Allou Distributors, Inc.

National Labor Relations Board - Board Decisions

Jan 5, 1973

201 N.L.R.B. 47 (N.L.R.B. 1973)

ALLOU DISTRIBUTORS
Allou Distributors, Inc. and Local 815, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America
Local 815, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
and Allou Distributors , Inc. Cases 29-CA-2226,
29-CA-2342, and 29-CB-907
January 5, 1973
DECISION, ORDER, AND DIRECTION
OF ELECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On April 6, 1972, Administrative Law Judge'
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, The General Counsel,
the Company, and the Union filed exceptions and
supporting briefs, and the General Counsel filed a
reply brief to the Union's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,2
findings,3 and conclusions of the Administrative Law
Judge, only to the extent consistent herein.
The facts, more fully described in the Judge's
Decision, show that the Company prepared, circulat-
ed, and caused a decertification petition to be filed,
and promised benefits to the employees in order to
induce their withdrawal from the Union, all in
derogation of Section 8(a)(1) of the Act. Then,
following the expiration of the contract between the
Company and the Union, the Company refused to
bargain, claiming that the Union no longer repre-
sented a majority of the employees. The Judge found
that this doubt was derived exclusively from the
Company's own unfair labor practices, that the
Company had no valid basis for withdrawing
r The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The Union has excepted to the Administrative Law Judge's refusal to
order the General Counsel to produce for purposes of cross-examination a
statement in its possession signed by witness Marvin Friedman and to
which he refers in his affidavit . In our opinion, the Judge correctly ruled
that the document did not relate to the subject matter of Fnedman's
testimony within the meaning of Section 102 . 118(bx2) of the Board Rules
and Regulations and, accordingly , he declined to direct the General
Counsel to furnish the document . Moreover , the record discloses that
Counsel for the Union did not object at the hearing to the Judge 's ruling, a
requirement set forth in the above -mentioned rule. We therefore affirm the
Judge 's ruling.
3 The Union has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to
overrule Administrative Law Judge 's resolutions with respect to credibility
201 NLRB No. 4
47
recognition, and concluded that such conduct violat-
ed Section 8(a)(5) and (1) of the Act. When the
Union was informed of these events, it dispatched six
business agents to the plant who, through the use of
force, threats, and general intimidatory conduct,
"persuaded" the employees to withdraw the decertifi-
cation petition. The Administrative Law Judge found
that the union agents generally created the impres-
sion that they were in control of the premises, and
that this conduct frightened and terrorized the
employees. He concluded that this behavior was an
aggravated demonstration to the employees that they
were in danger of suffering not only economic injury
but also physical harm should they persist in their
efforts to withdraw from the Union, and that such
conduct constituted restraint and coercion in viola-
tion of Section 8(b)(1)(A) of the Act.4 While we are
in complete agreement with the Administrative Law
Judge's substantive findings set forth above, we do
not adopt the major provisions of his remedy, as
detailed below.
1. The Judge observed that the normal remedy
for an 8(a)(5) violation of the type found herein
includes an order to bargain with the Union, but the
General Counsel argued, citing Laura Modes Compa-
ny,5 that the Union's misconduct was of such a grave
and serious nature as to disqualify it from such an
order. The Administrative Law Judge, however,
distinguished Laura Modes from the instant case,
stating that Laura Modes involved the use of force
and intimidation by a union seeking initial recogni-
tion based on cards, whereas the Union herein has
been the representative of the unit employees for
many years. Therefore, the Judge recommended
issuing a bargaining order. In his exceptions, the
General Counsel argues that Laura Modes controls
here and that the proper remedy is an election. We
agree.
In Laura Modes, the employer, after the union
requested recognition based on an authorization card
majority, held two separate meetings with the
employees in which it requested the employees to
withdraw from the Union, told them it did not intend
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions were incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544, enfd . 188 F.2d 362 (C.A. 3). We have carefully examined the
record and find no basis for reversing his findings.
4 The record disclosed that two business agents assaulted Lou Caston-
guay, one of the co-owners of the Company . The Administrative Law
Judge, however, concluded that the injury Castonguay received was trivial
and that since it occurred out of the presence of any employees, the assault
did not violate the Act We disagree . While it is true that no employees
actually witnessed the attack, Castonguay immediately thereafter told them
about it and showed them the "red marks". In our opinion , this assault took
place in circumstances wherein the employees would be reasonably
expected to become aware of the incident and the Union thereby violated
Section 8(bXIXA) of the Act. See G & H Towing Company, 168 NLRB 589.
S 144 NLRB 1592.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to contact the union the next day as promised, or any
day thereafter, threatened them with layoffs, and
reduction of work, and announced it would never
sign a contract with the union. Apprised of this
conduct, the union sent nine business agents to the
plant "to bolster [the employees'] morale." Upon
being refused entry to the premises, one of the agents
struck an employer representative, and pushed
around an office employee who was attempting to
telephone the police. On another occasion, while a
strike was in progress, the same employer representa-
tive was assaulted. Although 8(b)(1)(A) charges were
filed, a settlement agreement was entered into, and
the CB complaint was withdrawn.
The Board found that the employer's conduct
evidenced an intent to undermine the union's
majority status and to evade the employer's bargain-
ing obligation, thereby violating Section 8(a)(1) and
(5). The Board continued:
But our finding that the Respondents acted
unlawfully prior to the Union's misconduct is not
to be taken as condonation of the Union's
subsequent resort to or sanction of violent acts in
furtherance of its demand that the Respondents
immediately recognize and bargain with it. An
atmosphere of violence and intimidation • can
hardly be expected to produce Respondents'
participation in reasoned discussion with union
agents about the subjects of collective bargain-
ing.6
Thus, the Board found that the union should not
benefit from the normal affirmative bargaining order
given in similar cases, stating:
For we cannot, in good conscience, disregard
the fact that, immediately before and immediately
after it filed the instant charges, the Union
evidenced a total disinterest in enforcing its
representation rights through the peaceful legal
process provided by the Act in that it resorted to
and/or encouraged the use of violent tactics to
compel their grant. Our powers to effectuate the
statutory policy need not, we think, be exercised
so single-mindedly in aiming for remedial restora-
tion of the status quo ante, that we must disregard
or sanction thereby union enforcement of an
employer's mandatory bargaining duty by unpro-
voked and irresponsible physical assaults of the
nature involved here. We recognize of course that
the employees' right to choose the Union as their
representative survives the Union's misconduct.
But we believe it will not prejudice the employees
unduly to ask that they demonstrate their desires
anew in an atmosphere free of any possible trace
of coercion.?
