Lunardi-Central Distributing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 2, 1966

161 N.L.R.B. 1443 (N.L.R.B. 1966)

LUNARDI-CENTRAL DISTRIBUTING CO. 1443
employment with Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, as the exclusive representative of our employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to
form labor organizations , to join or assist Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any other labor organiza-
tion , to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , and to refrain from any or all such activity.
WE WILL, upon request, bargain collectively with Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO, as the exclusive repre-
sentative of all employees in the bargaining unit described below, concerning
rates of pay, wages, hours of employment , and other terms and conditions of
employment and, if an understanding is reached, embody it in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees , including shipping depart-
ment employees , at our Thomasville , Georgia, operation, but excluding
all office clerical employees , quality control employees, relay drivers,
driver-salesmen, garage employees , engineers, buyers , retail store employ-
ees, watchmen , guards and supervisors as defined in the Act.
WE WILL make our employees in the above -described unit whole for any
loss of pay suffered as a result of our withholding their pay increase from
January 1 to 10, 1966.
FLOWERS BAKING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 528
Peachtree-Seventh Building 50 Seventh Street, NE . Atlanta, Georgia, Telephone
526-5741.
Lunardi- Central Distributing Co., Inc . and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 355 and Retail, Wholesale and Department
Store Union, Local 1034, AFL-CIO, Party to the Contract. Case
5-CA-3372. December 2,1966
DECISION AND ORDER
On June 21, 1966, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial Examiner also
found that the Respondent had not engaged in certain other alleged
unfair labor practices. Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Examiner's Decision and
supporting briefs.
161 NLRB No. 126.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
• Pursuant to the provisions of Section 3(b) of the National Labor
Relations At, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 entire
record in this case, including the Trial Examiner's Decision, the
exceptions, and briefs, and hereby adopts the findings, conclusions,
and recommendations of -the Trial Examiner, with the following
additions and modifications.
We agree with the Trial Examiner that Local 1034 did not at any
time relevant represent an uncoerced majority of employees and that
the Respondent cannot rely on the certification. Its authorization
cards were invalid because of Supervisor Mohorn's and agent Carr's
illegal conduct including the solicitation of such cards on behalf of
that Union.2 Furthermore, the results of the December 8 election and
the subsequent certification of Local 1034 on December 16 did not
establish that union as the majority representative of the employees
because at the time of the election Local 1034 was an unlawfully
assisted union. Additionally, the election itself was defective because
the Respondent, though knowing that Teamsters Local 355 had
secured a number of authorization cards from its employees, never-
theless failed to notify the Regional Director of such rival union
activity, with the result that Local 355 was not served, as was its
right, with a copy of the petition and various other papers in the
representation proceeding, of which it apparently had no knowledge.3
In view of the above, we agree with the Trial Examiner that the
Respondent's execution of a contract containing a union-shop provi-
sion with Local 1034 on December 20 violated Section 8( a) (1), (2),
and (3) of the Act, as that union had not been properly certified or
designated as the bargaining representative by a majority of employ-
ees in the appropriate unit.
1 The Trial Examiner found that following Local 1034 's certification , the Respondent on
"November" 16 or 17 began contract negotiations with Local 1034. The record shows, and
we find , that the quoted word should be "December."
2 The Trial Examiner found that 16 or 17 employees in the unit were unlawfully solicited
to sign and did sign authorization cards for Local 1034 around the middle of November
1965. In the absence of exceptions , we adopt this finding as to the 16 employees . Like the
Trial Examiner , we find it unnecessary to determine whether or not Carr was a super-
visor because it is clear that he was an agent of the Respondent with respect to bringing
Local 1034 into the plant and soliciting cards for it. However , we need not decide if Carr
continued to act as Respondent 's agent thereafter ; i e., during and subsequent to the
negotiation of the December 20 agreement between the Respondent and Local 1034. Thus,
we do not adopt the Trial Examiner 's finding that Carr's negotiating and executing the
agreement was also unlawful under Section 8 ( a) (2) and (1). Neither do we find it nec-
essary, as it would not affect our conclusion here , to adopt the Trial Examiner 's state-
ment that Teamster Local 355 was the employees ' freely chosen representative
8 See U .S. Chaircraft, Inc., 132 NLRB 922.
LUNARDI-CENTRAL DISTRIBUTING CO. 1445
As a part of the remedy, the Trial Examiner recommended that the
Respondent's reimburse employees only for Local 1034's dues and
assessments it withheld from their wages." However, as the Respond-
ent coerced the 16 employees named below into joining Local 1034
and in effect foisted that union upon them around November 15, 1965,
we shall provide for the reimbursement of initiation fees and dues
for these employees as well as for those employees also coerced
because required to join Local 1034 by the union-security agreement
of December 30, 1965. See Meyers Bros. of Missouri, 151 NLRB 889;
also cf. Sinko Manufacturing and Tool Company, 154 NLRB 1474.
