Reliance Fuel Oil Corp.

National Labor Relations Board - Board Decisions

Jan 5, 1961

129 N.L.R.B. 1166 (N.L.R.B. 1961)

1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By interrogating employees concerning union membership and activities as
found above, Respondent has interfered with, restrained , and coerced its employees
in the exercise of rights guaranteed them by Section 7 of the Act , and has thereby
engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. By granting the wage increases referred to in the complaint Respondent has not
violated Section 8 (a) (1) of the Act as -alleged in the complaint.
[Recommendations omitted from publication.]
Reliance Fuel Oil Corp . and Coal , Gasoline, Fuel Oil Teamsters,
Chauffeurs , Oil-Burner Installation , Maintenance Servicemen
and Helpers, Local Union 553, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America
and Amalgamated Local Union 355, Retail , Wholesale and
Department Store Union , AFL-CIO, Party to the Contract
Reliance Fuel Oil Corp . and Coal , Gasoline, Fuel Oil Teamsters,.
Chauffeurs , Oil-Burner Installation, Maintenance Servicemen
and Helpers, Local Union 553, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America
and Amalgamated Local Union 355, Retail , Wholesale and
Department Store Union , AFL-CIO, Party to the Contract.
Cases Nos. 2-CA-7173 and 2-CA-7280. January 5, 1961
DECISION AND ORDER
On July 29, 1960, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the Charging Party filed exceptions to the Intermediate Report,
and the Respondent filed a supporting brief.'
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications.
1. On January 27, 1959, immediately after a Board election, and
before challenged ballots were ruled upon, the Respondent discon-
The Respondent 's request for oral argument is denied as the record , including the
exceptions and brief , adequately presents the issues and positions of the parties.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Leedom and Members Fanning and Kimball].
129 NLRB No. 141.
RELIANCE FUEL OIL CORP. 1167
tinued its extra-gallonage bonus for drivers, and, on February 2, 1960,
instituted a share-the-work system. On February 15, 1960, after
executing a contract with Local 355, the Respondent abandoned this
share-the-work plan and reimbursed drivers who had lost time as a
result of this plan. As the Trial Examiner found, the Respondent
had indicated to its drivers that the share-the-work system was de-
signed to give the employees "a taste of what Local 553 would be,
"but that if they signed for Local 355 they would be reimbursed for
lost days. The record also shows that the extra-gallonage bonus was
discontinued as soon as the Respondent was aware that a majority
of the drivers had indicated a preference for Local 553. In the con-
text of the promises of benefit and threats of reprisal, set forth in the
Intermediate Report, it is clear, and we find, that the Respondent
fully intended to interfere with, restrain, and coerce its employees in
violation of Section 8 (a) (1) of the Act by instituting the foregoing
changes in working conditions. Accordingly, we find it unnecessary
in this case to apply the doctrine of American Freightways Co., Inc.,
124 NLRB 146, upon which the Trial Examiner relies.
2. The Trial Examiner cited J. S. Brown-E. F. Olds Plumbing
Heating Corporation, 115 NLRB 594, as authority for his recom-
mendation that the Respondent be required to reimburse its employees
for dues paid by them to Local 355 on and after February 15, 1960.
However, as the violations found herein involve illegal aid and assist-
ance by the Respondent to Local 355 akin to that involved in Virginia
Electric and Power Company v. N.L.R.B., 319 U.S. 533, we shall
adopt the Trial Examiner's recommendation for the reimbursement
of union dues, but shall rely on Virginia Electric and Power Company
as our authority for the remedy.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Reliance
Fuel Oil Corp., Massapequa, New York, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Interfering with, restraining, and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, by threaten-
ing its employees with reprisals or promising them benefits.
(b) Establishing, promulgating, instigating, or putting into effect
any change in the conditions of employment of its employees under
such circumstances as reasonably tends to interfere with the free exer-
cise of their rights under the Act.
(c) Enforcing, maintaining, performing, or giving effect to its
agreement of February 15, 1960, with Amalgamated Local Union 355,
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail, Wholesale and Department Store Union, AFL-CIO, or any
modification, extension, renewal, or supplement thereto.
(d) Rendering illegal aid or assistance to the above-named labor
organization, or any other labor organization.
(e) Recognizing the above-named labor organization, or any suc-
cessor thereto, as the representative of any of its employees for the
purposes of collective bargaining with respect to grievances, labor
disputes, wages, rates of pay, hours of employment, or other terms
and conditions of employment unless and until such labor organiza-
tion shall have been certified by the Board as the representative of the
said employees.
(f) Encouraging or discouraging membership in any labor organ-
ization by entering into, enforcing, maintaining, performing, or giv-
ing effect to any contract, agreement, arrangement, or understanding
whereby its employees are required to join, or maintain their mem-
bership in, any labor organization as a condition of employment, ex-
cept as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(g) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights under Section 7 of the
Act, except as authorized in Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Amalgamated
Local Union 355, Retail, Wholesale and Department Store Union,
AFL-CIO, as the representative of any of its employees in the appro-
priate unit described below, for the purposes of dealing with it con-
cerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment, unless and until the said
labor organization shall have been certified by the Board as the repre-
sentative of the said employees.
(b) Upon request, bargain collectively with Coal, Gasoline, Fuel
Oil Teamsters, Chauffeurs, Oil Burner Installation Maintenance
Servicemen and Helpers, Local Union 553, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of its employees in the appropriate unit
described below with respect to grievances, labor disputes, wages, rates
of pay, hours of employment, or other terms and conditions of employ-
ment, and, if an understanding is reached, embody such understanding
in a signed agreement. The appropriate unit is:
All oil burner service employees and fuel oil drivers employed by the
Respondent, excluding office clerical employees, salesmen, and super-
visors as defined in the Act, as amended.
RELIANCE FUEL OIL CORP. 1169
(c) Reimburse its employees and former employees in the above-
described unit for all dues paid to Amalgamated Local Union 355, Re-
tail , Wholesale and Department Store Union, AFL-CIO, on or after
February 15,1960.
(d) Preserve and, upon request , make available to the Board or its
agents, for examination and copying , all payroll records, social secur-
ity payment records , timecards , personnel records and reports , and all
records necessary to analyze and compute the amount of reimburse-
ment due under the terms of this Decision and Order.
(e) Post at its office at Massapequa , New York, copies of the notice
attached to the Intermediate Report marked "Appendix." 3 Copies of
the said notice , to be furnished by the Regional Director for the Second
Region , shall, after being duly signed by the Respondent 's representa-
tive, be posted by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that these
notices are not altered , defaced , or covered by any other material.
(f) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT IS 1-URTIIER ORDERED that the complaint in Case No. 2-CA-7173,
insofar as it alleges that the Respondent violated Section 8 (a) (1) of
the Act, in other respects than as found herein, be , and it hereby is,
dismissed.
3 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
CONSOLIDATED INTERMEDIATE REPORT
These cases involve allegations that Reliance Fuel Oil Corp ., Massapequa, Long
Island , New York, herein called the Respondent , has since on or about January 28,
1960, interfered with , restrained , and coerced its employees in certain specified re-
spects; that since on or about February 3, 1960, it has rendered unlawful assistance
and support to Amalgamated Local Union 355, Retail, Wholesale and Department
Store Union , AFL-CIO ,' Party to the Contract , herein called Local 355; that on or
about February 15, 1960, during the pendency of a representation proceeding before
the National Labor Relations Board , herein called the Board, and at a time when
Local 355 was not the designated bargaining agent of an uncoerced majority of its
employees , it entered into an illegal collective -bargaining agreement with Local 355;
that by entering into, maintaining in effect, and enforcing the union-security provi-
sions of the said contract since February 15, 1960, it discriminated regarding the hire
and tenure of employment of its employees , thereby encouraging membership in
Local 355 and discouraging membership in Coal , Gasoline, Fuel Oil Teamsters,
Chauffeurs , Oil Burner Installation Maintenance Servicemen and Helpers, Local
Union 553 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
' Me name of the Party to the Contract in both cases was amended at the hearing to
reflect an affiliation which took place March 1, 1960.
