Metropolitan Millwork, Inc.

National Labor Relations Board - Board Decisions

Oct 8, 1962

138 N.L.R.B. 1482 (N.L.R.B. 1962)

1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Southern Illinois District Council,
International Ladies' Garment Workers' Union , AFL-CIO, or any ' other labor
organization of our employees , by shutting down our manufacturing operations,
by laying off and refusing to reemploy and/or reinstate employees , or in any
other manner discriminating against our employees in regard to their hire and
tenure of employment or any term or condition of employment.
WE WILL NOT maintain surveillance of union meetings or activities of our
employees.
WE WILL make whole each of the manufacturing employees laid off on
April 28, 1961, for any loss of pay each may have suffered by reason of our
discrimination against said employee, for the period April 28 to June 7, 1961,
or the date each employee was reemployed prior to June 7, 1961.
WE WILL offer to the following named employees immediate and full rein-
statement to their former or substantially equivalent positions , without prejudice
to their seniority and other rights and privileges, and we will make each of
these employees whole for any loss of pay each may have suffered by reason of
our discrimination against said employee:
Rubye Garrett Jean Russell
Florence Reece Evelyn Escue
Aunita Emerson Joseph Medile
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form , join, or
assist any labor organization , to bargain collectively through representatives of
their own choosing , and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection or to refrain from any
or all such activities.
RIPLEY MANUFACTURING COMPANY,
Employer.
Dated------------------- By-----------1-----------------------------Re )re.entatove -Title)
This notice must remain nosted 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, 714 Falls
Building, 22 North Front Street, Memphis, Tennessee, Telephone Number, Jack-
son 7-5451, if they have any question concerning this notice or compliance with its
provisions
Metropolitan Millwork , Inc. and Local 282, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America and Local 522, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
Party in Interest . Case No. -CA-8036. October 8, 1962
DECISION AND ORDER
On May 16, 1962, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent "had engaged in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain aflirma-
138 NLRB No. 129.
METROPOLITAN MILLWORK, INC. 1483
tive action, as forth in the attached Intermediate Report. Thereafter,
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
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 Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions and recommenda-
tions 2 of the Trial Examiner with the modifications noted below.'
ORDER
The Board hereby adopts the Recommended Order of the Trial
Examiner with the modification respecting interest payments on back-
pay, as set forth above.
1 The Respondent 's request for oral argument is denied inasmuch as the positions of the
parties are adequately set forth in the record , exceptions , and briefs
2 However , we hereby modify the backpay remedy to include payment of interest at the
rate of G peicent, as set forth in I LA Plumbing if Heating Co , 138 NLRB 716 For
reasons stated in his dissenting opinion in that case , Member Leedom does not join in
this modification
3 We agree with the Trial Examiner , but for different reasons, that there is no merit in
the Respondent 's defense predicated on the alleged failure of Local 282 to comply with the
requirement of Section 8(d) (3) of the Act In so concluding we rely on the facts, as
established in the record , that Local 282 timely served the required notices on the appro-
priate Federal and State agencies ss ith respect to the then -expiring contract between it
and the Association ; that at the time such notices were served , Respondent was a party
to the contract which had resulted from prior bargaining between Local 282 and the
Association ; and that the Respondent was engaged in bargaining with Local 282 through
the Association On these facts we are satisfied that the notices served by Local 282
satisfied its obligations under Section 8(d) (3) Accordingly, we do not find it necessary
to pass upon the Trial Examiner's conclusion that, under the circumstances of this case,
Local 282 was not obligated to serve the notices provided for in Section 8(d) (3) Cf.
