C. K. Smith & Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsJan 14, 1977227 N.L.R.B. 1061 (N.L.R.B. 1977) Copy Citation 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 " Copy with citationCopy as parenthetical citation