G. P. D., Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1967

163 N.L.R.B. 830 (N.L.R.B. 1967)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrators have at all times been employees of the
store owners and part of the same bargaining unit as the
clerks. Thus, it is argued that efforts directed at
establishing their status in a unit of which they are already
a part are proper. The General Counsel would refute this
contention by claiming that demonstrators are hired and
paid by the suppliers, and thus are employees of the
suppliers alone, and consequently not a part of a unit
comprised of employees of the store owners. Respondents
argue, however, that hiring and payment alone do not
suffice to define the employment relationship, but that the
basic test rests in effective control. Thus, they poini out
that during the time that demonstrators are at a store they
are subject to the direct supervision and control of the
store owners. The fact that demonstrators are subject to
the direction and control of store owners tends to establish
not only a close relationship between demonstrators and
clerks, but also to some extent signifies that store owners
and suppliers may be regarded as joint employers. I
question the advisability of reaching such conclusion in
this case, however. The instances in which the Board has
found sufficient indicia of joint control over significant
aspects of the employment relationship to support a
finding of joint employment have usually arisen when it
was determining a question concerning representation.
Principal concerns in a representation proceeding relate to
unit descriptions, and a determination of who has the duty
to bargain. The controversy here does not arise in such a
context. There has been no effort to make suppliers joint
employers or to establish a duty to bargain on their part.
Precise unit placement is not an issue which has been
litigated or even raised by the pleadings. The sole issue
centers on whether the circumstances show the purpose of
the demonstrator clauses to be primarily directed at unit
protection or if unit acquisition or disruption of established
relationships is the underlying object. I have found that
the nature of the work, the character of the clauses, and
the historical development considered together signify
that the demonstrator clauses may properly be regarded as
aimed at preserving unit work. This is sufficient ground to
be dispositive of the issues presented. Issues of unit
placement based on the employment relationship of
demonstrators and store owners are best reserved for a
separate proceeding if they be deemed of importance.
Accordingly, I limit the scope of my findings to holding
that under all the circumstances demonstrators are fairly
claimable as unit employees, and that in view of this fact
the clauses demanded are not violative of Section 8(e) of
the Act.
Since the demonstrator clauses are not violative of
Section 8(e), it follows that the strikes and picketing in
furtherance of obtaining them do not have an unlawful
object, and that therefore Respondents have not violated
Section 8(b)(3) or Section 8(b)(4)(i) and (ii) of the Act.
Accordingly, I shall recommend that the complaint be
dismissed.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Nickel's Pay-less Stores of Tulare County,
Incorporated, and James Mead and Roger Mead co-
partners d/b/a Mead's Market, are each employers
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Retail Clerks International Association. Retail
Clerks International Association, Local Union No. 1288,
AFL-CIO, and Retail Clerks International Association,
Local Union No. 839, AFL-CIO, are each labor
organizations within the meaning of Section 2(5) of the Act.
3. Respondent Local 1288 and Respondent Local 839
have not engaged in unfair labor practices as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this case, it is
recommended that the complaint be dismissed in its
entirety.
G. P. D., Inc. and Local 337, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America,
Ind. Case 7-CA-5321.
April 3, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On November 3, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the complaint. Thereafter, the
Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
find the store owners and the suppliers jointly accepting the
practice of having demonstratois coming fiom union sources and
ieCeivmg union contract scale, no representation of
demonstrators by another union , and no efforts by the locals to
integrate the suppliers in the store owners' unit On the contrary,
all the efforts of the locals appear directly related to a primary
effort aimed at insuring that union standards will not be
undermined by permitting persons to do related work side by side
with the clerks at less than contract standards
163 NLRB No. 114
G. P. D., INC.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case,' and hereby adopts the
findings,2 conclusions, and recommendations of the
Trial Examiner, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, G. P. D., Inc., Ferndale, Michigan, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
Add the following to paragraph 1(e) of the
Recommended Order and to the fifth indented
paragraph of the notice:
", 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."
' The Respondent's request for oral argument is denied
because in our opinion the record, exceptions, and brief
adequately set forth the issues and positions of the parties
2 In the absence of exceptions, we adopt pro forma the Trial
Examiner's findings that (1) the 8(a)(1) allegations should be
dismissed with regard to Respondent's talks with employees
Andrus, Blansett, and Rogers pertaining to alleged unlawful
statements concerning a better retirement plan, and other alleged
benefits, (2) the General Counsel has not proved that the
Respondent had engaged in a further violation of 8(a)(5) by
undertaking to bargain with employees individually in derogation
of the Union's position, and (3) employee Paladino was offered
reinstatement to his former position and is not entitled to a further
offer of reinstatement
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner: Upon charges
and amended charges filed by Local 337, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Ind., herein called the Union, on
September 8, 17, and 27, 1965,' the initial complaint
herein, dated December 10, was issued alleging that the
Respondent G. P. D., Inc., herein also called the
Company, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1), (3), and (5)
and Section 2(6) and (7) of the National Labor Relations
Act, as amended. The complaint, as subsequently
amended,2 in substance, alleges:
1. Since September 1, the Company unlawfully has
refused to bargain collectively with the Union by
(a) refusing to recognize and negotiate with the Union as
the duly designated representative of an appropriate unit
' All dates, unless otherwise specifically stated, refer to the
year1965
2 By an order of the Regional Director for Region 7 of the
831
of its employees, and (b) undertaking to bargain with
employees individually.
2. On September 7 and on September 8, respectively,
the Company unlawfully discharged Michael Zamm and
Joseph Paladino.
3. Since November 23 the Company has failed and
refused to reinstate Leonard W. Andrus and George,
Morris to their former or to substantially equivalent
positions upon their unconditional offer to return to work
following a strike in which they participated and which
was caused and prolonged by the Company's unfair labor
practices.
4. By the foregoing and by other conduct set forth in the
complaint the Company has interfered with, restrained,
and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act.
Respondent's answer to the complaint, and its
amendments in substance, denies that it has engaged in
the alleged unfair labor practices. A hearing was held
before me in Detroit, Michigan, on May 11 and 12, 1966.
The hearing and the record in the case were formally
closed by my order dated June 16, 1966. The parties were
allowed until July 15, 1966, to file briefs with me and briefs
were received from the General Counsel and counsel for
the Respondent which have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation , maintains its
principal office and place of business in Ferndale,
Michigan , where it is engaged in the sale and distribution
of automobile parts and related products . The Company's
place of business in Ferndale, Michigan , is the only facility
involved in this proceeding. During the calendar year 1965,
which period is representative of its operations, the
Company, in the course and conduct of its business, sold
and distributed from its Ferndale, Michigan , place of
business , products valued in excess of $150,000 of which
products valued in excess of $100,000 were shipped from
said place of business directly to points located outside the
State of Michigan . I find that the Respondent is engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
1. Background
The Company's operations are essentially distributive.