586439-61-val. 12 9-7 5
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helpers of America,2 the Charging Party, herein called Local 553; and that since on
or about March 21, 1960, it has refused to bargain collectively with Local 553 as
the bargaining representative of its employees in an appropriate unit, although Local
553 had, prior thereto, been certified by the Board as the exclusive collective-
bargaining representative of the employees in the said unit. It is alleged that this
conduct violated Section 8(a)(1), (2), (3), and (5) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act. After the issuance by the
General Counsel 3 of a separate complaint in each case 4 and the filing of separate
answers by the Respondent, the cases were consolidated and a consolidated hearing
was held before the duly designated Trial Examiner at New York, New York, on
April 18 and 19, 1960. All parties were represented and participated in the hearing.
After the close of the hearing, the Charging Party and the Respondent filed briefs,
which have been duly considered.
Upon the entire record in these cases, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BOARD 'S JURISDICTION
A. Facts
The Respondent is a New York corporation, with its principal office and place of
business in Massapequa, Long Island, New York. It is engaged in the business of
selling fuel oil for heating purposes, and servicing oil burners and boilers. All its
customers are homeowners located in the State of New York. During the fiscal
year ending June 30, 1959, the Respondent's gross sales exceeded $500,000. During
the calendar year 1959 the Respondent purchased from Gulf Oil Corporation, herein
called Gulf, fuel oil and related products valued at more than $500,000. Most of
the product delivered to the Respondent is refined outside the State of New York
and delivered into Gulf's storage tanks at New York, New York. It is then trans-
ferred to Gulf's stationary storage tanks at Oceanside, Long Island, New York,
without segregation according to customers. The Respondent's trucks load oil from
Gulf's Oceanside tanks, and from there deliver it either directly to the Respondent's
customers, or to the Respondent's tanks at Massapequa, from which it is later with-
drawn and delivered to customers The Respondent also obtains some fuel oil by
exchange with other fuel oil companies on Long Island This operates as follows:
The Respondent draws a certain amount of oil from the other firm's tanks; con-
versely the other firm draws the same amount of oil from the Respondent's tanks.
It is a barter operation, without the payment of money. The Respondent has on
occasions obtained truck parts directly from outside the State of New York. In
1959, these purchases totaled "a couple of hundred dollars at the most." Other
than this, the Respondent made no purchases of any kind directly from outside the
State.
Gulf is engaged in the nonretail and retail sale of fuel oils and related products.
It operates in New Yoik and in other States Its gross sales and operating revenues
in 1959, including consumer excise taxes, amounted to in excess of $3,170,000.000.
The Respondent and the Party to the Contract concede, and I find, that at all mate-
rial times Gulf was engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
B. Contentions and conclusions
The General Counsel and the Charging Party maintain that the Respondent is
not only engaged in the retail business, but also in the wholesale business, and that
therefore either the retail or the nonretail jurisdictional standards of the Board
apply. They base this argument on the exchange of products with other fuel oil
firms. Conversely the Respondent, insisting that the exchange arrangement was on
a nonprofit basis, simply for convenience, and constituted "but a minute proportion
of its overall business," contends that it "could not qualify as a wholesaler," and
therefore that the Board's nonretail standard is not applicable.
The Board's current standard for asserting jurisdiction over a retail enterprise
which falls within its statutory jurisdiction is a minimum gross annual volume of
2 Tlie name of the Charging Party in Case No. 2-CA-7173 appears as amended at the
hearing.
s The term Genera] Counsel refers to the General Counsel of the National Labor Rela-
tions 13o-ird and his representative at the hearing
4 The complaint in Case No 2-CA-7173 was amended on March 23, 1960.
RELIANCE FUEL OIL CORP. 1171
business of $500,000 .5 This test has been met here. However, in addition to show-
ing that the relevant gross volume test has been satisfied, the record must demon-
strate conclusively the existence of legal jurisdiction, that is, that the employer in-
volved is engaged in commerce or that his operations affect commerce within the
meaning of Section 2(6) and (7) of the Act .6 The Respondent and the Party to the
Contract urge that such constitutional or legal jurisdiction is lacking here. The
Respondent argues that, while the products purchased by it from Gulf in New York
might have originated outside the State and been transported across State lines, they
had come to rest within the State in Gulf's storage tanks before they passed into
the Respondent's hands. In sum, the rationale which the Respondent espouses is
that the interstate flow of the goods had already been halted by Gulf within the:
borders of the State, and whatever happened thereafter was purely an intrastate.
transaction. I cannot agree. It is enough to find, as I do, that the Respondent in.
1959 purchased a substantial amount of fuel oil from Gulf, a company concededly
engaged in interstate commerce. Therefore, interstate commerce was affected by
the Respondent's operations. And the fact that the goods had come to rest within
the State is, in my opinion, immaterial.
On the basis of the record I am satisfied, and find, that the test of legal jurisdic-
tion has been met. Accordingly, it is found that, at all material times, the Respond-
ent was engaged in commerce within the meaning of the Act, and its operations
meet the Board's jurisdictional standards for the assertion of jurisdiction .7
In view of the above finding, I deem it unnecessary to pass upon the General
Counsel's additional contention that the nonretail jurisdictional standards are appli-
cable to the Respondent's operations As the Board has said: "Where, as here,
legal jurisdiction has been established and some relevant standard for the discretion-
ary assertion of jurisdiction has been met, it is immaterial that jurisdiction might be
asserted under one of several different standards." 9
II. THE LABOR ORGANIZATIONS INVOLVED
The parties agree, the Board has found,ia and it is now found, that Local 553 and
Local 355 are, and at all material times have been, labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Intioduction
The Respondent's business is a seasonal one. In the geographic area in which the
Respondent operates, the normal busy season begins in October or November of one
year and ends in March or April of the next year; the busiest months are usually
January, February, and March.
At all material times, Abraham Peckman has been president of the Respondent
and Harold Packman has been its secretary-treasurer. It is found that at all material
times they were supervisors within the meaning of the Act.
For purposes of this report, the Respondent has at all material times employed two
principal groups of workers: oil burner service employees, herein called servicemen,
numbering about 10, and fuel oil drivers, herein called drivers, approximately 11 in
number.ii Prior to January 27, 1960, the drivers worked full time and received, in
addition to their regular pay, a bonus of one-half cent for each gallon of fuel oil de-
livered in excess of 5,000 gallons in any single day.
"Carolina Supplies and Cement Co, 122 NLRB 88, 89
International Longshoremen & Warehousemen's Union, et al (Catalina Island Sight-
seeing Lines), 124 NLRB 813; Westside Market Owners Association, et at, 126 NLRB
167; James D Jackson, d/b/a Jackson's Party Service, 126 NLRB 875; and Southwest
Hotels. Inc (Grady Manning Hotel), 126 NLRB 1151
' It is noted in passing that, without objection from the Respondent or the Party to the
Contract, the Board on December 31, 1959, found that the Respondent was engaged in
commerce within the meaning of the Act Reliance Fuel Oil Corp , Case No 2-RC-10280,
Decision and Direction of Election, not published in NLRB volumes.
8 Compare Pease Oil Company, et al, 122 NLRB 344, 123 NLRB 660, enfd 279 F. 2d
135 (C.A 2).
