H. Rohtstein & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1958

120 N.L.R.B. 1556 (N.L.R.B. 1958)

1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. Rohtstein & Co., Inc. and Local 25, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen , and Helpers of
America. Case No. 1-CA-2286. June 20, 1958
DECISION AND ORDER
On January 22,1958, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
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 [Chairman Leedom and Members Bean and Fanning].
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 Inter-
mediate Report and the entire record in this case, including the ex-
ceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner'
ORDER
Upon the entire record and pursuant to Section 10 (c) of the Na-
tional Labor Relations Act, as amended, the National Labor Relations
Board hereby orders that Respondent H. Rohtstein & Co., Inc., Boston,
'Massachusetts, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 25, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America, as the exclusive representative of all its employees in the
appropriate unit as described in the Intermediate Report.
(b) Discouraging membership and activity in behalf of the above-
named Union, or any other labor organization of its employees, by
discriminating in regard to the hire and tenure of their employment
or any term or condition of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
i We hereby correct the following inadvertent errors in the Intermediate Report, which
do 'not' affect the Trial Examiner's findings or conclusions, or our agreement therewith'
he name of the Respondent is H. Rohtstein & Co., Inc., and not H Rothstein & Co., Inc. ;
William McCarthy is president and business agent of the Charging Union and not of the
Respondent , as stated in the second paragraph of section III A ( 1) of the Intermediate
Report ; the strike commenced on April 26 and not September 26, as stated in the first
paragraph of the conclusions.
2In adopting the Trial Examiner's finding that the Respondent violated Section 8 (a)
( 5), we do not rely on the Respondent 's conduct in filing the representation petition.
120 NLRB No. 200.
H. ROHTSTEIN & CO., INC. 1557
form labor organizations, to join or assist the above-named Union, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, 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.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively concerning wages, hours,
and other conditions of employment with the above-named Union, as
the exclusive representative of all employees in the aforementioned
appropriate unit and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Make whole Henry Silva and Manuel Martin for any loss of
pay they may have suffered by reason of Respondent's discrimination
against them, by payment to each of them of a sum of money equal to
that which he normally would have earned from August 13 to Sep-
tember 16, 1957, the date of his reinstatement, less his net earnings
during said period.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of the recommended
order.
(d) Post at its Charlestown plant in Boston, Massachusetts, copies
of the notice attached to the Intermediate Report marked "Appendix
A." 9 Copies of said notice, to be furnished by the Regional Director
for the First Region, shall, after being duly signed by the Respondent
or its representative, be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty (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.
(e) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
8 This notice is amended by substituting for the words , "The Recommendations of a
Trial Examiner" the words "A Decision and Order." In the event that this Order is en-
forced by a decree of a United States Court of Appeals, there shall be substituted for the
words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United
States Court of Appeals , Enforcing an Order."
-1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Local 25, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,' herein called the Union or
Local 25, the General Counsel of the National Labor Relations Board, by the
Regional Director for the First Region (Boston, Massachusetts), issued a complaint,
`dated July 23, 1957, against H. Rothstein & Co., Inc., herein called the Respondent.
With respect to the unfair labor practices, the complaint, as amended, alleges in
'substance, that: (1) All truckdrivers and helpers employed at Respondent's Charles-
town plant in Boston, Massachusetts, constitute an appropriate unit; (2) the Union
was designated as collective-bargaining representative by a majority of the em-
ployees in said unit on or about April 12, 1957; (3) on or about April 16 or 17
the Union requested Respondent to bargain with it as the exclusive representative
of all the employees in said unit; (4)' on or about April 17, Respondent recognized
the Union as such exclusive bargaining representative, bargained with the Union
'for the employees in said unit, and granted wage increases to said employees; (5)
on or about April 22, 1957, and at all times thereafter, Respondent refused to
bargain with the Union as the exclusive bargaining representative of the employees
in said appropriate unit; (6) on or about April 25, certain of Respondent's em-
ployees in said unit went on strike because of the Respondent's refusal to bargain;
(7) Respondent refused to reinstate two named strikers from the date of their
application on August 9 to September 16, 1957, because of their participation in
the strike; and (8) by the foregoing conduct, the Respondent engaged 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, 61 Star. 136,
herein called the Act. -
In its duly filed answer, as amended, the Respondent admits that at all times
since about April 22, 1957, it refused to bargain with the Union as the exclusive
bargaining agent of the employees in the alleged appropriate unit, that certain
employees in the unit went on strike about April 25, 1957, and applied for rein
statement about August 9, 1957; it denies however the commission of any unfair
labor practices. Further answering, the Respondent affirmatively avers that: (1)
the Union never represented a majority of the employees in the alleged appropriate
unit b --use employee signatures to the union authorization cards were obtained
by fraud jr coercion or were forged; (2)- the Union at no time claimed to be the
exclusive bargaining representative of the employees in the alleged appropriate
unit nor demanded recognition as such representative; (3) the only wage increases
it granted on or about April 17, 1957, at the request of the Union, were to em-
ployees picketing Respondent's premises and constituting a minority of the em-
ployees in the alleged appropriate unit; (4) at the same time it granted wage
increases to the remaining employees in the alleged appropriate unit solely for the
,purpose of maintaining uniform conditions of employment and not at the request
of the Union; and (5) it had no duty to reinstate the striking employees because
the strike was not caused by any unfair labor practice and the employees had been
replaced.