Local Union 219 , Retail Clerks International Association, 120 NLRB 272 , enfd 265
F. 2d 814
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , in which charges were filed on October 30 and November 6, 1961,
and in which the complaint was issued on December 22, 1961, involves allegations
that the Respondent , Metropolitan Millwork, Inc., violated Section 8 ( a) (1), (2), and
(3) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat . 519. On
March 12 and 13, 1962, Trial Examiner A. Bruce Hunt conducted a hearing at New
York, New York, at which the Respondent, the General Counsel, and Local 282,
International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America , were represented by counsel . No appearance was entered for Local 522
of the Teamsters nor did that union file an answer . At the conclusion of the General
Counsel 's case, I granted the Respondent's motion for a recess due to the illness of its
president . During the recess. on March 22, I received from the Respondent 's counsel
a letter in which he advised that the Respondent rested without offering defense testi-
mony and in which he moved to dismiss the complaint On March 22 , I issued an
order closing the hearing . The motion to dismiss is disposed of in accordance with
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the determinations below.' Upon the entire record and my observations of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent , a New York corporation , is engaged in the manufacture and sale
of lumber, window frames, and related products . During its last fiscal year, the
Respondent purchased lumber and other products exceeding $50,000 in value which
were shipped to it from points outside New York. During the same period, the
Respondent shipped goods valued in excess of $50 ,000 directly to points outside that
State. I find that the Respondent is engaged in commerce within the meaning of the
Act.
H. THE UNIONS
Locals 282 and 522, international Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, are labor organizations which admit to member-
ship employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges inter alia, and the Respondent denies, that during the autumn
of 1961 the Respondent: (a) entered into a collective labor agreement with Local
522 when that union did not possess majority status and when a question concerning
representation existed because of Local 282's claim to represent the employees; (b)
threatened employees to induce them to change their allegiance from Local 282 to
Local 522; and (c) refused to reinstate certain striking employees, members of
Local 282, because of their participation in a strike and because they were not mem-
bers of Local 522 or had not been cleared for employment by that union. The com-
plaint alleges further that the strike by members of Local 282, economic in its incep-
tion, was prolonged by the Respondent's invalid conduct.
The only witnesses at the hearing were persons called by the General Counsel.
As mentioned above, the Respondent did not offer defense testimony and Local 522
did not participate in the hearing.
B. The events
Among the Respondent's employees there are truckdrivers, helpers, warehousemen
and yardmen who, from about 1953 to the autumn of 1961, were represented by
Local 282. The last contract between that union and the Respondent expired on
June 30, 1961. It contained a valid union-shop provision. It was negotiated during
1959 by Local 282 with New York Lumber Trade Association, Inc, herein called the
Association, on behalf of about 75 employers. At the conclusion of negotiations, a
representative of the Association signed a contract binding upon it, and at Local 282's
insistence each of the employers, including the Respondent, signed individual con-
tracts. No separate or individual negotiations preceded the execution of the contract
between the Respondent and Local 282.2
During April 1961, over 60 days before the expiration date of the contracts, the
Association and Local 282 notified each other of the approaching termination of their
contract and gave written notices to the appropriate Federal and State authorities.
Negotiations on a new agreement followed On June 9, the Respondent wrote to
Local 282 that it had authorized the Association to negotiate for it On July 19,
however, after the 1959-61 contract had expired but while negotiations were still
in progress, the Respondent again wrote to Local 282, saying that "in the light
of recent developments" it withdrew its authorization to the Association and that it
would do its "own negotiating" Thereafter, the negotiations between the Associa-
tion and Local 282 continued, and to some extent the Respondent and Local 282
i The letter from the Respondent ' s counsel and the order closing the hearing are hereby
marked in evidence as Trial Examiner's Exhibits Nos 1 and 2 The transcript incorrectly
quotes that counsel as having referred to Section 8(b) (3) of the Act The correct refer-
ence is to Section 8(d)(3), and the transcript is corrected accordingly
2 Although the documentary evidence does not establish that the Association acted as
the Respondent's negotiator during 1959, the uncontradicted testimony of Anthony Duffy,
an officer of Local 282, establishes the fact Moreover, the Respondent's separate contract
with Local 282 was transmitted to that union by the Association
METROPOLITAN MILLWORK , INC . 1485
may have negotiated. During October, a strike began. Local 282 did not at any time
notify Federal or State authorities that it had a dispute with the Respondent specifical-
ly, and this is a point upon which the Respondent relies, as discussed hereinafter.
