C. K. Smith & Co., Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1977

227 N.L.R.B. 1061 (N.L.R.B. 1977)

C. K. SMITH & CO., INC.
C. K. Smith & Co., Inc. and Teamsters Local 170,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca
C. K. Smith & Co., Inc./Buckley Heating Co., Inc.
(Gasoline Division) and Teamsters Local 170, a/w
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Cases 1-CA-9817, 1-CA-9818, and 1-CA-10184
January 14, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On July 16, 1976, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this proceed-
ing. Thereafter, Respondents, Charging Party, and
General Counsel filed exceptions and supporting
briefs.
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, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondents, C. K. Smith &
Co., Inc., and Buckley Heating Co., Inc. (Gasoline
Division), Worcester, Massachusetts, their officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order, except that the
attached notice is substituted for that of the Adminis-
trative Law Judge.
i The Respondents , Charging Party, and General Counsel have excepted
to certain credibility findings made by the Administrative Law Judge. It is
the Board 's established policy not to overrule an Administrative Law Judge's
resolutions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362
(C A 3, 1951) We have carefully examined the record and find no basis for
reversing his findings
227 NLRB No. 147
APPENDIX
1061
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL recognize Teamsters Local 170, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as
the exclusive collective-bargaining representative
of employees in C. K. Smith & Co., Inc.'s
mechanics unit set out below.
WE WILL bargain collectively upon request with
Teamsters Local 170, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive collec-
tive-bargaining representative of employees in the
appropriate bargaining units set out below, and
embody any understanding reached in a signed
agreement.
WE WILL NOT withdraw recognition from and
refuse to bargain collectively with Teamsters
Local 170, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, with respect to rates of pay,
hours, and other conditions of employment of C.
K. Smith & Co., Inc.'s employees in the appropri-
ate bargaining unit of mechanics set out below.
WE WILL NOT bargain directly with individual
retail driver employees of C. K. Smith & Co., Inc.,
in derogation of the rights of Teamsters Local 170,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the bargaining representative of employees
in the retail drivers bargaining unit set out below.
The appropriate bargaining units are:
1. All mechanics and warehousemen of C.
K. Smith & Co., Inc., employed at its
Worcester plant, exclusive of all other em-
ployees and supervisors as defined in Section
2(11) of the Act.
2. All retail truck drivers of C. K. Smith &
Co., Inc., at its Worcester plant, exclusive of
all other employees and all supervisors as
defined in Section 2(11) of the Act.
WE WILL NOT coercively interrogate our em-
ployees concerning their union membership, ac-
tivities, or desires.
WE WILL NOT promise our employees adjust-
ments in working conditions to dissuade their
support of the Union.
WE WILL NOT threaten our employees with loss
of work opportunity to dissuade their support of
the Union.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer immediate and full reinstatement
to the employees listed below to their former
positions or, if such positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights previously
enjoyed, and WE WILL make them whole for any
loss of pay or other benefits, including interest at 6
percent per annum, suffered as a result of the
refusal on July 9, 1974, and thereafter, to prompt-
ly reinstate such employees upon their uncondi-
tional offer to return to work on July 8, 1974, from
an unfair labor practice strike engaged in by such
employees:
Clyde Whitaker William Paige
David Plante Edward Commo
Joseph Luksha Harry Wilson
Thomas Crilly James Wadowski
Richard Erickson Raymond Flagg
David Bedard Richard Castonguay, Sr.
Arthur Lewis Douglas C. Morrison
Stanley MacDonald Gregorio Santoro
Bruce Hathaway Robert Luby
Richard Cook Raymond Desy
WE WILL NOT discourage membership in or
activities on behalf of Teamsters Local 170, or any
other labor organization, or the engaging in
protected concerted activities, by refusing to
reinstate unfair labor practice strikers upon their
unconditional offer to return to work.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to engage in organizational
activities or in collective bargaining, or to refrain
from such activities.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization, except to the extent provided by
Section 8(a)(3) of the Act.
C. K. SMITH & CO.,
INC., AND BUCKLEY
HEATING CO., INC.
(GASOLINE DIVISION)
DECISION
STATEMENT OF THE CASE
JERRY B. STONE , Administrative Law Judge : This conso-
lidated proceeding , under Section 10(b) of the National
Labor Relations Act, as amended, was heard pursuant to
due notice on November 17 and 18 and December 8, 9, 11,
12, 13, and 14 , 1975, at Worcester, Massachusetts.
The charges in Cases 1-CA-9817 and I -CA-9818 were
filed on May 13 , 1974. The charge in Case I-CA-10184 was
filed on October 22, 1974. The amended charge in Case 1-
CA-10184 was filed on January 2, 1975. The amended
consolidated complaint in this matter was issued on June
24, 1975.
The issues concern whether (1) Respondents constitute a
single employer within the meaning of the Act; (2)
Respondents have engaged in conduct violative of Section
8(a)(1) of the Act by interrogation of employees concerning
their membership in or activities on behalf of the Union, by
threatening employees with loss of employment or job
security or working conditions because of their membership
in or activities on behalf of the Union, and by promising
adjustments in working conditions if there were no Union;
(3) Respondents have engaged in conduct violative of
Section 8(a)(5) and (1) by refusing to bargain collectively
with the Union; (4) the Union is an exclusive collective-
bargaining agent in a certain bargaining unit; (5) a strike
was an unfair labor practice strike, an economic strike, or
unprotected unlawful strike in whole or part as regards
certain employees on strike; and (6) Respondents have
violated Section 8(a)(3) and (1) of the Act by refusing to
reinstate certain strikers on their unconditional offer to
return to work.
Respondents, prior to the hearing, filed a motion to
dismiss certain allegations of the complaint. The motion
was predicated in effect on a contention that charges were
not sufficient to constitute charges filed within the 10(b)
period for the purpose of the complaint allegations pertain-
mg to the issues , primarily the issues relating to an alleged
unfair labor practice strike, and to the alleged refusal to
reinstate unfair labor practice strikers. Respondents' mo-
tion to dismiss such complaint allegations was dismissed.
Respondents' interim appeal to such ruling was denied by
the Board. Respondents have in effect reiterated in brief
that such complaint allegations are barred by Section 10(b)
of the Act.
I find no merit to such Respondents' contentions and
adhere to the rulings made at the hearing. The complaint
alleges that Respondents (Buckley and Smith) have en-
gaged in certain conduct violative of Section 8(a)(5) and (1)
of the Act. Such conduct is alleged to have occurred on or
after March 1 and on dates thereafter and well within the 6-
month period preceding May 13, 1974, the date 8(a)(5) and
(1) charges were filed in Cases 1-CA-9817 and 1-CA-9818
against C. K. Smith & Co., Inc. The charges contained in
effect specific 8(a)(5) allegations and general 8(a)(1) allega-
tions. It is clear that the 8(a)(5) and (1) complaint
allegations are closely related to the charges as filed and are
timely within the meaning of Section 10(b) of the Act.
Service upon one corporation, part of a single employer
enterprise, is sufficient to support complaint allegations of a
single-employer respondent. As found later herein, Buckley
and Smith constitute a single employer within the meaning
of the Act. Further, on October 22, 1974, the Union filed an
unfair labor practice charge in Case 1-CA--10184 against
the single employer, Smith and Buckley, and alluded
therein in effect to the labor dispute between the employer
and employees in the bargaining units other than the unit
specifically involved in Case I-CA-10184. Such charge, in
and of itself, is sufficiently related to the charges in Cases 1-
CA-9817 and 1-CA-9818 to constitute proper notice by
amendment of the single-employer contention.
C K. SMITH & CO., INC.
Thus, the charges in Cases 1-CA-9817 and 1-CA-9818
properly form a basis for the complaint allegations of
conduct violative of Section 8(a)(1) and (5) of the Act. Such
conduct alleged as having occurred timely with respect to
the date of filing of such charges on May 13, 1974, forms a
proper basis for determining whether a strike occurring on
April 29 through July 8, 1974, is an unfair labor practice
strike as alleged in the complaint.
The complaint alleges in effect that Respondents have
failed and refused to reinstate certain employees since on or
about July 9, 1974, because they participated in an unfair
labor practice strike. The amended charge in Case 1-CA-
10184 was filed on January 2, 1975. The complaint
allegations are within the 10(b) period of such charge. The
amended charge (Case 1-CA-10184) in part alleges con-
duct violative of Section 8(a)(3) and (1) of the Act by
refusal to reinstate certain named employees. The com-
plaint allegations of refusal to reinstate unfair labor
practice strikers are sufficiently related to the charges as
filed. Although, as the record reveals, the individuals
named in such charge were Buckley wholesale drivers, the
question of refusal to reinstate all of the unfair labor
practice strikers (including employees who were "retail
drivers" and "mechanics") is properly encompassed since
the alleged violation is of the same class of violation
involved in the charge. In sum, the complaint allegations
are based on proper charges.'
All parties were afforded full opportunity to participate
in the proceeding . Briefs have been filed by all parties and
have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:2
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER SINGLE-EMPLOYER
STATUS
A. Undisputed Facts
C. K. Smith & Co., Inc., herein sometimes referred to as
Respondent Smith or Smith, is and has been at all times
material herein a corporation duly organized under and
existing by virtue of the laws of the Commonwealth of
Massachusetts.
Buckley Heating Co., Inc. (Gasoline Division), herein
referred to sometimes as Respondent Buckley or Buckley, is
and has been at all times material herein a corporation duly
organized under and existing by virtue of the laws of the
Commonwealth of Massachusetts.
At all times material herein Respondent Smith has
maintained its principal office and place of business at 99
Crescent Street, Worcester, Massachusetts (herein called
the Worcester plant).
At all times material herein, Respondent Buckley has
maintained its principal office and place of business at 99
Crescent Street, Worcester, Massachusetts (herein called
the Worcester plant).
i NLRB v Fant Milling Company, 360 US 301 (1959), Southern
Materials Company, 181 NLRB 958 (1970)
2 An order, marked as ALJ Exh 1, dated May 26, 1976, wherein the
1063
Respondents Smith and Buckley, at all times material
herein, have been engaged in the sale and distribution of
gasoline, oil, and related products at the said Worcester
plant.
Respondents Smith and Buckley in the course and
conduct of their business cause, and continuously have
caused at all times material herein, large quantities of
gasoline and oil used by them in the conduct of their
business to be purchased and transported in interstate
commerce from and through various States of the United
States other than the Commonwealth of Massachusetts.
Respondents Smith and Buckley in the course and
conduct of their business annually receive gasoline and oil
valued in excess of $50,000 at their Worcester plant from
points located outside the Commonwealth of Massachu-
setts.
B. Disputed Issue; The Single-Employer Issue
The General Counsel alleges and Respondents deny that
"Respondent Smith and Respondent Buckley (herein
jointly called Respondents) are, and at all times material
herein have been, affiliated businesses with common
ownership and operators and constitute a single, integrated
business enterprise. The said owners and operators formu-
late and administer a common labor policy for the
aforementioned companies affecting the employees of said
companies."
