Derby Coal & Oil, Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1962

139 N.L.R.B. 1485 (N.L.R.B. 1962)

DERBY COAL & OIL CO., INC., ETC. 1485
Rubber Company, Vallejo, California, where an object thereof
is to force or require The Firestone Tire & Rubber Company to
recognize or bargain collectively with us, or its employees to
accept or select us as their collective-bargaining representative.
IVE WILL NOT picket, or cause to be picketed, or threaten to
picket, The Firestone Tire & Rubber Company, Vallejo, Cali-
fornia, where an object thereof is to force or require The Fire-
stone Tire & Rubber Company to recognize or bargain collectively
with us, or its employees to accept or select us as their collective-
bargaining representative where a valid election which we did not
win has been conducted by the National Labor Relations Board
among the employees of The Firestone Tire & Rubber Company,
within the preceding 12 months.
CARQUINEZ LODGE No. 1492, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Room 703, 830 Market Street, San Francisco 2, California,
Telephone Number, Yukon 6-3500, Extension 3191, if they have any
question concerning this notice or compliance with its provisions.
Derby Coal & Oil Co., Inc., Deco Sheet Metal Works, Inc., and
Plumbing, Inc. and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local 677.
Case No. 1-CA-3655. December 3, 1962
DECISION AND ORDER
On June 26, 1962, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report finding that the Respondent had engaged in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. The Trial Examiner also found that the Re-
spondent had not engaged in other unfair labor practices and recom-
mended that the complaint be dismissed with respect to such allega-
tions. Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
139 NLRB No. 122.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report,' the exceptions and brief, and the entire record in this
case, and hereby adopts the findings,' conclusions,' and recommenda-
tions of the Trial Examiner except as modified herein.
The Trial Examiner concluded that the wage increase given by the
Respondent during the union organizational campaign was unlawful
because of its timing and its amount. On the other hand, however, the
Trial Examiner found, based upon the uncontradicted testimony of
Respondent's president, that the 1961 wage increase was made later
than it had been in previous years due to the moving of Respondent's
plant and the absence of Respondent President Goldstein due to ill-
ness. Moreover, he had also concluded that the amount of the increase,
admittedly larger than in previous years, had been determined prior
to the initiation of union activity as exemplified by the fact that on
October 31, when the union activity became known, Goldstein was able
to inform employees Gubitose and Sullivan the exact amount of the
increase they would receive. In these circumstances we do not find,
as did the Trial Examiner, that the granting, timing, or amount of
the wage increase was violative of Section 8 (a) (1).
We do find, however, that while soliciting individual employees to
reject the Union, Respondent, through its president, violated Section
8 (a) (1) by referring to the wage increase just granted as an example
of the type of benefit to be obtained by direct negotiation with the
Respondent. That this was Respondent's purpose is most clearly
shown by a conversation that President Goldstein had with employee
Gubitose on November 24,1961, when, after asking how Gubitose liked
his raise, Goldstein suggested that its granting was one of the reasons
why the employees did not need a union to represent them.
1 We note and correct the inadvertent error made by the Trial Examiner when he re-
ferred to the date on which union activity began as October 23, 1962, instead of 1961.
The error does not affect the Trial Examiner's conclusion or our concurrence therein.
2 Member Rodgers would exclude , as evidence of the Union ' s majority status, the
authorization card obtained by statements to the prospective signer that the sole purpose
of the card was to obtain an election . He would also exclude those cards obtained by the
untruthful statement that a majority of the employees had already signed the authoriza-
tion cards . However, excluding all those cards obtained in this manner , Member Rodgers
would find that the Union still possessed a sufficient number of valid cards to establish
its majority status on the date it requested recognition . Fred Snow , Harold Snow, and
Tom Snow, d/ b/a Snow c& Sons , 134 NLRB 709
8 In the absence of exceptions to the Trial Examiner ' s dismissal of several 8(a) (1)
allegations in the complaint , the Board adopts the dismissal of these 8 ( a) (1) allegations
pro forma.
The Board agrees with the Trial Examiner 's appropriate unit findings However, in
determining that a community of interest exists among those employees found to con-
stitute an appropriate unit, the Board does not rely on the fact that the employees may
have desired to be represented in a single unit , as did the Trial Examiner.
DERBY COAL & OIL CO., INC., ETC.
ORDER
1487
The Board adopts the Recommended Order of the Trial Examiner'
with the following amendments :
Consistent with our finding that the Employers herein are a single
enterprise, we delete from the first paragraph of the Recommended
Order the words "jointly and severally."
In accordance with our findings herein, we amend paragraph 1(d)
of the Recommended Order and also the Appendix by deleting from
each the words "including wage increases."
4 The penultimate paragraph In the Appendix shall be amended to read : "This notice
must remain posted for 60 consecutive days from the date of posting . . ." instead of
"60 days from the date hereof."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The issues in this case are whether Derby Coal & Oil Co., Inc., Deco Sheet Metal
Works, Inc., and Plumbing, Inc.' (herein also referred to as Derby, Deco, and Plumb-
ing, respectively, and collectively as the Respondent or the Employer) have (1)
interrogated employees, threatened them with reprisals for affiliation with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America Local 677 (herein called the Union), offered them wage increases to dis-
suade them from assisting the Union, and sought to persuade and assist them to have
the Union withdraw the charges filed by it herein, in violation of Section 8(a) (1)
of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein
called the Act), and (2) refused to bargain collectively with said Union as the statu-
tory bargaining representative of their employees in an appropriate unit, in violation
of Section 8(a) (5) of the Act. These issues arise on a complaint issued January 12,
1962 (as amended at the hearing), by the General Counsel of the National Labor
Relations Board, through the Board's Regional Director for the First Region,2 and
Respondent's answer which, as amended at the hearing, admitted jurisdiction, but
denied the commission of any unfair labor practices.
A hearing on the issues was held before Trial Examiner Eugene F. Frey on various
dates between February 14 and March 8, 1962, at Derby, Connecticut, in which all
parties participated through counsel and other representatives and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to present pertinent
evidence, to make oral argument, and to file written briefs. Respondent waived, but
General Counsel presented, oral argument at the close of the case. A written brief
with a motion for factfindings has been filed by Respondent, and a memorandum of
law by General Counsel, all of which have been carefully considered by the Trial
Examiner. The motion for findings of fact is disposed of by the findings set forth in
this report.
Upon the entire record in the case, and from my observation of witnesses on the
stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Derby, Deco, and Plumbing are Connecticut corporations having a common office
and place of business in a building owned by Derby and located in Derby, Connecticut.
At that location Derby is engaged in the retail and wholesale sale and distribution of
fuel oil, coal, and gasoline and the sale, installation, and service of heating equip-
ment. Derby's gross annual sales exceed $500,000, and it annually buys petroleum
products valued in excess of $50,000 from Elm City Filling Station, New Haven,
Connecticut, which latter enterprise annually buys and receives goods directly from
points outside Connecticut valued in excess of $50,000. Derby annually buys and
1 The names appear as amended at the hearing.
2 The complaint is based on a Board investigation of a charge filed herein by the Union
on November 28, 1961.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has delivered to its plant aforesaid directly from points outside said State coal valued
in excess of $15,000, and oil burners and heating equipment valued in excess
of $15,000.
Derby, Deco, and Plumbing are family corporations whose officers and stock-
holders consist of Robert Goldstein, his brother-in-law, Gerald Bogen, and their
wives, in various combinations; Goldstein and Bogen are president and vice presi-
dent-treasurer, respectively, of each of the corporations; Mrs. Bogen is secretary; and
the four are the sole stockholders of Derby. As officers of the three companies,
Goldstein and Bogen exercise overall supervision over employees of each, through
three lesser officials, all of whom are supervisors within the meaning of the Act .3
Plumbing and Deco do not engage in business operations independently for their
own accounts, but the single plumber employee of Plumbing, Kenneth Tuttle, and the
single sheet metal worker employed by Deco, Isaac Gattison, performed work in their
respective classifications only as part of the performance of Derby's contracts for
installation of hot-water and forced-air heating systems, and also whenever plumbing
or sheet metal work may be required by Derby in servicing heating systems. On
original installations , Derby makes the contract, its engineer and bookkeeper figure
the type, amount, and cost of work necessary, and prepare work orders for plumbing
work to be done by the Plumbing employees, and sheet metal or duct work to be
done by the Deco employees. They perform such work alongside employees of Derby
under the direct supervision of Schuster. The cost of their labor is charged by
Plumbing and Deco to Derby under the work orders, and funds are transferred from
Derby to those companies for payment of such labor costs and any material costs
incurred by them. The three companies store materials and equipment needed in
their operations in the same stockroom in the Derby plant. Employees of Derby at
times also perform plant fabrication of sheet metal ducts and plumbing assemblies, us-
ing Plumbing and Deco materials and equipment, in ,the same area as employees of
those companies. A single Derby cost clerk invoices and receives shipments of mate-
rials for the three companies , and employees of all unload and store such materials.
A single payroll clerk and bookkeeper handle payroll and accounts for the three
companies. On these facts, I find that Derby, Plumbing, and Deco constitute and are
a single employer within the meaning of the Act, and that as such collective employer
they are engaged in commerce within the meaning of the Act 4
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act
which admits to membership employees of the Employer.
III. THE UNFAIR LABOR PRACTICES
A. The union activity; the Employer's knowledge of it and reaction
Union activity at the plant began about October 23, 1962, when employees George
Gubitose and Daniel Sullivan, Jr., procured union authorization cards and solicited
employees at the plant on the 23d and 24th to sign them. By October 24, 18 em-
ployees had signed cards, which Gubitose and Sullivan turned over that night to the
Union.
On October 25, 1961, the Union sent Derby a letter, which it received on the
26th, claiming to represent a majority "of your employees," and requesting contract
negotiations in the week of October 29. On October 26, the Union filed a petition with
the Board's Regional Office at Boston, Massachusetts, in Case No. 1-RC-6686 (not
published in NLRB volumes), seeking certification as collective-bargaining representa-
tive of the employees. Derby received notice of the filing on October 27, 1961.
About the 29th or 30th Goldstein and Bogen learned that Gubitose and Sullivan had
been signing up men for the Union. Both officials were unhappy about the prospect
of a union in the plant and decided to talk to employees to learn the reasons for their
actions. Goldstein admits that he was anxious to learn how his employees felt
about the Union, and why they joined it, so that he could find out whether or not he
could satisfy their needs and complaints, and for this reason he asked various em-
s Anthony Giamorrio supervises and dispatches Derby oil and coal truckdrivers, and
controls the operations of Derby gas station attendants Lester Curtiss is the Derby
service manager who dispatches and supervises all Derby oil burner servicemen. Bruno
Schuster is the Derby supervisor of the Deco and Plumbing employees in their fieldwork,
as well as the engineer who lays out and checks the installation work of employees of the
three companies in the field.