Catalina Island Sightseeing Lines, supra
10 Case No. 2-RC-10280, Decision and Direction of Election, supra
As used herein, the term drivers applies only to "year round" drivers. We are not
here concerned with casual or seasonal drivers.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Events to the end of February 1960
During the winter of 1958, Local 355 made an unsuccessful attempt to organize
the Respondent's employees. On September 28, 1959, Local 553 filed with the
Board a petition in Case No. 2-RC-10280, seeking to represent a unit of the Re-
spondent's servicemen only. At the request of some of the drivers, a meeting was ar-
ranged with a representative of Local 553 after working hours one evening in October
1959. The drivers did not appear at the appointed place at the appointed time.
Richard Granger, a serviceman in the Respondent's employ, went to the Respondent's
shop and found a number of the Respondent's drivers sitting in the office. Packman
also was present. Granger asked Packman why the drivers had not come to the
meeting which they had requested. Packman replied: "To tell you the truth, I told
them not to attend the meeting." Packman also told driver Joseph Mendolia that
"it would be better for you if you don't go." 12
On October 14, 1959, Local 553 filed with the Board an amended petition in Case
No. 2-RC-10280 enlarging the requested unit to embrace drivers as well as service-
men. Local 355 procured signed authorization cards from some of the employees
and intervened. On December 31, 1959, the Board directed an election among the
Respondent's servicemen and drivers to determine whether they desired to be repre-
sented by Local 553, Local 355, or by neither. During the period before the elec-
tion, Packman predicted to a group of the Respondent's employees "that Local 553
wasn't going to win the election" and also stated "on numerous occasions" that
"there will be a shape-up if we have [Local] 553." 13
The election was conducted on January 27.14 There were approximately 21 eligible
voters and 21 ballots were cast, of which 10 were for Local 553, 6 for Local 355, 1
was against either union, and 4 were challenged. Immediately after the election the
extra-gallonage bonus for drivers, described above, was discontinued by the Re-
spondent. While the record is not entirely clear on this matter, it apparently has
never been resumed.
On February 2, the Respondent inaugurated a new "share-the-work" program
(sometimes referred to in the record as a "shapeup") among its drivers. This op-
erated as follows: Each night when the drivers came in from their runs they were
told how many trucks and which drivers would be needed the following day. Those
who were informed that they would not be needed the next day did not report for
work until the day after. While this system was in effect, the number of drivers
working on any given day varied from a full crew of approximately 11 drivers to
a minimum number of about 4 drivers. Thus some drivers lost several days of em-
ployment. After this system went into effect, Packman told Granger and Sammis
(who as servicemen were not directly affected): "You see what's happening to
the drivers, and you men haven't been hurt as yet." 15
The share-the-work program evoked complaints from some of the drivers who
were affected by it. When driver Benjamin Mendolia asked Packman why the system
had been put into operation, Packman replied: "First of all, it's warm out; and sec-
ond of all, that's the way [Local] 553 operates." 16 To others Peckman explained that
as long as a union was coming in, the Respondent was going to follow union rules.i7
Packman summoned driver Donald R. Kershow to his office and stated that the share-
the-work program was to give the drivers "a taste of what [Local] 553 would be" if
Local 553 became the employees' bargaining representative. He asked Kershow
"to get a couple of other drivers [mentioning Joseph Mendolia and Benjamin Men-
dolia by name] to . . . change the majority of the men going into [Local] 355"
and suggested that if a petition to that effect were signed and "pushed through differ-
ent channels" there might be a "re-vote" and previous working conditions might be
restored.18 At 5 p.m. on February 3, Packman told driver Vincent Graziano and
12 These findings are based upon the credited testimony of Granger and Joseph Mendolia.
19 These findings are based upon the credited testimony of Granger and Charles Theo-
dore Sammis, Jr, who were both still in the Respondent's employ at the time they testi-
fied. See Paul M. O'Neill International Detective Agency, Inc v. NLRB., 280 F 2d
936 (C A 3). Moreover, they impressed me as candid and forthright witnesses To the
extent that Packman denied these statements, his denials are not credited. He did not
impress me as credible. His testimony at times was vague and evasive and he was
sometimes uncooperative
14 Unless otherwise noted , dates refer to the year 1960
15 This finding is based upon the credited testimony of Granger and Sammis.
19 This finding is based on Benjamin Mendolia's credited testimony.
17 This finding is based upon an admission by Peckman while testifying
18 This finding is based upon Kershow's credited testimony. Packman testified that he
could not recall the incident.
RELIANCE FUEL OIL CORP. 1173
other employees that the drivers "would get reimbursed for the days that [they] lost"
if they would "sign for [Local] 355." 19
Meanwhile, on February 2, driver Joseph Mendolia had asked Packman why the
share-the-work system had been instituted. Packman replied: "That's the way
[Local] 553 works." Mendolia inquired "how [he] could get away from it," and
Packman suggested that Mendolia contact Murray Flatow, president of Local 355.20
Mendolia then telephoned to Flatow. As a result Flatow, after consulting Local
355's attorney, had petitions prepared in duplicate which read:
From the employees of
Reliance Fuel Corp.
500 Hicksville Road
Massapequa, L.I., N.Y.
To:
Reliance Fuel Corp.
500 Hicksville Road
Massapequa, L.I., N.Y.
GENTLEMEN: We the undersigned employees representing an overwhelming
majority of the employees employed by Reliance Fuel Corp. do hereby request
our employer not to sign an agreement with Local 553 of the Teamsters Union.
Some of us during the recent election conducted by the N.L.R.B. voted for
553 of the Teamsters Union. We hereby recind [sic] such vote having changed
our mind concerning our desire to be represented by Local 553 of the Teamsters
Union.
Dated February 2, 1960.
Flatow delivered the petitions to Raymond E. Haff , one of the Respondent's
employees. They were left on a table in the rear of a room at the Respondent's shop,
where they were signed by 16 of the Respondent's drivers and servicemen. There
is no evidence that these petitions were circulated directly by any supervisor of the
Respondent. After the signatures were affixed, the petitions were returned to
Flatow. He retained one copy and mailed the other to the Respondent in an
envelope of Local 355; it was received on February 10.
On February 14 Flatow sent a telegram to Packman claiming that Local 355
represented a majority of the Respondent's employees and demanding the negotiation
of a collective-bargaining contract. On the same day, Flatow telephoned Packman
and arranged a negotiating session for 6 p.m. on February 15. That night (February
14) after working hours, Flatow met with 14 of the Respondent's employees at a
place other than the Respondent's shop. None of the Respondent's supervisors
attended. -
On February 15 Flatow met alone with 18 or 19 of the Respondent's drivers and
servicemen at the Respondent's shop from 6 to 6:30 p.m. Then Peckman and
Packman came in, and Flatow announced at the outset that Local 355 "wouldn't
stand for a shape-up." Packman asked Flatow to exhibit the cards he had procured
from the employees designating Local 355 as their bargaining agent. Flatow com-
plied. Packman did not look through all of them 21 The record does not indicate
how many such cards Flatow then had. Negotiation of a collective-bargaining con-
tract, with the employees present, was then carried on. About 10:30 p.m. final
agreement was reached and a 2-year collective-bargaining contract was signed by
Flatow for Local 355 and Packman for the Respondent. The employees present were
also asked to sign. Three servicemen, Granger, Sammis and Carl Ackerman, ap-
proached Peckman, Packman, and Flatow. Granger, acting as spokesman, stated
that, as the Board had not yet ruled on the challenged ballots, they did not want to
sign a contract at this time but preferred to wait for the Board's decision. Packman
replied: "What's the matter? Don't you want to work here anymore?" 22 He added
that "there was a contract here . . . that the men would work by, and if they
10 This finding is based upon Graziano 's credited testimony.
20 This finding is based on Joseph lkfendolia's credited testimony . Although he testified
that this conversation took place on February 3, it is obvious from the date of the peti-
tions described hereafter that he was mistaken as to the date
ii This finding is based upon Flatow's credited testimony. Packman did not testify as
to any showing of cards. Peckman denied that he had been shown any cards prior to the
signing of the contract.
