transgressions.

N.L.R.B. v. Flomatic Corp. supra at 78.1*But here

there has been ‘no such’ ‘display of flagrant hostility as

would suggest that a future election would not ac- |

tually reflect the desires of the employees. The conduct

of the Company to which the Board attributes the

‘employees’ defection from the Union was hardly vi-

tuperative; indeed it seems more the result of inad-

+ vertence than anything else. We recall that it was the

employees who. ‘initiated the direct bargaining, and

that- Knell had ‘attempted unsuccessfully to get legal

advice before: he began conferring with them but his

Counsel was not available. When his lawyer returned

_ his call and advised Knell that he could not confer

with the employees, he promptly terminated the talks. « -

Of course, these circumstances provide no defense to -

_ > the unfair labor practice charges, but they do suggest

that the climate generated by the Company’ s actions

-was not one of hostility and coercion. Moreover, we

would be especially hesitant to assume in this case

that the employees now desire to be represented by the

MR ee ee

—

lia :

Union in view of the fact that only a slim majority

of the employees ever signed the authorization ¢ards,'

and that.the employees had llbut a fleeting asso-

ciation with the Union.

We note the dissenting opinion stresses that the,

appropriateness of a bargaining order should stand or

fajl simply on which section of the Act has been vio-

lated without regard to or examination of the facts

which constituted the violation. Thus, it argues that: -

the fact. that in this case, unlike Flomatic and sed

Val-U Stores, the employer was found to have Wio- _ .

lated § 8(a)(5) should cause us to enforce the: der r

by rote. We suggest, however; that the finding of an

unlawful refusal to bargain does not ipso. facto and, in

all cases lead to the conclusion.that an order to bar-

gain must always be the only remedy. for ‘the ‘viola-

tion: And, we do not take action here, as the dissenting -

opinion. suggests, which is inconsistent with those cases,

subsequenit, to Flomatic in which‘we held.a bar gaining ~ |

order ‘to ‘be an appropriate--remedy for an 8(a)(5)- .

~ violation based upon a card majority. In each of those \ @

cases, the conduct on which the unfair labor practice y

‘ findlpgs were predicated was found. to be clearly hos-

_tile to, the union, and without question to have con- |

taminated the results of any future election. Indeed, ©

- Judge Hays speaking for the majority in Bryant

Chucktng Grinder Co. v. N.L.R.B., 389 F.2d 565, 568 ~

(2d: Cir. 1967) made it clear that the bargaining order oe

was appropriate (in § 8(a) (1) cases) because’ ‘the a,

employer deliberately destroyed the union’s maj jority. a

‘And, in examining those cases in which: the possible

applicability: of Flomatic was considered and then.re- .

jected we observe that in N.L.R.B. v. Consolidated

‘?The Trial Exaininer found that the Union represented. . “

eight of the employees on September 9, when itefirst requested

recognition. —

338- ‘s61—09 a3

, Aware

Me es

Rendering Co.,°386 F. 2d 699 (2d. Cir. 1967), the ~

employer. -was- found to have violated 8(a)(1) by .

threats-of reprisals, promises of benefits and coercive

: interrogation. of its employees, ‘all of which were for >

the purpose of causing ‘the Union’ Ss majority to be

dissipated and had the effect of making a free election

impossible; and in N.L.R.B. v. Gotham Shoe Mfg. Co., .

, 359 F. 2d 684 (2d-Cir. 1966), the employer similarly

- “engaged in a course of conduct, including-threats and .

promises, the purpose of which was to destroy the «.

Union’s majority; also in Irving Atr Chute Co. v. *

N.L.R.B., 350 F. 2d 176 (2d .Cir. 1965), the employer

- in addition to violating §§ 8(a) (1) and (2) by threat-

‘ ening its employees and attempting to form a com-

_,pany dominated bargaining: committee, had clearly

demonstrated the bad faith of its refusal to bargain

by refising even to examine-the. authorization cdrds

evidencing the union’s majority. Thus, contrary to our

dissenting brother’s. view, those cases are in no way

undercut by our holding on the. particular facts before _

us, Where the employer’s unfair labor: “ptactices have ,

been as minimal as we have indicated and its conduct

does not preclude a fair election in the future, and

particularly where there.is a,considerable doubt as to

the employees’ continued desire to. be ee by

the Union.

Accordingly, we helieve that the Board should have

permitted the hargaining representative to be deter-

mined by an election held within a reasonable e.

_A bargaining order in this case would be exces ively

strong medicine for the ailment and unfair not only |

_ to the employer but to the employees as well.

The Board’s order will be enforced in all respects

' except that the direction to bargain is modified as set

forth ene. '

\ ‘

ae ei 17a ,

Hays, Circuit Judge-(dissenting):

This case illustzates the particularly pernicious ef-

fect. of a case which erroneously decided in the first

place, i is gradually broadened to cover other situations

never contemplated by the first decision. — 7

In NIRB v. Flomatic Corporation, 347 F.. 2a 4 (24

Cir.. 1965), this court decided* that the Board could -

not, under the circumstances there presented, émploy

‘a bar gaining order to correct a situation in which ‘it

3 _ had found a Section 8(a) (1) violation. The relevant

circumstance on which the court principally relied was ©

_ that the Section 8(a) (1) violation was not “flagrant.”?

“There was no aggressive or planned campaign

aimed at dissipating union strength by resort to

_ threats, discharges or refusals of recognition.

On the. contrary, the Board found that the em-

5° ployer was never. asked to bargain, and there

was evidence that he even expressed a, willing-

ness to do-so if the employees ‘wanted union

representation.”’ 347 F. 2d¢at 78. —

The court went on-to say:

“TT }he courts have implicity recognized that the —

. bargaining order remedy should be applied with

restraint, and accordingly have enforced such

orders in cases of §§ 8(a)(2), 8(a)(3) and

“8(a)(5) violations, some, of which were eoupled

-with or included §8(a)(1) ’ transgressions.

[Citing cases.] Those cases involved more glar-

ing violations than the one found heré, and

where as in §*8(a) (5), an employer has refused -

to bargain, under circumstances in which he

was under a duty to do so because the union

enjoyed the status of exclusive. bargaining

agent,.the remedy may be thought uniquely

- appropriate. No court, however, -has held that -

a borderline, unaggravated §8 (a) (1) violation,

standing alone, occurring prior to an election,,

warr ‘anted a bar rgaining order. ”? 347 F. 2d-at 79.

_838-S61—69—_-4 ereeaes

ie ie

; ‘

P ~

Thus it is perfectly clear that Flomatic, as it, was

| originally decided, stood solely for the narrow proposi- —

_ tion that where there was only a non-flagrant. See-

tion 8{a)(1) violation, the Board could: not order

the employer to bargain.

Flomatic was first extendéd beyond its original ~

limits in NLRB v Petter Val-U Stores, slip op. 3431,

Docket No. 32009 (24 Cir September 10, 1968). In

that -case there was not only a violation of Section

8(a)(1) but also a violation of Section 8(a) (3) by

the discharge of an employee. In spite of the express

language of Flomatic as to “discharges’’ and “Section .

8(a\(3) ” violations, quoted above, the/ court said

[W]e feel compelled by the’ facts in our\case to fol-

low the majerity view in Flomatie.” —

| 6

: HO¥ever, i in Better Val-U the court said: ©§ | 4°’

“To require an employer to reinstate an em-°

- “ployee with back pay, to cease and desist from

further unfair labor practices, and to post ap-

propriate notices are proper and accepted

remedies -for violations of Sections 8(a) @)

and 8(a)(3). See, eg., NERB v. A. P.

Products Co., 316 F. 2d 899 (2. Cir. 1963) ..

NLRB v. Firedoor. Corp. of America, 291 Fr

2d 328 (2 Cir.),-cert. denied, 368 U.S. 921

(1961). Accordingly, to’ this extent: we grant

eiforcement of the Board’s ortler without

- further comment. However, ‘the Board’s im- |

»position of a barg rgaining otder where no vio-

lation of Sectién 8(a)(5) was found to have °

occurred ig a more troublesome ae 7: .*..

The controlling test in this circuit as to

- .whether a ‘bargaining order is appropriate in a

situation where there .was no finding of a re-

fusal to bargain by the employer in violation of

§8(a)(5) of the Act was announced by Judge

Anderson in NLEB v. Flomatic Corp., 347 F.

2d 74 (2 Cir..1965).” Slip opinion p. 3435.

Thus there can be no doubt that, although the _

Flomatic rule was extended by Betier Val-U to cover

a Section 8(a)(3) violation, there was no jntention

. to extend that case -to cover-a situation < the

Board had found a Section 8(a) (5) violation and was

upheld by the,court in such a finding. In fact in such

- case, t ¢ monn said in Flomatic, a bargaining order ;

‘may be ought urfiquely appropriate.’

During the period since Flomatic this court has on

- geveral occasions enforced. the’ Board’s bargaining”

orders on the basis of-a finding of Section 8(a) (5)

violations based on a card count, See NURB y, Big

Ben ‘Department Stores, Inc., 396 F. 24 78 (2d Cir.

1968) ; Bryant Chucking Grinder Co. v.. NLRB, 389

F.. 2d 565. (2d Cir.:-1967); NLZRB v. Consolidated ..

Rendering Co., 386 F. 2d 699 (2d Cir. 1967) ; NLRB v.

Divigard Baking Co., 367 F. 2d 389 (2d Cir. 1966) ;

NULRB-v. Gotham Shoe Mfg. Co.,.359 F. 2d 684 (2d

Cir, 1966); Irving Air Chute Co. v. NLRB, 350 F.

2d 176 (2d Cir. 1965). ~~

- The majority, éverruling sub silentio all the inter-

-vehing cases, now pushes Flomatic an enormous dis-

er than it has previously been extended and

-condemns rgaining order in a case where there

was a viola¥orNof the duty to bargain under Section

8(a)(5) and where the court has upheld the ene

in its finding of such a violation. .

It is obvious that the result reached here is not aly

not required by: Flomatic and Better Val-U but that’ -

it is directly at variance with the reasoning of those

. eases. Moreover it is contrary. to numerous previous

decisions of this court.and-¢contrary to the holding of

the Supreme Court in such eases as Franks Bros..Co.

v. NERB, 321 U.S. 702 (1944).

APPENDIX B

In the United States Court of Appeals, for the Second

Circuit

a No. 32,120

Nationa Lasor RELATIONS BoarD, PETITIONER

. v.

‘THE PEMBEK Or CoRPORATION, RESPONDENT

J UDGMENT

Before LuMBARD, Chief J udge, KAvrMan and Hays,

Circuit Judges.

» This cause came on to be eich upon a petition of

the National Labor Relations Board for enforcement

of its order, dated June 14, 1967, against the above-

named Respondent, its officers, agents, successors, and

assigns. The Court heard argument of respective coun-

sel on October 30, 1968, and has considered the briefs

and transcript of record filed in this cause. On No-

vember 27, 1968, the Court, being fully advised in

the premises, handed down its opinion granting en-

. forcement of the Board’s order as modified. In con-

formity therewith, it is hereby »

| Ordered and adjudged by the Court that Pembek

_ Oil Corporation, .its officers, agents, successors, -and

assigns, shall:

-1. Cease and desist from: , |

(a) Causing or inducing employees to repudiate

International Brotherhood of Teamsters, Chauffeurs,

(20a)

2la

Warehousemen and Helpers of America, Local Union

No. 677, or any labor organization.

(b) Causing or inducing employees to rescind the.

authority of International Brotherhood of Teamsters, -

Chauffeurs, Warehousemen and Helpers of America,

Local Union No. 677, or any other labor organization,

to represent them for purposes of: collective pangein-

ing.

(ec) Discouraging membership in International

Brotherhood of Teamsters, Chauffeurs, Warehouse-

men and Helpers of America, Local Union No. 677, or

any other . labor ‘organization, by discriminating

_ against employees in regard to hire or tenure of em-

ployment or any term or condition of emplo}ment.

