M. Eskin & Son

National Labor Relations Board - Board Decisions

Jan 30, 1962

135 N.L.R.B. 666 (N.L.R.B. 1962)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
M. Eskin & Son and William R. Gerics
Confectionery and Tobacco Drivers and Warehousemen 's Union,
Local 805, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and William R. Gerics.
Cases Nos. 22-C.11-555 and N2-CB-.46. ^Ianuary 30, 1962
DECISION AND ORDER
On January 12, 1961, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. The Trial Examiner found that the
Respondents had not engaged in certain other unfair labor practices
alleged in the complaint. Thereafter, the Respondents and the Gen-
eral Counsel filed exceptions to the Intermediate Report and support-
ing briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following exceptions, ad-
ditions, and modifications.
As set forth in the Intermediate Report, the Respondent Employer
and the Respondent Union were parties to a contract containing a no-
strike clause when 21 of the Employer's 25 employees, on December 2,
1959, walked out in violation of this contract. On the following day,
the Respondent Employer discharged the strikers. In the course of
State court proceedings on the Respondent Employer's request for
an injunction, settlement terms, including reinstatement of all
strikers, were agreed upon but no settlement agreement was executed.
Thereafter, the Employer refused to reinstate 9 strikers, referred to
as the "out" group, but offered to reinstate the other 12, referred to as
the "in" group, on condition that they obtain clearance from the
Union. The General Counsel excepts, inter alia, to the Trial Exam-
135 NLRB No. 61.
M. ESKIN & SON 667
iner's failure to find that the Respondent Employer condoned the
unprotected activity of the "out" group and thereafter discrimina-
torily denied them reinstatement. Both Respondents except, inter
alia, to the Trial Examiner's findings of violations of the Act with
respect to their clearance arrangement and its implementation.
A. Condonation
The Trial Examiner found that the "principal evidentiary support"
for the contention that the Respondent Employer condoned the un-
protected activity of the "out" group were (1) "the statement of
Eskin's attorney at the December 11 court proceeding respecting the
purported settlement of that action," and (2) "Manager Jacobs' con-
sequent conversation with strikers that same day concerning ar-
rangements for returning to work." The Trial Examiner concluded
that condonation had not been established, noting that (1) the "out"
group' 'had not actually returned to work ; (2) there ' was no "final
meeting of minds on the subject of condonation"; and (3) there was
no showing of "detrimental reliance." We do not agree with this
conclusion nor with the standards on which it is based.
Condonation indicates an employer's willingness to "wipe the slate
clean" I and to continue the employer-employee relationship notwith-
standing the fact that events occurred which would have justified
its termination, and notwithstanding the fact that it was at one point
terminated because of such events.2 Condonation is a question of
fact,3 and a determination of whether an employer has forgiven un-
protected activity of its employees requires an evaluation of all the
relevant conduct. In the present case, such conduct includes the fol-
lowing incidents, some of which are not adverted to in the Inter-
mediate Report :
1. Following a prehearing conference with the strikers' attorney in
the judge's chambers, in connection with the injunction hearing of
December 11, 1959, the Respondent Employer's attorney, Villanueva,
stated in court : "A settlement has been agreed upon by counsel and
the parties who are all in court here today." Ile went on to state "the
terms of this settlement," which included the return of all 21 strikers
to work, cessation of all striking and picketing, withdrawal of unfair
labor practice charges, payment of initiation fees by the two men
whose refusal to join the Union precipitated the strike, and repay-
ment of shortages "as previously to avoid grave hardship on the em-
ployees by having said moneys taken out at one time." Immediately
1 Thayer, Inc. of Virginia, 125 NLRB 222, 223.
2 E.A. Laboratories, Inc., 86 NLRB 711, 713, modified on other grounds 188 F. 2d
885 (CA 2).
2 Bechtel Corporation, 127 NLRB 891.
(668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.thereafter, Plant Manager Jacobs solicited the strikers outside the
courtroom to return to work.
2. On December 12, Villanueva refused to proceed with the settle-
ment agreement, but did not indicate that the strikers' unprotected
activity was the reason.
3. On December 15 and 16, Villanueva offered to reinstate 15 of
the strikers, and gave as the reason for the refusal to reinstate the
other 6 not their unprotected activity but that they had excessive
shortages.4
4. On December 16, subsequent to the dismissal of the State court
action at the Respondent Employer's request, Jacobs asked all the
strikers to call him with reference to their return to work ; he there-
after denied reinstatement to the "out" group for the asserted reason
that their jobs were filled.
5. In his conversations with the "in" group, Jacobs stated that
.. he made mistakes and the inen made mistakes , but all was for-
given...." 5
6. The Respondent Employer failed, at any time during the events
here in question or at any point in this proceeding, to advert to the
strikers' unprotected activity as a reason for denying them
reinstatement.
It is clear, from the entire record, particularly the conduct outlined'
above, that there was no causal relationship between the "out" group's
unprotected activity and the Respondent Employer's failure to rein-
state them. We find, instead, that such conduct signified that the un-
protected activity of the "out" group employees was not an obstacle to
their continued employment and indicated condonation thereof ; that
the Respondent Employer did condone the employees involved prior
to their unconditional application for reinstatement on the afternoon
of December 16, 1959, and, accordingly, that the status of the "out"
group became that of economic strikers entitled to reinstatement upon
application unless they had been permanently replaced prior to their
application.6
The burden of establishing such permanent replacement rests upon
the employer.' While the Respondent Employer presented extensive
testimony with respect to its employee complement during the period
from December 3 through 16, 1959, 'it failed to establish that any of
4In view of the Respondent Employer 's explicit acts on December 11, we find that it
did not except the six strikers , who allegedly had excessive shortages , from its general
condonation of all the strikers Nor does the Respondent Employer advert to this matter
in its brief to the Board.
5 Although condonation of some unprotected strikers does not necessarily indicate con-
donation of others in the same category ( Thayer, Inc of Virginia , 125 NLRB 222, 223),
language used by an employer to one group may indicate condonation of another. In this
case, Jacob's conversations with the "in" group indicated his forgiveness in general of the
unprotected strike.
9 Fafnir Bearing Co , 73 NLRB 1008, 1014.
1 New Orleans RooBevelt Corporation , 132 NLRB 248.
M. ESKIN & SON 669
the "out" group had, in fact, been permanently replaced." We find,
therefore, upon the entire record herein, that the Respondent Em-
ployer's refusal to reinstate these employees upon their application
was violative of Section 8(a) (3) and (1) of the Act.'
