Lincoln Supply Co., Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1972

198 N.L.R.B. 932 (N.L.R.B. 1972)

932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lincoln Supply Co., Inc. and Truck Drivers & Helpers
Local Union 317, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases
3-CA-4515 and 3-RC-5181
August 16, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On March 30, 1972, Trial Examiner Marion C.
Ladwig issued the attached Decision in this consoli-
dated proceeding. Thereafter, 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Respondent, Lincoln Supply Co., Inc., Syracuse,
New York, its officers , agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner 's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: These consolidat-
ed cases were tried at Syracuse, New York, on November
30 and December 1-3, 1971.1 The charge was filed on July
6 (amended August 25), and the complaint was issued on
August 30, with an order consolidating the cases and
referring the representation case to the Board. The primary
issues in the complaint case are whether the Company, the
Respondent, in response to the Union's organizational
drive (a) engaged in numerous acts of interrogation,
promises of benefits, and threats of plant close, discharge,
and other reprisals, (b) urged employees to bypass the
Union and form a committee or company union for
immediate bargaining and benefits, (c) granted preelection
wage increases and other benefits and encouraged bargain-
ing with an employee committee to dissuade employees
from supporting the Union, (d) unlawfully discharged four
' All dates are in 1971
198 NLRB No. 137
employees, and (e) illegally refused to recognize and
bargain with the Union, in violation of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act.
In the representation case , the petition was filed on May
19 (amended June 1), a stipulated consent election
agreement was approved on June 4, and the election was
conducted on June 14. The vote was 12 for and 21 against
union representation, with I challenged ballot. The Union
filed timely objections, which are in issue.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, a New York corporation, is engaged in
the manufacture of sheet metal products and the wholesale
of hardware and sheet metal products at its shop and
warehouse in Syracuse, New York, where it annually
purchases and receives sheet metal, hardware, and other
goods valued in excess of $50,000 directly from outside the
State. The Company admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Early Terminations, Interrogation, and Threats
of Discharge
Employee Lloyd Gilbert contacted the Union on May 6,
and he and employee David Vollmer began organizing at
the warehouse on May 7. Early in the week of May 10,
Foreman Nick Adernatto (an admitted supervisor) told
Gilbert and Vollmer "that we should think twice about the
union business, that it had been tried before, and people had
been discharged for it. . . . you better watch your step or
[President] Irving [Carmen] will fire you." (Emphasis
supplied. Although called as a company witness , Adernatto
did not deny this conversation.) I find that this warning
and threat of discharge, as credibly testified by Vollmer,
violated Section 8(a)(1) of the Act as alleged.
About 1:45 p.m. on Tuesday, May 11, President Carmen
called Gilbert into the office and began interrogating him.
After Gilbert answered that he liked his job and was not
dissatisfied with working there, Carmen (in Gilbert's
words) "asked me who else was involved in this union
activity" and "I told him I did not feel it was any of his
concern or I was not going to reveal the other persons'
names." Carmen thereupon asked the bookkeeper to figure
out Gilbert's pay and gave him his final check, discharging
him. (Carmen testified that he asked Gilbert if he was
happy, and Gilbert said no; he then asked why Gilbert was
staying, and Gilbert answered, "I haven't got anything
better right now." According to Carmen, he told Gilbert
that he was being trained for a better fob, that this costs
LINCOLN SUPPLY CO., INC. 933
money, and that if he was not happy, "you better go.") The
Company admits that it was aware of Gilbert's union
activity. Whereas Gilbert impressed me as an honest
witness, Carmen appeared, while testifying on the stand, to
be less than candid. I credit Gilbert's account of what
happened, and find that Carmen coercively interrogated
him, and discharged him (as earlier warned by Foreman
Adernatto) because of his union activity, violating Section
8(a)(1) and (3) of the Act.
Two days later, Thursday morning, May 13, General
Manager Seymour Seidenberg terminated employee
Vollmer. As Vollmer credibly testified, Seidenberg told him
"that I was junior man in the Company and that he had
orders that I was to be laid off because of lack of business.
He had my check ready, and he wrote me a letter of
recommendation." (Seidenberg did not testify.) Following
this termination, several of the employees decided to strike
if any more of the union organizers were discharged.
The same day, May 13, President Carmen interrogated
employee Thomas Ray and learned that employees John
Feeney and Willie Johnson were also involved in the union
activity. As Ray credibly testified, "Mr. Carmen and I had
quite a close relationship as far,as friends were concerned.
And so he called me up there" to his office and "asked me
who was instigating the Union, and I told him, to the best
of my knowledge, Lloyd [Gilbert] was.. . . He asked me
if there was any other parties involved in it and I says I
thought Feeney and Willie Johnson." Carmen asked if Ray
thought something was going to become of this, and Ray
answered, "Possibly." Then Carmen "told Seymour [Seid-
enburg] that he thought that he should dismiss Johnson
and Feeney. . . . I told him I didn't state the people's
names so that they'd get fired. Irving [Carmen] said, well,
if . . they was going to start trouble there, he'd just as
soon get rid of them." (Carmen testified that he had
"plenty of conversations" with Ray. Carmen did not
specifically deny this particular conversation, but denied
generally that he made any threats of discharge and
testified that he never interrogated any employee about
"whether or not they were members of the Union." I
discredit the denials. As already indicated, Seidenburg did
not testify.) I find that this interrogation of Ray, along with
the threat of discharges, were coercive and violated Section
8(a)(1) of the Act.
The next morning, Friday, May 14, General Manager
Seidenburg terminated both Feeney and Johnson. About 8
o'clock, Seidenburg told Feeney he was laid off for lack of
work and paid him for the full day. A few minutes later,
Seidenburg called Johnson to the office and told him also
that he was laid off for lack of work. Johnson asked why,
and Seidenburg said, "It comes from the top." Johnson (a
truckdriver) protested, "How could I be laid off for lack of
work when they had a truck loaded downstairs to leave the
city that morning." There was no response.
Soon thereafter, several of the warehouse employees
engaged in a work stoppage, claiming that the four
employees had been discharged because of their union
activity. President Carmen arrived, and later his counsel,
and they agreed to reinstate Gilbert, Vollmer, Feeney, and
Johnson without loss of pay. Later that day, the Company
gave each of the warehouse employees a written statement
of "the substance of decisions arrived at a meeting of
company employees and management on May 14, 1971."