At the hearing of this matter, attempt was made to get the
parties to narrow the issues and to stipulate to facts that
were not in dispute . In this regard , Respondents ' counsel
indicated his willingness to stipulate to certain facts relating
to the single-employer issue but his unwillingness to
stipulate to a legal conclusion that Respondents constituted
a single employer . Dialogue between counsel ensued with
apparent agreement to meet outside the proceeding and to
develop some factual stipulations . Despite this, no stipula-
tions of fact were presented into the record concerning the
single-employer issue.
The pleadings and the evidence clearly establish that
James Smith is president of both Respondent Smith and
Respondent Buckley, and that David J. Adams is vice
president of both Respondent Smith and Respondent
Buckley. The pleadings and the credited evidence as a
whole clearly establish that both Respondents' place of
business and offices are at the same location.
The General Counsel presented evidence concerning
negotiations by the Union with Respondents' Buckley and
Smith , certain statements made by President Smith and
Vice President Adams to employees, and some evidence
concerning the business and operations of Respondents.
The Charging Party's questioning of witnesses was in the
same vein . Respondents' counsel questioned witnesses in
the same area of evidence.
It is clear from such evidence that President Smith and
Vice President Adams are engaged generally in the man-
agement of both Respondents on a day-by-day basis. It is
also clear in effect that Respondent Buckley is essentially
engaged in the sale and wholesale distribution of oil and
record was corrected in part, is hereby received into the record . Proof of
service of such order is attached thereto and a part of AU Exh I
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
related products and that Respondent Smith is essentially
engaged in the sale and retail distribution of oil and related
products. The credited evidence also reveals that both
President Smith and Vice President Adams handle labor
relations interchangeably and for both Respondents.
Although limited evidence was presented concerning
specifics of labor policy as directed to individual employ-
ees, it is clear that Respondents were concerned about the
effect of labor relations of one Respondent on the other
Respondent. Thus, Vice President Adams credibly testified
in effect that he was concerned over the inclusion of a
"protection of rights" clause in a contract for one of the
Respondents because of the effect of the same on the other
Respondent.
As indicated, despite assertion of Respondents' counsel
that he was willing to stipulate to certain facts relating to
the single-employer issue, the parties did not enter into such
stipulation.
In the presentation of Respondents' case, Respondents'
counsel went into some issues for which evidence touched
in a minor way the single-employer issue. General Counsel
and Charging Party attempted to broaden the cross-exami-
nation of such witnesses into the general single-employer
issue. Respondents objected to the examination of witness-
es on the single-employer issue and contended that Respon-
dents had not gone into the single-employer issue.3 The
cross-examination of such witnesses was limited to the
matter gone into on direct. Although Respondents were
attempting to avoid going into the single-employer issue,
where subject matter is gone into which overlaps or touches
on such issue, evidence elicited must be considered as to all
issues . This is the risk of litigation. The area of cross-
examination was limited but did adduce evidence which
touches on the single-employer issue. Thus, credited evi-
dence was adduced which revealed that Messina, a supervi-
sor of Respondent Smith, was concerned in 1972 about a
strike by Respondent Buckley's drivers because of the effect
on the ability of Respondent Smith to deliver oil. Further,
credited evidence reveals that Respondent Smith's supervi-
sor, Carlson, interviewed prospective employee Witt when
he was hired for a job for Respondent Buckley during the
April 29-July 8, 1974, strike involved in this case.
Considering all of the foregoing, I conclude and find that
the facts reveal that Respondent Buckley and Respondent
Smith constitute a single employer within the meamng of
the Act. Thus, the facts reveal that Respondents share the
same location and have their businesses and offices at the
same location. Respondents have the same officers. James
Smith is president of both Respondents. David J. Adams is
vice president of both Respondents. Both President Smith
and Vice President Adams are engaged in daily manage-
ment of both Respondents. Both President Smith and Vice
President Adams are engaged in the handling of labor
relations for both Respondents. In the handling of labor
relations matters for one Respondent, concern is given for
the effect of such labor relations on the other Respondent.
There is no question that there is common ownership of the
3 1 would note that the General Counsel made no contention that the
question of "stipulation" had been inadvertently overlooked.
4 Arlington Ridge Development Co, 203 NLRB 787 (1973 ), Barwise Sheet
Metal Co, 199 NLRB 372 (1972), Transport Workers Union of America,
two Respondents. Although the issue of whether there is
common ownership of both Respondents is presented by
the pleadings, it is not a genuine issue. Perhaps Respon-
dents denied the complaint allegations as to the single-
employer issue because the allegations were broad and
included other matter. Since Respondents' counsel stated at
the hearing that there is common ownership of the two
Respondents, it would appear that the answer should have
admitted in part and denied in part the allegations.
Statement by counsel at a hearing as to such matter that is
not really disputed can properly be considered as a
statement narrowing the issues, or as an admission of a fact.
I so construe the statement of Respondents' counsel that
there is common ownership of Respondents.
The facts reveal in effect that from the same location
Respondents operate through Respondent Buckley the sale
and distribution on a wholesale basis of oil and related
products, and through Respondent Smith the sale and
distribution of retail oil and related products.
Although the Board and court normally give weight to a
combination of the criteria of common ownership, common
management, centralized control of labor relations, and
interrelationship of the enterprise, it does not always give
the same weight to each criteria, nor does it always find that
each criteria is essential. In situations where the types of
businesses are essentially similar, as here where the distinc-
tion is one of "wholesale" or "retail," the criteria of
common ownership, management, centralized control of
labor relations, and location of the enterprises have been
accorded controlling weight. In sum, the facts here reveal in
effect one enterprise with divisions of the same engaged in
"wholesale" and "retail" distribution of oil and related
products. The overall facts reveal Respondent Buckley and
Respondent Smith to constitute a single employer within
the meamng of the Act,4 and engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local 170, a/w International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America , is and has been at all times material herein a labor
organization within the meaning of Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The Setting
Many of the facts and some of the issues in this
proceeding are not disputed, admitted in the pleadings,
stipulated to, or established by overwhelming evidence. For
a brief look at the setting and the issues I find it proper to
set forth the following statements as to the setting and
issues.
Respondents operate an enterprise from a plant location
in Worcester, Massachusetts. Respondent Buckley is en-
gaged in the wholesale sale and distribution of oil and
related products. Respondent Smith is engaged in the retail
AFL-CIO, and Local 504 (Triangle Maintenance Corporation), 186 NLRB 538
(1970); and The Wood, Wire and Metal Lathers International Union, Local
Union No 68 (State Lathing Co, Inc.), 153 NLRB 1189 (1965)
C. K. SMITH & CO., INC. 1065
sale and distribution of oil and related products . Respon-
dent Buckley has had a collective -bargaining relationship
and collective -bargaining contracts with Local 170 of the
Teamsters concerning what may be described as a whole-
sale drivers bargaining unit . During the first months of
1974, Respondent and the Union had not finalized a new
collective-bargaining contract for such unit but did so on
March 22, 1974. Respondent Smith has had a collective-
bargaining relationship and collective-bargaining contracts
with Local 170 of the Teamsters concerning a unit of retail
drivers. During the early months of 1974, Respondent
Smith and the Union were involved in negotiations for a
new collective -bargaining agreement for this unit . Involved
in this case is a question as to whether an agreement was
reached for a new contract around April 12, 1974, whether
Respondent later refused to sign such contract and whether
Respondent earlier engaged in direct bargaining with unit
employees.
In the early months of 1974 , Respondent Smith 's employ-
ees, in a unit of employees described herein as the
"mechanics" unit , were not represented by a union. Some
union activity directed to the unionization of such employ-
ees commenced in early March 1974. Contact was made by
Union Representative Gentile, of Teamsters Local 170,
with Respondent Smith 's vice president, Adams, concern-
ing the Union's claim for representation . Involved in this
case is whether Respondent thereafter engaged in certain
acts violative of Section 8(a)(1) of the Act by acts of
interrogation , promises of benefits , and threats of reprisals.
Involved also are questions of whether Respondent recog-
nized the Union as exclusive collective-bargaining repre-
sentative of such employees and later withdrew such
recognition.
Involved in this case are also questions as to whether a
strike by employees in all of the above-referred-to bargain-
ing units was an unfair labor practice strike caused by the
alleged unlawful interrogation of employees in the mechan-
ics unit , by Respondents ' direct bargaining with employees
in the retail drivers unit , by Respondents ' refusal to sign an
agreed-upon contract involving the retail drivers, and by
Respondents ' withdrawal of recognition concerning the
"mechanics" unit . Involved also are certain issues concern-
ing whether certain contract clauses affect employee rights
to strike , whether certain employees were unfair labor
practice strikers, and whether Respondent has discrimina-
torily refused to reinstate certain of the striking employees
upon their unconditional offer to return to work after the
strike.
B. Preliminary Facts
1. The pleadings , admissions therein , and stipulations
of the parties establish that:
At all times material herein, the following named persons
occupied the positions set opposite their respective names
and have been and are now agents of Respondents acting
on their behalf and are supervisors within the meaning of
Section 2( 11) of the Act : James Smith , president of Smith,
president of Buckley; David J. Adams, vice president of
Smith , vice president of Buckley ; and Vincent Messina,
sales manager , industrial fuel division , C. K. Smith.
2. The pleadings and admissions therein , and the
overall facts establish that:
All retail truckdrivers of Respondent Smith employed at
its Worcester plant, exclusive of all other employees and all
supervisors as defined in Section 2(11) of the Act, constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
Prior to and in January 1974, Respondent Smith and the
Union were parties to a collective-bargaining agreement
covering the employees in the unit described above.5
At all times material herein, the Union has been the
representative for the purpose of collective bargaining of a
majority of the employees in the unit described above and,
by virtue of Section 9(a) of the Act, has been and is now the
exclusive representative of all the employees in the said unit
for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, or other conditions of
employment.
3. The pleadings and admissions therein and the
overwhelming evidence establish that:
All drivers , warehouse employees and helpers of Respon-
dent Buckley employed at its Worcester plant , exclusive of
all other employees and all supervisors as defined in Section
2(11) of the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
The overwhelming evidence reveals that Respondent
Buckley and the Union have had a collective -bargaining
relationship with respect to the above bargaining unit at all
times material herein , that the latest current collective-
bargaining agreement concerning such unit was executed
on March 22 , 1974, and was in existence at all times
material thereafter.
There is no issue that the Union is the exclusive
collective-bargaining representative of the employees in
such bargaining unit , and by virtue of such contractual
relationship , it is concluded and found that the Union is the
exclusive collective-bargaining representative of the em-
ployees in the above collective -bargaining unit.