B. Clearance, arrangement, understanding, or practice
The Trial Examiner found,'and we agree, that the Respondents,
Employer and Union, had an arrangement, understanding, or prac-
tice to impose unlawful conditions on the "in" group's reinstatement.
When the 12 men in the "in" group applied for reinstatement on
December 16, Jacobs conditioned their return to work on their ob-
taining union clearance, and told them to communicate with the
Union that evening. Balajthy, a member of the "in" group, testified
that when he said, "It is quite late in the evening and I don't think
nobody will be at 805," Jacobs answered, "Yes, there would be some-
body at 805, so make the phone." Thereafter, Jacobs called Roth, an
officer and partial owner of the Respondent Employer, and advised
him which men were in the "in" and "out" groups. Roth then called
Ornstein, a union official, and gave him this information.
After their meeting with Jacobs, some of the men called the Union
and arranged a meeting for the following morning for both the "in"
and "out" groups. On the morning of December 17, all these men ex-
cept Williamson, who is discussed below, met at the union office.
According to the credited testimony of Balajthy, when they said that
Jacobs had conditioned their return to work on union clearance, the
union officials replied that reinstatement was conditioned on their
execution of certain documents, already prepared, which provided for
affirmation of the Union as bargaining agent and of the existing con-
tract; reauthorization of checkoff; withdrawal of the petition and
charges filed by another union on their behalf ; and release of the
Union from any claims whatsoever. Three of the men, Balajthy,
Kupic, and Smith, refused to sign these documents and they, along
with Williamson, never returned to work.
The condonation of the "in" group is, of course, clear. The Re-
spondent Employer maintained at the hearing and in its brief that
8 Jacobs testified that he hired about 25 "permanent" replacements during this period
although not all 25 were still employed on December 16. In spite of this contention the
Respondent Employer was ready to take back all 21 strikers on December 11 , and from
December 15 until the second injunction proceeding on December 16, the Respondent
Employer was ready to take back all except 6 who it claimed had excessive shoe tag"
There were other contradictions in Jacobs ' testimony on this matter At some points in
the hearing , he contended that the "out" group was denied reinstatement on December 16
because the Respondent Employer was operating at full capacity with permanent replace-
ments , who were "better" than the "out" group, but, in this connection , lie mentioned
only one member of the "out" group, Smalley , whose "attitude" he stated was the subject
of many customer complaints . At another point in the hearing, Jacobs testified that the
"out" group was denied reinstatement because the Respondent Employer was not operat-
ing at full capacity , and had only 12 jobs open.'
New Orleans Roosevelt Corporation , 132 NLRB 248.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these 12 individuals were offered reinstatement, and 8 of them did in
fact return to work. Accordingly, as their unprotected activity, like
that of the "out" group, had been condoned, their status was that of
economic strikers entitled to reinstatement unless replaced prior to
their application. There is no contention that any of the "in" group
had been replaced. Rather, we find, as did the Trial Examiner, that
the Employer and the Union, by their joint action, imposed unlawful
conditions upon the "in" group's reinstatement 10 which culminated
in the failure of Williamson, Kupic, Balajthy, and Smith to be rein-
stated. We find further, as did the Trial Examiner, that they thereby
respectively violated Section 8(a) (1), (2), (3), and (4), and Section
8(b) (1) (A) and (2 ) of theAct.il
C. The Union's refusal to process grievances
When those in the "out" group asked the Union to institute griev-
ances on their behalf, in accord with the provisions of the Union's
contract with the Respondent Employer, the Union conditioned its
processing of the grievances on execution of the documents found
above to contain discriminatory conditions. As the unprotected activ-
ity of these individuals had been condoned by the Respondent Em-
ployer, they were employees within the meaning of the Act, and the
Union's imposition of discriminatory conditions upon its representa-
tion of them was, therefore, as the Trial Examiner found, a violation
of Section 8(b) (1) (A) of the Act.12
The Remedy
As we have found that the Respondents have engaged in unfair
labor practices, we shall adopt the Trial Examiner's remedy pro-
visions with the following modifications.
As we have found that the Respondent Employer condoned the un-
protected strike activity of the nine employees listed in Appendix C,ls
but thereafter unlawfully refused to reinstate them upon application,
we shall order it to offer them immediate and full reinstatement to
10 Pacific American Fi8herse8, Inc., 124 NLRB 9, 22
11 When Jacobs told Williamson on the telephone that his reinstatement was conditioned
on union clearance , Williamson made no further attempt to secure reinstatement The
Respondents contend that Williamson is in a different category from that of Kupic.
Balajthy, and Smith on the ground that he was one of the two men whose failure to
comply with the union-security clause precipitated the strike We find no merit to this
contention . As Williamson was discharged along with the other strikers for unprotected
activity , and not for failure to comply with the union-security clause, and as his dis-
charge was nullified by subsequent condonation , as was that of the other strikers, the
failure to reinstate him was a violation of the Act.
13Feerle88 Toot and Engineering Co., 111 NLRB 853, 858, enfd . 231 F. 2d 298 (CA. 7).
cert denied 352 U.S. 833.
18 Although Earl C . Bunting's name was apparently inadvertently omitted from the
complaint , we shall include him in Appendix C as his inclusion in this group was fully
litigated.
M. ESKIN & SON 671
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and to make them
whole for any loss of pay they may have suffered by reason of the
discrimination against them by paying each of them a sum of money
equal to that which he would normally have earned during the period
from (a) December 17, 1959, to the date of the Intermediate Report
herein; 14 and (b) from the date of this Decision and Order to the
date of the Respondent Employer's offer of reinstatement less the net
earnings of each, to be computed on a quarterly basis in the manner
established by the Board in F. TV. Woolworth Company, 90 NLRB
289.
The Respondents except to the Trial Examiner's recommendations
that the Employer withdraw and withhold recognition from the
Union as bargaining representative of its employees until it is certi-
fied by the Board as the exclusive bargaining representative, and that
both Respondents cease performing, maintaining, or otherwise giving
effect to the January 1959 or any other collective- bargaining agree-
ment, or to any renewal, extension, modification, or supplement there-
of. We find merit in these exceptions. As all the unfair labor prac-
tices for which this remedy was recommended occurred during the
term of the Respondents' collective-bargaining contract, the execution
and maintenance of which are not under attack, we do not believe that
an order requiring the parties to suspend their bargaining relation-
ship pending an election is necessary to effectuate the policies of the
Act.15 Accordingly, as there is no basis for a finding that the contract
between the parties was a consequence of the unfair labor practices
found, or that the contract thwarts any policy of the Act, we reject
the Trial Examiner's recommendation for the issuance of a cease-
recognition order.",
The Respondents also except to the breadth of the Trial Examiner's
recommended order. As the character and scope of the unfair labor
14 when, as here, the Board , contrary to the Trial Examiner , orders reinstatement of
employees , backpay is normally abated from the date of the Intermediate Report to the
date of the Board's Decision and Order . The Jackson Press, Inc , 96 NLRB 897.