Pursuant to due notice, a hearing was held in Boston , Massachusetts, on October
-30 and 31, 1957. All parties were represented by counsel at the hearing, and
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce relevant evidence, to present oral argument at the close of the hearing, and
thereafter to file briefs as well as proposed findings of fact and conclusions of law.
Subsequent to the hearing, the Respondent and the Union filed briefs, which I have
fully considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 3
Respondent is, and has been at all times material hereto, a Massachusetts corpo-
ration, having its principal office and place of business in the city of Boston, district
. 1 The Board having been notified by the AFL-CIO that It deems the Teamsters' certifi-
cate of affiliation revoked by convention action, the Identification of this Union is hereby
amended '
2 The findings in this section are based on the allegations in the complaint and admis-
sions in Respondent 's answer.
H. ROHTSTEIN & CO., INC. 1559
of Charlestown , Commonwealth of Massachusetts , where it is engaged in the sale
and distribution of flour and bakers' supplies as a wholesaler . In the course of its
.business , Respondent has caused large quantities of flour and bakers' supplies,
annually valued in excess of $1,000,000, to be purchased and transported from and
through various States of the United States other than the Commonwealth of
Massachusetts.
Upon the basis of the above admitted facts, I find, as the Respondent admits, that
.the. Respondent is, and at all times relevant hereto was, engaged in commerce
within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find, that Local 25, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is
a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit and the Union 's exclusive representative status therein
The complaint alleges, the parties stipulated -at the hearing, and I find , that all
truckdrivers and helpers at Respondent's Charlestown plant, excluding office clerical
employees and 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.
Sam Jones, one of Respondent's truckdrivers, contacted William McCarthy, Re-
spondent's president and business agent, about getting some application cards for
Respondent's employees to sign . As a result , an appointment was made for the
employees to come to the union hall on Thursday, April 11. Pursuant to this
arrangement, seven of Respondent's truckdrivers and helpers appeared at the
union hall after working hours on April 11. After McCarthy had explained the
advantages and benefits of the Union, membership application and authorization
blanks were passed out. These consisted of two sheets, readily detached along a
perforated line. The first sheet is the application for union membership and the
designation of the Union as exclusive collective -bargaining representative , with lines
at the bottom for the signature , address, and date of the employee ; the second
sheet contains questions relating to the employee 's personal and biographical history,
with lines at the bottom for his signature and the date. Both sheets were signed
at the union hall by all seven employees and returned to McCarthy. On Friday,
April 12, Jones also obtained the signature of Bowman, the eighth employee in
the stipulated unit , to a union membership application and authorization blank.
This was received by McCarthy on Monday, April 15.
The parties stipulated that there were no more than 15 employees in the ap-
propriate unit from the week ending April 13, 1957, up to and including the week
ending April 26, 1957. Accordingly, as of April 15, 1957, McCarthy had in his
possession union membership and authorization blanks from a majority of the
employees in the appropriate unit.
The Respondent attacks the authorization blanks of three employees, Bowman,
Silva, and Jordan , as not representing valid or uncoerced designations. I find no
merit in the Respondent 's contentions for the following reasons:
(a) As to Bowman : Bowman testified that in signing his application and authori-
zation blank on Friday, April 12, he relied on Jones' representation that a majority
had already signed. He further testified that on Wednesday morning, April 17, he
learned that a majority of the employees had not been out on strike the preceding
2 days, a fact which led him to believe that Jones had misrepresented that a majority
had signed . Nevertheless , he made no effort thereafter to revoke his designation.
Assuming that Jones made the statement attributed to him by Bowman, testimony
which was denied by Jones, the Board has held that such conduct was not of such
a character as to invalidate his designation? ". . . this sort of claim of success
on the part of union organizers , though untrue or exaggerated , is certainly not
fraud affecting the employees' grant of bargaining authority. On the contrary,
it is clearly quite common and harmless `sales talk' which is ordinarily not taken
$E. H. Sargent and Co., 99 NLRB 1318, 322-323; Top Mode Manufacturing Co., 97
NLRB 1273, 1296 , enfd. 203 F . 2d 482 (C. A. 2).
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seriously by the employees to whom it is made, and, in any event, is subject to ready
check by the employees as to its truth." (97 NLRB at 1296.)
(b) As to Silva: Silva's application and authorization blank is signed but undated.
This is the first sheet. The second sheet, containing his personal and biographical
-data, is signed and dated March 1, 1957. Silva testified that he signed both sheets
on April 11, at the union hall; that he had forgotten to date the first sheet; and
that, in dating the second sheet, he had by mistake copied down the same date which
,he had given in his answer to the question as to his original date of employment,
which was March 1, 1957. He further testified that after filling out and signing
both sheets, someone in the union hall collected all the blanks. At least 3 other
witnesses credibly testified that Silva was 1 of the 7 employees who was present
.at the union hall on April 11, 1957.