The first two points read:
1. All employees laid-off during the past week will be
reinstated without loss of pay.
2. No employees will be adversely affected hereaf-
ter in their, employment by' reason of their legitimate
,union activity.
The four employees returned to work on Thursday, May 18
((after the strike ended), with backpay. No other employees
were terminated until near the election, when most-but
'not all-of the employees had abandoned the Union to
laccept the Company's promise of direct bargaining without
union and its offer of an immediate wage increase and
kther benefits before the election.
In his brief, the General Counsel contends that the
termination of Vollmer, Feeney, and Johnson (as well as
Gilbert) were "clearly unlawful discharges." However,
Gilbert's discharge was the only one of these early
terminations which was alleged in the complaint to be
unlawful, and the General Counsel stated at the trial
(without explanation) that the facts concerning the other
three terminations were offered only as "background." I
therefore do not rule on whether these early terminations
of Vollmer, Feeney, and Johnson were separate violations
of the Act.
B. Employees Urged to Form Committee or
Company Union for Immediate Bargaining and
Benefits
Soon after the May 14 work stoppage began, Union
Business Agent John Parise arrived at the warehouse and
spoke to President Carmen. Parise claimed majority status
(discussed later) and complained about the discharges.
Later in the conversation, as credibly testified by Parise
(who impressed me as being an honest, forthright witness),
Carmen stated that if "an outside union was brought into
his company, that he was along in his years . . . and he
was financially set . . . where he could afford to close the
doors and not have these headaches. And then they would
all be out of a job." (This statement, to the union
representative, was not alleged to be a separate violation.)
Carmen also told Parise, "I'm talking to some of the
employees because I feel that it would be to my advantage to
have a shop union. I have several employees that see this my
way. And I think that if you butt out of this situation, we
can resolve it pretty much ourselves." (Emphasis supplied.
I discredit Carmen's testimony that he did not at any time
seek to promote an inside union.)
Later that morning, in a meeting with most of the
warehouse employees, President Carmen proposed the
formation of an employee committee and stated his
approval of the idea when a company union was proposed
by one of the employees, Richard Keeler. As credibly
testified by Keeler, a company witness, Carmen, was
talking when Keeler entered the office, and was telling the
employees "he would like to have some kind of a
committee or something" and that he was "going to look
into better benefits" and "would be able to possible come
up with a hospital plan, a reviewing of people's pay status
1
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at different times during the year." Then when Keeler
proposed a company union, Carmen told the employees (in
Keeler's words) "that-he would rather work with his own
employees than he would with an outside union"-thereby
indicating "that he was in favor of a company union."
(Carmen, who testified that he had been in business for 38
years, appeared to be obviously fabricating a defense when
he claimed that "the very first time that I knew the
difference between an inside union and an outside union
was when Mr. Keeler mentioned it.") Keeler acknowledged
that still later in the meeting , in the presence of the
company counsel, Business Agent Parise told Carmen that
Carmen's trying to convince the employees to have a shop
union was an unfair labor practice.
Business Agent Parise credibly testified that after he
joined the meeting, he told the Company, "They had no
right to try to shove a company union down" the
employees' throat, whereupon the company counsel invited
Parise to wait downstairs, telling him, "We're working out
an agreement now . . . and we feel we 'd like to work this
out on our own." Thereafter the Company drafted-and
presented to the employees-the aforementioned written
statement, the fourth point of which read:
4-We promise to meet immediately with a commit-
tee of employees to discuss employee grievances such
as wages, health insurance, holidays, job security and
other issues that the committee chooses to submit.
[Emphasis supplied.]
In its brief, the Company contends that the "idea for a
company union, or committee, originated with the employ-
ees, particularly with Keeler"; that there were no promises
made to the employees; and that President Carmen's May
14 written statement, or letter, "prepared by his counsel
and delivered that day to his employees . . . was not
designed to influence them in their choice of a union
representative." I do not agree. The credited testimony
shows that Carmen had already proposed a "shop union"
to several of the employees before he talked with Business
Agent Parise that Friday morning. Furthermore, the
Company's own witness, Keeler, revealed that Carmen was
suggesting in the employee meeting that morning that they
have a "committee or something" before Keeler proposed
a company union; that Carmen stated he was "going to
look into" and "possibly come up with" some better
benefits; and that Carmen told the employees he would
prefer working with the employees rather than with an
outside union . Moreover there is the documentary eviden-
ce-the Company's attorney-prepared written statement to
the employees-promising to meet "immediately" with an
employee committee to discuss wages and benefits. I
therefore find, as alleged in the complaint, that the
Company suggested, urged, and encouraged the employees
to bypass the Union and form a company union or
committee to deal with the Company regarding wages and
conditions of employment. I further find that the Company
promised them wage increases and other benefits to induce
them to abandon their support of the Union. The
Company thereby violated Section 8(a)(1) of the Act.
As the strike continued (some of the employees insisting
on an informal election in order that they could vote
immediately for the Union), President Carmen made
further efforts to persuade the employees to deal directly
with him , without an outside union . Carmen went to the
picket line and talked to employees Ray, Gilbert, and
Feeney. As credibly testified by Ray, Carmen "asked us if
we would put down the pickets and come in and settle our
differences within our own company . . . . He stated that
he could form a gnevance board of our own choosing. He
also stated that if we would go along with him, that he
would make changes right away, such as pay increases and
things of this nature ." (Emphasis supplied . I discredit
Carmen 's general denials that he ever made promises of
any kind to the employees and his denial that he had a
conversation with Ray about the problem of work
stoppages.) I find that by this conversation with the
pickets, the Company further urged the employees to form
an employee board or committee and bypass the Union,
offering them benefits "right away ," in violation of Section
8(a)(1) of the Act.
The demand for an immediate , informal election was
finally refused on Monday, May 17, and the Union
advised the strikers to return to work and wait for a Board
election. When they returned the next day, May 18,
employee Keeler began an effort to organize a company
union. (Although Keeler was the only employee who
proposed a company union in the May 14 meeting, the
Company had agreed in its attorney -prepared statement,
point 5, to a Board election between an "inside" and
"outside" union.) President Carmen granted approval for
an office employee to type and duplicate the authorization
cards for the "Independent Employees Union of Lincoln
Supply" and authorized Keeler to solicit signatures on
company time . The effort failed and the company union
was not included on the June 14 ballot. The Company
admits in its brief that it "ill advisedly" allowed the use of
its duplicating equipment to print the cards, but fails to
mention Carmen 's authorization of company time solicita-
tion (which was revealed by Keeler and later admitted by
Carmen). I find that the Company's participation in the
efforts to establish the company union was a further
encouragement of the employees to bypass the Union and
interfered with the exercise of the employees ' Section 7
rights, in violation of Section 8(a)(1) of the Act.