20 This finding is based upon the credited testimony of Granger and Sammis. Ackerman
and Packnian testified that they did not recall this response by Packman.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weren't members of the union then they couldn't work for the organization." 23
1Packman stated that he "would take full responsibility for anything that took place
,here." All employees present, including Granger, Sammis, and Ackerman, signed
the contract.
Immediately upon the execution of the contract, the share-the-work program for
-drivers was abandoned. Moreover, those drivers who had lost work received a
-lump sum payment by way of reimbursement. All 21 drivers and servicemen signed
.cards designating Local 355 as their bargaining agent and authorizing the Respondent
to withhold from their wages and remit to Local 355 dues and initiation fees due
Local 355. By virtue of these authorizations and a checkoff provision in the contract,
the Respondent withheld from the wages of the drivers and servicemen, and re-
mitted to Local 355, a total of $140 during the period February 23 through April 5.
C. Interference, restraint, and coercion
1. Contentions of the parties
The complaint in Case No. 2-CA-7173, as amended, alleges, and the General
Counsel contends, that the Respondent interfered with, restrained, and coerced its
employees in violation of Section 8(a)(1) of the Act in the following specific ways:
1. Threatening its employees with loss of pay on or about January 28 and Feb-
ruary 1, and 15, unless they ceased supporting Local 553 and supported Local 355.
2. Offering and promising its employees improvements in their working conditions
on or about January 28 and February 3 and 15, to induce them not to support Local
553 and to support Local 355.
3. Changing various working conditions of its employees on or about January 28,
and February 15, because they refused to cease supporting Local 553 and because
they refused to support Local 355.
4. Entering into a collective-bargaining contract with Local 355, which recognized
Local 355 as the employees' exclusive bargaining agent, on February 15, at a time
when Local 355 was not the bargaining agent selected by an uncoerced majority of
the Respondent's employees and while a representation proceeding (Case No.
2-RC-10280) was pending before the Board, maintaining and enforcing said illegal
contract thereafter, and requiring its employees to pay dues, initiation fees, assess-
ments, and fines to Local 355.
5. Warning its employees, on February 3, not to attend any meetings of Local
553; permitting an agent of Local 355 on the same day to enter its premises and
solicit signatures on the petition described above; and having Peckman and Packman
attend a meeting of Local 355 on its premises on or about February 15.
The answer in Case No. 2-CA-7173 denies all these allegations, except that it
admits that the Respondent and Local 355 executed a collective-bargaining agree-
ment on or about February 15, which recognized Local 355 as the exclusive bar-
gaining agent of the employees, that such contract has since been enforced and
maintained, and that an agent of Local 355 entered the Respondent's premises on
or about February 3.
2. Threats of reprisal
It is found that the following conduct of the Respondent's supervisors constituted
threats of reprisal against the employees should they support Local 553 or refuse
to support Local 355, in violation of Section 8 (a) (1) of the Act:
1. Packman's numerous statements to a group of employees in January that
"there will be a shape-up if we have [Local] 553."
2. Packman's statement to servicemen Granger and Sammis, after the share-the-
work program for drivers began on February 2, that "You see what's happening to
the drivers, and you men haven't been hurt as yet." This inherently implied that,
if the servicemen persisted in supporting Local 553, they too would suffer
3. Packman's statements to drivers Banjamin Mendolia, Joseph Mendolia, and
Kershow, on February 2 or 3, that the share-the-work plan was instituted because
"that's the way [Local] 553 operates" and to give the drivers "a taste of what
[Local] 553 would be." These clearly implied that the system was punative and
would remain in effect so long as the employees supported Local 553.24
4. Packman's reply to servicemen Granger, Sammis, and Ackerman when they
hesitated to sign the contract with Local 355 on February 15: "What's the matter?
Don't you want to work here anymore", and his further statement that "if they
23 This finding is based upon an admission by Packman while testifying.
24 Compare Kell Company, 117 NLRB 828, 829.
RELIANCE FUEL OIL CORP. 1175
weren't members of the Union then they couldn't work," both of which clearly
threatened discharge for failure to sign the contract and join Local 355.
3. Promises of benefit
The record reveals specific instances of promises of benefit made by officials of the
Respondent to its employees if they would change their allegiance from Local 553 to
Local 355, in violation of Section 8(a) (1) of the Act, as follows:
1. Packman's statement to driver Graziano and other employees, about February
2 or 3, that they would be reimbursed for lost days if they would "sign for [Local]
355."
2. Packman's reply, when asked by driver Joseph Mendolia on February 2 how he
could avoid the share-the-work program, suggesting that Mendolia contact Flatow,
president of Local 355. This constituted a clear indication that the price for relief
from the burdensome share-the-work system was adherence to Local 355.
3. Packman's suggestion to driver Kershow, on February 2 or 3, that he circulate
a petition to aid Local 355, which might result in a restoration of previously existing
working conditions, e.g., the abandonment of the share-the-work plan.25
4. Changes in working conditions
On January 27 the Respondent discontinued the previously existing extra-gallonage
bonus for drivers and, on February 2, instituted for the first time a share-the-work
system for its drivers. Both these changes in working conditions-which took place
shortly after the election-worked to the disadvantage of the drivers. On February
15, after the signing of the contract with Local 355, there were further changes-the
share-the-work plan was abandoned and the drivers who had lost time thereby were
reimbursed. These two charges constituted the granting of benefits to the drivers
by restoring them to their previous working conditions.26
With respect to the institution of the share-the-work system for drivers on February
2, which the General Counsel and the Charging Party contend was discriminatorily
motivated, the Respondent maintains that this was due solely to economic necessity.
In support of this defense, the Respondent introduced evidence tending to show that,
due to unusually warm weather during December 1959 and January 1960, its business
fell off 20 percent and it did not care to risk the loss of drivers by laying any of them
off; further that it restored the drivers to full-time work when the weather again
turned cold in February.
Let us consider, first of all, the latter two changes. In American Freightways Co.,
Inc., the Board set forth a test for determinating whether an employer's granting of
economic benefits to his employees violated Section 8(a) (1) of the. Act. It there
stated:
. .. the test . does not turn on the employer's motive or on whether the
coercion succeeded or failed. The test is whether the employer engaged in con-
duct which, it may reasonably be said, tends to interfere with the free exercise
of employee rights under the Act 27
Bearing this test in mind, it is significant that the share-the-work program was dis-
continued and the drivers reimbursed for lost time as soon as the contract with Local
355 had been signed. When viewed in the context of the Respondent's earlier indica-
tions that these measures would result if the employees would switch from Local
553 to Local 355, the conclusion is inescapable that the drivers normally would
conclude that they were being rewarded for submitting to the Respondent's expressed
desire as to their union adherence. Without regard to the Respondent's motives, I
conclude that the granting of these benefits reasonably and naturally tended to inter-
fere with the free exercise of the employees' rights, and therefore violated Section
8(a)(1) of the Act.
Let us turn now to the two changes made on January 27 and February 2, which
were detrimental rather than beneficial changes. I perceive no reason why the same
test-that laid down in American Freightways-should not apply equally to less favor-
25 I base no finding of unfair labor practices upon Packman's prediction in January that
Local 553 would lose the election
26 At oral argument, the General Counsel contended that the Respondent had dis-
continued "overtime pay" of its drivers immediately after the election. I find no probative
evidence to support this contention
27124 NLRB 146. In Trite Temper Corporation, 127 NLRB 839, this test was further
discussed. In my opinion, nothing said, in True Temper altered or modified the test laid
down in American Freightways.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able changes as applies to the granting of benefits. The discontinuance of the extra-
gallonage bonus for drivers was timed immediately after the election, the results of
which indicated the possibility that a majority of employees might have chosen Local
553 as their bargaining agent. Moreover, at the time the Respondent offered to the
affected drivers no explanation for this action. Under these circumstances, and in the
background of the Respondent's admitted and known hostility to Local 553,28 the
drivers normally would assume that this conduct was designed to punish them for
their support of Local 553 in .the election, and to induce them to change their affilia-
tion. It would also be natural for the drivers to conclude that the share-the-work pro-
gram was instituted for the very same reason, especially in view of its timing within a
week after the election, and Packman's numerous statements before then that there
would be a "shape-up" if Local 553 came in . Any lingering doubts on this score
would normally have been dispelled by Packman's statements to Kershow and the
Mendolias that the plan was inaugurated to afford the drivers "a taste of what [Local]
553 would be." I conclude, entirely aside from the Respondent's purpose, that these
changes in working conditions reasonably tended to interfere with the free exercise
of the employee's rights, in violation of Section 8(a) (1) of the Act.