'Building Service Employees International Union, etc . ( Terminal Barber Shops , Inc.),
135 NLRB 909.
DERBY COAL & OIL CO., INC., ETC. 1489
ployees how they would vote in an election, whether they thought a union was good
for them, and how it would help them. He also admits that on November 23 or 24,
following a union meeting of the employees on November 22, 1961, he asked some
employees if they had attended it, how they felt about the Union and its organization,
if they thought it would benefit them, and what impressions they got from the union
meeting. I find that by this type of interrogation, which was deliberate and not of an
isolated nature, the Employer violated Section 8 (a) (1) of the Act. In light of these
admissions, I make the following findings based on credible testimony of the employees
named in each instance:
1. On October 31, 1961, Goldstein called Sullivan to his home for a morning con-
ference. Goldstein told Sullivan he understood the Union was trying to organize
the plant and that Sullivan was one of those active in the movement. He asked
Sullivan if he would be the union steward, and how they were chosen. Sullivan re-
plied that either he or Gubitose would be the steward, and that the official was chosen
by vote of the employees. Goldstein opined that he felt Sullivan would make the
better steward. At some point in the discussion, Goldstein also asked Sullivan if he
could get the signed union cards back. Sullivan said he could not, as he had already
turned them over to Business Agent Galullo of the Union. Goldstein asked Sullivan
why he wanted a union , and whether he was dissatisfied. Sullivan said he wanted it
to protect seniority rights, among other things, citing an instance of alleged violation
of seniority. Goldstein explained that in that case an older employee had not been
bypassed or discharged by a younger one, but had only refused another job that was
open, and was still working for Derby in his old job. Goldstein asked Sullivan what
would become of his own seniority if the Union came into the plant, stating that Sul-
livan had the least seniority among the servicemen, and that he would be "cutting his
own throat" by having a union because, with the lowest seniority he would be the first
one laid off, but if there was no union, it was possible that his seniority would date
from the beginning of his first employment in October 1955.5 Sullivan answered that
he thought this would depend on how long he was out of its employ, and also that if he
were the union steward, seniority would not affect him, because the steward always
had top seniority. Goldstein said that in Sullivan's case , his best protection was not
a union or a union contract but his own ability to do a good job, and his seniority
would not affect Goldstein's appraisal of his work. Goldstein also added that if
he wanted to, he could find a way to discharge Sullivan.
Goldstein also told Sullivan that unionization of the plant might affect the Com-
pany economically, because if its demands were so great as to raise the costs of
operation, Derby might not be able to compete with lower cost competitors, which
would cut down its volume of sales, installations, and service work, and this could
affect the employment of all employees engaged in installation and service. He said
Sullivan's job and income depended on the ability of Derby to continue making
installations and servicing them. Goldstein noted that company sales had fallen off,
and Sullivan admitted this. Goldstein mentioned the case of a new customer re-
cently procured by Derby when a competitor had sold out, and the customer had
been dissatisfied with the service given by the new management. Goldstein said that
the service department was doing a good job and the Company was growing, but
Derby always had the problem of continuing to give proper service , that other area
companies had sold out because they could not continue to give proper service. He
said this could happen to Derby if the Union came in and the Company was unable
to get proper manpower to give its customers good service. He also mentioned
that Derby had been approached by other retail dealers who were interested in buy-
ing out the business, and referred to some papers indicating that they were offers
or correspondence on that subject. He also stated that if the Company's installation
business fell off because of increased labor costs after unionization of the plant, the
amount of sheet metal and plumbing work might be reduced, and the Company
might have to discontinue the plumbing and sheet metal shops which would put the
two employees in that work 6 out of jobs.
At the close of their talk, which took about 2 hours or so, Goldstein asked Sullivan
if he knew any other employees who felt the way he did, and Sullivan named Gubi-
tose, saying he had other complaints. Goldstein said he ought to talk to him, and
asked Sullivan if he wanted to remain when Gubitose came in. Sullivan said no.
Goldstein had Gubitose called to his house. Sullivan left when Gubitose came in,
Goldstein telling him to return in about an hour.
E Sullivan first worked for Derby from October 1955 to mid-1957, then voluntarily left
its employ and returned sometime in 1960
9 Plumber Kenneth Tuttle and Sheet Metal Worker Isaac Gattison
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goldstein told Gubitose he knew Sullivan and he were the principal employees
trying to get the Union into the plant, that he knew just which employees, and how
many, had signed up, and that he got this information for $100 through a Boston
lawyer who had secured it from the Board . He asked Gubitose why he wanted a
union , but got no answer . He asked why he was unhappy with Derby , and Gubitose
stated complaints about the trucks , uniforms, the limited insurance program for em-
ployees, and lack of job security . Goldstein said these things would be looked into,
and some had already been under consideration , like the uniform problem. Gold-
stein told Gubitose the Union was "no good" because the Company could give the
employees the same things the Union promised to get , and more . He also said that
Derby had never had a layoff, but if the Union came in, Gubitose would be laid off
during the slow season because he was lowest on the seniority list, and Goldstein
would have to put another serviceman, Clair Gould, back at plumbing work. He
also said that he would have to close the plumbing shop if the plant went union, that
he could not afford to keep it because the costs would be too high . In talking about
Gubitose 's seniority , Goldstein asked whether Sullivan or Gubitose would be the
union steward , with top seniority . Gubitose opined that neither would get it , because
both were low in seniority . Goldstein said he would not let either of them become
steward, as he could "buy" the steward by paying the Union, that he and the Union
could "go to bed together," and he could bargain with it. This discussion lasted about
an hour, and then Sullivan returned.
Goldstein continued to discuss specific complaints with both, indicating that the
Company would look into a new type of insurance program suggested by Gubitose.
Goldstein told them that if the plant had a union , and there were strikes and work
stoppages , the Company could not service its customers, while its competitors could,
which would hurt the future of the Company. Both men agreed this would be true,
but said that they could manage to get along without strikes. Goldstein said he had
heard the Teamsters' Union was difficult to get along with, and its demands could be
so great as to raise serious economic problems for the Company, that it might raise
costs as much as $10 ,000 and make it hard for the Company to compete in the busi-
ness. He also said that if the Company under a union contract was required to have
strict job classifications , with each employee doing one type of work and no other,
that would create serious problems, because it would be hard to move men from
one job to another as it had been doing in the past, and thus maintain a 12-month op-
eration for the employees and continuous service for its customers.
Sullivan asked about a wage raise, saying Bogen had told him on October 23 that
he would get it. Goldstein said that as far as he was concerned , they would get a
raise as in the past, that the Company gave one every year, but he did not know if
it was proper to put it through now, because of the trouble started "with the Union,"
he was not sure if he could because it might be considered a bribe, and that he had
to check on it first with his accountant. On Sullivan's query, Goldstein told him he
would be raised from $2 to $2.27 per hour. Gubitose complained that he was being
treated as a trainee because of his short service , as he had just come out of training
school in June or July, arguing that he could perform other functions besides oil
burner service as well as other men. Goldstein told him the Company would re-
examine his record, but said both he and Sullivan were in the same experience class,
and that Gubitose would probably be raised to the same pay as Sullivan and other
men in that category, and that the raise would probably appear in his paycheck for
the past week . ? Both men received raises as part of a general wage increase actually
paid November 3, 1961, which will be considered more fully hereafter.
In discussing the effects of unionization, Goldstein told the two he was concerned
about the possible ill-will which might be created if there were strikes or a "problem
with a third party involved," and asked them why the Company and the employees
could not settle problems among themselves without the need of outside assistance
"that could possibly make demands which would be detrimental to the future of the
company." He said that if the present seniority provisions were not satisfactory,
there were various means for getting together and discussing this and other problems
and straightening them out. Sullivan suggested safety meetings at which the men
could express their views on safety procedures directly to management rather than
through the dispatcher or some other lower official. Both men said problems of this
sort were the reason why they felt they needed union representation. Goldstein then
suggested that they could come directly to him with these problems, and they said
efforts to see him personally in the past had been unsuccessful, but they felt that if
they could come directly to him, they would "have representation." Goldstein
assured Gubitose that in the future he could discuss any problems directly with Gold-
7 Sullivan got a 27-cent raise, and Gubitose a 42-cent raise.
DERBY COAL & OIL CO., INC., ETC. 1491
stein, and would not be required to present it to any supervisor. Sullivan said that
if the seniority problem he mentioned was straightened out, he was satisfied. The two
employees then suggested that they ought to discuss problems at regularly scheduled
monthly meetings with management, through a committee composed of one employee
from each job classification. Goldstein agreed to this. At some time in this dis-
cussion, Goldstein also told the men, in commenting on the problems which union-
ization would bring, that he would like to take $10,000 from the Company and
put it in "my own account and go south, rather than be sick the way I am" and
have the problem with the Union.8
After further discussion of plant problems, Goldstein said that since Gubitose
and Sullivan had the union cards signed, he feld the employees would follow their
advice, and he wanted them to explain to the employees that they could talk more
frequently and directly to management about their problems, and get rid of those that
existed, that they should tell the men the raise they were getting was the largest the
Company had ever given, and for this reason they did not need a union to represent
them, because they could get what they needed from the Company "without a third
party." Both men agreed with Goldstein that they did not need a union if they could
solve their problems directly, and said that since they "brought" the Union in, they
would explain the Company's views to the men and try to "get the men on the com-
pany side." The three shook hands all around and the employees left. This talk
took from about 3:30 p.m. to 8 p.m. Both were paid for all this time .9
Goldstein went to Florida on November 4, 1961, for 2 weeks' convalescence.
On November 3, he called Sullivan to his office, said he was leaving for Florida, and
asked Sullivan to bring him "up to date." Sullivan said nothing was happening,
everything was the same. Goldstein asked him if he had talked to any of the men
about the matters he had discussed previously with Sullivan, and the latter said he
had not. Goldstein asked if he had talked with employees Cannon or Krueger, and
Sullivan said no. Goldstein confirmed this, saying he had not received any reports
that Sullivan had talked to any of the men. Goldstein asked Sullivan if he was
satisfied with his raise (which was in the pay envelopes of that date). Sullivan
replied that it was nice, but he was not satisfied.
Goldstein returned from Florida on November 19 and same to the office on the
20th. That day he called Sullivan into the office, and asked if he had talked to the
employees about the method of "getting together" on problems that they had dis-
cussed in their previous talk. Sullivan said he had talked to some employees about
it, but felt that "there has not been any change." Goldstein asked him if Gubitose
had also talked to other employees. Sullivan said, "No," adding that Gubitose had
told other employees that the problems had not been straightened out. Goldstein
said he was preparing to go to a conference with the Union at the Board's Regional
Office in Boston the next day. Sullivan said he knew about it because the employees
were going to hold a union meeting the day after. Goldstein said he would let
Sullivan know what happened in Boston, and Sullivan said he would talk again to
Gubitose about his views, stating Gubitose had told him when they left the Octo-
ber 31 meeting with Goldstein that he was not satisfied that the parties could solve
their problems together.
The same day Goldstein called driver William H. Cannon to the office. He told
Cannon he had heard that Cannon was passing out union cards. Cannon denied it.
Goldstein asked what problems were bothering him, and they discussed several
mentioned by Cannon, such as uniforms, truck maintenance, the method of safety
committee determination on grant, or refusal of safety awards to the drivers. Gold-
stein explained that the Company was looking into some of these complaints and
would correct them. He then asked Cannon if he felt he had to have the Union as
a "third party between us," or whether he could come to Goldstein directly, as now,
to settle problems. Cannon said he had learned things that had changed his mind
about having a union to represent him. Goldstein explained some of the disad-
vantages of a union, indicating that if Cannon had seniority then a union would
protect it, but if Cannon had low seniority the Union could not help him because he
could be laid off in slow season, and that his best protection for his job was good
behavior and good work on the job. Goldstein also expressed other opinions about
the Teamsters' position in the transportation industry, and also that the prospects
8 Goldstein was recuperating at home between October 24 and 31, after being confined
to a hospital most of the month for illness.