"See Alaska Salmon Industry, Inc., and its Member Employers, 122 NLRB 1552
Ie N L R B. v. Scullin Steel Company , 161 F. 2d 143, 147 ( CA. 8) Contrary to his
colleagues , Member Fanning would adopt the Trial Examiner's recommendation that a
cease-recognition order be issued . In his view , the Scullin Steel case , cited by the majority,
is inapposite In that case , the Eighth Circuit declined to order withdrawal of recogni-
tion, noting that "there does not seem to be even a suspicion that the Independent did not
remain the choice of the majority of the employees " The record in the present case, in
Member Fanning's view, evinces considerably more than a "suspicion ": 21 of 25 em-
ployees In the unit expressly informed the Union and the Employer they did not want
the Union to represent them, and went so far as to select a new committee , attempt to
replace the shop steward , and engage In a strike to protest continued application of the
union -security agreement . Under these circumstances , and in view of the extensive find-
ings of assistance made herein-as well as pre-10 ( b) evidence of employer solicitation,
which Member Fanning would consider as background for purposes of fashioning a
remedy-Member Fanning would order Respondent Eskin to cease recognizing the Union,
pending its certification in a valid Board election.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices found to have been engaged in by the Respondents go to the
very heart of the Act, we find without merit the Respondents' excep-
tions to the provisions of the recommended order that they cease and
desist from in any manner interfering with, restraining, and coercing
the employees in the exercise of the rights guaranteed by Section 7
of the Act," and that the Respondent Employer cease and desist from
in any manner supporting and assisting the Respondent Union. We
find merit, however, in the exceptions, inter alia, to the recommended
provisions requiring the Respondent Employer to cease and desist
from supporting and assisting "any other labor organization," and the
Union to cease and desist from maintaining unlawful agreements with
"aliy other employer." Accordingly, we shall limit the applicability
of these provisions to the Respondent Employer and the Respondent
-Union.la
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent, M. Eskin & Son, East Brunswick, New Jersey,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Maintaining, performing, or otherwise giving effect to any
agreement, arrangement, understanding, or practice which imposes
unlawful requirements of clearance by Confectionery and Tobacco
Drivers and Warehousemen's Union, Local 805, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as a condition of employment, or in any other manner
supporting and assisting said Union.
(b) Requiring as a condition of employment that its employees re-
voke designations of any labor organization, execute checkoff author-
izations in behalf of the above-named Union, request withdrawal of
17 Aurora City Lines, Inc, 130 NLRB 1137 -
11 The Union also excepts to the Trial Examiner's conclusion that its letter of Decem-
ber 18, 1959, to Balajthy, Kupic, and Smith was insufficient to toll its backpay liability
respecting these men based on his finding that there was no showing that the Respondent
Employer had received a copy of the letter or had been informed that, so far as the
Union was concerned , union clearance was not necessary for their further employment
The Union claims that it introduced this letter for the sole purpose of establishing that
it was not opposed to reinstatement of these men , not in connection with the issue of
tolling backpay , which was not raised at the hearing, moreover , the Union states in its
brief that a copy of the letter was given to the Respondent Employer, and contends that
the matter should be left to a later stage in the proceedings . We find that this matter
can best be resolved at the compliance stage of this proceeding.
The General Counsel excepts to the Trial Examiner 's failure to make a finding with
respect to Shortledge 's alleged supervisory status, and to his failure to conclude that the
Respondents violated Section 8(a)(2) and ( 1) and 8 (b)(1)('A) of the, Act as a result
of Shortledge 's dual agency as a supervisor and shop steward We find, however, that
the record does not establish Shortledge 's statutory supervisory status.
M. ESKIN & SON 673
representation petitions and unfair labor practice charges, and hold
said Union harmless and release it from any and all claims. _
(c) Discharging, refusing to hire or to reinstate, or discriminating
in any other manner against its employees, including the employees
named in Appendixes C and D, attached hereto, in regard to their hire
and tenure of employment or any term or condition of employment to
encourage membership in the above-named Union, or to discourage
membership in any other labor organization, except to the extent per-
mitted by Section. 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization , to form
labor organizations, to join or assist the above-named Union, or any
other labor organization,. to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection; or to refrain from any and all such activities, except to the
extent that such rights 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 modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to the employees named in Appendix C attached hereto
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them whole, in the manner set forth
-in "The Remedy" section hereof, for any loss of earnings resulting
from the discrimination against them.
(b) Offer to the employees- named in Appendix D attached hereto
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and, jointly and severally with Respondent
.Union, make them whole, in-the manner set forth in "The Remedy"
section of the Intermediate Report, for any loss of earnings resulting
,from the discrimination against them.
. (c) Preserve and, upon request, make available to the Board or its
.agents, for examination and copying; all.payroll records, social secu-
rity payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay due and the
rights of 'reinstatement under the terms of this Decision and Order.
(d) Post at its plant in East Brunswick, New Jersey, copies of the
'notice attached hereto marked "Appendix A." 19 Copies of said notice,
19 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
634449-62-vol . 135--44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be furnished by the Regional Director for the Twenty-second Re-
gion, shall, after being duly signed by Respondent Eskin, be posted
immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Respondent Eskin
shall take reasonable steps to insure that such notices are not altered,
defaced, or covered by zany other material.
(e) Deliver forthwith to said Regional Director signed copies of the
aforesaid notice for posting by Respondent Union.
(f) Post at the same places and under the same conditions as set
forth in (d) above, and as soon as they are forwarded by the Regional
Director, copies of Respondent Union's notice, herein marked "Ap-
pendix B."
(g) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
B. The Respondent, Confectionery and Tobacco Drivers and Ware-
housemen's Union, Local 805, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, its officers,
agents, representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Maintaining, performing, or otherwise giving effect to any
agreement, arrangement, understanding, or practice with Respondent
Eskin which imposes unlawful requirements of clearance by Respond-
ent Union as a condition of employment.