About October 8, Local 282 called out on strike the employees of various employers
excluding the Respondent. On October 10, all the Respondent's employees in the
bargaining unit above mentioned went on strike too. On that day the Respondent's
president, Irving Perlin, asked Walter Fey, Local 282's shop steward, why Fey was
on the picket line, and Fey answered that the men "were on strike for a better
contract." The Respondent's vice president, lack Perlin, mailed to each of the strikers
a leter which read, "You are ordered to return to work immediately. If you do not
do so, we shall replace you." On the same or the next day, Irving Perlin and Bart
Perlin, the latter also an officer of the Respondent, gave to each employee on the
picket line a slip of paper which recited, in substance, that he was ordered to return
to work immediately and that a failure to return would be followed by his
replacement.
On October 11, the Respondent resumed operations with members of Local 522
who crossed the picket line. The Respondent also entered into a contract with
Local 522, which had not engaged in organizational activity at the plant. Irving
Perlin called Fey, the shop steward for Local 282, to his office and introduced Fey to
one Artie whom Perlin identified as a representative of Local 522. Perlin said to Fey
that Local 282 was "out," that Local 522 was "in," and that approval "came from
Washington." Perlin said too that Fey would have to sign ,a card for Local 522 in
order to return to his job. Outside the plant that day, Irving Perlin, in the presence
of Bart Perlin and Artie, told various strikers that Local 282 was "out," that Local
522 was "in," that "higher-ups in Washington" had approved the substitution of
one local for another, and that the strikers would have to sign cards for Local 522
in order to return to work.
On October 19, Shop Steward Fey was outside the plant with other strikers named
Joe Amato, Robert DeBatt, James McLendon, and Charlie Radziewicz.3 Artie
approached them and solicited their signatures to Local 522• cards, saying that the
men who had replaced them were working temporarily only, that there was a con-
troversy between two unions, and that the strikers would have to sign the cards in
order to return to work. All of the named employees except Fey signed. Artie then
entered the plant, but returned shortly to say that Irving Perlin would put one man
to work that day, one the next day, and others later. The men conferred among
themselves and told Artie that they would return to work as a group only. Within
a day or so, Fey and Amato went into the plant and asked Irving Perlin to reinstate
Fey and the men who had signed the cards, saying that most had signed. Perlin
responded that the matter was out of his hands and in the hands of his attorney.
About 2 weeks later, during which period Fey signed a card for Local 522, he called
upon Irving Perlin and again requested reinstatement. Perlin answered that the
matter was out of his hands, that Local 522 controlled the plant, and that he had
nothing to do with hiring. At about the same time, DeBatt asked Bart Perlin for
reinstatement, and Perlin answered that the matter was out of the Respondent's
hands and in the hands of its attorney. Artie made a similar statement to DeBatt,
and Bart Perlin made a similar statement to Amato. At the time of the hearing,
Amato, DeBatt, Fey, McLendon, and several unnamed strikers had not been rein-
stated? Other strikers, namely, Fred Abron. Homer Johnson, Radziewicz, and Joe
Tyler were reinstated at undisclosed dates. The Respondent concedes that persons
who went to work after execution of its contract with Local 522 on October 11 were
required to join that union in order to work.
C. Conclusions
We have seen that Local 282's contracts with the Association and the Respondent
expired on June 30, 1961, that negotiations between Local 282 and the Association for
a new contract were unsuccessful, that the Respondent's employees who were
members of Local 282 went on strike on October 10, 1961. that on the next day the
Respondent executed a contract with Local 522, and that thereafter the Respondent
denied reinstatement to certain strikers and conditioned reinstatement of all strikers
upon their joining Local 522 promptly. The Respondent raises several defenses.
s The complaint names Amato, DeBatt, Fey, and McLendon as having been invalidly
denied reinstatement after their applications therefor.