It purchases parts from the Ford Motor Company which it
in turn sells to Ford automobile dealerships. In the
operation of its business it handles in excess of 600
different items. These products are stored in a warehouse
National Labor Relations Board, dated February 4, 1966, the
instant case was consolidated with Case 7-CA-5385 Therefore,
by my order, dated June 16, 1966, the two cases were severed
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Ferndale, Michigan. The Company employs driver-
salesmen who load their trucks at the warehouse and
cover their respective routes in the States of Michigan and
Ohio. These driver-salesmen, in addition to selling and
delivering new parts to their customers, accept from such
customers used and worn parts. An important facet of the
work of both the driver-salesmen and the warehousemen is
the identification of the various parts. During the times
material hereto the Company operated four truck routes,
each serviced by a single driver-salesman. Three of these
driver-salesmen reported regularly to the Ferndale
warehouse where they unloaded the used parts from their
trucks and received new parts. A fourth driver-salesman
operated principally out of a facility in Alma, Michigan. On
August 31, the Company employed four warehousemen in
addition to the four driver-salesmen.3
The principal stockholder of the Company, and for
practical purposes the sole owner of the Company, during
the times material hereto, was Emmet E. Tracy.' Although
Emmet E. Tracy was president and treasurer of the
Company, he spent very little time at its Ferndale
premises. According to Tracy's testimony, "I will probably
[be] there an hour or an hour and a half every second or
third week. Sometimes I am not there for two-months but
if you average it out it would be an hour or an hour and a
half every second or third week." Responsibility for the
day-to-day operations of the Company was lodged in John
Nixon, Jr., the general manager and sales manager of the
Company. The only other management official at the
Ferndale premises was Thomas J. Tracy, the son of
Emmet E. Tracy, who was the warehouse manager.5
2. The Union's demand for recognition
The events with which this case is concerned grew out
of the efforts of the Company's employees to secure union
representation. In mid-August, Joseph Paladino contacted
Jerome Coleman, an organizer and business agent of the
Union. Following several telephone conversations between
Paladino and Coleman arrangements were made for a
meeting of employees of the Company. The meeting was
held at the Union's headquarters on the evening of
August 27 and was attended by eight employees.6 During
the meeting each employee signed an application for
membership in the Union, which specifically authorized
the Union to act as the collective-bargaining
representative of the signer.7 By letter, dated August 30,
and received the following day by the Company, the Union
notified the Respondent that a majority of its driver-
salesmen and warehousemen had designated the Union as
their collective-bargaining representative and demanded
'The driver-salesmen were Leonard W Andrus, B- mond
Horne, Bob Rogers, and Keith Yale (Yale operated principally
from Alma, Michigan) The warehousemen were Harold Blansett,
George Morris, Joseph Paladino, and Michac' Zamm
" Of 5,250 shares of stock issued and outstanding, Emmet E
Tracy owned 3,910 shares and two charitable organizations owne-{
the remaining 1,340 shares
5 During the times material hereto Alexander Strange was an
outside salesman for the Company One of his duties was to visit
the various Ford dealerships and assist the parts departments of
such customers in arranging their stocks Strange, at the times
material hereto, was about 65 years old and there was testimony
to the effect that the Company was contemplating his retirement
in the near future
fi All the warehousemen and driver-salesmen, except Keith
Yale, attended the meeting In addition, Charles Markos, a former
recognition "for purposes of collective bargaining, as the
exclusive representative of such employees." The letter
further requested advice as to when a meeting for the
purpose of negotiating a collective-bargaining agreement
might be held.
3. The Company's rejection of the recognition demand
The Company's response to the Union's letter, written
by Emmet Tracy8 on September 1 from Harbor Point in
northern Michigan where he had been vacationing since
July 18, was as follows:
I have received and read with interest your letter of
August 30 which was forwarded to me at Harbor Point
and as I do not want any time to intervene before the
contents of your letter becomes known I am replying
promptly.
As you may know our business is seasonal and for the
past five or more years we have employed only two or
at most three men in our warehouse during eight or
nine months of the year. During the summer months
we must provide replacements for our salesmen
during their vacation periods and prior to and during
this period we hire temporary help for the summer
months.
It would not be surprising if some or all of the
temporary help in anticipation of permanent
employment would have contacted your offices for
organizing assistance.
These temporary workers all of whom will be released
before September 15, 1965, as the summer season will
then be over may favor your organization, but I am
confident that the balance of our regular employees
are not interested in having you or any other
organization representing them.
When you consider the bulk if not all of the Ford
Dealers Salesmen and Parts Men on whom our
salesmen depend for sales and their livelyhood [sic]
have expressed on many occasions their desire not to
be unionized their probable reaction to unionization of
our company is almost certain to be detrimental to the
sales of our company and the sales and compensation
of our commission salesmen.
Because of these conditions over which we have no
control it could be a very expensive experiment for
our permanent employees and as you know, one from
warehouseman who was transferred to an office clerical position,
was present
' Printed on the applicat in cards immediately above the
signature line is the following statement "I hereby designate
Teamsters Local No 337, through its authorized agents, as my
representative for collective bargaining "
s Although Emmet Tracy did not normally concern himself with
the day-to-day operations of the Company, he testified that after
the Union entered the picture he became more involved in the
affairs of the Company because "I was better equipped to handle
that than [Nixon and Thomas Tracy] were " According to Tracy's
further testimony, Nixon and Thomas Tracy had no experience
with any labor controversy and he wished to assume personal
responsibility for dealing with any problems arising from the
Union's organizational effort
G. P. D., INC.
which there could be no retreat once the news was out
in the hands of the Dealers and their probable
reaction determined.
The value of outside assistance to the employees of an
organization having only two or three warehouse
employees and three or four outside commission
salesmen is at the least very questionable although I
would not expect you to agree.
I am attaching a copy of a letter mailed today to all
employees for your information.
If you really believe you represent a majority of our
permanent employees I would suggest that you
arrange to have the National Labor Relations Board
schedule an election to determine the accuracy of
your claim.
As stated therein, a copy of the letter was mailed to each
employee. No evidence was adduced on behalf of the
Company tending to demonstrate any reasonable basis for
Tracy's expressed confidence that the Company's
"regular employees are not interested in having you or any
other organization representing them."
The General Counsel contends, which contention will be
discussed below, that Tracy's letter in and of itself
constitutes a violation of Section 8(a)(1) of the Act on the
part of the Company. The Union, following receipt of the
Company's letter rejecting its demand for recognition, on
September 2, filed a petition with the Board requesting
certification as representative of the Company's
warehousemen and driver-salesmen. However, because of
the charges filed in this case, no further proceedings have
been had in the representation matter.
4. Tracy's activities on September 7; the discharges of
Zamm and Paladino
On Tuesday, September 7, Emmet Tracy appeared at
the Ferndale warehouse. During the course of the day, he
separately interviewed at least five employees. Two of the
employees were Michael Zamm and Joseph Paladino, who
are alleged in the complaint to have been discriminatorily
discharged. In addition, Tracy spoke with Raymond
Horne, Leonard Andrus, and Harold Blansett. General
Counsel contends that certain remarks made by Tracy
during these interviews constituted further unlawful
infringements of employees' rights.
According to the uncontradicted testimony of
Leonard W. Andrus, Tracy inquired whether Andrus had
received his letter replying to the Union's request for
recognition and then stated that "Like the letter itself said,
I wouldn't be bothered by him or threatened, any action or
anything against me." Tracy inquired whether Andrus
thought the Union could help, and remarked that he could
understand why Keith Yale could go for the Union but not
Andrus, because Yale worked at a lower pay scale. Tracy
also said that the Company had been "'working on
" Tracy made a similar remark to Joseph Paladmo. According
to Paladino's uncontradicted testimony, on September 7, Tracy
said that "he wasn't afraid of the union, that he had defeated the
union for the last twenty-five years "
IS Keith Yale, who did not normally operate out of the Ferndale
warehouse, probably was not present at the meeting.
" Respondent's contention that it did not know whether the
strike had the support of a majority of the driver- salesmen and
warehousemen is inconsistent with the facts Emmet E Tracy
833
bettering the conditions, easing the work load," and that if
the employees had raised the question about a raise
"before this [the Union] had come about" it could have
been discussed, but "now nothing could be changed."
Tracy also told Andrus that "he had beaten [Unions] a
number of times before and it wasn't new to him."9
Raymond Horne testified without contradiction that
Tracy told him that something might have been done with
respect to a pay raise had the employees gone to Tracy
before they went to the Union. Tracy mentioned that if the
Union gets in, Horne will not be speaking for himself but
the Union will speak for him, and said something to the
effect that a lower class of people, such as factory workers,
were involved in unions . Tracy advised Horne that anyone
carrying a union card probably would not be able to get a
position as a Ford Motor Company representative. Tracy
also informed Horne that "he had beat the union before."