4. The pleadings and admissions therein as amended at
the hearing establish that:
All mechanics and warehousemen of Respondent Smith
employed at its Worcester plant , exclusive of all other
employees and all supervisors as defined in Section 2(11) of
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
Although in issue is whether the Union is the appropri-
ately designated exclusive collective-bargaming representa-
tive of the employees in the above appropriate collective-
bargaining unit , the facts overwhelmingly establish that the
Union has been the exclusive collective-bargaining repre-
sentative since March 16, 1974.
The parties' stipulations and the evidence clearly estab-
lish that there were six employees in the above-described
appropriate collective-bargaining unit on March 16, 1974,
and thereafter at all times material to this proceeding up to
5 The facts are clear that the contract in effect around January 1974, was
due to expire around that time and that bargaining for a new contract started
around that date
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the date of the strike on April 29, 1974. On March 16, 1974,
the six said employees (Santoro , Morrison, Luby, Desy,
Castonguay , and Flagg) signed cards authorizing the Union
to represent such employees in collective bargaining.6 It is
clear and I conclude and find that the Union (Teamsters
Local 170) was the exclusive collective -bargaining represen-
tative of the employees in the above appropriate collective-
bargaining unit on March 16 , 1974, and at all times material
to the issues in this case.
5. The pleadings , admissions therein , and the evidence
clearly establish that the employees in the appropriate
collective-bargaining units described in paragraphs 2, 3,
and 4 , above , ceased work concertedly and went out on
strike on April 29, 1974, that such strike continued through
July 8, 1974, and that on that date , said employees made an
unconditional offer to return to work.
C. Interference, Restraint, and Coercion; Refusal To
Bargain; and Direct Bargaining with Employees
The General Counsel alleges in effect and Respondents
deny that Respondents, since on or about March 1, 1974,
bargained directly and individually with their employees in
the C. K. Smith retail drivers unit (described above in sec.
III, B, 2) concerning rates of pay, wages, hours of
employment, or other conditions of employment. The
General Counsel alleges and contends that such conduct is
violative of Section 8(a)(5) and (1) of the Act.
Although the above issues are disputed by the pleadings
and briefs, the facts overwhelmingly reveal that the record
supports a finding of violative conduct as alleged.
The principal witnesses to the issues as to such violative
conduct are Wadowski, Wilson, and President Smith. The
facts as to the critical issues are based on a composite of the
credited aspects of such witnesses' testimony and a logical
consideration of the totality of all of the facts.
In January 1974, Respondents had a collective-bargain-
ing agreement between C. K. Smith Co., Inc., and the
Union concerning the retail drivers unit. The contract was
due to expire around February 25, 1974.7 In January 1974,
Union Representative Gentile held a meeting with employ-
ees in the retail drivers unit and thereafter on January 14,
1974, submitted proposals for certain provisions to be
included in a new contract to be negotiated. For the
purpose of this issue, it is clear that the Union and
Respondent engaged in contract negotiations for a new
contract covering the retail drivers unit during the period of
time from January 14 to April 18, 1974.
For the purpose of resolution of the issue involved herein
it may be said that it is clear that Respondents, during
negotiations, desired to have a clause, described as the
standby clause, removed from the collective-bargaining
contract with the Union. This clause in effect provides that
one of the bargaining unit employees would be on standby
for call to deliver oil to customers if customers ran out of oil
at night. Gentile, who was new at his job as a representa-
tive, first indicated to Respondents that he would be willing
to delete such clause from the contract. Millett, a higher
official of the Union, indicated to Gentile that he could not
agree to such exclusion , and Gentile conveyed to the
Respondents that continuation of such clause in the
contract was necessary. It appears that the inclusion or
exclusion of such clause in the contract did not appear to be
of great importance to the employees in the bargaining unit.
However, it appears that there had been grievances filed
concerning past application or nonconformance with such
clause . In essence, the Union considered that exclusion of
such clause constituted a possible loss of bargaining unit
work.
While Respondents (C. K. Smith & Co., Inc.) were
negotiating with the Union over the inclusion or exclusion
of such clause and over a new contract, President Smith
had conversations with two of the three employees in the
retail drivers unit wherein he discussed the question of
exclusion of the standby clause in the new contract.8
Thus the facts are clear that employee Wadowski, in
March 1974, let it be known to President Smith that he was
interested in receiving full employment rather than seasonal
employment. President Smith told Wadowski in effect that
he would see that he received full employment by his being
placed on the "green machine ," a fertilizer truck, but that
this was contingent on Respondents' getting the night call
and standby provisions out of the upcoming contract.
Smith and Wadowski also discussed in effect what the
"money" terms in the contract would be. Later Wadowski,
an employee in the retail drivers bargaining unit, voted in a
union meeting against the contract proposals being consid-
ered because the "money" items were not what he had
thought President Smith had indicated to him. Later
President Smith and Wadowski had another conversation
concerning the contract proposals. During this discussion
Smith mentioned certain hourly figures for work, and Smith
ultimately indicated that he couldn't give the hourly rate
wanted by Wadowski but would see that certain overtime
work was available.
During the time that the Union and Respondents were
negotiating a new contract for the retail drivers, President
Smith and Wadowski had another conversation concerning
overtime work. Thus, Wadowski complained to Smith that
he wasn't receiving the overtime work Smith had promised
him. At this time Smith told Wadowski that the deal was off
because the Union had not taken the standby and night call
provisions out of the contract.
As indicated, the facts are clear that President Smith
engaged in direct bargaining with employees in the retail
drivers unit at the same time that bargaining negotiations
were going on between the Union and Respondents.
Smith's own testimony reveals that he had discussions with
both employees Wilson and Wadowski to the effect that he
would give Wadowski full employment if the standby
clause were eliminated from the new contract .9
6 The facts are based on a composite of the credited testimony of Gentile,
Santoro, Morrison, Luby, Desy, and Castonguay
The facts are based on a composite of testimony of Gentile and Adams,
exhibits as regards proposed contracts, and Respondents' answers to the
complaint and amended complaint
8 These conversations took place at Respondents' place of business, at the
gas pumps, in the yard, the drivers' rooms, or in the locker room
9 Wadowski also testified to discussions with a contended supervisor
apparently named Blount. It was made clear to the parties that the issues in
this case would be those formally alleged It is unnecessary for the
disposition of the alleged issues to consider the testimony of Wadowski
alluding to statements by Blount
C. K. SMITH & CO., INC. 1067
Considering the entire record and all of the foregoing, it is
clear and I conclude and find that Respondents, by
President Smith, violated Section 8(a)(5) and (1) of the Act
by bargaining directly with employees concerning rates of
pay and conditions of employment at a time when
Respondents were engaged in bargaining with the exclusive
collective-bargaining representative of such employees
concerning a new contract.
Respondents' main contention appears to be that it was
taking the same position in bargaining with the Union as
with the employees. Such contention is without merit.
Bargaining directly with employees on a quid pro quo basis
has the inherent effect of dividing, undermining, and
bypassing the Union as bargaining agent. Such conduct is
clearly violative of both Section 8(a)(5) and (1) of the Act,
and it is so found and concluded.
D. Interference, Restraint, and Coercion,
Interrogation, Promises of Adjustments
1. The General Counsel alleged in his complaint and
the Respondents denied in answer that Respondents
violated Section 8(a)(1) of the Act by "on or about March
11, 1974, by their officer and agent, David J. Adams,
interrogating their employees concerning their membership
in or activities on behalf of the Union."
2. At the hearing, the General Counsel amended his
complaint to allege further that "on or about March 13,
1974, David Adams met with the mechanics and promised
adjustments in working conditions if there were no union."
It is clear from the litigation of the issues that the events
involved in these issues occurred on the same date, either
March 11 or 13, 1974. Determination of exactly which date
is correct is not necessary for the purpose of resolving such
issues.
The witnesses presented by the General Counsel to these
issues were Santoro, Desy, Flagg, Castonguay, and Mom-
son. Respondents' witnesses were Adams, Carlson, and
Luby. Considering the cross-examination of various wit-
nesses and the testimony of all witnesses, it is clear that the
facts are revealed by piecing together fragments from the
testimony of all the witnesses. The General Counsel's
witnesses on direct examination essentially testified to the
"interrogation" issue . Desy and Morrison testified to
statements made at the time by Adams relating to the
promise of adjustments issue . Adams' testimonial version of
the events was contradictory in effect of whether he had
interrogated employees or had made promises of adjust-
ments. Carlson's testimony in effect was not in detail and
was corroborative in general effect of the General Counsel's
witnesses as well as Adams. Luby's testimony on direct and
cross-examination was contradictory of itself. Of critical
significance in determining credibility, I note the following:
General Counsel's witnesses alluded to Adams' reference of
having been told by the union representative that the Union
had a majority of the employees signed up. Adams testified
in effect that he told the employees that the union
representative had said he had 100 percent of the employees
signed up. Carlson's testimony as a whole is corroborative
of General Counsel witnesses' version as to what was said.
Luby's testimony, as indicated, was contradictory of itself,
and he presented himself as a witness apparently trying to
present evidence in a light favorable to Respondents. On
cross-examination, however, Luby testified to the fact that
Adams, at one point, did question the employees as to who
had signed cards. The General Counsel' s witnesses on these
issues appeared to be fully frank, forthright, and truthful.
Considering all of the foregoing and the logical consistency
of all of the facts, I am persuaded that Adams did
interrogate the employees about signing cards and did
make promises of adjustments. I note that in general
Adams appeared a truthful witness. However, considering
that Carlson's testimony as a whole is corroborative as to
the question of whether Adams referred to Gentile's
statement of a majority, and considering Luby's testimony
concerning Adams' questioning of employees, I find the
testimony of General Counsel's witnesses on such points
more reliable and trustworthy than the testimony of
Respondents' witnesses contradictory thereof.
Considering the foregoing and the logical consistency of
the facts, I find the facts as hereinafter set out. The
testimony of any witness contradictory of the facts is
discredited, based on the foregoing and the logical consis-
tency of the facts. The facts are based on a composite of the
credited aspects of the testimony of Santoro, Desy, Flagg,
Morrison, Castonguay, Adams, Luby, and Carlson.
The facts are clear that Vice President Adams (of
Respondent Smith) had a telephone conversation with
Local 170's representative shortly before a meeting he had
with the mechanics. In such conversation Gentile had
claimed to either have a majority of the mechanics
bargaining unit who had authorized the Union to represent
them or to have 100 percent of such employees. This
conversation between Adams and Gentile occurred on
either March 11 or 13, 1974. Thereafter, on either March 11
or 13, 1974, Adams had a meeting in the drivers' room with
the mechanics (Santoro, Desy, Castonguay, Morrison,
Flagg, and Luby). Present at such meeting with Adams was
dispatcher Carlson.
Prior to the meeting that Adams had with the mechanics,
employee Luby had requested Adams to have a meeting
with the mechanics to discuss a question of cutback in
hours, on Saturday work, and salaries.
Adams opened the meeting with the mechanics by telling
them that he could not discuss salaries because he had a
telephone call from Gentile of the Union. Adams told the
mechanics that the matter was out of his hands, that
Gentile claimed to represent a majority of the mechanics.