(b) Causing or attempting to cause Respondent Eskin to require
as a condition of employment that employees revoke designations of
any other labor organization , execute checkoff authorizations in Re-
spondent Union's behalf, request withdrawal of rival representation
petitions and unfair labor practice charges, and hold Respondent
Union harmless and release Respondent Union from any and all
claims.
(c) Causing or attempting to cause Respondent Eskin to discharge,
refuse to hire or reinstate , or to discriminate in any other manner
against employees, including the employees named in Appendix D
attached hereto, in regard to their hire and tenure of employment or
any term or condition of employment to encourage membership in
Respondent Union or to discourage membership in any other labor
organization, except to the extent permitted by Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
(d) -Requiring Respondent -Eskin 's employees to waive 'any rights
under Section 7 of the Act as a condition for instituting and main-
M. ESKIN & SON 675
taining grievance and arbitration proceedings or for otherwise repre-
senting such employees.
(e) In any other manner restraining or coercing employees of M.
Eskin & Son in the exercise of rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify, in writing, Respondent Eskin and the employees named
in Appendix D, attached hereto, that Respondent Union does not
object to their immediate and full reinstatement.
(b) Jointly and severally with Respondent Eskin make whole the
employees named in Appendix D, attached hereto, in the manner set
forth in "The Remedy" section of the Intermediate Report, for any
loss of earnings resulting from the discrimination against them.
(c) Post immediately in its business office, copies of the notice
attached hereto marked "Appendix B." 20 Copies of said notice, to
be furnished by the Regional Director for the Twenty-second Region,
shall, after being duly signed by Respondent Union, be posted by it
immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Deliver forthwith to said Regional Director signed copies of
the aforesaid notice for posting by Respondent Eskin.
(e) Post at the same places and under the same conditions as set
forth in (c) above, and as soon as they are received from the Regional
Director, copies of Respondent Eskin's notice, herein marked "Ap-
pendix A."
(f) Notify the Regional Director for the Twenty-second Region,
in writing, Within 10 days from the date of this Order, what steps it
has taken to comply herewith.
MEMBER BROWN took no part in the consideration of the above
Decision and Order.
20 See footnote 19, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT maintain or perform or otherwise give effect to
any agreement, arrangement, understanding, or practice which
imposes unlawful requirements of clearance by Confectionery and
Tobacco Drivers and Warehousemen's Union, Local 805, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as a condition of employment, or in any
other manner support and assist said Union.
WE WILL NOT require as a condition of employment that our
employees revoke designations of any labor organization, execute
checkoff authorizations in behalf of Confectionery and Tobacco
Drivers and Warehousemen's Union, Local 805, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, request withdrawal of representation petitions
and unfair labor practice charges, and hold said Union harmless
and release it from any and all claims.
WE WILL NOT discharge, refuse to hire or to reinstate, or dis-
criminate in any other manner against employees in regard to
their hire and tenure of employment or any term or condition of
employment to encourage membership in Confectionery and To-
bacco Drivers and Warehousemen's Union, Local 805, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or to discourage membership in any other
labor organization, except to the extent permitted by Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist Confectionery and
Tobacco Drivers and Warehousemen's Union, Local 805, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such
rights 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 modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL reinstate and make whole the following employees :
Victor Balajthy Gary Kupic Donald Smith
Kenneth `Williamson Nat Bagen Edward Boley
Samuel L. Christopher William R. Gerics Vincent Murray
Frank Palczenski Ronald Reese Gus Smalley
Earl C. Bunting.
M. ESKIN & SON 677
All employees of M. Eskin & Son are free to become and remain or
refrain from becoming or remaining members of Confectionery and
'Tobacco Drivers and Warehousemen's Union, Local 805, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, and to join any other labor organization, except to the
,extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959, and they are
free to file unfair labor practice charges and rival representation
petitions.
CONFECTIONERY AND TOBACCO RIVERS AND WARE-
HOUSEMEN'S UNION, LOCAL 805, INTERNATIONAL
BROTHERHOOD OI' TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
Union.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
'Office (614 National Newark Building, 744 Broad Street, Newark,
New Jersey; Telephone Number, Market 4-6151) if - they have any
question concerning this.notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS OF CONFECTIONERY AND TOBACCO DRIVERS
AND WAREHOUSEMEN'S UNION, LOCAL 805, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AND TO ALL EMPLOYEES OF M. ESKIN & SON
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT maintain, perform, or otherwise give effect to any
agreement, arrangement, understanding, or practice with M.
Eskin & Son which imposes unlawful requirements of clearance
by Confectionery and Tobacco Drivers and Warehousemen's
Union, Local 805, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as a condi-
tion of employment.
WE WILL NOT cause or attempt to cause M. Eskin & Son to
require as a condition of employment that employees revoke
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
designations of any other labor organization, execute checkoff
authorization in behalf of Confectionery and Tobacco Drivers and
Warehousemen's Union, Local 805, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
request withdrawal of representation petitions and unfair labor
practice charges, and hold said Union harmless and release it from
any and all claims.
WE WILL NOT cause or attempt to cause M. Eskin & Son to dis-
charge, refuse to hire or reinstate, or to discriminate in any other
manner against employees in regard to their hire and tenure of
employment or any term or condition of employment, to en-
courage membership in Confectionery and Tobacco Drivers and
Warehousemen's Union, Local 805, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
or to discourage membership in any other labor organization,
except to the extent permitted by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NOT require employees of M. Eskin & Son to waive any
rights under the Act as a condition of instituting and maintaining
grievance and arbitration proceedings.
WE WILL NOT in any other manner restrain or coerce employees
of M. Eskin & Son in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL notify, in writing, M. Eskin & Son and the following
named employees that we have no objection to the immediate and
full reinstatement of Victor Balajthy, Gary Kupic, Donald Smith,.
and Kenneth Williamson, and we will make these employees whole
for the discrimination against them.
All our employees are free to become and remain, or refrain from
becoming or remaining, members of Confectionery and Tobacco
Drivers and Warehousemen's Union, Local 805, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, except to the extent that
such rights 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 modified by the Labor-Management
M. ESKIN & SON 679
Reporting and Disclosure Act of 1959, and they are also free to file
unfair labor practice charges and rival representation petitions.
M. ESKIN & SON7
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (614 National Newark Building, 744 Broad Street, Newark,
New Jersey; Telephone Number, Market 4-6151) if they have any
question concerning this notice or compliance with its provisions.