5. Legality of the contract of February 15
The complaint in Case No. 2-CA-7173 alleges, and the General Counsel main-
tains, that the collective-bargaining agreement entered into between the Respondent
and Local 355 on February 15, which recognized Local 355 as the exclusive bargain-
ing agent of the employees, and any modification, supplement, renewal, or extension
thereof, is "invalid and in violation of the Act." The General Counsel bases this
contention on two factors: (1) Local 355 was not then, and never has been, the
collective-bargaining agent of an uncoerced majority of the Respondent's employees;
and (2) at the time representation proceedings were pending before the Board. The
Respondent's answer in Case No. 2-CA-7173, although admitting the execution of the
contract, denies its illegality.
The result of the election held on January 27 demonstrates that, no matter how
the challenges would be determined, the largest number of votes Local 355 could
have received would have been 10 (6 plus the 4 challenged ballots) of a total of 21
valid ballots cast 29 It is unquestionably clear, therefore, that Local 355 had not, on
January 27, been designated by a majority of the employees.30 And a state of affairs
once shown to exist is presumed to continue 31 Therefore, unless the contrary is
shown, Local 355 did not represent a majority of the Respondent's employees on
February 15. The Respondent contends, however, that the intervening voluntary act
of 16 of the 21 employees in signing their names to the petitions, 1 copy of which
it received on February 10, demonstrates that Local 355 achieved a majority status
in the period between January 27 and February 10. Indeed, during this period, as
the Charging Party aptly described it, the employees "wavered in their union sympa-
thies like straws in the wind." And it is true, as the Respondent points out, that the
petitions were not circulated directly by any agent of the Respondent. But any evalua-
tion of the true nature of the conduct of the 16 employees who signed cannot stop
there. The entire context in which the event occurred must be considered.
It has been found above that the Respondent engaged in numerous acts of inter-
ference, coercion, and restraint designed to influence its employees to select Local
355, rather than Local 553, as their bargaining representative. These included sug-
gesting to Kershow that the men sign the very type of petition they eventually did
sign coupled with an intimation that they would then be rewarded by restoration of
previous working conditions; a promise of reimbursement to Graziano and others if
21 Peckman testified that he had stated "that I did not like the Teamsters Union [Local
553] for ethical reasons ." Reference is also made to Packman's attempt in October 1959,
described above, to keep the drivers from attending a meeting conducted by Local 553.
ire Assuming that all the challenged ballots were cast for Local 355, had all 4 challenges
been overruled, Local 355 would only have had 10 votes out of 21; had 3 been overruled
and 1 sustained, Local 355 would have had 9 votes out of 20; had 2 been overruled and
2 sustained, 8 out of 19; had 1 been overruled and 3 sustained, 7 out of 18; and had
all 4 been sustained , 6 out of 17.
30 If all 4 challenges had been overruled, and all had been cast for Local 355, the vote
would have stood 10-10-1, and a runoff election between Local 553 and Local 355 might
have resulted under Section 102 70 of the Board 's Rules and Regulations , Series 8. How-
ever , the bare possibility of a future victory in a runoff election cannot be equated to a
presently existing majority.
31 Bordo Products Company, 117 NLRB 813, 314.
RELIANCE FUEL OIL CORP. 1177
they would "sign for [Local] 355"; and a suggestion to Joseph Mendolia that, to
avoid further share-the-work, he should contact Local 355's president. This latter
conduct by one of the Respondent's officials resulted indirectly in the pieparation
of the petitions and their submission to the employees for signature. And two of the
drivers, Kershow and Benjamin Mendolia, testified that they signed the petitions in
order to end the onerous share-the-work program. Viewed in the light of these
circumstances, I am convinced that the signing of these petitions by the employees
was not a voluntary act on their part, but on the contrary was the fruit of a campaign
of deliberate coercion carried on by the Respondent. Accordingly, the petitions do
not indicate any genuine change of heart by the employees and are a nullity. Finally,
the Respondent points to the signatures of 19 of the 21 employees on the contract
itself. But these, too, were obtained as the result of the Respondent's coercion-
particularly the signatures of Granger, Sammis, and Ackerman. It is therefore clear
that ,the presumption of Local 355's lack of majority on February 15, stemming from
its demonstrated lack of majority on January 27, has not been rebutted. As Local
355 had not been chosen by a majority of the employees on February 15,32 it was a
violation of the Act for the Respondent to extend exclusive recognition to Local 355
on that date 33
There is another reason why the execution of the contract was a violation of the
Act: The time was inappropriate. When Local 553 filed with the Board its petition
in Case No. 2-RC-10280, this raised a genuine question concerning the representation
of the Respondent's employees, which question was still pending undetermined before
the Board on February 15. The Respondent, of course, knew this. It has been held
that it is a violation of the Act for an employer to recognize either of two competing
unions under such circumstances, for the employer thereby illegally arrogates to
himself the resolution of the representation dispute, encroaches upon the Board's
exclusive domain, and disrupts the orderly representative procedure established
under the Act.34 The Respondent, however, argues that, notwithstanding pending
certification proceedings, an employer must bargain with the union of his employees'
choice. For this proposition it cites several court decisions 35 But the Board's well-
settled doctrine described above provides for no exception where, by happenstance,
the union recognized by the employer actually turns out to be the one with majority
status. To the extent that any cases cited by the Respondent might be read as dis-
agreeing with the Board's doctrine, as a Trial Examiner I must, with due respect for
the courts which decided them, decline to be bound thereby until the Board or the
United States Supreme Court holds to the contrary.36 Moreover, in the cases cited
by the Respondent, the recognized union had been freely chosen by a majority of
the employees before recognition. This was not true here. It is accordingly found
that, by executing the contract of February 15 recognizing Local 355 as the exclusive
bargaining agent of its employees, the Respondent interfered with, coerced, and
restrained its employees in violation of Section 8(a)(1) of the Act.
6. Miscellaneous
a. Warning employees not to attend Local 553 meetings
As noted above, in October 1959 Packman warned the Respondent's drivers not to
attend a meeting conducted by Local 553. This incident was not alleged in the com-
plaint, and the General Counsel stated at the hearing that the testimony in regard
thereto was introduced "for background material to show animus." Accordingly,
az The fact that all the employees signed designation cards on behalf of Local 355 after
the contract was signed Is Immaterial. International Ladies' Garment Workers' Union,
AFL-CIO v. N.L.R.B., 280 F. 2d 1289 (C.A.D.C.).
31 Revere Metal Art Co., Inc., et al., 123 NLRB 114, enfd. 280 F . 2d 96 (C.A. 2) ; Dixie
Bedding Manufacturing Company v. N L R.B , 268 F. 2d 901, 905 (C A. 5) ; and Inter-
national Ladies' Garment Workers' Union, APL-CIO v. N.L.R. B., supra, and cases cited
in footnote 6 therein.
s* Midwest Piping & Supply Co , Inc., 63 NLRB 1060, Shea Chemical Corporation, 121
NLRB 1027; Halben Chemical Co , Inc, 124 NLRB 872, enfd. as mod 279 F. 2d 189
(CA 2) ; and Burke Oldsmobile, Inc, 128 NLRB 79
s E g., Cleaver-Brooks Mfg. Corporation v N L R.B, 264 F. 2d 637 (C A. 7) ; N.L R.B. v.
