Aiello Dairy Farms

National Labor Relations Board - Board Decisions

Dec 13, 1954

110 N.L.R.B. 1365 (N.L.R.B. 1954)

AIELLO DAIRY FARMS 1365
Carriers, Inc. to assign over-the-road work, or the work of making
pickups and deliveries in the 25- to 50-mile radius surrounding the
City of Utica, New York, to members of Local 182 rather than to
employees of Pilot.
2. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, Local 182 shall notify the Regional Director for
the Third Region, in writing, as to what steps the Respondent Local
182 has taken to comply with the terms of this Decision and Deter-
mination of Dispute.
Louis AIELLO, BENJAMIN AIELLO , JOSEPH AIELLO, MARIO AIELLO,
.ANTHONY AIELLO , THERESA AIELLO , RAFFAELA AIELLO and JENNY
AIELLO CO-PARTNERS D/B/A AIELLO DAIRY FARMS and CONGRESS OF
INDUSTRIAL ORGANIZATIONS . Case No . 3-CA-637. December 13,
1954
Decision and Order
On August 14, 1953, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other alleged unfair
labor practices, and recommended that the complaint be dismissed as
to these allegations. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, except insofar as they are inconsistent with
the findings and conclusions set forth below.
1. We find, as did the Trial Examiner, that the Respondent had
discharged on September 20, 1952, employees William Gascon, Byron
Colburn, and Felix Chapman, and on November 12, 1952, employee
Hazel Hartwick, because of their union membership and activities, in
violation of Section 8 (a) (3) of the Act.
2. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by the following statements and conduct
of its supervisory and managerial personnel: (a) Benjamin Aiello's
interrogation of employees Thompson and Colburn on September 20,
1952, as to who was starting the Union; (b) Louis Aiello's interroga-
tion of Hazel Hartwick on November 12, 1952, as to whether she had
110 NLRB No. 205.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anything to do with the Union; and on December 3, 1952, the date of
the election, of employee Pauline Hazelton as to what she thought of
the situation at the plant, what she intended to do, and if she was go-
ing to vote for the Union, while at the same time promising her a raise
in wages; (c) Benjamin Aiello's statement a few days before the elec-
tion to Thompson, Knowlton, and others that the Respondent was go-
ing to give the employees paid vacations and institute a medical in-
surance program during the following year; (d) Louis Aiello's state-
ment on the afternoon of the election to Carmen Townsend and other
employees that he was going to give the employees paid vacations and
endeavor to work out a program of insurance for them during the
forthcoming year; and (e) the granting by the Respondent to a num-
ber of employees, during the Union's organizational campaign, of a
wage increase of 10 cents per hour.
3. We do not find that the Respondent violated Section 8 (a) (5) of
the Act. The Trial Examiner found that the Respondent's failure on
October 2, 1952, and thereafter to recognize and bargain with the
Union, and its insistence that the Union establish its representative
status in a Board-conducted election, were not based upon a good-faith
doubt as to the Union's majority status but upon a desire to defeat the
Union's organizational activities at the plant, inferring such intent
from the Respondent's other unfair labor practices set forth in the In-
termediate Report. The Respondent contends, however, that the Trial
Examiner's inference of bad faith is not justified, and also that the
Union, by proceeding to the representation election on December 3,
1952, despite its belief that the Respondent had unlawfully refused
to bargain and engaged in other unfair labor practices, is now estopped
from asserting that the Respondent's refusal to bargain and its insist-
ence upon the election were in violation of Section 8 (a) (5) of the
Act. For the reasons hereinafter set forth, we find merit in the Re-
spondent's latter contention.
As more fully set forth in the Intermediate Report, on October 2,
1952, Gassman, the Union's representative, requested Benjamin Aiello,
partner and general manager of the Respondent, to recognize the
Union and discuss a contract. Aiello at first deferred the matter in
order to talk to his brother, Louis Aiello, but at a conference on Octo-
ber 10 asked to see the Union's authorization cards. Gassman replied
that he would bring them to the next meeting, scheduled for October
17. In the meantime, however, on October 15, the Union filed a rep-
resentation petition with the Board and at the October 17 conference
refused to permit inspection of the cards except under certain condi-
tions.' Aiello, who had received notice of the filing of the representa-
1I. e. that some impartial person be selected to check the cards against the payroll, or,
in the alternative , that the Respondent agree in writing to sign a contract in the event the
cards showed a majority for the Union.
AIELLO DAIRY FARMS 1367
tion petition, declined to accept such conditions saying, "as long as
we are going through an election, let's let the employees decide whether
there is going to be a union or not." On November 8, the parties signed
an agreement for a consent election, which was held on December 3,
resulting in 6 votes for, and 10 against, the Union, with 11 challenges.
The Union filed objections to the election and, on December 23, 1952,
the original charge in this case. On March 6,1953, after investigation
of the Union's objections, the Regional Director issued his report on
the objections, and set the election aside. The Union thereafter with-
drew its petition.
It is apparent that the Union was fully aware of the unfair labor
practices by the time of the election. Thus, Gassman, 2 days before
the election, sent to the Board's field examiner a telegram protesting
the "unjustifiable discharge of five employees" and the recent grant
of a wage increase, and saying that the Union "believes that this action
by the Company is an attempt to discourage membership in voting
for the CIO." The telegram also said that "The CIO will not file
unfair labor practice charges at this time as such action would pre-
vent the NLRB election from taking place December 3." 2 Again,
on December 3, a few hours before the election, Gassman delivered to
the Board's field examiner a letter addressed to the Regional Director
asserting that the Respondent "has been intimidating, coercing and
threatening his employees against voting for the Union" and calling
attention again to the five discharges which the Union alleged to have
been discriminatory.3
It is likewise apparent that when the Union became aware, after
the Respondent's refusal to recognize and bargain with it, that the
Respondent was engaging in a course of unlawful conduct, it then
had two courses of action open to it, either of which it might pursue to
establish officially its status as the bargaining agent. It could then
have filed charges against the Respondent alleging an unlawful refusal
to bargain, or it could pursue the representation proceeding. It chose
the latter course, and followed it unwaveringly through to an elec-
tion. Thereafter, having lost the election, it filed the charges in this
proceeding.
Had the Union earlier filed its charge of refusal to bargain, the
Board under its long standing practice would not have conducted the
representation election until the charges were disposed of. Nor would
the Board have accepted a waiver of such a charge as sufficient reason
2 Thus it cannot be said, as our dissenting colleague suggests , that the Respondent's re-
fusal to bargain "induced" the Union to pursue the representation proceeding. Rather it
appears that the Union was fully cognizant, well before the election, of all the matters
upon the basis of which it now asks the Board to find that no genuine question of repre-
sentation existed.