APPENDIX C
Nat Bagen
Edward Boley
Samuel L. Christopher
William It. Gerics
Vincent Murray
Victor Balajthy
Donald Smith
Frank Palczenski
Ronald Reese
Gus Smalley
Earl C. Bunting
APPENDIX D
Gary Kupic
Kenneth Williamson
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges and amended charges filed by William R. Gerics, an individual, the
General Counsel of the National Labor Relations Board issued an amended consoli-
dated complaint dated May 26, 1960, against Respondents M. Eskin & Son (herein
called Eskin ) and Confectionery and Tobacco Drivers and Warehousemen's Union,
Local 805, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America ( herein called the Union ), alleging that Eskin has engaged in
unfair labor practices within the meaning of Section 8(a) (1), (2 ), (3), and (4) and
that the Union has engaged in unfair labor practices within the meaning of Section
8(b)(1)(A ) and (2) of the Labor Management Relations Act, 1947, 61 Stat. 136,
73 Stat . 519, herein called the Act. Respondents filed answers denying the alleged
violations . A hearing thereon was held in June and July 1960, in Newark, New
Jersey, before Ralph Winkler, the duly designated Trial Examiner . Briefs were
received.'
Upon the entire record , and from my observation of all witnesses , I hereby make
the following:
'The General Counsel's motion to delete the first paragraph of footnote 5 of his brief
(p 13) is granted , and it is hereby also ordered that the second paragraph of footnote 5
be stricken insofar as it predicates any argument on matters contained in the first para-
graph. The parties are further advised that , in resolving this case, I have ignored all
such matters deleted from the brief as well as all other matters to which I sustained an
objection and otherwise struck from the record at the hearing.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT ESKIN
Eskin is a New Jersey corporation with its principal office and place of business
in East Brunswick , New Jersey , where it is engaged in the manufacture , sale, and
distribution of vending machines and related products. Eskin 's direct interstate pur-
chases exceeded a value of $ 50,000 during the past year . I find that Eskin is engaged
in commerce within Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Union was recognized by Eskin as exclusive bargaining representative of
Eskin's employees at all material times here, and they had a collective-bargaining
contract whose effective period ran from January 1959 until December 30, 1960.
This contract contained, among other items, ,a no-strike clause, a 30-day union-shop
requirement, and a dues checkoff provision. No contention is made -that the union-
security provisions of the contract are unlawful. There were approximately 25
employees in the contract unit. Although Eskin's operations are based in New
Jersey, the Union's offices are located in New York City.
The employees had selected William Shortledge as shop steward at a union meet-
ing in 1957 and he was still the shop steward in October 1959. (Unless otherwise
stated, all events recounted here occurred in 1959.) Most, if not all, of the em-
ployees meanwhile became disenchanted with the Union and with Union Steward
Shortledge, and about 21 employees met in 'October at employee Gus Smalley's
home to discuss changing their union affiliation. These meetings were not held
under auspices of the Union The employees selected a committee 2 and they also
purportedly designated employee William Gerics to replace Shortledge as shop
steward. The 21 employees thereupon notified Eskin and the Union by mail on or
about October 24 that they no longer desired the Union to represent them, that they
had replaced Shortledge with Gerics as shop steward, and that Eskin should discon-
tinue checking off their union dues. A week or so later, Union Business Agents Dan
Ornstein and Sam Swilling advised Gerics that the employees were without authority
to select another union steward in the circumstances of the aforementioned meeting
and that Gerics was therefore not properly authorized to act as union steward.
Kenneth Williamson and Gene Barham had been in Eskin's employ more than 30
days when Shortledge, as union steward, in effect told both men on December 1 to
join the Union or be discharged. This was in accordance with aforementioned union-
shop requirement of the operative contract; and the record further shows that,
except for situations inapplicable here, the employee body complied with this re-
quirement.3 The next morning (December 2) Gerics questioned Shortledge's right
to perform the steward's function of policing the contract in this regard, Gerics
telling Shortledge that Gerics, not Shortledge, was the steward; Shortledge in turn
told Gerics that Shortledge alone was the legally elected shop steward. Gerics and
the other committee members then asked 'Eskin Manager Paul Jacobs that same
morning not to enforce the union-shop conditions against Williamson and Barham 4
Jacobs replied that the two men were fired unless they joined the Union, whereupon
the committee replied that ,the other employees would be obliged "to stick" by
Williamson and Barham. A walkout began about 9:30 that morning and 21 employ-
ees, including Barham and Williamson, had left their work by the day's end. The
walkout was in protest against applying the union-shop provisions to Williamson and
Barham, and all parties agree that this work stoppage was a strike in breach of the
contract's no-strike clause.
David Roth is an officer and part owner of Eskin. Roth and Union Agents
Ornstein and Swilling came to the struck premises during working hours on Decem-
ber 2, shortly after the walkout began. The strikers were congregated across the
street from the plant. Roth refused requests of the committee and individual strikers
that he recognize and discuss the dispute with the committee and he, in effect, told
2 Consisting of employees Gus Smalley, Samuel Christopher, Vincent Murray. Nicholas
Sokoloff, and William Gerics Employee Gary Kupic also served on the committee.
3 The complaint Itself alleges that Eskin and the Union have at all times maintained
and enforced the union-security contract
4 The committee erroneously believed that the contract would expire on December 31 In
1959, rather than in 1960.
M. ESKIN & SON 681
the individual strikers to return to work or be fired. The union agents also advised
the men that their strike was in violation of the contract and told them to return to
work No one return to work that day.
The strikers appeared at the premises the next morning (December 3), and, in
behalf of the entire group, Gerics told Plant Manager Jacobs before normal working
hours that the men were reporting for work. Jacobs replied, in effect, that all strikers
were fired. Eskin had already begun hiring replacements.
Alleged Condonation
The General Counsel agrees that the strike in breach of contract was not protected
under the Act and that Eskin was accordingly entitled to discharge the strikers for
such action. The unfair labor practices alleged here arose after the December 3
discharges and involve among other things, claims of condonation and of unlawful
requirements purportedly imposed by the Respondents as a condition to the further
employment of strikers.
The strikers began picketing Eskin after their December 3 discharge and Eskin
thereupon filed a civil action in the New Jersey Superior Court against the 21 strikers,
seeking to enjoin the picketing as well as seeking punitive and compensatory damages.