6 Supra, 1595.
7 Supra, 1596.
In the same vein , the Union here engaged in a
deliberate plan of intimidation and violence in order
to insure the employees' adherence to the Union.
This callous attempt to enforce its representation
rights-notwithstanding the Company's own unlaw-
ful and deplorable conduct-is, in our opinion, of
such a nature as to preclude a bargaining order
remedy. We therefore believe that in light of the
coercive conduct which has heretofore occurred by
both parties, the policies of the Act will best be
effectuated by directing a remedial election so that
the employees, themselves, can determine the repre-
sentation status of the Union.8
In accord with the foregoing, we shall direct the
Regional Director to direct and supervise the
conduct of an election (1) when compliance with our
Order herein is voluntarily achieved, after the posting
period has elapsed and at such time as the Regional
Director determines that a free election can be held;
or (2) should the Respondents fail to comply with the
provisions in this Decision and Order and it is
necessary to have this Order enforced by a decree of
a United States court of appeals, upon the Respon-
dents' full compliance with such decree.
The election provided for above shall be conducted
among employees in the following unit, which we
find upon the entire record to be appropriate for
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All warehouse employees of Allou Distributors,
Inc., including shipping and receiving employees
and drivers, but excluding office clerical employ-
ees, guards, and supervisors as defined in the Act.
In the election, the employees shall determine
whether or not they wish to be represented for
collective-bargaining purposes by Local 815, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America.
2. As discussed in the Administrative Law
Judge's Decision, the Union claimed that its entry
onto the premises of the Company was authorized by
a clause in the then-current contract providing that
"authorized representatives shall be permitted to
enter the Employer's place of business at any time
for the adjustment of disputes, grievances or any
other matters that may require their presence." The
Judge held that the Union sought to "convert, if nor
pervert," a common clause into a license to overpow-
er employees with whom it deals, and recommended
that the Union be ordered to cease and desist from
entering the premises without permission, notwith-
standing any contract clause purporting to permit
such an entry. Additionally, the Administrative Law
Judge concluded that since the Union resorted to the
8 See Purolator Products, Inc., 160 NLRB 80.
ALLOU DISTRIBUTORS
use of intimidatory tactics to compel the employees
to continue their membership in the Union, the
employees should for a reasonable period of time be
free from all compulsion to become or to remain
members of the Union. Thus, he recommended
ordering that any collective-bargaining agreement
that may be reached between the parties during the
period of 3 years from the date of the parties'
compliance with the provisions of this Decision shall
not contain a union-security clause.
In our view, the Board is without the power to
order such remedies. In H. K. Porter Co. v.
N.L.R.B.,9 the Board found that the company
refused to agree to a checkoff clause in order to
frustrate the making of an agreement, and ordered
that the company grant such a clause. The Supreme
Court, however, held that the Board does not have
the power to compel a party to agree to any provision
of a collective-bargaining agreement. The Court said
that " `the Board may not, either directly or
indirectly, compel concessions or otherwise sit in
judgment upon the substantive terms of collective-
bargaining agreements.' " Therefore, with respect to
the entry clause, the Board is without power to
preclude the enforcement of what is a perfectly valid
contract provision. Similarly, the legality of the
union-security clause remedy recommended by the
Administrative Law Judge is also controlled by H. K.
Porter: Since the Board is without the authority to
compel parties to agree to a valid contract provision,
it certainly cannot prevent them from doing so.
Accordingly, we shall delete these portions of the
remedy.
3. We agree with the Administrative Law Judge
that broad cease-and-desist orders should be issued
against both the Company and the Union.
4. Finally, we shall require both the Company
and the Union to mail their respective notices to the
employees at their homes.1°
ORDER
A. Respondent, Allou Distributors, Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Infringing upon its employees' rights to self-
organization, to join or assist labor organizations, or
to bargain collectively through representatives of
their own choosing by promising employees benefits
to induce them to abandon membership in or
activities on behalf of any labor organization; by
initiating, sponsoring, preparing, or circulating
among its employees petitions disclaiming any desire
9 397 U.S.99.
10 See Bickford Shoes, Inc., 109 NLRB 1346.
11 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
49
to be represented by a labor organization; or by
initiating, sponsoring, or causing to be filed with the
National Labor Relations Board any decertification
or other employee petition.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Send to each of its employees in its employ as of
November 16, 1970, a copy of the notice attached
hereto and marked "Appendix A." 11 Copies of said
notice, to be furnished by the Regional Director for
Region 29, shall, after being duly signed by Respon-
dent Company's representative, be mailed immedi-
ately upon receipt thereof to said employees, directed
to their last known place of address.
(b) Post at its premises in Syosset, New York,
copies of the attached notice marked "Appendix A."
Copies of said notice, on forms provided by the
Regional Director for Region 29, after being duly
signed by Respondent Company's representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent Company has taken to
comply herewith.
B. Respondent, Local 815, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, its officers , agents, and repre-
sentatives, shall:
1. Cease and desist from:
(a) Threatening employees by words, conduct, or
other means that they or members of their families
would suffer bodily injury or other harm in order to
induce or compel them to continue their membership
in the Union.
(b) Restraining or coercing employees in the
exercise of their rights guaranteed in Section 7 of the
Act by inflicting violence on supervisory employees.
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner restraining or coercing
employees in the exercise of rights guaranteed to
them in Section 7 of the Act, except to the extent that
such rights 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 is
necessary to effectuate the policies of the Act:
(a) If their names and addresses are known or
available to Respondent Union, send to each of
Respondent Company's employees in its employ as
of November 16, 1970, a copy of the notice attached
hereto and marked "Appendix B." 12 Copies of said
notice, to be furnished by the Regional Director for
Region 29, shall, after being duly signed by Respon-
dent Union's authorized representative, be mailed
immediately upon receipt thereof to said employees,
directed to their last known place of address.
(b) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix B."
Copies of said notice, on forms provided by the
Regional Director for Region 29, after being duly
signed by Respondent Union's authorized represent-
ative, shall be posted by Respondent Union immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its
members are customarily posted. Reasonable steps
shall be taken by Respondent Union to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Mail or deliver to the Regional Director for
Region 29 signed copies of Appendix B for disposi-
tion by him which shall include posting by Allou
Distributors, Inc., at all places where notices to said
Company's employees are customarily posted.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to
comply herewith.
[Direction of Election and Excelsior footnote
omitted from publication.]
12 See fn 11, supra
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise employees benefits to
induce them to abandon membership in or
activities on behalf of any labor organization.
WE WILL NOT initiate, sponsor, prepare, or
circulate among our employees any petition
which purports to say that the employees do not
desire to be represented by any labor organiza-
tion.