Thereafter , while the Regional Office was processing the
Union 's petition for an election , the Company continued
its efforts to induce the employees to abandon their
support of the Union . President Carmen talked to some of
the employees about what they wanted and agreed to a
meeting of warehouse employees to present his package
proposal of what he could offer . Finally , after one or two
postponements , Carmen promised to meet on Monday
morning, June 7-4 days after the Company and the
Union signed the stipulated consent election agreement for
an election on June 14 . Meanwhile, General Manager
Seidenburg advised the employees in the sheet metal shop
that they should not worry about whatever took place at
the warehouse, that they would get the same wage increase.
I find that this preelection promise of a wage increase to
the sheet metal employees (who were not involved in the
May 14-17 work stoppage) was made to induce them not
to support the Union and violated Section 9(a)(1) of the
Act.
LINCOLN SUPPLY CO., INC. 935
In apparent preparation for his June 7 proposal,
President Carmen privately announced a larger wage
increase to two of the union leaders , employees Gilbert and
Feeney (both of whom had been discharged and reinstat-
ed). Carmen called Feeney to the office, mentioned the
forthcoming meeting , and told him that because of his
position and responsibilities , he was getting a 50-cent
hourly raise, which was more than the others would be
getting. Carmen then told Feeney to send in Gilbert.
Carmen, in the presence of General Manager Seidenburg,
told Gilbert that he was giving him a 50-cent increase
"because he felt that certain employees worked harder
than others and deserved more." Then, "at the very end of
our conversation he said something to the effect , I'm sure
you now know how to vote." (This credited testimony by
Gilbert is undemed.) Particularly in view of the fact that
both Feeney and Gilbert had been union leaders, and in
view of the comment to Gilbert that "you now know how
to vote," I find that the promises of the two special
increases were timed to induce the employees to drop their
support of the Union and violated Section 8(a)(1) of the
Act.
Also before the scheduled June 7 meeting, President
Carmen repeated the threat he had made on May 14 to
Business Agent Parise. Carmen called Feeney to the office
and (in Feeney's words), "said that if the Union did get in,
that he was well situated in life and he could afford to close
his doors and live comfortably without the business."
(Although Carmen denied threatening to close the plant if
the Union came in , he admitted telling Parise , "John, at my
age, I need all these problems?" When asked if he ever said
that to the employees, he answered, "If I did, I don't
remember, Your Honor.") I credit Feeney's testimony and
find that the threat, or implied threat, was clearly coercive
and violated Section 8(a)(1) of the Act. I also find that it
was an additional inducement for the employees to
abandon the Union and to deal directly with Carmen.
About the same time (early June or late May), one of the
former union supporters did abandon the Union. As
employee Norman Porter credibly testified, he went to
President Carmen's office and "asked him what I could
get, for more pay, for more benefits andjob security. I was
looking out for myself. . . . He said that there would be
substantial increases. He would take care of his people if
they took care of him. . . . he mentioned that as far as any
union activity, he was going to forestall [that in] any way,
form, shape or manner that he could." (Carmen testified
that he tried to persuade employees to agree with him in
opposing a union, but denied that he ever made "any
threats or promises or anything of that kind," Finding
Carmen not to be a trustworthy witness, I discredit the
denial.) I find that Carmen's promises and threats to Porter
were coercive and further violated Section 8(a)(1) of the
Act.
C. Preelection Wage Increase, Other Benefits, and
Formation of Employee Committee
On the morning of June 7, President Carmen neither
appeared for the scheduled meeting of warehouse employ-
ees nor gave them any notice that he would be absent. (His
motivation for failing to notify them is not explained.)
When the employees made inquiry, they were informed
that he had an eye infection.
Having abandoned the Union in response to the
Company's promises of immediate bargaining and bene-
fits, a majority of the warehouse employees decided that
they would not return to work until Carmen met with
them . Someone notified the Union about the work
stoppage , but when Business Agent Parise and the union
president arrived at the warehouse , "we were ordered out
of the property."
President Carmen did appear the next morning , June 8 (6
days before the election), and met first with the sheet metal
employees . He told them that even though they had not
caused him any trouble , they would get the same wage
increase and other benefits he was giving the warehouse
employees. He also told them he had rather deal with
company men than outsiders, and that if he had to pay the
outside union scale , he could not compete . He revealed his
package proposal to them, and according to him, "They
seemed to be satisfied."
Then across the street , where most of the warehouse
employees were idle for about an hour before he arrived
around 9 o 'clock , President Carmen read off his package
proposal . It included a 25-cent wage increase, 4-hour
(instead of 5-hour) workday on Saturday, a 3-day July 4
weekend, optional contributory hospitalization, and a
clarification of vacation pay. The employees met among
themselves and then advised Carmen that his proposal was
accepted on condition 'he would allow them to have the
employee committee (which he had promised in wasting on
May 14) to negotiate on these and other matters . Carmen
agreed , and the employees elected a committee . When the
committee went to his office to let him know who had been
selected, Carmen told them (as employee Gilbert credibly
testified) that "with this committee the Company could
make better progress ," that there would be "more for the
Company to offer the employees ," and "the management,
along with this committee , could do more than they could
with an outside union." (The Company paid the employees
for the time not worked that Monday and Tuesday.) A day
or so later , Carmen met with the committee-before the
election-and discussed various matters. He agreed that
the employees could use their sick leave for other purposes,
like going hunting.
