Netti Wholesale Grocery of Watertown, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1958

121 N.L.R.B. 619 (N.L.R.B. 1958)

NETTI WHOLESALE GROCERY 619
L Alversano , San Silverto 11 Antonio Mascola, S G Guiseppe is
Liberad De Bernardo , Santa Marta Guiseppe Iacono , S Restituta II
'Peter Guarrasi , Santa Rita Pasquale Artiano , S Teresa
John Sima, Santa Teresa Santo Trama , Tommy Boy
Amello Pilato , Sea Maid John Scognamillo , Vittoria
'i Alversano is also referred to in the record as "L Auersano "
12 Mascola is registered with U S Customs as part owner of, and is a member of, the
Co op for the S G Gusseppe
Netti Wholesale Grocery of Watertown , Inc., Petitioner and Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, Local 263. Case No 3 RM 153
August 20,1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Bernard Ness,
hearing officer The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed
Upon the entire record in this case, the Board finds
1 The Employer is engaged in commerce within the meaning of
the National Labor Relations Act 1
2 The labor organization named below claims to represent cer-
tain employees of the Employer
3 The Union contends that it has presented no claim for recog-
nition to the Employer, and that the petition should be dismissed be
cause no question of representation exists
At the hearing, there was evidence indicating that, on three oc-
casions, the union business agent threatened the Employer with
"trouble" if it did not "go along" with the Union The Employer's
president testified that in the course of one conversation, the business
agent told him that he had advised Camp Drum, a customer of the
Employer, not to accept beer deliveries from Netti The Company
president also testified that the union business agent promised him
"a few breaks" if he cooperated
Although the Union claimed that its calls and visits were merely
to inform the Employer of the Union's forthcoming organizational
drive, the Employer's version was corroborated by uncontradicted
evidence that, within an hour after the business agent's first call, the
Employer was called by a supplier, who said that "through union
channels" he had been advised not to send the Employer any beer
i We reject the Union 's contention that the Board should not assert jurisdiction in the
present case, as it is clear fiom the record that the Employer 's purchases from across
State lines are approximately $1,000 ,000 annually The T H Rogers Lumber Company,
117 NLRB 1732
121 NLRB No 76
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later the same day, a, company salesman was informed by the beer
purchaser at Camp Drum that he had been "contacted" not to accept
any beer from Netti. The Union admitted that it had made a "spot
check" at Camp Drum, "to let the licensees know that drivers are not
members of any union."
On Friday, April 25, the Employer filed a petition with the Board,
requesting an election. The following Monday, the union business
agent telephoned the Employer in regard to the petition, denying
that a claim for recognition had been made. The Employer testified
that, during the same conversation, the Union once again threatened
trouble "if you don't get together and join this Union now." There
was uncontradicted testimony that, after this last conversation, the
Employer's president was contacted by four other purchasers who said
they feared picketing if they continued to buy beer from Netti.2
We recognize that not every telephone call to an employer from
a business agent may be construed as a union claim for recognition.,
However, in this case, the Union repeatedly stated that it had not
yet attempted to : organize.4he • employees ;of; this -Employer. , At the
same time it appears, and we find, that the Union continued to com-
municate with the Employer's president, conveying the clear impli-
cation that it desired the Employer to recognize the Union or sign
a contract, regardless of the wishes of the employees. To attain its
objective, the Union set in motion economic pressures against the Em-
ployer in the form of promised "breaks" in contract terms, threats of
picketing, and spreading the word that the Employer's product be
boycotted. These pressures were continuing, and were renewed, after
the filing of the instant petition. In these circumstances, we are
constrained to hold that the Union's disclaimer is ineffective, and that
a current claim for recognition has sufficiently been made out.' Ac-
cordingly, we find that a question affecting commerce exists concerning
the representation of certain employees of the Employer within Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within Section 9
(b) of the Act : 4
All drivers and warehousemen of the Employer's operations at
Watertown, New York, excluding all other employees, office clerical
2 We do not credit the business agent's testimony that the Union was not responsible
for these calls, particularly in view of its admitted "spot check" at Camp Drum.
s Jerome E. Mundy Co, Inc.. 116 NLRB 1487; McAllister Transfer, Inc., 105 NLRB
751; Swee-T-,Shirts, Inc., 111 NLRB 377.
* The Union at the hearing claimed that, in the event of a Board election, it would be
interested in representing only drivers and warehousemen connected with the beer business,
and not those connected with the grocery business . It is not necessary for us to decide
whether a unit so limited would be appropriate , as all of the Employer 's drivers and
warehousemen handle beer and groceries interchangeably.
IMPERIAL MACHINE CORP . 621
employees, salesmen, professional employees , guards, and all super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
T'f n R JENBINS took no part in the consideration of the above
Decision and Direction of Election.
Imperial Machine Corp . and United Steelworkers of America,
AFL-CIO. Case No. 1-CA-2303. August 25,1958
DECISION AND ORDER
On December 30,1957, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
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 the brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the additions and modifications
indicated below.
We agree with the Trial Examiner that the Respondent, in violation
of Section 8 (a) (5) and (1) of the Act, refused to bargain in good
faith with the Union as the exclusive representative of the Respond-
ent's-employees in an'appropriate unit 2
The Respondent contends that the bona fides of its collective bar-
gaining cannot be tested because the Union, itself, did not bargain in
good faith. The record, however, discloses that the Union did bargain
in good faith. Accordingly, we find no merit in the Respondent's
contention.
i The Respondent excepts to the Trial Examiner's refusal to view its premises during the
course of the hearing . We find that the Trial Examiner properly exercised his discretion
in this matter and therefore find no merit in the Respondent 's exceptions.
2 Although .the evidence indicates that the reduction in hours was necessitated by the
resignation of the Respondent's. skilled setup man , we,find that the Respondent , neverthe-
less, violated Section 8 (a) (5) and, independently , Section 8 (a) (1) by failing to con-
sult and discuss this matter with the Union , the employees ' bargaining representative.
121 NLRB No. 75.