Under all the circumstances, including the demeanor of the witness while testify-
ing, I credit Silva's testimony and find that he signed the union application and
authorization blank on April 11, 1957.4
(c) As to Jordan: Jordan identified his signature on the second sheet of the
authorization blank. He testified that he signed both sheets at the union hall
on April 11, but that the signature which now appears on the first sheet is not
in his handwriting; that Johnny Boyd, an employee who was helping him fill out
the answers to the questions on the second sheet, had stated that he could not read
the signature on the first sheet; and that Boyd must have erased it and written it
over for him. He admitted that it was all right with him for Johnny Boyd to
erase his signature and write it over. Boyd admitted helping Jordan fill out the
top part of the second sheet, and that he personally saw Jordan sign each sheet.
Boyd further testified that he told Jordan he could not read his signature on the
first sheet, that Jordan said to let it go, and that Boyd did not erase it. Regardless
of who erased the signature and wrote it over, it is obvious, and I find, that Jordan
had' no objection and did in fact sign and intend his signature to appear on both
sheets .5
Jordan further testified on cross-examination that while he was sitting in the
union hall he thought that if he did not sign up like the rest of the boys, he might
.get "beaten up." He admitted that no one told him that but that it was merely
his thought or feeling. He further admitted that he went to the union hall with the
boys because he wanted to go; that when the application .blanks were passed out,
they were told to sign if they wanted to; that the door was open and he was not
afraid to walk out if he had wanted to; and that he signed because he wanted to
sign up for the Union. The Board has repeatedly held that "testimony of a _signer
as to his subjective state of mind at the time of signing, cannot operate to overcome
the effect of his overt action in having signed the application card." 6 Respondent's
contention that Jordan signed the application blank under duress is without record
support. I find that Jordan's application and authorization blank is a valid
designation.
I find that at all times since April 15, 1957, the Union has been and is the exclu-
sive representative of the employees in the aforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section 9 (a) of the Act.
2. Sequence of events
The material events relating to the refusal-to-bargain issue occurred during the
period from April 16 to 26, 1957.
The officers of the Respondent are Max Rothstein (referred to in the record as
"Mickey"), treasurer; his brother, Hy Rothstein, clerk; and their brother-in-law,
Morris Kramer, vice president. The president of the Respondent is the father of the
Rothstein brothers, who presumably does not play an active role in the business and
was sick in the hospital during the times material herein. Hy Rothstein and Morris
Kramer devote most of their time on the outside as salesmen for Respondent. Mrs.
Anna Kramer, the sister of the Rothstein brothers, is office manager. The Rothstein
brothers and Kramer are on the board of directors and together make the major
decisions for Respondent. Except for supervisors and office employees, Respondent
employs only truckdrivers and helpers. They work in and out of the Respondent's
warehouse under the direct supervision of Max Rothstein who is in complete charge
of the warehouse with the authority to hire and fire.
1. Taitei and Son, a partnership, 119 NLRB 910 (footnote 8).
6I Taitel and Son, supra.
E. H. Sargent and Co., supra, and cases cited therein.
H. ROHTSTEIN & CO., INC. 1 561
(a) The strike and picketing at Respondent's warehouse on Tuesday, April 16
On Friday and Saturday, April 12 and 13, the Respondent temporarily laid off
five drivers for the Jewish Passover week when the bakeries would be closed. All
five had signed union application and authorization blanks at the union hall the,
preceding Thursday. Jones and Martin, two of the laid-off employees, informed
McCarthy about the layoffs the following Monday and complained that seniority
had not been followed.
On Monday evening another driver, who had signed a union authorization blank,
telephoned to Hy Rothstein and informed him that the men would form a picket line
at the warehouse the next morning. On Tuesday morning, April 16, a picket line
was formed in front of Respondent's warehouse and remained there throughout the
day. Seven of the employees, including the five who were laid off, all of whom had
signed union application and authorization blanks, appeared on the picket line at
some time or other during the day.
Both Hy and Max Rothstein admitted that they saw the picket line on Tuesday but
made no inquiries as to the reasons for it. Max Rothstein also admitted that the
total number of pickets he saw at any one time was seven, and that some pickets
carried signs with the legend "This employer refuses to bargain with Local 25." He
further admitted that only seven employees in the appropriate unit were at work that
day and that another employee, Bowman, was neither at work nor on the picket line.
Bowman was the eighth employee who had signed a union application and authoriza-
tion blank.
(b) Meeting between McCarthy and Max Rothstein Tuesday night, April 16
About 9:30 Tuesday night, McCarthy visited Respondent's premises and met Max
Rothstein and his sister who were driving by after visiting their father in the hospital.