WE WILL NOT initiate , sponsor, or cause to be
filed with the National Labor Relations Board
any decertification petition.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self -organization, to
form, join or assist any labor organization, to
bargain collectively through representatives of
their own choosing, to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
ALLOU DISTRIBUTORS,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Fourth Floor, 16 Court Street,
Brooklyn, New York 11201, Telephone
212-596-3535.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, by words, conduct, or other
means, threaten employees that they or members
of their families may suffer bodily injury or other
harm in order to induce or compel them to
continue their membership in the Union.
WE WILL NOT restrain or coerce employees in
the exercise of their rights guaranteed in Section 7
of the Act by inflicting violence on supervisory
employees.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of the rights
guaranteed to them in Section 7 of the Act , except
to the extent that such rights may be affected by
an agreement requiring membership in a labor
organization as a condition of employment as
ALLOU DISTRIBUTORS
authorized in Section 8(a)(3) of the National
Labor Relations Act.
LOCAL 815,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN &
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Fourth Floor, 16 Court Street,
Brooklyn, New York 11201; Tel. 212-596-3535.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Trial Examiner: These consolidat-
ed proceedings were heard in Brooklyn, New York, on
various days between April 5 and September 27, 1971.
Following the close of the hearing briefs were received
from the parties which have been carefully considered. The
charges in Cases 29-CA-2226 and 29-CA-2342 were filed
by Local 815, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, herein
called the Union, on January 8, and April 5, 1971,
respectively, and the complaints in said cases, respectively
dated February 22 and May 28, 1971, allege that Allou
Distributors, Inc., herein called the Company, has engaged
in and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and (5)
and 2(6) and (7) of the National Labor Relations Act, as
amended. The complaint in Case 29-CB-907, dated March
4, 1971, based on a charge and an amended charge filed by
the Company on February 12 and 19, 1971, respectively,
alleges that the Union has engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act.
The respective Respondents filed answers to the com-
plaints generally denying that they have engaged in the
alleged unfair labor practices.
Upon the entire record in these cases , and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
51
Allou Distributors, Inc., a New York corporation, is
engaged in the wholesale and retail distribution of
cosmetics, toiletries, and related products. During the
calendar year 1970, which period is representative of its
operations, the Company, in the course and conduct of its
business, caused to be transported through channels of
interstate commerce and to be delivered to its places of
business goods and materials valued in excess of $50,000.
The Company admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
For a number of years the Union has been representing
certain of the Company's employees and, since about
October 25, 1963, has had collective-bargaining agreements
with the Company covering such employees. The most
recent contract between the parties was executed on
October 29, 1969, for a term which expired on January 15,
1971. The agreement provided that the Company "recog-
nizes the Union as the sole collective-bargaining agent for
all employees in its employ, excluding executives, supervi-
sors and armed guards." Despite the comprehensive
language of the quoted recognition clause, the parties have
interpreted it to apply only to the Company's warehouse
employees and drivers, who were approximately 10 in
number during the times material hereto, and not to the
approximately 10 clerical employees.' At the hearing the
parties stipulated that the unit description set forth in the
contract and in the complaints is incorrect and further
stipulated that "All warehouse employees of Allou Distrib-
utors, Inc., including shipping and receiving employees and
drivers, but excluding office clerical employees, guards and
supervisors as defined in the Act, constitute the appropri-
ate unit." The complaint in Case 29-CA-2226, in sub-
stance, alleges that the Company, in violation of Section
8(a)(1): initiated, sponsored, and caused to be filed with
the National Labor Relations Board on November 16,
1970, a petition for decertification of the Union as
representative of the Company's employees; unlawfully
interrogated employees about their sympathies for and
desire to remain members of the Union; promised
employees economic benefits to induce them to abandon
the Union; and urged and directed a supervisor and an
employee to circulate and to solicit employees to sign an
antiunion petition during working hours. The complaint in
Case 29-CA-2342 alleges that the Company violated
Section 8(a)(1) and (5) of the Act by engaging in the
conduct described in the earlier complaint in order to
undermine and destroy the majority status of the Union
I About January 14, 1971, the Company and the Union extended the
term of their collective-bargaining agreement for an additional 30 days.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and by unlawfully ceasing to recognize and to bargain with
the Union as the representative of its employees. On
November 18, 1970, a group of six union representatives
invaded the Company's premises in Syosset, New York. In
connection therewith, the complaint in Case 29-CB-907
alleges that the Union violated Section 8(b)(l)(A) of the
Act by threatening employees that they and members of
their families might suffer bodily injury or other harm and
also by assaulting in the presence of employees supervisors
and representatives of the Company, by threatening such
persons with bodily injury, and by threatening to damage
the Company's property. The appropriate remedy in these
cases is a major issue. General Counsel and the Company
contend that even if all the allegations in the complaints
against the Company are found to have been proved,
nevertheless, because the Umon has engaged in grave and
serious misconduct, the remedy for the Company's alleged
violations of Section 8(a)(5) of the Act should not include
an order requiring the Company unconditionally to
recognize and to bargain with the Union.
A. The Company's Unlawful Activities
The Union and the Company have been parties to
collective-bargaining agreements covering the latter's
warehousemen and drivers since October 25, 1963. The
most recent contract covered the period from October 25,
1969, to January 15, 1971. On September 30, 1970, the
Union sent to the Company a notice terminating the
contract on its expiration date and requesting the Compa-
ny to join in negotiations for a new agreement. Subse-
quently, on October 9, the Umon mailed to the Company a
letter stating its contract demands. These included compa-
ny contributions to a trust fund for the following:
Supplementary unemployment benefits, 3 percent of
payroll; annuity, 2 percent of payroll; vacations, 9-1/2
percent of payroll; sick leave, 6 percent of payroll;
bereavement leave, jury duty, and educational conference,
2 percent of payroll; and leave for political and education-
al activities and voter registration, 2 percent of payroll; for
a total of 24-1/2 percent of payroll.There was a further
demand for $6 per week per employee to the Allied
Welfare Fund and $3 per week per employee for cardiac
and cardiac convalescent care. In addition, among other
cost items, there was a demand for a general wage increase
of $1 per hour.
The principals of the Company, Alfred Wexler, its
president, and Louis Castonguay, its secretary-treasurer,
were dismayed by the letter. Castonguay remarked to
Wexler that he would rather go out of business than accept
some of the Union's demands.