-(d) In any other manner interfering with, restrain-

ing, or coercing employees in the exercise of their,

right to self-organization, to form, join, or assist labor *.

- organizations, to bargain collectively through rep-

resentatives of their own choosing, or to engage in

. other concerted activities for the purposes of collective

bargaining or other mutual aid or protection ” as

guaranteed in Section 7 of the National. Labor Rela- |

tions Act,gs amended, or to refrain from re Ma all

such activities, except to the extent that right

may be affected by an agreement. requiring member-

ship in a labor organization as a condition of employ-

ment in conformity with Section 8(a)(3) of the Act.

2. Take the following affirmative action which, the

Board ‘has found, will effectuate the policies of the

National Labor Relations Act, as amended:

(a) Make Carl Collins whole for any loss of earn-

ings he may have suffered by reason of the discrimi-

nation practiced against him ‘in the manner set: forth

in the section. of the Trial Examiner’s Decision, en-

titled “The Remedy.” ,

22a

. (b) Preserve and, upon request; make available to

the National Labor Relations Board or its agents, for

examination or copying;-al-payroH records, social se- —

curity payment records, timecards, personne] records

or yeports, and all other records necessary or useful to

determine the amount of backpay due under. the terms

of this judgment..

(ce) In the event that the Board ee holds

an election among respondent’s employees in the fol-

lowing appropriate unit: — :

All employees employed by: respondent, inelud-

ing fuel truck drivers, installation men, service- |

men, power cleaners,. also known as ‘sootmen,

and maintenance men, excluding salesmen, office

- clerical employees and Supervisors. as defined

| in the Act.

in which a majority of the valid ballots are cast for

the International Brotherhood of Teamsters, Chauf-

feurs, Warehousemen and Helpers of America, Local

Union No. 677.as’ the exclusive collectiye- bargaining

‘representative of said employees, upon request, recog-

nize and bargain collectively with said Unio

representative concerning rates of pay, wages,

or other terms or conditions of employment.

(d) Post, at its premises copies of the attached

notice marked “Appendix”. Copies of said notice, to

be furnished by the Regional Director for Region 1

of the National Labor Relations Board (Boston,

Massachuse € 0g after being signed by an authorized

_ representative of respondent, shall be posted by re-

spondent immediately upon receipt thereof, and be -

maintained by it for 60 consecutive days thereafter, in

‘conspicuous plaees, including all places where notices

to employees are customarily posted. Reasonable steps

shall be taken by respondent to ensure that said no-

tices are not altered, defaced, or covered by any other

material.

: 23a.

(e) Notify said Regional Director, jn writing,

within 10 days from the date of this judgment, what

steps respondent has taken to:comply herewith.

J. Epwarp umMBarD, =

‘ Judge, United States Court of

Appeals for the Second Circuit.

Irvine R. KavurMan,

Judge, United States Court of

Appeals for the Second Circuit.

Filed: DEcEMBER 19,1968. if

ites Kaa

Cpe ersten»

PLO ORY Tre ROT RAST RNA Sr .

coe IRENY rermreneme cond wer a4 ane

’ “ .

POTN RE EN BRR emt eee yee iat Coma tee nes -

’

TPT EY

earns:

APPENDIX

NOTICE TO ALL EMPLOYEES

, ¢ fas : es

Pursuant toa judgment of the United States Court

of Appeals: Enforcing as modified an Ordér of the

National Labor Relations Board,.and in order to effec-

tuate the policies of the National Labor Relations Act,

as amended, we hereby notify our employees that: .

After a trial in which both sides had the opportu-

, nity to present their evidence it has been found that

we violated the law by committing unfair labor prac-

tices and we have been ordered to post this notice and

to keep the promises that we make in this notice.

We -will not cause, induce,request, or encourage

~ you to repudiate, withdraw or resign, ftom Interna-

tional Brotherhood gf Teamsters, Chauffeurs, Ware-

housemen and Helpers of America,-Local Union No.

. 677, or any other union.

We will not cause, induce, request, or encourage you

to cancel, or seek the return of, any card you may

have signed naming, authorizing, or designating In-

ternational Brofherhood of Teamsters, Chauffeurs, |

Warehousemen and Helpers of-Aumerica, Local Union

No. 677, or any other union, to act as your collective-

bargaining representative.

“We will not discourage union activity or member-

ship. in International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America,

Local Union No. 677, or any other union, by dis-

criminating against you if you choose to engage in

union activity, or if you join International Brother-

hood of Teamsters, Chauffeurs, Warehousemen and

(24a)

25a

Helpers ‘of ie oe Union No. 677, or any

other unio

We will not in ney other wa ‘teaaiines, with, re-

strain, or coerce you in the exerci8e of any rights

- guaranteed to you by the National L&bor Relations

Act. In this connection, we will resp

to self-organization, to form, join, or assist any union,

to bargain collectively through any union or repre-

sentative of your choice as to wages, hours of work,

and any other term or condition of employment. You

also have the right, which we also ‘will respect, to re-

frain from doing so. |

r We will not discriminate against any employees for |

engaging in union activity or for joining any union. iM

rt has been found that we did so when we fired

Collins, to whom we have already offered full

statement to his old job, we will pay him for any

loss he suffered because we fired him. :

In the event that the Board hereafter holds an elec-

‘tion among the ia cia in the following appropri-

ate unit:

All persons whom we employ, including fuel

truck drivers, installation men, ‘servicemen,

power cleaners, also known as sootmen, and

maintenance men, but excluding salesmen, ‘office

clerical employees and supervisors—

in which a majority of the valid ballots are cast for —

the International Brotherhood of Teamsters, Chauf-

feurs, Warehousemen and. Helpers of America, Local

Tnion No. 677, as the exclusive representative of the .

“employees in that unit, we will, upon request, bargain

collectively with that Union as such representative

with respect to rates of pay, wages, hours of employ-

ment, and other terms and conditions of employment,

. and put into writing and sign any —— which

is reached.

26a

All our: employees are free to become, remain, or

refrain frorh becoming or remaining, members of In-

ternational Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, Local Union

~- No. 677, or any other union.

THE Pemppx Om Corpor ATION °

(Employer)

Rene icine ceased lip secaiinsdbeticinhenibine ="

; _ (Representative) (Title).

The notice must remain posted for 60 consecutive

days from:the date of posting, and must not be al-

tered, defaced, or covered by any other material.

If employees have any question concerning this

notice or compliance with its provisions, they. may

communicate directly with the Board’s Regional

Office, 20th Floor, John F. Kennedy Federal Build-

ing, Cambridge and New Sudbury Streets, Boston,

Massachusetts 02203, Telephone 223-3300. |

A true copy. |

: e | A. Dav Fsaro,

Clerk.

In the United States Coent of Appeals for the, Second

Circuit ,

No. 32120

_ National Lasor RELATIONS BOARD, PETITIONER

-! eae

e apis v. |

THE PEMBEK Om CorRPORATION, RESPONDENT

A petition for a rehearing having been filed herein

by counsel for the petitioner,

Upon consideration thereof, it is as

Ordered that said petition be .and it hereby is

denied.

J. Epwarp LUMBARD,

Irvine R. KAUFMAN, .

PauL R. Hays,

(dissenting) :

Cur cut J nudges.

January 16, 1969.

(27a)

In the United States Court of Appeals for the Second

Circuit ©

_No. 32120

NaTIONAL LaBor RELATIONS BoaRD, PETITIONER

ae |

THE PEMBEK O1L CoRPORATION, RESPONDENT |

A petition for a rehearing ‘containing a suggestion

that the action be reheard in banc having been filed

herein by counsel for the petitioner and all.of the

active judges concurring, except Judge Hays wha

votes to grant, ; —

_ Upon consideration thereof, it is

- . Ordered that said — be’ and it hereby is

denied.

‘Sige - Epwanp Isrnam,

a . Chief Judge.

JaNuaRY 16, 1969. |

- (28a)

APPENDIX ¢@

- Unrrep States oF AMERICA -

BEFORE THE NATIONAL LaBor RELATIONS BoaRD

Case No. 1-CA-5652

THe PemBek On, CorPpoRATION

and

INTERNATIONAL “Brorutrroop oF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN AND HELPERS: OF | AMERICA,

LocaL Union No. 677

DECISION AND ORDER ©

On March 21, 1967, Trial Examiner Alvin Lieber-

man issued his Decision i in the above-entitled proceed-

ing, finding that the Respondent had engaged in and

was engaging in certain unfair labor practices and

recommending that it cease and desist therefrom and

take certain affirmative action, as set forth in the

attached Trial Examiner’s Decision. The Trial: Ex-

aminer also found that the Respondent had not en-

gaged in certain other unfair Jabor practices alleged

in the complaint and recommended dismissal of these

allegations. Thereafter, the Respondent filed excep-

tions to the Trial Examiner’s Devision together with

a supporting brief, and the General Counsel filed a-

- brief.

- Pursuant ‘to the provisions of Section 3(b) of the:

National Labor Relations Act, as amended, the Na-

tional Labor. Relations Board has delegated its powers

in connection with this case to,a three-member panel.

(29a)

: - 80a

.- The Board has reviewed the rulings of the Trial

“Pansies made at the hearing and finds that no preju-

dicial error was: committed. The rulings are hereby

affirmed. The Board has considered the Trial Exam-

iner’s Decision, . the exceptions and briefs, and the

entire record in this‘tase, and hereby adopts the find-

ings," conclusions, and recommendations of the Trial

Examiner, as modified herein. .

ORDER

Pursuant to Section. 10(c) of the National Labor

Relations Act, as amended, the National Labor Rela-

' tions Board hereby adopts as its Order the Recem-

~ mended Order of the Trial Examiner, and orders that

the Respondent, The Pembek Oil Corporation, Meri- .

den, Connecticut, its officers, agents, successors, and

assigns, shall take the action set forth in the Tr ial

Examiner’s Recommended Order.

Dated, Washington, D.C., June 14, 1967. |

, GERALD A: BROWN,

'Howarp JENKINS, J Rus

Sam ZaGoriA,

pales a: © oy Members,

[seat] ~—~—s—s National Labor Relations Board.

- 1In-the absence of exceptions, we adopt pro forma the Trial

Examiner’s. finding that employee Emery’s authorization card

. is invalid because he signed it on the misrepresentation that he

was the only employee in the unit who had not signed a card.

Phil-Modes, Inc., 159 NLRB No? 84;. Dan Howard Mfg. Co.,

158 NLRB No. 64; cf. Merrill Aale and Wheel Service, 158

NLRB No. 107. .

cae — PXD-101-67

. -\ : - Meriden, Conn.

. UNITED STATES OF AMERICA

BEvorE THE NATIONAL LABOR RELATIONS Boag -

Drviston or TRIAL EXAMINERS .

WASHINGTON, D.C. ‘

Case 1-CA-5652

THE PEMBEK Or CORPORATION

- ..° @nd

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

» AND Hevpexs or America, Locan

Unton No. 677 . |

Norman Zankel, Esq:, tested, Mass., for the Gen-

eral Counsel. ;

- Mr. James Galullo, Waterbury, Conn. for the

Charging Party.

William J. Larkin, 2d. Esq., Waterbury, Conn., for

Respondent. ~

Before ALVIN LIEBERMAN, Trial Réamaver.

TRIAL EXAMINER’S DECISION

STATEMENT OF THE CASE

This proceeding, with all parties represented, was ‘

heard by me in Meriden, Connecticut, on November 28,

29,,and 30, 1966' upon,a complaint of the General

: ' 1 All dates’referted to in this Decision fall within 1966.

(31a)

i rr eter mre

ee ee ee ee

. cn eens

32a

Counsel * and respondent’s answer. The issues litigated

were whether resp iolated Section 8(a) (1),

(3), and (5) of th¢ National Labor Relations Act, as

amended (herein called the Act). More particularly,

the questions for decision are as follows: —

1. Did respondent violate Sectior® 8(a) (3) and (1)

by discharging Carl Collins? *

2. Was the unit for which the Union requested

recognition from, and bargaining with, respondent

-- appropriate for those purposes? . |

_ 3. Did the Zfnion represent a majority of respond-

ents: employees in a unit appropriate for qollective

bargaining when the foregoing request was made?