McCarthy knew the identity of Max Rothstein because the men had pointed him out
earlier that day. McCarthy introduced himself as a representative of Local 25 of
the Teamsters, and asked why they couldn't get together and straighten this thing out.
Rothstein replied that he did not know what this was all about. McCarthy ex-
plained that he would like to get the men back to work and sit down and talk this
thing over. There was some talk about wages, with McCarthy claiming that the
salaries the men were receiving were too small. McCarthy asked why some of the
men had been laid off. When Rothstein explained about the Jewish Passover,
McCarthy claimed that the layoffs were out of seniority. Rothstein stated that four
of the men were new and that the fifth, Johnny Boyd, had lost his driver's license
and could only work as a helper. Rothstein also stated that "he was very surprised
at John Boyd for being out on the picket line." Rothstein admitted that his sister
was very much upset and excited and did a considerable amount of talking. The
Conversation ended with Rothstein promising to talk to his brother and brother-in-law
that evening and requesting McCarthy to telephone him about 11:30 that night.
When McCarthy called that night, Rothstein stated that he had talked to his brother-
in-law but had been unable to get in touch with his brother and suggested that
McCarthy come to Respondent's office the next morning.
The facts set forth in the preceding paragraph are not in dispute and were admitted
by Max Rothstein. The testimony is in direct conflict on the issue of whether during
the conversation in front of Respondent's premises McCarthy claimed to represent
a majority of the drivers and helpers and requested negotiation of a contract. While
I do not credit all of McCarthy's testimony in this respect and believe that he exag-
gerated his position on cross-examination, I do find, under all the circumstances, that
McCarthy indicated, as he testified on direct examination , that the Union represented
a majority of Respondent's "people" and that he wanted to negotiate a settlement
of the strike and conditions of employment. As Respondent employs only truck-
drivers and helpers, exclusive of office help, and as these were the only categories
out on strike and picketing with placards bearing the legend that Respondent "refuses
to bargain with Local 25," I find, under all the circumstances, that the reference to
Respondent's "people" was an obvious designation of Respondent's drivers and
helpers.
(c) Meeting between McCarthy and Respondent's officers on Wednesday morning,
April 17
McCarthy appeared at Respondent's office about 8 o'clock on Wednesday morn-
ing. Present for the Respondent were Max Rothstein, his brother, Hy Rothstein,
and his brother-in-law, Morris Kramer. Rothstein's sister and Coughlin, a union
organizer, were also present at intervals . Six employees were still on the picket line
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while the meeting was in progress . Only 7 employees were at work that morning,
with 2 employees neither at work nor on the picket line.
McCarthy, Max Rothstein, and Hy Rothstein'testified as to what occurred at this
meeting. While McCarthy 's testimony was disputed on some issues, much of it was
corroborated by the ' Rothsteins . All three impressed me as tending to exaggerate'
in certain respects so as to favor their respective positions . Accordingly , I do not
credit the entire testimony of any one of them . Based upon my observation of the
witnesses , a careful and detailed analysis of their testimony, the admissions and
contradictions of the Rothsteins, and all the circumstances disclosed by the record,
I find that the following occurred at this meeting:
At McCarthy's request, Coughlin went out to his car and brought back a small
printed booklet, entitled "New England Freight Agreement" (Respondent's Exhibit
No. 2). He handed this to Max with the statement that that was the agreement the
Union wanted to negotiate. Max opened the booklet and looked at the various,
provisions as McCarthy explained them. As Hy Rothstein admitted, his brother and
McCarthy "had quite a discussion about the little book . . . and its contents."
Article I, entitled, "Scope of Agreement," lists the categories of employees covered
by the agreement. Drivers and helpers are the only categories in that list employed
by the Respondent. Article II, the recognition clause, provides that "the Employer
recognizes and acknowledges that the Local Union is the exclusive representative of
all the employees in the classifications of work covered by this Agreement for the
purpose of collective bargaining" as provided in the Act. The Rothsteins raised
no questions about these provisions and gave no indication that they did not under-
stand;them. McCarthy also discussed the provisions relating to paid vacations and
holidays. He explained that there had been a change in the manner of figuring the
vacations which was not reflected in the printed contract under discussion. He also
discussed the health and welfare plan, pointing out that it required a contribution
of 7 cents per hour for each employee, and that Respondent would receive forms
from the bank for that purpose.
During this discussion, it became apparent that the Rothsteins were primarily
interested in the wage scale. When McCarthy pointed out that the union wage scale
called for the payment of $2.17 for drivers and $2.07 for helpers, Hy Rothstein stated
that in view of the unorganized competition, Respondent could not pay that rate and
remain in business. McCarthy replied that the Union did not want to put anybody
out of business and that he realized that an increase from the rate then in effect
(which was $1 for helpers and $1.10 to $1.35 for drivers) to the union scale would
be too great a jump to make at one time. McCarthy first suggested a 50-cent straight
increase for all helpers and drivers . This was unacceptable to the Rothsteins because
they preferred to have one uniform rate for all drivers and one for all helpers.