3 The purpose of this letter apparently was to request that the five discharged employees
be permitted to vote in the election , and that certain other employees alleged to be super-
visors be held ineligible to vote.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for permitting the election to proceed 4 A reason for this is that al-
though either a representation proceeding or an unfair labor practice
proceeding alone might be, in the light of the particular circumstances,
the procedure appropriate for establishment of the Union's status,
both cannot at once be appropriate because they are based on funda-
mentally different premises. Thus for the Board to proceed upon a
representation petition requires the Board to find that a question of
representation exists, to be resolved by an election. On the other hand,
a charge of unlawful refusal to bargain under Section 8 (a) (5) of the
Act must allege in effect that there is no question of representation
and that the union involved is in fact the exclusive representative,
with whom the employer is legally required to bargain. The bases
of the two proceedings are thus mutually inconsistent.
Apart from the divergent nature of these processes, sound adminis-
trative practice also requires that the Board refuse to proceed with a
representation election when charges of refusal to bargain have been
filed.5 For the Board, as custodian of a public statute, should not be
compelled to diffuse its energy and expend time and public funds in
useless and repetitive proceedings. The Union in this case by delay-
ing the filing of its 8 (a) (5) charge circumvented the Board's sound
practice of not conducting a representation election when an 8 (a) (5)
charge is pending and caused the Board to conduct a futile election.
The Union's telegram to the Board before the election protesting the
Respondent's conduct makes clear its knowledge of the unfair labor
practices and its purpose to evade the Board's practice. We see no rea-
son for permitting a labor organization after it has thus resorted to a
representation election with knowledge of unfair labor practices to
revert to an 8 (a) (5) proceeding based upon the same unfair labor
practices as a means of establishing its representative status 6 We
therefore find that the Union may not now urge facts which took place
before the representation election as grounds for finding a violation
of Section 8 (a) (5). Although the Respondent here is alleged to
have engaged in conduct violative of Section 8 (a) (5) on March 23,
1953, after the election, the record contains no showing after the elec-
tion that the Union was the majority representative of the employees
involved on March 23, and the Union may not establish a refusal to
: See The Great Atlantic and Pacific Tea Company , 101 NLRB 1118, footnote 6.
Judicious exercise of the Board's functions has always required care to conserve its
expenditures and to avoid the dissipation of its energies . Further examples of this are
the practice of requiring a waiver in a representation proceeding when any related charge
has been filed ; the requirement that a petitioning labor organization present a substan-
tial showing of interest as a prerequisite to processing a representation petition; and
the practice of withholding the exercise of the Board 's jurisdiction in cases where juris-
diction is present but its exercise would not effectuate the purpose of the Act.
9 To the extent that the decision in The M. H. Davidson Company, 94 NLRB 142, is
inconsistent with our decision in this case , it is hereby overruled. We adopt here the
dissenting opinion of Board Member Murdock in that case
AIELLO DAIRY FARMS 1369
bargain on the basis of its showing before the election. Accordingly,
we dismiss the 8 (a) (5) allegations of the complaint.
Our dissenting colleague disagrees with our dismissal of the 8 (a)
(5) allegations. However, his comment that the Union's withdrawal
of its petition after the election constitutes a proper selection of rem-
edy and his reference to the expense of processing a representation
proceeding "after an election has been set aside" indicates a miscon-
ception of the majority position. The majority members are not, as
he suggests, desirous of imposing needless restrictions upon a labor
organization's freedom of choice. The Board majority by the rule
applied in this case seeks to protect the Board's procedural machinery
from abuse. We do not here hold that a labor organization having
once filed a representation petition is bound to follow the representa-
tion procedure despite unfair labor practices of an employer. We do
not hold that an'employer's unfair labor practices, which we con-
demn as vigorously as our dissenting colleague, should go unremedied;
and we here order an appropriate remedy for the Respondent's coer-
cion and discrimination. We do hold that a labor organization hav-
ing knowledge of an employer's misconduct must make timely selec-
tion as to whether it will in the face of such conduct participate in an
election to establish its representative status or will file an 8 (a) (5)
charge. Our dissenting colleague complains that this gives the labor
organization an illusory choice. We fail to see how it is illusory or
inequitable to afford a labor organization which has knowledge of the
facts a genuine opportunity to select between two procedures either
of which will achieve the result sought by the organization. On the
other hand, the Davidson rule, which Member Peterson urges the
Board to continue, gives the Board no choice as to whether it shall con-
duct an election, but transfers to the labor organization, having full
knowledge of unfair labor practices, the judgment as to whether the
Board will proceed with an election. Effectuation of the Board's
practice not to conduct an election when an 8 (a) (5) charge is pend-
ing is thus made dependent upon the labor organization's determina-
tion as to when it will file a charge concerning known unfair labor
practices. Substitution of the Union's final judgment for that of the
Board in such matters is hardly compatible with good administration.
If the choice afforded a labor organization by the principles set forth
in this decision is unsatisfactory to labor organizations as our dissent-
ing colleague suggests, it is unsatisfactory only because it affords an
organization 1 rather than 2 opportunities to demonstrate its majority
status.
In urging that the Board should find a refusal to bargain as of
March 23, 1953, and should presume the continuance of the Union's
majority status after the election, Member Peterson reveals a further
misunderstanding of the majority position. The majority holds that
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when a labor organization has participated in a representation elec-
tion with knowledge of unfair labor practices, the Board will there-
after consider as basis for finding a refusal to bargain only events
which occurred after the election. Thus the majority position re-
quires that the Union in this case make a showing of representative
status after the election. This requirement is not, as the dissenting
opinion considers it, a reversal of precedent. Had the Union upon
knowledge of the Respondent's unfair labor practices filed its 8 (a)
(5) charge in timely fashion, the Board majority would have followed
established principles concerning the presumption of a union's con-
tinued majority status in the presence of unfair labor practices. The
Union, however, chose not to proceed with an 8 (a) (5) charge in
reliance upon the presumption of continued majority status, but rather
selected to demonstrate its status in a representation election and
thereby cut off the presumption. Having failed in the representation
proceeding to accomplish its purpose, the Union may not now resort
to the 8 (a) (5) process and indulge in the presumption of continued
majority in another attempt to accomplish the same end.