Superior Court Judge Frank Kingfield issued a temporary restraining order in that
proceeding on December 4 with an order to show cause why the restraint against
picketing should not be continued. The 21 striker-defendants meanwhile engaged
John Wysoker as legal counsel to represent them. On December 11, Wysoker and
Charles E. Villanueva (Eskin's attorney) appeared before Judge Kingfield on the
return day of the order to show cause. Villanueva announced in open court that "a
settlement has been agreed upon by counsel and the parties who are all in court
here today," and Villanueva further explained to the court that the settlement pro-
vided, in part, that all employees would cease picketing and return to work and
withdraw an unfair labor practice charge which had been filed with the National
Labor Relations Board concerning the discharges; 5 that Eskin would take back all
strikers (including Williamson and Barham) without discrimination because of
strike activities; and that Eskin would not refuse to recognize Gerics as shop steward
"should he be the duly appointed agent of the Union." The court thereupon sug-
gested that Attorneys Wysoker and Villanueva get together and submit an appro-
priate order in accordance with the stated agreement. Wysoker and Villanueva
informally agreed later that day that Wysoker would draft such order and send it
to Villanueva for agreement "as to form."
Immediately after the court hearing on December 11, Plant Manager Jacobs dis-
cussed arrangements with the strikers regarding their then expected return to work
on Monday, December 14. Jacobs also told the men to call him for instructions
when to report for work. The men accordingly called later that day, only to have
Jacobs tell them that there had been a change in plans and that they should contact
their lawyer (Wysoker). Villanueva advised Wysoker the next day (December 12)
that, for reasons he (Villanueva) was not at liberty to disclose, Eskin "could not
go along with the settlement agreement and that the deal was off." Wysoker had
not yet drafted the proposed settlement order mentioned above.
At a further hearing in the same matter before Judge Kingfield on December 16,
Villanueva stated that Eskin would not go along with the aforementioned settlement
unless it were amended to provide that six named strikers 6 not be reemployed.
Wysoker would not accept this modification whereupon Villanueva stated that his
only alternative was to request dismissal of Eskin's court action. Such motion was
made and granted without opposition on December 16.
Immediately after the December 16 court proceeding, Plant Manager Jacobs
advised the 21 strikers to call him if they desired employment. All men called, and
Jacobs told nine of them that their jobs had been filled; 7 these nine are herein referred
to as the "but" group . Jacobs told the remaining 12 men ,8 herein called the "in"
group, that their jobs were open.
g This was a charge filed on December 4, 1959. by Local Union No 22, United Metal
and Paint Workers and Allied Trades, stating that Eakin unlawfully discharged 19 named
as well as other unnamed employees on December 2 (Case No 22-CA-545, not published
in NLRB volumes).
9 Smalley, Bunting, Murray, Bagen, Reese, and Palczenski.
' These nine were Boley , Christopher , Gerics, and the six individuals listed in footnote 6
above , concerning whom Eskin desired to amend the purported settlement
8 Balajthy , Barham, Caruso, Dayton, Herzog, Judson , Kupic , Majewski , Smith , Sokoloff,
Williamson , and Yawger.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions as to Condonation ,
All parties agree, as already stated , that Eskin could lawfully discharge all em-
ployees for participating in the strike. The General Counsel contends , however,
that Eskin condoned and therefore is estopped from urging such strike conduct as
a basis for refusing further employment to the strikers . This alleged condonation
particularly affects the aforementioned "out" group. The principal evidentiary
support for the condonation contention is the statement of Eskin's attorney at the
December 11 court proceeding respecting the purported settlement of that action
as well as Manager Jacobs' consequent conversation with strikers that same day
concerning arrangements for returning to work.
Viewing Eskin 's aforestated court position and Jacobs ' aforementioned discussion
with strikers in the context of that litigation and further considering the circum-
stances under which that action was dismissed , I cannot find that the "out" group
of strikers had actually returned to work or that there was a final meeting of minds
on the subject of condonation. The condonation concept being founded on equitable
considerations, I might view this situation differently, even absent entry of an order
based on a settlement of the court action, had the strikers acted in reliance on Eskin's
court statements before being advised that "the deal was off." But no showing of
detrimental reliance appears here. I conclude that the condonation contention has
not been established 9 and I accordingly also conclude that Eskin did not unlawfully
deny further employment to the so-called "out" group of nine strikers
Alleged Unlawful Conditions for Further Employment
When Jacobs informed the "in" group of 12 strikers on December 16 that their
jobs were still open, he also told them individually to see him at his office that same
day. Balajthy, Kupic, Smith, and Sokoloff were among the "in" group who testified
concerning their consequent visits to Jacobs on December 16. Jacobs told Smith,
according to Smith's credible testimony, that Smith could return to work if Smith
were first "cleared" by the Union, and Jacobs then gave the Union's telephone
number to Smith. Jacobs also gave Kupic the Union 's telephone number, accord-
ing to Kupic's credible testimony , and he told Kupic to get union clearance before
returning to work. Balajthy and Sokoloff together visited Jacobs and Jacobs told
them, according to Balajthy 's credible testimony , that union clearance was necessary
before returning to work and Jacobs also offered them the Union 's telephone num-
ber. Sokoloff testified that Jacobs told him and Balajthy that before they were hired
they should ascertain from the Union whether they were members "in full standing."
Union Agent Ornstein meanwhile spoke with either Eskin Officer Roth or Plant
Manager Jacobs on December 16, and either Roth or Jacobs in effect informed
Ornstein that Eskin was only taking back some of the 21 strikers Kupic, after
visiting Jacobs on December 16, complied with Jacobs ' aforementioned instruction
and he called Ornstein that same evening concerning clearance ; Ornstein told Kupic
to come to the union office and that "there would be certain papers to clear up and
everything will be settled ." Sokoloff also called Ornstein on December 16 after
seeing Jacobs and he told Ornstein that the men wanted to return to work. Ornstein
had spoken with either Roth or Jacobs at the time of Sokoloff 's call, and Ornstein
told Sokoloff to notify both the "in" and "out" groups to attend a meeting at the
union office the next day. Sokoloff thereupon informed Jacobs that the "in" group
would attend a union meeting on December 17 and would not be reporting for
work until December 18.
Jacobs testified that he had told the "in" group at his office on December 16 that
they should "contact their union to see if they were in good standing with their union,
dues paid and everything else." He also testified that he had no "idea" why these
men were attending the meeting at the union office on December 17.