As Local 355 was entitled to but did not receive formal notice of
the representation proceeding which was a prerequisite to a valid
election, and as we are administratively advised that the certification
in Case 5-RC-5389 has not been withdrawn, we shall set aside the
certification of Local 1034 as majority representative of the Respond-
ent's employees in that case.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications:
[1. Delete paragraph 1(g) and insert the following:
[" (g) Withholding or deducting from the wages of any of its
employees dues or other moneys to be remitted to Retail, Wholesale,
and Department Store Union, Local 1034, AFL-CIO."
[2. Delete paragraph 2(b) of the Trial Examiner's Recommended
Order and insert the following:
["(b) Reimburse Theodore A. Bond, Sr., Ronald N. Cushway,
Odell Davis, Benjamin Edmond, Robert Gibbs, David Morrell
Knight, Benjamin F. Henderson, Johnny F. Hood, Marion Otis
Lee, Sr., William Leo Johnson, Frank Hunter, Lewis E. Miles, Carl
Edward Underwood, Harry E. Sanders, John Oliver Wallace, Levi
White, and all those employees who became members of Local 1034
after December 20, 1965, for initiation fees and periodic dues paid
directly or indirectly to the aforesaid Union, plus interest at 6 percent
per annum."
[3. Delete the eighth and ninth paragraph and insert the following :
WE WILL NOT withhold or deduct from the wages of any of
our employees dues or other moneys to be remitted to Local 1034.
WE WILL reimburse Theodore A. Bond, Sr., Ronald N. Cush-
way, Odell Davis, Benjamin Edmond, Robert Gibbs, David Mor-
rell Knight, Benjamin F. Henderson, Johnny F. Hood, Marion
Otis Lee, Sr., William Leo Johnson, Frank Hunter, Lewis E.
Miles, Carl Edward Underwood, Harry E. Sanders, John Oliver
The Trial Examiner failed to provide interest at the rate of 6 percent per annum on
dues and moneys reimbursed to employees entitled to reimbursement. We shall so provide, in
accordance with applicable precedent.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallace, Levi White, and all. those employees who became mem-
bers of Local 1034 after December 20, 1965, for initiation fees
and periodic dues paid directly or indirectly to the aforesaid
Union, plus interest at 6 percent per annum.
[The Board set aside the certification of Local 1034 in Case 5-RC-
5389 on December 16, 1965.]
[The Board dismissed the complaint insofar as it alleges that
Respondent violated the Act by giving benefits to employee Hood
through its president.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on December 15, 1965, and January 18 and February 2, 1966,
by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local No. 355, herein called the Teamsters, the Regional Director
for Region 5 of the National Labor Relations Board, herein called the Board, issued
a complaint on behalf of the General Counsel of the Board against Lunardi-Central
Distributing Co., Inc., Respondent herein, alleging violations of Section 8(a)(1),
(2), and (3) of the National Labor Relations Act, as amended (29 U.S.C., sec. 151,
et seq.), herein called the Act. In its duly filed answer Respondent, while admitting
certain of the allegations of the complaint, denied the commission of any unfair
labor practice.
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher
in Baltimore, Maryland, where all parties appeared and were afforded full oppor-
tunity to be heard, to present oral argument, and to file briefs with me. Briefs were
filed by counsel for the General Counsel and for Respondent, respectively, on
May 10, 1965. Upon consideration of the entire record, including the briefs filed
with me, and upon my observation of each witness appearing before me, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent Lunardi-Central Distributing Co., Inc., is a Maryland corporation
with its principal place of business in Baltimore, Maryland, where it is engaged in
the wholesale sale and distribution of food products. During the most recent annual
period, in the course of its operations Respondent purchased and received food
products valued in excess of $50,000 which were shipped directly to it from points
outside the State of Maryland. Upon the foregoing admitted facts I find and con-
clude that Respondent is an employer engaged in commerce within the meaning of
Section 2(6) of the Act.
If. THE LABOR ORGANIZATIONS INVOLVED
It is admitted that International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local No. 355, and Retail, Wholesale and
Department Store Union, Local No. 1034, AFL-CIO, herein referred to as
RWDSU, are each labor organizations within the meaning of Section 2(5) of the
Act and I so conclude and find.