6 The findings as to these discussions are based on a synthesis of credible and mutually
corroborative testimony of Sullivan, Gubitose, and Goldstein. Testimony of any of these
witnesses in conflict with the findings is not credited
672010-63-vol. 139-95
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union getting him a job after a layoff would depend upon whether he was
Italian or Irish. Cannon asked Goldstein if there was any chance for him to return
to work with Tuttle as a plumber, which was the work Cannon did when he first
came with Derby. Goldstein said there was no plumbing work at the moment but
Cannon would go back to that work if company business called for that type of
work. He added that if the Union organized the plant, he would have to pay Tuttle
union wages for plumbers, which would raise the cost of plumbing jobs, so that
Derby could not compete with other plumbing installers in the area, and would
not be able to get that type of work, and it would have to subcontract out that
work.1° Goldstein then asked Cannon how he felt toward the Union, and Cannon
replied that after hearing Goldstein's remarks, he was against voting for the Union.
Goldstein and Bogen spent most of November 21 in a preelection conference with
Board officials and Business Agent Galullo of the Union at Boston. On returning
from Boston late in the day, Goldstein had a talk with employee George Popikas
at the plant. Goldstein said he understood that Popikas was "pretty strong for the
Union." Popikas admitted that he was. Goldstein asked what he thought he would
gain by having the Union represent him, instead of discussing matters directly with
Goldstein. Popikas mentioned seniority, a pension plan, and other benefits. Gold-
stein asked him if he had any complaints. Popikas complained that he was required
to drive an old fuel oil truck, while newer employees were driving new equipment,
that he had complained to Dispatcher Giamorrio about it, but the latter did nothing
about it." Goldstein said Popikas had the choice of taking a new truck and handling
only one route, or continuing to use his old truck and doing various jobs as required,
and explained why he felt that if he kept the old unit, it would enable Respondent
to keep him busy the year round. Popikas agreed that keeping the old tractor was
better. Goldstein then told him that it would make no difference whether Popikas
had a union agent or steward to speak for him about this problem, and that he
could always bring the problem directly to Goldstein if he desired. He said to
Popikas that he would "do better with us directly instead of having a union between
us." Goldstein also said he was sure the Union would not get into the plant.
Popikas asked, "How come?" and Goldstein pulled a roll of bills from his pocket
and said, "This is how I know." Goldstein also said there had been much thievery
in the plant, and that Popikas ' name had been mentioned in that respect. Popikas
asked what he was supposed to have stolen. Goldstein replied, "Don't worry about
it," that "in the event the Union does not come in, we will forget about it, but if
the Union comes in , we will look into it further." Goldstein also said that he con-
sidered Popikas one of his "top men" and was planning to send him to school, but
"if the Union comes in , we will forget about it."
On or about November 22, Goldstein asked driver Harold Granger if he signed
a union card (which Granger admitted), why he wanted a union , and how it could
help him. Granger cited certain benefits he felt he could get from a union They
argued over whether employees would get more benefits with a union; Goldstein
claimed they would not, and presented the same argument of possible layoff of oil
drivers according to seniority in the slack summer season that he had stated to other
men as found above. He also told Granger that if the Union got in, he would lease
out all the trucks and there would be no work at all for drivers. When Granger
mentioned job security as one benefit from a union , Goldstein mentioned his past
driving and safety record,12 and that, whether or not a union represented him, his
best job security was whatever goodwill he had with the Company through good
work, and the only thing which could hurt his job was his safety record, that he
would have to maintain a safe driving record, whether a union represented him or not.
On November 22, 1961, a group of 12 to 15 employees who signed union cards
attended their first meeting with Union Business Agent Galullo at the union office
in Waterbury, Connecticut. Galullo told them the procedure the Union would
follow in seeking an election under the Act, answered questions about union pro-
cedures, making demands on the Employer, the mechanics of collective bargaining
10 Goldstein made the same argument to plumber Kenneth Tuttle on November 22, in tell-
ing him the results of the Boston conference on the 21st, but added that in that event he
would transfer Tuttle to the service department , if strict job classification under the
Union did not prohibit it.
11 Popikas had No . 3 seniority among the drivers.
12 Granger had been convicted twice for traffic violations , and Respondent had deposited
bail for him each time. Goldstein had also seen Granger driving his truck too fast on at
least one occasion . As a result the Employer was then paying a high insurance premium
on the truck he regularly drove.
DERBY COAL & OIL CO., INC., ETC. 1493
with it, and other problems. Goldstein knew about the meeting beforehand from
remarks of employees.
On November 23, Goldstein asked employee Lawrence Krueger at the plant how
he felt about the Union, and whether he felt it would benefit him. Krueger told
him he had found out what he was getting into. Goldstein asked what he meant by
that, and Krueger related what had occurred at the union meeting, in which he had
asked the union agent how secure his job would be under the Union, and had
received unsatisfactory answers indicating he would not have protection by seniority.
Goldstein told Krueger that he "would not let him down," that as far as he was
concerned, he would do his best to see that his job continued, because he was doing
his work well.
On November 24, Goldstein met Cannon in the plant yard, asked him how things
went at the union meeting, commenting that Krueger was pretty well confused by it.
Cannon admitted that. Goldstein asked if Cannon, as a close friend of Krueger,
would "try to help him out." Cannon said he would. Goldstein asked if Cannon
had changed his mind "about the vote," and Cannon said no. Goldstein remarked
that he had asked the union agent for a postponement (of the representation hear-
ing) while he was sick, and Galullo had refused; Goldstein remarked "that is the
kind of man that would represent you."
On the 23d or 24th, Goldstein asked oil driver Clifford Ryder in the plant whether
he thought he had done the right thing by signing a union card. Ryder replied that
at the time he signed he thought it was right, but changed his mind after talking to
George Chartier and finding out more about the Union. Goldstein also asked him
if he felt it was necessary to have a union talk for him to improve working condi-
tions, that he (Goldstein) felt Ryder could talk directly to him without "anyone
in between." Ryder said he felt the same way. Goldstein then mentioned that
Ryder was doing various jobs for the Company, and asked, if the Company had
strict job classifications and the Union insisted on a man handling only one job, how
the Company could keep him busy during the slack summer months when sales of
heating and industrial oil fell off, during which time the Company had been keeping
him busy at other jobs. Goldstein mentioned that under a seniority system there
were other men ahead of him who would have to be kept busy doing his other jobs,
if there were strict job classification under a union contract. He also mentioned
that he did not think Ryder could keep up with the rest of the oil drivers, as he was
getting too old.i3
At this same time, Goldtsein asked oil drivers Robert and John Mahan, brothers,
if they had learned anything at the union meeting, as to whether it would benefit
them to have a union. They said they felt they could not gain much by a union.
Goldstein said that, as newcomers to the Company, they should first learn how
it operated and what kind of management it had. He then stated the possibility
that the Union might demand strict job classifications, and if the Company had to
operate in that manner, so that the brothers could be used only as oil drivers, it
would have to lay them off during the slack summer season according to seniority,
and could not shift them to other work such as installations and service work, or
vacuum cleaning furnaces, to keep them busy In this same period, Goldstein pre-
sented the same argument to various other oil drivers.
In the week of November 24, 1961, Goldstein asked Gubitose, "How do you feel
towards the Union now?" Gubitose said he did not know. Goldstein remarked
that there would be a vote on it, and he had talked to most of the men and they
would not vote for it. He asked Gubitose how he would vote. Gubitose said he
did not know. Goldstein said Gubitose was the only one he could not figure out,
but that if there were 17 votes against the Union and 1 for it, he would know it was
Gubitose's vote, that the rest of the employees did not want the Union and they
would think that Gubitose was a union instigator and that in a year's time he would
try to bring the Union in again, so they would not want to work with Gubitose.
Goldstein asked Gubitose how he liked his raise, and Gubitose said it was "very good,
a very big raise." Goldstein then said, "How do you feel now?" and Gubitose
answered that with the raise, he did not see why the men should have a union, and
agreed with Goldstein that they should vote against it.
On the 23d or 24th, Goldstein asked serviceman George Chartier if he had
attended the union meeting. Chartier said he had, and advised Goldstein that he
felt some employees had lost their desire for union representation because they found
out things at the meeting which were contrary to what they had been told previously.
13 Ryder is an older employee who had been assigned to various types of lighter work
during the past year or so, including general labor, sweeping, stock clerk, pumping gas at
the stations, as well as oil-truck driving.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chartier indicated he was disturbed because he learned a union steward had top
seniority, so he would out-rank Chartier on a layoff, although Chartier had long
seniority, and this was what had happened to Chartier while working in another
union shop. Goldstein replied that his best protection at Derby was his own good
work
In talking to serviceman John Stiber in the same period, Goldstein asked him if he
thought it would help him to have someone else represent him, rather than talking
to Goldstein himself about his problems. Stiber indicated he felt he could get along
by dealing directly with Goldstein, as he had long seniority and job security in his
particular occupation, was being trained to become an air-conditioning serviceman
as well as an oil burner serviceman, and he did not feel the Union could do anything
for him. He discussed one complaint with Goldstein about uniforms, to which Gold-
stein replied the Company was trying to secure another uniform supplier who would
give better service. Goldstein also gave this answer to other employees who voiced
the same complaint in the same period.
On November 27, 1961, the Union withdrew its petition for certification with per-
mission of the Board's Regional Director, filed the charge in this case, and sent Derby
a letter "again" demanding contract negotiations. The Employer received notice
of these actions on November 28, but did not answer the bargaining demand.
On or about December 6, 1961, Goldstein met Granger at the plant early in the
morning, asked how he was doing, and then said the election had been postponed for
several months 14 and that charges had been filed against the Company. Granger
said this was news to him. Goldstein then said that if the Union came into the plant
he could still discharge Granger because of his driving record. Granger disagreed,
saying he only had violations of rules of the road and speeding against his record.
Goldstein then said that he could come to the plant at night, jack up the truck wheels,
and put extra mileage on his speedometer to make it appear that there had been un-
auhorized use of the truck.
On December 8, 1961, Popikas had another talk with Goldstein, in which Gold-
stein said he understood Popikas had an "oil spill." 15 Popikas admitted it, and said
he had reported it to Dispatcher Giamorrio. Goldstein replied that Giamorrio denied
he had called him. Goldstein then took Popikas to the conference room and told
him all employees seemed to think they had job security "because of the Union,"
but as far as Goldstein was concerned, he had reason to fire Popikas right then,
and if the Union came in , he would find a reason.
There can be no question , and Respondent in effect admits, that Goldstein's
early interrogation of Sullivan and Gubitose, the key union organizers, in one
joint and several individual private conferences on company time, about their union
sentiments and activities and those of other employees, the extent to which they
had carried back Goldstein' s antiunion arguments to the employees as suggested
by Goldstein, the reasons for their adherence to the Union, the extent of the union
organization of the employees and the possible identity of, and procedure for select-
ing, the union steward, whether they could get back the signed union cards, and
whether they thought union representation or direct negotiation of grievances with
the Employer was better, all concentrated between October 31 and November 4,
were deliberate and unwarranted inquiries into matters reserved by the Act for
exclusive employee action, and were well calculated to exercise a coercive and
restraining effect on employees engaging in such protected activities, and thus violated
Section 8(a)(1) of the Act. The same is true of his similar interrogations during
the week ending November 24, 1961, of most other employees, including Cannon,
Popikas, Granger, Krueger, Ryder, the Mahan brothers, and Chartier, in which he
displayed similar unusual interest in occurrences at the first union meeting, and the
employees' reaction to it.
I also find that Respondent violated Section 8(a) (1) of the Act by (a) Goldstein's
threats to Popikas that, if the Union came into the plant, his possible participation
in thievery at the plant would be investigated, but otherwise would be forgotten, that
he would not be sent to company-paid training schools if the Union got in, and that,
in effect, he would have no job security with the Union, because Respondent had
reason to fire Popikas at that moment, and if the Union came in, Respondent would
find a reason to do so; (b) Goldstein's threats to Granger that if the Union came in,
14 The Board's letter of November 28, notifying Respondent of the withdrawal of the
petition, also advised that the Union could not file a new petition for 6 months from the
withdrawal date unless good cause for accepting it was shown
15 Oil-truck drivers are required to exert care to avoid spilling of oil on customers'
premises when making deliveries , and to clean up any oil spilled Failure to do so, or to
report it to the dispatcher, is apparently a violation of a company rule or practice.