During his separate interviews with Michael Zamm
and Joseph Paladino, Tracy notified them that they were
being discharged. Zamm was terminated on September 7
and Paladino was terminated the next day.
5. The strike
Following the discharge of Paladino on September 8, the
Company's driver- salesmen and warehousemen, except
Rogers who was out of town ,10 met at a tavern near the
plant where the discharges of Zamm and Paladino were
discussed. After Union Business Agent Coleman was
contacted, the employees with the concurrence of
Coleman decided to engage in a strike, which was begun
the next morning. All the driver-salesmen and
warehousemen, including Rogers, but excluding Keith
Yale, participated in the strike. From the commencement
of the strike on September 9 until October 25 no attempt
was made by the Respondent to conduct normal
operations from its Ferndale warehouse. The General
Counsel contends, and the Respondent in its brief
concedes, that the driver-salesmen and warehousemen
engaged in the strike in protest of the discharges of
Paladino and Zamm. Accordingly, if these discharges were
unlawful, and for the reasons discussed below, I find they
were unlawful, the strike was an unfair labor practice
strike.
The means used to advertise the strike was by a sign
draped across an automobile parked near the plant
entrance plus desultory patrolling of the premises by the
striking employees wearing "on strike" notices.ti
On 'September 21, the Union sent a telegram to
Respondent's attorney reaffirming its demand for
recognition as the representative of a bargaining unit of
the Company's driver-salesmen and warehousemen and
suggesting commencement of negotiations. The
Company's attorney responded the same day by telegram
as follows:
QUESTION OF REPRESENTATION OF G P D EMPLOYEES
IS NOW PENDING BEFORE THE NATIONAL LABOR
testified to conversations he had with employees Horne, Rogers,
and Blansett concerning abandonment of the strike by them The
testimony about these conversations indicates that Tracy was
aware that all the driver-salesmen and warehousemen who
regularly operated from the Ferndale warehouse had been
supporting the strike Furthermore, no explanation is offered by
the Company as to why it stopped its normal operations from the
Ferndale warehouse if it did not believe that a majority of the
driver- salesmen and warehousemen supported the strike
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RELATIONS BOARD. WE DO NOT BELIEVE EMPLOYEES
HAVE BEEN GIVEN FREE OPPORTUNITY TO DETERMINE
WHETHER THEY WANT YOU AS COLLECTIVE
BARGAINING REPRESENTATIVE. COMPANY WILL ABIDE
BY RESULT OF ELECTION IF ORDERED BY BOARD. YOUR
REQUEST FOR MEETING IS THEREFORE REFUSED.
6. Termination of the strike
On October 15, while the strike was still in progress,
Emmet Tracy called several driver-salesmen into the plant
separately to give them checks for commissions earned by
them prior to the commencement of the strike. The
conversation with Raymond Horne ultimately led to the
termination of the strike. General Counsel contends that
some of the remarks made by Tracy to employees on
October 15 and in subsequent conversations with
employees prior to the termination of the strike
constituted further violations of the Act on the part of the
Respondent.
According to the uncontradicted testimony of Leonard
Andrus, after Tracy gave him the commissions check,
Tracy showed Andrus a brochure concerning a retirement
plan and said that this plan was in effect at two other
establishments in which Tracy had an interest and Tracy
saw no reason why the employees at the Company did not
also have such plan. Tracy pointed out to Andrus that
because George Morris, another striking employee, was 49
years old, he would never be in a position to draw any
retirement pension from the Union. Tracy also made some
comment concerning the outcome of a possible
representation election. According to Andrus, Tracy said
that the votes of Paladino, Zamm, and Markos (the
employees most recently hired by the Company) would
cancel the votes of Andrus, Horne, and Rogers (the regular
driver- salesmen).12
During Tracy's conversation with Horne, on October 15,
Horne inquired whether the employees could return to
work. Tracy responded that that could be done but the
employees would have to return on the same basis as
existed when they went on strike. Horne said that he
would like to talk to the people. Several days later Horne
telephoned Tracy and inquired if he and Rogers could
speak with him. Tracy invited them to his office. A
meeting took place on Friday, October 22. Horne informed
Tracy that he and Rogers were speaking for themselves
only and that they wished to return to work. Tracy
responded that that would be satisfactory. Tracy inquired
as to why they had been on strike. This led to a discussion
of the employees' grievances. According to Horne, Tracy
responded that he thought their grievances could be
worked out but "there was nothing he could do for us at
" Emmet Tracy did not contradict the testimony of Andrus
concerning their conversation Tracy explained that he wondered
whether or not the absence of a retirement plan was one of the
reasons for the strike and he rais, d the question with Andrus
because he under"stood that at some earlier date the employees
were polled as to whether or not they wished the retirement plan
and they had indicated that they were not interested in any such
plan
" In 1964 Blansett received a bonus While the record is not
altogether clear as to this matter, it appears that the bonus was
paid during the summer of that year and was in the amount of
approximately $1,000 Blansett testified that as early as 1955 he
the present time, on account of this being tied up." Tracy's
version of their conversation concerning the employees'
grievances, while somewhat fuller and somewhat at
variance with Horne's version, is not substantially
different. In essence, Tracy's responses were to the effect
that the remedy for some of the grievances was beyond his
control because he was required to comply with policies of
the Ford Motor Company; and that some other matters,
such as holidays and vacations, about which the
employees were complaining to him, were primarily within
their individual control because as driver-salesmen they
were paid exclusively on a commission basis and the fewer
hours they worked the less money they made. He said he
was under the impression that the Company was doing the
driver-salesmen a favor by permitting them to make up for
time lost. Both Horne and Rogers returned to work on
Monday, October 25. No change in their compensation
arrangements was made upon their return to work.
On Wednesday, October 27, Emmet Tracy visited
Harold Blansett at the latter's home and urged Blansett to
return to work for the Company. According to Blansett,
during their conversation, Tracy said that a thousand-
dollar bonus would come in handy at Christmas and
reminded Blansett that it was only 3 weeks until
Christmas. Tracy's version of the conversation is not
substantially different than Blansett 's. According to
Tracy, he pointed out to Blansett that the latter had made
more money with the Company than he was making with
the employer for whom he was then working and he made
a somewhat indirect reference to the Company's practice
of paying an annual bonus.13 Also, during the
conversation, Tracy showed Blansett a document which
he said was a retirement plan in effect at two other
establishments in which Tracy had an interest . Tracy said
that the retirement plan was better than the Union's plan
and that the employer paid the premiums. Tracy also said
that we had a retirement plan at the Company and it
probably was discontinued because the employees did not
wish it. Blansett did not testify that any promise was made
to him by Tracy regarding the institution of a retirement
plan for the Company's employees.14
Of the seven driver-salesmen and warehousemen who
went on strike'' three, Horne, Rogers, and Blansett,
returned to work during the week beginning Monday,
October 25. On November 23, Union Business Agent
Coleman sent a telegram to the Company requesting the
reinstatement of the remaining four employees, Leonard
Andrus, George Morris, and the two employees who had
been discharged earlier, Michael Zamm and Joseph
Paladino. According to General Counsel, the Respondent
refused to reinstate these four employees and the refusals
to reinstate Andrus and Morris constituted unlawful
discrimination against them.