2 Howard Weintraub was promoted to his present position in April 1970.
He was designated as the head checker However, he considers himself to be
the'warehouse foreman . According to Weintraub, if he were not in charge of
the warehouse , there "would be mass chaos." Weintraub is the only
employee of the Company (except for Castonguay who is a 50-percent
stockholder and an officer and director of the Company ) who has any
authority over the warehouse employees and drivers . Subject to the
overriding authority of Castonguay , Weintraub is in charge of the day-to-
day operations of the warehouse . He is in charge of checking outgoing
orders; he is responsible for the trucks being loaded and departing from the
premises on schedule ; and he resolves difficulties , such as where to store
new items, encountered by the employees who receive incoming merchan-
dise . Weintraub has authority to change the work assignments of the
Prior to the receipt of the Union's contract demands,
there had been sporadic conversations between Caston-
guay and employees and also between Howard Weintraub,
the supervisor in the warehouse,2 and employees about
giving up union representation and in such event what the
Company might do for the employees. Thereafter, these
discussions intensified.
The employees were particularly concerned about the
fringe employment benefits they would receive in substitu-
tion for those they would lose should they withdraw from
the Union. Weintraub had several conversations with
Castonguay about the subject and reported to the
employees that the Company would provide them with
'Blue Cross, medical and hospitalization insurance , retire-
ment benefits, stock options should the Company make a
public issue of its stock, and other benefits. He assured the
employees that if they were to withdraw from the Union
the Company would not leave them "hanging" without
coverage for such things as medical and hospitalization
insurance and that they would do better without the
Union. Also, Castonguay spoke directly to various employ-
ees about the same subject and, in general , assured them
that the Company would provide them with a package of
benefits that would be as good, if not better, than that they
had under the union contract.
The concept of getting rid of the Union, fostered largely
by Weintraub and Castonguay, finally shifted from mere
talk to affirmative action. On November 16, 1970,
Weintraub, with Castonguay's permission, telephoned the
Brooklyn Regional Office of the National Labor Relations
Board to find out what had to be done to accomplish their
objective. Weintraub learned that a petition had to be filed
with the Board that same day to be timely with respect to
the expiration date of the contract. He relayed this
information to Castonguay and obtained the latter's
permission for a secretary to type a petition. After the
instrument was prepared Weintraub and another ware-
houseman , Harry Broiges , circulated the petition and
obtained a total of seven signatures to it. The first two
signatures on the petition are those of Company President
Alfred Wexler and Howard Weintraub, both of whom
were members of the Union. The petition reads as follows:
Gentlemen:
We the undersigned employees no longer wish to be
represented by Local 815 International Brotherhood of
Teamsters.
employees, to direct employees as to the priority they should give to their
normal work tasks, and to assign employees to different work tasks as
occasion demands. With the approval of Castonguay, Weintraub deter-
mines whether there should be overtime work and selects the employees
who are given overtime work He has authority to give employees time off.
Weintraub is paid a salary of $214 per week , which is $24 more than the
next highest paid warehouse employee . Unlike the other warehouse
employees , Weintraub is not paid for overtime work nor is he docked when
he takes time off. On the other hand, Weintraub is responsible for keeping
the warehouse employees ' time records . Upon the foregoing I find that
Weintraub has authority to assign and responsibility to direct the warehouse
employees in the performance of their duties and is therefore a supervisor
within the meaning of Section 2(l 1) of the Act.
ALLOU DISTRIBUTORS 53
Alfred Wexler-11/16/70
Howard Weintraub-I1 / 16/70
Dominick J. Smorto-11 / 16/70
Marvin Friedman- I 1/ 16/70
Harry Broiges-11/16/70
Ronald Giorlando-11 / 16/70
Robert MacPherson-11 / 16/70
In connection with the circulation of the petition, on
November 16, 1970, both Weintraub and Castonguay
spoke to employees about leaving the Union. Early that
morning Weintraub asked Dominick Smorto whether the
latter was interested in dropping out of the Union. Smorto
inquired what would happen to employee benefits, and
Weintraub answered that the Company probably would
institute a plan which would maintain the same benefits.
Smorto indicated that he wished to speak to Castonguay
about the subject. Later the same morning Castonguay
spoke to Smorto at the latter's place of work. Castonguay
promised that the Company would provide the employees
with a medical and hospital insurance plan which would be
equal to or better than the Union's plan, that it would
provide the employees with a better pension plan, and that
it might make a public issue of its stock and if it did the
employees would share in the profits through stock
options. Castonguay told Smorto that these benefits would
be more costly so that the Company would not gain
anything by getting rid of the Union.
Castonguay spoke about the same subject with employee
Marvin Friedman. Castonguay said that he wanted to oust
the Union and if that should happen the Company would
give the employees the same benefits they were receiving
under the union contract. Mentioning the possibility of
establishing a profit-sharing plan Castonguay promised
Friedman, "We'll all make more money being out of the
Union."
Later during the same morning Castonguay spoke to a
group of employees in the warehouse. He told them that an
instrument was being typed in the office to remove the
Union which he wanted all the employees to sign. He
further advised them that the instrument had to be filed in
New York that day. Castonguay said that eliminating the
Union would be very good for the employees and he
promised that he would give them all the benefits they had
under the union contract or mpre. Also he told the
employees that the Company was in the process of making
a public issue of its stock and that they would be given
stock options. He also promised a profit-sharing plan and
the highest available Blue Cross coverage.
After the petition was signed Weintraub delivered it to
Castonguay and reminded him that it had to be filed that
day. Castonguay requested employee Broiges , who lived in
Brooklyn, to file the petition and arranged with a supplier's
salesman to drive Broiges to Brooklyn . Broiges left the
plant between 1:30 and 2 p.m. Castonguay telephoned the
National Labor Relations Board and informed a represent-
ative that Broiges was on the way to the Board's office to
file a petition. On the same afternoon Castonguay again
called the Board's office to inquire whether Broiges had
arrived. Broiges later telephoned the plant to report his
arrival to Castonguay. At the Board's office Broiges
delivered the employees' petition which he carried and, in
addition, signed a decertification petition in Case
29-RD-102 which was prepared by a Board agent. The
next morning Broiges delivered a copy of the decertifica-
tion petition to Castonguay.