On June 11, the Friday before the Monday election, the
Company began paying the 25-cent wage increase (and the
50-cent increase to the two former union leaders, Gilbert
and Feeney). President Carmen personally distributed the
paychecks and repeatedly connected the wage increases to
employee votes in the forthcoming election , saying: (to
Feeney) "Now I've kept my promise, and I expect you will
keep your end of the bargain with me"; (to Gilbert) "I have
kept my end of the bargain, now I expect you to keep
yours"; (to Porter) "that he had kept his end of the
bargain , he was hoping that I was going to keep mine. And
he had hoped that I knew how to vote"; and (to Vollmer)
"I just wanted to show you that you do have the 25-cent an
hour increase, and that I do carry through with my
promises . And when the election comes up, I'm sure of
how you will vote." (Carmen testified that the only thing he
remembered telling the employees was "you demanded
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this; you've got it now. . . . Here's your promise and
here's your pay.") When Carmen gave the paycheck to
employee Johnson (one of the former union organizers
whom the Company had terminated and reinstated),
Johnson complained that some of the employees were
getting a 50-cent increase whereas he was getting only 25
cents. It is undisputed that Carmen called the bookkeeper
and told her to put Johnson in for another 10-cent raise,
which was paid the following week. (I find that this special
increase, like those to former union leaders Gilbert and
Feeney, was to influence his vote and violated Section
8(a)(1) of the Act.) As Ray credibly testified, Carmen
asked him "how I was going to vote," and upon getting an
evasive answer, asked "If I was for the Teamsters or
against the Teamsters," only to get another evasive answer.
Carmen asked for Ray's support, gave him a pat on the
back, and gave him his paycheck. (In view of the
Company's unlawful antiunion campaign, and Carmen's
earlier coercive interrogation of and threats to Ray, I find
that this additional interrogation was coercive and violated
Section 8(a)(1) of the Act.)
In his brief, the General Counsel describes this preelec-
tion conduct as "blatant" in nature , and contends that
despite the Union's majority status , the Company bar-
gained with "an employee committee it had encouraged
and assisted" and "threatened, interrogated, promised,
cajoled, and otherwise did everything in its power," to
undercut the Union. The Company argues that, "unques-
tioned," the granting of the wage increase and other
benefits and the establishment of the grievance committee
shortly before an election are "normally unlawful."
However, it contends that its conduct was not unlawful in
this case "since the benefits were coerced by the very
employees who now seek to sustain the charge. . . . There
is absolutely no evidence that the Respondent had any
intention or expectation of granting a wage increase or
other benefits in advance of the election. the was
compelled by his employees to do so as the price for
continuing his business. . . . The creation of the Griev-
ance Committee was, in fact, a condition of the employees
accepting the Respondent's offer on June 8 and one of the
conditions on which they agreed to return to work."
Thus the Company ignores its written promise on May
14 "to meet immediately with a committee of employees"
to discuss wages and other benefits, the evidence of other
unlawful conduct designed to induce the employees to
abandon the Union, and President Carmen's promise to
meet with the warehouse employees on June 7 to present
his package proposal of what he could offer them. After
continually flouting the law to undercut the Union, and
succeeding in inducing a majority of the employees to
abandon the Union and deal directly with him, President
Carmen then precipitated a strike on June 7 by reneging,
without notice, on his promise to meet and present his
wage-and-benefits package that morning . Then, after
granting the preelection benefits, again agreeing to the
formation of an employee committee as promised in
writing on May 14, and bargaining with the committee,
Carmen personally distributed the paychecks containing
the wage increases and urged an antiunion vote in return
for the benefits.
Even apart from the General Counsel's contention that a
strike could not justify these preelection benefits and
bargaining in any event, the strike clearly could not excuse
the Company's preelection conduct in the foregoing
circumstances-particularly where the Company repeated-
ly promised the employees preelection bargaining and
benefits, and then provoked the strike during the course of
dealing directly with its employees who had been induced
to abandon the Union. I find that by promising and
granting the preelection wage increases and other benefits,
and by encouraging the formation of an employee
committee and bargaining with it before the election, in
order to dissuade the employees' union support, the
Company violated Section 8(a)(1) of the Act.
D. Alleged Unlawful Discharges and Other
Coercion
1. Joseph Dixie
Dixie was one of the union organizers in the sheet metal
shop. He signed a card on May 14, and succeeded in
getting three other sheet metal employees to sign. Some-
time in the latter part of May or early June, Superintendent
Al Heber (an admitted supervisor in the warehouse) went
to the sheet metal shop and asked Dixie how he felt about
the Union. Dixie gave Heber an evasive answer. (Heber
did not testify.) Also sometime during that period,
President Carmen talked to Dixie about the Union. As
Dixie credibly testified, Carmen called Dixie out in the hall
and commented that "one hand washed the other hand"
(referring to the times when Dixie had asked for a job back
after leaving the employ of the Company, and Carmen had
rehired him). Then Dixie began to tell Carmen what Dixie
thought the employees were entitled to: a substantial raise
and insurance. "I said that I thought the fair thing would
be 50, 75 cents an hour." Carmen responded, "Let's not be
ridiculous.... You know, Joe . . . if the outside [union]
comes in . . . I'll still be in charge of hiring and firing, and
I can always get a grievance against anybody I want."
(Carmen did not specifically deny this conversation.)
Particularly in view of the Company' s earlier discharges
and threats, I find that Heber's undenied interrogation of
Dixie, and also Carmen's implied threat of discharge if the
Union came in, were coercive and violated Section 8(a)(1)
of the Act. I also find that Dixie's evasive response to
Heber (when asked how he felt about the Union), and
Dixie's so-called "ridiculous" proposal for a wage increase
of 50 to 75 cents an hour (when Carmen called him out
into the hall and talked to him), caused the Company at
least to suspect Dixie's support of the Union-whether or
not through employee interrogation or otherwise the
Company was aware that Dixie was a union organizer.
On Wednesday morning, June 9 (5 days before the
election), President Carmen went to the sheet metal shop
and questioned Dixie about not being willing to operate
the shear. Dixie testified that he explained that the guard
on the machine had not been adjusted properly and had
been unsafe to operate. (It had been fixed about a week
earlier.) Carmen asked about other machines and then
Dixie returned to work. That afternoon Dixie left work to
make an appointment with his lawyer concerning a
LINCOLN SUPPLY CO., INC. 937
personal matter. (Foreman Harry Coughenour credibly
testified that it was about 10 or 10:30 when Carmen came
to the shop that morning, and about 1 p.m., when Dixie
left. Coughenour admitted that Dixie said he had some
personal business to transact, and that Coughenour
responded, "I'll see you tomorrow, Joe.")