Adams asked the employees in effect to tell him who had
signed union cards. Santoro stated in effect that he hadn't
signed a card, that he hadn't turned one in. Luby was the
only employee who stated that he had signed a union card.
None of the other employees admitted that they had signed
a union card. After Santoro stated that he had not signed a
card, Adams asked in effect who had signed a card.
Adams told the employees in effect that he didn't care if
they joined a union; he was tired of having a gun at his
head; there was no sense in fighting if the Union had a
majority; if the Union had a majority, the others had better
sign; the innocent would suffer with the guilty; and, if a
union were there, there would be set rules to follow and
abide by. Adams then proceeded to a discussion of the
strong points of the Teamsters Union and of another union.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adams told the employees that, if they wanted to represent
themselves, he would appoint Luby as their spokesman.
There was some discussion of conditions of work and
discrepancy of pay. Adams told the employees that he knew
everything was not right; there was a communication
problem; a union would not help matters; and adjustments
could be made if there were not a union.
Adams told the employees to talk it over among them-
selves, that, if they wanted to join a union, they could have
one by 5 p.m., that he was going to have the "man" over.
Considering all of the foregoing, it is clear and I conclude
and find that Respondents, by Adams, on or about March
11 or 13, 1974, coercively interrogated its employees
concerning their union activities or desires. Although the
Union had prior thereto made a claim of representation,
Adams did not limit his inquiry for such purpose, did not
inform the employees that no reprisals would be taken,
made promises of benefits if there were no union, and
suggested "self representation" with a representative desig-
nated by himself. Such interrogation certainly exceeded the
bounds of permissible interrogation and was coercive in the
total context thereof. Such conduct is clearly violative of
Section 8(a)(1) of the Act. It is so concluded and found.
Considering all of the foregoing and all of the facts as set
forth above and in the preceding section, I conclude and
find that Respondents, by Adams, on March 11 or 13, 1974,
promised employees adjustments in working conditions if
there were no union. Such conduct is violative of Section
8(a)(1) of the Act. It is so concluded and found.
E. Interference, Restraint, and Coercion; Alleged
Threat
The General Counsel alleges and Respondents denied
that, "on or about April 15, 1974, James Smith threatened a
mechanic that he would suffer loss of job security under a
union contract."
The only witness presented with respect to this issue was
Castonguay. Castonguay credibly testified to a conversa-
tion with President Smith at some point of time between
March 13 and some time in April 1974. The latter date
reference was in regard to a time when Supervisor Messina
(sales manager) spoke to employees in President Smith's
presence. This latter occurrence is fixed by the totality of
the evidence as occurring on April 22, 1974.
What occurred on the occasion that President Smith
spoke to Castonguay, at some point of time between March
13 and April 22, 1974, is revealed by the following credited
excerpts from Castonguay's testimony:
A. Correct, sir. I was alone in the garage and Mr.
Smith came over and told me, he says, "you know, if
you fellows go union," he says, "you've got more to
lose."
I said, "what do you mean, Mr. Smith?"
He says, "if you're not the steward, the steward has
preference of work," he says, "if things got slow, I'd
have to lay you off." So I let that go in one ear and out
the other.
Considering all of the foregoing, it is concluded and
found that Respondents, as alleged, violated Section 8(a)(1)
of the Act by threatening an employee with loss of work
opportunity if the Union were selected as exclusive collec-
tive-bargaining representative. I note that President Smith
did not allude to or qualify his statement to Castonguay so
as to reveal that the question of superseniority was
dependent on whether a contract was negotiated containing
such clause. President Smith's statement, reasonably con-
strued, conveyed to the employee the inevitability of a loss
of employment opportunity if the Union were selected and
thus was coercive in effect. Such conduct is violative of
Section 8(a)(1) of the Act. It is so concluded and found.
F. Interference, Restraint, and Coercion; Messina-
Alleged Threat
The General Counsel alleged and Respondents denied
that "on or about April 22, 1974, Messina threatened the
mechanics with loss of working conditions if the Union
became their representative."
The witnesses to this issue were Santoro, Desy, Caston-
guay, Flagg, Morrison, Smith, and Messina.
It is sufficient to say that the testimony of General
Counsel's witnesses, Santoro, Desy, Castonguay, and Flagg
doesn't approach a factual basis for a finding that Messina
made a threat of loss of working conditions in statements
made by Messina to such employees on or about April 22,
1974.
The facts are clear that Messina spoke to the employees
on or about April22, 1974, about whether they should want
a union or not.10 Smith's and Messina's testimony was to
such effect, was conclusionary, and may or may not have
correctly covered in effect what was said.
The only witness whose testimony approaches a version
that a "threat" may have been made was Morrison. Thus,
Morrison testified that Messina had said in effect that if the
employees joined a union, things wouldn't all be rosy.
Morrison, however, testified that this was not Messina's
word. Momson's testimony as to the details as to what was
said was to the effect as revealed from the following
excerpts from his testimony:
A. He said he knew that we wanted a union in
there. He said that there were good things and bad
things about the union, that we weren't even aware of at
the time. But that we should take his word for it that
there's things that could be ironed out without the
union in there that should have been ironed out before
maybe, maybe not. But should be discussed without
having to go to such an extreme.
Q. Did he tell you what some of the good things
were about the union?
A. He said that some of us might benefit in pay, but
that was about the extent of it.
Q. Did he tell you what some of the bad things were
about the union?
A. Yes, but I can't recall exactly what they were.
10 Messina's conversation with the employees occurred in the "drivers
room "
C. K. SMITH & CO., INC. 1069
Considering all of the foregoing, I conclude and find that
the facts are insufficient to reveal that Respondent, by
Messina, on April 22, 1974, threatened employees with loss
of working conditions. Morrison's testimony, excepting for
his own conclusions, reveals no statements indicative of loss
of working conditions. Even if it is assumed that Messina
made statements to the effect that everything wouldn't be
rosy if the employees joined a union, the overall facts would
reveal in effect that Messina was saying that there would be
some good and some bad points for the employees to
consider. In sum, the facts are insufficient to reveal that
Respondent, by Messina, engaged in conduct violative of
Section 8(a)(1) of the Act by making threats of loss of
working conditions.
G. Alleged Interference, Restraint, and Coercion;
Alleged Threat
The General Counsel alleged and Respondents denied
that Respondents violated Section 8(a)(1) of the Act by "on
or about April 29, 1974, and on or about May 1, 1974, by
telegram, threatening their employees with loss of employ-
ment because of their membership in or activities in behalf
of the Union."
No evidence was presented in the record on this issue.
Accordingly, it is concluded and found that the facts do not
support and the General Counsel has failed to establish the
violation as alleged."
H. Refusal To Bargain; Withdrawal of
Recognition-Mechanics Unit
The General Counsel alleges in effect and Respondents
deny that Respondent Smith, on or about March 19, 1974,
recognized the Union as exclusive collective-bargaining
representative of the employees in an appropriate bargain-
ing unit of mechanics (the mechanics bargaining unit
described in sec . III, B, 4, above). The General Counsel also
alleges and Respondents also deny that Respondent Smith,
since on or about April 12, 1974, withdrew recognition of
the Union as exclusive collective-bargaining agent of the
employees in said bargaining unit and had continued
thereafter to refuse to bargain with the Union concerning
the employees in said bargaining unit.
Resolution of these issues rides on the determination of
credibility conflicts between General Counsel 's witnesses,
Gentile and Millet, and Respondents' witness, Adams.
Thus, Gentile credibly testified to the effect that a few days
after March 20, 1974, Adams telephoned him and in effect
at such time recognized the Union as collective-bargaining
representative of the employees in the mechanics unit.
Adams testified to the effect that he never recognized the
Union as collective-bargaining representative of the me-
chanics unit. Gentile and Millet testified to the effect that
on April 12, 1974, they engaged in negotiations with Adams
concerning a contract for the mechanics unit. Adams
testified in effect that no such negotiations occurred.
Gentile testified in effect that, in late April 1974, Adams
told him in effect that no agreement could be made on
wages, that Respondent was going to cease bargaining and
get a lawyer. Adams testified to the effect that no reference
was made to the question of wages but that he did tell
Gentile that Respondent was getting a lawyer.
As to all of the facts concerning the question of
recognition and repudiation, it may be said that much
detail was presented by witnesses Gentile, Adams, Millet,
and Smith. As indicated, the critical conflict is as set forth
above.
Adams, Gentile, Smith, and Millet all appeared basically
as honest witnesses . However, I note that Adams in his
testimony concerning whether he interrogated employees
on March 11 or 13, 1974, did not appear to be a completely
frank and forthright witness. Nor did Gentile appear as a
completely frank and forthright witness as to all of his
testimony. I note that Gentile, as a witness, appeared to
take on the burden of pleading or presenting a legal
position with regard to whether certain employees of
Buckley were "locked out" or on strike. It is sufficient to
say that he was not believable as to such testimony. As to
the questions of whether Gentile or Adams should be
believed with respect to the question of "recognition," I
found Gentile's testimony relative to such recognition and
to bargaining concerning a mechanics contract to have the
ring of frankness, forthrightness, and truthfulness and to be
more believable than Adams' denial thereof. Gentile's
testimony on such points was full, in detail, and I credit his
testimony over Adams' where in conflict on such point. In
sum, I credit Gentile's testimony to the effect that Adams
telephoned him and recognized the Union as exclusive
collective-bargaining agent for the mechanics unit several
days after March 20, 1974. I credit Gentile's and Millet's
testimony to the effect that on April 12, 1974, Gentile and
Millet negotiated with Adams over a mechanics' contract. I
also credit Gentile's testimony to the effect that, in late
April 1974, Adams informed him that the Respondents
could not agree on wages, were ceasing bargaining, and
were getting a lawyer. I discredit the testimony of Adams
inconsistent with the foregoing.
The major facts relevant to the question of whether
Respondent Smith, on or about March 20, recognized the
Union as exclusive collective-bargaining agent of the
mechanics and later withdrew such recognition may be
summarized as follows. 12
Sometime, apparently shortly before or around March 8,
1974, union activity commenced among Respondent
Smith's mechanics . Around March 8, 1974, or shortly
11 The pleadings, motions, and argument by counsel at the hearing
revealed that there were many issues to be litigated and that the parties were
arguing many points on a broad basis. The parties were advised that the
issues litigated would be those formally alleged In view of the foregoing, I
note that witness Santoro testified to an alleged supervisor , Rijotte, having
told him in effect that Respondent would subcontract its work if the men
went union Such testimony was not responsive to the question asked and
was stricken upon objection thereto Santoro testified to a statement by
Adams on March 22, 1974, to the effect that if there were a union, the men
would have to go on a 40-hour week No findings of violative conduct as to
these statements are made. Santoro also testified that President Smith told
him in effect that Respondents would sign a 1-year contract and later hire a
lawyer to get nd of the Union . Further, the evidence relating to the crucial
issues is of such a nature that reliance on this referred to testimony of
Santoro is not necessary for the determination of the issues
12 The facts are based on a composite of the credited aspects of the
testimony of Gentile, Millet, Adams, and Smith, and logical consistency of
the evidence The basis for resolution of credibility disputes otherwise has
previously been set forth
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before, Respondent Smith employed seven mechanics.