4. Did respondent violate Section 8(a)(1) and (5)

of the Act by refusing to’ bargain with the Union, by

2The complaint was issued on a charge filed by International

Brotherhood. of Teamsters, Chauffeurs, Warehousemen and

Helpers of America, Local Union No. 677_ (herein called the

ion). During the trial the complaint was amended to set

~~forth the name of the Union as it appears in the caption and

by substituting for paragraph 10, as originally set forth, the

following paragraph NX aad “

“10. All employees ames by Respondent at West Main

Street, Meriden, Connectitut including fuel truck drivers, in-

stallation men, servicemen, soot men, but excluding salesmen,

office clerical employees -arid-supervisors as defined in the Act, |

constitute a unit appropriate for the purposes of collective bar-

gaining within the meaning of Section 9(b) of the Act.”

’Qn motion of respondent made at the conclusion of the

General Counsel’s case-in-chief paragraph 8 of the complamt

which - alleges that respondent failed and refused to reinstate

Collins and so much of paragraph 9 and other paragraphs of.

the complaint which relate to paragraph 8 were dismissed for

the reason that the General Counsel offered no evidence to

establish those allegations. I have been urged by the General.

Counsel to reconsider this’ ruling and I have done so. Having

reconsidered and having taken into account the General Coun-

sel’s arguments I find no convincing reason for changing my

ruling.

33a

bargaining directly with its employees, by inducing

them to abandon a lawful strike, or by inducing them

to repudiate the Union? Py ea

Upon the entire record,’ upon my observation of the

witness and their demeanor while testifying, and upon

careful consideration of the arguments made and

briefs submitted by the General Counsel and respond-

ent, [ make the following: - eos

FINDINGS OF FACT > —

3 Respondent’s business | )

Respondent, a Connecticut corporation, whose prin-

cipal office and place of business is located at Meriden,

Connecticut, is engaged there in the installation and

servicing of oil burners and related equipment and in

the retail sale of fuel oil. Respondent annually pur-

chases and receives products valued in excess of

$50,000 from suppliers located outside the State of °

Connecticut and respondent’s gross volume of business

annually exceeds $500,000. Accordingly, I find that

respondent is engaged in commerce within the mean-~-

ing of the Act and that the assertion of jurisdiction

over this matter by the National Labor Relations

Board (herein called the: Board)- is warranted.

Stemons Mailing Service, 122 NLRB, 81, 85; Carolina

Supplies and Cement Co., 122 NLRB 88, 89. :

II. The labor organization involved

The Union is a labor organization within the mean- -

ing of the Act.

' * Attached hereto as Appéndix B is an order correcting the

“stenographic transcript of this proceeding in certain respects.

_ *The motion to dismiss the complaint made by respondent

at the close of the trial is disposed of in accordance with the

findings and conclusions set forth in this Decision.

338-861—69—_5

ET eT

34a

III. The alleged unfair labor practices

A. Introduction |

Briefly, this case concerns itself with the events

- following the Union’s authorization by respondent’s

employees to act as their collective-bargaining rep-

resentative. Among these were the Union’s demand .

for, and respondent’s refusal of, recognition and bar-

gaining; the discharge of -one employee; a strike ;

respondent’s: direct bargaining with the striking em-

ployees; and, coming full circle, the employees’ re-

pudiation of the. Union.

The General Counsel contends that respondent’s

refusal to recognize and bargain with the Union pur-

suant to its demand qwas based upon its determination

to gain time within which to destroy the Union’s

status as the collective-bargaining representative of

the employees concerned, hence in violation of 8(a)

(5) of the Act. In support of this argument the Gen-

eral Counsel points to respondent’s discharge of an

employee, claimed by the General Counsel to have

been discriminatory and, accordingly, violative of Sec- .

. tion 8(a).(3) of the Act; to its direct bargaining with

employees who had earlier signed cards authorizing

the Union to act as their collective-bargaining agent

which, “the General Counsel postulates, induced the

employees involved to abandon a lawful strike and

repudiate the Union, all in violation of Section 8(a)

(1) and 8(a) (5) of the Act. a

Taking issue with the General Counsel on all points

respondent argues that if has not violated Section

8(a)(5) of the Act by. its refusal to accede to the

Union’s demand for recognition and. bargaining be-

cause of its good-faith doubt as to the Union’s claim

that it represented a majority of its employees; be-

cause-the unit for which the Union requested recogni-

30a

tion is not appropriate for collective-bargaining

purposes; and because the authorization cards, upon

which the Union’s majority is bottomed, are invalid

by reason of misrepresentations in their procurement.

Further respondent argues that it did not engage in

direct bargaining with the employees concerned and

that any dealing by respondent directly with its em-

advised that such conduct might be, in the cireum-

stances of this case, imjfroper. Running out the skein,

insofar as this phase of the case is concerned, respond-

ent contends that its direct dealing with its employees,

did not: induce them to abandon their strike-or to -re-

pudiate the Union. Finally, while admitting the dis-

charge, respondent asserts that it was occasioned

solely by the many errors made by the employee in

ployees was “sh my immediately upon its: being

question: and. that it had no prior knowledge of his :

activities on behalf of the Union.

| , B. Facts

The nature of respondent's operations

Respondent installs and services oil burners in exist-

ing commercial establishments and homes, the former

being referred to as industrial work and the latter as

domestic work. In addition, respondent on occasion .

installs oil burners in buildings under construction

and regularly sells fuel oil. ,

Insofar as material, in the operation of its busi-

ness respondent employs installer-servicemen, power

cleaners, oil truck drivers (herein respectively called

servicemen, sootmén, and drivers) and a maintenance

_ man. The usual duties of the servicemen, who exer-

cise skills not possessed by respondent’s other em-

ployees, consist of installing, servicing, and repairing:

industrial and domestic oil burners and related equip-

ment, in existing buildings. During the period critical

Sa saat

PET ETRE, hor RO pe qrarss

36a

to this proceeding respondent employed eight service- |

men, of whom six did both. industrial and domestic

work. Of these, two also installed oil burners in build-

ings under construction. This work, however, occupied

their time for only about 6 weeks a year. The remain-

ing two servicemen did only domestic work. |

Respondent’s drivers deliver fuel oil to its customers,

compute the amount of money due from customers for

the oil delivered by them, and enter this sum on an

invoice which is left with the customer at the time of

the delivery. Although their principal duties relate

to the delivery of fuel oil, the drivers also assist serv-_

icemen. This type of work is done by the drivers for

about 2 or 3 months a year, generally in the summer-

time, when there are little, or no, -deliveries to be

- made. As John W. Grant, respondent’s. secretary,

testified, “in a given week [during this period a driver

could spend] all his time or 90 per cent of his time”

assisting servicemen. 8 i Bo 9

The sootmen clean oil burners and related equip-

ment. On rare occasions sootmen also assist service-

men. The maintenance man, as Grant further testified,

“keeps [the shop] clean” and ‘takes care. of the

stock.” ° ‘ |

Respondent is party to a collective-bargaining con-

tract with Local Union No. 21, United Association of

Journeymen and Apprentices of the Plumbing and. —

Pipe Fitting. Industry (herein called-—Rlumbers

6 The findings with respect to the duties of respondent's -em-

ployees are based. on the testimony of Grant; Fred J. Knell,

respondent’s president; Robert J. Thuotte, its office manager

and dispatcher; Thomas F. Yale, a driver employed by re-

spondent; and Carl Collins, who was employed as a driver by

respondent and whose discharge is claimed by the General

Counsel as having been violative of Section 8(a) (3) of the Act.

ae 37a

Union). This contract covers two of respondent’s em-

Ployees, the servicemen who install oil burners in

buildings under construction. It is applicable, however,

only when they perform this type of work, which, as I

have found, they do for about 6 weeks during each ©

year. The contract has no relevance when the em-

ployees concerned perform the usual functions of.

servicemen: i.e., installing, servicing, and repairing

oil burners in existing buildings.’

The maintenance man spends all his working time’

in respondent’s warehouse. The servicemen, sootmen,

and drivers work there when they are not performing

. duties away from respondent’s premises. _ :

The sevicemen, sootmen, drivers, and maintenance

_Men are hourly rated and each has a timecard. Except

for! the maintenance man, they wear the ‘same work

unfform. All, including the maintenance man, benefit

from.an insurance program maintained by respond-.

ent,’ have the same vaéation and sick leave privileges,

and, as Grant, respondent’s secretary related, share

the same restroom ‘‘and other facilities in the shop.” *° .

. At the trial it was. stipulated that Knel!, Grant,

Thuotte, and Arthur Moskaluk, respectively respond-

ent’s president, secretary, ‘office manager ‘and dis-

patcher, and sales engineer, are its only supervisors.

As respondent’s president, Knell is “overseer of the

whale operation.” : 7

Insofar as it may be material, I find that Plumbers Union .

is a labor organization within the meaning of the: Act.

* These findings are based on the contract between respondent

and Plumbers Union, which is in evidence as respondent’s Ex-

hibit 10 and the testimony of Knell, respondent’s president.

** The two servicemen covered by the Plumbers Union con-

tract participate additionally in a health, welfare, and pension

program provided for by that agreement. :

*°The findings in this paragraph are based. on Grant’s

testimony. |

get, . 38a

Respondent’ s sales engineer assigns work. to all

servicemen, ‘‘directs the activities” of those perform-

ing industrial work, and, on occasion, also directs the

work of the sootmen, drivers, and maintenance man.

Whenever a serviceman encounters *‘difficulty on [a]

job,”’ apparently without regard to whether the prob-

lem arises on industrial or domestic work, assistance

is sought from, and given by, the sales engineer.

The sei SA drivers, domestic servicemen, and

maintenance man is normally stipervised by the re-

spondent’s dispatcher. Respondent’s secretary ‘‘directs

the activity” of the sootmen and assists the sales

engineer in assigning work to the servicemen. The

dispatcher regularly ‘‘reports” to respondent’ S presi-

dent, and from time to time to its secretary.”

’ “Respondent’s collective-bargaining history

- It has already been found that respondent and. the

Plumbers Union are parties to a contract covering

. those of respondent’s servicemen, presently two in

number, who install oil burners:in buildings under.

construction. Respondent has had_ similar contracts

with the Plumbers Union since about 1950. However,

no labor. organization has ever represented all of

respondent’s employees:* fr.

The Union's organizing campaign )

.Shortly after Collins started to work for respond-

ent* he began to hear complaints from other em-

1 The findings with respect to the functions of —*

supervisors are:based on Grant’s testimony.

12 These findings are based on the testimony of Knell and

Grant, respectively respondent’s president and secretary.

48 As will appear below Collins, whose. discharge, as already

noted, is alleged by the General Counsel as having been viola-

tive of Section 8(a)(3) of ie Act, was hired by respondent

on, — 19.

39a '

ployees concerning their working conditions, and, ~

because he was a union member, was requested by

several to “contact someone for them to talk to about

a union.”’ Accordingly, Collins communicated with

James Galullo the Union’s business representative,

who sent authorization. cards and literature to re-

spondent’s employees. Galullo atso sent a supply of

authorization cards to Collins, some of which Collins

distributed among respondent’s employees.