The fact that courts have approved the Board's past decisions proc-
essing 8 (a) (5) charges based upon preexisting unfair labor prac-
tices and filed after a labor organization had participated in an elec-
tion with knowledge of the unfair labor practices does not render
improper the Board's present determination, in the interest of sound
administration, to require a labor organization to make timely selec-
tion of inconsistent remedies. Nor does the fact that the Board has
under the more lenient A & P rule relaxed the prior representation
practice under Denton Sleeping Garment of refusing to consider as
objections to an election employer conduct of which a labor organiza-
tion was aware when it participated in an election, require the Board
likewise to relax the rule against conducting elections in the face of
8 (a) (5) charges by permitting circumvention of that rule.
The assertion in the dissenting opinion that the policy the majority
adopts in this case will raise more problems than its solves is, we think,
without merit. Situations may arise, of course, where it is difficult
to determine whether the labor organization involved had knowledge
of the employer's misconduct when it went to an election or where
the timing of an employer's misconduct immediately preceding an
election renders impracticable the cancellation of the election despite
the labor organization's prompt attempt to withdraw from the elec-
tion and file an 8 (a) (5) charge. We will determine the applicability
of the policy of this case to such peculiar facts when they arise. Un-
der any policy borderline cases may be expected which make applica-
tion of the rule difficult. We are convinced, however, that the general
rule here announced and applied is a sound one.
AIELLO DAIRY FARMS
Order
1371
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Louis Aiello,
Benjamin Aiello, Joseph Aiello, Mario Aiello, Anthony Aiello,
Theresa Aiello, Raff aela Aiello and Jenny Aiello Co-Partners d/b/a
Aiello Dairy Farms, Heuvelton, New York, its officers, agents; suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Congress of Industrial Organiza-
tions, or any other labor organization of its employees, by discrimi-
natorily discharging, laying off, or refusing to reinstate any of its
employees, or by discriminating in regard to their hire or tenure of
employment or any term or condition of employment.
(b) By promises of benefits, threats of reprisal, or in any other
manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to join or assist Con-
gress of Industrial Organizations or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make William Gascon, Byron Colburn, Felix Chapman, and
Hazel Hartwick whole for any loss of pay they may have suffered
by reason of Respondent's discrimination against them in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social-security payment
records, timecards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due under the
terms of this Order.
(c) Post in its plant in Heuvelton, New York, copies of the notice
attached hereto marked "Appendix A."' Copies of said notice, to
be furnished by the Regional Director for the Third Region, shall,
after being duly signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof and maintained by it
7In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order," the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a period of sixty (60) consecutive days thereafter in conspicuous
places , including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondent refused to bargain in violation of Section 8 (a)
(5) of the Act, be, and it hereby is, dismissed.
MEMBER PETERSON , dissenting in part :
I vigorously disagree with the action taken herein by my colleagues
in reversing the Board's eminently sound and salutary policy that
although a union participates in a representation election with knowl-
edge that an employer has unlawfully refused to bargain and engaged
in other unfair labor practices, it is nevertheless not estopped from
asserting the employer's refusal to bargain and insistence upon an
election as violative of Section 8 (a) (5) of the Act. This policy,
first enunciated over 3 years ago in the Davidson case,' has not only
been consistently followed in many Board decisions,9 but also has
met with the unanimous approval of every court to which it has been
presented.'°
The basic reasons assigned by my colleagues for establishing a new
estoppel or waiver rule may be summed up as follows : When a union
has filed a representation petition and becomes aware that an employer
is engaging in unlawful conduct, it has two mutually inconsistent
courses of action open to it-initiate an unfair labor practice proceed-
ing or pursue the representation proceeding; having chosen one of
these courses , it should be estopped from resorting to the other be-
cause the Board, as the custodian of a public statute, should not be
compelled to diffuse its energy and expend time and public funds in
useless and repetitive proceedings; and the majority opinion herein
represents an adoption of Member Murdock's dissenting opinion in the
Davidson case . I shall deal in detail with each of these reasons and
indicate why I consider them lacking in merit.
8 Footnote 6, supra.
8 Howell Chevrolet Company, 94 NLRB 410; Squirrel Brand Co., Inc., 96 NLRB 179;
Rehrig-Pacific Co, 99 NLRB 163; L,ngerae, Inc., 101 NLRB 1374; Dependable Wholesale
Company, Inc ., 102 NLRB 656 ; Stowe Manufacturing Co, 103 NLRB 1280; Model Mill
Company, Inc., 103 NLRB 1527; Dependable Machine Co ., Inc., 104 NLRB 21; Falstaff
Distributing Company, 104 NLRB 760 ; Southeastern Rubber Manufacturing Co., Inc., 106
NLRB 989.
'O N. L. R. B. v. Howell Chevrolet Co., 204 F. 2d 79 (C. A. 9) ; N. L. R. B. v. Model
Mill Company, Inc., 210 F. 2d 829 (C. A. 6) ; N. L. R. B. v. Southeastern Rubber Mfg. Co.,
213 F. 2d 11 (C. A. 5). See also N. L. R. B. v. McKesson & Robbins. 121 F. 2d 84
(C. A., D. C.).
AIELLO DAIRY FARMS 1373
As an academic matter, I agree with the majority that it can be said
that ordinarily there are diametrically opposite prerequisites for the
processing by the Board of a representation petition and a refusal-to-
bargain charge, because in the former type of proceeding the Board
must find that there is a question concerning representation, while in
the latter the charge must allege in effect that one does not exist. How-
ever, I fail to discern what practical significance the statement of the
theoretically different premises from which these proceedings stem
has upon the case at hand. The majority apparently believes that
the conclusion is thereby warranted that once a union selects one of
these divergent courses of action with knowledge _of an employer's
unlawful conduct it should not be permitted to revert to the other.
But this presupposes the presence of a vital fact nhich does not exist in
cases of the type involved herein, to wit, that in the representation
proceeding the employer raised a bona fide question as to the union's
majority status and that the union therefore had a real choice with
respect to which of the two courses it desired to pursue: The actual
situation is quite the contrary. For, considering the instant case as
an example, even the most casual examination of the Respondent's con-
duct demonstrates beyond peradventure that the Respondent's chal-
lenge of the Union's majority on October 2, 1952, was made in bad
faith. In such circumstances, no genuine question of representation
was raised and the election which was subsequently held on the Union's
petition must be regarded as a nullity." As the Board explained in
the Davidson case, to apply a waiver or estoppel doctrine here
would require complete disregard of the Board's obligation to
enforce the public policy against those refusals to bargain which
are successful in inducing a union to file a petition-and in induc-
ing the Board, in the representation proceeding, to find a question
of representation-in the mistaken belief that a question of repre-
sentation had in fact arisen. Here, the unfair labor practice
which vitiated the election did not occur after a genuine question
of representation had arisen, but was the very refusal to bargain
which induced both the Union and the Board to conclude, albeit
erroneously, that such a question had arisen, and which induced
the filing of the petition. In such a situation the Board's statu-
tory obligation to prevent refusals to bargain and to enforce the
public policy enunciated by the Act is paramount. The Board
cannot permit a possible waiver by a private party to overrule
this policy.