Dolson, one of such employees, initiated union activity by
getting union cards, signing one of such cards, and getting
other employees to sign union authorization cards. Dolson
was discharged on March 8, 1974. As of Monday, March
11, 1974, Respondent had a mechanic employee comple-
ment of six employees. Three of the six employed employ-
ees had signed union authorization cards by March 11,
1974.13
The cards of the three employees (Santoro, Morrison,
and Luby) and Dolson were turned over to Union Repre-
sentative Gentile. Thereafter, on March 11 or 13, Gentile
telephoned Adams, vice president of Smith, and told him
that a majority of the employees had designated the Union
as their exclusive collective-bargaining agent and demand-
ed recognition.14 Adams told Gentile in effect that, if the
Union had a majority of the employees signed up, the
Respondent would recognize the Union as exclusive
collective-bargaining representative of the employees.
As has been set forth before, Adams later had a meeting
with the mechanics, related the effect of the Gentile-Adams
telephone conversation, asked who had signed cards, was
told in effect only that Luby had signed a union card,
discussed the possibility of recognition of the Union (Local
170), of recognition of another union , and of self-represen-
tation with a person appointed by Adams serving as
spokesman. At such meeting Adams told the employees to
discuss it among themselves, that they could have a union
by 5 o'clock. Afterward the mechanics held a meeting
among themselves. There is no evidence that any of the
employees communicated to Respondent concerning
whether they had signed a union card until March 20, 1974,
when Santoro told President Smith that all of the mechan-
ics wanted a union and on March 22, 1974, when Santoro
told Vice President Adams in effect that "everybody"
signed the cards down in the union hall.15
On March 13 or 15, 1974, in order to assure Union
Official Millet of Adams' willingness to recognize the
Union if it had majority status , Gentile telephoned Adams
and asked him to confirm such position for Millet, who was
listening on an extension telephone. Adams confirmed his
earlier statement.
Thereafter, on March 16, 1974, the six employed mechan-
ics in the appropriate collective-bargaining unit signed new
union authorization cards which were erroneously dated as
of March 15, 1974.
The facts are clear that the Union (Local 170) became the
designated majority representative of the employees in the
mechanics ' bargaining unit on March 16, 1974. On March
20, 1974, Union Representatives Gentile and Millet went to
Respondents' offices, met with Vice President Adams, and
13 These preliminary facts are based on a composite of the credited
aspects of the testimony of Gentile , Dolson, Santoro, Morrison, and Luby
Luby's testimony inconsistent with the facts found is discredited as
impeached by his sworn preheanng affidavit
i4 Considering the logical consistency of all of the facts, I credit Gentile's
testimony that he alluded to a "majority" over Adams' testimony that
Gentile alluded to having 100 percent of the employees signed up
15 Later in April 1974, employee Castonguay in effect told President
Smith that a majority of the employees in the mechanics unit supported the
Union when he told President Smith that the Company did not have the
"votes "
16 Gentile's testimony on this point was somewhat conclusionary I do
presented a letter dated March 18, 1974, wherein appropri-
ate demand was made for bargaining with Respondent
Smith concerning the mechanics' unit . During this meeting
President Smith also appeared and participated. It is
sufficient to say that at this meeting the parties discussed
other pending contract negotiations and recognition con-
cerning the mechanics' unit.
As indicated, Gentile presented to Adams the March 18,
1974, letter demand for recognition and bargaining. Gentile
also took out of his pockets the union authorization cards
signed by the employees. At this point, Adams told Gentile
that he knew that he had the cards.16 Millet questioned
Smith as to whether Respondent would recognize the
Union as representative for the mechanics unit. Smith told
Millet that he wanted an election and would talk to his
attorney. Millet argued to Smith that Adams had stated he
would recognize the Union if the Union had a majority,17
that the Union wanted recognition and not an election
because Adams had indicated such recognition. Smith told
Millet that he would check with his lawyer and get back to
him. Millet told Smith that Respondents should contact
Gentile concerning the matter.18
On March 20,1974, Santoro, one of the mechanics, had a
conversation with President Smith wherein Santoro told
President Smith in effect that all of the mechanics wanted
the Union. Later, on March 22, 1974, Santoro told Vice
President Adams that all of the mechanics had signed union
cards.
On March 22, 1974, Respondents signed a contract
concerning the Buckley wholesale drivers unit. On March
22, 1974, Gentile left a copy of a proposed contract for the
Smith mechanics unit with Respondents.
Either on March 22 or a day or two afterwards, Adams
telephoned Gentile and told him in effect that Respondent
recognized the Union as exclusive collective-bargaining
agent for the Smith mechanics unit.
On March 26, 1974, Union Representatives Millet and
Gentile met with Vice President Adams at Respondents'
offices. At this meeting Adams told the union representa-
tives that he had only received the (mechanics) contract on
March 22 and had not had time to study it, that he was
going away for 10 days, that he would take the contract
with him and study it, and that he would call the Union
when he got back and set up a meeting . Millet told Adams
that the contract as proposed was negotiable. At this
meeting Gentile and Adams also discussed negotiations
concerning the Smith retail drivers contract.
On April 12, 1974, Gentile and Millet again met with Vice
President Adams at Respondents' offices. At this meeting
Vice President Adams stated that he saw nothing wrong
with the language in the proposed contract for the mechan-
not credit his testimony to the effect that Adams said he had talked to all of
the employees I am persuaded that such testimony is Gentile 's conclusion as
to the total effect as to what was said
1r I do not credit Adams' testimony to the effect that he questioned the
Union's majority Nor do I credit Smith 's testimony to the effect that Millet
indicated that the Union wanted an election.
19 I do not credit Adams' testimony to the effect that Millet threw a
contract concerning the mechanics at him and that he returned it at this
meeting Rather, I am persuaded as testified to in composite effect by Millet
and Gentile that such proposal was given Respondent on or about March 22,
1974
C. K. SMITH & CO., INC. 1071
ics unit. Adams told Millet and Gentile, however, that the
wages were way off. The parties then proceeded to
negotiate concerning wage items. During the negotiations
Adams indicated that the unfair labor practice charge filed
concerning Dolson's discharge was a deterrent to continued
negotiations. Millet indicated to Adams that he would talk
to Dolson about withdrawal of such charges.
On April 12, 1974, Gentile and Adams also engaged in
some negotiations concerning the Smith retail drivers unit
contract. There is a conflict between the testimony of
Gentile and the testimony of Adams as to whether an
agreement was reached as to the terms of a Smith retail
drivers unit contract. As indicated, there are good and bad
points concerning the credibility of both Gentile and
Adams. Gentile's testimony as to the negotiations concern-
ing the retail drivers unit contract was not precise or
detailed. Considering both witnesses' testimony, the lack of
persuasiveness of Gentile's testimony as he testified to the
details of the retail drivers unit contract negotiations, and
the logical consistency of all of the evidence, I credit
Adams' testimonial denial that agreement was reached on
April 12, 1974, as regards a Smith retail drivers unit
contract. I discredit Gentile's testimony to the effect that
agreement was reached on April 12, 1974, on a Smith retail
drivers unit contract.
On April 18, 1974, the unfair labor practice charge
concerning Dolson's discharge was withdrawn. On April
18, 1974, Gentile, for the Union, submitted a complete
contract proposal to the Respondent concerning the Smith
retail drivers unit. This proposal contained certain clauses
including a standby clause and a protection of rights clause.
Such provisions had not been agreed to by the parties.
On April 22, 1974, as previously indicated, President
Smith and Messina met with the mechanics. At such
meeting Messina spoke to the employees about the pros
and cons for employee consideration as to whether they
wanted a union.
On April 23, 1974, Union Representative Gentile met
with Vice President Adams at Respondents' offices. At this
meeting Adams told Gentile that no agreement could be
reached on wages for the mechanics unit, that Respondents
were going to get a lawyer and cease bargaining. Gentile
protested that Adams had already recognized the Union
and was already in bargaining. Adams told Gentile that he
should do what he had to do, that Respondents were going
to do what they had to do. It is clear that since that date
Respondents have refused to bargain with the Union as to
the employees in said Union. 19
Considering all of the foregoing, I conclude and find that
Respondents, by Respondent Smith, engaged in conduct
violative of Section 8(a)(5) and (1) of the Act by withdraw-
ing recognition from the recognized exclusive collective-
bargaining representative of the employees in Smith's
"mechanics" unit, and by refusing to bargain thereafter
with the Union as regards such unit of employees.
19 Respondents , on April 25, 1974, filed a representation petition in Case
1-RM-902 concerning the Smith "mechanics" unit I also credit Smith's
testimony to the effect that Millet, for the Union, telephoned him and
threatened to strike because Respondents would not negotiate concerning
the "mechanics "
20 Considering the totality of all of the evidence, I do not credit Gentile's
testimony to the effect that Adams stated that he had changed his mind.
1. Alleged Refusal To Bargain; Alleged Refusal To
Sign Agreed-Upon Contract; Smith 's Retail Drivers
Unit
The General Counsel alleges and Respondent denies that
since on or about April 26, 1974, and continuing to date,
Respondent Smith has refused to execute a written collec-
tive-bargaining agreement concerning the employees in the
unit described in section III, B , 2, above, which agreement
was concluded on April 12, 1974.
The pertinent facts as to whether Respondent agreed with
the Union over the terms of a retail drivers unit contract on
April 12, 1974, have already been set forth in section III, H,
above. It has been found that agreement to the terms of a
contract for the retail drivers was not reached on April 12,
1974. As set out in section III , H, above, the Union on April
18, 1974, submitted a full proposal for a retail drivers unit
contract to Respondent.
Again, as set forth in section III, H, above, Respondent
withdrew its previously accorded recognition to the Union
as bargaining agent for the Smith "mechanics" unit.
Thereafter, as set forth in more detail later, the three units
of Respondent's employees, the Smith "mechanics" unit,
the Smith "retail drivers" unit, and the Buckley "wholesale
drivers" unit commenced a strike against Respondents on
April29, 1974.