s Bernard Ferguson, a striker, testified that he never signed a card for Local 522 and
that he never asked for reinstatement.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The strike was in support of a new contract and did not originate as a result of
unfair labor practices . It was, therefore , economic in its inception . The first defense
is that Local 282 failed to comply with Section 8(d)(3) of the Act by giving to
Federal and State authorities proper notice of the dispute between Locail 282 and the
Respondent . According to the Respondent , ( 1) the proof is inadequate that the
Association was authorized to represent the Respondent during the negotiations
which led to the 1959-61 contract; (2) the proof is clear that shortly after the ex-
piration of that contract the Respondent withdrew its authority to the Association
to represent it during the unfruitful 1961 negotiations ; and (3 ) therefore , the timely
notices by Local 282 to the Federal and State authorities concerning expiration
of the 1959-61 contract were defective because of "the omission or failure to name
respondent in the notices to the agencies.,' 5 It follows, says the Respondent, citing
cases, that the strike was invalid and that the strikers lost their status as employees
immediately upon participation therein. On the other hand, the General Counsel
argues inter alia that the record establishes that ( 1) the Association was authorized
to represent the Respondent during 1959 and 1961 ; ( 2) Local 282 's notices to appro-
priate authorities were not defective and that Local 282 was not obligated to specifical-
ly name,the Respondent in any notice to those authorities ; ( 3) that the Respondent's
effort to revoke its designation of the Association during 1961 was tardy and ineffec-
tive under Retail Associates, Inc., 120 NLRB 388; and (4) the Respondent cannot
invoke Section 8(d) as a ' defense because it failed itself to notify Federal and State
authorities of the dispute, citing Paul Biazevich , et al, 136 NLRB 13. I find it un-
necessary to discuss the conflicting contentions . It suffices to say ,that, if the Respond,
ent is correct that Local 282's notices to Federal and State authorities were in-
adequate because they did not name the Respondent specifically , such inadequacy
cannot serve as a defense . Accepting arguendo the Respondent's version of the
facts, we have a contract with a fixed expiration date and no automatic renewal
provision , and we have a union which did not notify Federal or State authorities of
the expiration of the contract , but which waited for 102 days after the expiration
(July 1 to October 10) before calling a strike to obtain a new contract to its liking.
In United Packinghouse Workers, 89 NLRB 310, 316, ,the Board said:
It is apparent that the prime purpose of Section 8(d) was to prevent so-called
"quickie" strikes designed to secure termination or modification of collective
bargaining agreements . To accomplish this purpose , Congress in Section 8(d)
provided for a mandatory 60-day "cooling off" period during which a labor
organization that is a party to a collective bargaining agreement is forbidden
to strike to enforce its demands to modify or terminate the contract . [ Emphasis
supplied.]
In Lion Oil Co , 109 NLRB 680, 682-684 , the Board said that "the plain wording of
the section makes the required notices mandatory at all times when collective-
bargaining agreements are in effect," that the Section "requires a waiting period before
strike or lockout during the life of a contract ," and that "strikes to alter the provi-
sions of a firm contract of fixed duration , and containing no provision for modifica-
tion, must await the termination date " [Emphasis supplied ] As I read Section
8(d), it does not require notice to Federal or State authorities if strike action is
withheld for 102 days after a contract has expired , and I know of no case which
even hints at such a requirement . I find that the strike was lawful and that the
strikers , by virtue of participation therein, did not lose their status as employees
under the Act.
The strike having been economic at its inception, the strikers ran the risk that
the strike might not be converted into an unfair labor practice strike by the Respond-
ent's subsequent conduct and that the Respondent might replace them before they
applied for reinstatement This is exactly what the Respondent says happened to
Amato , DeBatt , Fey, and McLendon 6 On the other hand , the General Counsel
asserts inter ilia that the Rec"ondent 's conduct mode the strikers invulnerable to
being replaced and that the Respondent conditioned reinstatement upon an invalid
requirement that the strikers join Local 522 We have seen that, on the second day
5Those notices do not sneeifirelly name the A ssoeiation but the Respondent concedes
in its brief that * " Local 282 sent a notice to both the Federal Mediati"n and Con-
ciliation Service and the New York State Board of Mediation advising that the contract
with the New York Lumber Trade Association would terminate and that the negotiations
had not resulted in a meeting of the minds "
e see footnote a In its brief , the Respondent save that " none of the affected
employees asked for reinstatement prior to October 19 P.v this date all of them had
been replaced and Local 282 had lost its majority status in respondent ' s plant "
METROPOLITAN MILLWORK, INC. 1487
of the strike , the Respondent executed a contract with Local 522 and resumed opera-
tions when members of that union crossed the picket line of Local 282. We have
seen too that the strikers were told by the Respondent that their chosen representa-
tive, Local 282, was "out," that Local 522 was "in ," and that they could not return
to work unless they joined the latter union. Indeed , in its brief the Respondent
concedes -that:
After the contract was signed , the respondent or one of the Local 522 agents
informed the men on the picket line that they could come back to work if they
joined Local 522. Other than this statement , no other condition was placed
in the way of any employee from returning to work.