In its recent favorable comment on this explanation as to why the
Board as a matter of policy has refused to allow a representation elec-
tion to bar subsequent unfair labor practice proceedings where no
11 See footnote 9, supra.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
genuine question concerning representation ever existed, the Fifth
Circuit in the Southeastern case 12 remarked :
This Court has recently held that "the statutory requirement of
good-faith bargaining is not subject to waiver through action or
inaction by parties to a labor controversy," for the Board's duty
to enforce the public policy underlying the Act transcends private
rights and ordinary principles of contract law.
Although I consider the foregoing a complete answer to the position
taken by my colleagues in creating a new estoppel rule, I believe that
there are other equally persuasive reasons why the Board should ad-
here to the Davidson policy. As I have previously indicated, my col-
leagues in striking down that policy speak of requiring a choice by
the union when it becomes aware that an employer is engaging in un-
lawful conduct. In my opinion, although such requirement appears
valid on its face, a closer study discloses that it raises more problems
than it solves. Thus, it is not at all clear from the majority opinion
as to precisely when a union which files a representation petition will
be considered to have made an irrevocable decision. For example,
my colleagues do not answer how they propose to deal with the not
uncommon situation of an employer engaging on the day before, or
the eve or day of, the election in unlawful conduct designed to under-
mine the union's majority status. Will the union be deemed bound
to pursue the representation proceeding in such circumstances where
because of the timing of the employer's misconduct it is virtually im-
possible for the union to prevent the holding of the election? Simi-
larly, suppose the employer engages in a series of coercive acts which
culminate on the eve of the election. In such event, the Board in the
past has not required that the union continue with the representation
proceeding and has processed its refusal-to-bargain charge." If my
colleagues would also not demand that a union continue with the rep-
resentation proceeding under the circumstances, their attention is di-
rected to the interesting fact that the full Board is finding in this case
that the Respondent violated Section 8 (a) (1) of the Act on the very
afternoon of the election by stating to various employees that it was
going to give them paid vacations and endeavor to work out a program
of insurance for them.
Furthermore, if my colleagues are desirous of imposing restrictions
upon a union's freedom of choice by requiring that it make a binding
selection as to the course it seeks to pursue, I suggest that the Union
involved herein has done so and at a proper time. Thus, the Union
withdrew the petition after the Regional Director set aside the consent
election in the representation proceeding because he found that the
12 See footnote 10, supra.
13 See, for example, Squirrel Brand Co ., Inc , footnote 9, supra.
AIELLO DAIRY FARMS 1375
Respondent's conduct warranted such action and all the Board has
before it now is the complaint in this case based upon the Union's
unfair labor practice charge. Clearly, the Union has indicated what
it wishes to do. The majority appears to be imputing bad motive or
intent on the part of the Union, when they assert that by delaying the
filing of its charge the Union made clear its purpose to "circumvent"
and "evade" the Board's practice of not conducting a representation
election when an 8 (a) (5) charge is pending and caused the Board
to conduct a futile election. If this is the purport of their view, I
consider it wholly unjustified. For they are disregarding completely
the fact that the Union is not filing a charge, despite its knowledge of
the unfair labor practices, was merely doing what it was entitled to
do under the well established Davidson rule. Indeed, according to
Union Representative Gassman's uncontroverted testimony, the Board
Examiner-presumably based upon his knowledge of the prevailing
law on the subject-advised him to go to the election and file a charge
later. Moreover, it seems obvious to me that the election which the
Board held was made futile, not because of the Union's delay in filing
its 8 (a) (5) charge, but rather because the Employer succeeded in
achieving its aim of undermining the Union's majority status by its
unfair labor practices.
Another difficulty that I have with the estoppel rule which will
henceforth be applied is that it will act as a serious deterrent to a
union which, despite its knowledge of an employer's misconduct, is
willing to chance an election because it believes it may nevertheless
win and because it is aware of the well known fact that much less time
is needed for certification in a representation proceeding than for a
Board decision in an unfair labor practice proceeding. It seems to
me that this places an inequitable premium on an employer's unlaw-
ful conduct for although the employer is the wrongdoer, the union
is given the illusory choice of guessing correctly that it can win the
election or withdrawing its petition and pursuing the longer and more
time-consuming procedure of going through an unfair labor practice
proceeding. Under these circumstances, the union will certainly
adopt the only safe, although not necessarily satisfactory, course open
to it, that of filing an 8 (a) (5) charge. Thus, the chain of events
which the employer itself sets in motion can permit it to still further
postpone its obligation to bargain with the majority representative
of its employees. "Certainly it is not one of the purposes of the elec-
tion provisions to supply an employer with a procedural device by
which he may secure the time necessary to defeat efforts toward or-
ganization being made by a union." 14
14 Joy Silk Mills, Inc. v. N. L, R. B., 185 F. 2d 732, 741 (C. A., D. C.), cert. deniers 341
U. S. 914.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In applying their new estoppel rule, my colleagues state that the
Board should not have to diffuse its energy and expend time and pub-
lic funds in useless and repetitive proceedings. I find this basis for
establishing the new rule singularly unpersuasive. For it assumes
that there is an appreciable difference in the expense and energy re-
quired between the processing of a representation proceeding, after an
election has been set aside, and the completion of an unfair labor
practice proceeding. I submit that ordinarily the difference is rather
insignificant. While the latter proceeding involves a charge, com-
plaint, hearing before a Trial Examiner, an intermediate report and
a Board decision, the former very frequently involves a hearing on ob-
jections either before a hearing officer or a Trial Examiner, a report
with findings of fact, credibility resolutions, and recommendations,
and a Board decision.
As I indicated earlier in this opinion, the final point made by my
colleagues is that they adopt herein the dissenting opinion of Mem-
ber Murdock in Davidson. I have heretofore answered to my satis-
faction much of what Member Murdock had to say in that case.