After the aforesaid strike started and the retail drivers
unit employees had already participated in said strike,
Gentile telephoned Vice President Adams and asked him if
he was going to sign the "retail drivers" agreement. Adams
told Gentile that he was not 20
Considering the foregoing and all of the facts, I conclude
and find that the facts do not reveal that Respondents, by
Respondent Smith, have violated Section 8(a)(5) and (1) of
the Act by refusing to sign an agreed-upon contract on or
about April 26, 1974. It will be recommended that allega-
tions in such regard be dismissed.21
J. The Unfair Labor Practice Strike; the
Discriminatory Refusal To Reinstate Unfair Labor
Practice Strikers
The facts and contentions relating to the unfair labor
practice strike and discriminatory refusal to reinstate unfair
labor practice strikers may be summarized as follows:
1. The General Counsel alleges and Respondents admit
that-on or about April 29, 1974, the employees in the
bargaining units described in section III, B, 2, herein
(Respondent Smith's retail drivers unit, section III, B, 3,
herein (Respondent Buckley's wholesale drivers unit), and
section III, B , 4, herein (Respondent Smith's mechanics
unit), ceased work concertedly and went out on strike. The
parties further stipulated that the strike ran from April 29
through July 8, 1974.
2. Considering the pleadings and admissions therein,
stipulations, and facts otherwise presented, the facts reveal
21 Although the parties litigated whether or not either the Union or
Respondents had made statements in postcharge "negotiations" or settle-
ment attempts of an "admission" nature shedding light on whether there had
been or had not been agreements reached or recognition accorded, the
evidence reveals no "admissions" by either party in such postcharge
"negotiations" or settlement attempts
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that (a) the entire complement of Respondent Smith's
mechanics unit, consisting of employees Flagg, Caston-
guay, Morrison, Santoro, Luby, and Desy, participated in
the referred-to strike from April 29 through July 8, 1974; (b)
two of Respondent Smith's three employees in Respondent
Smith's retail drivers unit, to wit, employees Wilson and
Wadowski, participated in the referred-to strike from April
29 through July 8, 1974; and (c) the entire complement of
Respondent Buckley's wholesale drivers unit, consisting of
employees on the active payroll and on layoff status,
participated in the strike referred to above from April 29
through July 8, 1974.22
Thus, in addition to the specific mechanic employees
referred to above, and the specific retail drivers referred to
above, Respondent Buckley' s wholesale driver employees
who were on strike from April 29 through July 8, 1974, were
Edward Butler, John Booth, Clyde Whitaker, William
LaRose, David Plante, Joseph Luksha, E. William Bedard,
William McIntosh, and Thomas Crilly, all of the foregoing
being employees on the active payroll of Respondent
Buckley, and employees Richard Erickson, Paul Menard,
David Bedard, Arthur Lewis, Stanley MacDonald, Bruce
Hathaway, Richard Cook, Robert Giordani, William Paige,
Edward Commo, and Thaddeus Mroczhowski, who were
on layoff status for Respondent Buckley.
3. (a) The General Counsel alleges and Respondents
deny that the strike which occurred from April 29 through
July 8, 1974, was caused by certain of Respondents' unfair
labor practices.
(b) The facts previously found reveal that (1) Respon-
dents have violated Section 8(a)(1) of the Act by the
conduct of Vice President Adams in interrogating employ-
ees in Respondent Smith's mechanics unit on March 11 or
13, 1974; (2) Respondents violated Section 8(aX5) and (1)
of the Act by bargaining directly with individual employees
in Respondent Smith's retail drivers unit instead of with the
exclusive collective-bargaining representative concerning
wages and working conditions of unit employees; and (3)
Respondents violated Section 8(a)(5) and (1) of the Act by
withdrawing recognition from the Union as exclusive
collective-bargaining agent for Respondent Smith's em-
ployees in the mechanics unit , and for refusing to bargain
with said Union as to such unit. These unfair labor
practices were part of the unfair labor practices contended
to be a cause of the strike on April 29 through July 8, 1974.
Another alleged unfair labor practice, alleged refusal to
sign an agreed-upon contract concerning the Smith retail
drivers unit , has been found to be without merit.
(c) In addition to the foregoing facts, the facts are clear
that the Union held a meeting with employee members of
Respondent Smith's mechanics unit, that at such meeting
Union Representative Gentile reported that Respondent
Smith was refusing to negotiate with the Union concerning
such mechanics unit, and the employees (mechanics) voted
to strike.
The pleadings and the evidence otherwise reveal that the
strike by the mechanics commenced on April 29 and that
22 The pleadings and admissions were to the effect that employees,
without a qualification as to the employees in number or category, in the
specifically referred-to bargaining units, went out on strike on April 29,
1974 Absent evidence to a contrary effect, as in the case of retail driver
Hazzard, the pleadings establish and the litigation reveals that there is no
two of the employees in Respondent Smith's retail drivers
unit (Wilson and Wadowski) and the employees in Respon-
dent Buckley's wholesale drivers unit joined in said strike
on April 29,1974.
As to the motivation of Smith's retail drivers unit
employees concerning the strike (April 29-July 8, 1974),
Umon Representative Gentile testified to the effect that he
was told on or around April 30, 1974, by Vice President
Adams, that he had changed his mind about signing an
agreed-upon contract concerning the "retail drivers" and
that the strike by the "retail drivers" was caused by such
unfair labor practices by Respondents. Wilson, a retail
driver employee, testified credibly that Gentile told the
retail drivers that Respondents wouldn't sign a " retail
drivers" contract as long as there was trouble with the
mechanics. As indicated in the facts previously found, I do
not find that Respondents violated Section 8(a)(5) and (1)
of the Act by refusing to sign an agreed-upon collective -
bargaining agreement covering the "retail drivers" since I
do not find that such contract had been agreed upon.
In sum the facts reveal that the retail drivers struck in
support of the mechanics who were engaged in an unfair
labor practice strike and because of a belief that Respon-
dents would not negotiate as to the retail drivers contract as
long as there was trouble with the mechanics.
The only evidence, other than the facts previously set
forth, relating to the motivation for the striking activities of
the Buckley wholesale drivers on April 29 through July 8,
1974, consists of the Union's filing of a unfair labor practice
charge contending that such employees were "locked out,"
Gentile's testimonial denial in effect that such employees
were "striking," and Gentile's testimony to the effect that
such employees in effect honored the picket line.23
In sum, the evidence, excluding the question of whether
the wholesale drivers right to strike was affected by contract
provisions concerning a "no-strike" clause , or by a state
court proceeding, reveals that the wholesale drivers struck
in sympathy with the mechanics unit employees in an
unfair labor practice strike.
(d) Respondents contend in effect that Respondent
Buckley's wholesale drivers are not entitled to have the
status of unfair labor practice strikers because they struck
in violation of a "no strike" clause in the existing contract,
and because certain agreements were made by the Union in
a state court proceeding relating to such employees
refraining from picketing. Respondents, at the hearing, or
prior thereto, contended also that Respondent Smith's
retail drivers did not have protected status because they
struck at a time when the Union had not sent or filed notice
of termination or reopening as to the last collective-bar-
gaining contract, and that therefore such contract was still
in existence and proper notice had not been given prior to
striking activity.
(e) As to the Respondents' contention concerning the "no
strike" clause in the existing contract covering the Buckley
wholesale drivers, the following provisions in such contract
are hereby excerpted:
issue as to whether all of the other employees were on strike during the time
April 29 through July 8, 1974
23 The Charging Party's brief asserts in effect that the wholesale drivers
were engaged in a sympathy strike
C. K. SMITH & CO., INC. 1073
ARTICLE V
GRIEVANCE PROCEDURE
Item 1. A grievance is hereby jointly defined to be
any controversy, complaint, misunderstanding, or dis-
pute.
Any grievance arising between the Company and the
Union or an employee represented by the Union shall
be settled in the following manner:
Step 1. The aggrieved employee or employees, must
present the grievance to the Shop Steward within five
(5) working days after the reason for the grievance has
occurred, except no time limit shall apply in case of
violation of wage provisions of this Agreement. If a
satisfactory settlement is not effected with the foreman
within three (3) working days, the Shop Steward and
Employee shall submit such grievance in writing to the
Union's Business Representative or Secretary-Treasur-
er.
Step 2. The Business Representative or Secretary-
Treasurer shall take the matter up with a representative
of the Company with authority to act upon such
grievance. A decision must be made within five (5)
working days.
Item 2. If no satisfactory settlement can be agreed
upon , the parties shall select a mutually agreeable and
impartial arbitrator within three (3) days after disagree-
ment . In the event they are unable to so agree, the
matter shall be referred to the American Arbitration
Association the next day. After the Service submits a list
of arbitrators to the Union and the Company, they shall
reply with their preferred selections no later than three
(3) days after receipt of such list. The expense of the
Arbitrator selected or appointed shall be borne equally
by the Company and the Union.
Item 3. The Arbitrator shall not have the authority to
amend or modify this Agreement or establish new terms
or conditions under this Agreement. The Arbitrator
shall determine any question of arbitrability. In the
event the position of the Union is sustained the
aggrieved party shall be entitled to all the benefits of
this Agreement which would have accrued to him had
there been no grievance.
Item 4. Both parties agree to accept the decision of
the Arbitrator as final and binding. If the Company
fails to comply with the award of the Arbitrator or with
the procedures of this Article, the Union has a right to
take all legal and economic action to enforce compli-
ance.
Item 5. There shall be no strike, work stoppage or
interruption of work during the term of this Agreement
unless the Company shall refuse to comply with an
arbitration award pursuant to arbitration proceedings
instituted in accordance with the terms of this Article.
There shall be no lockout during the term of this
Agreement unless the Union or the employees refuse to
comply with an arbitration award pursuant to arbitra-
tion proceedings instituted in accordance with the terms
of this Article.
In addition to the foregoing, much testimony was elicited
from witnesses for the purpose of providing background
meaning for such contractual no-strike clause.
In my opinion, the Board's decision in Gary-Hobart
Water Corporation, 210 NLRB 742, 745 (1974), enfd. 511
F.2d 284 (C.A. 7, 1975), is controlling and requires a
rejection of Respondents ' contention . The facts in the
instant case and in the Gary-Hobart case as to the language
of the arbitration-no-strike clauses are essentially similar.
In the Gary-Hobart case, the Board said, "And at least
where statutory rights are involved, unless they are specifi-
cally waived, the contracting union does have the right to
strike in connection with a dispute not subject to grievance-
arbitration, for the no-strike clause is only as extensive as
the grievance-arbitration procedure."
The court found the contractual language in the Gary-
Hobart case not to constitute clear and unmistakeable
language waiving the right to strike beyond the areas of
dispute covered by the grievance and arbitration procedure.
The court further found that because of the language
involved in such clauses that the bargaining history
concerning such clauses need not be examined, that,
however, an examination of such history reinforced their
view as to the construction of such clauses.
Considering all of the foregoing, I conclude and find that
the contractual language in the Union-Buckley contract
does not reveal a waiver of the right to strike over unfair
labor practices or to strike in sympathy with other employ-
ees. I do not find it necessary to examine the bargaining
history related to such clauses in order to determine
meaning thereof. In this regard , I note that the contract, in
addition to the clauses set out above, does not contain
clauses which are contradictory of the pertinent clauses.
Also, I would note that if the bargaining history of such
clause were relevant , I would not find such evidence in this
case to be sufficient to reveal that the Union had contractu-
ally waived its right to strike over unfair labor practices or
to engage in sympathy strikes.