III. THE ISSUES
1. Unlawful interrogation of and threats to employees.
2. Aid, assistance, and support to an established labor union.
IV. THE UNFAIR LABOR PRACTICES
A. The facts
Sometime in late October 1965 Respondent's truckdrivers and warehousemen
were solicited both individually and in groups by two representatives of the Team-
LUNARDI-CENTRAL DISTRIBUTING CO. 1447
sters, John Sullivan and Salvatori Cosentino, each of whom met with the employ-
ees on a side street in the vicinity of Wolff and Preston Streets, Baltimore, the loca-
tion of Respondent's warehouse and office. As a consequence of these meetings 10
employees signed Teamsters membership application cards 1 on each of which the
date November 2, 1965, was inserted by Union Organizer Cosentino.
Within the space of a day or two this information was conveyed to Warehouse
Manager Albert J. Mohorn , Jr., by employee Miles and others who had been solic-
ited by the Teamsters . Mohorn sought to confirm this report and to assess the
extent of the Teamsters penetration among the employees. Thus he testified that
when Miles told him "there was a union organizer around and he was from the
Teamsters," Mohorn asked him if he had signed up. To which Miles replied that he
had not. Mohorn then "asked a couple of [the employees] had they signed up for
it" and "what they thought about the Union" and on the following day spoke to
William Carr about it.2 Mohorn testified:
I asked him about the Teamsters and he said he was a member of the Team-
sters, and I asked him what he thought about it, and he said he didn't think
too much of them, and then I said, you know, I told him I would, you know,
sure like to get a nice union for this company, and he said he would speak
to his sister, because his sister had spoke at several, you know, union meetings,
and maybe she would help us.
Through the intervention of Carr's sister in Philadelphia, Thomas E. Gaskins,
who was then an International representative of the RWDSU,3 mailed Cair a supply
of application cards with instiuctions that they be signed by the employees and
returned to him by mail. At the same time Gaskins communicated with Morris
Malmignati, president of RWDSU's Local 1034 in the Maryland area, and the two
of them perfected plans for representing Respondent's employees once the majority
had been established. Mohorn then "had the fellows sign them," 12 in number,
in his presence, and as to one of them, according to Mohorn, in the presence of
Company President Bernard Salditch. Meanwhile Carr signed one of the cards and
procured signatures on four others. Carr took his application and those procured by
Mohorn and mailed them in bulk to the RWDSU headquarters. The remaining four
applications procured by him (supra) were returned by mail individually. In all, 17
employees signed applications to the RWDSU as a consequence of Mohorn's and
Carr's efforts.
More descriptive of these particular efforts were conversations had with several
of the drivers. Thus employee Lewis Miles credibly testified that sometime after he
had reported to Warehouse Manager Mohorn and Arnold Snyder, the Company's
then sales manager, that the Teamsters were seeking to organize the men, Mohorn,
on November 11, gave him an RWDSU application in the presence of President
Salditch and his wife and said, "I want you to join my union." 4 Similarly, employee
Levi White credibly testified to an occasion about the same time when Mohorn
called him and asked him to sign a card. When White expressed some doubt as to
the propriety of Mohorn's request, Mohorn replied that Bernie, meaning President
Salditch, "said it was okay."
Several days earlier employee Harry E. Sanders, while standing outside the office,
overheard a conversation between Mohorn and employee John Hood. In the course
of this conversation Mohorn told Hood he heard that he had joined the Teamsters,
and Hood denied it. Mohorn then replied that if he found out Hood had done so, or
'The card bearing the signature of William Carr is not included among this group, Carr
having denied that he ever signed such an application
2 Counsel for the parties adduced considerable testimony respecting the supervisory
status of employee William Carr, an admitted leadman who performed on the day shift
many of the duties performed by Mohorn at night Because the misconduct attributed to
Carr bears such striking similarity to that in which Mohorn admittedly participated,
namely, interrogation of employees and solicitation of union membership among the em-
ployee, , and because any order I would issue as a consequence of my findings herein would
not be affected in any way by additional findings concerning Carr, I find it unnecessary to
resolve the issue bearing upon his alleged supervisory status Vacuum Platers, Inc , 154
NLRB 588 ; Welsh Industries, Ire, 154 NLRB 463 ; Interstate Smelting and Refining Co.,