had been advised that bonuses would be paid in December and
July but that employees must be actually employed by the
Company at the time the bonus was distributed in order to receive
the same
" Blansett testified that Tracy said , "Is this what you boys are
looking fors" and Blansett replied , "That's what I am looking
for " However , Tracy said nothing further about the matter This
testimony does not spell out a promise on the part of Tracy to
inaugurate a retirement plan for the Company's personnel
15 The record makes no reference to the participation of Keith
Yale in the strike
G. P. D., INC. . 835
B. Conclusions
1. As to the alleged independent violations of Section
8(a)(1)
The Company's first overt response to its employees'
self-organizational effort was the letter, dated
September 1, from President Emmet E. Tracy to the
Union, quoted above, copies of which were also mailed to
the driver-salesmen and warehousemen. Two aspects of
this letter I find to be unlawful:
(1) In this letter, President Tracy speculates that the
more recently hired employees (whom he refers to as
temporary help) were the initiators of the union activity.ts
He then advises that they will be discharged before
September 15. This advice constitutes an unequivocal
threat of discharge. The juxtaposition of such threat with
the surmise that the self-same employees were responsible
for the Union's appearance would lead the employees who
received the letter to understand that the so-called
temporary help was going to be discharged for having
engaged in self-organizational activities. Emphasizing the
underlying meaning of these statements is the expression
of confidence that "our regular employees are not
interested in having you or any other organization
representing them" which, in context, stands as a warning
to the so-called regular employees that they might be
subject to similar reprisals should they also seek union
representation. The Company cannot fairly assert that the
letter merely served to tell the Union (and the employees
who were also sent copies of the letter) why it was
rejecting the demand for recognition because the facts set
forth in the letter purporting to justify the Company's
alleged doubt as to the Union's claim of majority are
without any evidentiary support in the record. First, the
letter states that "our business is seasonal." There is no
evidence of this fact Second, likewise unsupported by
record evidence is the assertion that "prior to and during
this period (summer months) we hire temporary help for
the summer months." While Emmet Tracy, who is not
concerned with the day-to-day operations of the Company
and who spends very little time at its business premises,
testified in general fashion that it was the Company's
practice to hire temporary help to work in the warehouse
during the summer months, no payroll records or other
competent evidence within the control of the Company
was offered to corroborate this assertion," I which leads me
to conclude that such statement in President Tracy's letter
was a gross exaggeration. Impinging further upon the
accuracy and reliability of the statement that it was the
Company's practice to hire temporary help for the summer
months is the fact that none of the driver-salesmen or
warehousemen then working for the Company had been
informed prior to their receipt of Tracy's letter that they
had been hired to work only for a temporary period. Third,
no reasonable basis has been advanced as to why Tracy
was confident that "our regular employees are not
interested in union representation."
In In this respect the letter states
It would not be surprising if some or all of the temporary help
in anticipation of permanent employment would have
contacted your offices for organizing assistance These
temporary workers all of whom will be released before
September 15, 1965, as the summer season will then be over
may favor your organization, but I am confident that the
balance of our regular employees are not interested in having
you or any other organization representing them
(2) The prediction contained in said letter that the
unionization of the Company's employees would be
detrimental to the sales of the Company and "the sales
and compensation of our commission salesmen [the
driver-salesmen] " constituted a plain warning to the
employees that union representation would result in a
reduction of income. Such threat, so far as the record
shows, was fabricated from whole cloth. As stated in
International Union of Electrical Workers (NECO
Electrical Products Corp.) v. N.L.R.B., 289 F.2d 757, 763
(C.A.D.C.), "No evidence was adduced at the hearing to
support that assertion or show any basis for the ... belief
in its truth. It seems clear that Congress did not intend
to protect any unqualified assertion of such importance
unless the utterer can show that he had some reasonable
basis for it." Accordingly, I find that the threats expressed
in Tracy's September 1 letter to the effect that employees
who lend support to the Union would be discharged and
that driver-salesmen who join the Union will suffer a
reduction in their earnings constituted unlawful restraint
and coercion of employees in violation of Section 8(a)(1).
Emmet Tracy's next moves were made on September 7
when he interviewed five employees separately. With
respect to his conversations with Leonard Andrus and
Raymond Horne, I find that Tracy's remark to Andrus that
the Company had been "working on bettering the
conditions, easing the workload" and his remarks to both
employees to the effect that something might have been
done with respect to a pay raise had the employees come
to him before they had gone to the Union but that now
nothing could be changed were not unlawful. Contrary to
the General Counsel, these statements did not serve to
inform the employees that because of the advent of the
Union they were being denied increases in pay or other
benefits. Neither did these statements serve to advise the
employees that the abandonment of the Union on their
part would lead to improvements in woiking conditions or
other benefits. While Tracy's purpose in speaking with
these two employees undoubtedly was to discourage their
adherence to the Union, this factor is not sufficient to tinge
the statements referred to with an unlawful coloration of
threat or promise of benefit. However, Tracy's statement
to Horne that anyone carrying a union card probably would
not be able to obtain a job as a Ford Motor Company
representative carried with it the implication that
employees who joined the Union would be blacklisted and
would be unable to obtain employment with Ford Motor
Company.ts Leeds Shoe Stores, Inc., 149 NLRB 500, 508,
510. Such statement, therefore, constituted a violation of
Section 8(a)(1) on the part of the Company.
General Counsel contends that in October, during the
strike, Emmet Tracy made unlawful promises to
employees Andrus, Horne, Rogers, and Blansett. With
respect to Tracy's separate conversations with Andrus and
Blansett concerning a retirement plan, I find that the
testimony does not establish that Tracy either directly or
by implication promised that a retirement plan would be
inaugurated should they abandon the strike or the Union.
" For reasons discussed more fully below, see fn 23, I do not
consider the testimony of Harold Blansett as corroborating
Tracy's testimony
" Neither Emmet Tracy nor anyone else on behalf of the
Company testified that there was any factual basis for the
statement that a union member would be unable to obtain a
position as a representative for the Ford Motor Company
295-269 0-69-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The mere fact that Tracy discussed with Andrus and
Blansett the retirement plan, which was in effect at other
establishments in which he had a proprietary interest, and
mentioned that he understood that a similar plan had been
offered to the Company's employees and turned down by
them at some much earlier date does not amount to an
implied promise that such plan would be instituted by the
Company should the employees abandon the strike.
Likewise, I find that Emmet Tracy did not promise
Blansett a $ 1,000 Christmas bonus if he would abandon
the strike and go back to work. Upon consideration of the
testimony of both Blansett and Tracy concerning the
subject, I find that Tracy merely reminded Blansett,
during their conversation on October 27, of the Company's
practice regarding the payment of bonuses. Pointing out to
Blansett what he would lose under the Company's
established compensation practices if he did not return to
work for the Company does not amount to an unlawful
promise of benefits.
General Counsel also contends that Emmet Tracy
during his conversation with Horne and Rogers, before
their return to work on October 25, promised them
improvements in vacation benefits and holiday practices.
Here, too, I find that these discussions were devoted
merely to an explanation of the Company 's existing
practices in regard to vacation and holiday benefits and
the considerations governing such practices , and did not
involve any promise of improvements in such benefits to
induce Horne and Rogers to abandon the strike or
discontinue support of the Union. The evidence is
undisputed that , in fact , since the termination of the strike
there have been no changes in the employees' wages or
conditions of work.
2 As to the discharges of Zamm and Paladino
Of the eight employees in the unit of driver -salesmen
and warehousemen for which the Union requested
recognition as statutory representative , the last hired by
the Company were Joseph Paladino, who was hired on
February 27, and Michael M. Zamm, who was hired on
March 16. Presumably, Emmet Tracy was referring to
these two employees by the assertion in his September 1
letter to the Union that "we hire temporary help for the
summer months.""' The letter also reflects Tracy's
unmistakable opposition to the Union and contains a clear
expression of his belief that the temporary help probably
was responsible for the organizational activity among the
Company's employees. Furthermore, the letter, copies of
which were mailed to all the driver-salesmen and
warehousemen, constituted the first advice to Paladino
and Zamm that they were temporary employees and would
be "released before September 15, 1965." Pursuant to this
threat, Paladino and Zamm were discharged by Emmet
Tracy. General Counsel's position is that the two men
were discriminatorily discharged by Tracy because of
Tracy's belief that they were the instigators of the union
activity to which he objected. Respondent's defense is that
Paladino and Zamm were temporary employees who were
discharged when their services were no longer required.