Conclusions Regarding the Company's Conduct
"It has repeatedly been held that an employer may not
intrude in matters concerning the self-organization of his
employees. He must refrain from all interference." Harri-
son Sheet Metal Company v. N. L R. B., 194 F.2d 407, 410
(C.A. 7). "The broad purpose of § 8(a)(1) is to establish
`the right of employees to organize for mutual aid without
employer interference.' Republic Aviation Corp. v. Labor
Boar4 324 U.S. 793, 798. We have no doubt that it
prohibits not only intrusive threats and promises but also
conduct immediately favorable to employees which is
undertaken with the express purpose of impinging upon
their freedom of choice for or against unionization and is
reasonably calculated to have effect." N.L.R.B. v. Ex-
change Parts Company, 375 U.S. 405, 409. "Section 8(a)(1)
of the Act makes it unlawful for an employer to instigate
and promote a decertification proceeding or induce
employees to sign any other form of union-repudiating
document, particularly where the solicitation is strength-
ened by express or implied threats of reprisal or promises
of economic benefit." N.LR.B. v. Birmingham Publishing
Co., 262 F.2d 2, 7 (C.A. 5).3
The conduct described above on the part of the
Company's principal, Louis Castonguay, and its warehouse
supervisor, Howard Weintraub, i.e., promising employees
various benefits to withdraw from the Union, preparing
and circulating a petition among the employees disclaim-
ing any continuing desire to be represented by the Union,
and causing a decertification petition to be filed with the
National Labor Relations Board, constituted an aggravat-
ed intrusion upon the self-organizational rights of employ-
ees guaranteed in Section 7 and thereby violated Section
8(a)(1) of the Act.
Following the extended expiration date of the collective-
bargaining agreement the Company refused to recognize or
to bargain with the Union despite the latter's bargaining
request. As the Company's expressed doubt concerning the
Union's majority derived exclusively from its unfair labor
practices, described above, I find that the Company had no
valid basis for withdrawing recognition from the Union
and for refusing to bargain collectively with it .4 According-
ly, by reason of such conduct I find that the Company has
violated Section 8(a)(5) of the Act and thereby, in further
violation of Section 8(a)(l), has coerced, restrained, and
3 Accord• N L.R.B. v. A W Thompson, Inc, 449 F.2d 1333 (C.A 5); 4 Boren Clay Products Co, 174 NLRB 895, enfd ., 419 F 2d 385,386 (C.A
N L.R.B. v. H W Elson Bottling Co , 379 F.2d 223, 225 (C.A. 6); Suburban 4).
Homes Corporation, 173 NLRB 497
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfered with the collective-bargaining rights granted to
employees by Section 7 of the Act.5
B. The Union 's Unlawful Activities
About noon on November 17 Oscar Sherman, one of the
warehouse employees, telephoned the Union's offices and
left a message that the Allou employees had signed a
petition to leave the Union, that he was the only union
member left at the Company, and that he wished advice
regarding his status. Sometime between 9 and 10 o'clock
the next morning, November 18, six union representatives
appeared at the plant. The group included Nicholas
Sceusa, president of the Union, Benjamin Camadeco, vice
president, and Charles "Buddy" Hipes, Jesse France, Felix
Vasquez, and Larry Plotnick, business representatives. As
they entered the building they were met by Company
President Wexler who asked them to wait in the anteroom
while he called his partner, Castonguay. Camadeco
retorted that his group had business to take care of and
they were not going to sit outside and wait until Wexler
was ready to see them. Thereupon the union representa-
tives brushed past Wexler and proceeded into the ware-
house area. Wexler returned to his office and telephoned
the police.
The union representatives upon entering the warehouse
went directly to the packing tables where Weintraub was at
work. Larry Plotnick asked to see his union book and
Weintraub showed it to him. Weintraub was then asked,
"Who started this?" He replied that he had. When asked
why, Weintraub answered that he was dissatisfied with the
union benefits and so were other employees. The exchange
between the union representatives and Weintraub became
heated. The following comments were directed to Wein-
traub in a loud and angry tone of voice: "What the f- do
you think you are trying to do? What the hell do you think
you're pulling here? Do you think you can make your own
deals? Who the hell gave you the authority to do this?"
Sceusa told Weintraub, "I remember you from H. B.
Cohen . . . where we used to work. You were always a
troublemaker and you are still a troublemaker." One of the
union representatives took Weintraub's arm and tried to
lead him into an aisle saying, "Come over here and let me
talk to you." Weintraub pulled away and responded,
"Whatever you have to say, you can say right here." He
was then told, "Once you're married to us, you're married
to us forever," and "you can't do this"-meaning withdraw
from the Union.
The melee about Weintraub took place in the presence of
the warehouse employees. A few left the area to hide.
Others were asked to show their union cards, which they
5 Suburban Homes Corporation, 173 NLRB 497.
6 When Shufelt completed loading the truck he found that the keys were
missing so that he was unable to move the truck and lock the vehicle. The
keys were discovered much later . In the circumstances , it would not be
unreasonable to infer that one of the union representatives had removed the
keys from the truck to prevent Shufelt from leaving the premises to make
deliveries.
7 Broiges testified that he had not been threatened by the union
representatives. Respondent Union argues that therefore Friedman's
testimony cannot be credited. However, the evidence establishes without
any question that Broiges was thoroughly frightened by what occurred in
the warehouse on November 18. Consistent with his desire not to offend the
did. The union representatives announced that no work
would be done until the entire matter was settled. Most of
the employees stopped working. While this was happening
Herman Shufelt was loading a truck at the loading
platform. Jessie France approached him and told him to
stop what he was doing. Shufelt refused and France
remarked, "There is no use loading this truck, it ain't going
to leave here." France walked away. Shufelt continued
loading his truck. About 10 minutes later France returned
and said to him, "I told you not to load that truck... .
[Ylou're a bull headed little son of a bitch."s
The commotion centering about Weintraub at the
packing table area continued. At one point Vasquez
remarked to Weintraub, "You're brave, aren't you? . . . Is
your family brave?" Either Camadeco or Vasquez added
that Weintraub was a troublemaker, that he should
remember that he has a family and should not make any
more trouble. One of the union representatives patted
Weintraub on the stomach and remarked, "You're getting
fat, aren't you? You think you still can take it?" Weintraub
retorted, "I think I can still take it." Weintraub was told
that he had better get the employees to sign a retraction of
the decertification petition. Larry Plotnick whispered to
Weintraub, "I'll get you for this you mother-." Weintraub
replied in kind telling Plotnick to go f- himself. After this
exchange Weintraub and the other employees in the
packing area were told that they would not be able to leave
the plant until they signed a statement that they wanted to
remain in the Union. Weintraub then undertook to find
out what the other employees wanted to do. He first spoke
to Broiges , who according to Weintraub looked as if he
were about to faint. Broiges said he did not want any
trouble and "let's go back in (the Union)."
Employee Marvin Friedman testified that he overheard
Camadeco ask Broiges, "You're a family man, aren't you?"
Friedman further testified that Broiges was visibly shaken
by this question.?
While the turmoil was taking place around the packing
tables, Wexler and Castonguay entered and demanded to
know why the union representatives were there .8 The reply
was, "You know damn well what we're here for." They
were told that they had "better do something about this
condition." Wexler directed the union representatives to
leave the packing table area. The response was that no one
was going to leave, they were going to stay right there and
they had a right to be there. One of the union representa-
tives added that under the union contract they had a right
to come into the premises anytime they wanted.