Dixie further credibly testified that the next morning,
Thursday, June 10, he had his wife call in and report that
he was sick and would be out for a couple of days. (On
cross-examination, Dixie revealed that he feigned sickness
because of a belief that "if I was to stay at the plant, I felt
that I would be laid off before the election. And I wanted
to be eligible to vote." The Company did not deny that it
had received the report that Dixie was sick.) Then the next
afternoon, June 11, when Dixie went to the plant to get his
paycheck, Carmen asked Dixie how he was going to vote,
saying: "I would like to have a 100 percent vote for the
Company . . . how are you going to vote?" Dixie was
again evasive, answering, "I know which side my bread is
buttered on. And that's the way I'm going to vote." In this
or another conversation, Carmen told Dixie, "You're
nervous . . . maybe the election is too much for you .. .
why don't you take a week off?" Dixie replied, "No . . . I'll
be here for the election." However on Monday, when Dixie
returned to work and to vote, his timecard was missing,
and Foreman Coughenour told him, "You'll have to see
Mr. Carmen." Later, Dixie went to where the election was
to be held and Carmen told him, "You no longer work for
us." (Dixie's vote was challenged.)
The complaint alleges that Dixie was discharged on June
11. The Company contends in its brief that the evidence
"about the shear machine is pointless. . . . The fact is that
[President Carmen] did not fire Dixie, because of the
machine or otherwise. Dixie simply walked off the job and
did not return for almost a week . . . probably for one of
the same reasons that he quit on many prior occasions. By
definition this is a quit." However, the Company's own
testimony does not support this defense.
Foreman Coughenour, a company witness, implicitly
admitted that he gave Dixie permission to leave on June 9
(by testifying that Dixie said he had some personal
business to transact and that Coughenour simply respond-
ed, "I'll see you tomorrow, Joe"). Coughenour did not
deny receiving the word from Dixie's wife that Dixie was
sick and would not be in for a couple of days. Coughenour
testified that he talked to Dixie on Friday, June 11, when
Dixie came for his paycheck, and did not ask him if he had
quit. Nevertheless, as Coughenour further testified, Car-
men "said to me" sometime that Friday "that as long as
Joe hadn't showed up, to pull his clock card," that Carmen
"wanted to talk to him before he went back to work."
(Emphasis supplied.) Thus, according to the Company's
own witness, the Company did not believe that Dixie had
quit. (Carmen, who testified that Dixie quit, did not
confirm or deny this conversation with Coughenour on
Friday. He testified that as far as he knew, Dixie did not
show up for work on Thrusday, Friday, or Saturday, and
did not come to the plant on Friday. As previously
indicated, he did not impress me as being a candid
witness.)
I find that President Carmen's claim that Dixie quit was
merely an attempt to conceal the fact that the Company
discriminatorily discharged him because of its knowledge
or suspicion that he favored the Union. I therefore find
that the Company discharged Dixie in violation of Section
8(a)(3) and (1) of the Act, and that under these circum-
stances, President Carmen's interrogation of Dixie on June
II (asking him how he was going to vote) was coercive and
further violated Section 8(a)(1).
2. John Feeney
As discussed above, Feeney was one of the union leaders
who was terminated and offered reinstatement on the same
day, May 14. About 2 weeks later, he and another union
leader were promised a special 50-cent hourly increase, as
found, to induce them to drop their union support. Then
on June 11, when the 50-cent increase was paid to Feeney
aiid one other and a 25-cent increase was paid to all other
employees, some of the employees accused Feeney of
"selling out."
Upon giving Feeney his paycheck, President Carmen
told him (as he did others), "Now I've kept my promise,
and I expect you will keep your end of the bargaining with
me." But , as Feeney credibly testified, Carmen went
further, saying "Now I want you to know that you are
working for me. I want you to keep me informed of what
the other employees are doing in regard to union activity."
Carmen then added that "if I was dissatisfied with the way
things were, he was sure there was employment elsewhere."
Thus, upon giving Feeney the 50-cent raise, Carmen
conditioned Feeney's continued employment on his will-
ingness to report on other employees' union activities.
(Carmen repeatedly denied that he had any private
conversation with Feeney before June 14. He finally
testified, though, that he talked to Feeney privately on
June 8, but denied asking him to report on union activities.
He impressed me as being more interested in making a
plausible defense than reporting accurately what hap-
pened. I discredit his denials.) I find that Carmen's
statements to Feeney, requiring that Feeney report on
union activities or be discharged, were coercive and
violated Section 8(a)(1) of the Act.
Feeney went to lunch, and "I got to thinking about the
position I was in . I was sort of caught in the middle. I
didn't want to be a stoolie on my friends and my fellow
workers." He returned from lunch and decided to quit. He
decided not to vote in the election, as he credibly testified,
because he and Gilbert "got more money than the rest. So
immediately everybody figured we'd sold out. So my vote
having been slandered, I chose not to vote in that
election."
About 2 p.m., Feeney went to the timeclock and clocked
out. As credibly testified by Foreman Adernatto, "I see
him go punch his timecard, and he came back and handed
me the timecard and said he's quitting. And I told him I
was sorry to see him quit. . . . I overheard him say that
they're accusing him of selling out. . . . There was several
people around there."
The next day, Feeney saw President Carmen in a bar
near the warehouse. Carmen "said to me that he under-
stood why I quit and that in the future I could come back."
A month later, on July 12, Feeney telephoned Carmen and
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked if he (Feeney) could come back to work. Carmen
first asked if Feeney had been in touch with Business
Agent Parise or David Vollmer (who was discharged
immediately after the June 14 election, as discussed below),
"or had anything to do with the Union." I find that this
interrogation about Feeney's being in touch with the
Union and the union leader, Vollmer, was coercive and
violated Section 8(a)(1) of the Act. (Vollmer was not
rehired or reinstated.)
The General Counsel contends that Feeney was con-
structively discharged, contending that "Carmen had
euchred Feeney into a position where no self-respecting
worker could stay in the plant. Added to this was Carmen's
threat to fire him if he didn't spy on his co-workers. Faced
with this prospect, Feeney did what he thought was the
honorable thing to do." The Company argues that even if
Feeney's disputed testimony is true, "it does not constitute
a request to inform on his fellow employees." (As quoted
above, though, Feeney testified that Carmen said, "I want
you to keep me informed of what the other employees are
doing in regard to union activity.") The Company also
contends that the Company did not make "working
conditions so unbearable" that Feeney was forced to quit. I
disagree. Particularly in the circumstances of this case,
where President Carmen gave Feeney a special wage
increase to induce him to drop his support of the Union,
resulting in Feeney 's being called a "sell out ," I find that
Carmen's requirement that Feeney report on the employ-
ees' union activities or be discharged placed Feeney in an
untenable position and coerced him into quitting. I
therefore find that the Company constructively discharged
Feeney in violation of Section 8(a)(3) and (1) of the Act.