DERBY COAL & OIL CO., INC., ETC. 1495
the Employer would sell its trucks and drivers would have no work, and that if
the Union came in, Respondent could still manipulate his truck mileage record to
create reason to discharge Granger; and (c) Goldstein's threat to Sullivan, a key
union organizer, that, if he wanted to, he could find a way to discharge him.
I further find that Respondent violated Section 8 (a) (1) of the Act by (1) Gold-
stein's suggestions to employees Gubitose, Sullivan, Cannon, Popikas, Ryder, and
Stiber that they could gain more benefits by direct discussion and negotiation of
grievances with Respondent than by intervention of the Union as an "outside" or
"third" party,16 and (2) by his prompt and potent demonstration of the desirability
of that choice by asking for their complaints, settling some on the spot by direct
negotiation, and promising prompt consideration and settlement of others.17 In light
of Respondent's clear union animus, its varied efforts by other unlawful tactics to dis-
suade employees from further union adherence, and the Union's clear majority status
on October 25, 1961, as found below, which Respondent never directly questioned,
the direct negotiation of grievances with the employees was also potent evidence
of a desire to evade its statutory duty to bargain with the Union as well as to under-
mine its majority status, and is indicative of a refusal to bargain in good faith,
in violation of Section 8(a) (5) as well as 8(a)(1) of the Act. 18 In addition, there
is a further violation of Section 8 (a) (1) in Goldstein's deliberate solicitation of the
key union adherents to present his antiunion arguments, including the desirability of
direct negotiations with Respondent instead of through a union, to employees in
order to "counteract whatever they had told (the employees) that they could not
accomplish with" Goldstein directly.19 The clear purpose and effect of such requests
was to persuade the employees to renounce their union affiliation, through use of
the very employee organizers who had persuaded them to make that affiliation. The
Board has held such solicitation violative of the Act 20
I find no violation of the Act in Goldstein's persuasive but legitimate statements of
various possible consequences of unionization, such as layoff of employees with low
seniority in slack periods, inability of Respondent to transfer such employees to other
jobs to avoid layoff in the event of possible rigid union job classifications, effects
of high union demands and contract terms on company costs as affecting its ability
to compete with other local, nonunion retailers 21 to maintain sales and service
volume, and so to keep employees in its various departments at work, and the
effect of possible strikes on its business and ability to hold customers. Nor do I
find illegal Goldstein's reference to the fact that other concerns had been seeking
to 'buy out Respondent, for, in the context of his reference to other retailers whose
businesses had suffered with change of management, such remarks do not amount
to a direct or implied warning that Goldstein might or intended to sell the business
rather than deal with the Union.
B. The 1961 pay raise
Respondent gave all employees in the family enterprise, except four, a pay
raise which was effective for work performed in the week of October 23 through 28,
1961, and was actually paid on Friday, November 3, the regular payday in the
following week 22 The complaint alleges this raise was a coercive promise of benefit
to the employees. General Counsel points to the fact that it was given within a
few days after Respondent received the bargaining demand and began its coercive
antiunion campaign (in contrast with raises of previous years which had been given
early in October), that this was the largest raise in Respondent's history (which
"Lee-Rowan Manufacturing Company, 129 NLRB 980 , 981; Cactus Petroleum, Inc.,
134 NLRB 1254; Quaker Alloy Casting Company, 135 NLRB 805.
17 Murray Ohio Manufacturing Company, 128 NLRB 184, 189, 190.
ai Cactus Petroleum, Inc, 134 NLRB 1254.
19 Goldstein admitted this was his purpose in urging Gubitose and Sullivan to spread
his arguments among the men , and that he had also made the same arguments to other
employees personally
za The Babcock & Wilcox Company , 128 NLRB 239, 248; Sperry Gyroscope Company,
division of Sperry Rand Corporation, 136 NLRB 294.
21 There is credible evidence in the record that employees knew no other retail oil and
coal dealers in the area were unionized See Bilton Insulation , Inc, 129 NLRB 1296.
22 Office clerical and supervisory employees were included The two Deco and Plumbing
employees got contemporaneous raises Four gas station attendants, Fernandes, Potosky,
Spiwak, and Sym, were not included as they were comparatively new employees The
raise was received a week late, because of Respondent's practice of holding back 1 week's
pay.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goldstein admitted), notwithstanding the fact that Respondent had incurred the
expense of building a new plant and buying 10 new trucks during 1961. The record
also shows that late in October, just after the union campaign had started, Dispatcher
Giamorrio told Popikas that he was getting a substantial raise (it was actually 35
cents an hour), and he would appreciate it if Popikas would "think it over" before
he voted for the Union, and also told Clifford Ryder that the men were getting a raise,
that Ryder would go from $1.62 cents an hour to $1.90 cents an hour, and he wanted
Ryder to "think over" whether he had done the right thing by signing a union
card. I have found above that (1) on October 31, Goldstein asked the two key
union adherents to remind the employees that the raise they were -getting was the
largest the Company had ever given, so that they did not need a union to represent
them, but could get what they needed without a union; (2) on November 3 Goldstein
asked Sullivan, while interrogating him about his progress in pushing the antiunion
arguments of Goldstein, how he liked his raise, which Sullivan got that day; (3) while
illegally questioning Gubitose on November 24 about his union sentiments, Goldstein
asked him how he liked his raise, and when Gubitose expressed satisfaction with it,
Goldstein then asked, "How do you feel now?" to which Gubitose replied that no
union was needed and the men should vote against it. These facts, in the light of
Respondent's admitted union animus and its intensive campaign from October 31
onward to wean the employees away from their union adherence, present a strong
prima facie case indicating that the 1961 wage raise was an unusually large benefit
given with the purpose of dissuading the employees from continued union adherence,
by demonstrating to them the great benefits they could get directly from Respondent
without the intervention of a union.
To counter these facts, Respondent points to credible evidence that (1) the
1961 raise was another annual raise for all employees, in a pattern of similar raises
given in the same period in prior years, that the actual grant in 1961 was some-
what later than in prior years because during early October Respondent had moved
into a new plant, and during the whole month Goldstein, apparently the final au-
thority on raises, had been absent because of illness. It is clear that the raise fits
into the past pattern of annual raises, in that it was not a simple, across-the-board
raise of the same amount to all employees, but varied in amount as to employee,
based on the hourly rate of each in many instances, and in other cases on the
basis of recent or imminent change of duties of the employees.23 It is also clear
that the decision as to the raise for each employee was not a matter of instant
calculation, but had required consideration of his work, performance, and longevity:
in the case of Krueger, who was denied a raise during the summer, Goldstein told
him he would have to wait for the fall general raise, and Goldstein decided on his
raise after discussing his performance and duties in September with his dispatcher.
The remarks of Giamorrio to Popikas and Ryder shortly after the card signing
started indicate the amounts of their raise had already been fixed and told to
Giamorrio. The same conclusion is impelled by credible testimony of Sullivan
that, on the early morning of October 23, 1961, Bogen told Sullivan in the course
of a discussion of equipment that "we did not forget you, you are going to get a
raise"; at this time Sullivan had just begun to hand out cards, but nothing was
said about it by either Bogen or Sullivan at the time, and there is no proof at all
that Respondent at that moment knew of the union solicitation. I also note that
when Sullivan raised the point in his October 31 talk with Goldstein, the latter
mentioned that he and Gubitose would be included in the annual raise, told Sulli-
van the exact amount he would get, and assured Gubitose that he had been
classified the same as Sullivan and would be raised to the same rate. These re-
marks do not sound like spur-of-the-moment offers, but merely statements of a de-
cision previously considered and made. These circumstances persuade me that the
raise had been decided on long before the union activity started, hence in its in-
ception it could not be considered illegally motivated.24 However, Goldstein
admits that he ordered the bookkeeper to put the raise into effect between Oc-
tober 30 and November 3. This was after Respondent received the Union's demand.
Goldstein knew about the card solicitation on October 29 or 30, and he made
a point on the 31st of reminding the union solicitors to tell the employees about
=For example, Krueger, Granger, and John Mahan
24 Cf. Standard Rate & Data Service, Inc , 133 NLRB 337 While there Is testimony
that Goldstein told Granger early in October, and Sullivan in September, that there
would be no raise that year, In part because of the expense of the new building, Goldstein
denies this testimony ; it stands Isolated in stark contrast to other credible evidence
showing that the decision was made before the union activity started, hence I raise no
Inference from it against the validity of the raise itself.
DERBY COAL & OIL CO., INC., ETC. 1497
the unusual raise, as an argument against unionization . These circumstances greatly
weaken the force of Respondent 's argument, and convince me that Goldstein chose
this particular moment to put the raise into effect , as a potent financial argument
to the employees against the need of a union , and as part of his aggressive anti-
union campaign . That he was most interested in its effect on the thinking of his
employees is clearly shown by his queries of Gubitose and Sullivan, after the raise
was given , about their feelings about the raise, which prompted Gubitose to state
that he felt no need for the Union then . Thus, in this respect the raise was a grant
of an unusual benefit ( as to most of the employees ) well calculated to persuade
them to disavow union affiliation in favor of direct dealing with Respondent, and
therefore amounted to a violation of Section 8(a) (1) of the Act 25
C. Events of January and February 1962
The original complaint herein , with notice of a public hearing at Derby on Febru-
ary 14, 1962, was issued and sent to all parties on January 12 . At the same time
Gubitose and Sullivan read about it in a local newspaper . As they thought it
would be a private hearing in Boston ,26 they discussed it, decided to try to "bring
this thing to a head ," called Galullo and told him they did not want a hearing,
and asked what could be done about it. He suggested the Union could call a
strike with picketing , which might make Respondent "come around and sign a con-
tract." The three agreed to have a meeting of employees on Sunday, January
14, 19 '62, at Waterbury to hold a strike vote. The Union sent notices of the meet-
ing to the employees.