McCarthy then suggested an increase to $1.65 for drivers and $1.55 for helpers, and
that he would go out and organize Respondent 's competition and then return in 60•
days to get the additional increase for the men to bring them up to the union scale.
The Rothsteins agreed to this increase and that Respondent would put it into effect
as of that morning.
Before McCarthy left, there was some discussion about the appointment of a union
steward. McCarthy had mentioned Boyd, who had been in Respondent's employ
about 7 years off and on , as a possibility for union steward . Max Rothstein there-
upon stated that there were people in the place with more seniority than Boyd,
implying that such a person deserved to be appointed steward. The only employee
whom Max could think of as having had more seniority than Boyd was Charles
Adler, who had remained at work during the strike.
McCarthy did not ask the Rothsteins to sign a contract that day. He stated that
he would be back in a few days to see if they had any questions about the contract.
He then left and told the men on the picket line about what had transpired and
about the wage increase agreed upon for all drivers and helpers employed by Re-
spondent . He appointed 'Jones as the steward to whom any problems about their
working conditions should be referred, and told them to go back to work and to
give the company a good day's work. By 10 a. m. the strikers were all back to work.,
The Respondent admittedly increased the wages of all its drivers and helpers,
including those who did not go out on strike, to $1.65 and $1 . 55 an hour, respectively,
effective as of Wednesday morning, April 17.
(d) Friday, April 19 -
On Friday, April 19, McCarthy brought Max Rothstein a large printed booklet,
entitled "New England Freight Agreement ." (General Counsel 's Exhibit No.-11.)
Except for its size and a place on the last page for the signature of representatives for
the Employer and the Union , this was identical in all respects with the small printed
H. ROHTSTEIN & CO., INC. 1563
booklet which McCarthy had discussed with Respondent in the meeting herein-.
above described . McCarthy pointed out that there was a , mimeographed insert on
the vacation provision, which described the new way of figuring the paid vacations.
At that time McCarthy also stated that he had appointed Jones as steward.
(e) Respondent files RM petition, April 22
After consulting an attorney, the Respondent on April 22 filed with the Board's
Regional office a representation petition for an election. The petition stated that
all truckdrivers and helpers employed at Respondent's Charlestown premises consti
-tuted an appropriateunit, that 15 were employed in this unit , and that on April 18,
the Union had made a claim upon the Respondent for recognition as the exclusive
representative of the employees in said unit.
The parties stipulated that this petition was dismissed by the Board's Regional
office on August 9, 1957.
(f) McCarthy talks to Rothstein and Respondent's counsel on April 25
When McCarthy learned, through a letter addressed to the Union by the Board's
Regional office, that Respondent had filed a representation petition for an election,
he visited Respondent's plant and talked to Max Rothstein on Thursday, April 25.
McCarthy asked Rothstein if he had any questions about their previous discussions
and if he would sign the contract. McCarthy credibly testified that he was referring
to the contract which they had negotiated on April 17 with the wage rates of $1.65
for drivers and $1.55 for helpers. Rothstein replied that he had no signed contract
to give him. McCarthy stated that he understood Respondent and had filed
a petition for an election, and indicated that Respondent should not have taken
such action. Rothstein told McCarthy to contact Respondent's attorney if he had
any questions, and gave him the name of the attorney.
McCarthy went back to his office and telephoned to the Respondent's counsel.
McCarthy asked "what the story was," and stated "we have got the people, he has
agreed to an agreement and we thought we had it wound up." The attorney asked
McCarthy if he would agree to an election. McCarthy replied that there was no
need for an election, that "we have negotiated an agreement and we have the people
and he has agreed to it."
(g) The strike and picketing resumes Friday morning, April 26
On Thursday evening, April 25, McCarthy informed the employees that Respond-
ent was "reneging" on everything they had agreed to , that they were now questioning
the Union's representation, and that "as far as the Company was concerned, it looked
like all the bets were off."
The Union called a strike again the next morning, April 26, and a picket line was
formed at the Respondent's premises. Two of Respondent's employees, Martin and
Silva, participated in the picketing; a third employee, Jones, told Rothstein that he
was going home and appeared on the picket line on subsequent occasions ; the remain-
ing 12 employees in the appropriate unit remained at work. The strike and picketing
continued until sometime in September.
3. Respondent's contentions and concluding findings
The complaint alleges that on April 16 and 17, 1957, the Union requested Re-
spondent to bargain collectively with respect to wages and other conditions of employ-
ment with the Union as the exclusive representative of all the employees in the
appropriate unit; that on April 17 the Respondent recognized and bargained with the
Union as such exclusive representative and negotiated a wage increase for such
employees; and that on and after April 22 Respondent refused to bargain collec-
tively with the Union as such exclusive representative.
