Reebie Storage & Moving Co.

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 510 (N.L.R.B. 1993)

510
313 NLRB No. 58
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was re-
admitted to the AFL–CIO. Accordingly, the caption has been amend-
ed to reflect that change.
2 More than a year after the close of hearing in this case, the Re-
spondent filed with the judge a motion to reopen the record to re-
ceive into evidence an arbitration award in which the arbitrator sus-
tained the Respondent’s ‘‘grievance’’ that it was not required to
make pension contributions on behalf of all employees listed in arti-
cle four of the 1984–1987 and 1987–1990 contracts because the
scope of those collective-bargaining agreements had been limited by
past practice and the application of a most-favored-nations clause
(the Jackson Addendum) to a smaller group of employees. The Re-
spondent offered the document at issue ‘‘without comment or argu-
ment, only to complete the record.’’ The judge denied the Respond-
ent’s motion. The Respondent excepts to the judge’s failure to admit
the exhibit for the ‘‘limited’’ purpose of establishing that the Re-
spondent’s interpretation of the contract was ‘‘‘reasonable and argu-
ably correct’ within the meaning of past Board precedent.’’ We find
this exception without merit as the Respondent seeks to adduce evi-
dence about an alleged event that occurred after the close of the
hearing. WXRK, 300 NLRB 633, 633 fn. 1 (1990). We also find that
the Respondent’s new evidence, even if admitted, would not change
the result. In this regard, we note that the judge dismissed the 8(a)(5)
allegations of the complaint related to the Respondent’s failure to
apply the contract to all unit-eligible employees. We note further that
the arbitration award is not relevant to the issue of whether the Re-
spondent violated Sec. 8(a)(3), as the judge found, by providing
greater remuneration to its employees who were union members than
to its nonunion employees.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
4 The judge failed to include in his recommended Order a provi-
sion requiring the Respondent to preserve its records for backpay
purposes. We shall modify the recommended Order to include such
a provision.
Reebie Storage and Moving Co., Inc. and Truck
Drivers, Oil Drivers, Filling Station and Plat-
form Workers, Local No. 705, affiliated with
International Brotherhood of Teamsters.1 Case
13–CA–29467
November 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On October 20, 1992, Administrative Law Judge
Robert M. Schwarzbart issued the attached decision.
The Respondent filed exceptions with a brief in sup-
port and a reply brief.2 The Charging Party filed ex-
ceptions with a brief in support, an opposing brief, and
a reply brief.
The National Labor Relations Board has considered
the decision in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,3
and conclusions and to adopt the recommended Order
as modified.4
1. We agree with the judge that the Respondent ap-
plied the contract on a ‘‘members only’’ basis by lim-
iting its application to only those employees who were
union members. As the judge found, the Board does
not issue bargaining orders in ‘‘members only’’ units.
Accordingly, we adopt his finding that the Respondent
did not violate Section 8(a)(5) of the Act by failing to
apply the terms of the contract to all eligible unit em-
ployees. See, e.g., Schorr Stern Food Corp., 227
NLRB 1650, 1654 (1977), and Don Mendenhall, Inc.,
194 NLRB 1109, 1110 (1972). The presence of a
‘‘members only’’ contract, however, ‘‘does not shield
a party from liability for unlawful conduct occurring
thereunder.’’ Schorr Stern, supra at 1654. In this re-
gard, we agree with the judge that the Respondent, by
providing greater remuneration and superior benefits to
its employees selected to be union members than to its
nonunion employees, unlawfully discriminated against
its nonunion employees and thus violated Section
8(a)(3).
2. At the outset of the hearing, the Respondent
moved to strike from the complaint the alleged 8(a)(3)
and (5) violations discussed in enumerated paragraph
1, supra, on the ground that they were neither con-
tained in the charge nor ‘‘closely related’’ to the
charge allegations under the test set out in Redd-I, Inc.,
290 NLRB 1115 (1988), and Nickles Bakery of Indi-
ana, 296 NLRB 927 (1989). In this regard, the Re-
spondent contended that these allegations related to its
alleged unlawful application of the contract, an allega-
tion that was neither based on the same legal theory
nor arose from the same factual circumstances as the
refusal to provide information allegation contained in
the charge. Observing ‘‘that the purpose for which in-
formation is sought is of a piece with the request
itself,’’ the judge denied the motion. The Respondent
excepts to the judge’s denial on the ground, inter alia,
that the unstated ‘‘purpose’’ of a charge should not de-
termine whether a complaint’s allegations are closely
related to it. We find the Respondent’s exception with-
out merit.
As the judge found, union business representatives
went to the Respondent’s Franklin Park facility in July
1989 to investigate complaints that the Respondent ex-
cluded from contract coverage certain employees per-
forming bargaining unit work. Although the business
representatives signed up 20–25 employees as new
union members, the Respondent continued to exclude
them from contract coverage, effectively denying them
the wages and benefits of other bargaining unit mem-
bers who performed the same unit work but who were
covered under the contract by virtue of their previous
status as union members. Thereafter, on February 6,
1990, the Union sent the Respondent a letter request-
511REEBIE STORAGE & MOVING CO.
5 In its February 6 letter, the Union requested information regard-
ing ‘‘all employees performing any movers work’’ (emphasis in
original). The Respondent understood that the Union’s request ap-
plied to both union members and nonmembers. In this regard, in its
February 14 letter in reply, the Respondent stated, inter alia, that it
had received the Union’s letter ‘‘asking for certain information about
the wages and hours of our employees in the bargaining unit.’’
6 Par. VIII alleges that ‘‘[s]ince on or about November 17, 1989,
Respondent has failed to apply the terms and conditions of employ-
ment to certain employees in the unit . . . because . . . [they] were
not members of the Union.’’ Par. X alleges that ‘‘[s]ince on or about
November 17, 1989, Respondent has failed to apply [the] collective-
bargaining agreement . . . to certain employees in the unit . . .
without fist [sic] having obtained the consent of the Union.’’ The
complaint alleges that the Respondent violated Sec. 8(a)(3) by the
conduct alleged in par. VIII and Sec. 8(a)(5) by the conduct alleged
in par. X.
7 In relevant part, Sec. 10(b) provides:
Continued
ing certain information ‘‘[i]n order to determine com-
pliance with the contract.’’5
On May 15, 1990, the Union filed a charge against
the Respondent alleging, inter alia, that the Respondent
unlawfully failed to provide the information requested
on February 6 and that the Respondent also unlawfully
required employees to resign from the Union and dis-
charged some employees who refused to resign. These
were alleged, respectively, as violations of Section
8(a)(5) and (3) of the Act.
After investigation, the General Counsel concluded
that all of the allegations in the charge warranted
issuance of a complaint. During the investigation, the
General Counsel evidently also concluded that various
statements allegedly made by agents of the Respondent
which were ancillary to the alleged violation of Section
8(a)(3) consisting of discrimination against union
members merited separate complaint allegations as vio-
lations of Section 8(a)(1). Additionally, as alluded to
on the record, in investigating the charge that in viola-
tion of Section 8(a)(5) the Respondent refused to pro-
vide the Union with information concerning compli-
ance with the contract, the General Counsel learned
that, consistent with the Union’s basis for requesting
the information, the contract in fact was not being ap-
plied to all unit members. Accordingly, in the com-
plaint which issued on July 27, 1990, the General
Counsel further alleged that the misapplication of the
contract also violated Section 8(a)(5) and (3). The fail-
ure to apply the contract terms and conditions to em-
ployees who ‘‘were not members of the Union’’ is ex-
plicitly and clearly alleged in the disputed complaint
paragraphs VIII and X.6 In the summary complaint
paragraph concerning the alleged violations of Section
8(a)(3), paragraph XIII, the complaint alleges that the
conduct alleged in paragraph VII (the termination of
union adherents) and in paragraph VIII above (failure
to apply the contract to nonmembers) ‘‘discourag[es]
membership in a labor organization.’’
At the outset of the hearing, the Respondent’s coun-
sel moved to strike paragraphs VIII and X of the com-
plaint under Section 10(b). Additionally, in an effort to
bolster its contention that paragraphs VIII and X were
not closely related to the charge, the Respondent’s
counsel noted that the complaint alleges both that the
Respondent discriminated in favor of union members
and against union members. These remarks were part
of a colloquy among the parties’ attorneys and the
judge concerning the meaning and intent of the dis-
puted complaint allegations preceding the judge’s rul-
ing dismissing the Respondent’s motion to strike.
In his decision, which we adopt, the judge rec-
ommended dismissal on credibility grounds of the
independent 8(a)(1) allegations and the alleged 8(a)(3)
discrimination against union members. Additionally, he
recommended dismissal of the alleged violations of
Section 8(a)(5), but as a matter of law, not as a matter
of fact. Accordingly, given his finding that the Re-
spondent did discriminatorily fail to apply the contract
to nonunion employees, the judge concluded that the
Respondent, in this respect, violated Section 8(a)(3).
As the Supreme Court stated in NLRB v. Fant Mill-
ing Co., 360 U.S. 301, 307–308 (1959):
A charge filed with the Labor Board is not to
be measured by the standards applicable to a
pleading in a private lawsuit. Its purpose is mere-
ly to set in motion the machinery of an inquiry.
NLRB v. I. & M. Electric Co., 318 U.S. 9, 18.
The responsibility of making that inquiry, and of
framing the issues in the case is one that Congress
has imposed upon the Board, not the charging
party. To confine the Board in its inquiry and in
framing the complaint to the specific matters al-
leged in the charge would reduce the statutory
machinery to a vehicle for the vindication of pri-
vate rights. This would be alien to the basic pur-
pose of the Act. . . .
Once its jurisdiction is invoked the Board must
be left free to make full inquiry under its broad
investigatory power in order properly to discharge
the duty of protecting public rights which Con-
gress has imposed upon it. There can be no jus-
tification for confining such an inquiry to the pre-
cise particularizations of a charge.
The Court cautioned, however, that the Board does not
have ‘‘carte blanche to expand the charge as they
might please, or to ignore it altogether.’’ Id. at 309. In
this regard, Section 10(b) circumscribes the Board’s
authority to issue complaint allegations on its own au-
thority by requiring that there be a ‘‘sufficient relation-
ship between charge and complaint ‘to negate the pos-
sibility that the Board is proceeding on its own
intitiative rather than pursuant to a charge.’’’7 Speco
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Whenever it is charged that any person has engaged in or is
engaging in any such unfair labor practice, the Board . . . shall
have power to issue and cause to be served upon such person
a complaint stating the charges in that respect . . . . [Emphasis
added.]
Sec. 10(b) also prohibits the filing of stale allegations by providing
‘‘[t]hat no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with
the Board . . . .’’ In the present case, where the complaint issued
within 6 months of the unfair labor practices alleged in the charge,
there is no contention that the allegations contained in the complaint
are untimely.
8 Nickles Bakery of Indiana, 296 NLRB 927, 928 (1989) (footnote
omitted).
9 In characterizing Wilson & Sons as ‘‘inapposite,’’ our dissenting
colleague ignores the fact that, as explained above, par. X of the
complaint alleges that the Respondent violated Sec. 8(a)(5) by failing
to apply the contract to certain employees without first having ob-
tained the consent of the Union. Thus, as in Wilson & Sons, the
Union’s 8(a)(5) information charge supports the 8(a)(5) unilateral
change allegation contained in the complaint. Because the 8(a)(5)
unilateral change allegation and the 8(a)(3) discriminatory applica-
tion allegation are grounded in the same unlawful conduct, as in Wil-
son & Sons, the ‘‘conduct that triggered the Union’s information re-
quest’’ was the same conduct that constituted the unilateral change
and the discriminatory application of the contract. In these cir-
cumstances, the discriminatory application allegation is closely relat-
ed to the 8(a)(5) allegations. See fn. 11 below.
10 Although par. VIII of the complaint alleges a violation of Sec.
8(a)(3), the conduct alleged unlawful therein is identical with the
conduct alleged as unlawful in the 8(a)(5) allegation which was dis-
missed on other grounds. See fn. 11 below.
11 ‘‘In determining whether essentially similar legal theories under-
lie different allegations . . . it is not necessary that the same sec-
tions of the Act be invoked.’’ Nickles Bakery, supra at 928 fn. 5.
12 Indeed, it was the Respondent’s counsel who, at the outset of
the hearing, called the judge’s attention to this matter. The Respond-
ent did not contend at that time that it was disadvantaged by surprise
nor did it request a postponement of the hearing.
Corp., 298 NLRB 439, 440 (1990), citing NLRB v.
Central Power & Light Co., 425 F.2d 1318, 1321 (5th
Cir. 1970). In Redd-I, Inc., 290 NLRB 1115 (1988),
the Board held that in deciding whether complaint alle-
gations were sufficiently related to the charge to satisfy
the requirements of Section 10(b), it would apply the
closely related test, comprised of the following factors.
‘‘First, the Board will look at whether the otherwise
untimely allegations involve the same legal theory as
the allegations in the pending timely charge. Second,
the Board will look at whether the otherwise untimely
allegations arise from the same factual circumstances
or sequence of events as the pending timely charge. Fi-
nally, the Board may look at whether a respondent
would raise similar defenses to both allegations.’’8 For
the following reasons, we find that the allegations at
issue here are sufficiently related to the charge to per-
mit their inclusion in the complaint.
The charge allegation that since February 6, 1990,
the Respondent failed and refused to provide relevant
information to the Union, when considered in the con-
text of what occurred, can only refer to the Union’s in-
formation request of the same date. As explained
above, the Union requested information regarding all
bargaining unit members in order to determine compli-
ance with the contract. The Union requested the infor-
mation in connection with its belief that the Respond-
ent was misapplying the contract by limiting its appli-
cation to only those bargaining unit employees who
were members of the Union. This is precisely the con-
duct that is alleged as unlawful in complaint para-
graphs VIII and X. Thus, it is clear ‘‘that the conduct
that triggered the Union’s information request was the
same conduct that constituted the alleged unilateral
change.’’ Wilson & Sons Heating, 302 NLRB 802, 805
(1991).9 In these circumstances, we find these com-
plaint allegations have a sufficient factual nexus to the
refusal to provide information allegation contained in
the charge to satisfy the requirements of Section 10(b).
Additionally, we find these complaint allegations are
‘‘closely related’’ to the charge as a legal matter. The
charge and the complaint allegations involve the same
section of the Act10 and grow out of the same factual
situation, the Respondent’s failure to abide by the con-
tract. Moreover, the alleged conduct was directed at
the same unlawful object, the circumvention of the ap-
plication of the collective-bargaining agreement to all
unit employees and, more generally, the Respondent’s
alleged obligation to bargain. See Roslyn Gardens Ten-
ants Corp., 294 NLRB 506, 507 (1989). For all these
reasons, we find that Section 10(b)’s requirement of a
legal and factual nexus between the allegations of the
charge and the complaint are satisfied here.
Our dissenting colleague argues that the complaint
allegations at issue are flawed because the 8(a)(3) alle-
gation in the charge referred only to discrimination
against union members while the 8(a)(3) allegations in
the complaint also refer to discrimination against non-
members. Additionally, the dissent contends that the
complaint cannot support the violation found because
it refers only to ‘‘discouraging’’ union activity while
the violation consists of the Respondent ‘‘en-
couraging’’ union activity by discriminating against
nonmembers. As to the former contention, as set forth
above, we find that the violation found has a sufficient
factual and legal nexus not with the charge’s 8(a)(3)
allegation, which admittedly has a different factual
basis, but with the 8(a)(5) allegation, the refusal to
provide information.11 With regard to our colleague’s
second contention, we note that, despite the com-
plaint’s mistaken characterization of the effect of the
Respondent’s discrimination in paragraph XIII, the na-
ture of the disputed violation was unmistakably clear
elsewhere on the face of the complaint. The Respond-
ent was aware of the error prior to the hearing and
does not contend that it was disadvantaged by lack of
notice or otherwise deprived of due process.12 Because
the Respondent has failed to show that it was preju-
diced by the General Counsel’s error in the complaint,
513REEBIE STORAGE & MOVING CO.
13 PRC Recording Co., 280 NLRB 615, 644–645 (1986), enfd. sub
nom. Richmond Recording Corp. v. NLRB, 836 F.2d 289 (7th Cir.
1987) (respondent did not violate Sec. 8(a)(5) by refusing to furnish
its books and records to the union where the union never demanded
the information); Litton Industries, 300 NLRB 324, 336 (1990) (re-
spondent did not violate the Act by failing to give union officials
a tour of its facility because the union’s ‘‘expression of interest’’ in
a tour did not amount to formal request).
14 Crestfield Convalescent Center, 287 NLRB 328, 347 (1987) (no
violation where the respondent’s refusal to furnish an ‘‘updated Ex-
celsior list’’ arose from one of the respondent’s counsel’s incorrect
judgment as to relevance and where duration of nondisclosure was
brief and noninjurious).
15 Litton Industries, supra at 336.
1 See Redd-I, Inc., 290 NLRB 1115.
we conclude that its due process rights were not vio-
lated. See generally Davis Supermarkets v. NLRB, 144
LRRM 2057, 2062–2063 (D.C. Cir. Aug. 27, 1993),
and Baytown Sun, 255 NLRB 154, 154 fn. 1 (1981).
3. Finally, as explained above, the judge’s finding
that the contract was a ‘‘members only’’ contract re-
quires the dismissal of the refusal to furnish informa-
tion allegation. Even assuming that the contract was
enforceable, however, we would still dismiss this alle-
gation because we find that there is insufficient evi-
dence to establish that the Respondent refused the
Union’s request. In this regard, Daniel Ligurotis, the
Union’s secretary-treasurer and principal officer, sent a
letter to the Respondent on February 6, 1990, request-
ing the names, addresses, rates of pay, and hours
worked per day for all employees performing movers’
work. The Union requested the information ‘‘[i]n order
to determine compliance with the contract.’’ On Feb-
ruary 14, Salvatore Manso, Respondent’s president, re-
sponded to Ligurotis’ letter. Manso stated that he
would ‘‘get to this without undue delay’’ and noted
that the Respondent was entitled to see copies of con-
tracts that the Union had entered into with other com-
panies that contained terms more favorable than those
contained in the Respondent’s contract. Manso further
stated that ‘‘[p]erhaps we can arrange to exchange this
information at our very next negotiating session.’’ The
Union neither renewed its request at any of the follow-
ing negotiating sessions nor otherwise responded to
Manso’s request. On March 28, 1990, after the parties
had reached impasse and after the Respondent’s em-
ployees had gone out on strike, the Union’s attorney
orally requested the information set out in the February
6 letter. On the following day, March 29, Manso re-
plied to this request by letter. In his letter, Manso stat-
ed, inter alia, that he believed that the information re-
quested by both parties in February was no longer of
assistance and therefore ‘‘suggest[ed] that we both
drop the requests which we made of each other back
in February.’’ Again, the Union did not respond.
The Board is reluctant to find a refusal to furnish in-
formation violation in circumstances where no formal
request was made for information13 or where the fail-
ure to furnish information arose from a good-faith mis-
understanding.14 In the present case, although the
Union did request certain information on February 6
and March 28, we find that it was incumbent on the
Union to answer the Respondent’s good-faith re-
sponses to ensure that its requests remained active and
that no misunderstanding arose. As to the February 6
request, the Respondent responded immediately and of-
fered to discuss an exchange of information at the next
bargaining session. The Union neither responded to the
Respondent’s request nor renewed its request at any of
the subsequent negotiating sessions. Thus, the Re-
spondent could reasonably assume that the Union had
dropped its request. When the Union orally renewed its
request in late March, the Respondent replied imme-
diately and, relying on its belief that the information
requested by both parties was no longer relevant,
‘‘suggest[ed]’’ that the matter be dropped. Thus, the
Respondent did not deny the Union’s request, but
merely declared its belief that the information re-
quested by both parties was no longer relevant. Be-
cause the Union did not reply to the Respondent’s
March 29 letter, the Respondent could only assume
that the Union agreed with its ‘‘suggestion’’ and had
dropped its request. Accordingly, we would not find a
violation where, as here, the Respondent responded in
good faith to the Union’s requests, did not deny those
requests, and ‘‘did nothing to foreclose or discourage
the Union’s option to pursue [its] interest more ac-
tively.’’15
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Reebie
Storage and Moving Co., Inc., Chicago, Illinois, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Preserve and, on 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 analyze the amount of backpay
due under the terms of this Order.’’
MEMBER RAUDABAUGH, dissenting in part.
I do not agree with my colleagues’ conclusion that
the Respondent violated Section 8(a)(3) by refusing to
apply the contract to nonmembers of the Union. The
charge in this case contained no such allegation. Nor
did the charge contain a ‘‘closely related’’ allegation.1
The charge contained no allegation concerning con-
duct against nonmembers. To the contrary, the charge
alleged conduct against members. It is alleged that Re-
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Although the 8(a)(5) charge alleged a refusal to supply informa-
tion concerning all unit employees, this was hardly surprising in
light of the 8(a)(5) principle that the Union is the representative of
all unit employees.
3 As the Board has observed, closely related allegations usually in-
volve the same subsection of the Act. See Redd-I, Inc., supra at
1118.