After awhile Wexler invited the union representatives to
confer privately. A meeting was held among Sceusa,
Camadeco, Wexler, and Castonguay in one of the offices
union representatives it is likely that he would deny at the hearing that any
threats had been directed toward him . Despite Broiges' denial , I credit
Friedman 's testimony summarized above.
8 The summary of what occurred on November 18 is based on the
testimony of the witnesses called by General Counsel. The Union called no
witnesses to contradict such evidence. Because the various incidents were
taking place simultaneously and because the testimony of each witness
necessarily was narrowly confined to what he saw.and heard without any
extended effort to corrolate his testimony with that of other witnesses, the
record is not precise as to the sequence of events . However, this neither
affects adversely the credibility of the testimony nor distorts the overall
picture of what happened.
ALLOU DISTRIBUTORS
outside the stockroom. During this meeting the union
representatives accused the Company of having instigated
the decertification petition and asserted that they "would
not move from the premises until it [the decertification
petition] was withdrawn." According to Castonguay,
Camadeco said "we were married to them and there was
no getting away from them." The union representatives
threatened that the Company's trucks would not roll, not a
bar of soap would leave the premises, and the Company
would be put out of business unless the decertification
petition was withdrawn.9 Upon Wexler's insistence that he
did not want any violence and that the Company had no
choice other than to accede to the Union's demands,
Castonguay agreed to call the men together to discuss the
situation.
Several police officers arrived at the premises about this
time. As no charge or complaint was made to them and as
the disturbance seemed to have subsided the police soon
left.
Following the conclusion of the meeting among Sceusa,
Camadeco, Wexler, and Castonguay, the warehouse
employees were instructed to gather in the lunchroom.
Broiges, who was visibly frightened, told the group that he
was a sick man, that he didn't want any trouble, and that
there was no telling what the union representatives might
do. Weintraub informed the meeting that he and his family
had been threatened. The consensus of the meeting was to
"avoid any problems"; they would remain in the Union.
While the meeting of employees was in progress,
Castonguay went into the warehouse where he told some
union representatives , including Sceusa , Camadeco, and
Hipes, that he would accept the decision of the employees.
As he started to walk away he was intercepted by Vasquez
and Jessie France. Vasquez, who is a shorter man, reached
up to Castonguay and rubbed his face on Castonguay's
face while saying, "nya, nya." Castonguay repeated the
same expression to Vasquez. Then Vasquez and Jessie
France pushed Castonguay from either side and, according
to Castonguay, both of them punched him in the back.
There is no evidence that any of the Company's employees
witnessed this incident. Castonguay thereupon telephoned
the police and in addition went to the lunchroom where the
employees were meeting and informed those present that
he had been assaulted by the union representatives and
that he had called the police.10
Police officers arrived soon after the call was placed.
According to Castonguay, upon the request of various
employees he informed the police officers that he would
not press charges against the union representatives. The
employees returned to the lunchroom and continued their
meeting . They were joined by Wexler, Castonguay, Sceusa,
and Camadeco. After further discussion the employees
decided that they would accede to the Union's demands. A
written statement calling for employees ' signatures was
prepared by Camadeco. It was given to Broiges who
9 According to Wexler, "Mr. Sceusa and Mr Camadeco tried to make it
very plain that there is a marriage with the union and you don't just sign a
petition . . to drop out; itjust doesn ' t happen . If we try to make it happen,
that they would put us out of business "
10 The injury Castonguay received from the described assault was trivial.
11 The Union contends that it had a contractual right to enter the
Company's premises without permission . I do not agree . Article SECOND
55
obtained the signatures of all the men who previously had
signed the original withdrawal petition. Broiges then, as he
was instructed to do by Benjamin Camadeco, telephoned
the National Labor Relations Board to find out how to
withdraw the decertification petition. Broiges later prepar-
ed a withdrawal request which he signed and mailed to the
Board, giving a copy to one of the union representatives.
The union representatives then left the plant. They had
been on the premises approximately 3-1/2 to 4 hours.
In essence the Union's defense is that any intimidatory
conduct on its part was directed only to supervisors and
other management personnel and not to rank-and-file
employees so that its conduct did not constitute restraint
and coercion of employees within the meaning of Section
8(b)(I)(A). I agree with the Union's position only in regard
to the assault on Castonguay. This occurred out of the
presence of any employees. The injury Castonguay
suffered was slight. The episode was more an attempt by
Jessie France and Vasquez to taunt Castonguay rather
than to hurt him. Angered by the incident Castonguay
complained to the employees, probably hoping to incite
them against the Union. Any intimidatory consequence
arose not from the assault itself but from Castonguay's
effort in telling of it to exaggerate and to dramatize what
had happened.
However, the threats made to Weintraub stand in a
different posture. They were made in the presence of
employees. Although a supervisor, Weintraub was a
member of the Union. He led the attempt to decertify the
Union and admitted this to the union representatives on
November 18. In the circumstances, the employees who
heard the threats directed to Weintraub would be appre-
hensive that they too would be subject to the same reprisals
if they persisted in their efforts to withdraw from the
Union.
Two other employees were also targets of the Union's
intimidatory tactics . Broiges was threatened when he was
asked whether he was a family man. In the context of what
was occurring this question carried the implication that
Broiges' continued opposition to the Union might result in
harm to his family. Similarly, Jessie France's unsuccessful
attempt to cause Shufelt to stop working in the circum-
stances described was coercive.
More serious than the specific threats made by the union
representatives on November 18 was the latent threat
inherent in their conduct. Six union representatives literally
invaded the Company's warehouse.ii The object of their
concern was a group of only 10 warehouse employees.
Upon entering the warehouse area this relatively large
number of union representatives loudly told the employees
to stop working, ignored the request of Company President
Wexler to leave the warehouse area, proclaimed that their
purpose was to upset the decertification effort, made the
threats described above, and generally created the impres-
sion that they were in control of the premises. This
of the then-existing contract provided . "The Employer agrees that
authorized representatives of the Union shall be permitted to enter the
Employer's place of business at any time for the adjustment of disputes,
grievances or other matters that may require their presence ." While this
provision may constitute a contractual undertaking on the part of the
Company to permit union representatives to enter its premises for the
purposes stated, it is not a license to the Union to do so without permission
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behavior served to frighten most of the employees and to
terrorize some. Broiges defecated in his pants.12 One of the
female employees locked herself in the ladies ' room and
would not come out even when a police officer assured her
that it was safe to do so. Sergeant Robert Burdewick
described the effect on the employees as follows:
It was a group that stood there very uneasy, their
whole appearance, the nervous fidgeting, the huddling
together so that no one would be leaving the rest of
themselves, more or less self protection within a group
of themselves.