Counsel for Respondent concedes in his brief that Respondent refused to recognize
and bargain with the Union as the exclusive representative of the employees in the
appropriate unit on and after April 22, 1957, but contends that Respondent's conduct
in this respect did not constitute an unlawful refusal to bargain within the meaning
of Section 8 (a) (5) of the Act. In support of his position , counsel for Respondent
contends in his brief that neither on April 16 nor April 17 did the Union claim to
represent a majority of the employees in the appropriate unit ; that on those dates
the Union neither demanded nor received recognition as such exclusive bargaining
representatives; that the discussions on April 16 and 17 and any agreement reached
with respect to a wage increase on April 17 were confined to the return of the
employees on the picket line and to their rates of pay ; that the wage increase granted
to the remaining employees was granted solely on Respondent's own motion to
1 564, DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
maintain uniform . terms and conditions of employment for all employees in the
unit; that "the first time the Respondent had been presented with a clear-cut repre-
sentation by the Union of unitwide majority or a clear-cut demand for unitwide
recognition" was on April 19 when McCarthy gave Max Rothstein a copy of the large
booklet, entitled, "New England Freight Agreement" (General Counsel's Exhibit
No. 11); and that Respondent's refusal to honor this demand and its filing of the
RM petition was based on a good-faith doubt as to the Union's majority representation
and hence -was not unlawful. I find no merit in Respondent's contentions.
It is well settled that no special formula or form of words need be employed to
constitute a valid request to bargain with the Union as exclusive majority repre-
sentative in an appropriate unit? The request need not be "in haec verba, so long as
there was one by clear implication." 8 This requirement was fully met in this case.
As previously found, on Tuesday night, April 16, McCarthy indicated to Max
Rothstein that the Union represented a majority of Respondent's drivers and helpers
and expressed a desire to negotiate. At the meeting with Respondent's officers on
Wednesday morning, April 17, McCarthy presented the small printed booklet for
perusal and discussion of the kind of agreement the Union wished to negotiate.
Max Rothstein looked at the provisions which, among other things, expressly re-
quired Respondent to recognize the Union as the exclusive collective-bargaining
agent for the units of employees to be covered by the contract, in this case drivers
and helpers. The Board has held, under similar circumstances, that this "consti-
tuted in fact and in law a bid for recognition by the [Union] and an invitation to
bargain collectively." Scott & Scott, 113 NLRB at p. 931.9
There was a discussion of the provisions of the proposed contract and a wage
increase for the drivers and helpers was negotiated. I do not credit the testimony
of the Rothsteins that they believed that the discussion and the wage increase was
to apply only to the employees on the picket line and their further belief that the
small printed booklet was a book of union rules and regulations. As previously
found, McCarthy specifically stated when he presented the booklet that it was the
contract they wished to negotiate. Max Rothstein admitted that he read the title
on the cover which stated "New England Freight Agreement," that he understood
that to mean something that was to be arranged, and he looked at the provisions
pertaining to paid holidays and vacations which McCarthy explained. The record
further demonstrates that the Rothsteins understood the wage increase they negotiated
applied to all the drivers and helpers. Thus, the same wage increase was put into
effect for all the drivers and helpers as of April 17. I do not credit Hy Rothstein's
testimony that immediately after the conference with McCarthy, Respondent on
its own initiative decided to give the same increase to the remaining employees in
order to make the wages of all the employees in the unit uniform. The Respondent
never told the remaining employees that they were getting a wage increase, conduct
which is more consistent with the view that the negotiations did, and were intended
to, apply to all drivers and helpers; the employees who remained at work first learned
about the increase when they received their pay envelopes. That Hy Rothstein had
all drivers and helpers in mind during his discussion with McCarthy is further borne
out by his testimony that while the discussion was in progress he estimated in his
mind that an increase to the union scale for all the drivers and helpers would increase
Respondent's total weekly payroll by about $1,000, and that an increase to a $1.65
and $1.55 for all drivers and helpers, respectively, would increase the total weekly
payroll by about $500. Further proof of the fact that the Rothsteins understood
the negotiations to apply to all the drivers and helpers is Max Rothstein's suggestion
that Charles Adler, one of the employees who remained at work, deserved to be
the union steward rather than John Boyd, one of the strikers mentioned by McCarthy.
Upon the basis of the entire record, I find that on April 17, 1957, the Respondent
intended to, and did, discuss with the Union, as the exclusive representative of a
See, e. g., Scott & Scott, 113 NLRB 911, 930 and cases cited therein.
e Joy Silk Mills, Inc. v. N. L. R. B., 185 F, 2d 732, 741 (C. A., D. C.), cert. denied 341
U. S. 914.
9 See also, Sa ;. Zall Milling Co., 94 NLRB 1749, 1750-1751. Counsel for Respond-
ent concedes that McCarthy 's presentation of the large printed booklet to Max Roth-
stein on April 19 constituted a valid request for recognition as the exclusive representa-
tive in the appropriate unit. He contends however that no such finding may be made
with respect to the small printed booklet because there was no space at the end for the
signatures of the parties The contents of the booklets were identical in all other re-
spects. I find that the absence of a space for signatures does not constitute a valid basis
for finding that the presentation of the small booklet did not have the same effect as the
presentation of the large one.