148 NLRB 219 , 220; Sheraton -Houston, Corp ., 148 NLRB 1195, 1196 , footnote 2.
3 Gaskins has since resigned his position with RWDSU.
4 I do not accept Mohorn 's denial that he used the word "my." Neither do I credit
Salditch's testimony to the effect that he was not aware of what transpired in the office
on this occasion when he was present.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anyone else had done so, they would be fired .5 Several days later Mohom approached
Sanders and, presenting him with an RWDSU application, told him he wanted him
to sign up for the Union. When Sanders questioned Mohorn's request, seeking to
relate it to the warning he had previously given Hood, Mohorn replied that "this is
all right, because this is my union." 6
On November 15, 1965, Malmignati, for the RWDSU, notified Respondent by
letter that it represented a majority of Respondent's employees and requested a
meeting at which it could demonstrate its majority status and begin negotiations. In
reply on the following day President Salditch expressed Respondent's willingness to
cooperate "so long as all aspects conform to rules put forth by NLRB." Meanwhile
Malmignati, in behalf of RWDSU, filed with the Board its petition for a repre-
sentation election in Case 5-RC-5389. A stipulation for a consent election was exe-
cuted by the parties, a conference held between them at the Board's office on
December 1, and an election held among the employees on December 8, by which
the RWDSU was selected by vote of 15 to 0 and thereafter certified by the Regional
Director as the employees' bargaining representative.
At no time during all this period is there any indication that the Teamsters was
aware of the institution of representation proceedings, and its representative Sullivan
specifically testified that he knew nothing of it. On the other hand it is to be noted
that the Board's official notices had been duly received by Respondent and had been
prominently posted about the warehouse and office sometime prior to the election
itself.? Moreover, it is clear that during all of this period, beginning with Carr's
call to his Philadelphia sister, that no one connected with the RWDSU had any
knowledge of the Teamsters earlier solicitation among the employees
Following the RWDSU's certification as bargaining representative it submitted a
proposed contract to Respondent and met with it on November 16 or 17. Present
at this meeting were President Salditch for the Company, Malmignati and Gaskins
for the RWDSU, and employees Carr, Miles, Knight, and Lee. During the 4-hour
discussion, various changes were made in the proposed contract, and on several
occasions when disputes arose among the parties, they separated for caucus pur-
poses. By the conclusion of the session a rough draft had been prepared and was
signed by all, and the contract, in final form became effective on December 20.
Included in the contract executed between Respondent and RWDSU were the
following clauses:
ARTICLE I-UNION RECOGNITION:
Section Ia. The Company hereby recognizes the Union as the sole and exclu-
sive bargaining agency for all production and maintenance employees at its
factory located at 1901 E. Hoffman Street , Baltimore , Maryland, excluding,
however, all office employees, professional employees, executives , foremen and
other supervisors as defined in the Labor-Management Relations Act as
amended.
Section 2a. Each newly hired employee shall be on probation for a period of
forty-five (45) calendar days after hiring. There shall be no responsibility for
the re-hiring of probationary employees if they are laid off and discharged
during the forty-five (45) calendar days. The Company may discharge any
such employee during the said forty-five (45) calendar day period for any
reason whatsoever with or without just cause . Probationary employees who
continue in the service of the Company subsequent to the period of forty-five
(45) calendar days from the date of the original hiring shall receive full credit
of service from the date of original hiring.
b. These probationary employees shall become members of the Union upon
the expiration of the forty-five (45) calendar day period and all such employ-
ees as well as all employees who have been employed for a period of more
than forty-five (45) calendar days shall be and continue to remain members of
the Union during the term of this Agreement as a continuing condition of
employment.
' The credited testimony of Sanders . flood corroborated this testimony but as I do not
credit him generally , ( infra ) I do not rely upon his corroboration here.
9 The credited testimony of Sanders.
I The undented testimony of Salditch , corroborated by Gaskins. -
LUNARDI-CENTRAL DISTRIBUTING CO. 1449
Employee William Carr testified without contradiction that his dues are being
deducted under the contract, but that except for his original RWDSU application
card authorizing the Union to represent him, he never signed any card or document
authorizing the deduction or withholding of monies for dues from his wages.