Joseph Paladino applied for work with the Company in
response to an advertisement for a driver-salesman which
appeared in the Detroit News between January 21 and
27.20 He was first interviewed by Sales Manager Nixon and
subsequently , on February 26, in a telephone conversation
with Warehouse Manager Thomas L. Tracy, was advised
to report for work the next day. When Paladino arrived at
the warehouse he was informed by Thomas Tracy that he
would do general warehouse work and would receive
training for a driver -salesman ' s position . (An important
facet of the work of the driver-salesmen and also of the
warehousemen was the ability to identify the more than
600 different automobile parts handled by the Company.
Many of the references in this case to the training of
driver - salesmen are to such parts' identification, which
training was contemplated would for the most part take
place in the warehouse .) Paladino's arrangement , during
the time he was employed by the Company, was that he
would be permitted to operate a bakery route so that his
hours of work were from about noon until sometime in the
late afternoon , which was less than a normal workweek.21
At no time during his employment interviews or prior to
September was Paladino advised that his job was
temporary. His starting rate of pay was $2 per hour. About
4 weeks later he received an increase of 10 cents per hour
at which time Nixon advised him that both Nixon and
Thomas Tracy were more than satisfied with his work and
progress. About 6 or 8 weeks thereafter Paladino received
an additional increase of 5 cents per hour. In July,
Paladino spent 2 weeks assisting driver-salesman Leonard
Andrus on his route in order to learn more about the
driver-salesmen 's duties. After his return from the trip,
Thomas Tracy complimented Paladino on the work he had
been doing. Periodically, Paladino was complimented by
Thomas Tracy and by Nixon and was never criticized by
either of them.
Michael J. Zamm applied for a job with the Company in
response to an advertisement for a warehouseman with
"opportunity for man under 40 to advance to high paying
future," which appeared in the Detroit News between
March 14 and 16. He was interviewed and hired by
Thomas Tracy, who informed Zamm that the Company
wanted a man with sufficient intelligence to learn the parts
and the business . Zamm was also interviewed by
Alexander Strange about his sales background and ability
to operate a truck. At no time prior to September was
Zamm informed that he was hired on a temporary basis.
To the contrary, on March 16 or 17, Zamm and another
employee were specifically advised by Thomas Tracy that
there would be no layoffs, that the employees worked 40
hours per week, every week of the year.
About 6 weeks after the beginning of his employment
Zamm received an increase of 15 cents per hour at which
time Thomas Tracy told Zamm that he was doing a good
job. In early June, Zamm was assigned to help driver-
salesman Rogers on the latter 's route for a period of 3 to 4
weeks in order to become further acquainted with the
Company's operations . Zamm also was relief driver for 1
day on which occasion he was accompanied by Sales
Manager Nixon. During the summer Zamm substituted for
George Morris, who had charge of shipping and receiving,
while Morris was away on vacation.
According to Zamm's uncontradicted testimony,
approximately 3 weeks before he was discharged, Thomas
14 Emmet Tracy testified at the hearing that Zamm and generally to the effect that he would not be called upon to give up
Paladino were the only employees whom he considered to have his bakery route until he was assured that lie would be advanced
been " temporary " to the position of driver-salesman, at which job his earnings would
21 The advertisement also stated , "Monthly salary $700-$800 " be substantially greater than as a warehouseman
=' The understanding between Paladino and the Company was
G. P. D., INC. 837
Tracy advised him that Tracy was pleased with his work
and that while Morris was on vacation the warehouse was
"in very good shape and seemed to be run very well and
asked me to take a more active part in the actual running
of the warehouse." Thomas Tracy also told Zamm on this
occasion that Nixon was pleased with his work on the day
Nixon accompanied him on the truck and "they would like
to keep me around in case an opening came up."
Although Emmet Tracy had delegated to others the
responsibility for the day-to-day operations of the
Company and spent very little time at the warehouse and
although Emmet Tracy testified that it is unusual for him
to talk with rank-and-file employees, nevertheless, he
personally discharged both Zamm and Paladino. Towards
the end of the workday on September 7, after he had
called several other employees to the office, Emmet Tracy
summoned Zamm. Tracy told Zamm that in the past
Blansett and Morris had run the warehouse themselves,
now that the summer was over, which he said was the rush
period, he believed he had too much help and, because
Zamm had the least seniority, Zamm was being
terminated. Emmet Tracy further explained that he
believed Blansett, Morris, and Paladino could handle the
work. Emmet Tracy asked Zamm to sign a termination
receipt adknowledging that Zamm's employment had been
on a "temporary or vacation relief basis." Zamm at first
objected to signing such instrument which he believed was
contrary to the fact. Emmet Tracy called his son into the
office and asked if he had hired Zamm on a temporary or
vacation-relief basis and Thomas Tracy replied, "not
exactly." However, after some further discussion and after
the words "or vacation relief" were stricken, Zamm signed
the document. Zamm testified that he signed the paper
because he was afraid that he would not otherwise get his
check for wages earned to the date of his discharge.
Before Zamm left he inquired whether his discharge was a
reflection upon his work to which Emmet Tracy replied
that his work had been satisfactory but that Tracy had
been told that Zamm would never make the grade as a
driver-salesman.
About 4 p.m. on the same day, Emmet Tracy called
Paladino into the office. He complimented Paladino with
respect to his work, but said that he was sorry he had to
terminate Paladino because Paladino was a temporary
employee whose services were no longer needed. Paladino
disputed the assertion that he was a temporary employee.
Tracy asked Paladino to sign a termination receipt
identical to the one Zamm was asked to sign ; however,
Paladino refused. After some additional discussion Tracy
said he wished to speak with Nixon and would meet with
Paladino the next day. On September 8, Paladino again
was called to the office by Emmet Tracy and this time
John Nixon was also present. There was more discussion
about Paladino's alleged status as a temporary employee,
following which he was discharged. Paladino did not sign
the termination receipt.
Respondent argues in its brief that because of seasonal
requirements employees were often hired in the spring
and discharged in the fall when the workload no longer
demanded their services and, pursuant to this practice,
after business had decreased to a point where there was
surplus of manpower, Zamm and Paladino, who had the
least seniority, were discharged. "In short," according to
the brief, "neither Mr. Zamm nor Mr. Paladino exhibited
the potential required for a driver-salesman trainee
program. Moreover, Mr. Zamm, it was felt, could never
make the necessary improvements and Mr. Paladino
indicated no willingness to do so. It was quite
understandable, then, that these two men would be
terminated at the end of the summer when the vacation
period for regular employees was over. These men were
simply excess employees at that point."
Little convincing evidence was adduced to support the
factual assertions in Respondent's argument . Mist, the
suggestion that the business is seasonal is completely
without evidentiary foundation.22 Second, the only
evidence offered to support the assertion that there was a
practice of hiring temporary employees to work between
the spring and the fall is the testimony of Emmet Tracy to
such effect. However, he was unable to furnish any
particulars from memory and the Company did not
introduce any substantial corroborative evidence'23 which
should have been available in the form of company records
if such assertion were true. Third, there is no evidence
that there had been any decrease in the Company's
business. Fourth, no explanation was offered as to the
basis for the Company's determination that, as of
September 7, there was an excess number of persons
working in the warehouse. Neither Emmet Tracy nor
Managers Nixon or Thomas Tracy testified specifically as
to the minimum number of warehouse employees that was
required for the normal operations of the Company.