No other condition need be proved by the General Counsel. That condition con-
stituted invalid discrimination against members of Local 282 and support to Local
522 by the Respondent because of the failure to observe the 30-day period which is
set forth in Section 8(a)(3) Moreover vacancies existed when the strikers were
told that their return to work would be conditioned upon their joining Local 522.
In the first place, if the strikers had been replaced and there had been no vacancies,
there would have been no point in informing them of the condition and offering
reinstatement based upon it. In the second place, several employees were reinstated
after the condition was established.
The General Counsel , in his attack upon the contract between the Respondent and
Local 522, cites the Midwest Piping doctrine and contends that the Respondent
violated the Act by granting recognition to Local 522 when Local 282 claimed to
represent the employees .? He argues that , when the Respondent and Local 522
executed the contract on the second day of the strike, the striking employees, mem-
bers of Local 282, retained their status as employees , that their jobs had not been
filled, and that their picketing on behalf of Local 282 plus that union 's history as
the employees ' representative demonstrate its continuing claim to be such repre-
sentative .8 According to the General Counsel , the Respondent , in the face of Local
282's claim to represent the employees , could not validly resolve the issue of con-
flicting claims and recognize Local 522. The General Counsel's position is sound.
If we assume . in the light most favorable to the Respondent , that Local 522's ap-
pearance on the scene created a real question concerning representation , the applic-
able law is that the Respondent could not itself determine which of the unions, Local
522 or Local 282, possessed majority status , but was required to withhold recognition
from both unions until the question had "finally been determined under the special
procedures provided in the Act ." Novak Logging Company, 119 NLRB 1573, 1574.
In summary , I find that the Respondent , by entering into the contract with Local 522
and by conditioning employment upon membership in that union, rendered invalid
support to Local 522 in violation of Section 8(a)(2), discriminated against em-
ployees in violation of Section 8 ( a)(3), and interfered with, restrained , and coerced
them in violation of Section 8(a)(1). I find also that said violations converted the
strike into an unfair labor practice strike by prolonging it Finally, I find that
Amato, DeBatt, Fey , and McLendon , who became unfair labor practice strikers on
October 11, were not vulnerable to refusals to reinstate them, and that the Respond-
ent violated Section 8 ( a)(3) and ( 1) in rejecting their applications for reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices set forth above, occurring in connection with the opera-
tions of the Respondent described in section 1, have a close, intimate and substantial
relation to trade, traffic and commerce among the several States , and tend to lead
and have led to labor disputes burdening and obstructing commerce and the free
flow of commerce
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative action
7 The case from a hich the doctrine obtains its name is Midwest Piping it Siippiy Co
Tee, 63 NLRB 1060
8 See W Wilton Wood, Inc, 127 NLRB 1675, and the Board's discussion of Section
9(c) (3) which reads in part
Employees engaged in an economic strike who are not entitled to reinstatement
shall be eligible to vote under such regulations as the Board shall find are con-
sistent with the purposes and provisions of this Act in any election conducted
within twelve months after the commencement of the strike
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
designed to effectuate the policies of the Act. Because the Respondent invalidly
supported Local 522, I shall recommend that the Respondent cease and desist from
contributing support to that union and that it withdraw and withhold all recognition
from Local 522 as the representative of employees for the purpose of dealing with the
Respondent concerning grievances , labor disputes , wages, rates of pay, hours of em-
ployment, or conditions of work, unless and until Local 522 shall have been duly
certified by the Board as the exclusive representative of the Respondent 's employees.
