Russell Motors, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1972

198 N.L.R.B. 351 (N.L.R.B. 1972)

RUSSELL MOTORS, INC. 351
Russell Motors, Inc. and Local 259, United Automo-
bile, Aerospace, and Agricultural Implement
Workers of America International Union
Amalgamated Local Union 355 and Local 259, United
Automobile, Aerospace, and Agricultural Imple-
ment Workers of America International Union.
Cases 29-CA-2136 and 29-CB-920
July 21, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 21, 1972, Trial Examiner Stanley N.
Ohlbaum issued the attached Decision in this
proceeding. Thereafter, Respondent Amalgamated
Local Union 355 filed exceptions and a supporting
brief, and the Charging Party and the General
Counsel filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions,2 and to adopt his
recommended Order, except as modified herein.
The Trial Examiner recommended , inter aka, that
Respondent Local 355 jointly and severally with
Respondent Russell: (1) reimburse each employee of
Russell who has paid "or been charged," by checkoff
or directly under the unlawful agreement dated
September 10, 1970, any initiation fees, dues, or other
charges, together with "interest at the maximum
lawful rate under the law of the State of New York;"
and (2) reimburse the Charging Party (UAW, Local
259) "for its organizing expenses incurred in connec-
tion with the service employees of Russell Motors,
Inc., on and since September 14, 1970, and for its
reasonable attorneys' fees and disbursements in the
consolidated proceeding...." Further, the Trial
Examiner recommended, inter alia, that (3) Local 355
individually cease, for 3 years from the date of the
final Order in this case, from representing employees
of any employer unless and until it shall be duly
certified by the Board following a Board election;
and from issuing to any employer or employee any
authorization or membership application card unless
printed thereon were certain prescribed words stating
that the Board had found Local 355 "guilty of
collusion with employers to violate rights of employ-
ees," and that Local 355 "had been adjudged to be in
contempt of court." Finally, the Trial Examiner
recommended that (4) Local 355 mail a copy of the
"Notice to Members" to each member of Local 355;
and (5) that it cease utilizing officials, supervisors, or
agents of any employer to organize such employer's
employees.
Respondent Local 355 has excepted to the forego-
ing provisions of the Trial Examiner's recommended
Order on the ground that they are punitive and not
remedial. We find merit in these exceptions for the
reasons hereinafter set forth.
1. The Trial Examiner's Order would require
Respondents, jointly and severally, to reimburse
Respondent Russell's employees for all initiation
fees, dues, and other payments paid by or "charged"
to them, "plus interest at the maximum lawful rate
under the law of the State of New York."
The Trial Examiner did not specify whether the
"maximum lawful rate" was to be that applied by the
State of New York to retail installment sales, or
commercial or personal loans, or any of the myriad
other types of financial indebtedness. In our opinion,
the effective administration of the Act is best served
by remedies which, except as otherwise directed by
Congress, are uniformly applicable throughout the
Board's jurisdiction. That purpose cannot be
achieved by tailoring a remedy to fit the laws
regarding lawful interest rates of the various States
and Territories within ourjurisdiction.
Therefore, we find that the purposes of the Act can
best be effectuated by requiring Respondents to
make the reimbursements only for exactions actually
paid, whether directly or by checkoff, with interest at
i Respondent Local 355 has excepted to certain credibility findings
made by the Trial Examiner It is the Board's established policy not to
overrule a Trial Examiner 's resolutions with respect to credibility unless the
clear preponderance of all the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F.2d 362 (C.A. 3) We have carefully examined the record and
find no basis for reversing his findings
Respondent Local 355 also excepts to the Trial Examiner 's finding that it
and Respondent Russell did not execute their contract on September 10,
1970, on the ground , inter aha, that Russell's payroll records reflect that the
employees were paid on Friday , September 18, the increased wages required
by the contract, which wages were for the work week beginning September
10 and ending September 16 Therefore, Local 355 argues , the contract was
executed and the new wage rates were put into effect on September 10
We do not agree The record does not reflect on what date the payroll
records were made up, and therefore the payroll might have been calculated
as late as September 18 Furthermore, we find substantial evidence that the
contract was in fact executed on or after September 15, 1970
2 In adopting the Trial Examiner's conclusions with respect to Respon-
dent Russell Motors , Inc , we note that Russell has filed no exceptions to the
Trial Examiner ' s Decision
198 NLRB No. 58
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rate of 6 per cent per annum as explicated in the
Board's Decision in Isis Plumbing & Heating Co.,
138 NLRB 716, and we shall so order.
2. We find that the circumstances of this case do
not justify requiring Respondents to reimburse the
UAW for its organizing expenses incurred at Russell
!Motors since September 14, 1970, and for its
attorneys' fees and disbursements incurred because
,of this proceeding.
The UAW appeared at Respondent Russell's plant
(several days after Respondent Local 355 had begun
its organizing campaign, and conducted a brief
campaign of its own. The UAW thereafter demanded
precognition of Respondent Russell , which the latter
,refused. Whatever expenses were incurred by the
UAW would have been incurred even if Respondent
'355 had not committed the unfair labor practices
found. With respect to Respondent Russell, the Trial
Examiner stated that Russell should bear the costs of
the UAW's campaign because, despite the Board's
earlier order and the subsequent consent decree
entered by the United States Court of Appeals for
the Second Circuit on March 22, 1968, following
Russell 's unlawful refusal to bargain with the UAW,
Russell announced to its employees in September
1970 that it would not (and in fact did not) recognize
,the UAW as their representative. We do not adopt
this reasoning. Particularly since Russell has not
been charged with unlawfully refusing to bargain
with the UAW in September 1970, there is no
justification for requiring Russell to finance the
UAW's renewed organizing efforts at that time.