However, the testimony of Thomas Tracy and Harold
Blansett indicate that at no relevant time were there fewer
than two full-time men employed in the warehouse.
Thomas Tracy testified that during the greater part of 1964
there were three full-time employees working in the
warehouse and not until a Mr. Thompson, who worked for
the Company for a period of 6 months, was terminated in
December 1964 did the number of employees fall to two.
The two persons who were regularly employed as
warehousemen prior to 1965 were Harold Blansett and
George Morris. In addition, various other men worked in
the warehouse from time to time. However, before the
22 Emmet Tracy in his September 1 letter to the Union stated
without qualification that "our business is seasonal " Howeve , in
its brief , the Company equivocated by referring to "seasonal
requirements "
23 Respondent , in its brief , points to the testimony of Harold
Blansett as being corroborative In response to a question by the
General Counsel , Blansett testified , "They [warehousemen other
than himself and George Morris] always came in in the summer or
in between times " On cross -examination , Blansett further
testified
Q You said each year in the summer time the Company
had some extra employees , and they worked, in the
warehouse , is that right 9
A Yes , they did , because every time I would come in I
would see a new face
* * *
Q Would you estimate how many persons you have seen
come and go after a temporary period of employment at GPD
in the last five years?
A To be truthful, I couldn't give you an exact figure I
would say around-by guessing-I'd say twenty or twenty-
five men
Q Over what period of time?
A In the past 5 years, counting the ones that just stayed a
week
This vague and indefinite testimony by a rank-and-file employee,
largely in response to leading) questions, falls far short of
establishing the existence of an employment practice on the part
of the Company of hiring temporary employees to work during the
summer months only
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
start of the 1965 vacation period, Blansett was assigned to
work with Alexander Strange, who was the outside
salesman. While assigned to assist Strange, Blansett spent
nine-tenths of his time away from the warehouse and
worked in the warehouse only when an additional
warehouseman was needed as a substitute for an ill
employee or for a similar reason. Blansett further testified
that he does not remember working in the warehouse at
anytime between February and September. Blansett
explained that, in January or February, Emmet Tracy had
told him that Alexander Strange was approaching the
retirement stage and Emmet Tracy wanted Blansett to
learn the job. Thus, immediately prior to September 7, the
only full-time employees working in the warehouse were
Morris and Zamm. In addition, Paladino worked during
the afternoons, and Blansett was available to fill in in
cases of emergency. As the Company did not operate with
fewer than two regular warehousemen, and usually had
more, it does not appear that there then existed the alleged
surplus of manpower in the warehouse. However, on
September 7, Blansett to his surprise was informed by
Emmet Tracy that as of that day he was to return to work
in the warehouse. No explanation was given to Blansett for
this shift in his duties. Likewise, no explanation was made
at the hearing as to the reason for Blansett's transfer back
into the warehouse. In the circumstances, an inference
may be drawn that Blansett was returned to warehouse
duties in order to create the appearance that there existed
a greater number of regular warehouse employees than
was required in order to furnish an ostensible reason for
terminating Zamm and Paladino.24
Respondent's defense that Zamm and Paladino were
discharged on September 7 and 8, respectively, solely
because there was no longer any need for their services, is
unpersuasive. First, Emmet Tracy in his letter of
September 1 to the Union and his conversations on
September 7 with Zamm and Paladino sought to
characterize their employment as temporary for the
summer months. However, at the hearing, he redefined
the term "temporary" by testifying, "I classify [anybody
that we hire in our place] as temporary until the day that
they are established as a permanent employee who can do
the work for which we hired them." Thus, there is a
shifting in Respondent's reason for terminating Zamm and
Paladino from the one given to the Union and to the
dischargees that the two men were hired as temporary
summer replacements to the more refined position
advanced at the hearing that after their lack of
qualification for advancement to driver-salesmen positions
became apparent, they were retained to work in the
warehouse only until the summer vacation period was over
when their services would no longer be required. Second,
although Emmet Tracy was away from the Company's
Ferndale plant continuously from July 18, nevertheless, on
September 1, he informed the Union that the ",,;mporary
help," namely, Zamm and Paladino, will be released
before September 15. According to the not altogether
consistent testimony of Emmet Tracy, Thomas Tracy, and
John Nixon, by reason of separate telephone conversations
between Emmet Tracy on the one end and Thomas Tracy
and Nixon on the other, Emmet Tracy learned that the
Company would not require the services of Zamm and
Paladino after the summer vacation period. However,
about the same time that these alleged discussions were
taking place, Thomas Tracy told Zamm that the Company
"would like to keep [him]." Thus, there is a direct and
unexplained contradiction between the information
purportedly given to Emmet Tracy concerning the
personnel requirements in the warehouse and the
statement made by Thomas Tracy to Zamrn. Third, no
explanation is offered as to why on the very day Zamm was
discharged allegedly because his services were no longer
required in the warehouse, Emmet Tracy transferred
Blansett to work in the warehouse. Fourth, Emmet Tracy
testified that he was told by Nixon that either for want of
capacity or of interest neither Zamm nor Paladino had the
potential to become a driver-salesman. However, neither
Zamm nor Paladino was informed of their alleged
deficiencies, but to the contrary, on several occasions,
each was praised for doing a good job and was led to
believe that when driver-salesmen vacancies should occur
they probably would be advanced to such positions. Fifth,
although Emmet Tracy was not concerned with the day-to-
day operations of the Company and normally did not either
hire or discharge employees, nevertheless, he undertook
personally to discharge Zamm and Paladino on the first
day he returned to the plant after an absence of more than
7 weeks. Completely unexplained was the necessity for
Emmet Tracy to involve himself in what presumably-if
the Company's defense is to be believed-was a routine
termination. Furthermore, unexplained is the reason for
seeking termination receipts from the dischargees
acknowledging, contrary to the facts, that they were hired
on a "temporary or vacation relief basis."25
Upon consideration of all the evidence bearing upon the
discharges of Zamm and Paladino, including the fact that
the reasons ascribed for their discharges are unconvincing
and the further fact that Emmet Tracy, who openly
advertised his opposition to the employees' self-
organizational activities and his belief that the temporary
help (Zamm and Paladino) were responsible for such
activities, contrary to normal practices, personally
undertook to discharge these two individuals, I conclude
that they were discharged not for the reasons advanced by
the Company but because of their actual or suspected
union activities. Such discharges, therefore, violate
Section 8(a)(3) of the Act and also constitute interference,
restraint, and coercion of employees in the exercise of the
rights guaranteed in Section 7 in violation of Section 8(a)(1)
of the Act.