In addition to distributing the cards, Collins met

with respondent’s employees individually and in

groups and informed them of the benefits to be derived

from representation by the Union. There was also a

meeting on September 13, at the Union’s headquarters 4

_attended by some of respondent’s employees and Ga-

lullo,. the Union’s business representative. At this

meeting Galulio asked those present who had not

signed cards to do so and received from the employees |

a series of proposals as to terms and conditions of

. employment which, as. Galullo stated, ‘“‘they wanted

the union to negotiate on.’’ ™

The Union’s requests for recognition and respondent’s replies

By September 8, nine employees in the unit alleged

In the amended complaint as being appropriate ‘‘for

the purposes ®f collective bargaining” had signed

cards authorizing the Union to act as their vellective-

bargaining. representative. On September 9, the

Union, in writing, informed respondent that ‘a ma-

jority of [respondent’s] truck drivers, oil burner -

“ These findings are basa on testimony given by Collins and

Galullo. J : |

** This finding is based on the authorization cards received in

evidence as General Counsel’s Exhibits 11, 12, and 14 through

20, and the testimony of the employees who signed the cards in

question except Robert Chiaro, whose whe uts were un-

known at the-time of the trial: y

a eae atk Ll aN ae

NERS ITI er TA TI mare, Peep ner n oe

TMI we

40a

‘servicemen and installers, mechanics, and helpers have

authorized [the] Union to act as their collective bar- -

gaining representative, ” and, in essence, requested that ©

respondent. recognize, and bargain with, it as such

representative.” On September 12, the Union filed a

representation petition (Case 1-RC-917 8) which was

later withdrawn without prejudice.

Upon receipt of the Union’s letter,” respondent

retained counsel and turned the letter over to him. He,

in reply, informed the Union, on September 13, that

respondent disputed both the “Union” s majority claim

and ‘“‘the appropriateness of the unit.” With respect

to the authorization cards, respondent’s lawyer stated

that they were signed “solely for the purpose of ob-

taining a representation election * * * and, if not for. —

that purpose, were signed based upon misrepresents:

tions by representatives of your Union as to [their]

import.” It was further stated in this letter in ac-

1° There is an apparent variance between the unit set forth in

the Union’s letter (General Counsel's Exhibit 2, in evidence)

and that- contained in paragraph 10 of the amended complaint

(General Counsel’s Exhibit 13, in evidence) which describes the - .

unit as [all empleyees employed by Respondent oo

cluding fuel truck drivers, installation meh, servicemen, soot

men, but excluding salesmen, office clerical employees ai sup-

ervisers *"*'*” Respondent raises no issue concernihg these

seemingly different unit descriptions and concedes in its brief .

that the unit set forth in the amended complaint “is the same

unit originally sought by the Charging Union.” In. view of this

concession, I find that the two documents, i.e., the Union’s let-

ter arfd the General Counsel’s amended complaint, in fact de-

scribe the same unit. As the unit description set forth in the

amended complaint appears to’ be more artful. than that. con-

tained in the Union’s letter, all subsequent mention of the unit

involved will have reference to the former, and, for the reasons

set forth in: footnote 53, infra, will be construed as including:

*. the maintenance man.

7 The letter was received by respondent on September 12.

be Sah a - 41a i

% |

knowledgement of the Union’s filing of its representa-

tion petition that respondent would recognize the

-Union “‘only’’ upon its certificetion by the Board.”

As previously mentioned, several employees of re-

spondent attended a meeting at the Union’s headquar-

ters on September 13. At this meeting another

employee in the unit, the 10th to do. so, signed an

‘authorization car

The following day, September 14, simebiiinitinds

- of the Union and respondent met with agents of the.

Federal and State mediation services. As is usual in

such situations, the parties met jointly and separately

with the mediators. At ong of the joint sessions the

Union again requested recognition and bargaining and

again respondent refused, stating on this occasion that

the unit was inappropriate and that it would recognize

-the Union if it won a representation election.”

In view of respondent’s contentions concerning the

Union’s “‘majority”’ and the invalidity of the authori-

zation cards signed by its employees, findings must be

made concerning the number of. employees in the unit,

Lafe

and the circumstances surrounding the signing of the |

cards. Concerning the former, it was stipulated that

at the time in question here respondent employed 8.

servicemen, 4 sootmen, 2 drivers, and T maintenance

man, a total of 15.” ;

18 These findings are based on the testimony o Knell and |

Grant, respectively respondent’s president and secretary, and

on the letter written by respondent’s lawyer (General Counsel's

Exhibit 6, in evidence).

1° Like the other findings with respect to the signing of au-

thorization. cards, this finding is based upon the card, itself

(General Counsel’s Exhibit 21, in evidence), and the testimony

of the employee who signed the card.

the Union’s business _Tepregentative, and Giant, respondent’s —

20 These findings are based on the sand Gyan, by Galullo,

' secretary. e

Tn addition to ) these, respondent employed two office clerks.

at a Ee te has

ETS ae Or

as TF Oy Oe

CR ala ts SAIN NE te a tnt Li ee le ae Dele

42a

As I have already found, 10 employees signed au-

thorization cards. In pertinent “a these = con-

tain the following yecital :

I hereby authorize the Reternchicdial Brother-

hood of Teamsters, Chauffeurs, Warehousemep—

and Helpers of America to represent me for the

purposes of collective bargaining in respect to

rates of Bay wages, hours of employment, or

other conditions of employment * * *,

Respondent maintains that signatures to all the

cards were obtained through misrepresentations suffi-

cient to nullify them. In its brief respondent points

particularly to four cards, those signed by William

F. Carlson, Felix George Rouleau, James Emery, and

Donald MacLellan, as being illustrative of the mis-

_ representations made by Collins, who solicited signa-.

tures on behalf of the Union, or by Galullo, the

Union’s business representative, to all the employees

who signed cards.” Accordingly, respondent urges at

least that the cards signed by these employees not be

counted in determining the Union’s majority. In de-

tail, the events, surrounding the signing of the cards in

question are as follows:

William F. Carlson: Carlson, a serviceman in re-

spondent’s employ, received his card in the mail and

signed it on September 1, after first reading it. Before

22T do not agree that this is so. Thus, Thomas Yale, a driver

testified that Collins merely told him he would receive a card

in the mail and that he had no other conversation with Collins

*: before réading and signing his card. Thomas Padden, a soot-

man, testified that before signing his card Collins told. him that

“it was a card that the union usually sends out . . . just to give

them thd authorization to negotiate.” John Yale, a serviceman,

could remember no conversation at all with Collins about the ©

card whichXhe signed, and Robert Parisi, also a serviceman,

gave similar testimony, although he received the card which he

signed from a :

43a

niin the card Carlson asked Collins whether he

would become a member of the Union if he signed the

‘eard. Collins answer was No.” Collins, further told

Carlson that the cards would enable Galullo to “talk

to the company on the empoyees’ behalf.” Although

not so-informed by any representative of the Union,

Carlson concluded that the card “was only to show

_™ * * the union that there were enough men interested

in maybe forming a union”; that the Union would in-

form respondent of this fact; and thaf,“then it would

be up to us to decide whether or. not we wanted to

vote the union in.” * ed

Felix George Rouleau: Afte® receiving his ecard, but

before signing it, Rouleau, a serviceman, asked Col-

lins whether the card “would he binding us to the

union in any way.” Collins’ response was that it would

not; that the card was “introductory”; * and that

Rouleau should “attend a meeting to see what the

union had.to offer.” On the following day, Septem-

ber, 4, Rouleau read the card, —_ it, and mailed it

to the Union.” | e

James Emery: Emery, a sections in respondent’s

employ, signed his ecard on September 7, after being

‘told by Collins that ‘“‘he was the last one” and that

‘everybody else had signed.’’*

‘Donald MacLellan: With other employees of re-

spondent, MacLellan, a serviceman, attended the meet-

_ * These findings are based on Carlson’s testimony.

** In context this word appears to be meaningless.

°° These findings are based-on Rouleau’s testimony.

** These findings are based on Emery’s testimony. Emerv also

testified that he had decided to sign his card on the day before

his conversation with Collins, during the course of which the

card was signed. This testimony was elicited from Emery by

a leading questicn from the General Counsel at a time when

Emety was his witness. Accordingly, I will give it no weight.

- Liberty Coach Company, Inc., 128 NLRB 160, 162.

~ Re ems

IB ih no eet

44a

ing held At the Union’s headquarters on September

13. Galullo, the Union’s business representative, told

the assembled employees that among those present

two had not signed authorization cards. Galullo, with-

out saying more, then gave a card to MacLellan, who

-was one of those who had not. yet signed. MacLellan

signed the card at that time without reading’ it he-

cause, as he put it, there was “general conversation”

among the employees “that we wanted to talk to the

union, see what they had to offer and cards were more

or less permission to talk to the Union.” No repre-

sentative of the Union was present at the time or

times of this ‘‘general conversation” and although Col-

lins was there he was not the person-who told Mac-

Lellan that cards had to be signed by employees as a

prerequisite to their talking to “the Union.” *

Collins’ ‘discharge

Carl Collins was hired as a driver by respondent on

August 19. He started to work the following day. He

was discharged on September 17, several hours after.

respondent received the Union’s recognition and bar-

gaining request. At the time of the termination of his

employment Collins was told by Grant, respondent’s

secretary, that he was being discharged because he

made “too many mistakes in computing the price , Of ~

fuel oil.” Later that day Grant gave Collins a Con-

‘necticut Employment. Security Division form, pre-

pared by respondent and signed by Grant in which

the ‘‘Reason for Unemployment’’ was stated to be

“Inability To Figure Or Compute Prices.” “

27 These findings are based on testimony given by MacLellan,

Rouleau, and Galullo.

The finding concerning the conversation between Grant .and

Collins with respect to the reason for Collins’ discharge is

based on Collins’ testimony. Grant’s version of this conversation

is that he told Collins that he was being discharged for “mak-

45a

On about October 22, respondent offered to reinstate

Collins to the job he held at the time of his discharge.

Because Collins was then employed CHTMEES, he re-—

fused respondent’s offer.”

Prior to his employment by respondent Collins was

interviewed by Grant and Thuotte, respondent’s dis-

patcher. At the time Collins was wearing a union

button and he told his interviewers that he had been

2 union member.” During this conference the duties

of a driver’s job were explained to him! and Collins

was told about “the job training’’. In the latter con-

nection, Thuotte, as Collins testified, told him that he

would ‘‘go out with another man for a while to learn

the job and that [respondent] invested approximately

a year in a man before he would become efficient like

they like their employees to be.” *

__ Findings concerning Collins’ activity in support of.

the Union have already been’ made and appear under ©

ing too many mistakes in the delivery of oil.” Grant’s account,

as can be seen, differs from Collins’ in that it omits any refer-

erence to the nature of the “mistakes.” This is not. a mere

semantic distinction. It is material in view of respondent’s

position, as set forth in its brief, that Collins’ discharge was

occasioned not only by his errors in computation, but also

by his mistakes in other areas. Because I was favorably im- '

pressed with Collins’ demeanor as a witness and because his

testimony as to the conversation in question is corroborated by

the Connecticut Employment Security Division form (respond-

ent’s Kxhibit 11, in evidence), which, as noted, was prepared

by respondent and given to Collins on the day of his discharge,

I accept Collins’ version of the event rather than Grant’s.

- These findings are based on Collins’ testimony.

In its brief respondent concedes that it had knowledge at

the time Colliris was hired that i in the _ he had been a mem-

ber of a union. ©

*1 Collins’ testimony in this regard was substantially corro-

borated by Thuotte who related that during the interview “It -

was said that the starting pay was not high because it takes

quite a while for a man to be a good oil driver.”

ee nN

’

46a

the heading “‘The Union’s organizing campaign.’”’ The

meetings mentioned: there, atevhich Collins related to

respondent’s employees the advantages of union rep-

resentation, were held in respondent’s shop, the regu-

lar work station of the employees who attended, on

a Saturday, and on other days of the week. Although

Saturday is a regular workday for respondent’s em-

ployees, none of respondent’s supervisors were present

in the plant at the time the Saturday meeting was

held. <>

In addition to attending these shop meetings and

there explaining the benefits obtainable hy the em-

ployees through a relationship with the Union, Collins

signed an authorization card, distributed others to em-

ployees, and engaged in discussions with them con-

cerning the signing of the cards. Like the meetings,

these, too, took place on respondent’s premises.”

As found above, Collins worked for. respondent as a

driver from August 20, until his discharge on Septem-

ber: 12,. several hours after respondent's receipt of

the Union’s bargaining request. At that time, as has

also been found, Grant, respondent’s secretary, told

Collins that he was being discharged because of his

computation errors. ,

Collins did make errors in computing the total price

of the oil which he delivered to respondent’s custom-

ers. Collins made his first error of this nature on the

~ very first day of his employment and continued ‘to

make similar errors. — . .