On Friday , January 12, 1961, Sullivan talked to Don Thompson , assistant dis-
patcher of Derby at the plant , about the coming hearing, and asked if "we" could
see Goldstein about having the hearing "dropped ." Thompson arranged a meeting
of Sullivan and Goldstein in the plant. Sullivan told Goldstein he did not want to
go to "court," that he thought most of the other employees felt the same way,
and asked if there was any way they could "get the hearing dropped ." At first
Goldstein said , "I'm glad you're back on my side ," but he could do nothing about
the hearing , as it was "out of his hands," and up to the Union which filed the
charges. Sullivan indicated he and the other employees did not known what to
do. Goldstein suggested that Sullivan speak to the Union , that if the employees
wanted to withdraw from the Union , that was their prerogative . Sullivan asked
if the Company would allow an election if the employees had the Union withdraw
the charges . Goldstein said that was strictly up to the Union. Sullivan said he
wanted to talk to Gubitose about whether the employees wanted to go to a hear-
ing. Thompson went out of the room and returned shortly with Gubitose. Gold-
stein asked Gubitose what "he thought about it now." Gubitose said be did not
care either way, he "wanted out." Goldstein said that the hearing would be a
"dirty mess ," and he saw no reason why "we should have to wash our dirty clothes
in public." When they asked again what could be done, he asked them , if there
was another way out , "Would you want to get out?" Gubitose said yes, and asked
how it could be done. They also asked Goldstein if he could talk to his attorney
about it. Goldstein said he would, although he felt it was still the Union's prob-
lem, not that of the employees or the Company . He left the room for a short
period and , on his return , said that since the employees did not file the charge,
but Galullo had, he ( Goldstein ) could do nothing, and the only way they could
get out was to have Galullo , as business agent, sign a paper requesting withdrawal
of the charges and send it to the Board, and then they would not have to go to
a hearing . Gubitose said they would have to ask Galullo about it. Goldstein
said that if it did not "work out that way," he would have to check with his
lawyer for "some other ways." He repeated that a hearing would be public, and
would be a "mess," but if they went to a hearing , "there's going to be no perjury,
anyway, so you can get up there and say anything you want." He asked the two
what they wished to do. They said they would not decide until they talked to
Granger and Popikas. These employees were brought in by Thompson and con-
ferred with Gubitose and Sullivan after Goldstein left the room . They agreed to
go along with the decision of Gubitose and Sullivan to present a paper to Galullo
to have the Union drop the charges . When Goldstein returned with Bogen, the
four told him they would ask Galullo to drop the charges so that they could have
an election instead of a hearing . Goldstein said it was good that "you've seen it
that way," and reiterated the disadvantages of a hearing , such as that Granger,
25 Hawkins -Hawkins, Inc , 121 NLRB 740 , at 747, and cases cited in footnote 15.
26 They apparently confused the procedure with that in representation cases.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had been in court before, would be discredited by the company lawyer, that
they would not have a lawyer to represent them, while Respondent would have
a good one, so their "odds were way down ," and that it seemed wrong for both
employees and Company to "wash dirty laundry in public" and create a bad public
impression of the Company in the public's mind , and hurt its goodwill, which
might occur after testimony at a public hearing Bogen also said everyone was
interested in keeping peace and harmony among the employees , without clashes
or any "unhappy situation after a hearing."
Goldstein then said he would hold a safety awards meeting for employees at
the plant the next morning, Saturday , and that after the meeting he would bring
the employees "up to date" on the dealings between the Company and the Union.
Granger, who was on the plant safety committee , then raised a question about
handling of safety awards . Goldstein told him to bring that up at the safety
meeting, and also said that the employees could speak to him any time they de-
sired about their problems, as well as at safety meetings. One of the four em-
ployees suggested that more frequent meetings should be held between the em-
ployees and management to discuss safety matters and sales, and present educa-
tional material on these topics. They also suggested that a grievance committee
be set up so that employees could bring grievances before the committee instead
of "arguing it outside ." Goldstein and Bogen agreed to this, Goldstein saying at
one point the committee could meet in the big salesroom in the new plant. Gold-
stein also suggested that after his report to the employees the four could tell the
employees what they had decided to do about the hearing.
The safety meeting of the 13th was attended by all employees who drove vehicles
for Respondent, including oil- and coal -truck drivers , oil burner servicemen, installa-
tion men, truck mechanic Limauro, sheet metal worker Isaac Gattison , and plumber
Kenneth Tuttle. At the outset Bogen made safety awards to the men, which was
followed by a short discussion of safety procedures and problems . Goldstein then
stood up and told the men he wanted to bring them up to date about the union mat-
ter "so far as the hearing was concerned ." He said they knew a hearing in the un-
fair labor practice case was scheduled , that they would all have to go to it, that it was
too bad that they were all subjected to court hearing and the inconveniences involved,
but that unless the Union withdrew its charges , the Company would insist on going
ahead with the hearing rather than agreeing to recognize the Union as the representa-
tive of the employees without an election , because he understood that some em-
ployees did not want a union , and he would not negotiate with the Union because it
would take away their right to vote . He also said the hearing would be a "big
dirty mess," and it was "too bad" that the Company had to "wash their dirty clothes
in public." He also said that the only man who could withdraw the charges against
the Company was the union business agent , the Company could do nothing about
it. He said the Company had grown , as it got new customers , and the employees
would grow with it, whether there was a union or not, that they did not need a union
to grow with the Company , that it needed more customers , not the Union . He also
said that if the Company did not grow, they would not get any benefits out of it.
He added that the employees did not have to pay dues just to have a union represent
them. Goldstein then threw the meeting open for general discussion . At the re-
quest of an employee , Bogen read the charges against the Company from the com-
plaint. Goldstein said that by filing the charge the Union wanted to come into the
plant without an election and force the Company to bargain with it without an
election. Other employees expressed their opinions about the pending proceedings.
Gubitose then got up and told the employees that he favored an election to determine
union representation rather than a hearing , that he had discussed it with Sullivan,
Popikas, and Granger, and the four agreed that they should try to do something about
having an election rather than a hearing , as he did not feel that a hearing would be
good for the Company . He announced a union meeting for the employees at Water-
bury on Sunday, January 14, and said that Galullo would be there to hold a strike
vote. Gubitose said most of the employees did not want to strike , and if they did
not want it, the only thing that could be done was for him and Sullivan to ask Galullo
to drop the charges so that they did not have to go to the hearing, because it would
be a "big mess." He also told the men they should vote against a strike at the meet-
ing. and then Sullivan or he would ask Galullo to sign a "release" to drop the charges
and avoid the hearing . There was open discussion among the men, during which
Gattison urged the men to go to the union meeting and have the charges dropped
so that "we can all be together like we were once before, one big happy family."
without some men not talking to others, etc. Goldstein then said, "You all should
he together anyway," that the Company would grow, and they would grow with it.
and urged them all to attend the union meeting, and voice their opinions , and vote
and. whatever they wanted, they should "all pull one way , do it together," to exercise
DERBY COAL & OIL CO., INC., ETC. 1499
their rights and not let someone else do it for them or tell them what to do. He
said he wanted someone to call him as soon as the union meeting ended and tell him
what happened . He expressed the hope that the Company and the employees would
"pull together to do what is best for both of us," and that the Union would withdraw
the charges before the hearing. The employees agreed to change the meeting place
from the union hall to a larger meeting place in Waterbury , and Goldstein said they
could post a notice of the change on the plant bulletin board. The whole meeting
fisted several hours and took place entirely on company time.
Following the meeting, Gubitose and Sullivan remained in the meeting room with
Goldstein, who said he would give them the letter that Galullo would have to sign.
He went out , returning with two blank sheets and envelopes , and said they would
have to write the letter . Sullivan sat down and wrote , as Goldstein dictated it, a
statement to be signed by the Union, through Galullo as business agent , whereby
"we would like to withdraw the complaint against the Derby Coal & Oil Co., Inc."
Goldstein had Sullivan write it in duplicate , saying that if Galullo got mad he might
tear up one copy, so that they would have the other . Goldstein had Sullivan ad-
dress the envelopes to the Board at the address of its Regional Office in Boston.
Each employee took one copy with envelope , and Goldstein told them that if Galullo
signed it, they should mail it at once to Boston , or they could give it to Goldstein
and he would mail it out. Goldstein wished them "luck" in getting Galullo to sign
it, saying that this would "prove whether or not Mr. Galullo was for the employees
or for the dues." 27
The January 14 union meeting started at 10 a.m. On the way to it , Gubitose and
Sullivan met Galullo, and told him the employees intended to vote against a strike,
and to have the Union withdraw its charges , and that Gubitose had a written with-
drawal request in his pocket for Galullo to sign at the meeting . The meeting was
attended by most employees in the unit found below, except plumber Tuttle . Galullo
asked the employees if they wanted to strike . The answered in a chorus , "No." He
then polled them individually on the question , and most of them said no. Sullivan
then got up and said most of those present did not want to proceed with the hearing,
but wanted the unfair labor practices dropped, and that since he was one of the
men who started the Union , he would ask Galullo to sign a paper to "release" the
charges, and he gave Galullo the letter he had written the day before . Galullo said
he could not sign it, because he did not have authority to do so , he would have to
check with his office first , but would consider it and let them know. Galullo then
asked the men individually whether they wanted to withdraw the charges . Most of
them said they did. Chartier and several other employees argued with Galullo as
to why he could not sign the paper at once , and about what protection the Union
could give employees in their jobs , Chartier stating that he did not think the Union
was working for the men, that the paper should be signed now and an election held
later. Galullo finally reiterated he had no authority to sign the "release ," but would
discuss it with other union officials and let them know his decision later 28
When the meeting ended about 1 p.m., Chartier called Goldstein at his home and
gave him a resume of the meeting , saying it "did not go well." Goldstein asked to
speak to Sullivan , and when he got on the line, Goldstein asked him what occurred.
Sullivan told him Galullo did not sign the paper, but would consider it and let them
know after talking to other officials. Goldstein then talked to Chartier , who said he
27 These findings are based on credible and mutually corroborative testimony of Gubitose
and Sullivan and documentary proof, which is supported in large part by admissions of
Goldstein Testimony of the latter to the effect that at this discussion the two employees
repeatedly pressed him for assistance and advice as to the mechanics of having the t'nion
withdraw the complaint, and that he repeatedly evaded and refused to give any advice,
always referring them to the Union, is incredible because (1) he was very vague about
the time and contents of this discussion, especially when confronted with the "withdrawal"
letters penned by Sullivan, and (2) I cannot believe that he would suddenly draw back
and try to disassociate himself completely from the "withdrawal" action, after he had
long probed into the employees' union views, tried by both legal and unlawful means
noted above to dissuade them from adherence to the Union and had repeatedly up to a
few hours before emphasized the disadvantages to all of going to a hearing in this case
and had openly approved the employees' final decision to take steps to have the hearing
canceled
28 Don Thompson, an assistant dispatcher of Derby, attended the union meeting, but
there is no substantial proof that he organized it, took any part in it, was sent to it by
Respondent in any way attempted to influence employees' action at it, or reported to
Respondent after it At most, the record shows that he was a silent spectator and neither
the employees nor the business agent made any atttempt to oust him during the meeting
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would like to talk to Goldstein about it at the office. Goldstein agreed, and Chartier
told the employees there would be a meeting with Goldstein at once at the plant.
Most of the men who attended the union meeting returned to the plant, where Gold-
stein asked them what occurred. Chartier reported the same things that Sullivan
had told Goldstein on the telephone. Goldstein replied that Galullo had authority to
sign the paper, could have signed it at the meeting, and argued that the fact that he
did not show that he did not want to, and was "only out for your money, not your
interests," was working against the employees, not for them. After further discussion,
some employees asked about the next step they could take, and Goldstein replied that
there were "still other ways," but he could not tell them until he consulted his
lawyer.29
Late in January and in the first 2 weeks of February 1962, Respondent tried to
persuade various employees to procure affidavits they had earlier signed and given
the Board's Regional Office relating to this case. Thus, in the last week in January,
Goldstein called in Sullivan and Popikas and asked each separately if he would sign
a request to the Board for a copy of his statement. When Sullivan said (in the
presence of Gubitose) that he did not want it, Goldstein suggested that maybe
Sullivan did not mean what he said in it, or worded it wrong, and if he got it back
they could sit down with Respondent's lawyer and reword it to state what he meant.
Sullivan asked if perjury was involved, and Goldstein said this was a "hearing," that
"there is no perjury at a hearing." Goldstein explained to Popikas that if he got his
affidavit back, he would know just what was in it when he went "into court." Popikas
said he did not need it, he already had a copy of it. Goldstein asked him to bring
it to Goldstein so that "we can look it over and maybe get together on something."
Popikas did not in fact have the affidavit, so he did not bring it to Goldstein. About
February 1, Goldstein again talked to Sullivan in the plant in the presence of Bogen
and asked him to sign a request for his affidavit, suggesting he should never have
signed any paper without getting a copy. Sullivan refused to sign , and Goldstein then
asked if he still wanted to "beat the Union." Sullivan insisted he did not want his
affidavit and would not sign the request. Goldstein replied that there was "still an-
other way to beat the Union." In the week of February 9, Goldstein, in a private talk
with Sullivan, asked him if Galullo had a "boss." Sullivan replied that he had.