'4 There is evidence that for a short peiiod during the summei
of 1965 there may have been more employees working in the
warehouse than were needed Thomas Tracy testified that in
August the following men were working in the warehouse Morris,
Zamm, Markos, and Paladino and Blansett "on an off and on
basis " However, Markos was transferred out of the warehouse to
do office clerical work so that the number of regularly assigned
warehousemen was reduced to two full- time employees plus
Paladino who worked in the afternoons Absent evidence to the
contrary, it may be assumed that the transfer of Markos out of the
warehouse, reduced, if it did not eliminate entirely, any excess
employee time in the warehouse Also, it is to be noted that
Paladino worked part time from noon or 1 p in until the day's
work was finished, which varied from 4 p in to 7 p in , so that
there was some flexibility in the manpower available to
accomodate fluctuations in the workload
21 I am of the opinion that Emmet Tracy, who was the principal
witness for the Respondent, deliberately distorted many of the
facts about which he was questioned in order to lend conviction to
Respondent's defense I find that Emmet Tracy was an unreliable
witness and I have credited his testimony only to the extent
indicated in the findings of fact herein set forth
2. As to the refusals of reinstatement
G. P. D., INC. 839
The strike which began on September 9 was
precipitated by, among other factors, the unlawful
discharges of Zamm and Paladino. The strike therefore
was an unfair labor practice strike and the striking
employees were entitled, upon application, to
reinstatement to their former or substantially equivalent
positions. On November 23, Jerry Coleman, the Union's
business representative, sent the following telegram to the
Company:
GENTLEMEN, THE EMPLOYEES NAMED BELOW HEREBY
UNCONDITIONALLY APPLY TO REINSTATEMENT IN
THEIR FORMER OR SUBSTANTIALLY EQUIVALENT
POSITION WITH YOUR COMPANY LEONARD ANDRUS
GEORGE MORRIS MICHAEL ZAMM AND JOSEPH
PALADINO WHEN THESE EMPLOYEES HAVE BEEN
RETURNED TO THEIR JOB THE CURRENT STRIKE AND
PICKETING ACTIVITIES WILL CEASE. THE ABOVE
NAMED EMPLOYEES WILL REPORT FOR WORK AT
THEIR USUAL TIME ON MONDAY, NOVEMBER 29 1965
UNLESS WE HEAR FROM YOU TO THE CONTRARY IN
THE INTERIM.
None of the employees mentioned in the telegram reported
for work on November 29. However, each of them shortly
after said date made a personal application for
reinstatement.
Leonard W. Andrus: There is some confusion
concerning the dates when Andrus made the telephone
calls and visits discussed below. However, there is no
substantial dispute as to what occurred. On or before
December 1, Andrus telephoned the Company and spoke
with Plant Manager Nixon. He told Nixon that he was
ready to "come back to work." Nixon replied that he had
no authority in the matter and that Nixon would have to
contact Emmet Tracy. Nixon suggested that Andrus
telephone again. Subsequently, Andrus again telephoned
Nixon who told Andrus to come to the plant on a particular
day and speak with Tracy. However, Andrus did not report
to the plant on the day mentioned. Thereafter, Andrus had
a telephone conversation with Emmet Tracy and told
Tracy he was ready to come back to work. Tracy replied
that there had been too much misunderstanding, that
everything would have to be in writing, and that Andrus
would have to come to the plant. Accordingly, Andrus met
with Tracy on December 3. In their conversation on that
date, Emmet Tracy told Andrus that his job had been filled
and that Andrus could be assistant to the warehousemen.
Andrus replied that he would have to think about the
matter. Before Andrus left the meeting Tracy gave him a
letter which advised him that unless he reported for work
on December 6 he will be considered as having no further
interest in employment with the Company. On
December 8 the Company mailed to Andrus a letter
terminating his employment. The position offered to
Andrus of assistant to the warehousemen was not
substantially equivalent to the position of driver-salesman
which Andrus held at the time he went out on strike. As an
unfair labor practice striker, Andrus, upon application,
was entitled to reinstatement to his former position even if
26 The evidence shows that driver- salesmen earned in excess of
$10,000 per year while the wages of the warehousemen were
substantially lower
21 Because Andrus faded to report for work on November 29,
the date stated in the Union's telegram, the Company was
justified in insisting that Andrus apply for his ,job in person in
order to avoid any misunderstanding Accordingly, I find that the
the Company was required to discharge his replacement.
No evidence was offered on behalf of the Company that
Andrus' former job had been filled as of December 3, the
date on which he had his conversation with Emmet Tracy.
In its brief, Respondent makes no contention that Andrus
was denied reinstatement because he had been replaced
in his job. The argument advanced by Respondent in its
brief is that Andrus had no interest in returning to the
Company as an employee. However, the question of the
genuineness of Andrus' application for reinstatement was
not put to a fair test because Andrus was offered a
substantially inferior position by the Company.26
Accordingly, I find that the Company unlawfully refused
to reinstate Andrus to his former position when he made
application for such reinstatement on December 3.
Accordingly, I find that Respondent thereby has violated
Section 8(a)(1) and (3) of the Act.27
George Morris: Morris also did not report for work on
November 29. However, before the end of the month he
telephoned Warehouse Manager Thomas Tracy and asked
Tracy whether he could come back to work. Tracy replied
that he would have to speak to his father. Morris then said
that he was employed but does not work on Saturdays and
asked Tracy to call him then. Tracy replied he would let
Morris know. Neither Thomas Tracy nor anyone else on
behalf of the Company attempted to contact Morris. As
Morris made a clear and unconditional request to return to
work in his telephone conversation with Thomas Tracy
and as the Company never thereafter reinstated him, I find
that Morris was unlawfully denied reinstatement in
violation of Section 8(a)(1) and (3) of the Act.28 As Morris
was uncertain as to which day in November he spoke with
Tracy, I shall find that Respondent's unlawful refusal to
reinstate Morris began as of December 1.
Michael Zamm. I have hereinabove found that Michael
Zamm was discriminatorily discharged on September 7.
The discrimination against Zamm continues until
Respondent offers Zamm reinstatement. Although Zamm
did not report for work on November 29, as the Company
was advised he would do by the Union's telegram,
nevertheless, that does not suffice to discharge
Respondent's obligations to Zamm as an employee who
was terminated in violation of the Act. There is no
evidence that the Respondent at any time after
September 7 offered Zamm reinstatement. Accordingly, I
shall recommend that the Respondent offer Zamm
reinstatement to his former or to a substantially equivalent
position.
Joseph Paladino: Paladino had a discussion with
Emmet and Thomas Tracy concerning his reinstatement.
Although he did not remember when the discussion took
place, in the light of all the surrounding circumstances, it
probably occurred about December 1. According to
Paladino, "they didn't offer [him] a driver-salesman
training job"; but they offered to reinstate him to do
cleanup or any bit of work that might be needed around
the warehouse. Upon further examination, Paladino
testified that there was no specific discussion about
further training for the position of driver-salesman, but he
date of discrimination against Andrus began on December 3 when
he met with Emmet Tracy rather than on the date when he spoke
to Nixon and first requested reinstatement
28 Contrary to Respondent , Morris was under no obligation to
pursue the Company with repeated requests for reinstatement
even if he might conveniently have done so
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assumed that advancement to such position was
foreclosed to him because of the attitude of Emmet Tracy,
as displayed during their conversation. According to
Paladino, except that he believed the offer of
reinstatement did not include further training for the
position of driver-salesman, he was offered reinstatement
to the same job he held when he was discharged on
September 8. While the manner adopted by the Tracys in
their discussion with Paladino may have led Paladino to
believe that they were not inclined to continue his training
as a driver-salesman, nevertheless, whether he, in fact,
would be denied such training and would be deprived of an
opportunity for advancement to the position of driver-
salesman was completely speculative. As the Company
offered to reinstate Paladino to the very same job he held
at the time he was discharged and as Paladino refused to
accept such reinstatement, I find that the discrimination
against Paladino terminated on December 1 when he
refused Respondent's offer to reinstatement.
4. As to the refusal to recognize and to bargain with the
Union
When, on August 31, the Company received the Union's
demand for recognition, the Union represented seven of
the eight employees in the appropriate unit .29 The next
day company president, Emmet Tracy, who had been
absent from the plant on vacation continuously since
July 18 rejected the request for recognition. No
explanation, other than the matters set forth in his letter of
September 1, was offered as to the basis for Emmet
Tracy's refusal to accept the Union's claim of majority.
The reasons set forth in his September 1 letter to the
Union, rather than revealing a reasonable basis for
doubting the Union's majority, constituted a patent and
unlawful attempt to dissuade the employees from
supporting the Union. Respondent's defense to the 8(a)(5)
charge herein is that it had a good-faith doubt that the
Union represented a majority of the employees in the
appropriate unit . "This good faith doubt must have some
reasonable basis and is not established merely by the
employer's assertion of doubt of the majority." N.L.R.B. v.