Collins’ mathematical deficiencies came to the atten-

tion of both Grant and Thuotte, respectively respond-

ent’s secretary and dispatcher, during his first week

as a driver for resnondent. Neither, haiveyer, spoke to

Collins about this until Grant, did “sq in connection

with Collins’ discharge on September 12, by which

82 See, e.g:, the testimony of Carlson, Parisi, and Rouleau.

47a

date Collins had heen in respondent’s employ for

_more than 3 weeks.*

Not only did they not speak to Collins about any of

his mistakes,* as set forth above, but. also neither

Grant nor Thuotte before September 12 had deter-

mined to take any disciplinary action against Collins

because of them. During the morning of that day, how-

ever, after the Union’s bargaining request had been

discussed by Grant and Knell, respondent’s president,

and had been shown to Thuotte, Thuotte suggested to

Grant that they “sit down and talk about [Collins].”

They did so and jointly decided to discharge Collins.”

One final fact remains for consideration in connec-

tion with Collins’ dismissal. Although, as Thuotte and

Grant both stated, the decision to terminate Collins’

employment was theirs jointly and was arrived at after

a conference, each gave conflicting testimony with re-

spect to this joint decision. Thus, Thuotte testified

** During Collins’ second week of employment Grant informed

Padden, a rank-and-file employee, of Collins’. computation

errors and asked him to tell Collins about them. Padden, how-

ever, did not inquire nor did Grant say, what would happen if

~ Collins’ arithmetic did not improve. Although Padden relayed

the substance of his conversation with Grant to Collins, ‘he

could not remember whether he did that before or after Col-

lins’ discharge. ps:

“In addition to his computation errors, Collins spilled oil on

the cellar floor of one of respondent’s customers, and on the

dwn of another; delivered oil to a customer other than the. one

it was intended for; gave a customer an invoice which should

have been given to another; and on September 10, was-unable

to make-a delivery at the time promised because he could not

find the home of the customer who lived in a new section of the

city.

** These findings are based on testimony given by Grant and

Thuotte and the following exhibits received in evidence: General

Counsel’s Exhibits 3(a) through 3(h) inclusive; and respondent's

Exhibits 4 and 5.

at ee ee

BE Pwo ner hae

’

48a

that he and Grant arrived at their joint determination

to discharge Collins ‘“based on this incident of Gum-

kowski* [and] the mistakes he made in figuring oil

tickets.’’? Grant, on the other hand, recited as the

grounds for the joint decision the whole gamut of Col-

- lins’ faults as a driver, including his computation

errors, his spillage of oil on a customer’ s cellar floor, —

his delivery of oil to a customer who did not order

any, his giving a customer an invoice which should

have been given to another, and his failure to make

a timely delivery of oil to a customer who lived in a

new area of the city because he could not find sig

house.

The events following Collins’ diecharge

After his discharge Collins and several employees’

gathered at a local tavern where they talked about

Collins’ dismissal. In addition, the employees ex-

pressed an interest in meeting with Galullo, the Un-

ion’s representative. Through Collins’ efforts such a

meeting was arranged for the following evening at the

Union’s headquarters.”

About 10 employees attended this meeting, which

was chaired by Galullo. Galullo designated Collins as

the Uniori’s steward, discussed with the employees |

Collins’ discharge, respondent’s refusal to recognize

the Union,* and outlined measures which might be

36 Gumkowski is the name of the person who owned the house

’ in the new part of the city which Collins could not find in time

to make his delivery at the hour promised.

%* These findings are based on testimony given by Com and

Galullo.

88 Although Galullo had not. yet received respondent’s letter

informing the Union of its rejection of the Union’s request for

bargaining, respondent had, apparently earlier that day, posted

_a notice informing its employees that it would not recognize the

_ Union, a copy of -w hich was given to Galullo at the meeting.

49a

taken, including.a, strike, to procure Collins’ reinstate-

ment. and a coHective-bargaining contract. In connec-

tion with the contract, the employees submitted to

Galullo a paper on which was written the benefits they

expected the Union to obtain for,them through nego-

tiation with the respondent. After considering the.

various courses which could be pursued, the employees

decided to strike for' the purposes of obtaining a con-

tract and Collins’ reinstatement.” |

On September 14, almost all the employeés who had

attended the nteeting the previous evening struck and

picketed respondent’s premises with signs stating

‘*PEMBEK WORKERS ON . STRIKE—TEAM-

STER’S LOCAL NO. 677” and “WE PROTEST

DISCHARGE OF OUR STKWARD—LOCAL NO.

677 TEAMSTERS WATERBURY.” The strike was —

,, Short lived, however, and, as ‘appears below, was dis- ~

* continued the next day.

Karly during the morning of September 15, the ©

striking employees decided among themselves to re-

turn to work. The strikers appear to have made this

decision because the two servicemen in respondent’s

employ who were-members of the Plumbers Union had

not honored their picket line the previous day.

‘Having decided to terminate their strike Carlson,

on behalf of all the employees involved, telephoned

Grant, respondent’s secretary, to ask whether they

“‘could come in and sit down and talk.’’ Upon Grant’s

acquiescence, the employees went to respondent’s

premises where they conferred with Knell, Thuotte,

respectively —— S — and dispatcher,

and Grant.”

8° These a are based on testimony given by Galullo,

Carlson, and Rouleau.and General Counsel’s Exhibit 10, in

evidence.

*° These findings are based on testimony fiven by Carlson,

Emery, Rouleau, and Grant. a \

’

TA WAM Oe ng

PEM LORIN SIRS SN Ft nts Che eons pe

lei ih etal cir ont nes Let ad eT

. 50a

Before the meeting started Knell, ‘respondent’s

president, called its lawyer for advice as to the proper

course which respondent should pursue in. the circum-

. stances. Respondent's lawyer, however, was not in his

office at the time.”

Neither the employees nor r respondent’s officials who

were present at the conference. appear to have ap-

pointed a particular member to act as spokesman for

their respective groups. Representatives of each spoke

out at will. ;

The first to speak was Carlson who stated that the

employees were there to discuss their ‘‘gripes.” To

this, Knell, respondent’s president, replied, as Emery,

one of the employees in attendance, testified, ‘‘that

he had no idea things had gotten as bad as they

were * * * that maybe * * * this was a good thing

that it did come out * * * and that * * * we could

“straighten something /out by having this get together.”

Grant, respondent’s secretary, took a less conciliatory

line, stating at the outset of the conference that he,

too, had “gripes” and “‘wanted * * * an 8-hour day.”

The employees then briefiy mentioned some of the

things with which they were concerned including the

lack of a pension plan, and their desire to have a

posted pay scale. There was also a cursory reference

to sick and @liday pay. Respondent’s representatives

made no comment with respect to their employees’

complaints, except as to pension and sick-pay. Concern-

ing the former, respondent’s representatives indicated

that respondent had already made inquiries in that

area of. several insurance companies. As to sick pay.

Grant stated that such benefits would not be provided *

where absence: from employment was occasioned by.

the sickness of a member of the employee’s family.

“1 Fhese firidings are based on Knell’s testimony.

5la

No specific proposals were presented by either side

and no agreements were reached by respondent. and

its employees other than one to meet again during

.the following week. Carlson, one of the employees

present, then suggested that they ‘‘go in the back .

shop” and- prepare proposals for submission to. re-

_ spondent before the next meeting between the em- |

_ ployees and respondent.

While the employees were so “engaged, respondent’s

lawyer returned the call, which Knell had previously

made to him. Upon being informed of what had

happened respondent's lawyer absolutely forbade

further meetings with the employees because, as Knell

put it, ‘‘having signed the cards, they are considered

members of the union, and until this thing is settled

one way or the other, you cannot bargain with them |

no how.” Grant and Knell immediately notified the

employees that on advice of its lawyer respondent .

would not meet further with them. Upon being

pressed for thé reason Grant told the employees that.

respondent’s attorney ‘‘has informed us that you have

signed cards, and you are automatically represented

by the Union.” *

. Later that day, September 15, the employees decided

that they no longer desired the Union to represent

them. Emery, an employee who participated in the

decision, informed Galullo, the Union’s business rep-

resentative, of this, telling him that the employees

‘didn’t want anything to do with the Teamsters

Union .:. that they did not want them to represent

[the employees; and that they] wanted out because

[they] believed [they] were misled into it.”’

‘ Subsequently, the employees concerned, except

42 These findings are based on testimony given by Carlson, '

Emery, Knell, and —

8... BEY ce cna,

ROLL

Collins, engaged a lawyer“ and instructed him to

authority previously given the Union to represent

them for the purpose of collective bargaining. Such

notices, on behalf of each employee involved, ———

Collins, were. sent to the Union on October 5.“

C. Contentions and concluding findings as to respondent’s alleged violation

of Section 8(a)(3) of the act ;

Respondent contends that Collins was discharged 3

because of the mistakes which he had made and that

the termination of his employment was not related

to his union activity. Moreover, réspondent argues

that the General Counsel has not established that

. respondent had .knowledge of Collins’ participation

i e Union’s organizing campaign. The General

Counsel, in oppasition,; urges that Collins’ discharge

was attributable to his efforts on behalf of the Union '

and that it can be—inferred that respondent had

knowledge that Collins was so ——— while “in its

employ. .

To be sure, knowledge such as coset claims it —

did not have is a necessary ingredient of a violation

of Section 8(a)(3) of the Act and must be shown to

have existed before an unfair labor practice within

the meaning of that section can be said to have

oceurred. Although there is no direet evidence to

establish that respondent had knowledge of Collins’

activities on behalf of the Union, it is settled law

“that direct knowledge. of an employee’s concerted

or union activities is [not] a sine qua non for finding

that he has been discharged because of such activities.

‘8 It does not appear that the lawyer chosen. ‘by the employees

had any relationship with respondent or its attorney.

«These findings are based on testimony given by Emery and

. Carlson and on respondent’s Exhibits 7 (a) through 7 9 in

evidence.

oe |

€ contrary, there is well established. * * *

cedent that such knowledge may be inferred from

the record as a whole.” Wiese Plow Welding Co. » Ine.,

123 NLRB 616, 618.

Considering thie “record as a whole”, I conclude, as

did the Board in: Wiese, ‘that such an inference

should and must be drawn” in the instant case, par-

ticularly in the light of the following factors, most of

which were also present in. Wiese: (1) respondent's

knowledge at the time, it hired Collins that he had been

a member of a union in the past and “was thus a po-

tential source of union organization”; * (2) the small

number of employeésin respondent’s plan; * (3) Col- .

lins’ proselytizing on behalf of the Union among his

- coworkers almost: from the very start of his employ-

ment by respondent, much of which was done on plant

premises during working hours; and (4) the timing

of Collins’ discharge, which occurred abruptly_and

ae Fume Industries, Inc., 156 NLRB 423, 426.

*° Tt will be remerhbered, in this regard, that exclusive of two

office clerks, respondent’s entire complement consisted of 15

_employees. In Wiese Plow Welding Co., fuc., 128 NLRB 614,

618, on, which I place ‘considerable reliance for°“my finding .

of “company ° knowledge” the number: ‘of employees involved |

was “approximately 13.” In other cases in which the Board

made a similar finding based in part onthe fact that the

plant in question-was small, the total number of employees

ranged from 9 to 130. See, e.g., Vew French Benzol Cleaners

and Laundry, Inc., 1389 NLRB 1176, 1179, 1190 (9 employees) ;

Allied Distributing Corporation, 130 NLRB 1348, 1349, 1350,

enfd. 297 F. 2d 679 (C.A. 10) (13 employeees) ; Tru-Line Metal

Products Company, 1388 NLRB 964, 966, 972, enfd. 324 F. 2d

614 (C.A. 6) (36 employees) ; Stobeley F oods, Inc., 91 NLRB

1267, 1270, 1277 (75 employees) ; Afalone Rnitting . Company,

152 NLRB 643, 644, 647, enfd. 358 F. 2d 880. (C.A. 1) (80-90

employees); Quest-Shon Mark Brassiere Co., Inc., 80 NLRB

1149, 1150, enfd. 185 F. 2d 285 (C.A. 2) (130 employees).

a”

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54a

ape prior warning “’ several hours after respond-

ent received the Union’s bargaining request.