B. Other alleged misconduct
It is alleged that Respondent, by its President Salditch, "accorded an economic
benefit to an employee because he thought the said employee had refrained from
becoming a member of the Teamsters and engaged in activities in its behalf." The
employee referred to was Johnnie F. Hood, and the support for this allegation rests
solely upon Hood's testimony. I observed Hood as he testified and find him to be a
confused and unreliable witness. It was never established from his own testimony,
for example, whether he actually knew for certain what labor organization he had
joined and, in fact, what one he had voted for in the December 8 election. In fact
he still appears to be under the mistaken impression that he voted for the Team-
sters. Under such circumstances I am not disposed to accept his equally confusing
testimony relative to monies withheld from his paycheck because of an accident
involvement, and later remitted to him and now claimed to be some sort of alleged
benefit. On the contrary, I accept President Salditch's explanation of the incident;
namely, that Hood was involved in responsibility for an accident to the amount of
$77. The sum was first deducted from Hood's paycheck in full, but upon his protest
that his personal budget could not stand such an arrangement, the lump sum deduc-
tion was canceled, a $ IO.per-week deduction substituted for it, and a second check
representing the $67 adjustment was given to Hood in satisfaction of his protest and
as part of the new arrangement. As I have thus not credited the confused testimony
of Hood on this matter and have accepted Salditch's reasonable explanation I would
accordingly dismiss so much of the complaint as alleges it to be a violation of the Act.
C. Analysis and conclusions
Reduced to its simplest terms this case is one in which the Teamsters become
interested in an employer's employees and the employer reacts by immediately
befriending another union. All of this is evident from the testimony of Warehouse
Manager Mohorn, an admitted supervisor. Mohorn's actions were completely
straightforward and with the knowledge and tacit approval of Respondent's Presi-
dent Salditch,8 and clearly manifests Respondent's desire that its employees join the
RWDSU and not the Teamsters.
To begin with, Mohorn, when learning from Miles of the Teamsters' activities,
admittedly proceeded to question him and others as to whether they had joined
and what they thought of this particular union. Regardless of who initiated the con-
versation concerning the Teamsters, and here it was Miles, inquiries of the sort
which Mohorn admittedly made have invariably been considered a form of pro-
scribed interference with employee rights . And if explanation of this be required,
the very consequences of Mohorn's questions underline their gravity, for it was
directly as a result of them that the Teamsters was eventually replaced, as the
employees' choice, by the RWDSU-the Respondent's choice. By such questioning,
therefore, and by Mohorn's threat to Hood that he and others would be flied if
they joined the Teamsters, I would conclude and find that Respondent interfered
8I do not credit Salditch's testimony that the first he heard of the RWDSU was when he
received Malmignati's letter of November 15 requesting recognition and bargaining. From
my observation of him on the stand and, as a specific example, from the answer he gave to
counsel when asked about the first information he had received concerning the Teamsters
I am persuaded that Salditch was not entirely frank Thus be said of the word he had
received . "It went in my ear, I retained it, and I went on to the next big problem that I
had facing me " Conversant as I am with labor relations generally it is reasonable that
I assume this not to be an employer's normal reaction to his first knowledge of organiza-
tion among his employees While Salditch would have me believe that the importance of the
Teamsters arrival was akin to the daily arrival of the postman, the credible testimony
throughout the record suggests that Sullivan's meetings with the men (supra) were
events of the first magnitude and that Salditch should not conceivably be expected to be
either unaware of or unconcerned about I accordingly do not rely upon his testimony
except where it concerns matters of a routine nature or is corroborated by credible testimony.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, restrained, and coerced its employees in the exercise of rights guaranteed
them by Section 7 of the Act, thereby violating Section 8(a)(1).9
The distribution of union application cards among employees by supervisory
personnel, as was done here by Mohorn, and at his direction, by Carr, and the
request that employees sign them; and conversely, the threat that belonging to the
rival union would result in discharge, constitutes a form of assistance, support, and
interference proscribed by the Act.10 I accordingly conclude and find that Respond-
ent has thereby violated Section 8(a)(2) and (1) of the Act.
Additionally, in the negotiations which thereafter ensued with its chosen union,
Respondent was represented on both sides of the bargaining table, for William
Carr was one of the employees selected to bargain for the men Still without finding
if necessary to establish Carr's supervisory status (supra, footnote 2), it is manifest
throughout the record that in matters of labor relations he so acted in manage-
ment's interest as to be considered its agent. Thus it was he who cooperated with
Warehouse Manager Mohom in first locating the RWDSU. Having done this he
was equally cooperative in soliciting individual memberships at Mohorn's direction,
and representing to the employees the fact that the RWDSU was the Respondent's
choice." Under such circumstances when Carr thereafter participated in the bar-
gaining which resulted in a favored union-shop provision for the RWDSU it most
certainly can be said that as it had first selected the RWDSU the Respondent now
willingly favored it further by maintaining its continued membership among the
employees through the provision of the contract. (Supra.) To begin with, when
it is considered how the union memberships were first procured, it certainly cannot
be said that these employees, merely by thereafter voting in a Board election,
thereby constituted themselves as an uncoerced majority.ia Neither citation of
authority nor extended discussion is necessary to conclude as I do that Respondent's
continuing intrusion into the representative affairs of its employees could have no
other consequence than their selection of its chosen representative in an clrction
Historically this is what is meant by a coerced majority. Nor is it of consequence
that neither the RWDSU nor any of its officials have been shown anywhere in the
record to be aware of the manner in which they were employed.