The credited testimony of employee John Christian
shows that President Carmen, on and after June 11,
continued to engage in interrogation about the Union.
Christian, a senior employee who formerly had been a
foreman, worked behind the picket line until noon,
Saturday, May 15, and then failed to return until June 11.
(Upon his return to work, the Company did not mention
his absence.) Beginning on June 11, Carmen asked
Christian about the Union "practically every time he came
in the building where I was." Carmen asked him if he knew
who was the head of the Union, who had joined the Union,
who started it, and if he had signed a card. After the
election , Carmen also "asked me and different ones in the
place" how they voted. Christian retired on June 26.
(Carmen did not specifically deny any of this testimony,
although he denied interrogating any employees "about
whether or not they were members of the Union.") I find
that this continued interrogation, about union support and
activity, and about how employees voted, was coercive and
violated Section 8(a)(1) of the Act.
3. David Vollmer
Employee Vollmer was one of the four union leaders
who were terminated early in the organizational drive and
reinstated. Of the four, he was the only one who received a
wage increase of only 25 cents (Gilbert and Feeney each
being given an extra 25 cents, and Johnson being promised
an extra 10 cents, to induce them to drop their union
support, as found above). Then on Friday, June 11, when
President Carmen was personally distributing the pay-
checks contained the wage increases , Vollmer was evasive
about how he would vote . Carmen told Vollmer, after
mentioning the 25 -cent increase , " I do carry through with
my promises . And when the election comes up, I'm quite
sure of how you will vote." Vollmer responded, "I already
have my mind made up as to how I would vote ." Carmen
stated he hoped that Vollmer 's mind was made up in the
right direction.
On the following Monday , June 14 , before the 8-9 a.m.
voting began , President Carmen went over to where
Vollmer and employee Porter were talking. As Vollmer
credibly testified , Carmen "warned me about taking time
off" and said "if it happens again , I'm going to fire
you. . . . this is a warning, take it as such ." Porter credibly
testified that he overheard Carmen say something about
Vollmer taking time off and point out , "This is a warning.
I'm giving you another chance . " (Emphasis supplied. This
testimony is undenied .) Vollmer credibly testified that he
always called in whenever he missed work and that no one
had ever spoken to him before about being absent.
(Although elsewhere citing transcript page references in its
brief, the Company erroneously asserts that Carmen and
Foreman Adernatto both "testified that they had warned
[Vollmer] about his absenteeism "-without any page
references . Neither Carmen nor Adernatto so testified.)
About 10 minutes after the election was over , Vollmer
was called to the office and discharged . As Vollmer
credibly testified, Carmen said, "You're being laid off."
When asked why, Carmen stated , "We'll put it this way,
time off , missing time . . . . We'll say that this is the
reason. . . . another thing you must take into considera-
tion, that you, as much or more than anyone else , has cost
me quite a bit of money as far as disruptions of this
business goes as to forming a union ." Carmen stated "that
he still had to control the employees ," that he needed
"what he called a scapegoat ," and "I guess you're it ." After
that , "I was ushered out of the office, down the elevator,
picked up my jacket, and he escorted me out of the
building . He wouldn't let me say anything to anyone."
(Vollmer impressed me as a most alert and an honest
witness with a good memory.)
Although the Company contends in its brief that
Vollmer was discharged for "excessive absenteeism,"
President Carmen claimed at the trial that there were
several reasons (absenteeism , ramming a forklift truck into
merchandise , and threatening to kill a foreman-or, as
amplified on cross-examination , threatening to kill two
foremen and he "also threatened a fellow employee"). I
find all of these purported reasons to be mere pretexts or
fabrications-particularly in view of the timing of the
discharge, the reasons given at the time , and, as argued by
the General Counsel, "the haste with which Vollmer was
thrown out of the plant" once the election count was in.
The evidence is clear that the Company was aware of
Vollmer 's union activity . That afternoon , several hours
after the election , President Carmen showed Vollmer's
absentee record to four members of the newly formed
committee (which had been bargaining with the Company
before the election), and got their signatures on a statement
reading:
LINCOLN SUPPLY CO., INC. 939
We, the members of the Grievance Committee .. .
feel because of his poor record of attendance at work
and his attitude toward his work, the services of David
M. Vollmer should be terminated. This has nothing to
do with his Union activities . [Emphasis supplied.]
This statement, prepared by the Company, did not
mention threats dr damage to merchandise , but added still
another purported reason for the discharge. I also note that
a month later , when unlawfully interrogating discharged
employee Feeney (as found above), Carmen connected
Vollmer with the Union by asking Feeney if he had been in
touch with Business Agent Parise or Vollmer, "or had
anything to do with the Union."
The Company contends in its brief that "Here, sensitive
to the possibility of inviting a charge of discrimination, the
Respondent refrained from terminating Vollmer's employ-
ment until after the election ." Instead , the credited
evidence shows that after warning Vollmer about absentee-
ism for the first time immediately before the election, and
telling him , "I'm giving you another chance ," President
Carmen discharged him immediately after the election,
blaming him for the union-related disruptions of the
business , and ejected him from the warehouse. Thereafter,
I find, Carmen sought to conceal his discriminatory
motivation by inducing part of the employee committee
(with which he had been dealing unlawfully before the
election) to sign a statement that "This has nothing to do
with [Vollmer's] Union activities."
I find that Vollmer's discharge was clearly discriminato-
ry and violated Section 8(a)(3) and (1) of the Act.