Having concluded that respondent had knowledge of

\Collins’ activities on behalf of the Union, it must next

\be determined whether respondent was motivated by

antiunion considerations jin discharging Collins, as

the General Counsel urges, or solely because of his -

,mistakes, as respondent contend. If the former is the .

ease, then, clearly, Collins’ discharge violated Section

8(a)(3) of the Act. N.L.R.B. v. Great Eastern Color

Lithographic Corporation, 309 F. 2d 352, 355. (C.A.

2), cert. denied 373 W.S. 950. If the latter, then, |

‘equally clearly, respondent’s termination of Collins’

employment did not constitute an unfair labor prac-

tice. Mitchell Transport, Inc., 152 NLRB 122, 123,

affd. sub nom. Hawkins v. N.L.R.B., 358 F. 2d 281

- (GA. 7).

On the record of this case, respondent’s claim that

it dismissed Collins because of his mistakes does not

_ appear to be ‘well taken. It seems to me, in this connec-

tion, that respondent expected new employees, such as

’ Collins, to make mistakes, else why -would Thuotte,

respondent’s dispatcher, have told Collins when he was

hired that respondent “invested approximately a year’

in a man before he would become efficient.”” Further-

more, Collins’: faults came to respondent’s attention

_@uring the first week of his employment. He was;

| nevertheless, permitted to continue working for an

‘*T do not construe the conversation between Grant, respond-

ent’s secretary, and Padden concerning Collins’ computation

errors as constituting an “informal warning” to Collins, as

respondent contends in its brief. First, Grant did not tell Pad-

den that disciplinary action would be taken. against Collins if

he persisted in making such errors. Second, Padden, like Col-

lins, was a rank-and-filé employee. Finally, there is no evidence

to. establish that Padden.informed Collins of his conv rersation

with Grant prior to Collins’ discharge.

05a

additional period of.more than 2 weeks. However,

several hours after respondent’s receipt of the Union’s

request for bargaining, which was the culmination of

Collins’ organizing effort on behalf of the Union

among respondent’s employees, he was summarily and

without prior warning discharged, ostensibly because

of the mistakes which he had made.

_ The timing of Collins’ abrupt discharge coming as it

did hard on the heels of the Union’s recognition re-

quest‘and the relatively long period during which re-

spondent suffered Collins’ deficiencies as an employee,

lead me ‘to believe that the real reason for Collins’

dismissal was his activity on: behalf of the. Union

which had its fruition in the Union’s request that re-

-spondent bargain with it. In this regard, it has been |

held that the “abruptness of a discharge and its tim-

ing are persuasive evidence as_ to’ motivation.”

N.L.R.B. v. Montgomery Ward & Co., 242 F. 2d 497,

502 (C.A. 2), cert. denied 355 U.S. 829: It has been

further held that “an employer’s tolerance of an em-

ployee’s shortcomings until he engages in union ac-

tivity is an indication of discriminatory motivation.”

Virginia Metalcrafters, Incorporated, 158 oben No.

90, footnote 3.“

on Finally, my belief that the, assigned reason for, Col-

lins’ dismissal was pretextual is strengthened by. the

conflicting testimony given by Grant and Thuotte,

respectively respondent’s secretary and dispatcher, as

to the basis for the joint decision to discharge Collins..

In N.L.R.B.,v. Radcliffe and Mancke, 211 F. 2d 309,

314 (C.A. 9) cert. denied 348 U.S 833, the court aptly

_ Stated that “the giving of. * *.* inconsistent * * *

reasons by management for the discharges of employ-

ees, properly, may ‘be considered by the Board * * *

in determining the real motive which actuated the dis-

48 See also Nitro Super Market, Inc., 161 NLRB No. 46.

biti ide Aide eh 46d bo ee

; 56a

charges.” To the same effect see Interiational Furni-

ture Company, 98 NLRB 674, enfd. 199 F. 2d 648

(C.A. 5).

Accordingly, I conclude that by discharging Collins

respondent. violated Section 8(a)(3) and (1) of the

Act.

D. Contentions and concluding findings as to respondent’s alleged violations

of Section 8(a)(1) and (5) of the act

~ The complaint asserts that respondent violated See-

tion 8(a)(1) and (5) of the Act by refusing to bar- |

gain with the Union, by causing its employees to

abandon a. lawful strike, by bargaining directly with

its employees, and by causing its employees 'to repu-.

diate the Union, Inasmuch as the latter allegations

have a substantial bearing upon the refusal to bargain

averment, they will be discussed first.

. The strike and its abandonment

hoe 14, following respondent’s ‘rejection

~ of the Union’s first request “for recognition and its

discharge of Collins in violation of Section 8(a) (3)

of the Act employees who signed cards authorizing

their representation by the Union struck. Their pur-

poses in striking, as I have found, was’ to compel

respondent to enter into a collective-bargaining agree-

ment and to obtain Collins’ reinstatement. On the next

day, September’. 15, the employees terminated their

strike and returned to work. 7

The complaint alleges that respondent caused its

employees to abandon their strike’and that by doing

so it violated Section 8(a)(1) and (5) of the Act. I

do not agree. I cannot find on the record of this case

that the termination of the strike was induced by any

conduct on the respondent’s part. On the contrary, the

evidence establishes conclusively that the employees,

. 57a

of their own volition, decided to abandon the strike

and that this decision was not made because of any-

thing done by respondent, but because two servicemen

in respondent’s employ refused to honor the picket

line established by the striking employees at respond-

ent’s premises on September 14. ~

. Accordingly, I conclude that the General Counsel

‘has not sustained his burden of proving by a prepon-

derance of the evidence that respondent violated Sec-

tion 8(a)(1) and (*) of the Act by causing its em-

ployees to abandor their strike as alleged’in para-

graph 15 in the e»mplaint. I will, therefore, recom-

mend that this paragraph and all-relating paragraphs

of the complaint be dismissed insofar as they have

reference to respondent’s causing the abandonment

of the strike.

Respondent’s direct dealing with its employees and their —— of

the Union

The General Counsel contends that respondent vio-

lated Section 8(a) (1) and (5) of the Act in bypassing

Union and bargaining directly with its employees

following their return to work after their strike and

by causing them to repudiate the Union. Although

respondent denies this, it argues by way of avoidance

that even if it did commit an unfair labor practice

by bargaining directly with its employees that viola-

tion was remedied by respondent’s refusal to meet

further with ifs employees and the immediate notice

to this effect which it gave to its employees. Insofar

as the repudiation of the Union is concerned respond-

_ ent asserts that this was not occasioned by its induce-

ment, but, rather, by the employees’ disenchantment

with the Union.

Briefly, the facts in connection with this phase of

the case, as I have found them, are that upon the ter-

mination of their short-lived strike respondent and

PATI Ne te

~ d8a

the employees who had struck engaged in a mutual

“sripe’’ session. Among the complaints aired by the

employees was their concern over,the absence of a

pension plan and a posted pay ale. They also ex-

pressed dissatisfaction with som aspects of their sick

and holiday pay. | |

_ Although the meeting continued for a substantial

period of time, neither respondent nor the employees

appointed a spokesman for their respective groups,

and the conference was, in general, informal. No pro- |

posals were presented by either side and no agree-

-ments were made as to matters which would normally

be found in a collective-bargaining -contract. In con-.

nection with the employees’ complaints. over the lack

of a pension plan, however, respondent indicated that

it had already started negotiations in a that regard with

several insurance companies.

At the conclusion of the conference respondent

agreed to meet again with the employees during the

following week. The employees then went into re-

spondent’s shop to prepare proposals for submission |

to respondent before their next meeting. |

Immediately after the meeting respondent’s presi-

dent was advised by its lawyer not to meet further

with the employees. during the pendency of the

Union’s representation claim. Respondent’s president

promptly informed its employees that it would follow

its lawyer’s advice.

I agree with the General Counsel that respondent’s

discussion with its employees which embraced such

matters as sick and holiday pay, pensions, and posted

wages. scales constituted individual bargaining in

derogation of their right to be represented by the

Union and, hence, a violation of the Act..I am con-

vineced, however, that a remedial order is not re-

quired insofar as this aspect of the case is concerned.

d9a

I am persuaded in this-regard by respondent’s argu-

ment that unfair labor practices committed by re-

spondent in dealing directly with its employees were

cured by its immediate discontinuance upon being ~

advised to do so by its lawyer and by its prompt notice

to the employees that it would not meet further with

them. A Board order could not accomplish more.”

‘A different result is ‘equired, however, by the

sequel to respondent’s direct bargaining with its em-.

ployees’, i.e., their repudiation of the Union. Respond-

ent contends that it did not contribute in any way to

their employees’ withdrawal from the Union. This

argument, however, is not well taken, for in the field

of labor management relations law no, less than in

“other areas of jurisprudence “a man is held to intend

the foreseeable consequences of his conduct,” ® here,

the repudiation of the Union by the employees.

Respondent’s conduct which resulted in the ‘‘for-

seeable consequence’? of the Union’s repudiation

- started with its meeting with its employees, at the out-

set of which they stated that they wanted to discuss

their “gripes.’’ To this respondent’ s president replied |

that perhaps ‘‘we could straighten something out by

having this get.together.” As the meeting progressed :

respondent’g representatives indicated that a pension

plan, the absence of which appeared to be of greatest

concern to the employees, might be in the offing. Al-.

though no agreements were actually reached, hope for

employee benefits through further conferences was

held out by respondent’s promise to meet again with

. its employees the followingwweek. | .

*° As the Supreme Court stated in this regard, “the relief .

. which the statute empowers.the Board to grant is to be adapted

_ to the situation which calls for redress.” V.L.R.B. v. Mackay

Radio & Telegraph Co., 304 U.S. 333, 348.

°° The Radio Officers? Union, etc. v. N.L.R.B., 347 U.S. 17, 45.

ORE ENR mopar To uOpE mr gene POP AER Ee a WORM REE NE PRE NSE Ne

‘ ‘

. 60a e

After having thus instilled in its employees the ex-

pectation that matters might indeed be straightened

out, the employees were informed by respondent that |

there would be no further meetings because, in the

words of its secretary “you have signed ecards and you

are automatically represented by the Union.”

It needs no great imagination to foresee that re-

spondent’s entire course of conduct in this regard, -

including not only the manner in which its individual

bargaining with its’ employees was terminated, but

also the violative bargaining itself, and the hope which

it engendered for future benefits would yesult in the

employees’ rescision of the authority of the Union to

_ act as their bargaining representative. This action was

taken by them immediately and formalized in writing

some 3 weeks later. | |

In sum, respondent by bargaining directly with its

employees started the chain of events which foresee-

ably resulted in their repudiation of the. Union. Re-

spondent must, therefore, be held responsible for this

predictable consequence of. its conduct. Accordingly,

I conclude that by causing its employees to repudiate |

the Union respondent violated Section 8(a) (1) of the

Act. - oe | ,

Before determining whether, as alleged in the com-

plaint, respondent violated Section 8(a) (5) of the Act

by refusing to bargain with the Union, preliminary

findings must*be made concerning the appropriateness ..

of the unit for which the Union sought recognition ™

and as to whether the Union represented a majority

of the employees in that unit.”

51 Joslin Dry.Goods Company, 118 NLEB 555, 557, 558.

°° H. W. Elson Bottling Company, 155 NLRB 714, 715-716.