Indianapolis Newspapers, Inc, 210 F. 2d 501 (CA. 7) ; and N.L.R.B v. Standard Steel
Spring Company, 180 F. 2d 942 (CA 6).
ae Novak Logging Company, 119 NLRB 1573; and Scherrer and Davisson Logging Com-
pany, 119 NLRB 1587. See also Shea Chemical Corporation, supra, footnote 10 of Inter-
mediate Report therein.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no finding of unfair labor practice will be based ,thereon . The record does not con-
tain any evidence to supportthe allegation of the complaint in Case No. 2-CA-7173
that the Respondent , "on or about February 3, 1960, . . . warned its employees
not to attend any meetings conducted by Local 553."
b. Permitting Local 355s agent to enter the Respondent's premises
The answer in Case No. 2-CA-7173 admits that an agent of Local 355 entered
the Respondent's premises on or about February 3. However, there is no evidence
that this entry was pursuant to any consent given by the Respondent. Nor does the
record reveal the purpose for .the visit. It is true that Flatow testified that on or about
February 3 he turned over the unsigned petitions to Haff, but the record does not
show the place of delivery. Hence there is no proof to support the allegation of the
complaint in Case No. 2-CA-7173 that the Respondent permitted the entry, or that
the purpose was to "solicit the signatures of [the] Respondent's employees on a
petition requesting [the] Respondent not to sign an agreement with Local 553."
c. Attendance of Peckman and Packman at Local 355s meeting
Although Peckman and Packman were probably at the Respondent's shop between
6 and 6:30 p.m. on February 15, they did not attend the meeting called by Flatow
there. They were not called in until 6:30 p.m., after that meeting had ended and
negotiations for -a contract were about to begin. Hence there is no evidence to sup-
portthe allegation of the complaint in Case No. 2-CA-7173 that on that date they
"attended and participated in a meeting of [the] Respondent's employees . . . at its
premises, conducted by Local 355."
D. Assistance to and support of Local 355
The complaint in Case No. 2-CA-7173 alleges, and the answer therein denies,
that by the same conduct of the Respondent which allegedly constituted interference,
restraint, and coercion of employees in violation of Section 8 (a) (1) of the Act, the
Respondent likewise rendered unlawful assistance and support to a labor organization
in violation of Section 8 (a) (2) of the Act.
It has been found above that the Respondent threatened its employees with re-
prisals unless they ceased supporting Local 553, and supported Local 355; promised
them benefits if they would switch their affiliation from Local 553 to Local 355;
changed the drivers' working conditions to their detriment under circumstances which
reasonably would lead them to believe that they were being punished for their
adherence to Local 553; and granted the drivers benefits in a context which nor-
mally would cause .them to infer that they were being rewarded for changing their
allegiance from Local 553 to Local 355. By such conduct, the Respondent accorded
to Local 355 illegal assistance and support. The Respondent also on February 15
executed a contract with Local 355, recognizing that union as the exclusive repre-
sentative of the employees, under circumstances which made such action illegal. In
this connection, it is significant that this was accomplished without any genuine
effort to examine or count the cards in Flatow's possession, but solely in reliance
upon 16 signatures on a petition which had resulted from the Respondent's prior
coercion. And the Respondent's efforts to foist Local 355 upon its employees did
not end there. It coerced at least three servicemen into signing the contract itself
under threat of discharge, thereafter maintained and enforced the contract, estab-
lished membership in Local 355 as a condition of employment, and deducted union
dues from its employees' wages and remitted these funds to Local 355. Thereby the
Respondent rendered further illegal aid and assistance to Local 355. 1 conclude that
such conduct. in addition to violating Section 8(a) (1) of the Act, was proscribed by
Section 8(a) (2) of the Act.
E. Discrimination
The contract of February 15 between the Respondent and Local 355 contained
the following clause:
All present and future employees covered by this Agreement shall, on or after
the thirtieth (30th) day following the beginning of such employment or the
effective date of this agreement, whichever is later, join the Union and shall
thereafter remain members of the Union as a term and condition of employment.
[Emphasis supplied.]
The General Counsel contends that by including in the contract such a clause
"which required membership in Local 355," the Respondent "discouraged member-
RELIANCE FUEL OIL CORP. 1179-
ship in Local 553 [and] encouraged membership in Local 355" and thus violated
Section 8 (a) (1) and (3) of the Act.
Of a similarly-worded clause, the Board said in Kaiser Aluminum & Chemical
Corporation:
Read literally, this quoted provision might be taken to mean that an employee
satisfied the requirement of the provision by joining the union at any time
during the term of the agreement, even after a lapse of 30 days or more follow-
ing the date of employment, because it does not say how long "after" the
thirtieth day the obligation attaches. On the other hand, the provision might
be interpreted to mean that employees subjected themselves to discharge for
nonmembership in the Union on or immediately after the thirtieth day following
the date of their employment. In view thereof, we conclude that the contract
is ambiguous. Recourse must be had therefore to the practice under the con-
tract to determine the intent of the contracting parties as to the meaning of
the union-security provision.37
Applying this test to the instant case, the practice under the contract must be
evaluated to determine whether the parties intended to require union membership
on or before March 16, 1960, on the one hand, or on or before February 14, 1962,
on the other. There is no evidence that any applicant or employee was instructed
in this regard, or that Local 355 sought the discharge of any employee after March 16.
However, every employee covered by the contract joined Local 355 before
March 16 38 From this I conclude that the parties intended the deadline to be
March 16, 1960, rather than February 14, 1962.
With respect to the legality of this clause, as so interpreted, under Section 8(a) (3)
of the Act, the United States Court of Appeals for the Second Circuit has said of a
similar provision:
Such an agreement is permitted inter alia, only when the labor organization is
"not established, maintained, or assisted by any action defined in this subsection
as an unfair labor practice" and when it "is the representative of the employee[s]
as provided in Section 9(a)," and Section 9(a) requires that the representative
be "designated or selected for the purposes of collective bargaining by the
majority of the employees in a unit appropriate for such purposes." The
agreement here failed on both counts 39
It is accordingly found that the Respondent had no legal right on February 15 to
include such a union-security provision in its contract with Local 355 because
Local 355 was not then the bargaining representative of a majority of the covered
employees, and also because Local 355 was the recipient of illegal aid and support.
Furthermore, the Respondent could not legitimately thereafter maintain and enforce
this provision, or require its employees to pay dues to Local 355 40 By such conduct,
the Respondent discriminated regarding the terms and conditions of employment
of its employees, thereby discouraging membership in Local 553 and encouraging
membership in Local 355, in contravention of Section 8(a)(3) of the Act. It also
interfered with, restrained, and coerced its employees in violation of Section 8(a)(1)
of the Act.
The General Counsel, by amendment of the complaint in Case No. 2-RC-7173 at
the hearing, and in oral argument, contends that the Respondent further violated
Section 8 (a) (3) of the Act by instituting changes in the working conditions of its
employees on January 27 and February 2 and 15, as described above. Such changes
have already been found to have been violative of Section 8(a)(1) of the Act.
Whether considered as violations of Section 8(a)(1) or of Section 8(a)(3), or of
both, the recommended remedial order regarding such violations would be the same.
I therefore deem it unnecessary to determine whether the Respondent additionally
violated Section 8(a)(3) of the Act in this respect.
Local 553 maintains that, during the share-the-work program which was in ex-
istence from February 2 to 15, the Respondent allocated the available work "on
the basis of union sympathies," i.e., discriminated among the drivers in favor of
Local 355's adherents and against those supporting Local 553. The General Counsel
contends that Kershow was discriminated against in the assignment of available
s7 9S NLRB 753, 754.
se With the possible exception of Donald R Kershow, whose undated card was admitted
in evidence with the others at the hearing on April 19.