Goldstein said he had "found him for you, it is Mr. Pisano," and said that if Sullivan
would call Pisano "in the interest of the men," and go to see him alone or with other
employees, "I am sure we can get this thing thrown out, but you must let me know
after you meet with Pisano so I can make the right contact." Sullivan said he would
have to talk to Gubitose. Goldstein told him to do so. He also offered to let Sullivan
use his telephone if he wanted to call Pisano, but Sullivan declined, saying he would
talk to Gubitose first. Goldstein said, "That is the final step to beat this thing."
On February 9, Goldstein called Gubitose in for a talk, in which he asked if there
was "anything new on the Union." Gubitose replied that he and Sullivan had met
with Board Attorney Fountain the night before Goldstein said he knew about it,
and that it was good that Gubitose had told him, as he knew all about it. He then
told Gubitose he had not asked him to sign a request to the Board for his affidavit,
because Sullivan had refused a similar request, hence he figured that Gubitose would
do likewise. He said he had learned that one Pisano, a Teamster official located in
New Haven, Connecticut, was a superior of Galullo, and that Gubitose and Sullivan
would have to talk to Pisano to tell him that the employees did not want a hearing, so
that Pisano could tell Galullo to drop the unfair labor practice charges. Gubitose
said he would not decide on that without talking to Sullivan, and Goldstein told him
to talk to Sullivan as soon as possible.
On Monday evening, February 12, Sullivan was called into a conference in Bogen's
office with Goldstein, Bogen , a Mr. Miller, and Respondent's attorney . The attorney
said he was present because of existing problems, that he understood Sullivan had a
problem, and that he looked scared and as if he had been threatened. Sullivan denied
any threats, but said he had watched a television show the night before involving rela-
tions between unions and labor-management, and got the feeling "it could hurt the
family." Attorney Chandler said he did not see the show, but that this does not
happen in New England, that Galullo and the Teamsters Union in that area did not
have that kind of reputation. Sullivan replied that he was not saying "they" would or
would not, he just "wanted to stay the way I am," and would tell the truth. Chandler
asked Sullivan if he would like to get a copy of his affidavit given to the Board, that
there might be statements in it that were not just the way he meant them, and they
29 The events of January 13 and 14 are found on credible and mutually corroborative
testimony of Gubitose, Sullivan, and Popikas, as supported in substantial part by ad-
miscions of Gold'tein Testimony of any of these witnesses at variance therewith is not
credited
DERBY COAL & OIL CO., INC., ETC. 1501
might sit down and go over it to straighten it out . Sullivan said he did not want the
affidavit, as he knew what was in it. Chandler then cited some cases where he claimed
employees had filed charges against a union because it had caused employers to dis-
charge employees, and commented, "You don' t have to join a union, they cannot touch
you," and that the Government would protect him if "either side" discriminated
against him. As Sullivan left the room, Goldstein walked out with him and said,
"What are you going to do?" Sullivan replied, "Nothing." Goldstein asked , "You are
not going to call him?" and Sullivan said, "No." 30
I find that Respondent violated Section 8 (a) (1) of the Act by:
(1) Goldstein's representations to employees that they would be at a distinct dis-
advantage at the hearing in this case, because they would have no lawyer to represent
them, and that there could not be perjury in the hearing, so that they could say
whatever they desired. Goldstein must have known , or could easily have found out
from learned counsel , that an attorney for the General Counsel of the Board would
have the duty of presenting evidence in an attempt to prove the allegations of the
complaint, not only to show that public rights established by the Act, but derivative
rights of employees protected by the Act, were being violated, and that much of the
evidence on the issues would be in the form of sworn testimony of witnesses, and that
the Union chosen by the employees , as the Charging Party, had the right to be rep-
resented by and participate in the hearing through an attorney . Hence Goldstein's
representations were clearly false and misleading and well calculated to discourage
employees from pursuing Board processes and statutory procedures invoked on their
behalf by the Union, and from thus vindicating their rights under the Act. The Board
has held that the employees' statutory rights include the right to seek their vindication
in Board proceedings , and it seems to me that any statements , particularly misleading
ones, which might reasonably dissuade employees from co-operating with the Board
by giving testimony at hearings under the Act would seriously interfere with the
Board 's efforts to secure vindication of employees' statutory rights in such proceedings,
and thus interfere with employees' enjoyment of such rights , in violation of Section
8(a)(1) of the Act. See Better Monkey Grip Company, 115 NLRB 1170, 1171;
Hilton Credit Corporation, 137 NLRB 56, footnote 1.
(2) Respondent's requests or suggestions through Goldstein and other agents that
employees procure from the Board, and make available to Respondent , copies of
affidavits or statements given to the Board agents in the course of Board investiga-
tion of the charges herein . In the Hilton Credit Corporation case , supra, the Board
held that employer demands to this effect on employees were a serious interference
with Board processes and violated Section 8(a)(1), and it seems to me that, in like
manner, Respondent's suggestions to employees that they might want to procure their
affidvaits and go over them with company officials or its attorney , when made by top
officers or their attorney in formal conferences with individual employees shortly be-
fore the hearing herein , would be likely to have the same coercive effect on employees
as outright demands for the documents . Hence I consider Respondent 's actions in
this respect coercive and a further violation of Section 8 (a) (1) of the Act 31
(3) Goldstein's suggestion of procedures to be followed and urging employees to
follow them, including unanimous attendance and voting at a union meeting against
a strike and in favor of withdrawal of the charges herein by the Union , and making
appeals to higher officials of the Union for the same purpose , and encouraging and
assisting key union adherents in preparation of documents to be used within the
Union, all for the purpose of procuring the Union's withdrawal of the charges, with
the objective of attempting thereby to secure a withdrawal or dismissal of the com-
plaint herein without a hearing , thus preventing employees and their chosen representa-
tive from vindicating employees ' statutory rights by resort to Board process.32
90 This conversation is based on credited testimony of Sullivan
81 The Board 's decision in Hilton Credit Corporation , supra, also makes it clear that
statements given by employees to Board personnel must be treated as confidential matters
until, and unless, the employees involved testify in subsequent proceedings This holding
answers Respondent 's argument that it had a statutory right to see all such statements
before trial , whether or not those who signed them were called as witnesses , and that
General Counsel improperly opposed Respondent 's attempts to procure such statements
both before and at the hearing
82 Sperry Gyroscope Company, supra ; Thompson Manufacturing Co , Inc ., 132 NLRB
1464 . However , I find nothing illegal in Goldstein ' s arguments and comments about the
disadvantages of a public hearing to all parties , including the requirement of attendance
of employees as witnesses, airing of "dirty laundry in public," possibility of discrediting
of witnesses through cross- examination , which are all normal and foreseeable consequences
of public litigation in courts and administrative tribunals
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) Goldstein's request to employees to report to him the results of the January 14
union meeting, and interrogating employees about that meeting.33
D. The refusal to bargain
1. The appropriate unit
I have already found above that the three corporations named in the caption con-
stitute a single employer. During all times material herein Derby has in the course
of its business employed truckdrivers who deliver coal and fuel oil to customers,
oil burner servicemen who install, repair, and service heating units for customers,
gas station attendants who work part time but regularly, and a full-time mechanic
(Anthony Li Mauro) who handles normal minor service and maintenance on com-
pany trucks and arranges for major maintenance and repair thereof by outside
contractors. As found above, the employees of Plumbing and Deco work only on
Derby heating installations, and service and repair thereof, under supervision of a
Derby supervisor, and frequently alongside Derby installers and servicemen; internal
bookkeeping between the three companies provides for inclusion of cost of their labor
in the price charged by Derby to customers. Some Derby servicemen and installers
who have plumbing and sheet metal experience also perform such operations, as
required, at times as assistants to the two Deco and Plumbing employees, and at
times alone in the Derby plant or in the field. The Deco and Plumbing employees
also take turns more or less regularly in a rotation system under which Derby oil
burner servicemen are on emergency night call during the heating season to repair
customers' heating systems. Derby has made a practice of training and using oil-
truck drivers as oil burner servicemen. Oil and coal drivers also perform some
truck maintenance work, heating plant maintenance work such as vacuum cleaning
and repair of furnaces, sheet metal fabrication, and also attend Respondent's three
gas stations during the slack heating season (late spring and summer) and otherwise
as business requires it, and also occasionally help oil burner servicemen in the
mechanical intallation of air-conditioning equipment. Gas station attendants are
used by Derby as a source of supply for oil-truck drivers and others jobs in the entire
enterprise: some have been promoted to full-time oil drivers, others do that work
and other odd jobs part time as needed. Gas station attendants also perform light
maintenance work on company trucks.
Employees of the three companies use the same timeclock (except servicemen
when they are dispatched to jobs direct from their homes), lockerroom, and other
facilities in the plant. Those who work in the field wear the same uniforms inscribed
with the name and insignia of Derby; all employees are paid on an hourly rate
(except the truck mechanic who is on salary as a carryover from a time when he
supervised other workers) and enjoy the same fringe and other financial benefits.
Employees of the three companies who drive trucks are subject to the same driving
safety rules and regulations, and receive safety awards from the plant safety
committee 34
The complaint alleges that the appropriate unit includes "all employees of Re-
spondent, including all servicemen, installers, truckdrivers, helpers, mechanics, and
maintenance men, employed at its Derby plant, exclusive of office clerical employees.
salesmen, guards, and all supervisors as defined in the Act." Respondent does not
contest this unit except to argue that (1) oil-truck drivers should not be included,
and (2) if they are included, the gas station attendants must also be specifically
included. Respondent claims oil drivers have separate supervision, perform no
service, installation, plumbing, or sheet metal work, observe definite hours in contrast
with men in the above categories, have no skill or training comparable to the latter,
and are treated differently in the matter of safety awards and computation of wage
raises. While oil and coal drivers are dispatched and supervised in the delivery work
by a separate immediate supervisor, Anthony Giamorrio, he reports directly to Gold-
stein and Bogen who exercise overall and personal supervision and control over all
employees. In performing part of the service work during the summer months and
assisting servicemen and installers at other times as needed, the drivers are supervised
partly by Giamorrio and partly by Derby Service Manager Curtiss, so that at such
times there is at least joint or coordinate supervision over their activities. Goldstein
testified that safety awards to drivers are figured on a different basis, because they
33For lack of substantial proof and other reasons noted above, I grant Respondent's
motion to dismiss paragraphs numbered 12(a)1, 4, 6, and 7 and 12(d) of the amended
complaint
34 The plumber and sheet metal workers drive Derby trucks when engaged in installation
work for it
DERBY COAL & OIL CO., INC., ETC. 1503
drive large oil trucks and tractor-trailer combinations which require more care and
skill in handling on the road, in contrast with the smaller panel-type, pickup trucks
used by servicemen; however, the same type of awards apparently go to all drivers,
though the exact factors used in gauging the performance of each group may vary.
Oil drivers report at the plant at 7:30 a.m. each day to pick up trucks and start
deliveries ; servicemen 's hours are staggered , some reporting at 7:30 a.m ., others at
later fixed hours, and some at irregular times depending on the volume of service
calls; during the busy winter months , servicemen are often dispatched from their
homes over two-way radio, but when not so dispatched, they report daily to the
plant in the usual course . Wage raises for drivers are given annually, the amount
depending in part on length of service ; raises for servicemen and installers are based
on merit as well as longevity. It is also true that oil drivers require little or no
training, other than ability to handle large trucks and to learn their routes, whereas
a competent oil burner serviceman and installer requires about 2 years of training
and on-the-job experience , and it also appears that, in working together on installa-
tions, drivers generally perform none of the technical repair and maintenance on
heating installations required of servicemen.