6la

_ The appropriate unit

The complaint, as amended at the trial, asserts that

‘fall employees employed by respondent # * includ-

ing. fuel truck drivers, installation men, servicemen,

soot men, but excluding salesmen, office clerical em-

ployees and supervisors” * constitute a unit appropri-

ate for collective bargaining. —

It is well established that in dekeieniuiion the ap-

propriateness \pf a unit for collective-bargaining pur-

poses, the prifne consideration is the community of

interest shared by the employees involved. EZ. H. Koes-

ter Bakery Co., Inc., 136 NLRB 1006, 1009. As further

pointed out in Koester, the factors ‘‘which tend to

show the presence or absence of this community of

interest” are varied and include such things as the

employees’ ‘‘common experience, duties, wages, hours,

and other working conditions.’’ All, Koester teaches,

must be taken into consideration and evaluated.

_ I have found that the. employees in question are

hourly rated. Each has a timecard. All except the

maintenance man, wear the same work uniform. All

benefit from an insurance program maintained by

: respondent and enjoy the same vacation and sick leave

privileges. All work in respondent’s warehouse, except

when they are performing duties away from respond-

ent’s premises. Finally, insofar as ‘‘ecommon experi-

ence * * * and working conditions” are concerned, all

°° Although, as I have found, respondent employs a maiite-

nance man, he is neither specifically included nor excluded jn

the unit description appearing in the amended complaint. How-

ever, in view of the inclusive reference to “all employees,” the

absence of the term “maintenance man” from the exclusions, and

man was intended to be included by the General Counsel, the

unit description set forth in the amended complaint will be con- -

strued as including the maintenance man.

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62a

the. employees involved share the same restroom and

- other facilities in the shop.

The main function of the drivers is, as I have found,

to deliver fuel oil to respondent’s customers. I have -

also found, however, that for a substantial portion of

their time, generally in the summer when there are

few deliveries to be made, the drivers assist the serv-

icemen in their-work.

Supervision is also a factor to be taken into account -

in determining whether there is a community of in-

terest among the employees concerned. L. D. Caulk ~

Company, 158 NLRB No. 33; Federal Electric Corpo-

ration, 157 NLRB No. 89. In this regard, there is, as

has been found, a considerable amount of common and

ov erlapping direction of ‘the work ‘performed by the

employees ‘in question. Thus, respondent’s president

oversees its ‘whole operation.” Its sales engineer “*di-

rects the activities” of the industrial servicemen, and,

with assistance from respondent’s secretary, assigns

_ work to all servicemen. The drivers, domestic service-

men, and maintenance man are normally supervised

by respondent’s dispatcher and the sootmen by its

secretary, but from time to time respondent’s sales

engineer also exercises supervision over the. sootmen,

drivers, and maintenance man. Organizationally, al-

though the dispatcher usually ‘‘reports”’ to ‘respond-

ent’s president, he does so, on occasion, to Its

secretary.

, An evaluation of the foregoing factors in my opin-

ion ‘‘tends to show the presence * * * of: [a} com-

_ munity of interest’? among respondent’s servicemen,

\ sootmen, drivers, and maintenance man sufficient to

warrant their inclusion in a single unit for collective-

bargaining purposes.” It is respondent’s position, how-

ever,.as set forth in its brief, that to include the serv-

%& FE. H. Koester Bakery Co., Inc., 186 NLRB 1006, 1009.

68a

iceémen in a unit which also embraces the other em-

ployees in question would be improper because of their

special skills, their “lack of interchangeability with

- other employees” * and the coverage of some of them

by respondent’s contratt with the Plumbers Union,

which respondent submits ‘‘is a bar to these proceed-

ings.” For these reasons respondent argues that-a unit

consisting only of servicemen, excluding those covered

by the Plumbers Union contract, ‘‘would be more

appropriate” than one which also includes other

employees. :

Considering first, respondent’s arguments bottomed

upon the contract, it appears that this agreement cov-

ers only two of respondent’s servicemen. Accordingly,

even if this were a representation. proceeding,” this

contract would not operate as a bar; at least insofar

as the employees not covered by the contract are con- —

cerned. Cf. N. Sumergrade. ing Sons, 121 NLRB 667,

669-670.

Nor does the contract: Whi reminendont and the

Plumbers Union preclude the placement, of the two

covered servicemen in a unit which also includes re-

‘spondent’s other employees. The contract is applicable

to the two servicemen in question only for a 6-week

period in each year during which they install oil

-burners in buildings under construction. During the

rest of the year they do the same kind of work.as re-

spondent’s other servicemen and are subject to the

same working ¢onditions as all°other persons in re-

spondent’s employ. They are, therefore, dual-func-

85 This contention appears to be effectively negatived by the

_ assistance afforded the serv iceman by the drivers, as pointed out

above.

°° See Hexton Furniture Company, 111 NLRB 342, 343-344,

which applied contract bar principles to a complaint case allegt

ing violations of Section 8(a)(5) of the Act.

CRT ott ne Ha mag ops teen en

J sdiaciitiaatialee alata | Sean trae eee

64a

tion employees. As such, regardless of the contract,

they may be placed in the same unit with other em-

ployees whose interests they share. Berea Publishing

Company, 140 NLRB 516, 519. In Denver-Colorado

Springs-Pueblo Motor Way; 129 NLRB 1184, over-

-ruled in other respects hy Berea Publishing, the em-~

ployee in question was, as are the two servicemen. heré,~

covered by a contract with another union. porwr

the Board noted this factor, it was given no weight in

determining the unit. placement of the dual- function

_ employee there under consideration.

While I agree with respondent that the service-

men exercise special skills, I do not agree that they

should for this reason be set apart for unit purposes

fromthe other employees with whom they share eom-

mon working conditions and other interests. Cf.

Meramec Mining Company, 134 NLRB 1675, 1676, in

which the Board stated that the unit placement of cer-

tain highly skilled technical employees would be deter-

“mined upon “an analysis of their community of -in-

terest,” taking into consideration not only their “skills

and duties,’”’ but also the other usual factors such as

“the presence and absence of common supervision,

the similarity or disparity of working condigions, the

kind of industry, the contact or interchange with other

- employees, and the organization of the plant.”

Respondent’s final argument, insofar as this phase.

of the case is concerned, is that a unit consisting only’

of servicemen, excluding those covered by its contract

with the Plumbers Union ‘‘would be more appropri-

~ ate” than one which also includes ‘other employees. A

short, but effective, answer to this is found in Morand

Brothers Beverage Co., 91 NLRB 409, 418. There the

Board aptly stated that the Act t dyes not require ‘that

the unit for bargaining be the only appropriate unit,

65a

or the ultimate unit, or the most appropriate units;

the Act requires onlythat the unit be ‘appropriate’.”’ ”

Respondent’s arguments as to why the servicemen

should not be included in a unit for collective bargain-

" ing which also includes respondent’s other employees

being, in my opinion, without merit. I conclude, in

view of the sufficiency of their community of interest

that respondent’s drivers, servicemen, sootmen, and

maintenance man constitute an appropriate collective-

bargaining unit.

The Union's majority

Having concluded that a unit consisting of respond-.

ent’s drivers, servicemen, sootmen, and maintenance

man is appropriate for collective bargaining, it must

next be ascertained whether the Union represented a

majoritygof the employees in this unit. In this regard,

it is ndént’s contention-that the authorization

cards on which the union majority claim is based are

invalid beeause of misrepresentation in their pro-

curement. y :

There were 15 employees in this unit on Septem-

ber 9 and 14,'on both of which dates the Union re-

quested recognition. To establish the Union’s majority

the General Counsel offered 10 cards in evidence. Nine

were signed before September and the 10th was signed

on September 13.. = a

Although contending that each card was obtained

by misrepresentations sufficient to invalidate it, re-

spondent refers specifically to four, those signed by >

* Although Morand Brothers has had a checkered history on

enforcement and on remand, the principle enunciated in the text

does not*appear to have been questioned. See Morand Brothers

Beverage Co., v. N.L.R.B., 190 F. 2d 576 (C.A. 7), enfg. in part

and remanding 91 NLRB 409, and 204 F. 2d 529, enfg. 99

NLRB 1448, cert, denied 346 U.S. 909; rehearing denied 346

_ US. 940. |

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66a

‘Carlson, Rouleau, —Emery, and MacLellan,’ as being

illustrative of all,* and urges that these four, at-least,

‘be not counted in determining the Union’s majority.

If this were done, it would, of course, result in the

Union’s representation of only six employees in the ~

unit, less than a ak a ees 7

The cards unequivocally authorized the Union to

“represent”? those who signed ‘for the purposes of

collective bargaining.” No grvseasse 4 purpose ap-

peared on, the cards. “An authenticateth signature. on

an authorization card [like those signed‘ay the em-

ployees here] is prima facie evidence that itis what

it purports to be—a designation of the Union as the

employee’s bargaining representative, unless it is

shown that the employee was induced to sign the

card through beguilement or serious misstatement of

fact.” ® This is so, “irrespective of what the employee

thought * * * as long as the solicitor does not make

a significant false statement * * *’’ South Bay Daily

Breeze. 160 NLRB No. 145. | tl

Considering the disputed card8 in the light of these

principles,. I find, insofar as Carlson is concerned,

that he was truthfully and in accordance with the

text of the card told by Collins, who solicited cards oni.

behalf of the Union, in response to an inquiry, that. .

he would not become a member of the Union by sign-

_ ing the card and that the cards would authorize the

Union to “talk to the company on [his] hehalf.’’

Collins told Rouleau substantially the same thing and

added a suggestion that Rouleau attend a union meet-

58 See footnote 22 for my conclusion with respect to this.

°°To undercut the validity of an authorization card “which

[as in this case] plainly designates a union as bargaining agent,

the employer can prevail only with clear evidence. of misrepre-

sentation.” Amalgamated Clothing Workers of America, AFL-

CIO wv NIRB., F. 2d , 68 LRRM 2581, 2584

(C.A.D.C.). :

67a

ing. No statements as to ‘the card’s purport were made

to MacLellan. He was merely asked by Galullo, the

Union’s business representative, to sign the care, and

he did so.

' The impressions harbored by Carleen: and Mae-

Lellan as to the significance of the cards were their

own and were not engendered by any statement made

by Collins, Galullo, or any other representative of the

Union. Thus, Carlson testified that it was his “own

conclusion” that the purpose of the card was to in-

dicate the signer’s interest in ‘*forming a union’’;

that the Union would so notify respondent; and that

then the employees could decide ‘“‘whether or not

[they] wa nted to -vote the union in.” MacLellan

formed a completely different impression as to the

meaning of the cards based~ upon, as he testified,

“general conversation’’ among the employees.” He con-

cluded that employees had to sign cards as a pre-

As South Bay Daily Breeze directs, however, I may —

not rely on these thoughts as to the. meaning of the

cards in determining their validity. I may only con-

sider whether there is clear evidence that the

- employees were “induced to sign * * * through be-

guilement ‘or serious misstatement of fact.” Finding

neither present I conclude that thera was no impro-

priety in the Union’s procurement df authorization

eards from Carlson, Rouleau, and .MacLellan. They

will, therefore, be counted in determining whether

the Union represented a majority of the employees

in the unit.

*° Although Collins was present when this “general conversa-

tion” took place, MacLellan admitted that Collins did not: say

anything which contributed to the establishment ‘of his

impression.

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68a ved

A different conclusion is required with respect to

Emery’s. card. By September 7, the. day on which

Emery signed his ecard, only six other employees in

the unit had done so." Nétwithstanding this, Collins

‘told Emery on that day that. all the other ‘employees

_ had signed cards, and that he was the only. ore who .

»., ‘had not.. This -misrepresentation was serious enough

-to invalidate Emery’s card. Pizza Products Corpora-

tion, 153 NLRB 1265, 1266, 1271, enfd. as modified

in other respects, 369 F. 2a 431 (C.A. 6). It- will,

therefore, not be considered in ascertaining ‘the:

_Union’s.majority status. __ y

' Adding the cards signed by Carlson, Rouleau, and

‘MacLellan to the six other cards signed by employees

in the unit,” all of,which I find to. be valid, the Union

represented eight employees in the unit on September,

9, the date-of its first request for bargaining and nine ~

on September 14, the date on which it again requested

recognition: Inasmuch as there were a total of 15.