86 N L R.B v. Revere Metal Art Co . Inc., et al , 280 F 2d 96.
4° I find no evidence to support the General Counsel's contention that the Respondent
required its employees to pay initiation fees, assessments, or fines to Local 355
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work during this period because of his pro-Local 355 sympathies, in violation of
Section 8(a)(3) of the Act. Conversely, the Respondent denies any discrimination
and insists that the available work was assigned in accordance with seniority, except
for one driver specially qualified to operate a large tractor. I consider it unneces-
sary to resolve this issue because (1) the matter is not covered in either complaint,
and (2) as all wages lost by virtue of the share-the-work system have been restored
to the affected drivers, the General Counsel seeks no backpay reimbursement.
Hence the recommended remedial order cannot be affected by determination of this
matter.
F. Refusal to bargain
1. The appropriate unit
The complaint in Case No. 2-CA-7280 alleges, and the answer in that case denies,
that all oil burner service employees and fuel oil drivers employed by the Respondent,
excluding office clerical employees, saelsmen, and supervisors, as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining. This is the
unit found appropriate by the Board in Case No. 2-RC-10280. I find it to be an
appropriate unit.
2. Local 553s majority status
On February 26 the Regional Director issued his report on challenges in Case
No. 2-RC-10280, in which he recommended that two challenges be sustained and
two be overruled. As the two ballots, the challenges to which he recommended
be sustained, could not affect the results of the election if the other two were over-
ruled, he recommended that Local 553 be certified. No exceptions were filed to this
report. Accordingly, on March 15 the Board issued its Supplemental Decision and
Certification of Representatives adopting the Regional Director's report on challenges,
and certifying Local 553 as the exclusive bargaining representative of the employees
in the unit. It is therefore found that, at all times since January 27, 1960, Local 553
has been and now is the exclusive representative of all employees in the unit described
above for purposes of collective bargaining.
3. The Respondent 's refusal
On March 16 Local 553s attorney wrote to Packman, pointing out that Local 553
had been certified by the Board as the bargaining agent for the Respondent 's drivers
and sevicemen and requesting a meeting to negotiate a contract . On March 21 the
Respondent's attorney replied, declining to comply with Local 553's request on the
ground that the Respondent had executed a contract with Local 355, which was
described as "a union of [the employees'] choosing" There has apparently been
no further communication between the Respondent and Local 553 regarding bargain-
ing. Thereafter the Respondent continued to recognize and deal with Local 355
as the exclusive bargaining agent of the employees in the unit.
The General Counsel contends that such conduct violated Section 8(a) (1) and (5)
of the Act. The Respondent, conversely, maintains that it was justified in refusing
to bargain with Local 553 because, prior to Local 553's demand for recognition,
Local 355 had attained a majority status, upon the basis of which, the Respondent
had recognized and dealt with Local 355 as the employees' exclusive bargaining
agent.
In this connection , it has already been found that Local 355 was never designated
by an uncoerced majority of the Respondent's employees to represent them in bar-
gaining, and that the contract between Local 355 and the Respondent is invalid.
Hence the Respondent's argument that Local 355 was freely chosen by a majority of
the employees cannot stand . Furthermore , even assuming, contrary to the above,
that a majority of the employees had voluntarily switched their allegiance from
Local 553 to Local 355 after January 27, this would be no defense. In the interests
of stability in bargaining relations , the Board and the courts have held that a bar-
gaining agent freely selected by a majority of the employees in a valid secret election
conducted by the Board , as Local 553 was here, cannot be unseated for a reasonable
period thereafter (usually a year), notwithstanding a genuine change of heart by
the employees 41 It is accordingly found that, by refusing on March 21, and at all
times since, to bargain with Local 553 as the exclusive representative of the em-
ployees in the appropriate unit described above, by thereafter recognizing Local 355
as such representative , and by ignoring the Board 's valid certification of Local 553,
a Raii Brooks v. N L.R B., 348 U.S . 96; and Marcus Trucking Company, Inc., 126
NLRB 1080.
RELIANCE FUEL OIL CORP. 1181
the Respondent has refused to recognize and bargain collectively with the union of
its employees ' choice in violation of Section 8(a)(5) of the Act. By such conduct,
the Respondent also interfered with , restrained , and coerced its employees in viola-
tion of Section 8 (a)( I) of the Act.
IV. THE REMEDY
It has been found that the Respondent engaged in numerous acts of interference,
coercion, and restraint designed to influence its employees to select Local 355, rather
than 553, as their bargaining representative. It will accordingly be recommended
that the Respondent cease and desist from such conduct, and from rendering illegal
aid or assistance to any union. It will further be recommended that the Respondent
cease and desist from performing or giving effect to its contract of February
15, 1960, with Local 355, or to any modification, extension, supplement, or renewal
thereof, and from recognizing Local 355, or any successor thereto, as the bargaining
representative of any of its employees, unless and until Local 355 has been certified
by the Board as such representative.42 Nothing contained herein shall, however,
be construed as requiring the Respondent to abandon or vary the substantive features
of the relationship between the Respondent and its employees which have been
established pursuant to such agreement.
It has also been found that the Respondent included in its contract of February
15, 1960, with Local 355, an illegal clause requiring, as a condition of employment,
that its employees join or maintain their membership in Local 355. It will accord-
ingly be recommended that the Respondent cease and desist from entering into or
enforcing any contract or arrangement of such a nature, except as permitted by,
Section 8 (a) (3) of the Act.
Because of the underlying purpose and tendency of this unlawful conduct, danger`
exists that the Respondent will in the future commit other unrelated unfair labor
practices. Accordingly, it will be recommended that the Respondent cease and
desist, not only from the unfair labor practices found, but also from in any other
manner infringing upon the rights guaranteed in Section 7 of the Act.
Affirmatively, it will be recommended that the Respondent withdraw and with-
hold all recognition from Local 355 as the representative of its employees in the
above-described unit for the purposes of collective bargaining, unless and until
Local 355 has been certified by the Board as such representative. It will also be
recommended that the Respondent, upon request, bargain collectively with Local
553 as the exclusive representative of the Respondent's employees in the appropriate
unit with respect to wages, hours, and other conditions of employment, and embody
any understanding reached in a signed contract.
It has further been found that the Respondent unlawfully withdrew the extra-
gallonage bonus for its drivers, and instituted a share-the-work program which
caused them loss of earnings. However, they have already been reimbursed for
wages lost because of the imposition of the share-the-work system, and no further
affirmative remedy is therefore necessary in that respect. With regard to the bonus,
it will not be recommended that it be restored to the drivers, because in my opinion
the purposes of the Act would better be effectuated by reserving that matter for de-
termination in the collective bargaining which it has been recommended that the
Respondent conduct with Local 553.
The complaint in Case No . 2-CA-7173 alleges that the Respondent has required
its employees to pay to Local 355 dues, initiation fees, assessments, fines, and other
moneys while maintaining and enforcing the illegal agreement of February 15, 1960.
It has been found that this was true insofar as dues are concerned. Thus, the Gen-
eral Counsel seeks the familiar Brown-Olds remedy 43 In view of the Respondent's
campaign of intimidation and coercion designed to force its employees to abandon
Local 553 and to shift their support to Local 355,,and the Respondent's other illegal
aid and assistance to Local 355, it is reasonable to assume, and I find, that a sub-
stantial number of the Respondent's employees joined Local 355 and paid dues to
it as a result of that union being foisted upon them by the Respondent's illegal con-
duct. Accordingly, the application of the remedy sought by the General Counsel
would seem to be particularly appropriate here. It will therefore be recommended
that the Respondent reimburse all its employees and former employees for dues paid
42 Bowman Transportation, Inc., 120 NLRB 1147.
48 United Association of Journeymen & A pprentwes of Plumbing & Pipefitting Industry
of the United States and Canada, Local 231, AFL-CIO (J S. Brown-E F. Olds Plumbing
& Heating Corporation ), 115 NLRB 594.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by them to Local 355 on or after February 15, 1960.44 It will further be recont-
mended that the Respondent make available to the Board or its agents, upon request,
all records necessary to compute the amount of reimbursement due under the terms
of this recommended order, and post appropriate notices.