It's difficult for me to explain. It's just that the whole
appearance, the nervousness, the occasional tremor of
one of the younger secretaries, the comments that you
could possibly not hear from one particular person
about what do you think is going to 4appen next or
what are we going to do now, all odds and ends.
The whole situation in its entirety.
s s s s
[I It might be a bit . . . extreme, but terrorized, that
they were definitely in fear of something physically
going to happen to them at the time, even though we
were present.
Contrary to the Union, I am of opinion that its conduct
on November 18 was not a reasonable response to the
Company's unlawful activities in sponsoring a decertifica-
tion petition, but was an aggravated demonstration to the
employees that they were in danger of suffering not only
economic injury but also physical harm should they persist
in their efforts to withdraw from the Union. I find the
Union's conduct on the occasion described constituted
restraint and coercion within the meaning of Section
8(b)(1)(A) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Company described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices, I shall recommend that each of them
cease and desist therefrom and that each take certain
affirmative action designed to effectuate the policies of the
Act.
The remedy for the violations of Section 8(aX5) of the
character found herein normally includes an order direct-
ing the Company, upon request , to bargain collectively
12 Broiges who testified that he was not frightened but was' just a little
scared" described well the nature of the fear generated by the Union's
conduct . Broiges explained : "Six men walk into a place and you tend to be a
little frightened , you don't know what to expect... I never worked in a
place before where we had this kind of a problem. Going out of a
union or trying to, or having delegates come in . . in force . . like
with the Union. However, both General Counsel and the
Company contend that such an order is not appropriate
here. In his brief General Counsel argues:
The Union's misconduct in this case ... was of such
grave and serious a nature as to disqualify it from the
grant of an affirmative unconditioned bargaining order
to remedy the Employer's unlawful involvement in the
decertification activities and refusal to continue to
recognize and bargain with the Union as the exclusive
collective bargaining representative of its warehouse
employees.
General Counsel relies principally on Laura Modes
Company, 144 NLRB 1592, to support his position.14
There are parallels between Laura Modes and the instant
case. In both cases the employer had engaged in unfair
labor practices with the object of undermining the labor
organization's majority status and avoiding its statutory
collective-bargaining obligations. However, there is a vital
difference between the two cases. Here the Union had been
the recognized representative for approximately 7 years. In
Laura Modes the labor organization, District 65, Retail,
Wholesale and Department Store Union, AFL-CIO, had
not yet established its status as collective-bargaining
representative. In that case District 65 had neither been
accorded voluntary recognition by the employer nor had
been certified as representative by the Board. In Laura
Modes, District 65 was appealing to the Board to determine
in the first instance, on the basis of authorization cards, its
representative status and to compel the employer to
recognize and to engage in collective bargaining with it.
However, before the unfair labor practice proceeding had
been instituted, District 65 had sought to compel the
employer through an unlawful course of conduct, includ-
ing acts of violence which the Board characterized as
"reprehensible assaults ," immediately to recognize and to
bargain with it without resort to the Board's election
procedures. Referring to District 65's misconduct the
Board observed that it "did not extinguish the employees'
rights to bargain through the Union." Nevertheless, the
Board refused to issue a bargaining order explaining:
We recognize of course that the employees' right to
choose the Union as their representative survives the
Union's misconduct. But we believe it will not
prejudice the employees unduly to ask that they
demonstrate their desires anew in an atmosphere free
of any possible trace of coercion. . . . We conclude
that, in the particular circumstances of this case, the
policies of the Act and the legitimate interests of the
public and the parties will best be served by denying to
the Union the right to invoke our statutory processes in
aid of a demand for recognition as bargaining
representative of Respondents' employees unless and
until it demonstrates its majority among those employ-
ees through the Board's election procedures. [p. 15961
Thus, the decision in Laura Modes rests on the circum-
stance that District 65's majority status had not yet been
they did with six people , and then the police came in later on "
13 District 65, Retail, Wholesale & Department Store Union (B Brown
Associates, Inc.), 157 NLRB 615, enfd. 375 F.2d 745 (C.A. 2).
14 Also cited by General Counsel in support of his argument is Artcraft
Mantel and Fireplace Co, 174 NLRB 737
ALLOU DISTRIBUTORS
determined before it began its course of unlawful activity.
The importance of this factor is emphasized in Cascade
Corporation, 192 NLRB No. 74, where the Board held:
We also agree with the Trial Examiner for the reasons
stated by him that it is appropriate to issue a bargaining
order in this case. Unlike Laura Modes, 144 NLRB
1592, where there had been no opportunity for the
employees to make a free choice in an atmosphere free
of coercion, here a valid election was conducted and a
certification had issued before any violence took
place. 15
As I analyze the relevant cases they hold that a Union
which seeks through the use of force and intimidation to
secure in the first instance bargaining rights is not entitled
to a remedial bargaining order based on authorization
cards; in such instance it must demonstrate its majority
status by invoking the Board's representation case proce-
dures. Conversely, the cases"make it clear that although a
union which is a freely chosen majority representative
engages in misconduct, such misdeeds do not operate
either to disqualify it from lawfully pursuing its representa-
tion rights or preclude the employees from choosing to
bargain lawfully through it." 16 Without weighing the
gravity of the Union's misconduct in this case against that
which the Board relied on in Laura Modes Company or in
A rtcraft Mantel and Fireplace Co., supra, because the Union
had been the recognized representative of the Company's
employees since 1963 and because the Company had no
valid basis, except for reasons arising out of its own unfair
labor practices, for doubting the Union's continuing
majority I am of the opinion that the situation herein is
distinguishable from Laura Modes and that a bargaining
order should issue .17 It is noted that ultimately the Union's
majority was successfully dissipated by the Company's
unfair labor practices. Absent a bargaining order the
Company would reap the benefits of its unlawful conduct.
The Union's later unfair labor practices do not exculpate
the Company from the consequences of its own misdeeds.
These must be remedied in order to effectuate the policies
of the Act and, as will be discussed below, so must the
Union's unfair labor practices.
I shall further recommend that the notice herein contain
language advising the employees of their right to a
decertification election. See N. L. R. B. v. Priced-Less Dis-
count Foods, Inc., 405 F.2d 67 and 407 F.2d 1325 (C.A. 6);
Ace Foods, Inc., 192 NLRB No. 180.