Having said so much it clearly follows that negotiations with the representatives
of such a coerced majority can beget nothing but further coercion. In this case it
was a contract requiring that those who were originally hoodwinked into the
RWDSU must now stay there. As a consequence, there has been assistance and
support to the RWDSU and interference with it, and as to the employees forced
by the contract to become or remain members of this labor organization not of their
own free choosing, they have been discriminated against by the device of becoming
liable to discharge upon their failure to join or remain with the RWDSU. Accord-
ingly, and in the respects I have set forth above, I conclude and find that Respond-
ent has rendered unlawful support and assistance to the RWDSU and unlawfully
interfered with its administration in its relationship with Respondent's employees,
agents, and supervisors, thereby violated Section 8(a)(1) and (2) of the Act, and
by the execution of the contract considered above, and in the particulars wherein
union membership would be required of employees as a condition of continuing
employment, it has discriminated against such employees in violation of Section
8(a)(3) and (1) of the Act.13
It is urged by General Counsel that Respondent has not only rendered unlawful
support and assistance to the RWDSU but that its conduct constitutes a form of
unlawful domination. "A labor organization is considered dominated within the
meaning of Section 8(a)(2) if the employer has interfered with its formation or has
assisted or supported its administration to such an extent that the organization must
be regarded as the employer's creation rather than the true bargaining representa-
tive of the employees." 14 Here, I fail to see in the procurement, first, of a suitable
union, and then, of a full complement of employee members, a usurpation by the
company or relinquishment by the union of the basic control of the union's affairs,
9 Lindsay Newspapers, Inc, 130 NLRB 680.
10 Trenton Manufacturing and Distributing Co., 129 NLRB 797.
1 Grand Foundries Inc., 151 NLRB 1170; Kocher, Walter, and Rose Kocher, Co-partners
d/b/a Walter Kocher and Co., 104 NLRB 1090.
1' Case 5-RC-5389, in all of its aspects, was an administrative action taken without
knowledge of the Teamsters' interest and it can in no way be deemed an adjudication of
the matters here in controversy. Milco Undergarment Co , Inc., 106 NLRB 767.
is Bernhardt Bros. Tugboat Service, Inc., 142 NLRB 851.
'4 27th Annual Report of the National Labor Relations Board (1962) p. 99.
LUNARDI-CENTRAL DISTRIBUTING CO. 1451
'excepting only Carr's voice id the 4-hour bargaining session 'from which came
the contract. Domination means something more, it would seem. It is the act of
participation and control by management of the labor organization concerned.15
There is. no evidence of such here and I, accordingly, conclude and find that the
unlawful conduct attributable to Respondent as a violation of Section 8(a)(2) of
the Act includes no element of employer domination.
Finally, it appears that without any employee approval whatever Respondent
deducted RWDSU dues from the wages, of its employees. Not only is such action a
further violation of Section 8(a)(2) 16 but in addition, because the employees are
thereby involuntarily assessed a portion of their wages to support a labor organiza-
tion not of their uncoerced choice,-they are thereby discriminated against in further
violation of Section 8(a)(3) and (1) of the Act.
In summary, therefore, I would conclude and find that Respondent, by Mohorn's
interrogation and threats, interfered with, restrained, and coerced employees in vio-
lation of Section 8(a)(1) of the Act; by Mohorn's and Carr's enlistment of the
RWDSU and procurement of employee memberships in it, by Carr's and Salditch's
negotiation and execution of a contract , and Salditch 's subsequent maintenance of
this contract , in which a union shop and maintenance of membership was afforded
the RWDSU, and by the unauthorized withholding of RWDSU dues from employ-
ees wages , Respondent rendered unlawful assistance and support to the RWDSU
and interfered with its operations in violation of Section 8(a)(2); and by the
aforementioned contract provisions and the dues deductions it discriminated against
its employees in violation of Section 8(a)(3)
With respect to the allegation in the complaint that Respondent, through Presi-
dent Salditch, gave unlawful benefits to employee Hood, I shall recommend that it
be dismissed for want of credible evidence.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, which have been
found to constitute unfair labor practices , occurring in connection with the opera-
tions of Respondent described in section I, above , have a close , intimate , and sub-
stantial 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.