4 My colleagues concede that the General Counsel’s complaint was
in error. They assert that Respondent called attention to the error,
and was therefore not prejudiced thereby. However, the General
Counsel did not, at that point, seek to amend the complaint. If he
had done so, the error and the resultant confusion could easily have
been eliminated. The General Counsel chose not to do so.
1 The relevant docket entries are as follows: The charge was filed
by the Union on May 15, 1990, and complaint issued on July 27,
1990. The answer to the complaint was amended at the hearing
which was held November 26 through 29, 1990, and February 21,
1991.
2 The alleged appropriate bargaining unit is as follows:
All chauffeurs on all moving vehicles, steady helpers, chauffeurs
on piano moving vehicles, warehouse foremen, packers and
packer-drivers, but excluding all office clerical employees,
guards and supervisors, as defined in the Act.
spondent required employees to resign their member-
ship, and that Respondent discharged them because of
their membership. The charge also alleged a refusal to
supply information.
By contrast, the complaint alleges, in relevant part,
that Respondent refused to apply the contract to non-
members. As shown above, the allegations of the
charge are wholly different. Indeed, the allegations of
the charge and those of the complaint are diametrically
opposed. Further, the factual situation underlying the
charge allegations (discrimination against union adher-
ents) is wholly different from the factual situation al-
leged in the complaint (failure to apply the contract to
nonmembers). Finally, the defenses to the charge are
not the same as the defenses to the complaint. In view
of these differences, I conclude that there is no ‘‘close
relationship’’ between the allegations of the charge and
those of the complaint.
My colleagues seek to relate the 8(a)(5) charge alle-
gations concerning a refusal to provide information
and the 8(a)(3) complaint allegations concerning the
failure to apply the contract to nonmembers of the
Union. However, on examination, the two are not re-
lated and are certainly not ‘‘closely related.’’ In sup-
port of their contention, my colleagues assert that the
conduct which ‘‘triggered’’ the information request
was the refusal to apply the contract to nonmembers.
The evidence does not support this assertion. To the
contrary, the evidence shows that the information re-
quest followed the Union’s learning that the contract
was not being applied to new members of the Union.2
Consistent with this, the 8(a)(3) allegation of the
charge related solely to discrimination against union
members. In diametric opposition to this allegation of
the charge, the complaint alleges an 8(a)(3) failure to
apply the contract to nonmembers. Thus, far from a
close relationship between the relevant allegations of
the charge and complaint, there is diametric opposition
between the two.
Wilson & Sons, 302 NLRB 802, cited by my col-
leagues, is inapposite. In that case, the union’s 8(a)(5)
informational charge was considered to support an
8(a)(5) ‘‘unilateral change’’ allegation of the com-
plaint. Both allegations were grounded in Section
8(a)(5)3 and both were based on the theory that the
union is the exclusive representative of all unit em-
ployees. In the instant case, the relevant charge is
grounded in Section 8(a)(5) and the relevant complaint
allegation is grounded in Section 8(a)(3). An 8(a)(3)
allegation does not depend on representative status.
Finally, even assuming arguendo that the charge
could somehow support the complaint allegation, there
is a fatal disparity between the complaint allegation
and the violation found by my colleagues. The viola-
tion found by my colleagues is that the Respondent
violated Section 8(a)(3) by discriminating against non-
members of the Union. Such conduct, in the language
of Section 8(a)(3), unlawfully ‘‘encourages’’ member-
ship in the Union. Inexplicably, the complaint alleges
that such conduct unlawfully ‘‘discourages’’ member-
ship in the Union. Thus, the violation found by my
colleagues is diametrically opposite to the allegations
of the complaint.4
Richard S. Andrews, Esq., for the General Counsel.
Edward B. Miller and David K. Haase, Esqs. (Pope, Ballard,
Shepard & Fowle, Ltd.), of Chicago, Illinois, for the Re-
spondent.
Sheldon M. Charone and Martin P. Barr, Esqs. (Carmell,
Charone, Widmer, Mathews & Moss), of Chicago, Illinois,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge.
This case was heard at Chicago, Illinois, on a complaint
issued pursuant to a charge filed by Truck Drivers, Oil Driv-
ers, Filling Station and Platform Workers, Local No. 705, af-
filiated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO (the Union).1 The complaint alleges that Reebie Storage
and Moving Co., Inc. (the Respondent) did not meet its obli-
gation to bargain with the Union in violation of Section
8(a)(5) and (1) and Section 8(d) of the National Labor Rela-
tions Act (the Act), by failing to furnish the Union, as the
duly recognized bargaining representative of certain of its
employees2 with requested information concerning employ-
ees within the unit asserted as necessary and relevant to the
Union’s bargaining responsibilities; that the Respondent vio-
lated Section 8(a)(1) of the Act by threatening to discharge
its employees unless they resigned from the Union and/or if
515REEBIE STORAGE & MOVING CO.
3 All dates hereinafter are within 1990 unless stated to be other-
wise.
4 At the hearing, I reserved ruling on the motion by the General
Counsel and the Union to strike the third affirmative defense in the
answer which, in effect, alleges that the Respondent did not violate
Sec. 8(a)(5) and (1) of the Act in not applying its collective-bargain-
ing agreement with the Union to all unit-eligible employees because
that contract had been applied to the Respondent and to other signa-
tory employees as ‘‘members only’’ agreements. Having reviewed
the entire record, I will find this defense to be meritorious for rea-
sons to be specified. The aforesaid motion to strike, therefor, is de-
nied. Other procedural rulings made at the hearing are reaffirmed for
reasons stated in the record.
5 The Respondent’s posthearing motion, opposed by the General
Counsel and the Union, to reopen the record to introduce as newly
discovered evidence an arbitrator’s award relating to certain of the
issues herein arising under Sec. 8(a)(1), (3), and (5) and Sec. 8(d)
of the Act, which award issued more than 6 months after the close
of the hearing in this matter, is denied. In so ruling, it is noted that
it is not necessary to decide whether deferral under Spielberg Mfg.
Co., 112 NLRB 1080 (1955), would be warranted because the Re-
spondent has not requested such deferral. See Timpte, Inc., 233
NLRB 1218 fn. 2 (1977).
6 Although the Respondent primarily transports household goods,
the record shows that the Respondent also provides commercial
moving services.
7 The Respondent is an agent of Allied Van Lines.
8 About half of the Respondent’s business is interstate.
they engaged in a strike, and by later repeatedly telling its
striking employees that their return to work was conditioned
on resignation from the Union; and that the Respondent, by
the above conduct, discriminated against employees in viola-
tion of Section 8(a)(3) and (1) of the Act in causing the ter-
mination of five employees. The complaint alleges as viola-
tive of Section 8(a)(1), (3), and (5) and Section 8(d) of the
Act, the Respondent’s unilateral failure to apply the terms of
the collective-bargaining agreement to all employees working
within the unit, thereby discriminatorily and unilaterally de-
nying employees so excluded from receiving the superior
contractual wage rates and other job benefits with a result
that certain employees were constructively discharged. Fi-
nally, the complaint alleges that the Respondent, by its afore-
said unlawful conduct, caused its employees to engage in an
unfair labor practice strike. The Respondent filed timely an-
swer to the complaint denying the commission of unfair
labor practices.3
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. Briefs, filed by the General Coun-
sel, the Respondent, and the Union, have been carefully con-
sidered. On the entire record4 of the case and my observation
of the witnesses and their demeanor, I make the following5
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with offices and places of
business in Chicago and Franklin Park, Illinois, has been en-
gaged in the storage and transportation of household goods.6
During the calendar year preceding issuance of the complaint
in this matter, a representative period, the Respondent, in the
course and conduct of its business operations, transported
goods valued in excess of $50,000, to locations outside the
State of Illinois.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Respondent, a moving company engaged in the trans-
portation and storage of household goods, but which also, to
a lesser extent, moves commercial goods, operates two facili-
ties in Illinois—on Clark Street, Chicago, and in Franklin
Park.7
The seven-story Chicago facility contains 80,000 square
feet. The first floor is used for offices and the remainder of
the building as a warehouse where household goods and
records are stored. Approximately 25 employees work at the
Chicago facility, almost all as office employees. As this
building is devoted solely to storage, the moving, packing
and interstate aspects8 of the Respondent’s operations are run
from the Franklin Park facility where most of the events rel-
evant to this proceeding occurred.
The Franklin Park facility is a one-story brick warehouse
of about 55,000 square feet, which includes a small office
employing approximately five clerical employees. Because of
the seasonal nature of the moving industry, staffing figures
are subject to great fluctuation. The largest number of em-
ployees to have worked at Franklin Park has been about 100,
while the smallest number has been 8. However, customarily
25 to 35 employees work at Franklin Park as drivers, pack-
ers, helpers, and warehouse personnel. At the time of the
events at issue here, about 35 employees were employed at
Franklin Park performing work in classifications covered by
the collective-bargaining agreement.
Leo Licata was the Respondent’s principal shareholder and
board chairman. Salvatore J. Manso, whose office is at the
Chicago facility, oversaw daily operations as the Respond-
ent’s president. Gary Richied, vice president for operations,
and Richard Licata, vice president of sales, reported directly
to Manso. Local Operations Manager Robert Licata served as
dispatcher, while Dominic Salemi was the Franklin Park fa-
cility’s manager. The record reveals and I find that all of the
aforesaid individuals are supervisors and agents of the Re-
spondent within the meaning of Section 2(11) and (13), re-
spectively, of the Act.
Since at least 1974, the Respondent has bargained with the
Union as the duly recognized representative of certain of its
employees in the unit described above. However, prior to ex-
piration of the most recent collective-bargaining agreement,
effective January 15, 1987, to March 15, 1990, the Respond-
ent had done so as a member of the Movers’ Association of
Greater Chicago (the Association) and had subscribed to the
labor agreement between the Association and the Union (the
Association contract).
The 1987–1990 Association contract provided for union
security in that continued employment for all relevant em-
ployees of the employers covered by the agreement ulti-
mately was conditioned on their becoming and remaining
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
members in good standing of the Union. The contract speci-
fied a schedule of straight time and overtime hourly pay
rates, increasing each year during the 3-year term of the con-
tract, and provided minimum weekly work/pay guarantees for
covered employees, based on such seniority. The guarantees
were made applicable under the contract to ‘‘60 percent by
seniority on the average of employees called or put to work
during any day of the regular’’ Monday through Friday
workweek, with certain specified exceptions. For example,
employees who started their work during Monday through
Friday were guaranteed not less than 8 hours continuous
work, except that employees called in solely for nighttime
commercial moves were guaranteed 4 hours of work at the
time and one-half rate. Overtime at the time and one-half
also extended to employees who worked beyond an 8-hour
daily shift and for all work performed before or after an em-
ployee’s regular starting or quitting time. The contract made
seniority applicable in other ways in the claiming of work as-
signments.
Employers bound by the agreement were required to make
monthly contributions on behalf of covered employees to the
Local 705, International Brotherhood of Teamsters Health
and Welfare Fund, with lesser specific contributions for em-
ployees who were absent because of illness, job and nonjob-
related injuries, and for summer replacements. Employer
contributions also were to be made on behalf of covered em-
ployees to the Teamsters Central States Southeast and South-
west Areas Pensions Fund.
Article 2A, ‘‘Employer Security,’’ at section B, provided
a ‘‘most favored nation’’ clause wherein the Union agreed
that should it enter into
any separate contract which shall contain any provi-
sions more favorable to the employer than the cor-
responding provision of this Agreement, then such pro-
vision shall automatically be substituted for the cor-
responding provision of this agreement and become a
part hereof. The Union shall supply the Association
with a signed copy of any such contract which grants
more favorable terms to the employer involved within
twenty-four (24) hours of its execution; and if any
question arises as to whether the provisions of any sep-
arate Agreement are more favorable to the employer
than the provisions of this Agreement, the Union shall
supply the Association, on request, with a signed copy
of such separate contract.
Although, as noted, the terms of the above-referenced
union-security clause in the Association contract provided on
its face that as a condition of continued employment, all em-
ployees performing unit work ultimately must become union
members, the record is clear that of the approximately 30
employees engaged in moving and storage work during the
times relevant to this proceeding, the Respondent did not
apply the contract terms to all of its relevant employees and,
accordingly, only 12 Respondent’s employees held union
membership and received the terms of the contract.
The General Counsel and the Union contend that the Re-
spondent’s unilateral failure to include all employees was un-
lawfully discriminatory and in violation of the Respondent’s
duty to bargain. The Respondent, in turn, asserts that the
Union, in fact, long had agreed to an arrangement whereby
the Respondent was not required to place all its unit-type
employees into union membership and under the coverage of
the contract, and that its actions in this regard were consist-
ent with industry practice in the Chicago area.
In partial support of the Respondent’s position, Manso pre-
sented a signed Letter of Understanding, dated January 19,
1987, between the Respondent and the Union, executed at
around the time that the preceding Association contract was
to expire. This Letter of Understanding eased for the Re-
spondent the terms of the 1987–1990 agreement if certain
conditions were met. The Union there agreed that as long as
the Respondent engaged solely in moving household goods
and had no more than 15 employees, then certain above-
noted contract provisions of the 1987–1990 contract, then to
become effective, concerning seniority, wage guarantees,
overtime, pay and compensation of new hires at percentages
of what would be paid to steady employees, would not be
applicable. Should the Respondent employ more than 15 em-
ployees, the Letter of Understanding would terminate and all
provisions of the collective-bargaining agreement would be-
come applicable.
Manso explained that the 1987 Letter of Understanding
and an oral agreement, which he asserts was followed in
practice, whereby the Union had tacitly permitted the Re-
spondent to not apply the collective-bargaining agreement to
all its employees performing unit work. This had stemmed
from a meeting Manso had had with the Union’s secretary-
treasurer and principal official, Daniel C. Ligurotis, in Janu-
ary of that year. Manso, who then was attempting to nego-
tiate a separate agreement with the Union, independent of the
Association, had refused the Union’s demand that the Re-
spondent sign the same contract as the Association. How-
ever, when the Union responded by striking his company,
Manso found that the Respondent could not tolerate the 7-
to 10-day work stoppage that followed and met with
Ligurotis in January 1987, prepared to sign the Association
contract.
Manso was the only witness to describe that meeting. He
told Ligurotis that his company mainly moved household
goods, that it was hard for him to survive in that environ-
ment, and that he needed some relief. In response to Manso’s
questions as to what would happen in their industry with re-
gard to the number of people who were to be working,
Ligurotis told Manso not to worry, the Union would not hurt
him and would not ever commit Manso to all of the people
he had working. Ligurotis asked Manso to just work with the
Union and the Union would work with him. The Union did
not want to hurt him. Ligurotis stated that if Manso grew,
he wanted to grow with him. Ligurotis asked merely that, if
the Company grew and time permitted, Manso put more peo-
ple into the Union. Manso agreed that they could grow to-
gether and that it sounded great to him. However, after
Ligurotis declined Manso’s request to put this representation
in writing, Manso asked how was he going to trust Ligurotis.
Ligurotis replied that he never would screw Manso. They
shook hands and Manso left with the Letter of Understanding
which modified the Association agreement only as to the Re-
spondent.
2. The alleged failure to furnish information
As the March 15 scheduled expiration date of the 1987–
1990 Association contract approached, the Respondent again
517REEBIE STORAGE & MOVING CO.
9 Rzewnicki later succeeded Dicks as the union representative prin-
cipally charged with servicing Respondent’s employees on Dicks’
death in January 1990.
10 The parties stipulated, as noted, that for the period from Novem-
ber 1989 through March 1990, the Respondent made monthly con-
tributions to Local 705’s health and welfare funds for the same 12
employees.
attempted to negotiate a separate collective-bargaining agree-
ment apart from the Association and held three or four nego-
tiating sessions with the Union between February 28 and
March 21. It is undisputed that these negotiating efforts
ended in impasse.
Earlier, in July 1989, having been advised by Michael
Mocerino, one of the Respondent’s unit employees, that a
number of the Respondent’s other employees, who were
doing unit work without coverage of the contract wanted
union representation, Gerald Rzewnicki and William Dicks,
both union business representatives,9 went to the Respond-
ent’s Franklin Park facility and signed up 20 to 25 of the Re-
spondent’s employees, including Joseph Martinez, as union
members. However, no union dues or contributions to the
health, welfare, and pension funds were checked off and re-
mitted to the Union on behalf of those employees and no
grievances were filed over the failure to remit dues.
On February 6, 1990, Union Secretary-Treasurer Ligurotis
sent the following letter to the Respondent:
In order to determine compliance with the contract,
please forward, as soon as possible, a weekly list from
the first week of September, 1989 through the last week
in January, 1990, showing names, addresses, rates of
pay, and hours worked per day for all employees per-
forming any movers work. The list should be broken
down between regular employees and all other employ-
ees—excluding summer replacements.
If it is more convenient to have us examine your books
and records instead of furnishing such a list, please
contact me directly.
Manso replied to Ligurotis with the following February 14
letter:
I have your letter asking for certain information
about the wages and hours of our employees in the bar-
gaining unit. I have not yet had time to review our
records to see how much of that information we can put
together in a form that would be useful to you. Also,
I have not yet had time to talk with my attorney about
just what our obligations are regarding responding to
your letter. I have a number of other business matters
to take care of, but will get to this without undue delay.
Meanwhile, our attorney . . . who will be represent-
ing us in these negotiations, tells me that we are enti-
tled to see copies of any contract you have entered into
which contain more favorable provisions than you have
extended to us during the last negotiations. I would like
very much to see those.
Perhaps we can arrange to exchange this information
at our very next negotiating session. We have been
waiting to hear when that would be.
The remainder of Manso’s letter was devoted to suggestions
as to when the first negotiating session might take place.
Ligurotis’ February 6 letter was the Union’s only written
demand for the information sought. This request for data was
not repeated by the Union at its meetings with company rep-
resentatives during the negotiating sessions that followed.
The Union’s only other request was made orally on March
28 by the Union’s attorney to counsel for the Respondent,
as referenced in the following March 29 letter to Ligurotis
from Manso, written a week after negotiations had reached
impasse and, as will be discussed, the Respondent’s employ-
ees had begun what the complaint alleges was an unfair labor
practice strike:
Our attorney . . . tells me that your counsel . . .
called him on March 28 about the lists which you had
requested in your letter to us dated February 6, 1990.
As you will remember, we responded to that letter on
February 14, stating, among other things, that [Re-
spondent’s Counsel] had advised me that we were enti-
tled to see copies of any contracts your Union had en-
tered into containing more favorable provisions than
you had extended to us during the last negotiations. I
stated that I would like to see those, and suggested that
we might be able to exchange information at our first
negotiating session.
During all of our negotiating sessions, you made no
further request for this list, and I in turn made no fur-
ther request for the copies of the more favorable con-
tracts mentioned in my letter of February 14. I assumed
that the matter had been dropped, and it did not seem
that the information would be of any assistance to us
during our negotiations.
The information, however, I see from your letter,
was not requested for the purpose of negotiation, but
rather ‘to determine compliance with the contract.’’ If
any employee had any complaint about his wages or
fringe benefits or hours, he had, as you know, a right
to file a grievance under the contract provided he filed
it within 14 days of the day on which he or the union
had knowledge of the events leading to the grievance.
since our employees obviously had knowledge of what
wages and fringes they were receiving and since you
regularly received the reports on our fringe benefit con-
tributions,10 it is obvious that the information re-
quested—i.e., a list from September 1989 through the
last week of January 1990—could not possibly provide
any information relevant to any timely filed grievance.
Since the information therefore could not be of any
help in the negotiations which, in any event, have
reached a total impasse at this point, nor with respect
to any possible grievance which could be filed, I under-
stand that it is not necessary to provide this informa-
tion.
I also rather doubt that copies of any contracts which
were executed during our last agreement would be of
any assistance at this time, and I would therefore sug-
gest that we both drop the requests which we made of
each other back in February.
The parties agree that although the information requested
by the Respondent ultimately was furnished by the Union ap-
proximately a week before the start of the hearing in this
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Rudolf, president of the George W. Knous Moving & Storage
Company, Incorporated, when he testified was the then-current presi-
dent of the Moving Association of Greater Chicago and had served
on the Association’s negotiating committee in bargaining with the
Union for about 3-1/2 years. The Knous Company was from the
standpoint of personnel employed about twice the size of Respond-
ent.
12 Rzewnicki, a Teamsters business agent for more than 21 years,
had held that position with Teamsters Local 711 when, in 1972, it
merged with Local 705. In January, as noted, he became the busi-
ness agent for the Respondent’s employees succeeding the late Wil-
liam Dicks.
13 Under the expiring 1987–1990 agreement, employees had re-
ceived vacations with pay based on multiples of 40 hours of straight
time and length of service. Accordingly, an employee completing 1
year of service with the Respondent had been entitled to 1 week’s
vacation with 40 hours’ pay, while an employee with 3 years’ serv-
ice would have 2 weeks’ vacation with 80 hours’ pay. Maximally,
an employee with 20 years on the job would receive 5 weeks’ vaca-
tion with 200 hours’ pay. Under the Union’s proposal, vacation pay
schedules would become multiples of 50 hours of straight time, rath-
er than 40.
14 The expiring contract did not provide for paid sick days.
15 Reiterating, these four issues were health and welfare, pensions,
subcontracting, and the guaranteed workweek.
matter, the Respondent never has provided the data sought
in the Union’s February 6 letter.
Randall B. Rudolf, an experienced negotiator in the mov-
ing industry,11 testified that during the 1990 contract negotia-
tions, the Association, too, had received a request from Local
705 to provide the names, addresses, hours worked, and
other information concerning all employees during a speci-
fied time period. However, neither Rudolf’s company nor the
seven other Association-represented companies of which Ru-
dolf had knowledge supplied that information, although all
later joined in the new collective-bargaining agreement be-
tween the Association and Union. The Union repeated this
request several months after the contract was executed, but
the Knous Company and the other concerns still did not fur-
nish the requested information.
3. The contract negotiations
As noted, with the approach of the March 15 expiration
date of the 1987–1990 Association agreement, Manso again
as in 1987 attempted to negotiate a separate contract with the
Union, apart from of the Association, and representatives of
the Respondent and the Union met approximately four times
between February 28 and March 21 for that purpose. Manso
headed the Respondent’s negotiating team at these sessions,
while the union spokesman at these meetings was
Rzewnicki.12
At the first negotiating session, the Union presented its
proposals. In these proposals, in addition to seeking a $1-per-
hour pay increase for each year of the proposed 3-year agree-
ment, vacation pay based on 50 hours,13 3 sick days,14 and,
at the Union’s option, an $8-per-week increase in
health/welfare or pension contributions each year. The Union
also would have the right to protect employees from dis-
cipline for refusal to make deliveries or cross picket lines or
to employers who had locked out their employees.
Rzewnicki testified that during either the first or second
negotiating session, on February 28 or March 2, he expressly
observed that the Respondent had not been including all of
its moving personnel under the coverage of the collective-
bargaining agreement, and asked Manso what had happened
to all the men the Union had signed up (during the preceding
July) and how come the money (dues and contributions to
the funds) had not been remitted. Rzewnicki insisted that
those newly signed people should be on the seniority list.
According to Rzewnicki, Manso replied that he had a special
deal. When Rzewnicki told Manso that he did not know of
any deal that he had outside of the 1987–1990 collective-bar-
gaining agreement, Manso told him that he had spoken to
Ligurotis. Rzewnicki replied that he, too, would check with
Ligurotis.
According to Rzewnicki, the parties’ principal differences
during negotiations concerned the health/welfare and pension
plans. The Respondent’s attorney, Edward B. Miller, had
asked if the Union would sign an agreement without the
Local 705 health/welfare and pension plans. The Union stat-
ed that they would not. From the Union’s standpoint, al-
though disagreement remained as to other issues, those were
more readily negotiable.
Manso, in turn, denied that Rzewnicki, during negotia-
tions, had asked about employees that the Union claimed to
have signed up in July and wanted to put into the Union.
Manso also denied Rzewnicki’s testimony that he had
claimed to have a special deal with Ligurotis, contending that
these matters never came up during negotiations.
During the last negotiating session, on March 21, the Re-
spondent’s attorney, Miller, asked the Union’s attorney, Shel-
don M. Charone, whether it was the Union’s position not to
budge on the substitution of the Respondent’s proposed in-
sured health and welfare for the Union’s insured health and
welfare plan, the Respondent’s proposed pension plan for the
Union’s pension plan, the subcontracting issue, and on the
guaranteed workweek. Charone and Rzewnicki affirmed that
the Union would not budge on those issues. Miller answered
that the Respondent needed that relief and that it could not
sign a contract that did not have those changes. The Re-
spondent’s uncontradicted position was that at that point im-
passe was reached.
According to Manso, Charone, after briefly absenting him-
self from the room, returned to announce that Ligurotis want-
ed to see Manso. When Manso asked if it was okay for his
attorney to accompany him to see Ligurotis, Charone again
left the room and returned with the information that Ligurotis
would see Manso alone but not with his attorney. Manso
agreed to this.
Manso testified, also without contradiction, that later that
day, March 21, he met with Ligurotis at the latter’s office.
Manso told Ligurotis that he needed relief on some of the
four big issues.15 Ligurotis replied that the Union could not
budge on those matters because of the Association. If he
gave relief to Manso, he would have to give it to everybody
and he could not. Ligurotis acknowledged awareness that
Manso’s problems were different from those of the Associa-
tion, noting that Manso was negotiating individually rather
than through the Association. Although Ligurotis understood
this, he could not give Manso what he wanted. Manso re-
plied that he did not want to see this day come because they
all had to get on with their lives and Manso always had been
a union man; his father was on the board of directors at the
International Brotherhood of Electrical Workers; and his
519REEBIE STORAGE & MOVING CO.
16 Manso had started as a truckdriver in the cartage industry in
1968 and became a truckdriver in the moving industry in 1970, in
which year he began to work for Leo Licata, the Respondent’s prin-
cipal. In 1974, when Licata took over the Respondent, Manso be-
came the Respondent’s dispatcher, while maintaining his member-
ship in Local 705. Early in his career, Manso also had worked as
a mover for other unionized employers.
17 On March 16, the Respondent and the Union entered into an ex-
tension agreement extending the expiration date of the then-current
collective-bargaining agreement from March 15 through 21. By the
terms of that extension agreement, if no agreement were to be
reached before midnight of March 21, the collective-bargaining
agreement would terminate.
18 Hornbaker had been employed by the Respondent since Novem-
ber 1984.
19 Manso explained that although his prepared statement, dated
March 16, was not read or distributed to employees until March 22,
it had been prepared earlier to coincide with the original expiration
date of the contract before that agreement was extended to March
21.
20 The General Counsel and the Union claim dual status for the
five affected employees—that they both were unlawfully terminated
dischargees and/or unfair labor practice strikers.
uncle was the president and he had grown up in that mode.
Manso was a Local 705 man and had been a Teamster for
a long time.16 Manso’s point, however, as expressed to
Ligurotis, was that if the parties could not come to an agree-
ment, he had to get on with his life and business, and had
to protect his Company. The industry was in recession.
Ligurotis replied that he understood Manso’s problem and
what the Union was up against in the household moving
business. Ligurotis declared that he even was sorry that the
Union had gotten into the moving business in the first place
but it was a fact of life.
Manso told Ligurotis that things had been going downhill
for the last 12 years and that Ligurotis had been losing com-
panies every 3 years. Ligurotis replied that he knew. Manso
continued that his company was not in the same ball park
as those other companies, the ones he had been talking to in
the Association, and asked why Ligurotis was trying to treat
his company like that. Ligurotis reiterated that if he gave
Manso this deal, he would have to give it to the other mov-
ers and he could not do that. Manso repeated that he had to
live his life. Ligurotis said that he understood and the two
men shook hands. However, as Manso was leaving the room,
Ligurotis told him, ‘‘Sal, it is not over yet.’’ Manso told
Ligurotis that he did not know what he was talking about,
and left.
Later still on March 21, the Respondent’s attorney, Miller,
sent the following letter to the Union’s attorney, Charone:
Just so there is no possible understanding re Reebie:
Sal tells me Dan Ligurotis indicated to him that the bar-
gaining ‘‘isn’t over.’’
We had a clear understanding that today was ‘‘make
or break day.’’ Reebie modified its proposal in certain
respects, and your negotiators found it unacceptable.
Your negotiators changed their position in certain re-
spects, and Reebie found your proposals unacceptable.
We both agreed that neither Local 705 nor Reebie
had any further proposals to make, and your people
stated there was no way Local 705 would sign a con-
tract which did not retain (1) Central States Pension, (2)
weekly guarantees, (3) Local 705 Health and Welfare,
and (4) prohibitions against subcontracting. Reebie ad-
vised you it would not sign a contract containing any
of those provisions.
If Mr. Ligurotis’ remarks indicate that you have a
proposal to make or to break this impasse, please for-
ward it to me immediately because we take very seri-
ously our understanding that this was make or break
day, and our extension expires at midnight tonight.17
Driver Gary Hornbaker18 testified without contradiction
that on the evening of March 21 he returned a telephone call
from Manso. Manso told Hornbaker that he wanted to give
him some background on what he was going to do. Manso
stated that he was going to restructure the Company and
would introduce a percentage payment policy to replace the
hourly rate previously paid to employees under the expiring
agreement. He told Hornbaker that there was a chance that
the Union would want to strike him because they could not
reach agreement, and asked whether, if the Union should
strike, would Hornbaker stay and work for him. Hornbaker
said no, he would not; he wanted to stay with the Union.
During that conversation, Manso did not say that he was
going to hold a meeting of employees the next morning.
4. The March 22 meeting
On March 22, at approximately 7 a.m., Manso conducted
a meeting of approximately 30 to 35 Franklin Park employ-
ees at that facility. Also present were Leo Licata, the Re-
spondent’s principal and board chairman; Gary Richied, vice
president, operations; Robert Licata, local operations man-
ager (dispatcher); and Dominic Salemi, the Franklin Park fa-
cility’s manager. The parties stipulated that, at the meeting,
Manso read aloud to the assembled employees a prepared
statement, copies of which were given to employees during
the session, principally by Richied. Manso then answered
questions from employees.
A major evidentiary conflict between the parties is wheth-
er, as testified by witnesses for the General Counsel, Manso,
in addition to reading his prepared statement, went beyond
that document to also tell employees that in order to continue
in the Respondent’s employ, they would have to resign from
the Union,19 and that employees who participated in a strike
against the Respondent would lose their jobs. The General
Counsel and the Union contend that as a result of Manso’s
asserted requirement of resignation from the Union, and
threatened discharge for strike action, five employees present
at the meeting who were members of the Union considered
themselves discharged, either directly or constructively, and
that they began to picket the Respondent’s premises in what
the General Counsel and the Union contend was an unfair
labor practice strike.20 On the following day, these strikers
were joined on the picket lines by three more employees,
bringing the total to eight. The General Counsel and the
Union further assert that the strike was prolonged by the Re-
spondent’s maintenance of its requirement that striking em-
ployees resign from the Union before returning to work.
Manso, other members of the Respondent’s management, and
certain employees have denied that any of the disputed state-
ments were made to employees either at that meeting or at
any later time.
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Wade, employed by the Respondent as a packer/driver since
1964, has been a member of the Union since 1966.
22 Salazar’s son and namesake, Michael Salazar Jr., also employed
by the Respondent, did not join in the strike and, after a few days,
Salazar Sr. returned to work under circumstances not detailed in the
record.
23 Yracheta, a member of the Union for about 20 years, had begun
to work for the Respondent as a driver in 1971.
24 Lanzano, employed by the Respondent since February 1981, had
been a member of the Union for slightly more than 3 years.
25 Burke, a member of the Union since about 1958, had been em-
ployed by the Respondent since 1963 where he held a unit position
as warehouse foreman of the Franklin Park warehouse.
26 Martinez, employed by the Respondent as a driver since April
1985, had first signed a union authorization card in July 1989. How-
ever, he did not actually become a member of the Union until after
March 22.
27 In March, Martinez was a driver for the Respondent, having
done that work 6 days a week for the entire year. At that time, he
was being paid more than $4 an hour below the contract rate, was
not covered by the Local 705 health and welfare plan or by the Cen-
tral States Teamsters pension plan. Similarly, Martinez did not re-
ceive any other job-related health, welfare, or pension benefits in
spite of his full-time employment. This was true although Martinez
and certain other employees had signed and delivered to the Union
an application for membership in that labor organization during the
preceding July.
Employee Elbert Wade21 testified that when Manso con-
ducted the March 22 meeting, he was approximately 10 feet
from Manso and clearly heard what was said. As Wade re-
called, Manso read from a sheet of paper, telling the employ-
ees that the Respondent wanted to go on to some kind of a
percentage deal. During the meeting, Manso told the employ-
ees that before they could go out to work, they had to ‘‘sign
this paper resigning from the Union.’’ Wade related that
Manso had a paper at the meeting for him to sign. At that
point, Wade rose, left the meeting, and went to the back of
the parking lot where he met with a group of other union
employees, including John Yracheta, Edmund Burke, Gary
Hornbaker, and Michael Salazar Sr.22 Wade testified that he
believed that Manso had fired him on March 22 when he had
told the group, ‘‘You will resign from the Union or you are
terminated.’’
Wade did not recall receiving a copy of the statement read
by Manso at the meeting, but asserted that even if he had,
he could not have read it that day because he did not have
his glasses. He also did not recall having received subsequent
correspondence from the Respondent, dated May 21 and Au-
gust 20, which correspondence will be described below.
Wade testified that he could not have afforded to resign
from the Union because his wife was seriously ill and had
been receiving extensive care and medication, all fully paid
by the Union’s health and welfare fund at a cost of over
$500,000. Wade did not expect that any future employer
would have a health plan prepared to continue to meet those
expenses because his wife’s illness would have predated such
employment. Nonetheless, except for picketing, he made no
further effort to recover his job of 16 years.
Other employees testified similarly with respect to the
events of the March 22 meeting. Synthesizing the testimony
of employees John Yracheta,23 Sandro Lanzano,24 Gary
Hornbaker, Edmund Burke,25 and Joseph Martinez.26 Manso,
at the March 22 meeting, read from a paper telling the em-
ployees that he no longer could abide with the Union be-
cause the Union could not come to agreement on his terms
and that he was at negotiating impasse with the Union. From
that time on, there would be no more Union. Manso told the
employees that they would be paid on a percentage basis as
opposed to their previous hourly rate and that although the
employees would not have the same coverage that the Union
had provided under its health and welfare plan, he had a
health plan which, although not quite as good, would provide
employees with hospitalization. Although Manso basically
read his statement, according to these employees, every so
often he would look up and say something to the effect that
if the employees wanted to continue to work for the Com-
pany, they would have to resign from the Union. Manso took
approximately 7 to 10 minutes to read his statement. This
was followed by approximately 45 minutes during which
Manso answered questions from employees. During the ques-
tion and answer period, Lanzano asked Manso what he
meant by ‘‘being permanently replaced,’’ as used in Manso’s
distributed statement. Manso replied that it meant exactly
that. The employees would be permanently replaced if they
did not resign from the Union. Burke, too, had asked the
same question—what would happen if he did not resign from
the Union. Manso replied that he would be terminated, in
turn, asking how much plainer could he get.
Yracheta testified that Manso told the assembled employ-
ees that those who struck him would be terminated and those
who wanted to work would have to resign from the Union.
There were slips of paper in the office that Gary Richied
would have the employees sign.
During the question and answer period, Mike Salazar Sr.
asked where their Union was; the employees were under the
impression that they had a 30-day extension and wondered
why that meeting concerning restructuring of the Company
was being held without prior notification. Manso replied in
response to the first question that it was their Union and,
then, that he had had his meetings with the Union and was
not negotiating with them any more or signing anything.
That was the way it was going to be. From Manso’s pre-
pared text, read at the meeting, he had stated that anybody
in the Union who wanted to work for the Company may
have to resign from the Union. The Union could fine the em-
ployees if they did not resign. Salazar also asked what if
someone did not want to resign from the Union and still
wanted to work. Manso repeated that the Union could pos-
sibly fine that individual.
Joseph Martinez27 testified that at the March 22 meeting,
he received a two-page document from one of the company
officials. The front page corresponded to the first page of
Manso’s statement, read and distributed at that meeting.
However, the second page did not continue with Manso’s
statement but was a blank form that ‘‘I [space for employee’s
name] resign from Union Local 705.’’ This was followed by
an additional line for the employee’s signature.
Martinez asked whether the Respondent was going to con-
tinue to deduct from the men’s paychecks the costs of any
new damages to the equipment that they were driving.
Manso replied no, not anymore. When Salazar again asked
where the union business agent was, Manso repeated that it
was their Union.
521REEBIE STORAGE & MOVING CO.
28 Manso’s testimony concerning events at the March 22 meeting
was corroborated by the Respondent’s vice president, Gary Richied;
dispatcher Robert Licata; and by employees McKinley Jordan, Roy
Mason, Charles Ingram, and John Haran. The record revealed that
Jordan, a van foreman, had been employed by the Respondent for
about 22 years and had belonged to the Union from 1971 to 1973
and again from 1985 to 1990, his membership having ended when
he resigned immediately after the March 22 meeting.
Mason, employed by the Respondent as a packer/mover for about
4 years, had belonged to the Union from about 1975 until 1981,
when he withdrew. Mason was not a union member during his em-
ployment with the Respondent.
Ingram, a Respondent’s helper for approximately 8 years, also had
not belonged to the Union during his employment.
Haran, whose sister’s marriage to Manso had ended in divorce
some 10 to 13 years before, had worked full time for the Respondent
for about 14 years and part time before that. Having worked in sales
and, currently, as a driver, he had been in and out union membership
for the preceding 10 to 12 years. Haran’s most recent period of
union membership ended immediately after the March 22 meeting
when he, like Jordan and certain others, resigned.
29 Under the expired contract, drivers earned straight time hourly
rate of $13.31; steady helpers—$12.86; warehouse foreman—$12.92,
and packers—$12.92. The contract also contained a schedule of
daily expense allowances for long-distance drivers and helpers which
was not addressed by Manso.
30 Under the expired collective-bargaining agreement, employees
with 1 year of service received 1 week’s vacation with 40 hours’
pay; an employee with 3 years’ service received 2 weeks’ vacation;
an employee completing 9 years—3 weeks’ vacation; 15 years—4
weeks; and 20 years—5 weeks.
Manso testified28 that the March 22 meeting was attended
by the above-named company officials and 30 to 35 Franklin
Park employees—basically drivers, helpers, and packers—at
that facility. Negotiations having broken down, he had pre-
pared for a strike and used the March 22 meeting to an-
nounce the changes he planned to put into effect. These
changes were embodied in the following statement which he
read verbatim to the assembled employees and which he then
caused to be distributed to them:
TO ALL EMPLOYEES:
We have been bargaining with [L]ocal 705 of the
Teamsters and at this time we have reached an
impass[e].
We think the contract we offered was fair, and
would be a contract we could live with and hope to be
able to compete in this very rough marketplace.
We don’t think it is a spectacularly generous pack-
age. We can’t provide you with that kind of package
and still stay competitive.
It does, however, provide for wage increases for our
drivers who will go up to $14.00 per hour.
Steady Helper up to 10.00 per hour
Warehouse Foreman up to $13.31 per hour
Packing Foreman up to $13.31 per hour
Packers up to $12.00 per hour29
It does, however, provide Health and Welfare cov-
erage for all of our steady employees, the same Health
and Welfare coverage that the rest of our office em-
ployees have. For those of you who had Health and
Welfare from [L]ocal 705 our plan is not as good as
the one you had, but they were raising the amount of
money we had to pay substantially, and we couldn’t af-
ford it, but also we want to provide Health and Welfare
coverage for all of you. For those of you who have
never had Health and Welfare coverage it is now avail-
able to you.
Also, for those of you who do not belong to our pen-
sion plan you are welcomed to join our 401K pension
plan. Please see your supervisor for enrollment forms
along with enrollment forms for your Health and Wel-
fare. There is a cost involved in our Health and Welfare
plan from you. $5.00 per week, for employee coverage.
$10.00 per week, for employee with spouse. $15.00 per
week for employees with spouse with children.
Also, there will no more 1/2 hour to and from on
local moving!
Crews will be paid on a percentage of the ticket,
drivers will receive more than helpers. If an hour job
bills out to $1000.00 with a van and 3 men, the driver
would receive 14% or $140.00, the helpers would get
9% each or $90.00 each.
Some local moving will still be paid by the hourly
rates. ie; portal to portal jobs, local packing by the
hour, warehouse work etc. and O&I’s of course.
All A V L packing will be on a percentage basis, ie;
a 1000.00 packing job would pay a 2 man crew
$320.00 or $160.00 a piece.
There will be one less holiday than you had (presi-
dent’s day).
The vacation scheduling will be as follows:
1 year 1 week
2 years 2 weeks
15 years 3 weeks
25 years 4 weeks30
If we have a strike, the company will continue to
work, on our terms (with the type of wages and condi-
tions I have just described to you) to anyone who wants
to work. If any of our present employees don’t cross
the picket lines; the law allows us to hire others who
do want to work, and the law allows us to replace strik-
ers permanently. That means that so long as a perma-
nent replacement worker does a good job and wants to
stay with us, he has a right to the job, and the replaced
striker does not.
Some employees have asked us whether the union
could fin[e] them for crossing the picket line. The an-
swer is yes, if the employee remains a member of the
union. If he wants to avoid being fined, he should re-
sign his union membership, before he crosses the picket
line. All that is needed is a simple letter to the union
saying that you are resigning your union membership.
We are not at all suggesting that you have to resign
from the union to keep your job. We mention resigna-
tion only because that is the only way you can come
to work during a strike without running the risk that the
union will fine you.
We never looked for a strike; We tried very hard to
reach an agreement but it has become impossible.
We are putting in effect today this last offer.
We certainly hope that all our employees will want
to continue to work for us. Whether or not we have a
union agreement and whether or not the union tries to
get people to go on strike.
Some of the changes are small and some are very
large, but all we are trying to do is survive in a very
competitive environment. Our local rates have been
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 Wade was the only employee of those named as original strikers
to contend that he left the meeting before its conclusion.
32 Mocerino, employed by the Respondent as a helper for the pre-
ceding 3-1/2 years, was a member of the Union.
33 Lanzano, employed by the Respondent since February 1981, had
been a member of the Union for slightly more than 3 years. In ac-
cordance with the Respondent’s uncontested posthearing notification,
I note that Lanzano subsequently resigned his employment with the
Respondent on May 3, 1991.
rolled back two years and [we] are still not busy. All
of you are very important to us, we want you to be
busy. All of you are very important to us, we want you
to be happy to work here, work with us and we will
work with you.
We have had some bad times and we have addressed
them by laying off 40% of our office staff at Clark
Street, and also freezing our wages there. Smart compa-
nies in bad times do things like this.
This is a big step on our way back to profitability.
Walk with us, and you will be as proud as we are that
you did.
Manso testified that he took less than 7 minutes to read
the above statement, after which he devoted the rest of the
hour-long meeting to answering employees’ questions. None
of the other company officials who attended the meeting
spoke to the employees during the meeting. As Manso re-
called, employee John Haran asked how the percentages an-
nounced in Manso’s statement would be applied with respect
to local moving and packing and if he still would be hourly
paid on office and industrial moves. Manso explained how
the percentages would work and affirmed that Haran still
would be paid by the hour for the types of moves he had
inquired about. Warehouse employees also would be hourly
paid. To Michael Salazar’s question as to how better paying
household moving work would be distributed, Manso de-
clared that seniority would prevail. He answered Burke’s
question as to why warehousemen would get less money
than truckdrivers by stating that he thought that such an ar-
rangement was fair. Manso, however, pointed out that Burke,
as an employee with about the highest seniority in the Com-
pany, could bid for the best paying jobs. Manso also re-
sponded to employee Reggie Wright’s question as to how
hospitalization, health, and welfare would work under the
Respondent’s plan. Other questions were asked and an-
swered.
Manso testified that, during that meeting, no employee, on
his own initiative, had asked whether the Union could fine
them for crossing the picket line in the event of a strike and
admitted that it had been his idea to so inform employees
that the Union might fine them if they continued to work
during a strike against the Respondent while still members
of the Union. However, Manso and his above-named cor-
roborating witnesses denied that Manso had stated that in
order to be able to work for the Company, employees would
have to resign from the Union, or that if employees did not
resign from the Union, they would be terminated. He also
denied having said during that meeting, or at any other time,
that any employee who participated in the strike against Re-
spondent would be terminated. Specifically, Manso denied
that Burke had asked what would happen if he did not resign
from the Union and further denied having said to Burke that,
in such an eventuality, he would be terminated. According to
Manso, Wade, too, did not ask what would happen if he did
not resign from the Union. Manso did not see Wade, Burke,
Yracheta, Salazar Sr., or any of the other employees who
commenced, or later joined, the strike leave the meeting be-
fore it ended.
5. The strike
Citing Manso’s asserted words at the March 22 meeting
that if the employees struck, they would be terminated and
that if the employees wanted to work for the Company, they
would have to resign from the Union, employees Elbert
Wade,31 Edmund Burke, Gary Hornbaker, Michael Salazar
Sr., and John Yracheta gathered in the Respondent’s Franklin
Park parking lot after the meeting. One of their number
called the Union to report what had happened. When the in-
dividual who had called the Union reported back that their
business agent, Gerald Rzewnicki, could not be reached, the
men decided to drive to the union hall.
Soon after the men arrived at the union hall, at around
8:45 a.m., they met with Ligurotis who instructed them to re-
turn to the Respondent’s Franklin Park facility where
Rzewnicki, already notified, would meet them. On their re-
turn to the Franklin Park warehouse, between 9:15 and 9:30
a.m., they explained to Rzewnicki what had happened.
Rzewnicki told them to set up a picket line at the Franklin
Park warehouse and asked for volunteers to also set up a
picket line at the Respondent’s Chicago facility. Wade and
Burke volunteered to do that while the others continued to
picket at the Franklin Park facility, using pickets sign fur-
nished by Rzewnicki from the truck [sic] of his car. Al-
though the signs originally bore the legend ‘‘Local 705 On
Strike,’’ 2 to 3 weeks later, the signs were changed to read
‘‘Unfair Labor Practice Strike.’’
After March 22, three other Franklin Park employees, Mi-
chael Mocerino,32 Sandro Lanzano,33 and Joseph Martinez,
joined the strike.
When the strike began, Mocerino was away from the
premises on vacation. Mocerino testified that on the morning
of March 22 fellow employee Gary Hornbaker had called
him at home to advise that the Respondent’s employees were
on strike. Mocerino remained at home for the rest of March
22. On March 23, at about 10 a.m., he called Manso at his
office in the Chicago facility to ask what was going on.
Manso told him that there was strike and that Manso had
proposed the best agreement he could to benefit the employ-
ees. According to Mocerino, Manso told him that if he did
not agree with this, he would have to be permanently re-
placed. In response to Mocerino’s request for an explanation,
Manso stated that Mocerino would have to resign from the
Union or be permanently replaced. When Mocerino asked
‘‘what permanently replaced meant,’’ Manso told him that he
would be fired, and hung up.
That morning, at about 11:30 a.m., Mocerino joined the
others on the Franklin Park picket line. Mocerino, in his tes-
timony, explained that he had gone to the picket line because
he needed his health/welfare and other job benefits and did
not want to resign from the Union. Mocerino first saw the
text of Manso’s March 22 speech to the employees on March
523REEBIE STORAGE & MOVING CO.
34 Salazar’s resignation from the Union actually was dated March
26. He originally had joined the strike when it began on March 22,
but later returned to work. Salazar and Frazier did not testify at the
hearing.
23, when Yracheta gave him his copy to read. Mocerino con-
tinued to picket after reading this statement.
Martinez did not fill out the resignation form he testified
he had received at the March 22 meeting but, instead, was
dispatched and worked a full day on March 22 until around
4 p.m., when he returned and went home. Martinez testified
that he did not join the picket line until March 23 at 6:30
a.m., and has continued to picket.
Manso, in his testimony, recalled that Mocerino had not
attended the March 22 meeting because he was on vacation,
but denied that Mocerino had called him on the following
day. Manso further denied that, on March 23, or on any
other day, he had told Mocerino that if he did not resign
from the Union, he would be permanently replaced.
Lanzano, who was at the March 22 meeting, testified that
he did hear Manso tell employees that if they wanted to con-
tinue to work for the Company, they would have to resign
from the Union and that employees who did not resign from
the Union would be terminated, permanently replaced.
Lanzano remained during the entire meeting, after which he
immediately called the union hall, explaining to the unnamed
party who answered that the employees had been informed
that they could not go to work that day unless they resigned
from the Union. The man at the union hall replied that that
was a bunch of baloney. The Union had not known that any
meeting was supposed to have taken place and that Manso
did not know what he was talking about by telling the em-
ployees that they had to resign from the Union. Lanzano was
told to go directly to work and that the Union would send
business agent Jerry Rzewnicki to the Respondent’s facility
to take care of the situation.
Lanzano testified that before returning to work, he told
Burke, Yracheta, and Hornbaker that the Union had advised
him that he did not have to resign from the Union and that
he could go to work as normal. Lanzano then returned to
work, working only part of the day because the job to which
he had been assigned had canceled out.
When Lanzano returned from the March 22 job, he
stopped off at the Respondent’s nearby Chicago facility to
speak to Manso, arriving there from the canceled assignment
at about 10 a.m. Manso took Lanzano into Board Chairman
Licata’s office where the two met privately. Lanzano asked
Manso what would happen if he resigned from the Union
and the Company and the Union should sign a collective-bar-
gaining agreement the next day? He would be screwed, what
then? He would be out of the Union, would not have health
and welfare benefits, and would not even have a job. Manso
replied he would not be signing a contract with the Union;
the Union was crooked. Manso asked how otherwise could
it be that he had more than 30 guys working for him who
were not in the Union unless the Union was gaining some-
thing monetarily from him. The result of that conversation
was that Lanzano agreed to go back to work at the Franklin
Park facility. Manso asked if Lanzano realized that in order
to stay in the Company, he would have to resign from the
Union. Lanzano said that he did. Manso reassured Lanzano
that he had made a right choice, reminding Lanzano that he
had just bought a new home, that he had a family and other
considerations. Lanzano told Manso that he would go to
Franklin Park and resign from the Union.
When Lanzano returned to the Franklin Park facility at ap-
proximately 1 p.m. on March 22, he noted that a strike was
in progress with men holding picket signs at the gate.
Lanzano drove across the picket line and went to Gary
Richied’s office where he met with Richied, Salemi, Robert
Licata, and Barbara Seiner, clerical operations coordinator, at
the Franklin Park facility. Lanzano testified that he told
Richied that he had just finished talking with Manso and
hoped that he wasn’t screwing himself but that he wanted to
resign from the Union. Richied told Lanzano not to worry
and assured him that the Respondent would take good care
of him and that he was making the right choice.
Richied had Seiner type the following letter, dated March
22, which was signed by Lanzano:
I, Sandro Lanzano, do hereby resign on this day
from the Local 705 IBT Union.
After signing the resignation form, Lanzano went home,
returning to the Respondent’s facility at 6:30 the next morn-
ing. Lanzano crossed the picket line to receive his paperwork
from Robert Licata for that day’s work. Lanzano, however,
became upset when he noted that the documents indicated
that his assigned job would take no more than 3 hours and
would enable him to earn comparatively little for that day’s
work. Licata replied that that was the only work available for
Lanzano that day. In response to Lanzano’s complaint that
he had just resigned from the Union because the Respondent
had told him that it was going to take good care of him,
Licata reassured Lanzano that he should not worry, that the
Company would take care of him but that that was all the
work they had for him that day.
As Lanzano was about to drive his truck out across the
picket line, Mocerino, who by then had joined the picket
line, approached and asked what Lanzano was doing.
Lanzano replied that he had resigned from the Union and
was ticked off that he had done so. Mocerino told Lanzano
that he probably could get back into the Union. All he had
to do was to speak to Rzewnicki, the business agent. Accord-
ingly, Lanzano crossed the street and joined Rzewnicki in his
car. He told Rzewnicki that he had made a big mistake and
would like to sign himself back into the Union. Rzewnicki
told Lanzano to write a statement in his own words as to
why he wanted to get back into the Union. Lanzano did so
and gave the statement to Rzewnicki, who told him that he
was going to give the document to the lawyers. Lanzano
joined the picket line where he remained until his May 3 res-
ignation from the Respondents’ employ.
6. Employee resignations from the Union
The parties stipulated that employees William Frazier,
McKinley Jordan, and Michael Salazar Sr. signed written res-
ignations from the Union, all dated March 22,34 and typed
by Seiner. All these resignations were worded in the same
way as had been Lanzano’s above-quoted resignation. The
record also shows that employee John Haran submitted a
like-worded written resignation from the Union on March 22
at about the same time as Jordan.
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 This language, as noted, was identical to all the other resigna-
tion forms.
36 As Salazar did not testify, the record contains no explanation as
to why he had participated in the strike in the first instance or as
to why he had resigned from the Union and returned to work.
As noted, both Jordan and Haran, who had attended the
March 22 meeting and testified in this proceeding, denied
that Manso had stated that employees would have to resign
from the Union in order to keep their jobs with the Respond-
ent. Jordan testified that Manso had told the employees dur-
ing that meeting that they could be fined by the Union if
they crossed the picket line should there be a strike, and that
Manso had said this in response to a question by Jordan.
After the meeting, Jordan had asked Operations Vice
President Richied what would happen if they should work
during the strike. Richied replied that Jordan might get fined
by the Union for working while being in the Union. Accord-
ingly, when Jordan expressed an interest in resigning from
the Union, he was steered to Seiner by Richied. Jordan told
Seiner that he wanted to resign from the Union and told her
the language to use in typing out his resignation form.35
Haran also asked Seiner, at about the same time as Jordan,
to type up a brief letter of resignation from the Union which
he signed. He had not been handed a pretyped form with a
request for signature. Haran explained that he had resigned
from the Union because he believed that the employees were
getting a fair deal from the Company and did not want any
repercussions from the Union in the event of a strike should
he cross the picket line while still a union member.
Although Michael Salazar Sr. joined the strike when it
first began on March 22, on March 26, he resigned from the
Union and returned to work.36
Manso testified that he first learned that a strike was in
progress on March 22 when Richied called to announce that
the Franklin Park facility was being picketed. At about the
same time, at midday, pickets also appeared at the Chicago
facility. The picketing employees were members of the
Union, but Manso noted that at least one picketing employee,
Joseph Martinez, was not a member of the Union although
he was one of the Respondent’s employees engaged in mov-
ing.
Manso testified that Seiner had typed all the resignation
forms. He explained that after the March 22 meeting had
ended, one or two of the employees had come to the dispatch
window at the Franklin Park facility and asked Manso what
to do if they wanted to resign from the Union. He replied
that all they had to do was write a short letter. Manso de-
clined the employees’ request for help and told them that he
would ask one of the secretaries to help them. Accordingly,
Manso asked if Seiner would help the men with what they
wanted, but did not stay to learn what she had done in this
regard.
Although Manso’s prepared statement, read at the March
22 meeting, referred to employees resigning their union
membership, Richied testified that he had not discussed with
Manso or any other company official what to do in the event
employees were going to resign and no resignation forms had
been prepared at the time of the meeting. Accordingly, when
Lanzano later asked Richied for assistance in resigning from
the Union, Richied had said that he could not write up a res-
ignation form but could have Seiner do it. He then asked
Seiner to see Lanzano and type up something that Lanzano
would be willing to sign. He then left. Richied did not sug-
gest what should be put on the resignation letter and does
not recall if anybody from the Company had suggested the
contents of that letter.
Richied related that when Michael Salazar Sr. asked what
he should do, he told Salazar to make up his own mind.
As Richied recalled, when the March 22 meeting ended,
he merely asked who was going to work, at which time Rob-
ert Licata began to assign work orders. Wade and Yracheta
announced that they did not feel well and Lanzano said that
he wanted to make a phone call.
7. The applications for 401(k) moneys
The General Counsel and the Union, as noted, argue that
the employees who participated in the strike following the
March 22 meeting had dual status both as unfair labor prac-
tice strikers and as discriminatees. These parties contend that
the employees were discriminatorily discharged by the Re-
spondent’s requirement that they could continue to work for
the Respondent only by resigning from the Union and giving
up the contractual pay scale, health and welfare, pension, and
other union-associated job benefits. The General Counsel and
the Union assert that these employees also were unfair labor
practice strikers who had ceased work to protest the Re-
spondent’s unlawful conduct. To support their position that
the Respondent had terminated these employees, the General
Counsel presented evidence concerning the efforts of certain
Respondent’s employees to obtain their accumulated Section
401(k) pension benefits, indicating that, in at least one such
case, the Respondent had notified the administering state
agency in writing that the employee had been terminated.
The Respondent, in turn, contends that none of the em-
ployees who joined in the strike had been terminated; that
employees were not threatened with discharge if they should
strike; that, as of the time of the hearing, all would be wel-
comed back; that there never had been a requirement that
employees resign from the Union as a condition of continued
employment; and that the affected employees were twice no-
tified in writing that they would be welcome to return while
remaining union members. Although the Respondent did in-
dicate on the 401(k) application form of one such employee
that he had been terminated, the Respondent maintains that
this had been an error resulting from confusion and that the
affected employees were economic strikers who were at-
tempting to buttress the Union’s bargaining position at con-
tract negotiations that had just reached impasse. The Re-
spondent supported its position that the various employees
had considered themselves to be merely on strike and had
not terminated their employment, by presenting evidence of
conversations with various employees during which they had
stated itheir ntent to return to work.
Yracheta, called by the General Counsel, testified that at
the end of March or beginning of April, just weeks after the
picketing began, he called Manso at his office in the Chicago
facility, telling the latter that he wanted to receive his 401(k)
pension plan money. Manso replied that there was only one
way in which Yracheta could obtain this money; if he was
terminated, emphasizing that Yracheta should understand that
once he asked for his 401(k) pension plan money, he was
terminated. Yracheta told Manso that he already had termi-
nated him at the (March 22) meeting. Manso denied having
525REEBIE STORAGE & MOVING CO.
37 Manso defined a steady employee as one who worked 5 days
a week every week whether or not a union member. All of the eligi-
ble steady employees had not joined the plan.
38 Manso had known Yracheta for 20 years.
done this. Each side repeated their position concerning termi-
nation.
Manso asked if that was what Yracheta wanted to do.
Yracheta told Manso that he still was undecided. Manso
asked if Yracheta wanted to come back to work, but
Yracheta did not yet know and would have to let Manso
know.
Finally, according to Yracheta, Manso told him that if he
wanted his pension plan money, he would send Yracheta an
application to send to Lincoln National Pension Insurance
Company, Pittsburgh, Pennsylvania, which was administering
the Respondent’s 401(k) pension plan and he would receive
his money within 4 to 6 weeks. Manso invited Yracheta to
call him should he hear anything from the Lincoln National.
Yracheta testified that on about April 2, he received the re-
quested form titled ‘‘Contract Holder Directive for Benefit
Payment,’’ signed by Manso. Under the reason for payment
item, Manso had indicated ‘‘Termination as of of 4/1/90.’’
A few weeks after receiving the form, Yracheta mailed it
to Lincoln National. Lincoln National thereafter replied that
Manso would have to submit the form to enable Yracheta to
receive his money. Accordingly, in May, Yracheta called,
telling Manso that he personally would have to send the
401(k) form to Lincoln National to enable Yracheta to get
his money. During this discussion, Manso told Yracheta that
he was sorry, but he had found out that there were only four
ways in which Yracheta could get his 401(k) pension
money—by termination, death, retirement, or quitting.
Manso asked if Yracheta had decided whether he was
going to come back to work for him. Yracheta replied that
he would. However, Yracheta testified, Manso stated that if
Yracheta worked for him, he would have to resign from the
Union. Yracheta said that he understood this. Yracheta did
not return to work.
Mocerino, who, as noted, had interrupted his vacation to
join the strike, called Manso at his Chicago office on April
3. Mocerino asked for the vacation pay he had coming.
Manso said that he would take care of it. Mocerino also
asked to get his 401(k) pension money. Manso told Mocerino
that he was not eligible. There were four reasons for which
401(k) moneys could be obtained—by death, by retirement,
by discharge, or by resignation. When Mocerino protested
that Manso had fired them, Manso denied that he had.
Mocerino reiterated that Manso had fired them, reminding
Manso that, over his signature, he had written ‘‘Terminated
as of 4/1/90’’ on Yracheta’s 401(k) application form. He
again repeated that Manso had fired all of them. Manso re-
plied that this was a mistake and hung up.
On April 6, Richied brought Mocerino his vacation pay
while he was on the picket line at Franklin Park.
Lanzano, who temporarily resigned from the Union and
worked for the Respondent during the first day of the strike
before resuming membership and joining the strike, testified
that within a week after the strike began, he called Richied
at the Franklin Park office. Lanzano asked if he could re-
ceive his vacation pay. Richied replied no, because, as in-
structed, he could not give strikers like Lanzano their vaca-
tion pay. When Lanzano asked about his 401(k) pension
money, Richied said that he had nothing to do with that and
referred him to Manso. Accordingly, Lanzano immediately
phoned Manso at the Chicago office.
Lanzano told Manso that Richied had just informed him
of Manso’s instructions not to give the striking employees
their vacation pay and that he wanted his 401(k) pension pro-
ceeds if he could not get his vacation pay. Manso denied
having stated that strikers would not receive vacation pay,
telling Lanzano that he really did not want to screw the em-
ployees altogether. Manso reassured Lanzano that he could
have his vacation pay and that he would send Lanzano the
application for the 401(k) pension money in the mail that
day. It was Lanzano’s money. Lanzano thanked him.
Manso phoned Lanzano the next day, advising him that he
would not be able to receive his 401(k) pension benefits, be-
cause he had not been terminated from the Company; Manso
never had terminated him. Lanzano angrily asked what was
going on; Manso had told him he was fired and now he was
telling him that he was not terminated just to keep him from
getting his 401(k) money. When the conversation became
heated, Manso hung up on Lanzano.
Lanzano then called the 401(k) office in Pittsburgh, Penn-
sylvania. The agent there told Lanzano that a number of the
Respondent’s employees had requested 401(k) benefits and
that Manso had called and was instructed by the 401(k) law-
yers that he should not have told the employees or Lanzano
that they had been terminated if on strike.
Lanzano never submitted the application form for his
401(k) benefits, explaining that he had not done so because
Manso and the 401(k) office had told him that it would not
do any good, that he was not eligible.
Hornbaker, also in the 401(k) pension plan, testified con-
cerning his efforts to recover those moneys. Around the sec-
ond week of April, after the picketing had been in progress
for 2 or 3 weeks, Hornbaker called Manso at his Chicago of-
fice and asked if he could get his 401(k) money. Manso re-
plied that Hornbaker could not. Manso told Hornbaker that
he had four ways in which to get it. He had to retire or quit
or be fired or die. Hornbaker told Manso that he thought he
had been terminated. Manso answered that he had not been.
When Hornbaker stated that Manso had written ‘‘Termi-
nation’’ on John Yracheta’s form. Manso said that that had
been a mistake. He did state that he would send Hornbaker
a form, which he later did, but there was nothing he could
do beyond that.
Hornbaker later received the form in blank, with no signa-
tures or markings. He has continued to retain this form.
Manso testified that, since 1985 or 1986, the Respondent
has made available the 401(k) pension plan to all steady em-
ployees.37
Manso described his conversations with employees con-
cerning their efforts to recover 401(k) pension moneys. The
first such conversation occurred on April 4 when Yracheta
called, telling Manso that he wanted to terminate his 401(k)
plan. Manso asked what he was doing. Yracheta said that he
would not be coming back to work for the Respondent and
that he wanted to receive all the money he had coming.
Manso replied that he felt had that Yracheta was not return-
ing as he would have loved to have him back. They had
been together for a long time.38 He told Yracheta that if he
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 Manso did not testify concerning Hornbaker’s attempt to gain
his 401(k) moneys.
40 Burke provided limited corroboration for Wade’s account, which
did not correspond as to date. According to Burke, he recalled one
occasion in June when Manso and Wade had an apparently heated
exchange with much pointing, arm waving, and loud talking. Burke,
however, could not hear what they were saying as he was in his car.
was hurting for money, that 401(k) sum certainly was his, he
was entitled to it and Manso would do everything possible
to help him get it. Manso told him, however, that he was not
familiar with the form because the Respondent’s former con-
troller, Renee Wright, laid off from the Company, had taken
care of such matters. Manso told Yracheta that he would fill
out the form to his best ability, send it to his home and that
Yracheta could forward it to the 401(k) office in Pittsburgh,
which address Manso promised to provide.
In response to Yracheta’s further inquiry, Manso told him
that he also could get his vacation pay and promised to take
the necessary steps because that money would come much
more quickly than his 401(k) proceeds. Manso offered to
lend Yracheta money, if needed, to help him get by until
Yracheta decided what he wanted to do. Yracheta replied
that he thought he might want to go into driving freight or
else to go into business for himself.
Manso testified that on the form to help Yracheta obtain
his 401(k) money, he had filled in a termination date as of
4/1/90 because he had not known what to do for Yracheta
who had indicated that he wanted to terminate his employ-
ment. He did not know what else to write because there had
been no item on the form concerning strikes. Manso’s stated
intent in marking Yracheta’s application to show termination
as of 4/1/90 was not to terminate Yracheta’s employment as
of that date, but only to aid his participation in the plan. As
Yracheta originally had told Manso that he would not be
back to work, Manso did not anticipate his return.39
The Respondent’s 401(k) plan was administered by John
Sinclair of Lincoln National with Manso as trustee. Manso
related that after Sinclair had received the form from
Yracheta, he called Manso and asked what was going on.
When Manso explained, Sinclair told him that he never
should have sent the form to an employee to forward directly
to Lincoln National. The procedure was is that the employee
must complete the form and give it to Manso to send Sin-
clair. Manso promised to do that in the future.
During that conversation, Manso told Sinclair that some of
his employees were on strike and that two of them, John
Yracheta and Sandro Lanzano, wanted their 401(k) pension
money. Sinclair told Manso that he could not give it to them
for a strike. When Manso said he had not known that, Sin-
clair told him they either had to quit or have been termi-
nated. Sinclair asked if they had quit. Manso replied not to
his knowledge. When asked if they were terminated, Manso
said no. Sinclair repeated that the employees could not get
the money for a strike. Manso, in turn, asked Sinclair what
to do now as he had told the men that they could get their
money and that he would look like a jerk. He would have
to call these men back and tell them that they could not get
their money. He asked Sinclair, as a favor, to talk to them
in the future because he did not want to deal with this situa-
tion and was sorry he had gotten involved.
Manso related that about the same day as his inquiry from
Yracheta, and before the call from Sinclair, he had received
a like call from Lanzano who also had asked for his 401(k)
money. Manso essentially told Lanzano what he had said to
Yracheta, promising that he would do what he could to en-
able Lanzano to get the money quickly. He promised to send
the form to Lanzano’s home so that he could forward it to
the 401(k) office. When Lanzano asked about his vacation
pay, Manso promised that he would instruct the powers that
be to also take care of that.
However, on about April 6, after speaking to Sinclair,
Manso called Yracheta and Lanzano, respectively, and told
them that he had made a mistake, that he should not have
sent them the forms and that they could not get their money.
Their response to Manso was not happy. However, they re-
spectively agreed to Manso’s request that, in the future they
do him the favor of taking up any future discussions of their
plan with Sinclair so that they would not think that he
(Manso) was trying to do something funny.
8. Picket line incidents
Elbert Wade testified that on April 19, while he was pick-
eting on the street outside the Respondent’s Chicago loca-
tion, Manso walked up to him and twice asked if Wade had
a problem with him. At the time, Burke, was sitting nearby
in his car. When Wade said yes he had, Manso had fired
him, Manso declared that yesterday Wade had called him a
punk. Wade replied that there had been a lot of excitement
there the day before. Manso told Wade that he would tell
him what. He suggested that they should go to the back of
the lot and settle this, him and Wade right now. Wade re-
fused and did not talk to Manso at all after that incident.40
Manso described two conversations with Wade after the
picketing began. The first occurred on April 10, when he ap-
proached Wade who was picketing in front of the Respond-
ent’s Chicago facility. Manso told Wade that he had known
him for 20 years and asked what he was doing out there.
Wade replied that he had to stick with the Union. They had
saved his wife’s life. Manso stated that he could appreciate
that; the Union had a great health and welfare system but the
Company has one, too, and they would take care of his wife.
When Wade said that they would not, Manso asked what do
you mean no. The Respondent had been assured by the in-
surance company that they would take everybody and cover
all existing conditions. Manso noted that the daughter of an-
other employee had spinal bifida, which was of great con-
cern, but that the insurance company had assured the Re-
spondent that they would cover that condition. Describing
this, Manso asked if Wade had checked as to whether the in-
surance company would take his wife. Wade replied that
Manso did not know what his wife had; she had serious con-
ditions. They would not take her. Manso told Wade that he
was not going to debate with him, but reassured Wade that
the insurance company would take her. He ended the con-
versation by telling Wade that he was a valued employee, an
asset to the Company, and by expressing the wish that Wade
come back.
The second conversation occurred in the morning of April
19. Manso recalled that both he and Wade called each other
a few names because Manso had learned the day before that
Wade had called him a name. Nothing more had resulted and
527REEBIE STORAGE & MOVING CO.
41 As noted, Martinez did not actually join the Union and strike
until at least March 23.
42 Enclosed with each copy of the May 21 letters to all striking
employees was a copy of above the statement Manso had read and
caused to be distributed at the March 22 meeting.
both ended up agreeing saying that it was stupid for them
to be calling each other names.
By the time of the hearing, Manso had not replaced any
of the striking employees and had stated a willingness to take
back any willing to come. He praised Yracheta and Wade as
two of the best men the Company had had. The Respondent
had given only two ‘‘Mover of the Year’’ awards, of which
Yracheta and Wade had been the recipients. Had there been
a third such award, Burke would have won. He described
them as the kind of people that the Company built around
and could not replace.
9. Communications concerning return to work
Martinez, as noted, testified that he joined the picket line
at the Franklin Park facility on March 23. On that date, he
received his paycheck which did not contain all the money
to which he was entitled. Accordingly, Martinez called dis-
patcher Robert Licata at the Franklin Park facility. Martinez
testified that Licata asked if Martinez was coming back to
work. Martinez replied that he did not yet know. Licata again
asked if Martinez was coming back, telling him that if he
did, he would have to come back under Manso’s rules. He
did not specify the rules but simply stated that he would
have to return under Manso’s rules. Licata also reassured
Martinez that he would take care of his paycheck, which he
subsequently did.
Martinez further testified that, about 2 days later, Robert
Licata called him at home and again asked when Martinez
was coming back to work. Martinez again replied that he did
not know. Licata told Martinez that if he came back to work,
he would return with full seniority. The only thing he would
have to do would be to resign from the Union. Martinez an-
swered that he could not resign from the Union. Licata once
more asked when Martinez was coming back to work. Mar-
tinez told Licata that he would let him know.
Robert Licata recalled that he had called Martinez at home
on March 23, as was his custom, to learn who would be
working. After the strike had begun on March 22, Martinez
worked a full day for him. During this March 23 call, Licata
told Martinez that he had him scheduled for the next day.
Martinez said that he would be in. Licata denied having told
Martinez that in order to come to work, he had to resign
from the Union. Licata testified that it would have been inap-
plicable for him to have made such a statement to Martinez
because, at the time, he did not believe that Martinez was
in the Union.41
Martinez, however, did not thereafter cross the picket line
to come to work.
Robert Licata testified that in early May Martinez called
to inform him that he, Lanzano, and John Yracheta were
going to come to work the next day. Licata replied that he
would put them on the list, meaning he would have a job
for them. He denied having told Martinez that he and the
other named employees would have to resign from the Union
before returning to work.
Martinez testified that he received the following letter,
dated May 21, from Manso, identical copies of which were
sent on the same day to all other striking employees:
Teamsters Local 705 has filed charges with the Na-
tional Labor Relations Board claiming that our Com-
pany fired you because you refused to resign your
union membership. That accusation is untrue and unfair
to me. I simply do not understand it.
I enclose a copy of a notice which I gave you before
the strike began.42 As you can see, that notice made
clear that we were not threatening any employee with
the loss of his job if he did not resign from the union.
We were only warning you only that if you failed to
do so before coming across the picket line, the Union
could fine you. That is the law and that is the truth.
Another Local of the Teamsters Union in Madison,
Wisconsin has recently fined employees $5,000 each
for crossing a picket line without first resigning from
the Union.
Why you would permit the Union to file this charge
for you, knowing that you had received my written as-
surance that there would be no firings if you did not
choose to resign form the Union, disturbs me.
Some of you have recently asked whether, if you
were to cross the picket line now, you could come back
to work. I said that you could, of course, return, and
that you would come back to work with full seniority.
The law does permit us to permanently replace strik-
ers. If we decided to so so, and if you were replaced,
your job would not be available unless and until your
permanent replacement’s employment was terminated.
But we have not, as yet, permanently replaced any
striker.
We are writing this letter to again reassure you that
until such time as we decide permanently to replace
strikers, you are free to come back to work at any time
and with full seniority. Once again, however, we cau-
tion you that if you wish to do so, the only way you
can avoid the risk of Union fine, is to resign your
Union membership before you cross the line.
But whether you resign from the Union or not will
have no effect on your jobs rights here. It never has
and it never will.
Although Martinez agreed that he had received the May 21
letter and the above-described enclosure, he did not read
these documents when they were received, reviewing them
only as part of his trial preparation. Accordingly, Martinez
did not contact Robert Licata after receiving the May 21 let-
ter to tell him that based on the reassurances in that letter
that he would not have to resign union membership in order
to return to work, he would be willing to go back.
Martinez also received a second letter from Manso, dated
August 20, copies of which also were sent to all striking em-
ployees. This letter was as follows:
You have not been permanently replaced. You are
welcome to return to work. You do not need to resign
from the Union in order to hold a job here.
We thought we had made this clear before. We have
asked the National Labor Relations Board how we
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
could make it any clearer. They suggested we write you
one more time. That is why we are sending this letter.
Although the August 20 letter contained like assurances,
Martinez again did not contact Licata to offer to return to
work.
Lanzano testified that, on May 8, before the arrival of his
copy of the above May 21 letter, he called Manso at his Chi-
cago office immediately after having received a visit at home
from Yracheta. Yracheta had reported his very recent con-
versation with Manso concerning his 401(k) pension plan,
and that Manso had stated a willingness to take Yracheta,
Lanzano, and Martinez back to work. Accordingly, when
Lanzano reached Manso, he asked if what Yracheta had re-
lated was true, Manso replied yes, Lanzano could come back
with full seniority. In the course of this conversation, he
asked when Lanzano wanted to return to work. Lanzano told
him that if he was coming back, he probably would be there
the Monday of the following week. Manso told Lanzano that
he really did not want Martinez but that he did want
Yracheta and Lanzano to return. Manso asked if Lanzano
wanted him to meet him at the job. Lanzano did not recall
his reply but stated that he was going to go back to work
because he needed the job to enable him to meet his new
house payments and other bills.
Lanzano related that about 10 minutes after the above con-
versation, Manso called and stated that he would appreciate
it if Lanzano would call a certain Board field examiner in
Region 13 to explain that Manso was taking him back with
full seniority. Manso reiterated that Lanzano realized that he
had to resign from the Union. Lanzano said that he did.
However, there was no way he could tell the field examiner
what Manso wanted him to tell him. He asked if Manso had
called Yracheta and told him that that was what he had to
do. Manso replied that he had been trying to reach Yracheta,
had not been successful, but was going to try calling imme-
diately thereafter.
Lanzano testified that, after that conversation, he decided
that he was not going to return to work because Manso had
been underhanded with him on the telephone. Lanzano relat-
ed that even after he received the above-described May 21
letter offering him employment with no requirement that he
resign from the Union, the second conversation with Manso
had affected his decision as to whether to return. Lanzano,
similarly, did not contact Manso about returning to work
after receiving the above August 20 letter.
Yracheta’s conversations with Manso after the start of the
strike related principally to Yracheta’s efforts to obtain his
401(k) pension moneys and were described above. During
these conversations, as noted, Manso asked if Yracheta had
decided whether he was going to come to work for him, em-
phasizing that if Yracheta worked for him, he would have to
resign from the Union. Yracheta replied that he understood
this.
Accordingly, when Yracheta received Manso’s above May
21 letter, he did not return in spite of the reassurances con-
tained therein.
Hornbaker, too, testified that he did not go back to work
after receiving the May 21 letter and its enclosure because
he did not want to do so without a contract. Although he be-
lieved the statement in the letter that he would not have to
resign from the Union to return, it did not make sense for
him to work without the Union. If he did not resign his
membership, he risked that the Union would fine him. If he
did go back to work without a contract and had any prob-
lems, the Union could not help him and he also would not
receive any union-associated benefits. Accordingly, because
it did not make sense to remain in the Union without a con-
tract while working for the Respondent, he might as well
have resigned his membership, which he did not want to do.
However, from conversation with Manso, he likewise under-
stood that in order to work for the Respondent, he had to re-
sign from the Union.
Burke testified that he did not return to work after receiv-
ing Manso’s May 21 letter and its enclosure because, at the
time, he had spoken to Yracheta and Lanzano, both of
whom, after deciding to return to work, had been told that
they still would have to resign from the Union. Accordingly,
from his conversations with Yracheta and Lanzano, Burke
did not believe the statement in Manso’s May 21 letter that
his job rights would not be affected by his continued union
membership. However, Burke did not speak to Manso,
Richied, or any other company official as to whether he
could return while still a union member.
For like reasons, Burke, after receiving similar assurances
in Manso’s August 21 letter, did not thereafter contact
Manso or any other member of management as to whether
he could return to work while retaining his membership in
the Union.
Manso testified that he first knew that his employees had
accused him of requiring them to resign from the Union in
order to work for the Respondent was after May 15 when
the charge was filed with the National Labor Relations
Board. After checking with his attorney, he sent out the
above May 21 letter to all employees who had left work after
the March 22 meeting. Manso has denied throughout this
proceeding that any such conditions for continued employ-
ment had been imposed on the Respondent’s employees.
Manso related that, on May 8, approximately a month after
their last conversation concerning the 401(k) pension plan,
Yracheta again called him. Yracheta stated that he was with
Lanzano and Martinez, asked if all three could come back
to work and, if they did, would they retain their seniority and
also get to drive the trucks that they wanted. Manso said, of
course, that this was great and asked when they wanted to
come back. Yracheta suggested the next day but then put
Manso on hold. When Yracheta returned to the phone, he
told Manso that Lanzano had said to him that he could not
come back on the following day because of personal business
and that Martinez was working somewhere and could not be
back to work until the following Monday, May 14. Manso
reiterated that this was good news and offered to meet
Yracheta the next morning so that he would not feel uncom-
fortable coming in at Franklin Park. Yracheta agreed to this.
Nothing was said about the men resigning from the Union—
a matter that never came up.
The next morning, Manso went to Franklin Park to meet
Yracheta, stopping for coffee at a restaurant adjacent to the
Respondent’s warehouse. There, he encountered Yracheta
who, seated in his car, called to Manso. When Manso walked
to Yracheta’s car, he saw that Yracheta looked unshaved and
terrible. Manso asked what was the matter. Yracheta said that
he had had a change of mind and was not going to come
in; he could not. He said that he had to stick this out because
529REEBIE STORAGE & MOVING CO.
43 As noted, the contract provided for union security.
he had promised the Union that he would. Manso observed
that this was making Yracheta sick, that he looked terrible,
and that Yracheta had to get his life together. Manso hoped
he did so no matter which way he went. Manso always
would be his friend. Yracheta thanked him and said that he
appreciated this. Manso, as he left, told Yracheta that if he
ever needed to talk, he should just give Manso a call.
Manso testified that, either late that day or the following
afternoon, he called Lanzano whom he was supposed to meet
the following day. He explained that he had not wanted to
travel to Franklin Park if Lanzano, like Yracheta, should
change his mind.
Lanzano, when Manso called, announced that he, too, had
had a change of heart and would not be coming in the fol-
lowing day. When Manso asked what was the matter,
Lanzano told him that after he found out what Lanzano had
said against him in statements to the Labor Board, Manso
would find a reason to eventually fire him; that Manso would
hold a grudge. Manso replied that he did not know what
Lanzano had done or what he had signed, but he did under-
stand that, in situations such as this, people said things they
did not mean. He said he hoped that he never would hold
that against Lanzano and that he would love to have him
back.
Lanzano asked why things had had to go this far. They
then talked about the contract and the things that Manso
wanted to do, some of the things that the Company was im-
plementing. Manso told Lanzano that the men seemed happy
about them.
Lanzano stated that he needed certain guarantees for things
that the Union was doing. Lanzano, for example, required
dental work. Manso replied that the health and welfare pro-
gram that Lanzano had had with the Union was far better
than the Company’s. He never had denied this. The company
plan was good, but not as good as what Lanzano had had,
but was something that the Company could afford.
The two men discussed their differences at length on the
telephone. Lanzano acknowledged knowing that the Compa-
ny’s business was down and that it was making these
changes so that the Respondent could survive. Manso also
understood what Lanzano was after. As the conversation
ended, both men wished each other luck. Nothing had been
said by either party about Lanzano resigning from the Union.
Manso related that he had given testimony at an unem-
ployment compensation hearing on July 20. Shortly after that
hearing, Mocerino called him at home, telling told Manso
that until the unemployment hearing, he never really knew
that Manso was sincere in wanting to take everyone back to
work. Mocerino apologized that Yracheta, Wade, and Burke
had lied at the unemployment hearing and told Manso that
he wanted to come back to work. Manso told him that that
was great and asked when he wanted to come back.
Mocerino asked Manso to let him get it together, to take a
few days. He promised to call Manso. During that conversa-
tion, nothing was said about a need to resign from the Union.
Mocerino, however, did not call Manso again until Octo-
ber 10 when he reached Manso in his office. Mocerino told
Manso that he was working for another employer, no longer
was picketing, had not been picketing at the Respondent for
a while. He again stated that he wanted to come back to
work at Reebie, because he had no seniority where he
worked. Manso told him that that was fine. Mocerino, how-
ever, stated that he did not want to come back to work at
the Respondent while the pickets were up and wanted to wait
until the picketing had ended. He then asked if he could
come back to work. Manso replied that he did not know
when that day was going to come. The Union could picket
for 3 years and he could not keep an open date for him for-
ever. Manso did not know what the employees were going
to do. He stated that Mocerino could come back to work
right then, but as far as the future, he did not know of how
long a period they were speaking. Mocerino replied that he
was afraid to return to work right then because of possible
union reprisals to himself or his family. Manso told
Mocerino that he would have to make up his own mind and,
when he did, he should let Manso know. He was welcome
back.
Manso denied having spoken to Burke, Hornbaker, or
Martinez about returning to work.
Manso testified that none of the employees had been re-
placed by the date of the hearing and that he would take
back any who wanted to return.
10. The ‘‘members only’’ application of the
labor agreement
The record sustains the testimony of Wade, Yracheta,
Mocerino, and Lanzano that there were substantial numbers
of the Respondent’s Franklin Park employees performing
bargaining unit work from the Franklin Park facility on
steady, regular bases for periods of years without their be-
coming members of the Union or being included under the
coverage of the collective-bargaining agreement.43 From the
undisputed evidence, I find that as of March 21 such cov-
erage and attendant contract benefits, including the health
and welfare and the pension plans available under the labor
agreement had been extended to only the 12 of the Respond-
ent’s roughly 30 relevant employees who were members of
the Union. In fact, the parties stipulated that from November
1989 through March 1990, the Respondent had made month-
ly contributions to the Union’s health and welfare fund on
behalf of the same 12 employees each month, although the
record shows that, during that period, substantially larger
numbers of employees were employed who, because ex-
cluded from the agreement, received less than the contractual
pay rates and were not eligible for the health, welfare, and
pension plans and other job benefits provided in that agree-
ment. It also is clear that the Union’s above-described unsuc-
cessful efforts, commencing February 6, to obtain informa-
tion from the Respondent concerning the names, addresses,
rates of pay, and hours worked per day for all employees
performing any movers work was related to the Union’s be-
lated desire to identify employees doing unit work who
might be eligible for coverage under the labor agreement but
who had not been included.
The General Counsel and the Union argue that the Re-
spondent’s asserted unilateral failure and/or refusal to apply
the collective-bargaining agreement in its entirety to all regu-
lar employees performing unit work and to have them placed
within the Union, as specified in the contractual union-secu-
rity clause, was violative of Section 8(a)(1), (3), and (5) and
Section 8(d) of the Act. These parties argue that the Re-
spondent, to save costs mandated by the contract, years be-
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fore had threatened certain employees who tried to join the
Union and had managed, by such threats and other means,
to limit union membership and avoid wider application of the
contract.
The Respondent, although conceding that economic con-
cerns were a basis for limiting its application of the labor
agreement, denies that it had threatened employees to keep
them from joining the Union. Rather, the Respondent con-
tends that Manso and Union Secretary-Treasurer Ligurotis
had entered into a private oral and long-applied understand-
ing that the Respondent would not be required to place all
of its moving employees in the Union or under the coverage
of the contract and that this understanding was consistent
with industry practice in the Chicago area. Accordingly, the
Respondent asserts that other industry employers in the area
also had been exempted from providing labor agreement cov-
erage for all of their relevant employees also because of the
prohibitive costs of compliance, and that the Union ended its
long tolerance of the Company’s practices in this regard only
in March, when negotiations for a new separate contract with
the Respondent, to replace the Association agreement, under
which the Respondent had been bound, had reached impasse.
The Respondent argues that the Union, in staging the strike
on March 22, 1 day after the impasse, had contrived allega-
tions that the Respondent had caused and prolonged the
strike by making employment contingent on resignation from
the Union and that the Respondent had threatened to dis-
charge anyone who joined in a strike, in order to elevate the
status of participating employees from economic strikers to
that of unfair labor practice strikers and unlawfully termi-
nated dischargees, and to pressure the Respondent into mak-
ing further bargaining concessions.
Lanzano, who first had become employed by the Respond-
ent in February 1981, did not become a member of the
Union until April 1987. He testified that toward the end of
March 1987, he went to Richied’s Chicago office where he
spoke to him about getting into the Union, telling Richied
that he did not have any hospitalization. Lanzano’s wages
had just dropped from scale to a lesser sum and that there
was no way he could afford to pay the $250 a month for
the Company’s insurance. He asked if Richied could give
him company insurance. Richied replied that he could not do
that. Lanzano asked what if he went to join the Union? He
had to have this coverage; he had a baby coming. Richied
replied that if Lanzano went to the Union, he would have no
work there. Richied pointed to the door and told Lanzano to
get out, that he had no work there. Lanzano, who was not
terminated during this incident, joined the Union during the
following month.
Shortly after Lanzano joined the Union, Manso called him
into his office. Lanzano related that Manso told him that he
never would forgive Lanzano for going over his head and
going to the Union. He asked why Lanzano had done this.
Lanzano told him that he had done so because he felt that
Manso was pushing him out of the Company by dropping his
wages and by not providing health and welfare when he had
bought his home. He reminded Manso that he knew that
Lanzano had a baby on the way. Manso reiterated that he
would never forgive Lanzano and told Lanzano that as far
as getting rid of him was concerned, if he really had wanted
to get rid of him, Lanzano would have been in a trunk right
then. Another way in which he could have gotten rid of
Lanzano, with the Union right behind him, would have been
to set Lanzano up as a thief in somebody’s home. Manso,
however, did not do any of those things and Lanzano contin-
ued his employment with the Respondent for the next 3
years.
Hornbaker testified that although he first was employed by
the Respondent in 1984, he did not become a member of the
Union until around 1988. However, in January 1987, when
the preceding contract was expiring, he did attempt to get
into the Union. He went to the union hall, surrendered his
withdrawal card and was given a card, with instructions to
fill it out and to turn it in to his employer. Accordingly,
Hornbaker completed the card and gave it to Richied who
told him that he would have to see Manso.
On the following day, Manso called Hornbaker into his of-
fice before the start of work where he met with both Manso
and Richied. The company officials asked why Hornbaker
wanted to join the Union and to turn in his withdrawal card.
Hornbaker replied that he did not want to lose any benefits.
He already had been working for the Respondent long
enough without retirement moneys being paid into his pen-
sion fund, and he did not want to lose any more. The man-
agement representatives told Hornbaker that the men who
were in the Union probably were going on strike and that
Manso was not going to sign a contract. If Hornbaker wanted
to join the Union and to go on strike with the men, he would
be fired. Manso stated that Hornbaker would not have a job
there any more. Accordingly, Hornbaker was given the
choice of staying with the Company and working or of re-
signing and going out to join the men. Hornbaker chose to
stay, because he did not want to be fired.
However, although the employees did go on strike in
1987, as Manso had anticipated, to Hornbaker’s knowledge,
none were fired. When, in 1988, Hornbaker did join the
Union, he was placed in membership by Richied, who gave
him a union card and told him to fill it out; he was going
to put Hornbaker in the Union. From that point on,
Hornbaker received the contract benefits, including health
and welfare contributions.
As Manso recalled his 1987 conversation with Lanzano
after Lanzano had joined the Union, he asked why Lanzano
had gone to the Union without first coming to him. Lanzano
replied that he had wanted hospitalization for his family.
Manso said that he understood this but asked again why
Lanzano had not come to see him first. That was the extent
of their conversation. Manso explained that it was normal
practice when the Respondent was going to add an employee
under the contract, that the employee come to him first. He
denied having threatened Lanzano at any time during that
conversation.
Manso did not recall the specific 1987 conversation testi-
fied to by Hornbaker, but related that he had spoken to
Hornbaker many times. He testified that at no time had he
threatened Hornbaker with adverse action should he join the
Union. He never has discharged or disciplined any employee
for having joined the Union and never had a grievance or un-
fair labor practice matter, except for the present case, based
on allegations that Manso had fired or disciplined an em-
ployee for having joined the Union. Likewise, no grievance
ever was filed to protest the Respondent’s conduct in not ap-
plying the labor contract terms to all its moving employees.
531REEBIE STORAGE & MOVING CO.
44 Martinez explained unconvincingly that he did not have this in-
formation because Dicks passed away in January. However, Dicks
apparently had remained on the job for approximately 6 of the 9
months between the time Martinez had signed the card and the time
he became an active union member.
45 The employees on the Respondent’s seniority list as of March
1, as shown in the Respondent’s proposal, were Edmund Burke, El-
bert Wade, John Yracheta, John Haran, William Frazier, Michael
Salazar Sr., Gary Hornbaker, Sandro Lanzano, Michael Mocerino,
Dominic Salemi, McKinley Jordan, and Curtis Kelly. It has been
found above that Salemi, as Franklin Park facilities manager, was a
supervisor and agent within the meaning of the Act. Although the
status and activities of the other employees in this group are de-
scribed here, the record contains no further reference to Kelly and
Frazier.
46 Manso clarified that, in 1971–1974 when he served as an extra
helper for Heberd, he had worked only on special jobs and on week-
ends, moving household items, as opposed to commercial. However,
Continued
Richied’s denials concerning his attributed 1987 conversa-
tion with Lanzano were more general. He did not recall
Lanzano having come to his office in March of that year to
tell him that he wanted union pay scale and union insurance.
Richied had had several conversations with Lanzano about
joining the Union but, if Lanzano had come to him on a
union matter, he would have referred him to Manso. Richied
did not recall whether, in early 1987, he had told Lanzano
that if he went to the Union, he would have no work with
the Respondent.
In July 1989, as noted, Mocerino advised Union Officials
Rzewnicki and the late William Dicks that there were a num-
ber of Respondent’s employees who wished to be in the
Union. During that month, Rzewnicki and Dicks together
went to the Respondent’s Franklin Park facility where they
signed up about 20 to 25 employees as union members. As
also noted, Martinez was one of the employees who then re-
ceived a union authorization card from Dicks. Martinez relat-
ed that when Dicks gave him the card, he asked how long
he had been employed. When Martinez told him that he had
worked for the Respondent since 1985, Dicks asked how
come union dues had not been taken from his check. Mar-
tinez replied that he did not know. Dicks told Martinez that
the Company had informed him that Martinez was part-time
help. Martinez, however, did not begin to pay union dues
until after he had joined the strike in late March. He did not
know the status of his union membership during the 9
months between the time he had signed the union card for
Dicks and the time he became an active union member on
his own initiative.44 Although, as described by Rzewnicki, 20
to 25 employees signed union authorization cards in July
1989, this did not increase the number of Respondent’s em-
ployees who became union members or who were brought
under the coverage of the collective-bargaining agreement.
Mocerino credibly testified that of the Respondent’s ap-
proximately 30 employees, there were 12 employees who
were union members, all of whom were regular, full-time
employees. Of the remaining employees, about five to seven
were on-call employees, called specifically to work at certain
jobs. These employees had no set hours or days but just
came to work as called. The remaining employees were regu-
lar full-time workers who performed unit work. Mocerino re-
lated that of the employees who signed to join the Union in
July 1989, during the visit of Dicks and Rzewnicki, only a
small number had been on-call workers.
Manso testified that from 1976 until his January death,
Union Business Representative Dicks would stop by to see
him about every 3 months, asking how things were going in
general, how many men were working and, from time to
time, if Manso would put another man into the Union, which
Manso would do.
Manso related that around May or June 1989, when Dicks
visited Manso at his Chicago office, having just come from
the Franklin Park facility, Dicks had told Manso that a lot
of people were working and that a number of them wanted
to join the Union. Manso replied that he could not put all
of those men into the Union, it would murder him and crip-
ple his business. Dicks then said, ‘‘Give me one guy.’’ When
Manso asked whom he wanted, Dicks mentioned Ken
Heathcott. Dicks stated that Heathcott was a nice guy and he
wanted to put him in. Manso asked what Dicks wanted him
to do and was told Dicks would have Heathcott call him.
About a week later, Manso called Dicks to report that no-
body had called. Dicks told Manso to leave matters alone.
If Heathcott contacted him, Dicks would contact Manso.
Nothing further was done.
The Union noted that during the most recent round of con-
tract negotiations, which ended on March 21, the Respond-
ent, on February 26 and March 21, respectively, had given
the Union two comprehensive sets of contract proposals. The
Respondent’s ‘‘final proposal for 1990 collective bargaining
agreement,’’ prepared March 15, was given to the Union on
March 21. In these proposals, the Respondent proposed to
limit the benefits of the contract to a group of nine named
‘‘steady’’ employees whose identities were appended to the
proposal45 and proposed that any other employee who, dur-
ing the preceding 2 calendar years, had been actively at work
during at least 45 weeks in each of the said 2 years could
be deemed a ‘‘steady employee’’ unless and until thereafter
laid off for more than 12 consecutive months.
Manso testified that, during these negotiations, the Com-
pany, had sought to protect nonunion employees who had
worked steadily during the 2 preceding calendar years, as de-
fined in its proposal, although the Union wanted to protect
the 12 ‘‘core’’ employees, safeguarding the benefits that they
had enjoyed under the expiring Association contract and to
ensure that those employees would continue to work under
contract terms that were different from Respondent’s other
nonunion and future employees.
Manso testified as to his industry experience in this regard.
Manso, who had started as a truckdriver in the cartage indus-
try in 1968, had become a truckdriver in the moving industry
in 1970, in which year he had begun to work for Leo Licata
at Licata Moving & Storage Co., Inc. Manso, during the past
20 years, also had worked for other moving companies in
Chicago, specifically Heberd Moving and Storage Company
(currently Heberd Porter), which then recognized the Union.
During 1971 through 1974, he did extra work at Federal
Moving & Storage, as well as Heberd, working for both
companies as an extra helper. Although Heberd was under
contract with Local 705, Manso did not know Federal’s
union status at the time.
On the jobs he had worked for Heberd, the employees
who worked on moving assignments were approximately 75
percent nonunion and 25 percent union.46
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Heberd’s general manager, a friend, had told Manso that 75 percent
of the employees in his barn were nonunion.
47 Rudolf, president for 13 years of the George W. Knous Moving
& Storage, Inc., as noted, testified as current president of the Mov-
ing Association of Greater Chicago. On behalf of the Association,
Rudolf has engaged in coordinated bargaining with the Union on be-
half of various member companies.
48 Rudolf defined seniority list, or seniority, employees as those
who paid union dues and who were listed by seniority from dates
of hire. Rudolf’s Knous Company posted a ‘‘sign-up sheet,’’each
workday for its union-member employees and deducted their dues,
transmitting them to the Union. Seniority list employees regularly
worked 5 days a week and were guaranteed 8 workhours a day. Al-
though seniority list employees usually worked for Rudolf’s com-
pany 12 months per year, it was unusual for nonseniority employees
to do so. Pay for seniority employees could vary from higher to
lower than the contract rate paid to seniority list employees, depend-
ing on the individual’s skill levels. Most of the time, however, non-
seniority employees were paid less than the seniority employees.
49 Rudolf explained that in the Chicago-area moving industry the
term ‘‘contractor’’ had a dual meaning. In one, more traditional,
sense, the term referred to companies who performed services with-
out supervision, and, in that geographic area, it was the generally ac-
cepted trade practice for many companies to hire outside contractors
to do packing. The alternative definition and, as used at Knous, re-
lated to nonseniority personnel.
In 1970, when Manso began his employment with Licata,
of the 25 to 30 employees, about 4 were union members
served by Business Agent Peter Janapoulis. Licata’s prin-
cipals acquired the Respondent, Reebie, in October 1974, at
which time Manso moved to Reebie as general manager. Of
the approximately 20 to 30 Respondent’s employees at the
time, approximately 7 were union members.
Since Manso became the Respondent’s general manager in
1974, no grievances ever were filed seeking to require that
the larger numbers of unrepresented moving employees be
covered by the collective-bargaining agreement or join the
Union. In fact, there were no grievances for any reason.
Manso affirmed that any such grievances would have been
filed with him.
The Letter of Understanding between the Respondent and
the Union, supplementing the 1987–1990 Association con-
tract, was the closest written accord between those parties to
address the disparity between the broad language of the
union-security clause and the lesser number of employees
covered by the agreement. As noted, this Letter of Under-
standing provided that when the Respondent employed no
more than 15 employees and engaged solely in commercial
moves, the Respondent could have a different pay rate for
newly hired employees and enjoy certain other relief from
the more stringent requirements of the Association contract.
However, it is clear that while, during the term of the Asso-
ciation contract, the Respondent performed household moves
as well as commercial, and employed many more than 15
employees, the Union did not terminate that document.
Manso’s testimony concerning his experiences at Heberd
was corroborated by John Haran, a Respondent’s driver who,
as noted, was Manso’s former brother-in-law and who had
been in and out of union membership during the preceding
12 years. Haran testified that as a Respondent’s longtime em-
ployee, he concurrently had had additional earnings from
Heberd from 1978 until about 1981 during periods when
work at the Respondent was slow. As the household moving
industry was seasonal, movers went from one company to
another to fill in their workweek.
Haran testified that from about 45 to 50 percent of the
roughly 50 Heberd moving employees were nonunion.
Heberd’s total numbers would go down to about 15 when
that Company was not engaged in moving voting machines,
an activity area in which Haran worked. About half of the
15 core employees were nonunion. Haran related that all em-
ployees who moved voting machines, including Haran at the
time, were union members. However, in less regulated work
such as household and commercial moving, the number of
union members were less.
Randall B. Rudolf47 described the experiences of his com-
pany and of other members of the Association with respect
to the application of the Association contract to all moving
employees employed by his Company and other subscribing
employers. Rudolf related that during the preceding 3 years,
his company, the George W. Knous Moving & Storage, Inc.,
employed an averaged total of between 50 to 60 employees.
The average number of seniority list, or union, employees
was between 35 to 50. He testified that it had not been the
industry’s custom and practice to have all employees covered
under the collective-bargaining agreement with the Union.
Rather, the practice had been to maintain a regular list of se-
niority employees and then to have nonregular casual em-
ployees supplement the work force when there was an in-
crease in the workload.
Rudolf explained that, in recent years, competition within
the industry proliferated because of the Deregulation Act of
1980. This was further expanded in 1984 so that it became
much easier than before for new competitors to enter the
field. These new competitors, all of which, in the Chicago
area were nonunion, created a situation where the only way
for unionized companies to survive was to hire lower cost
nonunion labor—a practice pretty much followed.
Rudolf identified a May 18, 1987 letter from Ligurotis to
Paul Anderson of Jackson Storage & Van Co., Naperville, Il-
linois. This letter, described in its terms as confidential, was
known as the ‘‘Jackson addendum.’’ Although applicable
solely to Jackson Storage, the Union in that document pro-
vided Jackson Storage with latitude in the use of nonunion
personnel. In relevant part, the Jackson addendum provided
as follows:
Re: 1987–1990 Labor Agreement
. . . .
At our meetings we have discussed that the company
has a four man seniority list48 and has in the past used
employees, subcontractors and independent contrac-
tors49 to perform bargaining unit work when these four
individuals are working or otherwise unavailable and
that such established past practice has not been pro-
tested by the employees. I also understand that the
practice of using nonunit personnel, subcontractors and
independent contractors has been most prevalent in
household goods. From these discussions it is also my
understanding that Jackson is not willing to accept the
1–15–87 to 3–15–90 Agreement negotiated between the
Movers Association of Greater Chicago and Local 705
without substantial changes. Based on this past practice
533REEBIE STORAGE & MOVING CO.
50 The specification that the letter-agreement, which provided Jack-
son with significant relief from the terms of the Association contract,
should be kept private and confidential, apparently was designed to
evade the ‘‘most favored nation’’ clause of the Association contract.
51 The above preamble to the Jackson addendum also validated
that Employer’s practice of keeping only four employees under the
contract in part because it had not been protested by other employ-
ees.
52 Rudolf explained that local work could be both household and
commercial work, any work that did not go out of state.
it is also my understanding that Jackson and Local 705
have reached the following agreements:
1.) Jackson will accept the 1–15–87 to 3–15–90
Agreement between Local 705 and the Movers Associa-
tion of Greater Chicago as an independent (non associa-
tion member) company with the modifications, excep-
tions and additional agreements set forth in this letter.
2.) The Agreement will apply to the four current se-
niority employees and any seniority employees added
pursuant to paragraph 5 below. These employees shall
receive the negotiated wage increases and contributions
shall be made on their behalf to the Health & Welfare
and Pension Plans as set forth in the Agreement when-
ever they perform work in the classifications listed in
Article 4 of the Agreement.
3.) When seniority employees are offered fulltime
work (40 hours per week) or are otherwise unavailable
because of absence or lawful termination, Jackson may
utilize independent contractors, subcontractors or
nonunit employees to perform any and all work. Noth-
ing in the agreement shall apply to restrict or limit the
utilization of such persons and, if employees are uti-
lized, no part of the Agreement shall apply to them and
they shall not be considered employees under the
Agreement for any purpose.
4.) Jackson agrees that on commercial moving work
located in the loop area of the City of Chicago that it
will: (a) give preference to experienced industry em-
ployees and members of Local 705; (b) request Local
705 to refer applicants pursuant to art. 2, sec. C before
utilizing nonunit personnel, independent contractors or
subcontractors to perform such moving work; (c) pay
all helpers and chauffeurs working on such moves the
then applicable hourly rate under art. 4; and (d) pay any
contribution to the 705 Health and Welfare Fund that
may be required by art. 5 for the hours worked on such
moves.
5.) An employee who works for Jackson on a
fulltime basis performing commercial moving work
(other than at nights and weekends) for six continuous
months or for a total of twelve months in an eighteen
month period shall be considered a seniority employee.
An employee will be considered fulltime only in those
months in which he or she actually works at least 140
hours on commercial moving work. Hours worked on
household moving shall not be counted to determine
fulltime status. [Emphasis added.]
6.) No grievance against Jackson shall be taken to
the Joint Grievance Committee, unless I have person-
ally met with the company in a good faith effort to re-
solve the grievance.
7.) That the modifications, exceptions and additional
agreements set forth in this letter displace any incon-
sistent or contrary provisions in the agreement and that
in any dispute, disagreement or matter arising under the
Agreement this letter-agreement shall be recognized and
given full effect.
8.) That this letter-agreement, though binding on
both the union and the employer is a private agreement
which both Local 705 and Jackson agrees to keep con-
fidential and not to disclose to other moving companies
or employers.50
Rudolf testified that the practice at his company, in effect,
was similar to procedures outlined in the above Jackson ad-
dendum. Nonunion casual employees received the first op-
portunity to sign up for available work. However, if there
was overflow work, then the Union had allowed the com-
pany to get the job done as best it could. Overflow work not
signed for by seniority list personnel was given to ‘‘contrac-
tors.’’ Nonunion casual employees worked while the job for
which they had been hired was in progress and left when it
ended. This was true even if the casual employee worked 5
days a week, 8 hours a day for a year. Anyone could be a
casual nonunion employee at the Company’s option. It was
the Employer who provided the definition. The employment
period under these terms could exceed 3 years without the
Employer becoming a member of the Union if the Company
chose not to put the employee in the Union. However, should
an employee complain, then Rudolf might be obliged to
change his status,51 a situation which had occurred once at
his company. As noted, casual employees were not paid the
wages called for in the contract and did not receive union
health, welfare, and pension benefits.
Rudolf explained that, under the existing procedures, as
agreed to by Ligurotis when the parties signed the Associa-
tion’s 1987–1990 agreement, as long as the men did not
complain, Knous could have any number of men who could
work 5 days a week, 8 hours a day, forever, and remain cas-
uals as long as their full-time unionmen were working and
as long as the workers did not complain. Should there be a
complaint, the business agent would arrive and they would
examine the employees’ numbers of actual workdays. If there
was disagreement, it was up to the company and business
agent to resolve the problem.
Rudolf traced this understanding to a meeting he had had
with Ligurotis and Rzewnicki in 1987 when the parties were
negotiating the Association contract that became effective
that year. Other management representatives also were
present. At that meeting, Rudolf outlined his company’s
practice of putting out signup sheets for unionmen. If no
unionmen, or only two, signed up, the Company automati-
cally filled its work force with nonunion people. Rudolf testi-
fied that Ligurotis replied at the conclusion of what had been
a long hard night of bargaining, ‘‘Look guys, we all know
that you use ‘contractors’ to do local work and as long as
your men don’t complain, you can continue to do that.’’52
The only followup conversation occurred about a year and
a half after the signing of the 1987 contract at a session at-
tended by Rudolf, Bob Knous, Ligurotis, and Rzewnicki. The
meeting concerned the issue of whether unionmen should be
required to take overtime as opposed to allowing them to
sign up for it voluntarily. The Company, where no unionmen
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
53 Munroe, chief executive officer of Pickens-Kane for the preced-
ing 2 years, had been with that company for about 21 years, working
his way up from mover, driver, and warehouseman through to the
vice presidency of operations before assuming control.
had signed up, wanted to supplement its work force by using
nonunion personnel. Ligurotis had stated on that occasion
that if that was the practice that Knous had been employing
and it worked, and the men were not complaining, why
should it change? At Knous, contractors had been used not
just to do packing, but to do all overflow work, including
packing, office moving, local moving, whatever work was re-
quired.
Rzewnicki’s definitions of casual and regular employees
differed from those provided by Rudolf. As described by
Rzewnicki, casual employees were used basically on large
commercial jobs during the peak season of May through Oc-
tober, or on any prolonged job. They also might be used for
short-term jobs such as to move voting machines during the
weeks before and/or after the election. Casual employees re-
ceived no benefits as long as they were paid according to
whatever the contract required at the time. If a casual em-
ployee was dispatched for 1 to 3 days a week during con-
secutive weeks, after a 31-day period, they were to become
union members. Rzewnicki further explained that if an em-
ployer called an employee sporadically on Monday one
week, on Tuesday another week, and perhaps on a Monday
during the following month, should the company deal di-
rectly with the employee and not come to the hall for extra
help, and should the employee be released after the job or
the particular day was over, the employee would be consid-
ered as a regular employee reporting at the time the company
designated him to come in.
Regular employees, according to Rzewnicki, were dis-
patched by the Company without resort to the hall when
work was available in a seniority position. Regular employ-
ees, covered by the terms of the collective-bargaining agree-
ment, received health, welfare, and pension benefits.
Rzewnicki testified that the Jackson addendum was drawn
during the negotiations for the 1987–1990 contract. The
Knous Company, headed by Rudolf, had another Letter of
Understanding with the Union that was altogether different
from the Jackson agreement. Although the terms of those un-
derstandings varied from those available under the contract,
the variance was in a particular field only. These understand-
ings had come into being because Ligurotis, during the
1987–1990 negotiations, had stated that anyone who had a
particular problem could talk to him and see if something
could be worked out. Rzewnicki did not recall Ligurotis hav-
ing made a statement to the effect that as long as the men
were not complaining about contract terms, the employers
did not need to enforce the contract.
After the 1987–1990 Association contract was signed,
Rzewnicki, pursuant to Ligurotis’ instructions to him and to
the other business agents, worked to see that the contract was
enforced. According to Rzewnicki, Ligurotis had instructed
the business agents only to see that the contract was fol-
lowed.
In this regard, during the term of that agreement,
Rzewnicki had checked the ‘‘barns’’ to determine whether
employers were living up to the contract and had found sev-
eral occasions where (unidentified) employers were not.
When this was brought to his attention, he met with relevant
company officials. When matters could not be handled by a
telephone call, they were followed by the grievance proce-
dure. Not all instances were documented. The majority of
complaints were settled informally. Rzewnicki gave as an ex-
ample his discovery that Boyer-Rosen, one of the larger
moving companies, had received grievances which were set-
tled at the barn level. He testified that in his 40 years’ expe-
rience in the industry, both as an employee and business
agent, that there had been no industry practice that would
permit a company to keep as regular union employees only
a certain percentage of the total number of moving employ-
ees and to restrict coverage under the collective-bargaining
agreement to that small group. He also denied that, on some
past occasions, he had asked for more people to be included
on the seniority list than Boyer-Rosen would agree to and
that that Company and the Union had reached compromise.
Rzewnicki’s testimony was supported by Michael Munroe,
chief executive officer of Picken-Kane, perhaps the largest
company in the Chicago area engaged in local commercial
moving.53 Munroe related that his company had had collec-
tive-bargaining agreements with the Union since the early
1950s and that, like the Respondent, Rzewnicki served as the
employees’ current business representative, having replaced
Dicks. Munroe, as a signatory of the Association contract
with the Union, testified that all 46 Pickens-Kane employees
in job categories covered under that agreement were mem-
bers of the Union and were governed by the terms of that
contract. Munroe testified that although Dicks was the busi-
ness agent for Local 705, all regular employees performing
bargaining unit work, without exception, were covered by the
collective-bargaining agreement. However, from time to time,
his company employed part-time labor, mostly on weekends.
Dicks would check once each week to see how many hours
the men worked and then the employees would go into the
Union, in accordance with the contract.
B. Credibility, Discussion, and Conclusions
As the parties have noted, the determination in this matter
turns principally on resolutions of credibility. The first basic
issue in this regard is whether, as the General Counsel and
the Union contend, the Respondent unilaterally has unlaw-
fully failed to apply the terms of the Association contract to
all its eligible moving employees or whether, as the Re-
spondent argues, it brought only some of its employees into
union membership and under the coverage of the 1987–1990
Association agreement in accordance with a private 1987 un-
derstanding to that effect between Ligurotis and Manso. It is
asserted that the existence of such a mutually agreed ‘‘mem-
bers only’’ arrangement was corroborated, in part, by the
January 1987 Letter of Understanding between the Respond-
ent and the Union providing the Respondent with some relief
from the terms of the concurrent Association contract; by the
Union’s prolonged acceptance of the Respondent’s selective
application of the agreement to its employees, as evidenced
by the Union’s failure to grieve or otherwise protest the Re-
spondent’s practices; and by the related experiences of other
Chicago-area employees in the moving industry who also
were given latitude to deviate from the terms of the Associa-
tion agreement.
In considering what actually had been going on before the
critical dates of March 21–22, it is undisputed that the Re-
535REEBIE STORAGE & MOVING CO.
54 Rudolf explained that, as used in the industry and at his com-
pany, the term ‘‘subcontractors’’ also referred to nonseniority per-
sonnel.
spondent had openly pursued a practice of placing only 12
of its average size work force of 30–35 moving and ware-
house employees into union membership and under coverage
of the Association contract. Accordingly, only they, among
the Respondent’s employees, were union-represented and re-
ceived the higher wages, work guarantees, and superior bene-
fits there provided. In fact, 1 of the 12 covered employees,
Franklin Park Facilities Manager Salemi, was not an em-
ployee but a supervisor within the meaning of the Act.
Salemi’s status as such is not in dispute. I conclude that the
Union’s representatives were aware of the Respondent’s
practices in this regard during the term of the 1987–1990 As-
sociation contract because, as noted and as stipulated, from
November 1989 through March 1990, the Respondent had
made contributions to the Union’s health and welfare plan
for only those same 12 employees and because, as described
by Union Agent Rzewnicki, he regularly had visited the Re-
spondent’s premises and, presumptively having looked
should have seen that the Respondent’s operation was appre-
ciably larger than was represented by the Respondent’s mon-
etary remittances. The Respondent’s business, which in-
cluded both household and commercial moves, also went be-
yond what had been contemplated for contract relief in the
parties’ Letter of Understanding. Little was left to the
Union’s imagination concerning the Respondent’s practices
in this regard because, in July 1989, having been advised by
employee Mocerino that additional Respondent’s eligible em-
ployees were seeking union membership. Union Representa-
tives Rzewnicki and Dicks had gone to the Respondent’s
premises and had signed approximately 20–25 of its employ-
ees as new members. Nonetheless, as the above stipulation
indicated, through March 1990, remittances to the fund con-
tinued for only the same 12 employees with no changes to
reflect the increased membership, and no filed grievances or
other protest by the Union. Although there is a conflict in
the testimony of Manso and Rzewnicki concerning the
latter’s testimony that, during the February–March 1990 con-
tract negotiations, Rzewnicki had asked what had happened
to the new members signed up during the preceding July, I
accept Manso’s denial. If the Union, after detouring to sign
up 20–25 new members, did not inquire into their status until
at least 7 months had passed, it could well have waited even
longer.
Because Ligurotis was not called as a witness, I credit
Manso’s undisputed account of their January 1987 conversa-
tion which led to the Letter of Understanding and during
which Ligurotis specified that he did not expect the Re-
spondent to commit all its eligible employees to the Union,
but to merely include more employees should the Respond-
ent, in time, prosper. The Respondent’s prolonged ability to
withhold its employees from union membership and from
contract coverage further supported Manso’s testimony. I
likewise credit Manso’s undisputed account of his March 21,
1990 conversation with Ligurotis.
The Respondent’s experience in obtaining relief from the
Union by side-agreement from the strict terms of the 1987–
1990 Association contract was shared and even exceeded by
other Chicago-area employees in the moving industry, sup-
porting Manso’s testimony that, in his 20 years of employ-
ment in different capacities in the moving industry—at
Heberd, Licata, and with the Respondent—labor contracts
had not been applied to all unit-eligible employees. Rudolf,
current Association president and head of Knous, a moving
company, testified that it had not been that industry’s custom
and practice to have all employees covered under the collec-
tive-bargaining agreement with the Union, but to maintain a
list of regular seniority employees and then to have casual,
irregular employees supplement the work force when there
was an increase in the workload. Because of increased non-
union competition facilitated by legislation making it easier
to enter the moving business, a situation had been created
whereby unionized companies could survive only by hiring
less expensive nonunion labor. With the Union’s tacit con-
sent, this practice had been followed by Rudolf’s Knous
Company and by other employers in the industry whom Ru-
dolf has represented in his capacity as president of the Asso-
ciation. Accordingly, of the 50 to 60 employees that Knous
on average employed, only about 35 to 50 employees were
on the seniority list.
Rudolf, also without contradiction by Ligurotis, described
a private side-agreement reached by Knous with Ligurotis,
when the Association signed the 1987–1990 agreement, that
as long as the established seniority employees received pref-
erence for the available work and the men did not complain,
Knous forever could have any number of employees who
worked 5 days a week, 8 hours a day while remaining casual
employees were uncovered by the contract. It was up to the
Employer to decide.
Rudolf identified the Jackson addendum to the Association
agreement. There, in an understanding applicable only to
Jackson Storage, the Union, to overcome that Company’s
there-noted resistance to subscribing to the Association con-
tract without certain basic changes, agreed in writing that, in
exchange for Jackson’s acceptance of that agreement, that
employer could retain its existing seniority list of four em-
ployees. The addendum specified that when those four em-
ployees were working full time, Jackson Storage would be
free to utilize ‘‘independent contractors, subcontractors54 or
non-unit employees to perform any and all work,’’ and that
the contract would not limit or restrict the use of such per-
sons, or apply to them. Under that addendum, Jackson Stor-
age was required to give preference to union employees, to
seek referrals from the Union only for commercial moves
performed in the Chicago loop area, and to give union status
only to employees working full time on commercial moves
for 6 months, except for those working at nights and on
weekends. These were major limitations on the applicability
of the Association contract to Jackson Storage which agree-
ment, in broadly setting forth the employee classifications
covered, did not distinguish between employees who per-
formed household and those doing commercial moves, and
which did not limit the Union’s geographic jurisdiction sole-
ly to moves of any sort within the Chicago loop area. As
noted, the Jackson addendum also provided for confidential-
ity so that other Association employers might not learn of
and seek the easier terms of that accord under the ‘‘most fa-
vored nation’’ clause of the Association contract. Interest-
ingly, too, as noted, the preamble to the Jackson addendum
conformed to the 1987 private agreement between Knous and
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
55 In so concluding, I credit the testimony of Lanzano and
Hornbaker that, in 1987, they were threatened by the Respondent
when Lanzano had independently joined the Union and Hornbaker
had served notice that he wanted to do so. The testimony of these
employees concerning the events in question was precise and de-
tailed, although the denials by Richied and Manso were less specific.
Richied’s inability to recall whether he had told Lanzano in early
1987, that if he went to the Union, he would have no work with
the Respondent, was less than an absolute denial. Manso’s denial
that he had threatened Lanzano for joining the Union was made
against a background where he had kept Lanzano out of the Union
during his more than 6 years with the Company and had had a finan-
cial interest in continuing that arrangement. Moreover, after the
treatment that Lanzano had received from Richied when he told
Richied that he wanted to join the Union, Manso’s testimony that,
on that occasion, he only had asked why Lanzano had not come to
see him before going to the Union, does not resonate. As to
Hornbaker, Manso did not recall the specific conversation Hornbaker
had described and merely entered a general denial which I find less
convincing than Hornbaker’s precise account.
Although I do not condone the Respondent’s conduct toward
Lanzano and Hornbaker in those 1987 incidents, these events are not
remediable since they occurred well outside the 6 months’ limita-
tions period under Sec. 10(b) of the Act. Although the experiences
of these men show that the Respondent, in 1987, was not above ap-
plying unlawful pressure to certain of its employees to discourage
union membership, this does not overcome the more abundant evi-
dence that the Union had agreed to the Respondent’s practice of ex-
cluding most of its eligible employees from union membership and
coverage under the collective-bargaining agreement. Although the
Respondent’s 1987 conduct toward Lanzano and Hornbaker raises
suspicion that other of its employees also may have been coerced
at the time, Hornbaker and Lanzano were but 2 of an average work
force of 30–35, and suspicion is not tantamount to proof. Although
the clear purpose of this evidence was to support the testimony of
the General Counsel’s witnesses that Manso also had engaged in un-
lawful conduct as alleged in the complaint, for reasons to be dis-
cussed, I do not find this to be the case.
56 As noted, the parties were at impasse on health and welfare,
pensions, subcontracting, and the guaranteed workweek.
57 I. Bahcall Steel & Pipe, 287 NLRB 1257, 1262 (1988); L. W.
Le Fort Co., 290 NLRB 344 (1988).
58 Gulf States Mfg. v. NLRB, 704 F.2d 1390, 1393–1395 (5th Cir.
1983).
the Union that continuation of the permitted contract relief
would be contingent on other employees not complaining.
Although Munroe, principal officer of Pickens-Kane, one
of the larger movers in the Chicago area, testified that, since
the 1950s, when his Company had begun to contract with the
Union, all of Picken-Kane’s union-eligible employees had
been union members and that the terms of the Association
agreement had been strictly enforced, the scope of his testi-
mony which, unlike Rudolf and Manso, related only to his
own firm, merely established that not every company in the
Chicago area moving industry had obtained variances from
the Association contract.
However, noting that Ligurotis was not called to rebut the
evidence of the respective private 1987 agreements between
his union, the Respondent, and Knous; the Respondent’s long
tolerance of the Respondent’s failure to apply its contract to
all moving employees; the Union’s agreement to the written
Jackson addendum; and other considerations noted above, I
accept Manso’s testimony that the Respondent had not ap-
plied the terms of the Association agreement to all its eligi-
ble employees with the Union’s acquiescence.55
Manso’s credibility having been enhanced by the above
finding that he had the Union’s express and implied agree-
ment that the Respondent was not required to place all its
moving employees into the Union and under the labor con-
tract, he is more readily believable in the context of further
evidence, than was the opposing testimony of several striking
employees, united in interest, when he testified that on and
after March 22, he did not condition those employees’ con-
tinued employment on their resignation from the Union or
state that employees who engaged in a strike against the Re-
spondent would be discharged.
In this regard, it was only when matters came to a boil
in early 1990 as direct negotiations with the Respondent for
a contract independent of the Association agreement were
proving to be difficult, that the Union objected to the fact
that the Respondent had not been applying the contract to all
employees. The Union, only in February, had made its be-
lated request for information tending to identify unit-eligible
employees. By the time negotiations reached impasse on
March 21, the battle lines had been drawn. Manso was ready
to effectuate changes in employment terms, and the Union
and its adherents among the Respondent’s employees, as ear-
lier in 1987, were prepared to strike to protect existing pay
and benefits.56 It is not contended in this proceeding that,
during negotiations, the Respondent had bargained in bad
faith, that bona fide impasse had not been reached, or that
the Respondent had acted unlawfully on March 22 by an-
nouncing and effectuating the changes in terms and condi-
tions of employment.
Logically, because the Respondent, on March 22, therefor
was free to implement its last offer to the Union,57 which
Manso did by implementing the changes in employment
terms and conditions announced that day, the Respondent
had small financial incentive to also require that employees
resign from the Union. This was because, without such re-
quirement, the Respondent could lawfully effectuate the
Company’s less generous health insurance, long provided
voluntarily to office employees; install the 401(k) plan to re-
place pensions; eliminate work guarantees and restrictions on
subcontracting; and replace the contractual hourly pay scale
with percentage payments for work actually done. In these
circumstances, it not only would have been gratuitous for
Manso to further insist that his employees resign from the
Union to keep their jobs, but also such a demand, or a threat
to terminate those who engaged in a strike, could unneces-
sarily complicate the Respondent’s situation with no com-
mensurate benefit. The freedom provided to the Respondent
by this situation arising from impasse, where the bargaining
relationship normally would be suspended although certainly
not ended,58 differed from that in 1987 when the extent of
the Respondent’s bargaining obligation, in part, was defined
by the number of employees in the Union and unit and it
was in Manso’s economic interest to keep that number to a
minimum. Here, it was to the Respondent’s advantage to en-
sure that the less costly economic terms it was able to law-
fully impose on March 22, at least for the time being, as a
result of the impasse reached on the preceding day not be
imperiled by accompanying unlawful conduct.
On March 22, the Respondent’s seniority employees faced
the stark choice of whether to continue to work for the Re-
spondent under the newly announced employment terms or
to strike in an effort to recover their more liberal job bene-
537REEBIE STORAGE & MOVING CO.
59 By the end of March 21 and before the March 22 meeting, the
Respondent’s plans to implement changes in employment terms
could not be considered a secret. As noted in counsel for Respond-
ent’s March 21 letter to the union counsel, that day was to be
‘‘make or break’’ day and the parties had reached impasse. The
Union was aware of the issues separating the parties and of the Re-
spondent’s final offer. Ligurotis and Manso had discussed their dif-
ferences. That evening, Manso described some of his intended
changes to Hornbaker during their telephone conversation.
60 Haran and Manso continue to have shared as relatives the chil-
dren of Manso’s now-ended marriage to Haran’s sister.
61 The March 22 statement also was sent to employees as an en-
closure with the May 21 letter.
fits. In concluding that these employees were not coerced to
resign from the Union, I also note that Manso’s later conduct
in not replacing strikers but in repeatedly, over a period of
months, inviting their return, orally and in writing, was more
consistent with his asserted efforts to retain experienced
long-time employees than with attempts to be rid of striking
union activists. On the other hand, if the Union, having long
concurred in breaches in the application of its labor contract,
and having reached impasse with the Respondent, could not
establish that its members, in some way, had been moved to
strike by the Respondent’s unlawful conduct, its only remain-
ing option would have been to accept Manso’s reduced terms
or risk a possibly unproductive economic strike. Accordingly,
on March 22, and thereafter, the Union and its adherents had
incentive to establish circumstances for an unfair labor prac-
tice strike.59
In my view, the weight of the credible evidence indicates
that Manso, during the March 22 meeting, did not supple-
ment the statement that he read and had distributed to em-
ployees with the unlawful remarks charged. Rather, Manso
merely informed the employees that, if there was a strike, the
law allowed the Respondent to hire employees who would
work in place of those who declined to cross the picket lines;
to permanently replace strikers as long as the replacements
continued to fill those positions; and that the Union could
fine employees who remained union members but who
crossed the picket line. Reiterating, Manso’s statement on
this point was that:
If [an employee] wants to avoid being fined, he
should resign his union membership before he crosses
the picket line. All that is needed is a single letter to
the union saying that you are resigning your union
membership.
We are not at all suggesting that you have to resign
from the union to keep your job. We mention resigna-
tion only because that is the only way you can come
to work during a strike without running the risk that the
union will fine you.
In reaching the conclusions here, I have not placed prin-
cipal reliance on the testimony of Respondent’s witnesses,
Richied, Robert Licata, or of employees Haran, Mason,
Ingram, and Jordan, as to what was told to employees on this
matter at the March 22 meeting, although their accounts are
consistent with my findings. This is because they particularly
lacked independence from the Respondent. Richied and
Licata were tied to Manso as members of management, while
the other above-named individuals would have small incen-
tive to testify against Manso’s interest, having continued to
work for the Respondent. Haran, Manso’s former brother-in-
law,60 resigned with Jordan from the Union on March 22,
and Haran was an outspoken supporter of the Respondent’s
position among other employees. Ingram and Mason, who
had not been in the Union while employed by the Respond-
ent, appeared to be happy to be employed there at whatever
terms were available and, in my view, appeared unlikely to
testify against the Respondent’s interest.
Lanzano, on the other hand, was not a particularly credible
witness for the General Counsel because his conduct was so
erratic. Whatever Lanzano may have heard at the March 22
meeting did not cause him to join the strike. Instead, he re-
signed from the Union, worked for the Respondent for the
remainder of the day, and crossed the picket line, prepared
to work, on the following day. It was only later on March
23 when, after crossing the picket line, he received a work
assignment that he did not consider to be sufficiently remu-
nerative and inconsistent with asserted claimed promises to
take good care of him, that he joined the strike. At that
point, Lanzano had not been motivated by what Manso might
have said at the March 22 meeting, but by his disappoint-
ment at being lured across the picket line for less than the
expected remuneration.
I also do not credit Wade’s testimony because it does not
appear to be reasonable. Wade testified that he did not recall
receiving a copy of Manso’s statement, which the parties
stipulated was distributed at the March 22 meeting, or copies
of Manso’s above May 21 and August 20 letters to employ-
ees. He further testified that even if he had received a copy
of the March 22 statement, he could not have read it because
he had not had his eyeglasses.61 Also, Wade was the only
witness to testify for either side that he, or anyone else, had
walked out of the March 22 meeting before it was con-
cluded. I find Wade’s above testimony to be unreasonable
because it is difficult to accept that Wade, then a 26-year
employee with his job and associated benefits on the line,
and whose wife’s need for major health benefits could only
magnify his concern, would not be deliberately aware of
every document and factor affecting his employment situa-
tion. In this context, Wade’s stated inability to recall ever
having received three Employer-generated documents, the
distribution of which is not in doubt and which so materially
affected his job with the Respondent, appears as a calculated
effort to distance himself from evidence that might be con-
sidered contradictory to his testimony. This is because, as
noted, these documents specifically disclaim any Respond-
ent’s requirement that employees resign from the Union to
continue work.
I therefore accept Manso’s account concerning his two
conversations with Wade. Noting that Manso’s testimony
was convincingly detailed and precise, I find that although
Manso and Wade had engaged in name calling during their
second picket line conversation, Manso having taken offense
about an earlier remark made about him by Wade, I do not
find that Manso had challenged Wade to a fight or had
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
62 Burke, who testified that, months later, he had seen from his car
what seemed to be a heated conversation between Manso and Wade,
could not hear what was said and did not materially corroborate
Wade.
threatened him with physical harm while or because he was
picketing.62
I credit Robert Licata’s denial of Martinez’ testimony that,
on March 23, Licata, during a phone call to Martinez’ home
to ask if he was coming back to work, had told Martinez that
if he did, ‘‘he would have to come back under Mr. Manso’s
rules.’’ Although the applicable rules were not specified, this
could be germane only as a reference to the asserted Re-
spondent’s requirement that employees must resign from the
Union to work for the Company.
Licata agreed that he had called Martinez at home on
March 23 because his responsibilities included making as-
signments and he had to know who would be working. How-
ever, I accept Licata’s testimony that he did not tell Mar-
tinez, in effect, that he would have to resign from the Union
to come to work Because, at that time as he testified, he had
reason not to believe that Martinez was in the Union. As
noted, before the strike, Martinez had not been covered under
the labor agreement and dues, health/welfare and pension
contributions had not been remitted on his behalf. In addi-
tion, on March 22, after the strike began, Martinez had
worked a full day for the Respondent, having been dis-
patched by Licata. Martinez testified that he did not begin
to picket until the early morning of March 23. Although
Licata might have gauged Martinez’ union sympathies if, be-
fore calling, he had observed Martinez on the picket line on
March 23, it is not clear that he did so and Martinez’ status
with the Union on March 23 was sufficiently ambiguous to
sustain Licata’s testimony. This is because by the end of
March 23, Martinez, whose union membership had not been
established, on successive days had both crossed the picket
line to work and had joined in the picketing. It could not
have been clear to Licata what Martinez would do next.
Having found that Licata’s testimony concerning their first
conversation was more logically grounded than was Mar-
tinez’, I credit Licata’s further testimony that he did not call
Martinez 2 days later with the same inquiry, promising that
Martinez could come back with full seniority with only the
requirement that he resign from the Union. As noted, until
then, Martinez had not been considered a seniority list em-
ployee. Rather, I accept Licata’s testimony that he next spoke
to Martinez in early May when Martinez had called to an-
nounce that he, Lanzano, and Yracheta were returning to
work the next day, at which time Licata agreed to have work
for them. In accepting Licata’s testimony in this regard, I
note that he was more credible than Martinez with respect
to the first conversation, and that the Respondent would have
been less likely to press Martinez to return because, accord-
ing to Manso, he was not as highly regarded an employee
as were Wade, Yracheta, and Burke. Also, Licata’s version
of the second conversation fits in with the undisputed short-
lived understanding that Lanzano, Yracheta, and Martinez
were going to return.
I am not persuaded from the evidence concerning the ap-
plications for 401(k) benefits, sought by Yracheta and other
striking employees, that the Respondent had discharged any
of the workers involved. After Manso indicated on
Yracheta’s application form that Yracheta had been termi-
nated as of April 1, other striking employees, by their appar-
ently uniform response, saw this as a means of clarifying
their own asserted status as dischargees. This was because
there is no evidence that on March 22, when the strike
began, anyone from the Respondent’s management group had
told any of them that they were terminated. They simply had
walked out and begun picketing.
Although Manso initially had tried to assist Yracheta in
obtaining his 401(k) benefits, the record establishes that
Manso had made an honest mistake in his overall handling
of a form with which he had no prior familiarity, both in the
way in which he had filled in the form and in which he then
had sent it to Yracheta to complete and forward to Lincoln
National. Manso later learned that such forms were to be
submitted to Lincoln National only through him. When
Manso thereafter was corrected by Sinclair of Lincoln Na-
tional as to the procedures and reasons for obtaining 401(k)
benefits, Manso explained his error in Yracheta’s form and
what he had been told to Yracheta, Lanzano, and Mocerino,
telling them, over their protests, that they had not been termi-
nated. Manso’s refusals to make termination entries on the
401(k) application forms of the other employees, although
they pressed him to do so, was consistent with his May 21
and August 20 letters to employees.
Other explanations exist as to why the strikers did not re-
turn to work for the Respondent besides, as contended by the
General Counsel and the Union, that the employees would
have to surrender union membership. Employees, such as
Wade, were reluctant during a strike to take steps that might
compromise their union-associated health and other benefits,
which no longer would be available as Respondent’s employ-
ees under the announced changes in employment terms. A
considered statement of striking employee rationale for not
returning was given by Hornbaker who explained why he
had not responded to Manso’s May 21 letter inviting the em-
ployees’ return without precondition. Hornbaker testified that
although he believed the statement in Manso’s letter that he
would not have to resign from the Union to return to work,
it did not make sense for him to work without the Union.
If he did not resign his membership (during the strike), he
risked that the Union would fine him. If Hornbaker did go
back to work without a contract, the Union could not help
him with any problems he might have and, also, he would
not receive any union-associated job benefits. Accordingly,
because it was not logical for him to continue to remain a
union member while working for the Respondent without a
contract, he might as well have resigned from the Union.
This, however, he did not want to do. Hornbaker then re-
turned to the common line that he could not go back to work
because the Respondent would require that he resign from
the Union. In view of the above general explanation,
Hornbaker’s last protest is unconvincing.
Accordingly, I find that the weight of the credited evi-
dence establishes that the Respondent, through Manso, Rob-
ert Licata, and its other officials, on and after March 22, did
not violate Section 8(a)(1) of the Act by, respectively, telling
employees that they would be discharged if they engaged in
a strike against the Respondent; or that their continued em-
ployment with, or ability to return to work for, the Respond-
ent was contingent on their resigning from the Union.
539REEBIE STORAGE & MOVING CO.
63 Although the Respondent, on March 22, did make Seiner avail-
able to type ‘‘resignation-from-the Union’’ forms for interested em-
ployees and was willing to facilitate that process, such conduct was
not unlawful. Chicago Beef Co., 298 NLRB 1098 (1990). The cred-
ited evidence reveals that the Respondent’s inducement to resign was
that its employees avoid the possibility of being fined by the Union
should they remain members of that organization although continu-
ing to work during an anticipated strike. I agree with the General
Counsel that McKinley Jordan’s testimony that he had resigned from
the Union on March 22 so that he would not be ‘‘fired’’ by the
Union was ‘‘peculiar’’ because the transcript of his testimony in this
regard showed an obvious typographical error. The intended word
was ‘‘fined.’’ Contrary to the General Counsel’s point that Jordan
resigned before the strike, unaware that it was about to occur, and
therefore had been motivated to do so for reasons unrelated to what
might happen during a strike, the record reveals that Jordan resigned
from the Union at the same time as Haran, who did expect a strike,
and that their resignations took place while the initial strikers, in-
cluding Burke, Wade, and Yracheta, having heard Manso’s new em-
ployment terms, were openly announcing reasons for not working
that day.
64 279 NLRB 890, 895–899 (1986).
65 I draw adverse inferences from the failure to call Ligurotis to
testify concerning his 1987 conversations with Manso and Rudolf
and, therefor, conclude that Ligurotis had been called, he would have
given evidence adverse to the Union. Property Resources Corp. v.
NLRB, 863 F.2d 964 (D.C. Cir. 1988).
66 212 NLRB 690, 700 (1974).
67 227 NLRB 1650, 1654 (1977).
Having found that the Respondent, on and after March 22,
did not make the above alleged unlawful statements and,
therefor did not make employment contingent on unlawful
conditions, I conclude that the Respondent did not violate
Section 8(a)(3) and (1) of the Act by discharging or causing
the termination of those employees who on, and after, March
23, joined in a strike against the Respondent. Rather, I find
that the strike that began on March 22, at its inception, was
economic in nature, and the strike was not thereafter pro-
longed or transformed into an unfair labor practices strike by
later, above-described, conversations between striking em-
ployees and Respondent’s officials, including Manso and
Robert Licata.63
Because impasse was validly reached on March 21 at the
negotiating table and the changes in employment terms an-
nounced on March 22 were not attacked as unlawful, the Re-
spondent’s inducement to its employees to resign from the
Union solely to avoid being fined, in the absence of unlawful
threat of employer reprisal or promise of benefit, similarly
was not in violation of the Act.
Contrary to the General Counsel, the Board in G. M. Trim-
ming, Inc., 64 held that a union acts too late when, with pro-
longed knowledge that its contract had not been applied to
all unit-eligible employees, it belatedly seeks to include those
other employees in the bargaining unit. In G. M. Trimming,
a highly integrated sole proprietorship and a group of cor-
porations, all controlled by the same individual, were found
to be alter egos engaged in the manufacture of sportswear at
one factory. A single employerwide bargaining unit was
found to be appropriate. However, historically, only the em-
ployees listed as being employed by one of these alter ego
corporations had been included under the series of labor
agreements with the union in that matter. The Board denied
the claim of the union in that matter to represent the other
employees working in the loft and for funds contributions on
behalf of those employees on the grounds that the union re-
peatedly had renewed its contract with the one corporation
with the full knowledge of union representatives that other
companies owned in common operated out of the same
premises. The Board found that union officials had had op-
portunity to observe that there were large numbers of em-
ployees performing unit work who were not members of the
bargaining unit and held that, in those circumstances, the
union had not met its obligation to speak up. The union’s
failure to protest compelled the conclusion that the union had
acquiesced in the exclusion of the other employees from the
bargaining unit. Accordingly, the union could not then claim
that the failure of that respondent to pay into the funds on
behalf of the uncovered employees violated Section 8(a)(5)
and (1) of the Act.
Although factual differences between G. M. Trimming and
the present matter exist, that case does describe the obliga-
tion of a union to protest when its contract is not being ap-
plied to the entire unit and the consequences of not doing so.
Both G. M. Trimming and the present matter rest, not on
waiver, but on union acquiescence inferred from long delib-
erate tolerance of the situation, without timely protest. Here,
unlike G. M. Trimming, the Union’s initial agreement to the
understanding cannot be fully derived from the language of
its collective-bargaining contract, which was inclusive as to
all relevant employees, but from Manso’s unchallenged ac-
count of his 1987 oral agreement with Ligurotis65 and the
practices that followed which were consistent with such an
agreement.
The General Counsel’s argument, based on Prestige Bed-
ding Co.,66 that parol evidence cannot be used to establish
modification of the written, unambiguous, lawfully framed
labor agreement so as to establish that it has been applied
on a ‘‘members only’’ basis was considered in Schorr Stern
Food Corp.,67 where the administrative law judge, in his
Board-approved decision, held as follows:
Although the Respondent is correct in noting that ex-
trinsic evidence of a ‘‘members only’’ practice is con-
sidered by the Board in refusal to bargain and represen-
tation cases, where the questions concerning the state of
actual employee representation is basic to determina-
tion, such evidence does not constitute a general excep-
tion to the parol evidence rule applicable in cases aris-
ing in different context. In matters under Section
8(a)(5) of the Act . . . such as Don Mendenhall (194
NLRB 1122, 1123), the Board declined to issue bar-
gaining orders because of the insufficiency under the
Act of recognition on a ‘‘members only’’ basis. . . .
Accordingly, to the extent that a ‘‘members only’’ prac-
tice was considered by the Board, it was not regarded
with particular favor. . . . [I]t is concluded that evi-
dence of a misapplication of a collective-bargaining
agreement by a ‘‘members only’’ practice merely
serves to render the contract invalid for purposes of ob-
taining affirmative relief under the Act . . . but does
not shield a party from liability for unlawful conduct
occurring thereunder.
For the above reasons, as argued by the Respondent, I find
that the Company and the Union had applied the labor agree-
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
68 Schorr Stern Food Corp., supra; Richmond Homes, 245 NLRB
1205, 1209–1210 fn. 12 (1979); Mfg. Woodworkers Assn. of Greater
New York, 194 NLRB 1122 (1972).
69 Ibid.
70 Schorr Stern Food Corp., supra at 1654; Richmond Homes,
supra. Vanguard Tours, 300 NLRB 250 (1990), cited by the Re-
spondent, is applicable here principally to the extent that the Board
in that matter found that the unfairness inherent in a two-tiered sys-
tem of wages, hours need not result in a remedy if the reasons for
same are lawfully grounded. In Vanguard Tours, unlike the present
case, the Respondent was permitted under the language of the con-
tract, which was not under attack, to include in the unit all ‘‘regu-
lar’’ employees, but no ‘‘part-time’’ employees. The Board found
that the Respondent, in so doing, merely conformed to what was
permitted under the labor agreement and that the Employer had been
motivated by economic rather than union-based considerations. The
inclusive contract language covering all moving employees applica-
ble here permits no comparable distinctions.
71 Gaynor News Co. v. NLRB, 347 U.S. 17, 37–38 (1954); Schorr
Stern Food Corp., supra.
72 Art. 4, sec. B, of the applicable contract defined a steady em-
ployee as continuously employed 6 months or longer, except that the
last 3 months need not be continuous but may be accumulated over
a period of time.
73 November 16, 1989, is the date 6 months prior to the filing of
the charge here, commencing the period cognizable under Sec. 10(b)
of the Act. March 22, 1990, is the date, as found above, when the
Respondent discontinued its unlawful conduct in this regard by pro-
viding compensation and job benefits to all unit employees without
regard to union membership.
74 90 NLRB 289 (1950).
75 283 NLRB 1173 (1987).
76 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ment on a ‘‘members only’’ basis with respect to the Re-
spondent’s employees, extending the coverage and benefits
of the contract only to those employees who were union
members. As noted, the Board does not issue bargaining or-
ders in ‘‘members only’’ units.68 Therefore, I conclude that
the Respondent did not violate Section 8(a)(5) and (1) and
Section 8(d) of the Act by its failure to apply the terms of
the collective-bargaining agreement to all unit-eligible em-
ployees, including by its failure to make contributions to the
health/welfare and pension funds on behalf of unit employees
were were not union members; and by not furnishing the in-
formation requested by the Union in its February 6 cor-
respondence and orally thereafter.69
It is found, however, that the Respondent, during the term
of the contract here, even with the Union’s acquiescence, by
providing greater remuneration in the form of higher wage
rates, superior health/welfare, pension, and vacation benefits,
work guarantees, and other contractual employment benefits
of economic significance to employees selected to be union
members than to nonunion members, for the work which all
unit employees performed, discriminated against its nonunion
employees with regard to terms and conditions of employ-
ment so as to encourage membership in the Union. I con-
clude that by such conduct the Respondent violated Section
8(a)(3) and (1) of the Act.70 Because, under the language of
the contract, the Respondent did recognize the Union as the
sole collective-bargaining representative of all its employees
in the above-described unit, it was legally bound to apply the
terms and conditions of the contract to all such employees.
Otherwise, the nonunion employees would be left with no
means of equalizing the situation.71
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent’s oper-
ations described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow there-
of.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminating with regard to the terms and condi-
tions of employment of nonunion employees performing unit
work because they were not union members, the Respondent
has violated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it will be recommended that the Re-
spondent be required to cease and desist therefrom and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
It having been concluded that the Respondent has dis-
criminated against its nonunion unit employees with respect
to wage rates, work guarantees, health/welfare, pension, va-
cation, and other compensatory benefits provided in the
1987–1990 Association contract, it is recommended that the
Respondent be required to make whole all past and present
nonunion employees who are, or were, steady,72 excluding
casual and on-call employees, and who were employed by
the Respondent in work classifications embraced by the unit
as set forth in the then-applicable collective-bargaining
agreement from November 16, 1989, to March 21, 1990,73
for any loss of pay, insurance, pensions, vacations, guaran-
teed worktime, or other benefits they may have suffered by
reason of the Respondent’s failure to apply the terms and
conditions of the collective-bargaining agreement to them in
the same manner as it did to its union employees for both
commercial and household moves. Reimbursement shall be
made for any losses suffered by nonunion employees by rea-
son of the discrimination against them in accordance with the
formula set forth in F. W. Woolworth Co.,74 with interest
thereon as provided in New Horizons for the Retarded.75
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended76
541REEBIE STORAGE & MOVING CO.
77 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Reebie Storage and Moving Co., Inc.,
Chicago, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discriminating against any of its employees by denying
them coverage under a collective-bargaining agreement and
by otherwise failing or refusing to grant its employees con-
tractual wage rates, health/welfare, vacation, pension, and
other employment benefits because such employees are not
members of the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole all present and past nonunion employees
employed by the Respondent in the period from November
16, 1989, to March 22, 1990, in work classifications covered
by the unit as described in the collective-bargaining agree-
ment, effective 1987 to 1990, between Truck Drivers, Oil
Drivers, Filling Station and Platform Workers, Local No.
705, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO, and the Movers’ Association of Greater Chicago,
for any loss of wages, health/welfare, pension, vacation, and
other employment benefits they would have received but for
the discrimination against them in the manner described
above in the remedy section of this decision.
(b) Post at its facilities in Franklin Park and Chicago, Illi-
nois, copies of the attached notice marked ‘‘Appendix.’’77
Copies of the notice, on forms provided by the Regional Di-
rector for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately on receipt and maintained for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS ORDERED that the complaint be dismissed insofar as
it alleges violations of the Act not specifically found here.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discriminate against any of our employees
by denying them coverage under our collective-bargaining
agreement with Truck Drivers, Oil Drivers, Filling Station
and Platform Workers, Local No. 705, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, AFL–CIO, or any other
labor organization, by not granting our employees pay rates,
work guarantees, health/welfare, pension, vacation, and other
employment benefits because they are not members of the
Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise the rights
guaranteed them by Section 7 of the Act.
WE WILL make whole, with interest, any of our nonunion
employees who presently are, or who formerly were, em-
ployed by us from November 16, 1989, to March 22, 1990,
in work classifications described in the collective-bargaining
agreement between the above-named Union and the Movers’
Association of Greater Chicago, effective 1987 to 1990, by
which we were bound, for any loss they may have suffered
during the above November 1989 to March 1990 period by
reason of our not having provided them with pay rates, work
guarantees, health/welfare, pension, vacation, and other em-
ployment benefits to the extent that such benefits were grant-
ed to our employees who were members of the above-named
Union.
REEBIE STORAGE AND MOVING CO., INC.