While the above differences tend to some extent to distinguish oil and coal drivers
from the service and production classifications , I think they are overweighed by the
circumstances that:
(1) Truckdrivers, where feasible, are usually transferred to the serviceman-
installer classification and trained in that skill, which is considered a promotion with
attendant increase in compensation ; where not so transferred , they still perform
regularly scheduled cleaning and maintenance work on customers ' equipment during
the slack summer months, and even assist in some air -conditioning and other installa-
tion work as needed, all of which work is admittedly part of Respondent's overall
rendition of a comprehensive , complete heating service to customers, which includes
day and night oil and coal delivery in season , and installation , service, repair, main-
tenance, and cleaning of heating equipment . In this respect , the varying duties of the
drivers and the fact that they are a source of supply for new servicemen , in a real
sense integrates their work into, rather than separates it from, the basic business
function of Respondent.
(2) Drivers share and enjoy in large part common employment and working con-
ditions with service and installation employees , with only relatively minor differences
of treatment as regards safety awards , wage raise computation , hours of work, and
immediate supervision.
(3) Another factor indicative of a community of interest is that the employees
themselves , both in signing with the Union and discussing the unit with the Union,
expressed their own desires to have oil and coal drivers represented in one unit with
servicemen and installers , for 9 of the 18 who signed union cards were truckdrivers,
I of them ( Cannon ) also assisted plumber Tuttle (who also signed a card) in his
work, and Li Mauro, the truck mechanic, also joined the Unlon.35 Furthermore,
Goldstein himself recognized that drivers and servicemen of all types were inter-
dependent in their work and job security when he argued to employees that advent
of the Union, with possible strict application of job classifications and seniority,
would prevent the usual transfer of oil drivers to summer service and maintenance
work, and that exorbitant union demands might force a subcontracting out of work
done by the plumber and sheet metal worker. Finally, at the preelection conference
of November 21 when Respondent signed the consent -election agreement , Respondent
did not object , but rather agreed, to inclusion of 10 oil and coal drivers in the agreed
unit of 17 employees for purposes of the election . On all of the facts and circum-
stances, I must conclude that the above factors more cogently denote a mutuality of
interest between the two groups , than the factors cited by Respondent negate it.
Hence, I conclude and find that the oil and coal drivers should be included in the
appropriate unit with oil burner servicemen , installers , plumbers, and sheet metal
workers.36
sa The sheet metal worker, Gattison, who did not sign a card, also attended the January
meetings of all employees with Goldstein and the January 14 meeting with the union agent
31 See B. H. Koester Balaery Co., Inc, 130 NLRB 1000, where the guiding rule of the
predominant community of interest, and the factors to be considered in evaluating it, are
set forth I do not consider the decision in that case binding here , because the facts
there were substantially different from those here But see Kalamazoo Paper Bo x Co. po-
ration, 136 NLRB 134, where the Board considered significant the extent to which truck-
drivers' duties involve the same overall function as other employees As to the impor-
tance of the agreement of the parties on the scope of the unit , as a factor , see The Baker
and Taylo r Co., 109 NLRB 245, 247.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent admits that if the unit includes oil drivers, it must also include the
gas station attendants, since it appears that these attendants wash, oil, and grease
trucks, that oil drivers often do this alongside the attendants, and that such attendants
are normally used as a source of supply for oil drivers, some being promoted to the
latter job on a full-time basis, and others driving trucks part time as business re-
quires. In slack summer months, oil drivers are often used as gas station attendants,
as well as in the servicing operations noted above, to keep them employed regularly.
Both groups are under the same immediate supervisor, Giamorrio. I find that gas
station attendants should be included in the unit.
On all the facts I conclude and find that all employees of Respondent at its Derby,
Connecticut, plant (including outlying gasoline service stations), including all ser-
vicemen, installers, truckdrivers, regular part-time and full-time gas station attend-
ants,37 helpers, mechanics, and maintenance men, exclusive of office clerical em-
ployees, salesmen, guards, and all supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.38
2. The Union's majority status
I find that on October 25 and 26, 1961, there were 25 employees in the above
appropriate unit, composed of the 21 employees listed in the eligibility list executed
by Respondent and the Union on November 21, 1961 (including the 4 crossed-out
gas station attendants), and plumber Tuttle, sheet metal worker Gattison, Terry
Pecor,39 and Anthony Li Mauro 40 On October 25, 18 of these employees had signed
union authorization cards.
Respondent claims the cards are invalid and do not represent an uncoerced
majority, because of the manner of their procurement. I consider this argument
without merit. The signed cards were procured by two young employees, neither
of them experienced organizers or trained in the law. While they may have told three
employees, in soliciting signatures, that "most everybody" had already signed, asked
others to sign in order to have an election, and procured the cards in only 2 days,
at times assisting the signers by filling in required information on the cards after
they were signed, all without due regard for the care and legal protocol of execution
which one might expect in the office of a business corporation or law firm, there is
still no substantial proof that any of the signers were coerced into signing by a fear
that they would be "in the minority" or that the cards were only to procure an elec-
tion. Most of the signers read the cards before signing, or were told that they
were authorizations to the Union to represent them, and no signer testified that he
was misled by remarks of the solicitors, nor have any cards been withdrawn or
repudiated by the signers, even after some who signed later became disenchanted
with the Union.
I find that on and after October 25, 1961, the Union has been the representative
of a majority of employees in said unit for purposes of collective bargaining and
that, by virtue of Section 9(a) of the Act, it has been and now is the exclusive
bargaining representative of all employees in said unit.
3. The Union's bargaining demand
Respondent contends the Union's bargaining demands were ambiguous and fatally
defective because it never asked for recognition as agent of employees of Deco and
Plumbing, nor included their employees or the Derby gas station attendants by
classification, in its demands, hence it failed properly to identify the appropriate unit
for which recognition was sought. In its initial demand of October 25, the Union
claimed to represent a majority of "your employees," and requested Respondent to
furnish a list of all "servicemen, installers, truckdrivers, helpers, mechanics, and
2' It is clear that gas station attendants work daily , but on shorter hours than other
employees.
311 have carefully considered other cases cited by Respondent on the unit issue, such as
Standard Trucking Company, 122 NLRB 761, and find them inapposite on the facts
39 Pecor was a gas station attendant on the crucial dates and until the end of November,
when he was transferred to the job of full-time night clerk , assisting the night dispatcher
40 Prior to October 8, 1961, when Respondent moved into its new plant , Li Mauro had
been on salary and had at times supervised mechanics in the repair and maintenance of
company trucks . Since the move , however, he is the sole full-time mechanic doing that
work, and apparently does not supervise any employees , although oil drivers from time
to time may work on truck repair with him. His continuance on a salary basis is appar-
ently a carryover from the earlier time when he acted as a supervisor I find that he
was not in a supervisory capacity on October 25 and 26.
DERBY COAL & OIL CO., INC., ETC. 1505
maintenance men," omitting mention of the gas station attendants , the plumber, or
sheet metal worker, as such. At the outset, it should be noted that Respondent
never answered that demand, or otherwise questioned the propriety of the unit in
it, until the hearing in this case. It is true that the Union knew, from the cards it
received and discussions with the two employee organizers, that it represented
plumber Tuttle, and that the workers wanted in the unit a sheet metal worker
employed at the plant. However, there is no proof that on October 25, or even as
late as November 21, the Union knew of the existence of Plumbing, Inc., or Deco,
either as separate corporations or part of the Derby family enterprise, or that
Gattison and Tuttle were employed by them. Tuttle's card indicated to the Union
that he was employed by Derby, and at the November 21 conference with Respond-
ent, when the Union asked Goldstein why Gattison and Tuttle were not included
in Respondent's proposed eligibility list, Goldstein told him they were not Derby
employees, but worked for subcontractors used occasionally by Derby; he did not
name either Plumbing or Deco in this talk. On this representation, the Union agreed
to the exclusion of both, which Respondent apparently desired, for it did not then
protest their exclusion. Since Goldstein's explanation did not give the Union the
whole story as to the close relations between the three corporations found above, I
do not consider the Union's failure to mention Plumbing and Deco, or their re-
spective employees by their job classifications, in its demand as fatal. Galullo's
mere query about their exclusion put Respondent on notice that the Union had
considered both men as part of the unit, and when Respondent in effect engineered
their exclusion from the unit, it cannot now be heard to claim that the Union's
failure to mention them in its initial demand is a fatal variance . Regarding the
omission of the gas station attendants as such, Galullo testified that he knew these
employees attended gas stations and at least two also hauled coal (Hunt and
Cetrone), and that Respondent interchanged drivers and other employees at the
gas stations. He explained his failure to designate them specifically by saying he
considered them as falling within the classifications of "helpers and maintenance
men." In view of his knowledge of their duties, and notations on the union cards
of Pecor and Fernandes, this explanation may seem weak but is not entirely un-
tenable.41 However, I also note that Respondent never questioned the Union's
first demand on this ground ; at most , according to Goldstein, Respondent had some
doubt about whether to include or exclude the four attendants (Fernandes, Potosky,
Spiwak, and Sym) when preparing the tentative list of eligible voters at the request
of the Board prior to the November 21 conference, and listed their names only at
the suggestion of Board personnel who advised that their status would be resolved
at the conference. This was done during the open discussion. When Galullo first
saw the list, the names of the four gas attendants were crossed out, and when he
asked why they were excluded, Goldstein said they were temporary employees for
whom Derby had no further use because it was shutting down its Derby Avenue gas
station.42 Galullo agreed to their exclusion solely on the basis of this representation.
However, as I am convinced that this representation was deliberately misleading,43
I do not consider the Union's failure specifically to mention the gas station at-
tendants as a separate classification in its original demand , or agreement to their
11 The fact that the attendants also wash, grease , and maintain company trucks as part
of their duties makes them "maintenance men" to that extent, and affords some support
for the Union 's contention
41 There is a direct conflict of testimony between Goldstein and Galullo as to whether
the names were crossed out when Galullo saw the list, or were crossed out after an
agreement between him and Goldstein that the Union would agree to their elimination if
Respondent would agree to a consent election , as Goldstein testified I credit Galullo's
clear testimony on this point as against that of Goldstein whose recollection was vague
and at times Inconsistent about this discussion Bogen, who was present at this con-
ference, did not testify in support of Goldstein 's version.
62 Goldstein testified Respondent had the closing of the Derby Avenue station "under
consideration" when it was putting up the new plant before October, but admitted the
actual decision to close was made in January and the station was shut down in February
1962. He also admitted the four attendants in question continued working for Respond-
ent after November 21: Fernandes was transferred to driving an oil truck , Potosky re-
mained as a gas station attendant until he quit Respondent in February 1962 , Spiwak has
been transferred to the main gas station at the plant , and Sym continued to work for
Respondent at least through December 1961. This makes it clear that the representation
that the four were temporary employees who would soon be released was false , and I think
it was also deliberately misleading because Goldstein admitted that, in submitting the
eligible list , Respondent desired to make the list of eligible voters as small as possible.