However, I note that one of the main points which he made was that
consistency with the Denton Sleeping Garment 15 line of cases, hold-
ing that a union could not thereafter raise as objections to the election
acts of the employer of which it had knowledge, required the Board
to refuse to permit a union to pursue the unfair labor practice remedy
it previously chose to ignore at a time when it was aware of the em-
ployer's misconduct. Without passing upon the merits of this view,
I merely direct attention to the fact that the Denton Sleeping Gar-
ment line of cases has been overruled by the full Board in the Atlantic
& Pacific case 16 for the completely valid and detailed reasons given
therein. I presume that my colleagues disavow at least this portion of
Member Murdock's dissent. However, I must confess that I find most
perplexing their statement that the fact that the Board has under the
more lenient A d P rule relaxed the prior representation practice un-
der Denton Sleeping Garment does not require the Board likewise to
relax the rule against conducting elections in the face of 8 (a) (5)
charges by permitting circumvention of that rule. For one thing,
there is no question here as to what the Board is or is not required
to do, but only what it should or should not do as a matter of policy.
For another, the issue which I have raised is whether the Board in
light of its adoption of the more lenient A & P rule for representation
proceedings should not consistently therewith retain its more lenient
rule that a union can file an 8 (a) (5) charge despite the fact that it
knew of the employer's unfair labor practices when it went to an
election.
15 Denton Sleeping Garment Mills, Inc , 93 NLRB 329.
10 The Great Atlantic and Pacific Tea Company, 101 NLRB 1118.
AIELLO DAIRY FARMS 1377
Finally, I wish to treat with the fact that my colleagues, in what I
believe to be their undue haste to reverse the Davidson policy, have
failed to consider another unrelated basis for finding that the instant
Respondent violated Section 8 (a) (5) of the Act. Thus, the record
discloses, and the Trial Examiner expressly found, that on March
23, 1953, well after the Regional Director issued his report on objec-
tions and set aside the election in this case the Respondent insisted
that the Union waive back pay for the discharged employees as a
condition precedent to signing a contract. Such conduct by an em-
ployer has been held by Members of this Board as well as their prede-
cessors in office to be clearly violative of Section 8 (a) (5) of the Act.17
My colleagues' apparent response is that the record does not show
that the Union was the majority representative of the employees at
the time of the Respondent's alleged refusal to bargain on March 23,
1953, after the representation election. I use the word "apparent"
advisedly. For if my colleagues mean what they seem to say, then I
find their reply an extremely astonishing one. Thus, the only inter-
vening event in the record between the establishment of the Union's
majority status on October 2, 1952, as found by the Trial Examiner,
and the processing of its 8 (a) (5) charge herein, was the election held
on December 3, 1952, which the Union lost. Surely, my colleagues
are not taking the position that they are willing to accept the results
of this election which was a nullity and was set aside by the Regional
Director because of the Respondent's conduct as proof of the loss of
the Union's majority. If they are, I am constrained to say as force-
fully as I can that I do not subscribe to such a view and consider it
a reversal of well established Board precedent.'8
In view of the foregoing, I would find that the Respondent not
only violated Section 8 (a) (1) and (3) of the Act, but also refused
to bargain with the majority representative of its employees in viola-
tion of Section 8 (a) (5) of the Act. I would therefore issue the
appropriate remedial order.
17 See, for example, Thomason Plywood Corporation, 109 NLRB 898; J. Sullivan & Sons
Mfg. Corp., 102 NLRB 2; Service Metal Industries, 96 NLRB 10.
is Armco Drainage & Metal Products , Inc., et at, 106 NLRB 725.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Congress of Indus-
338207-55-vol. 110-88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trial Organizations or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL make the employees named below whole for any loss
of pay suffered as a result of the discrimination against them :
William Gascon
Byron Colburn
Felix Chapman
Hazel Hartwick
All our employees are free to become or remain members of the
above-named Union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
AIELLO DAIRY FARMS,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Pursuant to an amended charge filed on March 10, 1953, by Congress of Indus-
trial Organizations, herein called the Union, the General Counsel of the National
Labor Relations Board, herein respectively called the General Counsel and the
Board, by the Regional Director for the Third Region (Buffalo, New York), issued
his complaint dated April 22, 1953, against Louis Aiello, Benjamin Aiello, Joseph
Aiello, Mario Aiello, Anthony Aiello, Theresa Aiello, Raffaela Aiello, and Jenny
Aiello Co-Partners d/b/a Aiello Dairy Farms, herein called Respondent, alleging
that Respondent had engaged in certain unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act. Copies of the notice were duly served upon Respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance that
on or about September 20, 1952, Respondent discharged William Gascon, Byron
Colburn, and Felix Chapman and on or about November 12, 1952, Hazel Hart-
wick and Royal Thompson, and thereafter failed and refused to reinstate them
because they joined and were active in behalf of the Union; (2) on or about October
2, 1952, and at various times thereafter, failed and refused to bargain with the
Union as the representative of Respondent's employees in an appropriate unit; and
(3) from on or about September 1, 1952, by its officers and representatives, ques-
tioned its employees respecting their union membership and activities, threatened
them with reprisals, and promised them economic benefits in an effort to induce them
to refrain from assisting the Union.
On April 2, 1952, Respondent filed its answer admitting certain allegations of
the complaint with respect to the nature of its business but denying that it had
engaged in any unfair labor practices. Pursuant to notice a hearing was held at
AIELLO DAIRY FARMS 1379
Ogdensburg, New York, on April 27 and 28, 1953, before a duly designated Trial
Examiner. The General Counsel, Respondent, and the Union were represented by
counsel and participated in the hearing . Full opportunity to be heard , to examine
and cross-examine witnesses , and to introduce evidence bearing upon the issues
was afforded all parties . Upon motion at the conclusion of the hearing I dismissed
the complaint as to Royal Thompson. The parties waived oral argument and were
granted until June 15, 1953, to file briefs. Both Respondent and the General Coun-
sel filed timely briefs.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Louis Aiello, Benjamin Aiello, Joseph Aiello, Mario Aiello, Anthony Aiello,
Theresa Aiella, Raffaela Aiello, and Jenny Aiello are and at all times herein ma-
terial have been copartners doing business under the trade name and style of Aiello
Dairy Farms, having its principal office at Brooklyn, New York. It maintains and
operates a plant in the village of Heuvelton, St. Lawrence County, State of New
York, where it is and has been continuously engaged in the manufacture, sale, and
distribution of cheese and related products, and with which the instant case is solely
concerned.