Most of the 21 involved individuals attended- the meeting 10 at the union offices
on the morning of December 17. Union Agents Swilling, and Ornstein were
present, as was Union Secretary Irving Dworet. The credible testimony concerning
9 "Condonation is a factual matter which the General Counsel, must establish by a pre-
ponderance of the evidence in any given situation " Bechtel Corporation , 127 NLRB
891 ; Union Twist Drill Co., 124 NLRB 1143, 1154. Moreover, an employer is entitled to
pick and choose among unprotected strikers those whose unprotected activity he desires
to condone See N L R B v Fansteel Metallurgical Corporation, 308 U S 240, 259;
NLRB. v Clearfield Cheese Co., Inc, 213 F .2d 70, 75 (CA 3).
10 Williamson , a member of the "in" group , did not attend upon being told by Jacobs
on December 16, as others were, that union clearance was necessary for his reinstatement
M. ESKIN & SON 683
.this meeting establishes, and I find, that Dworet told the "in" group that they could
not return to work unless they executed a certain prepared statement, copies of
which were available at the meeting; Dworet also told the "out" group that the
Union "would take up their discharge cases under the grievance and arbitration
.clauses of the Eskin-union contract if they signed the statement," but that it
would not proceed unless they did sign. These statements read as follows:
I, ____________________, state for myself, under oath as follows:
Local 805, I.B. of T. was and is my Bargaining Agent. It has always
properly handled for me all disputes and grievances. I do hereby, reaffirm,
ratify and adopt the Union Contract between Local 805, I.B. of T. and M.
Eskin & Son, Inc., which contract is dated January 15th, 1959 and which
does not expire until December 31st 1960.
I hereby revoke and declare null and void any bargaining representation I
have signed for Local Union No. 22, United Metal and Paint Workers and
Allied Trades, or any other Union except Local 805, I.B. of T.
I hereby revoke and declare null and void any revocation of withdrawal of
our check-off authorization and I reaffirm and re-institute my check-off
authorization.
I further request the withdrawal of any petition for an election filed by
Local Union No. 22, United Metal and Paint Workers and Allied Trades, and
the withdrawal of any charges of unfair labor practices.
I agree to hold harmless Local 805, I.B. of T. from any claim of damages
whatsoever which we may have and we release Local 805, I.B. of T. from any
claims whatsoever.
After some discussion all but about eight individuals left the union meeting.
These eight were members of the "in" group and they returned to work the next
day (December 18); six of these eight executed the aforementioned statement.12
Four of the "in" group did not return to work on December 18; Williamson was one
of these four 13 and the remaining three (Balajthy, Kupic, and Smith) were among
those who had refused to sign the mentioned statement.
Balajthy, Kupic, and Smith sent a joint telegram to Union Agent Ornstein on
December 18 stating their readiness to return to work and requesting to see the
Eskin-union contract and asking when Ornstein can "come down and see us."
Ornstein replied by letter the same day as follows:
Received your joint telegram.
Whether or not you ego back to work is a matter within the sole discretion
of M. Eskin & Sons. The Union is not standing in the way of your being
employed.
If you desire the Union to file a grievance on your behalf, please come to
our offices so we can expeditiously handle such grievance for you.
You are at liberty at any time to come up to the Union Offices and look
at the contract.
As we understand it, the Company has refused to rehire you because of your
walking out in violation of your contract.
Whether or not the Company will forgive such conduct is a matter which the
Company itself must decide.
The Union is not standing in the way of the Company putting you back to
work.
There is no credible showing that the Union gave Eskin a copy of Ornstein's letter
or that it advised Eskin of the letter's substance or that it otherwise informed Eskin
that, so far as the Union was concerned, union clearance was not necessary for
further employment of Balajthy, Kupic, or Smith.
None of the "in" group who did not return to work on December 18 and none of
the "out" group thereafter contacted either Eskin or the Union in regard to further
employment or the filing of grievances.
11 Only Eskin and the Union, and not individual employees, were given rights under the
contract to institute action under the pertinent grievance and arbitration provisions
"The two members of the "in" group who returned to work but apparently did not sign
the statement were Judson and Barham. Barham was not a union member on October 24
and he did not sign the October 24 letters to Eskin or the Union respecting a change in
representation and revoking authorization for dues checkoff. -
13 See footnote 10, supra.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further Findings and Conclusions
The record establishes that Eskin advised the "in" group that they needed union
clearance before returning to work, and it also appears that the Union knew of such
condition and that the Union also advised the "in" group that they could not re-
turn to work without signing the mentioned statement. I conclude, upon the entire
record in this case, that Eskin and the Union (the recognized bargaining representa-
tive) had an arrangement, understanding, and practice whereby the "in" group
was required as a condition of employment or reinstatement to (a) revoke designa-
tions of any labor organization except the Union,14 (b) revoke withdrawals of
checkoff authorizations and reinstitute such authorizations,15 (c) request withdrawal
of representation petitions filed by another labor organization, (d) request with-
drawal of unfair labor practice charges,16 and (e) hold the Union harmless and
release the Union from any claims whatsoever. As the employees were, I find,
thereby coerced into signing the aforementioned statements, I also find that all
such executed statements and all subsequent checkoff authorizations are null and
void.
The imposition of each aforementioned item of the statement as a condition of
employment of the "in" group is unlawful under Section 8(a)(1) and (3) as to
Eskin and Section 8(b) (1) (A) and (2) as to the Union, whether such employment
be considered as new or continued; and I also find that, by imposing aforementioned
item (d) as a condition of employment, Eskin further violated Section 8(a) (4) of
the Act.17
Employees or prospective employees are not required to submit to such unlawful
conditions of employment as described above; I accordingly further find that, by op-
eration of their unlawful arrangement, understanding, and practice, the Union caused
Eskm to deny, and Eskin did deny, further employment to Williamson, Smith, Kupic,
and Balajthy because these individuals did not satisfy the clearance and other afore-
mentioned conditions of employment imposed upon them. Eskin has thereby vio-
lated Section 8(a)(1), (3), and (4) of the Act, and the Union has thereby violated
Section 8(b)(1)(A) and (2) of the Act. By requiring union clearance, Eskm is
guilty of these same 8(a)(1), (3), and (4) violations irrespective of the Union's
joint liability.