Reasonably construed, the initial definition of grievance
in broad terms is narrowed by the other paragraphs relating
to the procedure and settlement of grievances . It is clear
that the employees covered by the agreement are not the
aggrieved employees as regards the disputes between the
retail drivers and mechanics and Respondents. Thus, the
wholesale drivers had no standing under the contract to file
a viable grievance concerning their right to be sympathy or
unfair labor practice strikers or over the underlying
disputes between Respondents and the mechanics and
retail drivers.24
(f) As to Respondents' contention relating to alleged
effect of union agreements with respect to a state court
proceeding as having a bearing on the Buckley wholesale
drivers right to strike, I excerpt the following from the
"Stipulations in lieu ofRestraining Order":
24 1 have considered the numerous cases cited by the parties. I reject
Respondents ' contention that the clause in the contract involved herein has
the effect of a properly worded "zipper clause," and therefore that the
principles of Radoear Corporation, 214 NLRB 362 (1974), has application to
the issue involved herein
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Now come all the parties in the above entitled matter
and say that there is presently pending before the
Worcester Superior Court a hearing in accordance with
M.G.L. Ch. 212§30 and, in accordance therewith and
without waiving any rights or defenses in any other
actions which might anse out of the said controversy
which is the subject matter of the Bill in Equity being
Worcester Superior Court #6700 involving the above
named parties, it is stipulated between the said parties
as follows:
t • i i
5. Those members of the wholesale drivers em-
ployed by Petitioners agree not to participate or engage
in picketing of Petitioners' premises at 99 Crescent
Street, Worcester, Massachusetts, or at 386 Southbridge
Street, Auburn, Massachusetts, during the pendency of
the present strike involving the "Mechanics" employed
by Petitioners.
I reject Respondents' contentions that said stipulations
affected the Buckley wholesale drivers' right to engage in
sympathy or unfair labor practice strikes. Thus, the
stipulations in and of themselves provide that the parties
are not waiving any rights or defenses in any other actions.
The question involved herein is one of statutory rights
under the National Labor Relations Act and comes within
the province of the Board and not state courts. It would not
effectuate the policy of the National Labor Relations Act to
accord to state courts the right to prohibit lawful activities
permitted by the Act.
(g) As to Respondents' contention prior to the trial that
the Smith retail drivers struck unlawfully because "notice"
had not been filed concerning termination or reopening of
the last negotiated contract, it appears that the Respon-
dents abandoned such contention. If not, I reject such
contention. It is clear that a "notice" to terminate or reopen
a contract is not a prerequisite for striking activity concern-
ing unfair labor practices or a sympathy strike. Further, no
evidence was adduced to support such contention.
Conclusion
Considering all of the foregoing, I am persuaded and
conclude that the strike that occurred on April29 through
July 8, 1974, was an unfair labor practice strike. Thus, I am
persuaded that the strike was caused in major part by
Respondents' unfair labor practices of unlawful withdrawal
of recognition from the Union as the exclusive collective -
bargaining agent for the employees in Respondent Smith's
mechanics unit. I am persuaded that Respondents' unfair
labor practice of unlawful interrogation of employees in the
mechanics unit also contributed to the causation of the
strike. Thus, I am persuaded that the strike commenced as
an unfair labor practice strike by the mechanic employees
of Respondent Smith. The overall facts persuade that the
retail driver employees of Respondent Smith who struck,
Wilson and Wadowski, and the wholesale driver employees
21 Morrison -Knudsen Co, 210 NLRB 174, 177, fn. 2 (1974), Gary-Hobart
Water Corporation, 210 NLRB 742 (1974)
26 The parties stipulated to the effect that Plante was among the
employees who had not been recalled to work An earlier confused
of Buckley engaged in the strike primarily in sympathy with
the strike of the mechanic employees. Such employees of
the same enterprise, who struck in sympathy with the
mechanics, acquired the same status as the mechanics as
being unfair labor practice strikers.25 Further, I am
convinced that Respondents' unfair labor practices of
bargaining directly with individual retail drivers instead of
with the Union contributed in part to the causation of the
strike as regards the Smith retail drivers.
In sum, I am persuaded that the Union and the involved
employees struck Respondents primarily because of Res-
pondents' unfair labor practices in withdrawal of recogni-
tion from the Union as to the Smith's mechanics unit and in
refusing to bargain with the Union as to such unit. It is
clear, as indicated, that all of the striking employees
enjoyed the status of unfair labor practice strikers entitled
to reinstatement on their unconditional offer to return to
work.
4. The pleadings and admissions therein and the overall
facts establish that-on or about July 8, 1974, the employ-
ees of Respondents in the Smith retail drivers unit, in the
Smith mechanics unit, and in Buckley's wholesale drivers
unit, previously set forth in detail in section III, B, 2, 3, and
4, who had engaged in the strike on April 29 through July 8,
1974, made an unconditional offer to return to their former
or substantially equivalent positions of employment.
The General Counsel alleges and Respondents admit that
since on or about July 9, 1974, Respondents have failed or
refused and continue to fail or refuse to reinstate certain
employees in the units of employees involved in this
proceeding.
The facts reveal that the Respondents have not reinstated
or recalled employees Whitaker, Plante,26 Luksha, William
Bedard, McIntosh, Crilly, Erickson, David Bedard, Arthur
Lewis, MacDonald, Hathaway, Cook, or Commo, all
employees in the Buckley wholesale drivers unit. The facts
also reveal that Respondents have not reinstated or recalled
employee Wadowski, an employee in the Smith retail
drivers unit. The facts further reveal that Respondents have
not reinstated or recalled employees Flagg, Castonguay,
Morrison, Santoro, Luby, and Desy, employees in the
Smith mechanics unit.
The facts reveal as regards the other employees that
employee William Paige, in the Buckley wholesale drivers
unit, was rehired in December 1974, and that employee
Harry Wilson was recalled on Ocotber 15, 1974.
The precise dates of recall are not revealed, but the
parties' stipulations reveal that employees Butler, Booth,
LaRose, Menard, Giordani, and Mroczhowski have been
recalled to work in the Buckley wholesale drivers unit.
The critical issues in this case touch the question of unfair
labor practice strikers and their right to reinstatement.
Considering all of the evidence and facts as set forth
before or herein, I conclude and find that the employees
referred to above as not having been recalled or reinstated
to work, or as having been recalled or rehired in December
1974, or on October 15, 1974, were unfair labor practice
stipulation was to the effect that Plante had been offered reinstatement and
had refused such offer Under the circumstances, I must give controlling
weight to the later written stipulation submitted by the parties after I had
pointed out the possible confusion in their earlier stipulation
C K. SMITH & CO., INC. 1075
strikers, entitled to reinstatement on the July 8, 1974,
unconditional offer to return to work , were entitled to be
promptly reinstated to their old jobs, and that the failure of
Respondent on July 9, 1974, and thereafter to promptly
reinstate such unfair labor practice strikers to their old jobs
constituted discrimination within the meaning of Section
8(a)(3) and ( 1) of the Act . It is so concluded and found.
In making the foregoing conclusions and findings, I have
considered the following and made conclusions as indicat-
ed. Respondents presented evidence that 12 permanent
replacements for the Buckley wholesale drivers were hired
at the beginning of the April 29, 1974, through July 8, 1974,
strike . Respondents presented evidence to the effect that
the replacements were required as a matter of economic
necessity . I note that as a general principle , unfair labor
practice strikers do not lose their right to reinstatement
because the Respondents have hired replacements. The
instant strike was a "total" strike by the unfair labor
practice strikers and not a "partial" strike wherein the
strikers were working but only striking at a place of delivery
of goods or the crossing of a picket line at other premises.
The restricted and qualified right of permanent replace-
ment afforded an employer in the "partial" strike situation
is not afforded the employer in a "total" strike situation. I
reject Respondents ' contentions that the unfair labor
practice strikers had been replaced and therefore were not
entitled to theirjobs back.27
Respondents contend that employees William Bedard
and William McIntosh engaged in strike misconduct
involving an assault on employee Roger Witt , and that such
employees are not entitled to reinstatement because of such
misconduct . The facts as to such misconduct were present-
ed by the testimony of Witt and were denied in effect by the
testimony of Bedard , McIntosh , and Paige. It is sufficient to
say that I found Witt the most credible of all witnesses on
such issue , credit his version of the facts and, because of an
assault by McIntosh on Witt , and the circumstances of
Bedard 's accompaniment of McIntosh , conclude that
Bedard and McIntosh are not entitled to the remedial order
of reinstatement and backpay found otherwise in this case.
Respondents contend that employee Wadowski resigned
his employment and therefore was not entitled to reinstate-
ment or to backpay. The facts are clear that Respondents
did not reinstate Wadowski to his former job as a retail
driver after July 8, 1974 , when an unconditional offer for
reinstatement was made on his behalf . Later Wadowski
found it necessary in order to secure other employment to
"resign" from the Respondents and did so. The timing of
Respondents ' discrimination against Wadowski com-
menced on or around July 9 , 1974, when Respondents did
not promptly reinstate Wadowski upon his unconditional
offer to return to work . At that time he became the same as
a discriminatorily discharged employee within the meaning
of Section 8(a)(3) of the Act. Under these circumstances,
Wadowski 's resignation was similar to a constructive
discharge and does not reveal a voluntary relinquishment of
his right to be reinstated and to be made whole for loss of
wages following Respondents ' refusal to promptly reinstate
him on or around July 9, 1974.
Respondents contend that the Smith unit of mechamc
employees did not exist after July 8, 1974 , and therefore
that there were no positions for reinstatement of employees
who were striking mechanics . During the hearing the
General Counsel introduced evidence concerning subcon-
tracting prior to the April 29 , 1974, strike , as background to
reveal the "existence" of mechanics work after the comple-
tion of the strike . It is sufficient to say that the totality of the
evidence relating to "subcontracting" is not sufficient to
reveal that such "subcontracting" as occurred before the
strike was for an unlawful purpose . Thus, such evidence is
not beneficial in determining whether or not "mechanics"
work existed after the strike . However, the General Coun-
sel's witnesses did testify credibly to the effect that
"mechanical" work was being performed at Respondents'
premises after the strike . Respondents essentially offered no
evidence to support their contention that no mechanical
work was being performed after the strike . Considering all
of the foregoing , I conclude and find the facts establish that
Respondents have not ceased mechanical work and that
whether the unfair labor practice strikers were replaced by
other employees or other means such as subcontracting,
Respondents had an obligation to reinstate the unfair labor
practice strikers, firing replacements if necessary or ceasing
subcontracting or such other means of replacements, if
necessary.