Respondent in the course of its business operations during the 12-month period
beginning November 1, 1951, and ending October 30, 1952, manufactured, sold,
and distributed cheese and cheese products valued at about $1,206,567, approxi-
mately 17 percent of which was sold and shipped from its Heuvelton plant to cus-
tomers located outside the State of New York.
II. THE LABOR ORGANIZATION INVOLVED
Congress of Industrial Organizations is a labor organization admitting employees
of Respondent to membership.
111. THE UNFAIR LABOR PRACTICES
A. The discharges; other interference, restraint, and coercion
William Gascon, Byron Colburn, and Felix Chapman: Organization of Respond-
ent's employees in the Union began during the early days of September 1952 when
William Gascon obtained a number of union authorization cards from a friend
who worked at the Western Condensing Company, a factory adjoining that of
Respondent. Gascon signed his own card on September 9 and shortly thereafter
obtained the signatures to cards of 13 fellow employees. Colburn's signature was
obtained on September 10 and that of Chapman on September 11. All of them
were obtained prior to September 12, and were subsequently turned over to a busi-
ness representative of the Union.
On the afternoon of September 20, Benjamin Aiello, Respondent's manager in
active charge of the Heuvelton plant, called Gascon, Chapman, and Colburn to his
office in a group. Aiello told Gascon and Chapman, who arrived first, that he was
discharging them because, according to Chapman, they were "working for the
Union" which Aiello said he did not recognize, and according to Gascon "for or-
ganizing the Union." Gascon and Chapman made no reply and proceeded upstairs
with Aiello and Colburn where Aiello gave them their final checks. Colburn testi-
fied credibly that after he was given his check he went down to Benjamin Aiello's
office and asked him the reason for his discharge and Aiello told him that he
was doing too much talking in the plant. His further testimony is that on the day
before his discharge while he was at work Benjamin Aiello approached him and
asked him what he thought about unions, to which he replied that he considered
them "O.K." The credited testimony of Royal Thompson is that about an hour
before Gascon, Colburn, and Chapman were discharged on September 20, Ben-
jamin Aiello approached him and asked him who was starting the Union, and that
when Thompson replied that he did not know, Aiello said that he did not think
that Thompson was telling the truth and that something was "going to happen
around here and fast."
Benjamin Aiello denied while testifying that he made any reference to the Union
when he discharged the three men. In view of the testimony to the contrary from
three witnesses, I do not credit the denial.
Chapman first came to work with Respondent in the summer of 1944, was re-
employed in June 1947, and worked continuously from then to the date of his dis-
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge. Colburn was employed by Respondent in 1934 and worked continuously
to the time of his discharge with the exception of 43 months in the armed services.
Benjamin Aiello testified that the immediate reason for the discharge of Colburn
and Chapman was that a shipment of cheese to New York City had been received
by the consignee in bad condition resulting in a loss of about $1,000. Aiello was
unable to say how he arrived at this figure. Colburn and Chapman were in charge
of raking and icing the cheese. At this time Aiello was in New York City. He
returned to Heuvelton on September 19 and the following day, as above described,
called the three dischargees to his office. He testified that in discharging Chapman
and Colburn he gave as a reason that Respondent had suffered a financial loss due
to their negligence. Chapman and Colburn denied that any reason was given to
them aside from their activity in behalf of the Union, and I credit their denial.
Furthermore, there is no evidence in the record to indicate that Benjamin Aiello
made any investigation as to the manner in which the cheese in question had been
raked and iced, or made any inquiry of Colburn or Chapman prior to discharging
them.
William Gascon was employed by Respondent in 1938. At the time of his dis-
charge he had charge of setting the kettles for the cheese. He testified that during
the month before his discharge Louis Aiello expressed some dissatisfaction with
his work and requested that he go back to his former job; Gascon said that rather
than do that he would prefer to quit. He agreed, however, to stay if Respondent
would give him a 10 cents an hour wage increase, which Respondent did. From
this time until his discharge on September 20, according to his credited testimony,
Gascon received no further complaints concerning his work.
On September 20, the day of the discharges, Benjamin Aiello, according to his
testimony, asked his brother Louis Aiello how Gascon had been doing in the
former's absence, and was told that Gascon was frequently away from his job
and was not setting his kettles properly. Louis Aiello testified that there had been
complaints that Gascon was not getting the proper amount of culture in the cheese
he was working on and had so reported to his brother upon his return from New
York. According to Louis Aiello he spoke to Gascon about this about 10 days
before he was discharged.
The three employees were reinstated to their jobs on January 27, 1953, following
a conference with representatives of the Board and the Union.
Conclusions
Gascon, Colburn, and Chapman, particularly the first, were active in the forma-
tion of the Union at Respondent's plant. Respondent denies that it had knowledge
of this activity until after their discharge. I have credited the testimony of the
three employees, however, that when they were discharged they were told, in effect,
that it was for their union activity. Consequently, I find Respondent had notice of
their activity at the time they were discharged. I find that this was the reason
for their discharge and not Respondent's dissatisfaction with their work. The
complaints as to their work impress me as trivial, with the exception of the loss
on the shipment of cheese to New York attributed to Colburn and Chapman, and
this I do not find convincingly substantiated. The whole record reveals the hos-
tility of Respondent to the Union and its determination not to deal with it. Its
failure to recognize it when requested and other acts designed to defeat it in an
election are hereinafter related.
Hazel Hartwick: Hartwick was employed by Respondent in 1943 and worked
continuously until her discharge on November 12, 1952. In July of that year she
was given a 5-cent hourly increase and during the latter part of August or early
September an additional 5-cent raise. On September 10, 1952, she signed an
authorization card in the Union. She testified without contradiction, and I find,
that on the morning of November 11, Louis Aiello asked if she had anything to
do with the Union to which she replied that she had signed an authorization card.
On the same day, Louis Aiello asked her to work the following day, November 12,
although it was her regular day off. Hartwick did so, but instead of being put at
her regular work of making cheese she was assigned to the task of cleaning kettles
and other miscellaneous work. When she had finished, she was called to the office
where she was told by Benjamin Aiello that his brother Louis was dissatisfied with
her work, and discharged her.