Finally, it will be recommended that the complaint in Case No. 2-CA -7173 be
dismissed , insofar as it alleges that the Respondent engaged in the conduct described
in Conclusion of Law No. 10 , infra.
Upon the basis of the above findings of fact , and upon the entire record in these
cases, I make the following:
CONCLUSIONS OF LAW
I Reliance Fuel Oil Corp. is, and at all material times has been , an employer
within the meaning of Section 2(2) of the Act.
2. Coal , Gasoline, Fuel Oil Teamsters , Chauffeurs , Oil Burner Installation
Maintenance Servicemen and Helpers , Local Union 553, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , and Amal-
gamated Local Union 355, Retail , Wholesale and Department Store Union,
AFL-CIO, are, and at all material times have been, labor organizations within the
meaning of Section 2 (5) of the Act.
3. All oil burner service employees and fuel oil drivers employed by the Re-
spondent , excluding office clerical employees, salesmen , and supervisors as defined
in the Act , constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Coal, Gasoline , Fuel Oil Teamsters , Chauffeurs , Oil Burner Installation Main-
tenance Servicemen and Helpers , Local Union 553 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America was, on January
27, 1960, and at all times since has been , the exclusive representative of the em-
ployees in the above -described unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By rendering illegal assistance and support to Amalgamated Local Union 355,
Retail, Wholesale and Department Store Union , AFL-CIO, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (2) of the Act.
6 By discriminating in regard to the hire and tenure of employment of its em-
ployees, thereby discouraging membership in Coal , Gasoline, Fuel Oil Teamsters,
Chauffeurs , Oil Burner Installation Maintenance Servicemen and Helpers, Local
Union 553 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , and encouraging membership in Amalgamated Local
Union 355, Retail, Wholesale and Department Store Union , AFL-CIO, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
7. By refusing on March 21 , 1960, and at all times since, to bargain collectively
with Coal , Gasoline , Fuel Oil Teamsters , Chauffeurs , Oil Burner Installation Main-
tenance Servicemen and Helpers, Local Union 553, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , as the exclusive
representative of the employees in the above -described unit, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (5) of the Act.
8. By the above-described conduct, and by other conduct interfering with, re-
straining , and coercing its employees in the exercise of rights guaranteed in Section
7 of the Act , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a)(1) of the Act.
9. The above -described unfair labor practices tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce , and constitute
unfair labor practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
10. The General Counsel has failed to prove the allegations of the complaint in
Case No. 2-CA-7173 that the Respondent violated the Act by warning its em-
ployees , on or about February 3 , not to attend any meetings conducted by Coal,
a N L R B v Revere Metal Art Co , Inc, et al , supra, Paul M O 'Neill International
Detective Agency, Inc v . N L R B , 280 F 2d 936 (C A. 3) ; N L R B . v United States
Steel Corporation ( American Bridge Division), et al , 278 F 2d 896 (CA. 3) , and Marcus
Trucking Company , Inc , sups a To the extent that The Standard Transformer Company,
97 NLRB 669 . enfd 202 F 2d 846 ( C A 6), holds to the contrary , I consider that it has
now been overruled sub silentio by the Board ' s Brown-olds decision.
RELIANCE FUEL OIL CORP. 1183
Gasoline , Fuel Oil Teamsters , Chauffeurs, Oil Burner Installation Maintenance
Servicemen and Helpers , Local Union 553 , International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America; by permitting an agent
of Amalgamated Local Union 355, Retail , Wholesale and Department Store Union,
AFL-CIO, on the same day to enter its premises and solicit signatures on a petition;
and by permitting its officials to attend a meeting conducted by the last -named labor
organization , on its premises , on or about February 15, 1960.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , you are notified that:
WE WILL NOT threaten our employees with reprisals , or promise them bene-
fits, to encourage or discourage membership in any union.
WE WILL NOT change the working conditions of our employees under such
circumstances as reasonably tends to interfere with the free exercise of their
rights under the National Labor Relations Act.
WE WILL NOT give effect to our agreement of February 15, 1960, with Amal-
gamated Local Union 355 , Retail, Wholesale and Department Store Union,
AFL-CIO, or any modification , extension , renewal, or supplement thereto.
WE WILL NOT render illegal aid or assistance to the above -named Union, or
any other union.
WE WILL NOT recognize the above -named Union , or any of its successors, as
the representative of any of our employees for the purpose of collective bargain-
ing with respect to wages, hours , or other working conditions , unless such
union is certified by the National Labor Relations Board as the representative
of such employees.
WE WILL NOT encourage or discourage membership in any union by entering
into or giving effect to any contract or understanding whereby our employees
are required to join, or maintain their membership in, any union as a condition
of employment , except as permitted in Section 8(a)(3) of the National Labor
Relations Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their rights to self-organization , to form , join, or
assist any union , to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection , or to refrain from any or all
such activities , except to the extent that this right may be affected by an agree-
ment requiring membership in a union as a condition of employment , as per-
mitted in Section 8 ( a)(3) of the National Labor Relations Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959
WE WILL withdraw and withhold all recognition from the above-named
Union as the representative of any of our employees in the appropriate unit
described below for the purpose of dealing with us concerning wages, hours,
and other working conditions , unless such union is certified by the National
Labor Relations Board as the representative of such employees.
WE WILL bargain collectively upon request with Coal, Gasoline , Fuel Oil
Teamsters , Chauffeurs , Oil Burner Installation Maintenance Servicemen and
Helpers, Local Union 553, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , as the exclusive representative of our
employees in the appropriate unit described below with respect to wages , hours,
and other working conditions , and, if an agreement is reached , put it in the form
of a signed contract . The appropriate unit is:
All our oil burner service employees and fuel oil drivers, excluding office
clerical employees , salesmen , and supervisors.
WE WILL reimburse our employees and former employees in the above-
described unit for all dues paid to Amalgamated Local Union 355, Retail,
Wholesale and Department Store Union , AFL-CIO , on or after February 15,
1960.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain , or refrain from becoming or re-
maining, members of any union, except to the extent that this right may be affected
by an agreement in conformity with Section 8(a)(3) of the National Labor Rela-
tions Act , as modified by the Labor -Management Reporting and Disclosure Act
of 1959.
RELIANCE FUEL OIL CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Denver-Colorado Springs -Pueblo Motor Way and Brotherhood
of Railroad Trainmen Local No. 852, AFL-CIO, Petitioner.
Case No. 07-RC-1841 (formerly 30-RC-1841). January 5, 1961
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before John S.
Healey, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization involved claims to represent the em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks to represent a unit of hostesses employed on
the Employer's busses. The Employer moved to dismiss the petition
on the ground that the unit is inappropriate because it is composed
of only one employee.
The Employer is engaged in the business of transporting passengers
by bus. It operates from a number of terminals in the State of Col-
orado. Since 1957, the Employer has provided hostess service for its
passengers, on some of its bus routes, the so-called "Five Star" service.
At the time of the hearing such service was maintained only on one
route between the cities of Pueblo and Denver, Colorado. The service
consists of serving light snacks and refreshments, and furnishing
newspapers, magazines, and other courtesies to the passengers. There
is one full-time regular hostess who works 5 days a week on the route.
In addition one Ruth Robinson works 2 days a week as a relief hostess.
She is primarily a clerical employee, and works regularly 3 days a
week at the Pueblo terminal. There, she is covered by a collective-
bargaining contract which the Employer maintains with a labor or-
ganization other than the Petitioner. In the exercise of her dual
129 NLRB No. 135.