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusion from the eligibility list later , as fatal to its demand. Nor can the
same omission in the Union's second demand of November 27, 1961 be con-
sidered a fatal variance, for in that letter it requested collective bargaining with
respect to "all servicemen, installers, truck drivern, heplers, mechanics and main-
tenancemen," the same categories which both parties accepted as the proper unit
in signing the consent agreement on the 21st. The determination of Respondent
to clinch the exclusion of the four attendants, notwithstandig the true facts as
to their status, is demonstrated by the circumsances ha, alhough Goldstein admits
he told the Board agent at the conference that these men were part-time em-
ployees who worked every day, and it appears the agent advised him, in Galullo's
presence, that those who worked everyday should be in the unit, he not only per-
suaded the Union to agree to their exclusion by the false claim they were temporary
and about to be laid off, but he also tried to make that agreement irrevocable, first
by asking that gas station attendants be listed in the excluded classifications in the
agreement and, when Galullo refused to agree to that on the basis that it was
unnecessary if Goldstein 's representation about them was true, by his or Bogen's
request to Galullo to sign a separate agreement excluding them from the unit, which
the latter refused for the same reason. However, Galullo admits he agreed to an
informal "gentlemen's agreement" that they would be ineligible to vote. I am con-
vinced by these negotiations that Respondent knew, or had good reason to believe,
at or before the conference that the part-time gas station attendants were properly
in the unit, but succeeded in keeping them out by the misrepresentations and methods
noted above. In light of this objective and conduct, Respondent is now estopped
from using at this late date the Union's failure to mention gas station attendants in
the bargaining demand, as a defense to its failure to bargain with the Union. In
addition, the variance between the unit outlined by the Union and that found
appropriate herein, is not substantial. I conclude that the Board is not bound by
that omission from the demand and from the umt later spelled out in the consent-
election agreement.44
Aside from the above circumstances, however, I think Respondent's attack upon
the sufficiency of the Union's demands is not tenable where, as soon as it received
the Union's first demand, instead of questioning that demand on any grounds, it
embarked on a long and varied campaign of unfair labor practices directed at all
employees in the unit aforesaid, which was clearly designed, at first to coerce them
into voting against the Union at the coming election, and after the Union withdrew its
petition for an election and filed unfair labor practice charges, was then directed to-
ward organizing, guiding, and assisting the union adherents of all classifications by
coercive means to cause the Union to withdraw its charges herein, and thereby prevent
a hearing in this case, in derogation of the employees' right to seek vindication of their
statutory rights by resort to Board process. In such circumstances, the Respondent
may not evade its duty to bargain by a belated questioning of the sufficiency of unit
description in the bargaining demand 45 Furthermore, the extent, intensity, and
variety of unfair labor practices indulged in by Respondent up to within 2 days of the
hearing herein demonstrate that throughout its antiunion campaign, it was moti-
vated, not by any genuine doubts as to the Union's majority status, the sufficiency
of its bargaining demands, or the appropriateness of the unit it represented, but by
a desire to undermine and destroy its majority status and prevent it by any means from
achieving bargaining rights in the plant. The resort to such unfair labor practices is
in and of itself proof of an unlawful refusal to bargain in violation of Section
8(a)(5) of the Act. Joy Silk Mills v. N.L.R.B., 185 F. 2d 732 (CA.D.C.), cert.
denied 341 U.S. 914; Dallas Concrete Co., 102 NLRB 1292, 1312, enfd. 212 F. 2d
98 (C.A. 5); Cactus Petroleum, Inc., 134 NLRB 1254; Rural Electric Company, Inc.,
130 NLRB 799, 802; Mitchell Concrete Products Co., Inc., 137 NLRB 504.
On all the above facts and circumstances, I am of the opinion that Respondent's
defenses to the charge of unlawful refusal to bargain are without merit,46 and I
44 See Mrs Homer E Ash, and Bill H B Williams, A Copartnership doing business as
Ash Market and Gasoline, 130 NLRB 641 ; United Butchers Abattoir, Inc, 123 NLRB
946, 956, and cases cited in footnote 16
45 Ivy Hill Lithograph Company, 121 NLRB 831, 835, 836.
4e I have noted that the record shows that some employees became disenchanted with
the Union at or around the date of its second demand for bargaining , and later , and that
Galullo at one point admitted the Union did not have a majority on November 27, 1961
Absent the unfair labor practices of Respondent found herein , this evidence might be a
defense to the refusal-to-bargain charge; but since it is clear that any loss of majority
was due in large part , if not entirely , to the number, extent , and variety of Respondent's
unfair labor practices, under the cases last cited, this defense is without merit
DERBY COAL & OIL CO., INC., ETC. 1507
conclude and find Respondent has since October 26, 1961, failed and refused to
bargain with the Union as the statutory collective-bargaining representative of its
employees in the appropriate unit aforesaid, in violation of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Respondent having unlawfully refused to bargain collectively with the Union
as the exclusive representative of its employees in an appropriate unit, I recommend
that Respondent be ordered, upon request, to bargain collectively with the Union
as the exclusive representative of its employees in the unit set forth above concerning
wages, hours, and other terms and conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agreement.
In view of the variety of unfair labor practices committed by Respondent, which
include attempts to use its employees to try to prevent the normal course of Board
process in this case, I shall recommend that a broad cease-and-desist order issue
against Respondent.
On the basis of the above findings of fact, and on the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Respondent, consisting of Derby Coal & Oil Co., Inc., Deco Sheet Metal
Works, Inc., and Plumbing, Inc., is a single employer engaged in commerce within
the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. Since October 26, 1961, the Union has been the exclusive representative of all
employees in the following appropriate unit for purposes of collective bargaining
within the meaning of Section 9(a) and (b) of the Act:
All employees of said Employer at its Derby, Connecticut, plant (including
outlying gasoline service stations ), including all servicemen , installers, truck
drivers, regular part-time and full-time gas station attendants , helpers, mechanics,
and maintenance men, exclusive of office clerical employees, salesmen, guards,
and all supervisors as defined in the Act.
4. By refusing to bargain collectively with said labor organization as the exclusive
representative of its employees in said unit , Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the
Act.
5. By interrogating employees, threatening them with reprisals for union activities,
promising and granting them benefits , including wage increases , negotiating grievances
with them directly, suggesting, encouraging, and assisting them to take action through
their bargaining representative to withdraw unfair labor practice charges filed with the
Board and procure dismissal of unfair labor practice proceeding pending before the
Board, soliciting them to secure affidavits and statements given to the Board in the
course of formal investigation of charges for pretrail examination and use by Re-
spondent, and by other independent acts of interference, restraint, and coercion of em-
ployees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has
engaged in and is engaging in unfair labor practices affecting commerce within the
meaning of Sections 8(a) (1) and 2(6) and (7) of the Act.
6. Respondent has not violated the Act as alleged in paragraphs numbered 12(a)
1, 4, 6, and 7 and 12(d) of the amended complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law and the entire
record in the case, and pursuant to Section 10(c) of the Act, I hereby recommend that
the Respondent, Derby Coal & Oil Co., Inc., Deco Sheet Metal Works, Inc., and
Plumbing, Inc., and their respective officers, agents , successors, and assigns, jointly
and severally, shall•
672010-63-vol. 139-96
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Refusing to bargain collectively with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , Local 677 , as the exclusive rep-
resentative of all its employees in the appropriate unit found above.
(b) Interrogating employees regarding their union affiliation , sentiment, or ac-
tivities in a manner constituting interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
(c) Threatening employees with reprisals if said labor organization organizes the
plant, including threats to find or create reasons for discharge of employees , to sell its
equipment so that employees would have no work , and refusal to send employees to
schools for training at company expense.
(d) Promising and granting benefits, including wage increases and the condonation
of employee shortcomings , to persuade them to renounce union affiliation.
(e) Suggesting and persuading employees to engage in direct negotiation of
grievances with Respondent , and actual negotiation and settlement of grievances di-
rectly with employees , to induce them to forgo union affiliation.
(f) Soliciting or persuading employees to present antiunion arguments to other
employees to induce them to negotiate directly with Respondent instead of through
an outside labor organization.
(g) Misrepresenting to employees the nature and course of unfair labor practice
proceedings under the Act to induce them to forgo vindication of their statutory rights
by resort to Board process.
(h) Soliciting employees to procure affidavits and statements given to the Board
or its agents in the course of formal investigation of unfair labor practice charges
for pretrial examination and use by Respondent.
(i) Suggesting , encouraging , or assisting employees to take action through their
chosen bargaining representative to withdraw unfair labor practice charges filed with
the Board , with the object of securing a withdrawal or dismissal of any pending
unfair labor practice complaint without a hearing.
(j) In any other manner interfering with , restraining , or coercing employees in
the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such
right may be affected by an agreement requiring membership in a labor organization
as a condition of employment , as authorized in Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request, bargain collectively with said Local 677 as the exclusive rep-
resentative of all employees in the aforesaid unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its places of business in Derby, Connecticut , copies of the attached no-
tice marked "Appendix ." 47 Copies of said notice , to be furnished by the Regional
Director for the First Region , shall, after being duly signed by Respondent's rep-
resentative , be posted by it immediately upon receipt thereof , and be maintained by
it for at least 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not altered , defaced , or covered by any
other material.
(c) Notify said Regional Director , in writing , within 20 days from the receipt of
this Intermediate Report , what steps Respondent has taken to comply therewith 48
I also recommend that the allegations of paragraphs numbered 12(a) 1, 4, 6, and
7 and 12( d) of the amended complaint be dismissed.
47 In the event that this Recommended Order be adopted by the Board , the words "A
Decision and Order " shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice . In the further event that the Board ' s Order be enforced by a
decree of a United States Court of Appeals , the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
4e In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , In writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
DERBY COAL & OIL CO., INC., ETC. 1509
WE WILL, upon request, bargain collectively with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 677,
as the exclusive representative of all our employees in the following appropriate
unit, and, if an understanding is reached, embody such understanding in a signed
agreement:
All employees at our Derby, Connecticut, plant (including outlying gaso-
line service stations), including all servicemen, installers, truck drivers,
regular part-time and full-time gas station attendants, helpers, mechanics,
and maintenance men, exclusive of office clerical employees, salesmen,
guards, and all supervisors as defined in the Act.
WE WILL NOT interrogate our employees regarding their union affiliation,
sentiments, or activities in a manner constituting interference, restraint, or
coercion in violation of Section 8(a)(1) of the Act; threaten employees with
reprisals if the above labor organization organizes our plant, including threats
to find or create reasons for discharge of employees, to sell our equipment so
that employees would have no work, or refuse to send employees to schools
for training at company expense; promise or grant benefits to employees, in-
cluding wage increases and the condonation of employee shortcomings, to per-
suade them to renounce union affiliation; suggest and persuade employees to
engage in negotiation of grievances with us, or actually negotiate and settle
grievances directly with them, to induce them to forgo union affiliation; solicit
or persuade our employees to present antiunion arguments to other employees
to induce them to negotiate directly with us instead of through the above-named
Union, or any other outside labor organization; misrepresent to employees the
nature and course of unfair labor practice proceedings under the Act to induce
them to forgo vindication of their statutory rights by resort to Board process;
solicit our employees to procure affidavits and statements given to the Board or
its agents in the course of formal investigation of unfair labor practice charges,
for pretrial examination and use by us; suggest, encourage or assist our em-
ployees to take action through the above-named labor organization or any other
labor organization of their choice, to withdraw unfair labor practice charges
filed with the Board, with the object of securing a withdrawal or dismissal of
any pending unfair labor practice complaint without a hearing.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights guaranteed in Section 7 of the Act,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act, as amended.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named Union, or any other labor organization,
except to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as amended.
DERBY COAL & OIL CO, INC.,
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
DECO SHEET METAL WORKS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
PLUMBING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 24 School
Street, Boston 8, Massachusetts, Telephone Number, Lafayette 3-8100, if they have
any questions concerning this notice or compliance with its provisions.