H. ROHTSTEIN & CO., INC. 1565
unit of drivers and helpers, terms and conditions of employment and negotiated
a wage increase for all the employees in the unit.
Although no more than 7 employees were on the picket line at any one time,
Max Rothstein admitted that no more than 7 of the 15 employees in the unit were
at work during the strike. Also, admittedly at no time did any representative of
Respondent question the Union's majority claim or representative status. Nothing
occurred during the period between April 17, when Respondent recognized and
negotiated with the Union as exclusive representative of the unit of drivers and
helpers, and April 22 when the RM petition was filed, which might lead Respondent
in good faith to doubt the Union's majority status. If the problem of the Union's
majority had been seriously in their minds, a query of McCarthy would have been
indicated.'() However, not even at the hearing in this proceeding did the Rothsteins
testify that they at any time entertained any doubt as to the Union's majority repre-
sentation in the unit of drivers and helpers. Indeed, the testimony of Hy Rothstein
is quite revealing as to the real reason for the Respondent's sudden withdrawal of
its prior recognitions of the Union as exclusive bargaining representative of the
employees in the appropriate unit and its refusal to bargain with it as such repre-
sentative. Thus, he testified that a few days after the April 17 meeting with
McCarthy, "we decided to hire a lawyer because we felt that we had not done the
proper thing . we decided we had not done the right thing . that we needed
someone to protect our interests . that we should discuss the matter legally,
further, where we should know where we were at and where we are going and
how we go about things . . . we would know just what approach to use and how
to go about things in the event that McCarthy did come back . to talk matters
over further with us." He further testified that they consulted an attorney who
advised them "what we were to say to him [McCarthy] or what we were to do."
The RM petition was filed after consulation with an attorney. Upon the basis of
the entire record, I am convinced and find that the Respondent's representatives
never entertained any good-faith doubt as to the Union's majority representation
and that Respondent's conduct on and after April 22 was a stratagem employed
in the hope that the employees, having already received a wage increase, would
reject the Union in an election.
I find that Respondent's conduct in filing the representation petition on April
22, 1957, and thereafter refusing to recognize and bargain with the Union as the
exclusive representative of the employees in the appropriate unit, constituted a refusal
to bargain in violation of Section 8 (a) (5) of the Act.11. I further find that by
such conduct the Respondent has also interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
violating Section 8 ( a) (1).12
B. Discrimination in hire and tenure of employment
As previously found, on and after April 22, 1957, the Respondent unlawfully
refused to recognize and deal with the Union as the exclusive representative of the
Respondent's drivers and helpers in the appropriate unit. When McCarthy informed
the employees of Respondent's conduct in this respect, a strike was called and a
picket line was formed in front of Respondent's premises on Friday morning, April
26. Two of Respondent's drivers, Henry Silva and Manuel Martin, joined in the
strike and participated in the picketing. The strike and picketing continued until
sometime in September.
By a letter on the Union's stationery, dated August 9, 1957, and addressed to
Respondent, with a copy to Respondent's counsel, McCarthy stated that he was
writing "on behalf of employees Samuel Jones, Manuel Martin, and Henry P. Silva
and offering their return to work." The letter closed with a request that the
Respondent "please advise immediately when you wish them to report for work."
On August 13 Respondent's counsel advised the Union's attorney that the three
employees would be put-to work immediately if the Union would agree to discon-
tinue picketing the Respondent's premises. The Union's attorney replied that the
Union's offer of reinstatement was clear and unconditional, that Respondent's
counsel was now attaching a condition which he would have to check, and that
-Cf., N. L. R. B. v. Clearfield Cheese Co., Inc., 213 E. 2d 70, 74 (C. A. 3).
u I do not regard Respondent's refusal to sign the agreement on April 25 as an addi-
tional violation because the record in my opinion does not warrant
a finding that the
parties had arrived at a firm understanding on any terms and conditions of employment
other than wages.
12 Tennessee Coach Company , 115 NLRB 677, 679.
,1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would let him know about it . On August 15, the Union 's attorney informed
Respondent 's counsel that the Union had agreed to discontinue the picketing when
they would be reinstated , and inquired as to when the men should go back to work.
Respondent's counsel replied that he would let him know about that , and also
stated that Jones would not be taken back because he had not gone out on strike
but had voluntarily quit his employment . The Union 's counsel replied that with
respect to Jones he would have to check as to whether that was acceptable to the
Union and Jones . A few days later the Union 's attorney informed Respondent's
counsel that the Union was agreeable to dropping Jones. Thereafter , the Union's
attorney made several telephone calls to the Respondent 's attorney to find out
when Silva and Martin would be taken back to work and was informed each time
that Respondent's counsel had been unable to get in touch with Mr . Rothstein.