In sum , I have concluded and found that the employees
in the Smith retail drivers unit , in the Smith mechanics unit,
and in the Buckley wholesale drivers unit , who had
unconditionally offered to return to work and whom (the
facts reveal) Respondents did not promptly reinstate to
their former jobs, to be employees discriminated against by
such refusal to reinstate within the meaning of Section
8(a)(3) and (1) of the Act . As to all said employees , except
William Bedard and William McIntosh because of their
misconduct during the strike , the remedial order will
require reinstatement and "make whole" backpay provi-
sions for failure of timely reinstatement by Respondents.
5. I note that employees Butler , Booth , LaRose, Me-
nard , Giordani , and Mroczhowski were recalled to work
after the strike . These employees may or may not have been
promptly reinstated after the July 9 , 1974, unconditional
offer to return to work . The instant case does not involve
the situation of an ongoing unfair labor practice strike at
the time of litigation wherein orders are utilized requiring
Respondents to reinstate striking employees upon uncondi-
tional offers to return to work and to make employees
whole for loss of backpay if timely reinstatement is not
made. Such orders are issued as a remedy for the effects of
the underlying unfair labor practices causing said strike. In
the instant case the unfair labor practice strikers have made
unconditional offer to return to work . Whether such
employees are discriminatees , within the meaning of
Section 8(a)(3) of the Act, depends on whether Respon-
dents reinstated or did not reinstate such employees in a
timely fashion.
It is General Counsel 's burden to establish whether the
employees who were unfair labor practice strikers in this
case are discrimmatees or not . If he proves that such unfair
27 Cf Redwing Carriers, Inc, 137 NLRB 1545 (1962)
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practice strikers have made unconditional offer to
return to work and have not been reinstated or have not
been timely reinstated, he has met his burden. If he does not
establish the foregoing, the General Counsel has failed to
meet his burden of proof. As to Butler, Booth, LaRose,
Menard, Giordani, and Mroczhowski, the General Counsel
has not established that Respondents failed to timely
reinstate such employees to their formerjobs 28 According-
ly, it is concluded and found that the General Counsel has
failed to establish that Respondents have discriminated,
within the meaning of Section 8(a)(3) of the Act, by the
refusal to recall or reinstate Butler , Booth, LaRose, Me-
nard, Giordani, and Mroczhowski to work.
6. To the extent that the General Counsel's pleadings
appear to raise issues of discrimination against certain
individuals above and beyond the question of "rights of
unfair labor practice strikers," and that the reinstatement of
some of the strikers was in derogation of rights of other
strikers, I find the evidence to be insufficient to establish
such points.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with Respondents' opera-
tions 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.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. C. K. Smith & Co., Inc., and Buckley Heating Co.,
Inc. (Gasoline Division), Respondents, constitute an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Local 170, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
3. By withdrawing recognition from the Union (Team-
sters Local 170) as exclusive collective- bargaining repre-
sentative of the employees in Respondent Smith's mechan-
ics unit and refusing to collectively bargain with said Union
concerning such employees' wages, hours, and working
conditions, Respondents have violated Section 8(a)(5) and
(1) of the Act.
4. By bargaining directly with individual employees in
Respondent Smith's retail drivers unit and thereby bypass-
ing and attempting to bypass bargaining with the Union
(Teamsters Local 170), Respondents have violated Section
8(a)(5) and (1) of the Act.
5. The strike of employees against Respondents, occur-
ring on April 29 through July 8, 1974, was an unfair labor
practice strike caused by unfair labor practices of the
Respondents.
6. By refusing to recall to work or reinstate, on July 9,
1974, and thereafter, or to timely do so, certain employees,
who had been unfair labor practice strikers against Respon-
dents, upon their unconditional offer on July 8, 1974, to
return to work, Respondents have violated Section 8(a)(3)
and (1) of the Act.
7. (a) All retail truckdrivers of Respondent Smith
employed at its Worcester plant, exclusive of all supervisors
as defined in Section 2(11) of the Act, constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act. This unit has been
and is referred to sometimes herein as Respondent Smith or
Smith's retail drivers unit.
(b) All mechanics and warehousemen of Respondent
Smith employed at its Worcester plant, exclusive of all
other employees and all supervisors as defined in Section
2(11) of the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act. This unit has been and is referred to
sometimes herein as Respondent Smith or Smith's mechan-
ics unit.
(c) All drivers, warehouse employees and helpers of
Respondent Buckley employed at its Worcester plant,
exclusive of all other employees and all supervisors as
defined in Section 2(11) of the Act, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act. This unit has been
and is sometimes referred to herein as Respondent Buckley
or Buckley's wholesale drivers unit.
(d) Teamsters Local 170, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is the representative for the purposes of collective
bargaining of a majority of all of the employees in each of
the respective bargaining units referred to above, and has
been, at all times material to this proceeding, and is now the
exclusive representative of all of the employees in each
respective unit for the purposes of collective bargaining in
respect to rates of pay , wages , hours of employment, or
other conditions of employment.
8. By the foregoing and by interfering with, restraining,
and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondents engaged in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices, it will be recommended that Respondents
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Having found that Respondents have violated Section
8(a)(5) and (1) of the Act by bargaining directly with
employees in Respondent Smith's retail drivers unit and
thereby bypassing the exclusive collective-bargaining repre-
xs The General Counsel 's presentation of his case and argument leaves it
unclear as to whether he contends these employees to be discnmmatees In
any event , his proof fads to establish that they are discnrmnatees
C. K. SMITH & CO., INC.
sentative of such employees, it will be recommended that
Respondents be required to cease and desist from such
action and to bargain collectively, upon request, with the
exclusive collective-bargaining representative of such em-
ployees.
Having found that Respondents have violated Section
8(a)(5) and (1) of the Act by withdrawal of recognition from
the Union as exclusive collective-bargaining representative
of employees in Respondent Smith's mechanics unit, it will
be recommended that Respondents be required to recog-
nize said Union (Teamsters Local 170) as the exclusive
collective-bargaining representative of employees in said
mechanics unit and to bargain collectively, upon request,
with said Union.
Having found that Respondents have violated Section
8(a)(3) and (1) of the Act by refusal to recall to work or
reinstate in a timely fashion certain employees who had
been engaged in an unfair labor practice strike against the
Respondents, it will be recommended that Respondents be
required to offer each such employee reinstatement to his
former job, and make each employee whole for loss of
earnings resulting from Respondents' failure on July 9,
1974, and thereafter, to promptly and timely offer such
employee recall to work or reinstatement to his job after the
July 9, 1974, unconditional offer to return to work, such
loss of earnings computed within the meaning and in
accord with the Board's decisions in F. W. Woolworth
Company, 90 NLRB 289 (1950); Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), except as specifically modified
by the wording of such recommended order.
The employees covered by the above-mentioned offer of
reinstatement and backpay include employees Clyde Whit-
aker, David Plante, Joseph Luksha, Thomas Crilly, Richard
Erickson, David Bedard, Arthur Lewis, Stanley MacDon-
ald, Bruce Hathaway, Richard Cook, Edward Commo,
James Wadowski, Raymond Flagg, Richard Castonguay,
Sr., Douglas C. Morrison, Gregono Santoro, Robert Luby,
and Raymond Desy. Included also in the above-referred-to
group of employees are employees Harry Wilson, returned
to work on October 15, 1974, and William Paige, rehired in
December 1974. The regular and customary remedial order
of reinstatement for Wilson and Paige will be utilized to
insure that such employees are fully reinstated without loss
of any benefits, seniority or otherwise, previously enjoyed.
To the extent that Respondents' return to work of Paige
and Wilson satisfies the remedial order, Respondents will
be required in the compliance stage of this proceeding to
take only such steps as may be necessary to fully comply
with the remedial order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondents cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
29 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
ORDER 29
1077
The Respondents, C. K. Smith & Co., Inc., and Buckley
Heating Co., Inc. (Gasoline Division), Worcester, Massa-
chusetts, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union membership, activities, or desires.
(b) Promising employees adjustments in working condi-
tions to dissuade their support of a union.
(c) Threatening employees with loss of work opportunity
to dissuade their support of a union.
(d) Withdrawing recognition and refusing to bargain
collectively with the Union with respect to rates of pay,
hours, and other conditions of employment of Respondent
Smith's employees in the appropriate bargaining unit of
mechanics set out below.
(e) Bargaining directly with individual retail driver
employees of Respondent Smith in derogation of their
collective-bargaining representative for the appropriate
retail drivers bargaining unit of employees set out below.
(f) Discouraging membership in, or activities on behalf
of, Teamsters Local 170 or any other labor organization, or
the engaging in protected concerted activities, by refusing
to reinstate unfair labor practice strikers upon their
unconditional offer to return to work.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed by Section 7 of the Act, except to the extent that
such rights are affected by the provisions of Section 8(a)(3)
of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Recognize the Teamsters Local 170, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive collective-bar-
gaining representative of employees in Respondent Smith's
mechanics unit set out below.
(b) Bargain collectively upon request with Teamsters
Local 170, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the
exclusive collective-bargaining representative of employees
in the appropriate bargaining units set out below, and
embody any understanding reached in a signed agreement.
(1) The appropriate bargaining unit of Respondent Smith
employees, referred to above as Respondent Smith's
mechanics unit is as follows:
All mechanics and warehousemen of Respondent Smith
employed at its Worcester plant, exclusive of all other
employees and all supervisors as defined in Section
2(11) of the Act.
(2) The appropriate bargaining unit of Respondent Smith
employees, referred to above as Respondent Smith's retail
drivers unit is as follows:
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All retail truck drivers of Respondent Smith employed
at its Worcester plant , exclusive of all other employees
and all supervisors as defined in Section 2(11) of the
Act.
(c) Offer immediate and full reinstatement to the employ-
ees listed below to their former positions, or, if such
positions no longer exist, to substantially equivalent posi-
tions , without prejudice to their seniority or other rights
previously enjoyed, and make them whole for any loss of
pay or other benefits suffered as a result of the refusal on
July 9, 1974, and thereafter, to promptly reinstate such
employees upon their unconditional offer to return to work
on July 8, 1974, from an unfair labor practice strike
engaged in by such employees. Such backpay and other
benefits to be computed in accordance with the manner set
forth in the section of this Decision entitled "The Remedy."
Clyde Whitaker
David Plante
Joseph Luksha
Thomas Crilly
Richard Erickson
David Bedard
Arthur Lewis
Stanley MacDonald
Bruce Hathaway
William Paige
Edward Commo
Harry Wilson
James Wadowski
Raymond Flagg
Richard Castonguay, Sr.
Douglas C. Morrison
Gregorio Santoro
Robert Luby
30 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
Order of the National Labor Relations Board" shall read " Posted Pursuant
Richard Cook Raymond Desy
(d) Preserve and, 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 amount of backpay due under the
terms of this recommended Order.
(e) Post at Respondents' place of business at Worcester,
Massachusetts, copies of the attached notice marked
"Appendix." 30 Copies of said notice, on forms provided by
the Regional Director for Region 1, after being duly signed
by Respondents' representatives, shall be posted by it
immediately upon receipt thereof, and be maintained by
Respondents for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps the
Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative herein be
dismissed.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "