Northeasst Products Co., Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1964

147 N.L.R.B. 675 (N.L.R.B. 1964)

NORTHEAST PRODUCTS CO., INC. 675
Northeast Products Co., Inc. and Chauffeurs & Teamsters Local
Union #526, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of Amer-
ica. Case No. 1-CA-4247. June 25, 1964
DECISION AND ORDER
On January 21, 1964, Trial Examiner William J. Brown issued his
Decision 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 af-
firmative action, as set forth in his attached Decision. He further
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter the General Coun-
sel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom 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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
Contrary to our dissenting colleague, we cannot find that the Union's
offer on behalf of the five striking employees to return to work was
"unconditional." Rather, their return to work was to be on the new
terms and conditions of employment tobe established under the agree-
ment which the Union reached with the Respondent on Saturday,
May 25. But on Monday, May 27, the Union refused to sign the agree-
ment or recognize the obligations it had assumed on May 25. In
these circumstances we cannot say that the Respondent was bound to
put into effect the new terms and conditions of employment which had
been agreed on. But these were the very terms and conditions under
which the Mendoza brothers had returned to work, and the remaining
three strikers were seeking reinstatement. Since these new terms and
conditions were not yet effective, and since neither the Mendoza broth-
ers nor the other strikers had indicated a willingness to work on the
Respondent's, existing terms, the Respondent was reasonably justified
in regarding the strike as not yet over. Accordingly, we find that the
1 In the absence of exceptions thereto, we adopt pro forma the Trial Examiner 's finding
that the Respondent's conduct on and after May 31, 1963, amounted to a refusal to bar-
gain in good faith , and violated Section 8(a)(5) and (1).
147 NLRB No. 83. .
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent was entitled to order the Mendoza brothers to leave the
plant -and was also entitled to refuse to recall the remaining strikers.
Also contrary to the impression apparently formed by our dissent-
ing colleague, the Trial Examiner specifically inferred from the evi-
dence that prior to May 27, the Union had in fact changed its mind
about signing the agreement at all. Since this finding of the Trial
Examiner is an inference based upon resolutions of credibility, and
since a clear preponderance of all relevant evidence does not convince
us that they are incorrect, we perceive no reason to overrule such
resolutions. Standard Dry Wall Products, 91 NLRB 544, enfd. 188
F. 2d 362 (C.A. 3).
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Oct, as
amended, the Board hereby adopts as its Order, the Recommended
Order of the Trial Examiner, and orders that Respondent, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order 2
MEMBER BRowN, dissenting in part :
My colleagues have adopted the Trial Examiner's conclusion that
the Respondent did not violate Section 8 (a) (3) when it ordered em-
ployees from its plant because the employees' bargaining representative
did not that day sign an agreed-upon contract. I do not agree. The
situation is essentially a simple one. Following long and fruitless
bargaining, an economic strike was instituted on April 15, 1963. The
Respondent submitted its "final offer" to the Union on May 24, and
the parties reached a complete agreement the following day. The
parties also arranged to execute their agreement on Monday, May 27,
and the Respondent also agreed to accept the Union's unconditional
offer on behalf of all five striking employees to return to work. By
the terms of that acceptance the two senior striking employees, the
Mendoza brothers, were to return to work on Monday, May 27, and
the remaining three striking employees by the end of the week. None
of the strikers had been replaced at that time. The Mendozas did in
fact return and were put to work Monday morning. Later that same
morning, the union business agent called Respondent's attorney and
advised the latter that the, business agent would be unable to sign the
contract that day but that he would do so later,in the week. Follow-
ing a telephone call to the plant superintendent from the attorney
relaying that information and stating that, in the attorney's opinion,
the strike had not ended, the plant superintendent ordered the Men-
dozas to leave the plant. 'In plain language they were locked out.
2 In "The Remedy " section of the Trial Examiner's Decision , the citation for Isis
Plumbing and Heating Co., is amended to read, "138 NLRB 716."
NORTHEAST PRODUCTS CO., INC. 677
Although the Trial Examiner does not allude to it, uncontradicted
testimony in the record reveals that the Mendozas thereupon reported
to the union hall. There is evidence that the union business agent then
called Respondent's attorney in an unsuccessful effort to resolve the
difficulties. The other three employees were called to the union hall,
and all five employees voted to resume picketing because the Respond-
ent had ordered the Mendozas to leave the plant. Picketing was
resumed later that morning.
In these circumstances, the Trial Examiner concluded, and my col-
leagues agree, that the Mendozas were not discharged because they
participated in union activities, but rather were ordered to leave until
the "misunderstanding" was cleared up, and that the Mendozas and
the three other employees remained strikers even after the Respondent
had agreed to reinstate them and the Mendozas had in fact returned
to work.
That conclusion, in my opinion, flies in the face of irrefuted facts
and basic law. Thus, it appears that the economic strike ceased on
May 24 when unconditional offers to return to work were made on
behalf of all strikers and were accepted by the Respondent; that the
Mendozas accordingly did return to work but were subsequently
ordered to leave; that the sole reason for their being ordered to leave
was the Respondent's insistence on the Union's signing a contract im-
mediately and not later in the week; and, finally, that the only reason
the five employees resumed picketing on May 27 was to protest Re-
spondent's failure to reinstate them to their available positions.
The Board has held that it is an unfair labor practice for an em-
ployer to refuse to reinstate employees in order to force their bargain-
ing agent to sign a contract? 'Clearly, therefore, it is unlawful to
order employees who have already been reinstated to leave the plant
for the same motive. Hence, the Respondent discriminated against
all five employees in violation of Section 8 (a) (3) and (1) of the Act
by locking out the Mendozas and thereby unequivocally demonstrating
to the other three employees whose reemployment offers also had been
accepted that they would not be reinstated until their bargaining
representative had signed the contract.
Accordingly, I would find that all five employees are entitled to
reinstatement and backpay.
3 American Stores Packing Co., Acme Markets, Inc., 142 NLRB 711. Cf . Quaker State
Oil Refining Corp. v. N.L.R .B., 270 F. 2d 40, 45 (C.A. 3 ), cert. denied 361 U.S. 334;
Utah Plumbing and Heating Contractors Association v. N.L.R.B ., 294 F. 2d 165, 168
(C.A. 10) ; Local 374 , International Brotherhood of Boilermakers etc. v. N.L.R.B ., 331 F.
2d 839 (iC.A.D.C.), enfg. sub nom . The American Shipbuilding Company, 142 NLRB 1362.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter referred to as the Act. The underlying charge was filed
678 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 31 , 1963, by the above -designated Charging Party, hereinafter sometimes
referred to as the Union , with due service on the above -indicated Respondent here-
inafter sometimes referred to as Northeast or the Company . Thereafter the com-
plaint was issued September 13, 1963, by the General Counsel of the Board acting
through the Board's Acting Regional Director for the First Region. It alleged, and
the Company 's duly filed answer denied, the commission of unfair labor practices
defined in Section 8(a) (3) .and (5) of the Act.
Upon due notice , a hearing was held at Fall River , Massachusetts , from October 15
through October 17, 1963, before Trial Examiner William J. Brown. At the close
of the taking of evidence the General Counsel argued orally on the record of the
hearing ; following the close of the hearing the Company has submitted a written brief.
On the entire record herein and on the basis of my observation of the witnesses
and upon consideration of the arguments of counsel , I make the following:
FINDINGS OF, FACT
1. THE BUSINESS OF THE COMPANY
The Company is a corporation organized under the laws of the State of Rhode
Island. It maintains its principal office and place of business at 52 Ferry Street,
Fall River, Massachusetts , where it is engaged in the business of receiving , blending,
and packaging petroleum lubricants , for the account of owners of the lubricants.
In the great majority of its operations the containers into which Northeast places
the lubricant for shipment are also owned by other persons , although in some 15
percent of its packaging the lubricants are placed in containers which, at time of
packaging, are owned by Northeast. The principal contract is with Standard Oil
of Indiana and from that company and others Northeast annually receives goods
valued in excess of $50,000, and shipped to Northeast from points outside Massa-
chusetts; similarly, Northeast annually ships to points outside Massachusetts packaged
lubricants valued at more than $50,000.
In accordance with the foregoing , I find, as Northeast concedes , that the Com-
pany is engaged in commerce within the purview of Section 2(6) and (7) of the
Act. I further find that assertion of jurisdiction on the part of the Board is
warranted.
II. THE LABOR ORGANIZATION INVOLVED
The evidence, including a stipulation of the parties, reveals and I find that the
Union is a labor organization within the purview of the Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues involved
This case presents the question as to whether, following certification of the Union
as bargaining representative of its production employees, Northeast's course of deal-
ing with the Union involved elements of bad faith, including discharge of two
employees with resultant prolongation of a strike, and discriminatory refusal to
reinstate any of the strikers notwithstanding their application to return to work. In
addition to presentation of evidence tending to establish its good faith in the bargain-
ing and other dealings concerning employment relations, the Company has offered
evidence tending to indicate that the conduct of the Union in several aspects of the
bargaining was demonstrative of bad faith on the part of the Union and served, in
the circumstances to warrant, justify or explain conduct of the Company which oth-
erwise might constitute unfair labor practices.
B. The Company's operations and organization
Northeast is owned by three shareholders. One of the shareholders, Atherton G.
Cutter is vice president and general manager. He is the day-to-day operating head
of the Company althoughhe consults frequently with the other owners, Webb Rooks,
Sr., and Deck Earle, on matters of relative importance. In the fall of 1962, when
negotiations with the Union commenced, the Company had two supervisory em-
ployees in addition to Cutter: they were W. J. Rooks, plant superintendent, and
Foreman Larrivee. There were then seven employees working in the unit involved
herein. They were Correia, Gonsalves, Lawrence Mendoza, Manuel Mendoza,
Sarlo, and Wilkinson-all classed as "general labor"-and Ridge, classed as
"warehouseman."
NORTHEAST PRODUCTS CO., INC. 679
The layout of the plant is somewhat indistinctly revealed from the record but it
does appear that there is a warehouse area, more or less separated from the receiv-
ing and blending-packaging areas, where completed containers are stored ready for
customer trucks to back up and load. The warehouse area is served by two
forklift trucks
C. The election, certification, and early bargaining
Following the filing by the Union of a representation petition sometime in Au-
gust 1962, the parties executed a stipulation for certification upon consent election
and an election was held at the plant premises on September 11, 1962. Six of the
seven eligible voters cast ballots for the Union and one vote was cast against the
Union. The Union was thereafter certified on September 19, 1962. At the outset
of the hearing herein, the Company's attorney stated that the Company has never
questioned the representative status of the Union.
In the earliest discussions between the Union and the Company the Union was
represented by its secretary-treasurer, Herve Belanger , and its business agent, Bennie
Costa. The opening point of negotiations was a written draft of a proposed agree-
ment submitted by Belanger to Cutter. It is in evidence as General Counsel's Exhibit
No. 6 and contains the Union 's proposals respecting wages, hours, and terms and
conditions of employment. The wage proposals run from $2.02 for canners to $2.22
for forklift operators with one intervening rate for other jobs. The proposals
respecting seniority would require some recognition thereof in assigning work and
would provide that seniority would be lost, among other reasons, by layoff for more
than 12 consecutive months. The Union proposed agreement contained provisions
relating to welfare and pension benefits, holiday and vacation pay , and a grievance
procedure terminating in arbitration by the Massachusetts Board of Conciliation and
Arbitration. It proposed a 1-year term.
Following receipt by the Company of Belanger 's initial draft , Cutter arranged
for Attorney James T. Waldron to represent the Company in the first sessions.
Waldron met with Belanger and Costa and the Union's proposed contract was gone
over in detail . At the outset of the bargaining the Company 's representatives asserted
the position that the Union's economic proposals would be impossible to meet unless
a 3-year term with graduated improvements were effected . The evidence also indi-
cates that at an early point in the bargaining sessions Cutter brought to a bargaining
meeting the Company's books and -records and offered to demonstrate to Costa
that it was in a relatively poor position to accede to some of the union requests.
Costa, the evidence indicates, as a matter of principle, refused the company offer to
permit him to examine their financial records.
At the first meeting, that of October 26, 1962, Waldron was accompanied by Webb
Rooks; at subsequent sessions he met either unaccompanied or with Cutter. The
evidence from both sides clearly indicates that the Company 's position as to its
financial inability to meet the Union's proposals would be an obstacle to agreement
unless there was considerable give-and-take in the 'bargaining. One point which
clearly appears from the testimony of both Costa and Waldron is that employee
Ridge's hostility to the Union became a matter of concern at an early point in the
negotiating sessions. The testimony leaves no doubt but that at one of the first meet-
ings Waldron agreed with Costa that inasmuch as Ridge had participated in the rep-
resentation election he belonged in the unit and would be subject to the union-security
clause. Incidentally, there appears to have been agreement at an early date both on
the subject matter of union security and as to the precise wording of the clause, al-
though subsequently the Company proposed a different method of determining the
grace period for nonmembers.
There were several additional meetings in October 1962 in the course of which
Waldron, on behalf of the Company, advanced wage proposals with step-ups over a
3-year period. From the first meeting the company representatives asserted that
the Union's proposal of 12 months as the period measuring loss of seniority due to
layoff was too long. The Company did not propose any specific period until later
in the bargaining as set forth below.
Following meetings on November 13 and 15 at which the parties did not budge
from their positions on economic issues, the employees were called to a union meeting
and voted 6 to 0 in favor of striking; news of the strike vote, communicated to
Waldron, did not stir the Company to immediate capitulation and no strike was
called at that time. Meetings were held thereafter throughout the balance of 1962.
They appear to have been hampered on the union side by the illness of Costa occur-
ring sometime in December and requiring his extended hospitalization from early
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January until early spring of 1963 and by the fact that Belanger was defeated by
Anthony Materia in the union membership 's election of officers early in December
1962. Materia had until then been a truckdriver with no negotiating experience.
D. Bargaining negotiations in 1963 preceding the strike
Following the combination in December 1962 of the illness of Costa and the dis-
appearance from the scene of Herve Belanger there appears to have been a hiatus in
the bargaining with neither party pressing for meetings . This situation apparently
continued until some chance meeting between Costa and Waldron in the course of
which one reminded the other that there was pending between them the unfinished
matter of negotiations for an agreement covering the Company's employees and they
agreed to meet on it. The first 1963 meeting appears to have taken place on or about
March 11 in the union offices . Materia testified that the basis of negotiations was still
the Union's original proposal and this is confirmed by the testimony of Costa and
not denied by Waldron, the company representative at the meeting.
The next negotiating meetings appear to have taken place on April 8 and 12.
According to Materia the April 8 meeting produced a definite counterproposal from
Waldron with a wage rate, and holiday improvements graduated over a 3-year
term , and with a 6-cent per man-hour contribution to a welfare program. Materia
recalled that the presentation of the entire company proposal was lengthy and com-
mencing at the April 8 session was put over and completed at the April 12 meeting.
The Company's proposal, according to the testimony of Costa, for the first time be-
came specific on the matter of the time period governing loss of seniority due to
layoff and included a proposal that the period be one of 30 days.
Costa specifically recalled that at the conclusion of the April 12 meeting the parties
were at issue over the Union's offer to drop the 12-month clause to 6 months, and
the Company's insistence on a 30-day provision; yet Materia asserted that at the
conclusion of the April 12 meeting there was no issue on seniority . It seems most
probable that the parties were then concentrating on economic issues but had not
yet resolved the wide disparity between the 12-month proposal of the Union and
the continued opposition of the Company to that long a period . I find it unnecessary
to resolve any uncertainty as to the precise course of discussion preceding the strike
which subsequently occurred, in view of the candid concession of the General
Counsel that the strike was wholly and completely an economic strike, notwith-
standing that, as he asserts, it did have undertones and furnished the mise-en-scene for
what he calls a "doublecross."
Following the conclusion of the April 12 meeting, Materia and Costa called the
company employees into a union meeting at which the union representatives outlined
the terms of the latest company proposal . The men, who had been waiting for
many months since the reign of Belanger for action from the International Brother-
hood of Teamsters for sanction for strike action, apparently in desperation voted for
a strike even though they had received no International approval. They were given
the assurances of Materia , however , that the Local Union would back them to the
fullest. There is no doubt on the evidence that the men did vote unanimous approval
of a strike at the April 12 union meeting. This meeting took place late in the after-
noon of April 12.
There is some considerable dispute on the testimony, however, as to the events
following the action of union employees in their strike vote of April 12. The testi-
mony of Materia would tend to indicate that on the morning of Saturday, April 13,
the union negotiators , Costa taking the lead, called Waldron on the telephone and
reported the strike vote of the preceding afternoon . Yet the testimony of General
Counsel witness, employee Lawrence Mendoza , clearly would place the time of the
Costa-Waldron telephone call concerning strike action as occurring on Friday,
April 12, and the testimony of Manuel Mendoza would tend to confirm this. I
appraise the reliable testimony in this regard as that of Waldron to the effect that
it was on the morning of Saturday, April 13, that he was notified of the strike vote of
the preceding afternoon, and in fact this corresponds with that of Materia insofar
as the date of the telephone call is concerned.
There is a further dispute, however, as to the nature of the conversation . Materia
testified that when told of the strike threat, Waldron merely said in effect that the
Company had made its last offer and the men could strike as far as the Company
was concerned. Waldron, however, testified that on receipt of Costa's telephone call
on the morning of Saturday, April 13, he went to the union hall, arriving there
about 10.30, meeting with Materia, Costa, and the two Mendozas. According to
Waldron he received assurances from Costa that they would have no trouble through
Monday and they agreed to meet on Monday afternoon at 4 o'clock. Waldron's
NORTHEAST PRODUCTS CO., INC. 681
version finds support in the testimony of Cutter, who impressed me as credible, to
the effect that on Saturday morning Waldron telephoned him and advised him of
the difficulties in the situation but relayed the assurance of Costa that there would be
no strike at least through Monday, April 15. I find that union assurances were in
fact given Waldron that any strike would not occur until after Monday. When,
as noted below, these assurances proved unreliable , this was a factor which quite
probably influenced the later bargaining and evidently impelled Waldron to a desire
to reduce speedily to writing matters as they became apparently settled.
E. The strike
On Monday morning, April 15, 1963 , at the opening of the plant at 8 o'clock,
strikers with placards appeared at the company premises and commenced their
patrolling . Employee Sarlo, who had been laid off shortly prior thereto , did not
participate in the picketing but all the other employees appear to have done their
turn at picket duty. During the early days of the strike there were some good-
natured bantering exchanges between Cutter and some of the pickets but as the strike
wore on and tempers shortened any atmosphere of friendship disappeared.
Through the first week of the strike there was no attempt to operate the plant
either on a packaging or shipping and receiving basis. Cutter, however, soon be-
came concerned about the ability of the Company to retain its contracts and on or
about April 22 the processing of goods on hand was resumed with supervisory
personnel and employee Ridge who did not participate in the strike.
On May 10 there was a meeting of the parties with Federal and State conciliators
at which there was some bargaining but no genuine promise of settlement. On
May 11 , at the suggestion of Waldron , Cutter wrote letters to each striker (and to
Sarlo ) telling them to report for work by May 15 or be replaced by outside help.
None responded . Cutter held off hiring from the outside , however , until after events
hereinafter detailed.
F. The apparent settlement
On Friday, May 24 , Waldron forwarded by messenger a letter addressed to Costa
and transmitted a copy of what the letter described as "the essential features this Com-
pany would want in their Agreement with your Union ." The letter advised the Union
that unless accepted "as is," all prior offers would be retracted. It requested that
Costa arrange for an employee vote and advise Waldron of the result by noon of the
following day, Saturday , May 25.
The economic proposals of the company offer of May 24, a copy of which is in
evidence as General Counsel's Exhibit No. 8, offered some advance upward from
existing terms and conditions but were well below the union requests that had
started the bargaining in the preceding October . At the time of the Union 's certifica-
tion the wage level had been based on a bottom rate of $1.35 ; there had been six paid
holidays but the evidence does not indicate other employment benefits, if any.
Whereas the Union 's October 1962 proposal on wages had been for an upward
adjustment in the base rate from $ 1.35 to $2 .02, the Company's proposal of May 24
would increase the bottom rate to $1.52, then to $ 1.57 then to $1.65 over a 3-year
term. There were corresponding proposals for adjustments in the upper rates on
both sides. The union proposal had been for an increase in paid holidays to nine;
the company proposal was for an increase to eight paid holidays in the second year
and to nine in the third of the proposed 3-year term.
The Union's 1962 proposal on welfare benefits had called for an employer con-
tribution of 13 cents per man-hour , and the Company's May 24, 1963, offer was one
for 6 cents per man-hour. On vacations the union proposal had been "one for
one, two for three , three for ten"; the company May 24 offer was "one for one, two
for five, three for twelve and four for eighteen." The vacation proposals apparently
could have affected at least the two Mendoza brothers in the summer of 1963 but
they do not appear in themselves to have been a major point of difference. They,
and the other company proposals , are mentioned as an indication of some flexibility
in the bargaining.
As noted above the original union proposal respecting loss of seniority due to
layoff had called for such loss only when the layoff was for a }period exceeding 12
consecutive months; throughout the bargaining sessions the company spokesman,
Waldron , had consistently -asserted his objection to the 12-month period as too
lengthy but had not specifically stated the Company's position on an acceptable dura-
tion until the April 12 meeting. The company proposal of May 24 included a
provision that seniority would be lost in the event of layoff for more than 30 days.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whereas the union proposal, as above noted, had called for arbitration of un-
resolved grievances at the hands of the State conciliation board, the May 24 proposal
of the Company called for arbitration under procedures of the American Arbitra-
tion Association.
On the morning of Saturday, May 25, Materia called the employee-members into
a meeting at the union hall and went over the Company's May 24 agreement with
them. Materia, Costa, and the two Mendozas testified that the meeting resulted
in unanimous agreement to accept the company proposal if three items were
changed-(1) convert the American Arbitration auspices to State conciliation auspices
for the handling of unsettled grievances; (2) eliminate the separate welfare con-
tribution and add the amount thereof to wage rates; and (3) increase the period
of layoff that would result in loss of seniority. The Company is, of course, not in a
position to dispute this account of what transpired at the union meeting. There is
however a sharp conflict in the testimony relating to what communication was made
to Waldron following the union meeting.
It is clear that following the union meeting, Costa called Waldron and the two
discussed the Union's position on the company proposal; the evidence indicates that
in the course of the talk Materia was listening on an extension and the assembled
members could hear both sides of the conversation as the "intercom" speaker was
turned on. Costa testified that he informed Waldron that the contract was accepta-
ble with the three changes above mentioned. Costa testified further that Waldron
stated that he thought the arbitration and welfare changes would be acceptable and
while they were discussing Costa's counterproposal of 6 months as to the layoff-
seniority clause, Materia broke in to urge that the strike not be prolonged over that
issue. Thereupon, according to Costa, Waldron said he would consult Cutter and call
back. According to Costa, Waldron did call back and agree to the changes on
arbitration and welfare whereupon Costa told him they would meet sometime on
Monday and try to get agreement on the layoff-seniority clause. Costa testified
that Waldron at that time instructed Costa to have the two senior men report for work
on Monday and promised that the rest would be recalled as work picked up.
Materia and the two Mendozas generally corroborate Coista's testimony to the
effect that Costa mentioned three points of disagreement to Waldron and that
Waldron agreed to two of the Union's proposed changes and agreed to meet Monday
on the third-the layoff-seniority period.
Waldron's testimony concerning the telephone conversation of Saturday morning,
May 25, is that Costa accepted the company proposed contract in all except two
particulars-welfare and arbitration-and that after consultation with Cutter he
informed Costa that the Company would agree to the changes and that they could
sign that very (Saturday) afternoon as Waldron's girl could type the needed changes
immediately. It was, according to Waldron, agreed finally that they would sign
the first thing Monday morning. Waldron confirmed that agreement was reached
that the two Mendozas could report for work on schedule on Monday morning, the
balance to be returned as workloads permitted.
Waldron's account finds support in the testimony of Cutter, whom I believe to be
thoroughly credible, to the effect that Waldron on Saturday morning informed him
that the men had accepted the company proposal with only two changes, that Cutter
cleared these two with his two fellow stockholders and that he had from Waldron
a clear understanding that only two changes were desired by the Union.
The credibility issue has been difficult to resolve but I am persuaded by the testi-
mony of Cutter, confirmatory of the likelihood of Waldron's account. I also rely
on my impression of a lack conviction in Costa's denial that on May 31 at a con-
ciliation meeting Costa told Waldron that headquarters had vetoed the 30-day
clause. This must be considered along with the clear indications that sometime
around the end of May, Materia had conversations with Boston headquarters con-
cerning the 30-day clause.
The two accounts of the events of Saturday May 25 essentially are-(l) the
Union's account that they reached agreement on two items, agreed to meet Monday
on the layoff^seniority clause; and (2) the Company's account that the only two
disputed items, welfare and arbitration, were agreed on and the parties agreed to
meet the first thing Monday to sign the contract. In accepting the Company's side
of this dispute I rely on my appraisal of Cutter as a reliable witness, on his testi-
mony that Waldron on Saturday morning informed him that only two objections
barred agreement, and on the improbability that Waldron would misrepresent the
bargaining situation to his client. I do not read Costa's testimony as a direct and
convincing denial of discussion of the 30-day clause on May 25. I infer from the
evidence that the Union changed its mind sometime over the weekend of May 24 to 27
possibly as a result of consultation with Teamsters headquarters.
NORTHEAST PRODUCTS CO., INC. 683
The evidence to me, therefore, indicates that on Saturday, May 25, the parties had
reached a final understanding with only the matter of minor retyping and formal
execution remaining and with a schedule agreed upon that that would take place the
first thing Monday morning. In reaching this conclusion I reject the contention of
the General Counsel that it would be inherently improbable that the Union whose
members had been on strike for some 45 days, would accept the 30-day layoff
clause. I conclude that the Union on May 25 either regarded it as inapplicable
to protect strike activity, overlooked it, or accepted it reluctantly as a means of
getting a contract.
G. The events of May 27
Early on the morning of May 27 the principals were in their respective offices at
or before 7:30 o'clock. Cutter, en route to the plant, called Waldron at about 8 a.m.
and was advised by Waldron that he had not yet heard from Costa about the sign-
ing. According to Waldron, Costa called him shortly thereafter and said he was too
busy to meet for the signing that day, but would see to it sometime later in the week.
Costa's testimony on this is indefinite. .
In the interim the two Mendozas had reported for work and been put on filling
drums by their foreman, Larrivee. Followng the advice from Costa to the effect
that The contract would not be signed that day, as to which I credit Waldron's ac-
count, Waldron called the plant, talked to Superintendent Rooks, informed him that
he had bad news in that the contracts would not be signed that day and that Rooks
should inform the Mendozas the strike was not over. The Mendozas stated that
they were told by Rooks that the contract had not been signed and they would have
to leave. The picket line was restored about 9:30 that morning.
In the meantime Cutter had proceeded to the plant and arrived there about 8:20
to find the two Mendozas standing outside the gate. He asked Larry Mendoza what
had happened since he understood the matter was all settled to which Mendoza
replied that he did not know, he thought it was all settled too but Waldron called
the plant and told Bill (Rooks, Junior) that the contract was not going to be signed.
H. The subsequent bargaining
Following the restoration of the picket line on May 27 there developed some
acrimony between the strikers and company officials. Cutter credibly testified that
about this time one of the Mendozas on the picket line asserted that once they got
Ridge into the Union they would "fix his apples"; also about the same time, according
to the credible testimony of Cutter, Correia, a picket, stated that once the Union
got in management would not be allowed to touch a piece of machinery. This as-
sertion apparently grew out of the inclusion throughout the negotiations of discus-
sion of the extent to which management would be allowed to perform bargaining
unit work. The Union had made the concession that in view of the fact that this
was a small and relatively new operation it would be permissible for management to
continue to perform tasks it had therefore become accustomed to do provided the
Company would not seek to expand this area to the detriment of the bargaining
unit's work opportunities.
It also appears that shortly after the May 27 misunderstanding, the Company an-
nounced to the Union its intention to promote Ridge to a supervisory position. Ridge
had at all times operated the forklift and been in general charge of the warehousing
operations but had no authority responsibly to direct the other employees and was
not regarded as a supervisor. As indicated above he had never supported the Union
and had worked during the strike. The announcement that be would be elevated
to supervisory status might well have been resented by the strikers and the Union
as a gross insult and it was, to say the least, ill-timed coming as it did at a time
when something might still be salvaged from negotiations. I find that Ridge's advance
in status presented a serious obstacle to peaceful negotiations from and after .its
announcement.
The evidence also indicates that sometime after the status of Ridge as supervisor
had been announced the Company proposed to the Union in negotiations that the rate
for the forklift operator be reduced. It appears that at this time Ridge was assigned
to operate the forklift a reduced part of his time and to have another forklift opera-
tor working under his direction. There are indications in the evidence that Ridge
at all times had in additon to his forklift assignment the matter of maintaining cer-
tain intricate valve controls but these tasks, while probably of considerable impor-
tance to the Company's operations, did not suffice to preclude his being an employee
for purposes of participation. in the election. The prospect of one of the union
supporters working under Ridge and at a cut in pay could hardly help the strained
bargaining situation.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meetings continued throughout the summer and on September 6 at a meeting
attended by Materia and Union Attorney Levin, the Company introduced a new
issue-the performance of maintenance work by unit employees on Saturday at
straight time. Another meeting attended by Materia and Levin on September 23
appears to have been the last. It was preceded by last-ditch efforts on Cutter's part
to reach agreement by private meetings with Materia on September 14 at which
Cutter asserted that the two major blocks appeared to be the status of Ridge and the
outlining of management rights and that if they could agree on these two items, then
the Company would be willing to yield on the seniority-layoff issue. Materia sub-
sequently reported that they could not commit the Union on these issues.
Sometime after May 31 the Company had recruited summer help, largely students,
to operate the plant. Toward the end of the summer Cutter proposed to Materia
that they exert every effort to reach agreement as he wanted the men back; Cutter
did expect however that the Mendozas would be required to take physical examina-
tions by the company physician, because as he explained, he felt their physical condi-
tion impaired their ability to perform their work. There does not appear to have
been any prior complaint about the Mendozas who were the senior in the unit,
except for Ridge and as noted above there was no question of their qualifications
on May 25.
1. Conclusions respecting the bargaining
The General Counsel disclaims the existence of any unfair labor practices prior
to May 25, though he asserts that the history of bargaining up to that date had
overtones presaging what he calls the doublecross which, he alleges, followed on
May 27. His theory is that the company offer of May 24 was "predictably un-
acceptable" to the Union, that the Union, desperately anxious to get its men back
to work, urged Waldron to permit them to return and negotiate further on the layoff
clause and that when the Mendozas, pursuant to understanding between the parties
on May 25, reported on May 27, only to be ordered to leave by Superintendent Rooks,
they were in effect discharged. He asserts further that the subsequent injection of
the status of Ridge into the bargaining further illustrates the bad faith of the
Company.
As outlined above I find the facts to be that the parties did in fact reach agreement
on May 25 as to all terms and conditions of employment in that the Union, as
I find the facts to be, on that date accepted the Company's proposed contract (with
two changes accepted by the Company) and agreed to sign the document on the
morning of May 27. I do not accept the contentions of the General Counsel that
the Company dealing prior to. May 27 involved insistence on provisions that were
predictably unacceptable to the Union or that the action of the Company on May 27
amounted to a "doublecross" in the nature of a repudiation of any commitment to
meet further on the layoff clause.
But I do find merit in the assertion of the General Counsel that the course of
bargaining thereafter involved a failure of the Company to bargain in good faith.
The insistence on recognition of supervisory status of Ridge appears clearly to have
been motivated by a desire to insulate him from the union-security obligations of
the agreement. At the same time the proposal of a reduction in the rate for the
forklift operation at that late stage of the negotiations appears designed almost as an
insult to the union negotiators and certainly designed as predictably unacceptable.
The same conclusion results from the subsequent insistence on the matter of per-
formance of maintenance work on weekends at straight -time rates . These belated
bargaining demands following upon a completed (according to the Company, and
I have agreed with this as above -noted) agreement do not indicate good faith in
the bargaining process but on the contrary negate it.
I find that from and after May 31 the Company failed, neglected, and refused
to bargain in good faith with the Union. In reaching this conclusion I find that the
Company adapted a rigid course of insistence on removal of Ridge from the unit,
recognition of management performance of bargaining unit work assignments, and
performance of maintenance work on weekends at straight time . The Company's
insistence of its position on these items is to me a clear indication of a purpose to
frustrate the bargaining process, coming as it does after , as I find , a settlement had
been reached on May 25.
I do not, as noted above, accept the General Counsel's contention that there was a
refusal to bargain in the nature of a "doublecross " on May 25. The record indicates
to me that the course of collective bargaining from the very inception in September
1962 up until the events of the weekend of May 24 to 27, 1963, had been conditioned
by several major difficulties . First and foremost were essential weaknesses on the
union side-the apparent disabilities of Belanger resulting in his removal from office
in December (which, as coming about 3 months after certification, would normally be
NORTHEAST PRODUCTS CO., INC. 685
a crucial period in . bargaining ) and his subsequent incapacity . • Also there was:
Belanger's failure to secure international sanction for strike action which apparently
had the effect of precipitating Ahe men into strike action on April 12 and which,
somehow communicated to Waldron , lulled the Company into a belief that it had time
to protract the bargaining processes . Most important in this area appears to have
been the illness of Costa whose experience in the field of negotiations in the area and
with Waldron especially would have undoubtedly had a salutary effect had he been
available to give an impetus to settlement before the lapse of so long a time after
the initial spur of certification.
There were weaknesses on the company side also. The management was a new
company apparently operating on so close a margin that Cutter had placed personal
assets in pledge for company financing. There were internal employee morale
difficulties resulting from Ridge 's opposition to the Union and the Company's wish
to protect him as the senior and apparently most skilled member of the work force.
Some measure of blame can be attributed to each side. Only the Company is here
charged . I find that its conduct after the apparent settlement of May 25 amounted
to a refusal to bargain in good faith.
J. The status of the strikers
The General Counsel 's position is that from and after the alleged "doublecross"
of May 27 all strikers were unfair labor practice strikers and that as to the two
Mendozas they not only had the status of unfair labor practice strikers but also were
entitled to the protection afforded by the law to employees discharged for participa-
tion in protected activities . He urges that the Company be required to reinstate all
five employees on the May 27 payroll, displacing their replacements if necessary,
and making them whole by backpay in accordance with established Board practices.
The circumstances surrounding the reinstitution of the strike on May 27 are re-
counted above. On that date, pursuant to the understanding of the parties reached
on Saturday, May 25, the two Mendozas reported for work and were assigned to
duties by their Foreman Larrivee at 8 a.m. Some 20 minutes later they were ap-
proached at their work stations by Plant Superintendent Rooks. The supervisory
status of Rooks is unquestioned . According to Lawrence Mendoza, Rooks said
to him that there was no contract signed and they would have to leave . Manuel
Mendoza confirmed this account . Rooks did not testify, although Waldron testified
that he had merely informed Rooks that the contract was not going to be signed and
that the Mendozas should be so advised . In the circumstances I accept the account
given by the Mendozas and conclude that they were in effect ordered to leave their
employment . They appear to have joined the picket line thereafter which was rein-
stituted about 9:30 a.m ., on the morning of the 27th.
I cannot conclude , however, that the General Counsel had established that they
were discharged because they participated in union activities. Rather, the evidence
indicates to me that they were ordered to leave until - the misunderstanding between
Costa and Waldron was cleared up . To me they are in the same status as the other
strikers.
In view of my finding that the Company engaged in refusal to bargain from and
after May 311 find and conclude that the strike was thence prolonged by these unfair
labor practices and that the strikers are entitled to reinstatement upon application.
They do not appear to have made unconditional application for reinstatement but
the question rises as to whether the necessity thereof is obviated by virtue of the
Company's letter of October 8, 1963, sent to all strikers and directing them to report
for work after first reporting to the company physician "as per the requirement for
employment in this Company."
With respect to the question as whether the requirement of a physical examination
was a discriminatory innovation , the evidence is conflicting. Lawrence Mendoza
testified that to his knowledge throughout his 2-year-and-9-month employment history
he had never heard of physical examinations as a prerequisite for employment or re-
employment. Cutter testified that replacements hired in the summer of 1963 took
preemployment physical examinations . He conceded however that in his private
discussion of September 14 with Materia at which he strove to reach some solution to
the difficulties he stated that if they arrived at a contract he would take the strikers
back. He does not recall making any mention of physical examinations in this
regard . Materia 's recollection of the September 14 meeting was that Cutter stated
that he would require physical examinations in the case of'the two Mendozas since,
according to Materia, Cutter felt that one of them had undergone surgery and the
other was heavy and slow-moving.
I cannot conclude on the evidence that the requirement of physical examinations
was discriminatorily imposed . The evidence does indicate however that this was a
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of reemployment established subsequent to the refusal -to bargain which
prolonged the May 27 strike . It would appear, in view of Cutter's willingness to take
back without physical examinations the only strikers whose physical qualifications
he questioned , that all strikers should be entitled under the law to reinstatement upon
application to their jobs without such an undue obstacle placed in their way.
I conclude that the strikers are entitled to reinstatment upon application to their
former or substantially equivalent jobs. They are entitled to be made whole for loss
of earnings for a period commencing 5 days after they unqualifiedly apply for rein-
statement to the date of reinstatement or an unconditional offer thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of Respondent Company set forth above occurring in
connection with the operations of the Company described in section I, above, have.
a close, intimate , and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
In view of the findings set forth above to the effect that the Company has refused
to bargain in good faith with the Union I shall recommend that it be required to
cease and desist therefrom and, upon request bargain with the Union and embody
any understanding reached as a result of such bargaining in a written and signed
memorandum of agreement . In view of the findings set forth above to the effect
that employees Correia, Wilkinson , Gonsalves , and the two Mendozas were, from
and after May 31, 1963, engaged in an unfair labor practice strike, I shall recommend
that the Respondent be required upon their application to reinstate them to their
former or substantially equivalent positions , dismissing if necessary employees hired
since May 31, 1963, without prejudice to their seniority or other rights and privileges.
The five employees should be made whole for any loss of earnings suffered in the
event of the Company's refusal to reinstate them upon application , by payment of
sums that would normally be earned as wages from 5 days after their application and
terminating on the date of a bona fide offer of reemployment. Loss of earnings
should be computed in accordance with the provisions of F. W. Woolworth Company,
90 NLRB 289 and bear interest as in Isis Plumbing & Heating Co ., 130 NLRB 97.
The record here does not warrant any inference of a basic hostility to organization
of employees and I shall recommend that the Company be required to cease and
desist from the unfair labor practices found and from like or related conduct.
Upon the basis of -the foregoing findings of fact and upon the entire record -in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the scope of Section 2(5) of the Act.
3. All canners, warehousemen , and yardmen at the Company's plant in Ferry
Street, Fall River , Massachusetts , constitute an appropriate bargaining unit within
the meaning of Section 9 of the Act.
4. By refusing from and after May 31 , 1963 , to bargain in good faith with the
Union as representative of employees in the above unit, the Company has engaged in
and is engaging in unfair labor practices defined in Section 8 ( a)(5) and ( I) of the
Act.
5. The strike of the Company 's employees from and after May 31 , 1963, to date,
is a strike prolonged as a consequence of the Company's refusal to bargain in good
faith as found above.
6. The aforesaid labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding I recommend that Northeast Products Co., Inc.,
its officers , agents, successors , and assigns shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with the Union as to wages,
hours, and other terms and conditions of employment covering employees in the
unit herein found appropriate by imposing new issues as obstacles to agreement
following settlement on existing issues or in any other-manner indicative of bad faith
or a purpose to evade agreement.
NORTHEAST PRODUCTS CO., INC. 687
(b) In any like or related manner interfering with , restraining , or coercing em-
ployees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which appears necessary and appropriate
to effectuate the policies of the Act:
(a) Upon request bargain collectively with the Union as representative of em-
ployees in the appropriate unit in good faith and in sincere effort to reach agreement
and embody in a written and signed memorandum any understanding reached.
(b) Offer to all five strikers upon application immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing if necessary replacements hired
since May 31, 1963.
(c) Make whole employees in the manner set forth in the section above entitled
"The Remedy."
(d) Preserve and, upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount of backpay, if any, due under the terms hereof.
(e) Post at its Fall River plant copies of the attached notice marked "Appendix." 1
Copies of said notice to be furnished by the Regional Director for the First Region
shall, after being duly signed by a representative of the Respondent, be posted by it
immediately upon receipt and be maintained for a period of 60 consecutive days
thereafter in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the First Region in writing within 20 days
from the date of receipt of this Decision what steps it has taken to comply herewith.2
It is recommended that unless, within the aforesaid 20-day period, the Respondent
notifies the Regional Director in writing that it will comply with the order recom-
mended herein, the National Labor Relations Board issue an order requiring Re-
spondent to take the action recommended.
1 If this Recommended Order is adopted by the Board, the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice. If the Board's Order is enforced by a decree of the United States Court of Appeals,
the notice will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order."
2 If this Recommended Order is adopted by the Board, this provision shall be modified
to read : "Notify the Regional Director for the First Region, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL upon request bargain collectively in good faith with Chauffeurs
& Teamsters Local Union #526, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America as the exclusive representa-
tive of employees in the appropriate unit of canners, warehousemen, and
yardmen.
WE WILL endeavor in good faith to reach agreement with the above Union
and if agreement is reached we will embody such agreement in a signed
memorandum of agreement.
WE WILL NOT by inserting new issues into settled bargaining understandings
refuse to bargain in good faith nor will we in any like manner interfere with
employees in the exercise of rights under the Act.
WE WILL offer to all striking employees upon application immediate and full
reinstatement to their former or equivalent job without prejudice to seniority
and other rights and we will make them whole for loss of pay as a result of any
failure to reinstate them upon such application.
NORTHEAST PRODUCTS CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify any of the strikers above-referred to if presently serving
in the Armed Forces of the United States of their right to reinstatement upon applica-
tion as :above in accordance wth the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended, after discharge from the Armed
Forces.
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.
Employees may communicate directly with the Board's Regional Office, 24 School
Street, Boston , Massachusetts , Telephone No. 523-8100 , if they have any question
concerning this notice or compliance with its provisions.
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO. Case No. 1-RC-7730. June 25,
1964
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer S. Anthony
di Ciero. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 Fanning and Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A. question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The appropriate unit :
The parties disagree as to the geographic scope of the unit and the
unit placement of insurance consultants. In all other respects, the
parties agree as to the composition of the unit. The Petitioner has
requested a unit of insurance agents, including insurance consultant,
at the Employer's district office in Holyoke, Massachusetts, and at any
office which may be administratively detached from the Holyoke of-
fice. The Employer contends that the appropriate unit should en-
compass either (1) all of the Employer's offices in the United States;
(2) all offices in its northeastern territory ; or (3) all its offices in the
State of Massachusetts. The Employer also would not include in-
surance consultants in a unit with other insurance agents.
The Employer and the Union stipulated that the record in this pro-
ceeding would consist of the records and exhibits (with certain minor
147 NLRB No. 84.