On September 4, the Union 's attorney was advised by Respondent 's counsel that
he had not been able to get Mr. Rothstein to take the men back.ls
All parties entered into the following stipulation with respect to the subsequent
events: On Friday , September 6, Respondent 's counsel advised the Union 's attorney
by telephone that "Respondent was offering reinstatement to employees Martin and
Silva, provided that Martin and Silva first presented themselves at the office of counsel
for Respondent for the purpose of a conference ." The Union's attorney stated that
be would check to see if that were acceptable . On Wednesday , September 11,
Respondent's attorney repeated the same offer by telephone to the Union 's attorney
and the latter again stated he would check with the Union . Pursuant to a prior
arrangement by telephone , a conference was held on Friday afternoon , September 13,
between the Respondent 's attorney , the Union's attorney , employees Martin and
Silva, and Union Representative Coughlin . At this conference it was "agreed on
behalf of the Respondent that employees Martin and Silva would return to work
for Respondent on.Monday , September 16." In accordance with this agreement,
Martin and Silva did return to work for Respondent on September 16.
Conclusions
It is clear and I find that the strike which-commenced on September 26 was caused
by Respondent's unfair labor practices in refusing to bargain with the Union and
hence was an unfair labor practice strike. As Silva and Martin were unfair labor
practice strikers, they were entitled to reinstatement upon their unconditional appli-
cation, dated August 9.14 The Respondent , however, did not make an unconditional
offer of reinstatement, such as would toll its liability for back pay. Thus its re-
instatement offer was improperly conditioned first, on the cessation of the Union's
picketing, then, on the - dropping of Jones' request for reinstatement , and finally
on the appearance of Martin and Silva at a conference in the office of .Respondent's
counsel.15
I find that by failing to reinstate Silva and Martin , upon their -unconditional appli-
cation for reinstatement , until September 16, Respondent discriminated with respect
to their hire and tenure of employment because of their union and concerted activity,
thereby discouraging membership in and activity on behalf of the Union in violation
of Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities , set forth in section III, above , occurring in connection
with Respondent 's operations described 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 engaged in the unfair labor practices set forth
above, I will recommend that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondent refused to bargain with the Union on and after
April 22, 1957, in violation of Section 8'-(a) (5) and (1) of the Act, I will recom-
13 The facts set X,orth in,•this paragraph ave not in dispute
"Even if the strike had not been caused by Respondent's unfair labor practice, Silva
.and Martin were entitled to reinstatement= as economic strikers because their positions
"had not been filled during the strike . Thus Max Rothstein testified that throughout the
strike, 12 truckdrivers and helpers crossed the picket line- and carried on their duties
as usual.
's Cf, Denver Fire Reporter and Protective company, - Ino., 119 'NLRB-1187.
COLGATE-PALMOLIVE COMPANY 1567
mend that Respondent be ordered to bargain with the Union , upon request , in -the
unit found herein to be appropriate , and embody in a signed agreement any under-
standing reached . Having further found that Respondent discriminated with respect
.to the hire and tenure -of employment of Henry Silva and Manuel Martin in violation
of Section 8 (a) (3) and ' (1) of the Act, I will recommend that Respondent make
-them whole for any loss of pay they may have suffered by reason of Respondent's
discrimination against them ; by payment to each of them of a sum of money equal
to that which he normally would have earned from August 13 16 to September 16,
1957, the date of his reinstatement , less his net earnings during said period. -
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. All truckdrivers and helpers at Respondent 's Charlestown plant in Boston,
-Massachusetts , excluding office clerical employees and 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.
2. Local 25, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America has been at all times since April 15, 1957, the exclusive
representative of all the employees in the aforestated appropriate unit for the pur-
poses of collective bargaining within the meaning of Section 9 (a) of the Act.
- 3. By, refusing at all times on and after April 22, 1957, to bargain collectively
with the above-named Union as the exclusive representative of its employees in the
aforestated appropriate unit , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) and (1) of the Act.
4. The strike, which commenced on April 26, 1957, and in which employees Henry
Silva and Manuel Martin participated , was caused by Respondent 's unfair labor
practice in refusing to bargain with ' the Union and hence was an unfair labor
practice strike.
5. By failing to reinstate Henry Silva and Manuel Martin, two striking employees,
upon their unconditional request for reinstatement , thereby discriminating with
respect to their hire and tenure of employment to discourage membership and
activity in behalf of the aforesaid Union, Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
i6 Although the unconditional request for reinstatement was made by letter dated
August 9, counsel for the Union concedes in his brief that August 13 would be regarded
as a reasonable time for an offer of reinstatement to have been made in response to the
request. - -
Colgate-Palmolive Company and International Brotherhood of
Electrical Workers , AFL-CIO; District 15, International Asso-
ciation of Machinists , AFL-CIO; The Independent Union of
Carpenter-Millwrights of Colgate-Palmolive Company (unaffil-
iated ) ; The Independent Union of Tinsmiths of Colgate-
Palmolive Company (unaffiliated ); and the Independent
Union of Painters of Colgate -Palmolive Company (unaffili-
ated ), 1 Petitioners. Cases Nos. 22-RC-72, 22-RC-76, 22-RC-88,
22-RC--:84, and 22-RC-85. June W, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
1 On April 24, 1958, the Petitioner requested permission to withdraw its petition fbr
certification, and notified us that all parties h