Superior Sales, Inc., 366 F.2d 229, 237 (C.A. 8). No
reasonable basis for doubt of the Union's majority on the
part of the Company has been shown. To the contrary, the
conduct of the Respondent herein from the date it first
received the Union's demand for recognition
demonstrated a desire on its part to frustrate its
employees' self-organizational aspirations and to
undermine the Union's majority. The Company rejected
the Union's bargaining request, not because it entertained
a good-faith doubt as to the Union's majority, but because
it rejected the collective- bargaining principle and was
seeking time within which to evaporate the Union's
strength. In such circumstances, therefore, the
Company's refusal to recognize and bargain collectively
with the Union constituted violations of Section 8(a)(1) and
(5) of the Act.30 However, the General Counsel has not
proved that the Respondent engaged in further violations
of Section 8(a)(5) by undertaking to bargain with
employees individually in derogation of the Union's
2" At the hearing the parties stipulated that all warehousemen
and driver- salesmen employed at the Ferndale , Michigan, place of
business of G P D , Inc , but excluding office clerical employees,
professional employees , guards and supervisors as defined in the
Act constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act In
accordance with such stipulation I find said unit appropriate.
position as the duly designated representative of such
employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I shall recommend that the Respondent
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act. For the reasons which are stated in Consolidated
Industries, Inc., 108 NLRB 60, 61, and cases there cited, I
shall recommend a broad cease-and-desist order.
Having found that Respondent, since September 1,
1965, unlawfully has refused to recognize and bargain
collectively with the Union, I shall, in accordance with
established precedent,31 recommend that the Company,
upon request of the Union, bargain collectively with the
Union.
Having found that the Respondent unlawfully
discharged Joseph Paladino on September 8, 1965, I shall
recommend that the Respondent make him whole for any
loss of earnings he may have suffered by reason of the
discrimination against him from said date until
December 1, 1965, when Joseph Paladino refused to
accept reinstatement to his former job by paying to him a
sum of money equal to that which he normally would have
earned between said dates, less his net earnings during
such period. Having further found that the Respondent
unlawfully discharged Michael Zamm on September 7,
and unlawfully refused reinstatement to George Morris
and Leonard W. Andrus when, as unfair labor practices
strikers, they made applications for reinstatement on
December 1 and 3, respectively, I shall recommend that
the Respondent offer each of these employees immediate
and full reinstatement to his former or to a substantially
equivalent position, without prejudice to his seniority and
other rights and privileges, and make each said employee
whole for any loss of earnings he may have suffered by
reason of the discrimination against him by paying to him a
sum of money equal to that which he normally would have
earned from the date of the discrimination against him to
the date of Respondent's offer of reinstatement, less his
net earnings during such period. The backpay provided
herein shall be computed on the basis of calendar
quarters, in accordance with the method prescribed in
F. W. Woolworth Company, 90 NLRB 289. Interest at the
rate of 6 percent per annum shall be added to such net
backpay and shall be computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716.
3° Joy Silk Mills, Inc. v N.L.R B, 85 NLRB 1263, enfd. 185
F 2d 732 (C.A D C ), cert denied 341 U S 914.
31 See Preston Products Company, Inc, 158 NLRB 322, and
cases therein cited.
G. P. D., INC.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By the conduct set forth in section III, above, which
has been found to be unlawful, the Company has
interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed to them by Section 7 of
the Act, and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
2. By failing and refusing, since September 1, 1965, to
recognize and to bargain collectively with the Union as the
duly designated exclusive collective-bargaining repre-
sentative of its employees in a unit appropriate for that
purpose, the Company has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Joseph Paladino, Michael Zamm,
Leonard W. Andrus, and George Morris, thereby
discouraging membership in the Union, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondent has not engaged in any violations of the
Act, by reason of conduct alleged in the complaint to have
constituted unfair labor practices except insofar as such
conduct hereinabove has been found to have been
unlawful.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, and pursuant
to Section 10(c) of the Act, I hereby recommend that
G.P.D., Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 337,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind., as the
exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All warehousemen and driver-salesmen employed at
the Ferndale, Michigan, place of business of G.P.D.,
Inc., excluding office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
(b) Discouraging membership in the aforesaid Union, or
any other labor organization, by discriminating in regard to
the hire, tenure of employment, or any other term or
condition of employment of any of its employees.
(c) Threatening its employees with discharge or other
reprisals if they should join, assist, or support the above-
named Union or any other labor organization.
32 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
841
(d) Expressly or impliedly threatening its employees
with a reduction in or loss of earnings or that their
opportunities for employment with other employers will be
reduced, if they join, assist, or support the above-named
Union or any other labor organization.
(e) In any other manner, interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
the above-named Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all the
employees in the above-described appropriate unit, and
embody in a signed agreement any understanding
reached.
(b) Offer to Michael Zamm, Leonard W. Andrus, and
George Morris immediate and full reinstatement to their
former or to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and make them whole for any loss of earnings they may
have suffered by reason of the unlawful discrimination
against them in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Make Joseph Paladino whole for any loss of earnings
he may have suffered between September 8, 1965, and
December 1, 1965, by reason of Respondent's
discrimination against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(e) Notify Michael Zamm, Leonard W. Andrus, and
George Morris, if presently serving in the Armed Forces of
the United States of their respective right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(f) Post at its place of business in Ferndale, Michigan,
copies of the attached notice marked "Appendix."32
Copies of said notice, to be furnished by the Regional
Director for Region 7, after being duly signed by an
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 7, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.33
33 In the event that this Recommended Order is 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 Respondent has taken to comply herewith."
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, upon request , bargain collectively with
Local 337, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Ind., as the exclusive representative of our
warehousemen and driver-salesmen and, if an
understanding is reached, we will embody it in a
signed agreement.
WE WILL NOT discourage membership in, or
activities on behalf of, Local 337, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Ind., or any other
labor organization, by discharging or otherwise
discriminating against any of our employees in regard
to their hire, tenure of their employment, or any term
or condition of their employment.
WE WILL NOT threaten any of our employees with
discharge or other reprisals if they join, assist, or
support the above-named Union or any other labor
organization.
WE WILL NOT threaten any of our employees with a
reduction in, or loss of, earnings or with any loss of
opportunities to find employment with any other
employer or company if they join, assist , or support
the above-named Union, or any other labor
organization.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form labor
organizations , to join or assist Local 337, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Ind., or any other
labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer Michael Zamm, Leonard W. Andrus,
and George Morris full reinstatement to their former
or substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges, and we will make them whole for any loss
of earnings they may have suffered by reason of our
unlawful discrimination against them.
WE WILL make whole Joseph Paladino for any loss
of earnings he may have suffered by reason of our
unlawful discrimination against him.
G.P.D., INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Michael Zamm, Leonard W.
Andrus, and George Morris, if presently serving in the
Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.
San Angelo Packing Company and United
Packinghouse , Food and Allied Workers,
AFL-CIO. Case 16-CA-2608.
April 3, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On December 6, 1966, Trial Examiner John P. von
Rohr issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions
and brief, and the entire record in the case, and
hereby adopts the Trial Examiner's findings,
conclusions, and recommendations, except as herein
modified.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
' We will include in the Board's Order appropriate
reinstatement and backpay provisions which the Trial Examiner
inadvertently omitted from his Recommended Order
In the second paragraph of section III, E of his Decision, the
Trial Examiner inadvertently refers to Stewart's testimony
concerning this conversation with Stewart " when it is
apparent from the context that he is referring to Millsap's
testimony
163 NLRB No. 118