I shall recommend also that the Respondent cease and desist from giving effect to its
contract with Local 522, or to any modification , extension , supplement , or renewal
thereof, or to any superseding agreement , unless and until Local 522 shall have been
certified as stated . Nothing in these Recommendations , however , shall be deemed to
require the Respondent to vary or abandon those wage , hour, seniority , or other sub-
stantive features of its relations with its employees , established in performance of the
contract or to prejudice the assertion by the employees of any rights they may have
under said contract .9
It has been found that .the strike , which began on October 10, 1961, was converted
by the Respondent 's conduct into an unfair labor practice strike on the next day.
Consequently , the strikers were not subject to replacement . N.L.R.B . v. Mackay
Radio & Telegraph Co., 304 U.S. 333. At the time of the hearing, the strike was still
in progress . I shall recommend that the Respondent offer full reinstatement to their
former or substantially equivalent positions ( The Chase National Bank , etc., 65
NLRB 827), without prejudice to their seniority or other rights or privileges, to all
employees who went on strike on October 40, 1961, and who have not already been
reinstated to said positions , dismissing, if necessary , any persons hired by the Re-
spondent on or after October 14, 1961, who were not in the Respondent 's employ
before that date.10 I shall recommend also that the Respondent make whole each of
them for any loss of pay he may suffer, or may have suffered , by reason of the Re-
spondent's refusal to reinstate him as provided herein , by payment to him of a sum of
money equal to that which he normally would have earned from the date set out in
the footnote 11 to the date of a proper offer of reinstatement , less his net earnings
(Crossett Lumber Company , 8 NLRB 440 , 497-498) during said period, the payment
to be computed on a quarterly basis in the manner established in N L R .B. v. Seven-
Up Bottling Co., Inc., 344 U.S. 344 I shall recommend also that the Respondent
preserve and make available to the Board or its agents, upon request, for examina-
tion and copying , all payroll records, social security payment records , timecards,
personnel records and reports, and all other records necessary to analyze the amounts
of backpay and-the rights to reinstatement under the terms of these Recommendations.
The General Counsel asks that I recommend that the backpay bear interest . Insofar
as I have been able to learn , the Board has never awarded interest on backpay, or ex-
pressly declined to do so , simultaneously with a determination that there had been a
violation of the Act . 12 The issue is now before the Board in a number of cases
and doubtless will be resolved before a decision is issued in this proceeding . 13 I make
no recommendation on the General Counsel's request.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend further that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed in said section N L.R.B. v. Express Publish-
ing Company , 312 U S 426 , N L R.B V. Entwistle Mfg. Co, 120 F 2d 532 (C.A 4).
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
9There is no evidence that the contract with Local 522 provides for a checkoff of dues
The Respondent asserts that the contract does not
11 The offer to Amato. DeBatt, Fey, and McLendon, and to any other striker who has
applied for reinstatement, shall be made immediately. The offer to any striker who has
not applied tor reinstatement shall be made within 5 days after application by him.
31 As to Amato, DeBatt, Fey, and McLendon, this date is October 20, 1961. As to any
striker who has been reinstated, and any unnamed striker who has applied for reinstate-
ment without success, this date is the date he applied therefor. As to any other striker,
this date is 5 days after his application therefor
la In Stilers Candy Company, 92 NLRB 1220, the Board refused to award interest in a
hackpay proceeding The Board gave no reason for the refusal It may be observed,
however, that such an award could have been interpreted as an enlargement of the
Board's original Order in the case
13 One such case is Puget Sound Bridge & Dry Dock Co, Case No 19-CA-2283 (not
published in NLRB volumes)
METROPOLITAN MILLWORK, INC. 1489
CONCLUSIONS OF LAW
1. Locals 282 and 522 are labor organizations within the meaning of Section 2(5)
of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of their
rights under the Act, by contributing support to Local 522, and by encouraging mem-
bership in that labor organization and discouraging membership in Local 282 through
discrimination in employment, the Respondent has engaged in and is engaging in un-
fair labor practices affecting commerce within the meaning of Section 8(a)(1), (2),
and (3) and Section 2(6) and (7).