Benjamin Aiello testified that 2 or 3 weeks before he discharged Hartwick he
had called her to his office because she was not performing her work properly,
and that Respondent was beginning experiments on a new cheese culture to which
he assigned her. He worked alongside her for 3 or 4 days off and on, but, accord-
ing to his testimony, the new process did not have satisfactory results. Accord-
AIELLO DAIRY FARMS 1381
ingly, a cheese expert was called in to advise with Aiello and Hartwick on the process,
and a day or so later when Benjamin Aiello left for New York he instructed his
brother to give Hartwick whatever assistance he could. During his absence he
talked with Louis Aiello on the telephone and was told that Hartwick was not
paying much attention to his instructions and that Hartwick was herself dissatisfied
with the results with the new culture. When Benjamin Aiello returned from New
York, he found that his brother had put Hartwick on other work, apparently clean-
ing kettles, under his direct supervision. Benjamin Aiello testified that she was not
needed in the department to which she was transferred, and accordingly discharged
her.
The credited testimony of Hartwick is that her work was never criticized prior
to November 12, the day she was discharged, with the exception of one occasion
about a week previously when Benjamin Aiello criticized her for not keeping her
room clean and told her that if she did not do better he would have to get someone
else. She was never spoken to again about this, and it was not advanced at the
time of her discharge, Aiello telling her only, according to his own and Hartwick's
testimony, that she was "unsatisfactory."
The record shows that it was Hartwick herself rather than Respondent who ex-
pressed dissatisfaction with her progress on the new cheese culture. The vagueness
of the reasons advanced by Respondent for Hartwick's discharge coupled with the
interrogation of Hartwick as to her union activities persuades me, and I find, that
Respondent discharged Hartwick because of her activities in behalf of the Union.
She was reinstated on January 27, 1953, along with Colburn, Gascon, and Chapman.
I find that by discharging the above-named employees, Respondent violated
Section 8 (a) (3) of the Act, thereby violating Section 8 (a) (1) thereof.
B. The refusal to bargain; other interference, restraint, and coercion
1. The appropriate unit
The complaint alleges and the Respondent admits that all production and main-
tenance employees employed by Respondent at its Heuvelton, New York, plant,
exclusive of all office and clerical employees, guards, professional employees and
supervisory employees as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act,
and I so find.
2. The Union's majority in the appropriate unit
On October 15, 1952, the Union filed its representation petition herein., Pur-
suant to this petition, on November 8, 1952, Respondent and the Union signed a
consent-election agreement. The election was held on December 3 under Board
auspices, 6 votes being cast for the Union and 10 against it, with 11 ballots chal-
lenged. The Union filed objections to the election and on March 6, 1953, the
Regional Director for the Third Region issued his report on the objections and
set the election aside.
Consequently, the Union's majority is not predicated upon the result of the elec-
tion but upon the number of signed application cards prior to October 2, 1952,
the date of the alleged original refusal to bargain. The Respondent's payroll for
the month of October 1952 shows that Respondent employed 20 production and
maintenance employees in the appropriate unit, not including the names of Gascon,
Chapman, and Colburn whom I have found to have been discriminatorily discharged
on September 20. The total number of employees in the appropriate unit thus
was 23 in October 1952. The General Counsel introduced in evidence 14 authori-
zation cards all signed previous to that date. Respondent does not question the
authenticity of these cards and I find that on October 2, 1952, the Union repre-
sented a majority of the employees in the unit found to be appropriate.
I turn now to certain events on the day of the election and shortly preceding it.
Royal Thompson testified without contradiction, and I find, that about 2 p. m.
on the day Gascon, Colburn, and Chapman were laid off. Benjamin Aiello engaged
him in a conversation during which Aiello asked him who was starting the Union
in the plant, and that when Thompson replied that he did not know, Aiello re-
sponded that he did not think Thompson was telling the truth. During the morning
of December 3, 1952, the day of the election, Louis Aiello, according to the un-
disputed and credited testimony of Pauline Hazelton, came to her home, asked her
what she thought of the situation at the plant, what she intended to do, and if she
was going to vote for the Union , promising her a raise in wages. It is similarly
I Case No. 3-RC-1083.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undisputed that on the afternoon of the election Louis Aiello approached Carmen
Townsend, another employee, and told her that Respondent was going to give the
employees vacations and endeavor to work out a program of insurance for them.
Elwyn Thompson and William Knowlton testified without contradiction, and I
find, that about 3 days before the election Benjamin Aiello in a conversation with
them and others announced that Respondent was going to give the employees paid
vacations and institute a medical insurance program during the forthcoming year,
stating that Respondent and the employees had always got along well together
before the Union made its appearance. Respondent made the same announce-
ment in substance to other employees including Howard Rice, Walter Townsend,
Irvan Creighton, and others whom he called into the office.
During November 1952 Respondent called several of the above-named employees
to the office where they were notified by Benjamin Aiello that he was giving them
a 10-cent an hour raise to make them more interested in their work.
By thus questioning employees concerning their union affiliation and promising
them wage raises during a period when the Union was seeking to represent them,
Respondent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1)
and (5) of the Act.
3. The refusal to bargain
The record shows, and I find, that Murray Gassman, staff representative for the
Union, visited Respondent's plant on October 2, 1952, in the company of Colburn
and Chapman and talked to Benjamin Aiello about the discharge of Colburn,
Chapman, and Gascon. Aiello stated to Gassman that he did not want to talk
to him in the presence of Colburn and Chapman, whom he characterized as "agi-
tators" and "trouble makers," so they were excluded from the conference. On this
occasion Gassman told Aiello that he represented the majority of the production
employees and wanted to discuss signing a union contract. Aiello replied that he
first wanted to talk to Louis about recognizing the Union and that he would call
Gassman at his Syracuse office. This was satisfactory to Gassman and ended the
conversation. Aiello did not call Gassman, as a consequence of which on Octo-
ber 10 Gassman called on Benjamin Aiello again , this time in the company of John
Maurillo, regional director for the Union. When Gassman inquired of Benjamin
Aiello what his brother Louis had said he was told that Louis was against the
Union but that he, Benjamin, would talk to him again . Benjamin Aiello then asked
Gassman if he had a majority of the employees signed up and if so he would like
to see the authorization cards. Gassman replied that the cards were in the Syra-
cuse office but that he would bring them the following week and a meeting was
arranged for October 17. On October 17, Gassman again called upon Benjamin
Aiello. In the meantime , however, on October 15, the Union filed its representa-
tion petition. At the conference on October 17, Benjamin Aiello stated that he
had received notice of the filing of the petition and inquired if Gassman had the
authorization cards with him. Gassman replied that he had but when Benjamin
Aiello asked to see them, Gassman told him that he would permit him to do so
only if an impartial person was selected to check the cards against the payroll.