The General Counsel also contends, and I find, that Eskin unlawfully supported
and assisted the Union by requiring clearance by the Union as a condition of em-
ployment or reinstatement and by otherwise imposing the aforementioned items as
conditions of employment or reinstatement Eskin has thereby violated Section
8(a)(2) and (1) of the Act respecting the Union.18
The Union acted and Eskin recognized the Union as exclusive bargaining repre-
sentative under their aforementioned contract. The Union, by virtue of Section 9
of the Act, accordingly had "the responsibility to act as a genuine representative of
all the employees in the bargaining unit" and had "the duty impartially and
without discrimination to accept and process all grievances on which its aid is re-
quested by the employees it represents." 19 Even though Eskin was entitled to dis-
charge the "out" group and while Eskin did not condone this group's strike activity,
the Union itself recognized the employee status of the "out" group for the purpose of
instituting and maintaining grievance and/or arbitration proceedings concerning
their employment. Thus the Union advised this "out" group that it would pursue such
contract remedies if they signed the aforementioned statement, but that it would not
do so if the "out" group would not sign. By conditioning the prosecution of
grievances upon compliance with the specified items of the mentioned statement, the
14 A representation petition filed by Local Union No. 22, United Metal and Paint
Workers and Allied Trades in Case No. 22-RC-670 was then pending respecting Eskin
employees.
16 There is no showing that any of the "in" group was delinquent under the union-
security provision of the contract except Barham and Williamson
16 See footnote 5, supra, as to a then pending charge against Eskin in behalf of the
individuals involved here.
17A. Cestone Company, 118 NLRB 669, enfd. 254 F. 2d 958 (C.A 2), Adams Dairy,
Inc., 120 NLRB 177 ; American Screw Company, 122 NLRB 485, 488; Seabright Constric-
tion Company, 108 NLRB 8.
1s Broderick Wood Products Company, 118 NLRB 38, enfd. 261 F. 2d 548 (CA. 10).
'- Peerless Tool and Engineering Co., 111 NLRB 853, 858, enfd . 231 F. 2d 298 (C.A. 7),
cert. denied 352 U.S. 833.
M. ESKIN & SON 685
Union coerced and restrained the "out" group in violation of Section 8(b) (1) (A)
of the Act. Peerless Tool and Engineering Co., supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The respective activities of Respondents Eskin and Union set forth in section III,
above, occurring in connection with the operations of Eskin set forth in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and, such of them as have been found to be unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondents respectively engaged in unfair labor practices,
I shall recommend that they cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Having found both Respondents responsible for the discrimination against William-
son, Smith, Kupic, and Balajthy, I shall recommend that Eskin offer immediate, full,
and unconditional reinstatement to these four men without prejudice to their seniority
and other rights and privileges and that Eskin and the Union, jointly and severally,
make them whole for any loss of pay suffered by reason of the discrimination, by
paying them a sum of money equal to what they would normally have earned from
December 17, 1959, until tender of employment, less net earnings during said period.
The Union's backpay liability shall be tolled, however, 5 days after it serves written
notice on both Eskin and the four men that it does not require these men to execute
the aforementioned statement or to take similar action as a condition of employment
and that it does not otherwise object to the immediate employment of these four
men 20 Backpay shall be computed in accordance with F. W. Woolworth Company,
90 NLRB 289.
I shall recommend, among other things, that Eskin withdraw and withhold recog-
nition from the Union as bargaining representative of any of its employees until duly
certified by the Board as exclusive bargaining representative and that both Respond-
ents cease performing, maintaining, or otherwise giving effect to any agreement or
arrangement or understanding of employment practice. I shall also recommend that
Eskin give no further effect to any dues checkoff authorizations in the Union's behalf.
If Eskin does make deductions pursuant to union checkoff authorizations after re-
ceiving this Intermediate Report, I shall recommend that Eskin be required to restore
all such deductions to the employees. I shall further recommend that the Board
retain jurisdiction of this matter until such time as it is satisfied that Respondents have
fully complied, herewith.
CONCLUSIONS OF LAW
1. Eskin is engaged in commerce within Section 2(6) and (7) of the Act.
2. The Union is a labor organization within Section 2(5) of the Act.
3. By requiring union clearance as a condition of employment or reinstatement;
by otherwise being party to an understanding, arrangement, and practice with the
Union whereby, as a condition of employment or reinstatement, employees were
required to revoke designations of rival labor organizations, to reinstate checkoff
authorizations in favor of the Union, to request withdrawal of rival representation
petitions and unfair labor practice charges, and to hold harmless and to release the
Union from any and all claims; by discharging or refusing to reinstate Balajthy,
Kupic, Smith, and Williamson for not satisfying the aforementioned "clearance"
conditions; by each and all of these actions Eskin has violated Section 8 (a) (1) and
(3) of the Act.
4. By requiring, as a condition of employment or reinstatement, that employees
request withdrawal of unfair labor practice charges, Eskin has violated Section
8(a) (4) of the Act.
.5. By supporting and assisting the Union in the respects set forth in conclusion
number 3, Eskin has violated Section 8(a)(2) and (1) of the Act.
6. By being party to the understanding, arrangement, and practice set forth in
conclusion number 3- and causing Eskin to discriminate against employees (including
the mentioned four individuals) in all respects enumerated therein; the Union has
violated Section 8(b).(1)(A) and (2) of the Act.
The Union's letter of December 18 to Balajthy, Kupic, and Smith does'not' satisfy
these requirements and is , therefore insufficient 'to toll the Union's backpay liability re-
specting these three men.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. By conditioning the prosecution of grievances upon compliance with the "Clear-
ance" conditions set forth in conclusion number 3, the Union has violated -Section
8(b)(1)(A) of the Act.
8. The unfair labor practices found herein affect commerce within Section 2(6)
and (7) of the Act
9. Except as stated herein, the record does not preponderantly establish that
Respondents engaged in other alleged violations.
[Recommendations omitted from publication.]
Mayer B. Cohen , Bernard Cohen and Peary Cohen d/b/a River-
side Wholesale Distributors and Local 597, Chauffeurs, Team-
sters , Warehousemen & Helpers , a/w International Brother-
hood of Teamsters , Chauffeurs, Warehousemen & Helpers of
America. Case No. 1-CA-3521. January 30, 1962
DECISION AND ORDER
On October 18, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions and a
supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions sand brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Mayer B. Cohen,
Bernard Cohen and Peary Cohen d/b/a Riverside Wholesale Dis-
tributors, Burlington, Vermont, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local 597, Chauffeurs, Teamsters,
Warehousemen & Helpers, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, or in any
other labor organization of, their employees, by discriminatorily dis-
i Pursuant to the provisions ; of, Section 3(b) of the Act, the Board has delegated its
powers in connection with this case,to•a three-member panel [Members Rodgers , Fanning,
and Brown].
135 NLRB No. 74.