Moreover , another consideration for discounting the
Company's defense, although not essential for a finding of
unlawful motivation, is the Company's failure to produce
requested evidence. Vollmer had'testified that from his
observation, the attendance record of warehouse employ-
ees was "Very poor," and employee Christian, as indicated
above, had testified that he was absent without permission
from May 15 to June ,11, yet no one mentioned his absence
when he returned. Vollmer also gave undisputed testimony
that although he worked only one full 47 1/2-hour week in
the I I weeks he was there, no one had ever spoken to him
about being absent. The General Counsel sought the
production of other employees' attendance records for
comparison. Finally the company counsel promised to
produce the records for the warehouse employees in the
second calendar quarter and stated, "I am aware of what
the General Counsel is trying to prove . . . that our people
did not show up for work on time or a full week and that
sort of thing." Yet the Company later reneged on the
promise and produced only selected records. It produced
payroll records of 13 of the 21 other warehouse employees
(omitting Baldwin, Barry, Christian, Coleman, Demereaux,
Mazzuca, Smith, and Walter), and 3 of the 4 truckdrivers
(omitting Flora)-claiming erroneously that "This repre-
sents about 90 percent or so of the people of the
warehouse." (One of the records produced, that of regular
employee Schadle, shows that he did not work a single full
47 1/2 hour week in the 20-week period from January 7
through May 20, but worked most of the weeks from 32 to
47 hours, averaging 39.7 hours.) Even assuming, as argued
by the Company without support of evidence, that one or
two employees worked a 40-hour week, or certain
employees were part- time or worked less than a full day,
the records (and at most, a minimum amount of explana-
tion) would have readily identified any such exceptions. I
infer that the records were withheld because they would
have been unfavorable to the Company' s defense.
Having found the numerous foregoing 8(a)(1) violations,
I find it unnecessary to rule on other alleged coercion of
the employees.
E. Alleged Refusal To Bargain
1. Majority status
The following combined unit of employees in the
warehouse and sheet metal shop is admittedly an appropri-
ate bargaining unit:
All regular part -time and full-time truckdrivers, ware-
housemen , counter help , and sheet metal workers
employed by the Employer at its place of business on
109 Otisco and 215 Wyoming Streets, Syracuse, New
York, excluding all office clerical employees , profes-
sional employees , foremen , printers , guards and super-
visors as defined in the Act.
On May 18, the Union had valid authorization cards
signed by 21 of the 36 employees in this unit. This clear
majority of 21 consisted of 13 cards signed on May 13
(Boster , Feeney, Flora , Gilbert, Hawley , Johnson , Mazzu-
ca, Porter, Ray, Schadle, Vollmer, Walter, and Zeppetello);
3 cards signed on May 14 (Dixie , MacMaster , and Perry);
1 card signed on May 17 (Ferns); and 4 cards signed on
May 18 (Blake , Mickelson , Neivvine, and Thomas). There
were 14 nonsigners (Baldwin , Daniels , Barry , Beck , Brock,
Christian, Compton, Dailey, Demeraux, Horner, Phohl,
Pine, Smith , and Utas), plus Keeler , who signed a card on
May 13 and did not withdraw it, but who on May 14 began
campaigning for a company union.
2. Bargaining requests
On May 13, the day the second union organizer was
terminated, the Union sent the Company a letter , claiming
majority status and requesting bargaining in a warehouse
unit of "drivers , countermen , warehousemen, and working
foremen ." On May 14, Business Agent Parise met with the
Company. He claimed , and then demonstrated, the
Union 's majority in a unit of the warehouse employees (13
valid cards in a unit of 24). The Company told Parise that
an appropriate unit must include the sheet metal employ-
ees (working in a separate building across the street), and
that the Company would want a formal Board election.
Upon leaving the meeting , Parise and some of the
warehouse employees began organizing in the sheet metal
shop . President Carmen was aware of this organizing,
because he ordered , Parise to leave the shop on two
occasions.
On May 19, 1 day after achieving majority status in a
combined unit, the Union filed a petition for an election in
the warehouse unit. Then on June 1 , it filed an amended
petition for an election in the combined unit. (The Union
lost the June 14 election by a vote of 12 to 21, with one
challenged ballot. The Union 's objections are discussed
later.)
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Contentions and concluding findings
The General Counsel contends that the originally sought
warehouse unit would also be appropriate for bargaining,
that the Union's May 13 bargaining demand was continu-
ing in nature, that the Company's unlawful conduct
"utterly destroyed the possibility of conducting an election
in which the employees might have any kind of free choice
of bargaining representative," and that a bargaining order
should issue, with the election being set aside and the
petition dismissed.
The Company contends that there was no illegal refusal
to bargain because the Union did not renew its bargaining
demand and that there is no proof that the Company had
knowledge of the union majority in the combined unit. The
Company further contends that it "is convinced that the
charges alleged in the complaint are unproven," but even if
proved, "in the absence of a refusal to bargain, the
existence of unfair labor practices is irrelevant on the
subject of the issuance of a bargaining order." I do not
agree.
Because of the extensive and flagrant nature of the
Company's unfair labor practices, dissipating the Union's
majority and removing any hope of a fair election, I find it
unnecessary to rule on whether or not there was a technical
8(a)(5) violation. This is such a case in which the Supreme
Court has approved the issuance of a bargaining order
even in the absence of an 8(a)(5) violation, where the unfair
labor practices are "outrageous" and "pervasive," and of
"such a nature that their coercive effects cannot be
eliminated by the application of traditional remedies, with
the result that a fair and reliable election cannot be had."
N. L. R. B. v. Gissel Packing Co, 395 U.S. 575, 613-614.
As found above, the Company engaged in numerous acts
of interrogation, threats of discharge, plant closure, and
reprisal. It urged employees to bypass the Union and form
a company union or committee and promised in writing to
meet immediately with a committee to discuss wages and
other benefits. It promised pay increases and other changes
if the employees would abandon the Union. It participated
in an effort to form a company union. After the election
petition was filed, the Company continued to promise
benefits and then, 6 days before the election, actually
granted a 25-cent wage increase to all unit employees and
again agreed to the formation of an employee committee.
Thereafter, also before the election, it bargained with the
employee committee and conferred another benefit. It also
granted a special wage increase to three of the former
union leaders to induce them to drop their support of the
Union. Three days before the election, the company
president personally distributed the paycheck containing
the wage increases and urged an antiunion vote in return
for the benefits. It threatened an employee with discharge
unless he informed against other employees for engaging in
union activity. It discriminatonly discharged four employ-
ees, including one immediately after the election, and
continued its coercion of employees by interrogating them
about how employees voted in the election.