I have found that the Union also has engaged in unfair
labor practices of an aggravated nature. The customary
order directing the Union to cease and desist from
engaging in such misconduct would not be adequate to
prevent recurrences of similar unlawful actions. I have
found that the invasion of the Company's warehouse on
November 18, 1970, by a relatively large number of union
representatives, who ignored the protests of the employer,
who effectively disrupted the employees' normal work
activities, and who behaved as if they were in control of the
15 See also World Carpets of New York, Inc, 188 NLRB No 10, Pacific
Abrasive Supply Co., 182 NLRB 329 ; United Mineral & Chemical Corpora-
tion, 155 NLRB 1390, reversed in pertinent part 391 F .2d 829 (C.A. 2)
16 Laura Modes Company, 144 NLRB 1592, 1596, In. 1.
17 Celanese Corporation of America, 95 NLRB 664 ; N L.R B v. Gulfmont
Hotel Company, 362 F.2d 588 (C.A. 5)
57
premises, created a potential for violence and placed the
employees in fear of physical harm and loss of employ-
ment. There has been no acknowledgement on the part of
the Union, even at this late date, that there has been any
impropriety in its conduct . To the contrary, the Union
claims that article SECOND of the collective-bargaining
agreement which was then in force authorized its entry on
the premises without the Company's permission. The
article referred to reads as follows: "The Employer agrees
that authorized representatives of the Union shall be
permitted to enter the Employer's place of business at any
time for the adjustment of disputes, grievances or any other
matters that may require their presence." Police Sergeant
Regis Beneville, who responded to the Company's first call
for police assistance on November 18, testified that when
he asked the union representatives what was the problem
he was told, "[T]hey were going to come in and talk to the
men, they had a right, it was within the contract they could
come talk to them any time they wanted, and they were
going to talk to the men." Sergeant Beneville further
explained "the owner wanted them [the union representa-
tives] out of this specific area where they were and the
Union was saying pretty much `we have a right to meet
with the men anywhere we want and we are going to meet
with them right here and now.' " Thus, the Union has
sought to convert, if not pervert, a not uncommon type of
collective-bargaining clause into a license which would
permit it, as it sought to do in this case, to overpower the
employers with whom it deals and the employees whom it
purportedly represents. It is necessary therefore to prohibit
the Union from using a contractual opportunity to consult
with its constituency during working hours as a vehicle for
repression, coercion, or intimidation. Accordingly, in order
to prevent the recurrence of any similar unlawful conduct
on the Union's part I shall recommend that the Union shall
advise its members that , any provision in any collective-
bargaining agreement notwithstanding, it will not enter on
to the premises of any employer without permission. This
does not mean that the Union may not negotiate collective-
bargaining agreements which contractually obligate the
employer to permit a reasonable number of union
representatives to consult with its constituency on employ-
er property, but the Union must resort to lawful methods
to enforce any breach of such agreement and may not
engage in self-help involving trespass or other misconduct.
A principal purpose of the Act is to afford employees an
opportunity freely to choose for themselves a collective-
bargaining representative . In this case there has been a
dual interference with that right. The Company first
influenced its employees to sign a petition disclaiming
representation by the Union and instigated the filing of a
decertification petition with the Board. This was countered
by equally serious misconduct on the part of the Union
which was designed to force the employees to remain
members.18 The conduct on the part of both the Company
and the Union has seriously impaired the opportunity for
19 "Neither the Trial Examiner nor we have the authority to overlook or
excuse such violations of the statute merely because Respondent may have
been motivated in resorting to such excesses by a belief, however good faith
that belief may have been, that in so doing it might succeed in detemng .. .
[violations of] other provisions of our Act.
"A union faced with such concerns is not without remedies . Contractual
(Continued)
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees freely to make any decision regarding their
self-organizational desires . In these circumstances there is
no ready way to effect "a restoration of the situation, as
nearly as possible, to that which would have been obtained
but for [the unfair labor practices ]." 19 I have concluded,
on the one hand, that a bargaining order is necessary to
remedy the Company's unfair labor practices. On the other
hand, because the Umon resorted to the use of intimidato-
ry tactics to compel the employees to continue their
membership in the Union, I am of the opinion that for a
reasonable period of time the employees should be free
from all compulsion to become or to remain members of
the Union. Accordingly, I shall recommend that any
collective-bargaining agreement that may be reached
between the Company and the Union, during the period of
3 years beginning from the date of the parties' compliance
with the provisions of this Decision, shall contain no
union-security clause . In other words , the object sought to
be achieved is to minimize any opportunity on the part of
the Company and the Union, both of whom have engaged
in serious unfair labor practices affecting the statutory
right of the employees freely to choose a collective-
bargaining representative , to impose on any unwilling
employees the requirement that they become members of
the Union.20
For the reasons which are stated in Consolidated
Industries, Inc., 108 NLRB 60, 61, and cases there cited, I
shall recommend broad cease -and-desist orders.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. By refusing to recognize and to bargain collectively
with the Umon on and after February 22, 1971,21 with
respect to the employees in the below-described appropri-
ate unit , the Company has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(aX5)
violations can be remedied through appropriate grievance procedures.
Violations of this Act may be pursued by filing charges with this Agency
Self-help, through the exercise of statutorily protected strike and picketing
activity , may also be available
"But the use of coercive tactics specifically banned by Section 8(b) will
not be sanctioned by this Board ." [Sheet Metal Workers' International
Association, Local Union No 361 (Langston & Co, Inc), l95 NLRB No 65.1
of the Act. The unit appropriate for collective bargaining
is:
All warehouse employees of Allou Distributors, Inc.,
including shipping and receiving employees and driv-
ers, but excluding office clerical employees, guards and
supervisors as defined in the Act.
2. By reason of the foregoing and by reason of the
Company's promises of benefits to its employees to induce
them to abandon their membership in and activities on
behalf of the Union, the Company's conduct in preparing
and causing to be circulated among its employees a
petition disclaiming any continuing desire to be represent-
ed by the Union, and the Company's conduct in initiating,
sponsoring, and causing to be filed with the National
Labor Relations Board a petition seeking decertification of
the Union, the Company has interfered with, restrained,
and coerced employees in the exercise of rights guaranteed
in Section 7 and thereby has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. On November 18, 1970, by threatening employees
and a supervisor in the presence of employees that they
and members of their families may suffer bodily injury or
other harm to their persons and by invading the premises
of the Company in the circumstances described above,
thereby placing the employees in fear of physical violence
and of jeopardy to their employment , the Union has
restrained and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act and thereby has
engaged in unfair labor practices within the meaning of
Section 8(bx1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
19 Phelps Dodge Corp v N L.R.B, 313 U.S. 177, 194.
20 N L. R B v. Southern California Pipe Trades District Council, No 16,
etc, 449 F 2d 668 (C.A 9).
21 On that date the attorneys representing the Company wrote a letter to
the Union advising that the Company doubts that the Union represents "an
informed majority of its employees" and for that reason was declining the
Union's request to engage in collective -bargaining negotiations.