VI. THE REMEDY
I have found that Respondent has unlawfully interrogated and threatened its
employees , rendered unlawful aid and support to the RWDSU and otherwise inter-
fered with its administration , and in the course of such conduct unlawfully discrimi-
nated against its employees, thereby interfering with them and restraining and
coercing them in the exercise of their statutory rights. I shall recommend that
Respondent cease and desist from such conduct and from giving effect to the collec-
tive agreement between it and the RWDSU or to any extension , modification, or
renewal thereof , with the understanding that nothing in my Recommended Order
shall be construed as requiring or permitting the varying or abandoning of wages,
hours, seniority , or other substantial provisions contained in the contract.17
Counsel for the General Counsel would urge, contrary to my findings and con-
clusions, that the contract violative of Section 8(a) (2) constituted employer domi-
nation of the RWDSU and warrants permanent withdrawal of recognition. I am
referred to no authority where, in the absence of a finding of domination as here,
I may recommend the stringent remedy requested, although I am quite conscious of
the likelihood that the employees who once selected the RWDSU may well do so
again , regardless of any findings I may make that they were initially coerced into
that organization . Be all of this as it may , I am aware of no alternative to imposing
the usual requirement that Respondent affirmatively withdraw and withhold all
recognition from the RWDSU unless and until it has been again certified as a con-
sequence of a Board-conducted election.18
I shall also affirmatively recommend that Respondent reimburse its employees for
any dues or assessments withheld from their wages pursuant to the contract with
15 Modern Plastics Corporation, 155 NLRB 1126.
1e Meyer Bros . of Missouri, Inc, 151 NLRB 889.
17 The Bassiek Co., 127 NLRB 1552.
Is Pepsi Cola Bottling Co. of Sacramento , 147 NLRB 410.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the RWDSU or in accordance with any other arrangement existing between the
parties.1e
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended , I recommend 20 that Lunardi-Central
Distributing Co., Inc ., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating its' employees as to their union membership or
preference. ,
(b) Threatening its employees with discharge for joining or remaining a mem-
ber of the International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , Local No. 355.
(c) Aiding, assisting , or contributing support to Retail , Wholesale and Depart-
ment Store Union , Local 1034 , AFL-CIO, or any other labor organization of its
employees.
(d) Giving effect to the collective-bargaining agreement with the aforesaid
Local 1034, dated December 20, 1965, or any modification , renewal, or extension
thereof, or any other collective -bargaining agreement with said labor organization
which may now be in ,force, unless and until said labor organization shall hereafter
be recertified by the National Labor Relations Board as the exclusive representative
of its employees ; but nothing herein shall be construed to vary or abandon the
wages, hours , seniority , or other substantial provisions of any such agreement.
(e) Recognizing Retail , Wholesale and Department Store Union , Local 1034,
AFL-CIO, as the exclusive representative of its employees for the purposes of
collective bargaining unless and until said labor organization has been hereafter
recertified by the National Labor Relations Board as the exclusive representative
of such employees.
(f) Encouraging membership in Retail, Wholesale and Department Store Union,
Local 1034, AFL-CIO, by entering into the aforesaid collective -bargaining agree-
ment with said labor organization and thereby maintaining , enforcing , and giving
effect to a provision thereof requiring its employees as a condition of employment
to join or assist such labor organization , except as permitted by Section 8(a)(3)
of the Act.
(g) Withholding or deducting from the wages of any of its employees dues or
assessments to be remitted to Retail , Wholesale and Department Store Union,
Local 1034, AFL-CIO, or any other labor organization , unless such withholding
or deduction is made pursuant to a duly signed authorization of the employee
involved.
(h) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of rights guaranteed them by Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Withdraw and withhold any recognition it has granted to Retail , Whole-
sale and Department Store Union , Local 1034 , AFL-CIO unless and until it has
been recertified in the manner aforesaid by the National Labor Relations Board.
(b) Reimburse its respective employees for the amount it has withheld and
deducted from their wages as dues and assessments to be remitted to Retail , Whole-
sale and Department Store Union , Local 1034 , AFL-CIO.
(c) Post at its Baltimore , Maryland, offices and warehouse copies of the attached
notice marked "Appendix." 21 Copies of the said notice to be furnished by the
Regional Director for Region 5, after being duly signed by Respondent 's repre-
sentative , shall be posted by Respondent and be maintained by it for 60 consecu-
1e Double A Products Company, 134 NLRB 222.
pIn the event that this Recommended Order is adopted by the Board, the words
"Recommended" shall be deleted from its caption and wherever else it thereafter appears ;
and for the words "I Recommend" there shall be substituted, "the National Labor Rela-
tions Board hereby orders "
21 If the Recommended Order of the Trial Examiner is adopted by the Board, the words
"a Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "a Decree of the United States Court of Appeals Enforcing an Order," for the words
"a Decision and Order."