Inasmuch as the Company has, by outrageous and
pervasive unfair labor practices, dissipated the Union's
majority and made a fair election impossible, I find that a
bargaining order is necessary and appropriate to remedy
the 8(a)(1) and (3) violations.
III. REPRESENTATION PROCEEDING
In the June 14 stipulated consent election, the employees
voted 12 for, and 21 against, union representation, with I
challenged ballot. On June 15, the Union filed timely
objections to conduct affecting the results of the election.
As found above, the Company, between May 19 (when
the original petition was filed) and June 14, violated
Section 8(a)(3) and (1) of the Act by discriminatonly
discharging Joseph Dixie and constructively discharging
John Feeney, and coerced the employees in violation of
Section 8(a)(I) by such conduct as engaging in unlawful
interrogation, threatening to close down if the Union were
successful, and promising benefits to dissuade the employ-
ees' union support. I find, as alleged in the union
objections, that this and other unlawful company conduct
during that period of time interfered with the employees'
free choice in the election.
I therefore find that the election must be set aside, and
that in view of the Company's above-found outrageous and
pervasive unfair labor practices-dissipating the Union's
majority and making a fair election impossible-the
election petition must be dismissed.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Lloyd Gilbert on
May 11, Joseph Dixie and John Feeney on June 11, and
David Vollmer on June 14, the Company engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(3) and (I) and Section 2(6) and (7) of the Act.
2. By coercively interrogating employees, and by
making threats of discharge, plant closure, and reprisal for
engaging in union activity, the Company violated Section
8(a)(1) of the Act.
3. By urging employees to bypass the Union and form
a committee or company union, and by participating in an
effort to form a company union, the Company violated
Section 8(a)(1) of the Act.
4. By promising immediate bargaining with an employ-
ee committee and, before the election, again agreeing to
the formation of the committee and bargaining with the
committee, the Company violated Section 8(a)(1) of the
Act.
5. By promising wage increases and other benefits if
employees would abandon an outside union, the Company
violated Section 8(a)(I).
6. By granting preelection wage increases and other
benefits, the Company violated Section 8(a)(1).
7. By threatening to discharge an employee unless he
informed against fellow employees for engaging in union
activity, the Company also violated Section 8(a)(1).
8. As a result of the foregoing outrageous and pervasive
unlawful company conduct, dissipating the Union's May
18 majority in a stipulated appropriate bargaining unit and
making a fair election impossible, a bargaining order is
appropriate and necessary.
9. The June 14 election must be set aside and the
election petition dismissed.
l
LINCOLN SUPPLY CO., INC. 941
REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from like
or related invasions of the employees' Section 7 rights, and
to take certain affirmative action.
The Respondent having discriminatorily discharged
three employees (and not having reinstated them with
backpay, as it has the fourth discharged employee, Lloyd
Gilbert), I find it necessary that it be ordered to offer them
full reinstatement, with backpay computed on a quarterly
basis, plus interest at 6 percent per annum, as prescribed in
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716, from date of
discharge to date reinstatement is offered.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended: 2
ORDER
Respondent, Lincoln Supply Co., Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting Truck Drivers & Helpers Local
Union 317, International Brotherhood of Teamsters, or
any other union.
(b) Urging employees to bypass an outside union and
form an employee committee or company union.
(c) Assisting any employee in an effort to organize a
company union.
(d) Promising to bargain, or bargaining, with an
employee committee or grievance board to undercut
employee support of an outside union.
(e) Promising or granting wage increases or other
benefits in the future to undermine employee support of an
outside union.
(f) Threatening discharge, plant closure, or any reprisal
for engaging in union activity.
(g) Threatening to discharge any employee unless he
informed against other employees for engaging in union
activity.
(h) Coercively interrogating any employee about union
support or union activity.
(i) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain in good faith with Truck
Drivers & Helpers Local Union 317, nternational Brother-
hood of Teamsters, as the exclusive representative of the
employees in the following appropriate unit and embody in
a signed agreement any understanding reached:
All regular part-time and full-time truckdrivers, ware-
housemen, counter help, and sheet metal workers
employed by the Employer at its place of business on
109 Otisco and 215 Wyoming Streets Syracuse, New
York, excluding all office clerical employees, profes-
sional employees, foremen, punters, guards and super-
visors as defined in the Act.
(b) Offer Joseph Dixie, John Feeney, and David Vollmer
immediate and full reinstatement to their former jobs or, if
their jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for their lost
earnings in the manner set forth in the section of the Trial
Examiner's Decision entitled "Remedy."
(c) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(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 records necessary to
analyze the amount of backpay due under the terms of this
Order.
(e) Post at its warehouse and sheet metal shop in
Syracuse, New York, copies of the attached notice marked
"Appendix."3 Copies of notice, on forms provided by the
Regional Director for Region 3, after being duly signed by
an authorized representative of the Respondent, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained 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
ensure that the notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
IT IS FURTHER ORDERED that the June 14, 1971 election
held in Case 3-RC-5181 be set aside and that the petition
therein be dismissed.
2 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations . be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
{ In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after
trial, that we engaged in numerous violations of Federal
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
law to turn you against the Teamsters Union after most of WE WILL NOT unlawfully interfere with your union
you chose it to represent you:
WE WILL bargain , upon request , with Teamsters
Local 317 as the exclusive representative of our
warehouse and sheet metal shop employees , and put in
writing and sign any bargaining agreement reached.
WE WILL offer full reinstatement to Joseph Dixie,
John Feeney, and David Vollmer , with backpay plus 6
percent interest.
WE WILL NOT discharge or discriminate against any
of you for supporting the Union.
WE WILL NOT threaten to close down , to discharge
you, or to take away any benefits if you support the
Union.
WE WILL NOT threaten to discharge any of you for
refusing to inform us about employees ' union activity.
WE WILL NOT urge you to form an employee
committee or company union , or promise to bargain
with any committee , to encourage you to drop your
support of the Union.
WE WILL NOT promise or give you any wage increase
or benefits in the future for the purpose of discouraging
your support of the Union.
WE WILL NOT coercively question you about the
Union.
activity.
Dated By
LINCOLN SUPPLY CO., INC.
(Employer)
(Representative) (Title)
We will notify immediately the above -named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces , in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 9th
Floor , Federal Building, 111 W. Huron St ., Buffalo, New
York 14202 , Telephone 716-842-3100.