When Aiello protested that Gassman did not trust him, Gassman replied that it
was because Respondent had discharged three employees. He then proposed that
before checking the cards Benjamin Aiello sign a stipulation agreeing to recognize
the Union if the cards showed a majority. Aiello refused the offer.
In February, following the election, representatives of the Respondent and the
Union met on two occasions in New York City in an attempt to reach an agree-
ment on a contract. At one of these meetings Maurillo, on behalf of the Union,
met with Benjamin Aiello and one Sturm, at that time Respondent's attorney, and
at Sturm's suggestion submitted a proposed agreement. At this meeting, which
lasted about 3 hours, the parties went through the proposed contract paragraph
by paragraph and, according to Maurillo's credited and undisputed testimony, ar-
rived at substantial agreement on the contract as a whole. Maurillo was asked
to stay in town over the next day in order that Respondent's representatives might
talk with the other partners, draft the contract in its final form, and obtain the neces-
sary signatures. On the following day Maurillo met with Joseph Aiello and Mario
Aiello, two of the partners, who raised certain objections to the proposed contract.
Four or five days later Maurillo talked with Joseph Aiello on the telephone and
was told that Respondent would not sign the contract because, among other rea-
sons, the Union had not withdrawn the charges filed in the instant case with the
Board. On March 23, Gassman met with Joseph Aiello in New York and asked
him if it wasn't possible to "straighten out" the situation at Heuvelton by recogni-
tion of the Union. On this occasion , Joseph, according to Gassman's testimony,
AIELLO DAIRY FARMS 1383
which I credit, replied that he was willing to do so providing the Union would
waive back pay for the discharged employees. Gassman replied that the matter
was in the hands of the Board and refused to agree.
Conclusions
I find that Respondent on October 2 and thereafter failed and refused to bargain
with the Union. The cases are clear that Respondent may not refuse to bargain with
a union on the basis of authorization cards signed by a majority in an appropriate
unit and insist instead upon an election, except where there is a good-faith doubt in
the mind of the employer as to the union's majority. I find no such good-faith doubt
here. On the contrary, Respondent's action in discharging the three employees on
September 20, 1952, together with its interrogation of employees just prior to the
election, promising them wage increases and other benefits and, finally, its insistence
on March 23, 1953, that the Union should waive back pay for the discharged employ-
ees as a condition precedent to signing a contract, convinces me that Respondent from
the first was determined not to recognize and deal with the Union as a representative
of its employees, and was resolved to defeat their organization if possible.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices within
the meaning of the Act, I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that on and after October 17, 1952, Respondent unlawfully refused
to bargain with the Union as the exclusive representative of its employees in a unit
herein found appropriate, it is recommended that Respondent bargain collectively
with the Union as such representative and, in the event that an understanding is
reached, embody such understanding in a signed agreement.
It having been found that Respondent discriminated in regard to the hire and
tenure of employment of William Gascon, Byron Colburn, Felix Chapman, and
Hazel Hartwick by discharging them and failing to reinstate them until January 27,
1953, I will recommend that Respondent make each of said employees whole for
any loss of pay he may have suffered by reason of Respondent's discrimination
against him by payment to each of them of a sum of money he normally would have
earned as wages from the date of the discrimination to the date of their reinstate-
ment less their net earnings during said period.2 The amount of back pay due to
each of them shall be computed in accordance with the customary formula of the
Board set forth in F. W. Woolworth Company.3
Upon consideration of the entire record I am convinced that Respondent's con-
duct indicates an attitude of opposition to the purposes of the Act generally. In
order, therefore, to make effective the interdependent guarantees of Section 7 of the
Act, thereby minimizing industrial strife which burdens and obstructs commerce and
thus effectuate the policies of the Act, I will recommend that Respondent cease and
desist in any manner from infringing upon the rights guaranteed to employees in
Section 7 of the Act.
I shall recommend that Respondent upon request bargain collectively with the
Union as the exclusive representative of the employees in the appropriate unit.
Upon the basis of the foregoing and from the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Respondents Louis Aiello, Benjamin Aiello, Joseph Aiello, Mario Aiello, An-
thony Aiello, Theresa Aiello, Raffaela Aiello and Jenny Aiello Co-Partners d/b/a
Aiello Dairy Farms, the Respondent herein, are engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Congress of Industrial Organizations is a labor organization within the mean-
ing of Section 2 (5) of the Act.
3. All production and maintenance employees employed by Respondent at its
Heuvelton, New York, plant exclusive of all office and clerical employees, guards,
professional employees, and supervisory employees as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. Congress of Industrial Organizations at all times relevant herein has been and
is the exclusive bargaining representative within the meaning of Section 9 (a) of
2 See Crossett Lumber Company, 8 NLRB 440.
3 90 NLRB 289.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act of the employees in the aforesaid unit for the purposes of collective
bargaining.
5. By refusing to bargain collectively with the Congress of Industrial Organizations
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (5) of the Act.
6. By discharging William Gascon , Byron Colburn , and Felix Chapman on Sep-
tember 20, 1952, and Hazel Hartwick on November 12, 1952, because of their
activity on behalf of the Union , Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
7. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act , Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
HESS, GOLDSMITH & COMPANY, INC. and TEXTILE WORKERS UNION OF
AMERICA, CIO,' PETITIONER
HESS, GOLDSMITH & COMPANY, INC. and UNITED TEXTILE WORKERS OF
AMERICA, AFL,2 PETITIONER . Cases Nos. 4-RC-92229, 4-RC-2256,
and 4-RC-92261. December 13,1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Ramey C. Donovan,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act for the following
reasons:
The Employer, a New York corporation, is engaged in textile man-
ufacturing at 7 plants located in California, New Jersey, and Pennsyl-
vania.3 Its Pennsylvania operations consist of 4 plants, 2 of which
comprise the Atwater Division 4 and are located at Blackman Street,
Wilkes-Barre, and at Plymouth. The remaining plants are located at
1 Herein called CIO.
2 Herein called AFL.
3 The California and New Jersey plants are located at distances of 3,000 and 120 miles,
respectively , from the Pennsylvania plants. CIO contends that the California and New
Jersey plants should be included in the unit, if its other unit proposals are rejected by the
Board. In view of the distance involved, the lack of community of interest, and lack of
interchange of California and New Jersey employees with those in Pennsylvania, we find
no merit in this contention. See Oswego Falls Corporation, 104 NLRB 314.
4 Herein called Atwater.
110 NLRB No. 212.