‘employees in the unit on those dates, I conclude that

-the Union represented a majority on both occasions.

a oe ' _Respondent’s refusal to bargain with the Union

_ In justification of its refusal to bargain with the

Union respondent makes two, basic. arguments. The —

first is that the unit: for which ‘the Union sought recog-—

nition is inappropriate. The second is that in good

faith it doubted,«at the time of the bargaining re- ~

_ - quests, that the Union represented a majority. Ac-

cordingly, respondent argues in its brief, it had suffi-

cient regson ‘‘to refuse recognition and to demand that

the Board prvoginge be followed to, first, determine

*.74m including Padden’s card in this figure, although it,

too, was signed on September 7:

- 62'These consist - of. cards signed by Collins, Robert ems

. Thomas cae Padden, John Yale, and Parisi.

69a .

what the appropriate unit was, and, second, by the

use of. the Board’s election procedures to determine

whethtr or not the employees in such an appropriate

unit desired to be representéd by the Union.” Coun-

tering the General Counsel’s contention that respond-

ent’s refusal to recognize and bargain with the Union

was not based upon its foregoing claims but upon its

determination to gain time within which to destroy

e Unidn’s majority status, respondent also asserts an

its brief ‘“‘that absolutely no. independent 8(a) (1) vio-

lations have been proved by substantial evidence’? and -

. that there “was no flagrant-violation of the Act.”

Respondent’s argumént concerning the appropriate-

ness of the unit is without merit. It is well settled that

_ sen. employer acts ‘‘at its peril”.in refusing to bargain

on the ground that the unit in which the Union:seeks

- recognition is inappropriate if it is coneluded, as in

this case, that, the unit is appropriate. Tom Thumb

Stores, Inc., 123 NLRB 833, 835. See also Hoskins |

, Ready-Mix Conerete, Inc., 161 NLRB No. 132.

Respondent’s other arguments in defense of its re-

fusal to bargain with the Union are likewise without

merit. Where an employer, in good faith genuinely

-. doubts. that ‘a union seeking reéognition represents a

majority of the employees involved he may refuse to

recognizé the union until its claim is established by an

election. An employer, however, is not entitled to an

- election where he engages in serious unfair labor prac-

tices 1 in order ‘‘to gain time within which to undermine

the Union’s. suppor ” and then asserts a good-faith

doubt as: to the union’s. majority. In such a case the’

election procedure will be bypassed and the employer

will be required to bargain with the union provided

the unit involved is appropriate and the union in fact

represented a majority of the employees when it re-

quested recognition. This is the teaching of Joy Silk

: 708

Mills, Inc., 85 NLRB 1263, enfd. as modified i in other

respects 185 F.2d 732 (C-A.D.C.), cert. denied pal

U.S. 914, and of countless subsequent cases.

The facts of this case, I am convinced, require the

_ application of the Joy Silk rationale. Respondent’s

serious unfair labor practices, including the discharge

. of Collins in violation of Section 8(a) (3) ‘and (1), its

direct bargaining with its employees, and its having ~

caused them to repudiate the Union, in violation of

Section 8(a)(1) of the Act, belie respondent’s pro-

fessed good-faith doubt as to the Union’s ‘majority.®

I, therefore, ‘Teject respondent’ s contentions in this

regard, and find, in view of respondent’s. serious vio-

lations of Section 8(a)(1) and (3) of the Act, that its

| _ refusal to bargain with the Union was in bad faith,

and was designed to gain time in which to destroy the

Union’ s status as its employees’ collective-bargaining

_representative. |

Accordingly, having found that the unit for which.

the Union ‘requested recognition was appropriate for

purposes of collective bargaining and that the Union ——-

represented a majority of the employees in that unit

when it requested respdndent to bargain with it, I con-

its refusal to bargain with the Union constituted vio-

lations of Section 8(a) (5) and (1) .of the Act.

68 Even if Collins’ violative discharge had been respondent” Ss .

nly unfair labor practice, my conclusion with respect to this

phase of the case would not be different. See Dee's of New Jer-

sey, Inc., 161 NLRB No. 18, where the Board stated in a

related context that “a discriminatory denial of employment

[is] the kind of conduct which is. most likely to impress upon

employees the disfavor with which the employer regards Kis

employees’ organizing activities” and that, therefore, mt serious -

view must be taken” of such a violation.

71a :

IV. The effect of the unfair labor practices: upon commerce

Respondent’s activities set. forth in section III,

above, occurring.in connection with its operations. set

forth 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 dis-

putes burdening and obstructing commerce and the

free flow of commerce.

v. The remedy

‘Having found that respondent engaged in the un-

fair labor practices sét forth above, my Recommended

Order will direct respondent to cease and‘ desist there- -

from and to take such affirmative action as will effec-

tuate the purposes of the Act.“ In this connection, as

respondent, has already offered reinstatement to Col-

lins, respondent will be required only to make him

‘whole for less of earnings he may have suffered by

the discrimination practiced against him. Any back

pay found to be due to Collins shall be computed in

~ accordance with the formula set forth in F. W. Wool- .

worth Company, 90 NLRB 289, and shall include

interest in the amount and-manner provided for in

Contending that the strike which took place on Sep-

tember 14, was an unfair labor practice strike, the

General Counsel urges that the order to be entered

herein provide that the strikers “be made whole for

the consequences of Respondent's actions.’’ While I

agree that the work stoppage in gestion was an unfair

labor practice strike,* there is no evidence that the

* Having concluded that respondent has already cured the

‘ unfair labor practices involved in its direct bargaining. with its

employees, I will not recommend the entry of an order reme-

_ dying this violation. See page 15, swpra, for my reasons.

®° Mitchell Concrete Products Co., Inc., 137 NLRB: 504, 506.

FOE OPTS NT eee

72a

_ strikers were refused reinstatement when they decided

to return to work. Absent this, as is well settled, a

“make whole” remedy, insofar as: they are concer ned,

-is unwarranted.

In view of the repudiation of the Union by - re-

spondent’s employees, respondent urges that the entry

~of a bargaining order’ would completely disregard the

right of those employees, as set forth in Section 7 of

‘the Act, to refrain from collective bargaining. Re-

spondent, however, as I have found, is responsible for

its employees’ defection from the Union. Were re-

spondent to be permitted to continue its refusal to

bargain with the Union because it does not now rep-

resent a majority of its emplovees would be to permit |

respondent to profit from its own wrong. As the Su-

_preme Court stated in Medo Photo Supply Corpora-

tion v. N.L.R.B., 321 U.S.-678, 687, which involved a

situation substantially similar to the one ‘pr esented

here: :

Petitioner cannot, as justification for its re- _

fusal to bargain with the Union, set up the de-

fection of union members which it had induced »

by unfair labor practices, even though the re-

sult was that the union no longer had the

support of a majority. It cannot thus, by: its

own action, disestablish the 1 union as.the bar-

~ gaining representative of the employees, pre-

viously designated as such of their. own free

will.

See also, to the same ‘effect, Franks. ins Company

_E. N.L.B.B.,, 321 U.S. 702, 7 703-705.

Accordingly, my Recommended -@rder will contain

a provision requiring respondent to bargain with the

Union. It. will also contain, in -view of the nature and

extent of the unfair labor practices engaged in by

respondent, broad cease-and-desist provisions. |

73a,

a the basis of the foregoing Satins of fact,

and upon the entire record in this nam, I make the

following: *

Conclusions of Law

1. Respondent is an employer within the ‘meaning °

of Section 2(2) of the Act and is engaged in com-

merce within the meaning of Section 2(6) of the Act.

2. The. Union is a labor organization within the

| meaning of Section 2(5) of the Act.

3. By bargaining directly with its employees and by

- causing them to repudiate the Union and to rescind

the authority of the Union to represent them for pur-

poses of collective bargaining, as set forth in section

III hereof, respondent has engaged in and is engaging

‘in unfair labor practices within the meaning of See- |

. tion 8(a) (1) and (5) of the Act. . ,

4. By discharging Carl Collins because of his mem-

‘bership in, and/ activities on behalf: of, the Union,

thereby discouraging such conduet, respondent has en-

gade in and is engaging in unfair labor practices

- within the meaning of Section 8(a) (3) and (1) of ~ ~*~

| ’ Act.

5. All employees employed by respondent, including

fuel truck drivers, installation men, servicemen, nower

cleaners, also known - as sootmen, and maintenance

men, excluding salesmen, office clerical employees and

supervisors as defined in the Act, constitute a unit

' appropriate for purposes of collective bargaining

within the meaning of Section 9(b). of the Act.

6. At all times material herein the Union has rep-

resented a majority of the employees in the unit set

forth in Conclusion of Law 5, above.

7. By failing and refusing to recognize and bargain

with the Union as the collective-bargaining represent:

ative of the employees in the unit set ‘forth in Con-

clusion of Law 5, above, respondent has engaged iin

issie the following:

‘or any other: labor organization,

against employees in regard to hire er tenure of em- —

74a

and is engaging in unfair labor practices within the

meaning of Section 8(a) (5) and (1) of-the Act.

& Respondent did not engage in’ unfair labor prac-

tices in the manner set forth in those portions of para- -. -

graph 15 and related paragraphs ofthe complaint

insofar as those paragraphs make reference to re-

* spondent’s having. caused its employees to abandon.a

lawful strike.

Upon the foregoing” fedings of fact, conclusions of

law, and upon the entire record in this ease, I hereby

N ; /

ee RECOMMENDED ORDER

The Pembek Oil Corporation, its officers, agents,

successors, and assigns, shall:

1. Cease and. desist from:

(a) imal or inducing employees to repudiate .

Intefnational Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, Local. Union

No. 677, or any other labor organization.

(b) Causing: or inducing employees to rescind the

Chauffeurs, Warehousemen and Helpers of America,

Local Union No. 677, or any dther labor organization, | :

. to represent them for purpose of collective bargain- —

ing.

(ce) Discouraging -membershih — in International

Brotherhood of Teamsters, Chaiffeurs, Wdrehouse-

men and Helpers of America, Lodal Union No. 677,

ployment or any term or condition \pf employment.

. (d) Failing or refusing to recognize\pr bargain ¢ol-

lectively concegning rates of pay, wages, hours, or...

“other terms or conditions of employment with Inter-

national Brotherhood of Teamsters, Chauffeurs, Ware-

housemen @ Helpers of America, Local\Union No.

40a

677, as the exclusive collective-bargaining representa-

_ tive of its — in the Totlowing appropr iate .

unit:

All eanphiyees employed by respondent, including

fuel truck drivers, installation men, servicemen, power

cleaners, also known as -sootmen,.and mairitenance

men, excluding sdlesmen, office clerical employees and

_ supervisors as defined in the Act. -

(e) In any other manner interfering with, restrain-

ing, or coercing .employees in the exercise of their

right to self-organization, to form, join, or assist labor

organizations, to bargain collectively thtough repre-

sentatives of their own choosing, or to engage in other

concerted activities for the purposes of collective bar-

| gaining or other mutual aid or protection as guaran-

teed ir Section 7 of the National Labor Relatious Act,

_ as amended, or to refrain from any or all such activi-

ties, except to the extent that such right may be

wffected by an agreement requiring membership in a

labor organization as a condition of employment in

conformity” with Section 8(a) (3) | ofthe Act.

-- 2. Take the following affirmative action which, it is

- found, will effectuate the policies of the x ational

i Labor Relations Actas amended :

(a) Make Carl Collins whole for any loss of earn-

_ ings he may have suffered by reason of the diserimina-

tion practiced against: him in the manner set foith

in the section of this Decision entitled ‘“The Remedy.”

(b{ Preserve and, upon request, make available to

_ the National Labor Relations Board or its agents, for

examination or copying, all payroll records, social se- —

curity payment records, timecards, personnel records.

or reports, and all other. records necessary or useful

to detemine the amount of backpay due under the

~ terms of this Recommended Order. *

(ec) Upon request, recognize and bargain w ith Inter-

nation: Byotherhood of Teamsters, Chauffeurs, Ware-

a Tae a eee we

AL siete a

- housemen and Helpers of America, Local Union No.

‘677, as th

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