LUNARDI-CENTRAL DISTRIBUTING CO .' 1453
tive -days thereafter, in conspicuous places, 'including all places where ' notices to
employees are customarily posted. Reasonable steps shall be- taken by Respondent
to insure that said notices are not altered, defaced; or covered by other materials.
(d) Notify the said Regional Director for'Region 5, in writing, within 20 days
from the date of the receipt of this Trial Ekaminer's Decision, what steps the
Respondent has taken to comply herewith 22
221n- the event that this Recommended Order is adopted by the Board this provision
shall be modified to read • "Notify the said Regional Director, in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees about their union activities or
preferences.
WE WILL NOT threaten our employees with discharge for joining or remain-
ing a member of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 355.
WE WILL NOT aid, assist, or contribute support to Retail, Wholesale and
Department Store Union, Local 1034, AFL-CIO, or any other labor organiza-
tion of our employees.
WE WILL NOT give effect to the collective-bargaining agreement with Local
1034 dated December 20, 1965, or any extension, renewal, or modification of
it, nor any other agreement with Local 1034 which may now be in force
unless and until Local 1034 has again been selected by our employees in an
election conducted by the National Labor Relations Board, but WE WILL NOT
vary or abandon the wages, hours, seniority, or other substitute provisions
contained in any such agreement.
WE WILL NOT recognize Retail, Wholesale and Department Store Union,
Local 1034, AFL-CIO as the exclusive representative of our employees for
the purposes of collective bargaining unless and until it has been selected by
them in the manner described above.
WE WILL NOT encourage membership in Local 1034, by entering into an
agreement as described above, thereby maintaining, enforcing, and giving
effect to a provision in it which requires membership in Local 1034 as a con-
dition of continued employment, except as permitted by Section 8(a)(3) of
the Act.
WE WILL NOT withhold or deduct from the wages of any of our employees
dues or assessments to be remitted to Local 1034 or any other labor organiza-
tion without having received from each employee a written authorization to
do so, and WE WILL reimburse any employee from whose wages we have with-
held or deducted monies to be remitted to Local 1034 for the purposes aforesaid.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of right to self-organization, to form,
join, or assist labor organizations , to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection as guaran-
teed by Section 7 of the National Labor Relations Act, and to refrain from
any and 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, as amended.
All our employees are free to become or remain , or refrain from becoming or
remaining, members of either Retail, Wholesale and Department Store Union, Local
1034, AFL-CIO or International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local No. 355 or any other Union.
LUNAPwi-CENTRAL DISTRIBUTING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, Sixth
Floor , 707 North Calvert Street, Baltimore , Maryland 21202 , Telephone 752-2159.
A. G. Pollard Company and Local 372, Retail Clerks International
Association , AFL-CIO. Case 1-CA-5451. December 2, 1966
DECISION AND ORDER
On August 15, 1966, Trial Examiner Charles W. Schneider issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has considered the Trial Examiner's Decision, the
exceptions, the brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding 1
Pursuant to a Decision and Direction of Election by the Regional Director for
Region 1 of the National Labor Relations Board, herein called the Board , an election
by secret ballot was conducted on December 13, 1965, among the employees of A. G.
Pollard Company, herein called the Respondent .2 In this election , Local 372, Retail
Clerks International Association , AFL-CIO, herein called the Union , received a
i Official notice is taken of the representation proceeding . See Section 9(d) of the Na-
tional Labor Relations Act.
2 The bargaining unit found appropriate by the Regional Director , and in which the elec-
tion was held, is as follows :
All full-time and regular part-time selling and nonselling employees at the Respond-
ent's Lowell, Massachusetts retail store, including cash auditors , commission person-
nel in the Ladies Ready -to-Wear Department , Cosmetic Department employees and
watchmen /maintenance employees , but excluding part-time employees working less
than fifteen ( 15) hours per week, leased department employees, commission personnel
in the Furniture , Rugs, Fur , Appliance , Menswear and Interior Decorating Depart-
ments, employees of the Old Homestead House, Bedford , Massachusetts , confidential
secretaries , professional employees, guards, supervisory trainees , department heads,
assistant buyers, assistant buyer trainees , buyers and all other supervisors as defined
in Section 2(11) of the Act.
161 NLRB No. 128.