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant
to Section 10(c) of the Act, I hereby recommend that Metropolitan Millwork, Inc,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing, contributing support to, and giving effect to its contract with
Local 522, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, of America, in the manner set forth in "The Remedy" section of the Inter-
mediate Report.
(b) Encouraging membership in said Local 522 and discouraging membership
in Local 282 of said Teamsters International, or any other labor organization of
its employees, by refusing to reinstate any of its employees because of their union
membership or activity, or in any other manner discriminating in regard to their
hire or tenure of employment or any term or condition of employment.
(c) Threatening employees with denial of reinstatement or any other form of
discrimination, unless they join said Local 522.
(d) In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act.
(a) Withdraw and withhold all recognition from said Local 522 as the exclusive
representative of employees, in the manner set forth in "The Remedy" section of
the Intermediate Report.
(b) Offer reinstatement to Joe Amato, Robert DeBatt, Walter Fey, James Mc-
Lendon, and its other striking employees, and make each of them whole, in the
manner set forth in "The Remedy" section of the Intermediate Report.
(c) Preserve and, upon request, make available to the Board or its agents all
payroll and other records, as set forth in "The Remedy" section of the Intermediate
Report.
(d) Post in conspicuous places at its place of business, including all places where
notices to employees customarily are posted, copies of the notice attached hereto
marked "Appendix." 14 Copies of said notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by the Respondent's
representative, be posted by it immediately upon receipt thereof, and maintained by
it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by
the Respondent to ensure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify said Regional Director, in writing, within 20 days from the receipt of
this Intermediate Report, what steps the Respondent has taken to comply herewith.15
14 If these Recommendations should be adopted by the Board , the words "as ordered by"
shall be substituted for "as recommended by a Trial Examiner of" in the notice In the
further event that the Board 's Order be enforced by a United States Court of Appeals,
the words "Pursuant to a Decree of a United States Court of Appeals , Enforcing an
Order of" shall he substituted for "as ordered by
15 In the event that these Recommendations be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board
and in order to conduct our labor relations in compliance with the National Labor
Relations Act, we notify our employees that.
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT deal with or support Local 522 of the Teamsters and we will
not give effect to our contract with that union unless it wins a Labor Board
election and is certified by the Labor Board as your representative.
WE WILL NOT require our employees' to be members of Local 522, and we
will not discourage them from being members of Local 282.
WE WILL NOT threaten our employees with loss of their jobs because they
join or do not join any union.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice or not to engage in any
union activities.
WE WILL offer Joe Amato, Robert DeBatt, Walter Fey, and James McLendon
reinstatement to their former jobs, and we will offer reinstatement to any other
employees who went on strike during October 1961 and who want to come back
to work. There will be no loss of seniority or other rights to any employee
who went on strike.
WE WILL give backpay to Amato, DeBatt, Fey, McLendon, and any other
striking employees who suffered.a loss of pay because of our refusal to put them
back to work.
All our employees are free to become or remain members of Local 282, Local 522,
or any other union, and they are also free to refrain from joining any union unless
in the future we should enter into a valid union-shop contract with a union which
represents our employees.
METROPOLITAN MILLWORK, 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 the employees have any questions concerning this notice or whether the Em-
ployer is complying with its provisions, they may communicate with the Board's
Regional Office, 5th Floor, Squibb Building, 745 Fifth Avenue, Manhattan, Tele-
phone Number, Plaza 1-5500.
Motoresearch Company and Kems Corporation and Interna-
tional Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, Local 1195, AFL-CIO. Case
No. 13-CA-3907. October 9, 1962
DECISION AND ORDER
On March 7, 1961, Trial Examiner C. W. WWThittemore issued his
Intermediate Report in the above-entibled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action as set forth in the attached Intermediate Report. Thereafter,
the Respondent filed exceptions, and the Respondent and General
Counsel filed briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
138 NLRB No. 145.