With respect to the reimbursement of the UAW for
its attorneys' fees and disbursements, we find that
such an order will not effectuate the policies of the
Act. As the Board stated in Heck's, Inc: 3
Such protection of the public interest as may
result from the charging party's participation in
litigation must be regarded, we believe, as
incidental to its efforts to protect its own private
interests . Given this statutory framework, we
conclude that the public interest in allowing the
3 191 NLRB No. 146.
4 Tiidee Products, Inc., 194 NLRB No. 198, and Tiidee Products, Inc., 196
NLRB No . 27, are inapplicable to the instant case. In those cases the Board
found that the frivolous litigation by the Respondent in those cases justified
an order for reimbursement of litigation expenses. In the instant case we do
not find the Respondent 's defenses to be frivolous because of the numerous
credibility resolutions made by the Trial Examiner and the other relatively
close factual and legal questions involved.
5 We rejected a similar recommendation in Raymond Buick, Inc., 173
NLRB 1292, as modified 182 NLRB 504. See also Vanella Buick Opel, Inc.,
194 NLRB No. 123.
6 We note in this regard that, while Respondent Local 355 has been
found by the Board and the courts in several prior cases to have engaged in
this type of unlawful conduct, yet in N. L. R. B. v. Amalgamated Local Union
355, No. 69-C-1560 (D.C.N.Y., Oct. 23, 1970), U.S. District Judge Dooling,
acting as Special Master for the Court of Appeals for the Second Circuit,
!found that Local 355 represents some 5,000 members in approximately 275
units among automobile dealers and wholesale and retail oil distributors on
iLong Island and Staten Island , New York, and New Jersey as far south as
Charging Party to recover the costs of its
participation in this litigation does not override
the general and well-established principle that
litigation expenses are ordinarily not recoverable.
Therefore, we will not adopt this provision of the
Trial Examiner's recommended Order.4
3. We find that the Trial Examiner's recommend-
ed Order that Respondent Local 355 cease for 3
years from representing any employees (not already
validly represented by it), unless and until it shall be
duly certified by the Board,5 and from issuing
membership application or authorization cards,
unless they contain statements that it has been found
guilty of collusion with employers in violating the
statutory rights of employees and has been adjudged
to be in contempt of court, are not appropriate
affirmative provisions to achieve the purely remedial
objectives of the Act. Neither of these provisions is
addressed to the particular unfair labor practices
committed by Respondent Local 355 in the instant
case. Although we agree with the Trial Examiner that
Respondent Local 355 has demonstrated a proclivity
for repeating the type of unlawful conduct in the
instant case, the employee rights violated herein will
not be preserved or restored by requiring Respon-
dent Local 355 to carry a scarlet letter.6 The
objectives of the Act will be adequately served by a
broad cease-and-desist order forbidding repetition of
similar conduct, which may hereafter be enforced by
a court of appeals, thereby subjecting Respondent
Local 355 to contempt proceedings in the event it
does not comply with such a court order.
We shall, therefore, not adopt these provisions of
the Trial Examiner's recommended Order.
4. Additionally, we reject the Trial Examiner's
recommendation that Respondent Local 355 be
required to mail a copy of the "Notice to Members"
to each of its members. Aside from the several cases
enumerated by the Trial Examiner, in which the
Board and the courts of appeals have already
established appropriate remedies,7 the instant case
contains no evidence that Local 355's other 5,000
Camden . Presumably , these members were lawfully organized.
7 E.g., in N.L.R.B . v. Amalgamated Local Union 355, Nos. 28451, 30236,
and 30405 , (C.A. 2, July 12, 1971), the court, adopting the findings of its
Special Master (see In. 6, supra ), adjudicated Local 355 and its
representatives , Tolkow and Stirt , in contempt of its earlier decrees by
engaging in conduct similar to that in the instant case and ordered, inter
alia, that:
In order to insure compliance with the foregoing provisions, it is
further ordered that upon failure of the respondents to purge
themselves of contempt as herein provided, this Court will deal further
with the matter by imposing a compliance fine of $10,000 upon the
respondent Local 355 and $2000 each upon the respondents Bernard
Tolkow and Henry Stirt for each future violation of the decrees of the
Court and if the violation is of a continuing nature , further compliance
fines of $1000 per day against Local 355 and $200 per day against
Bernard Tolkow and Henry Stirt for each day that such violation
continues and by such means as the Court shall determine including
the issuance of attachment against any Union officer or agent
responsible for such non -compliance.
RUSSELL MOTORS, INC.
;members, in some 275 bargaining units, were
organized in violation of the Act. Without that
evidence, no basis exists for this provision of the
recommended Order inasmuch as it is not directed
toward remedying any unfair labor practices.
5. Finally, we find that it is unnecessary to
require Respondent Local 355 to cease using any
employer's officials, supervisors, or agents to organ-
ize that employer's employees. Such conduct is
proscribed by the broad provision of the recom-
mended Order requiring Respondent 355 to cease
restraining or coercing any employee in the exercise
of his statutory right to engage in, or to refrain from
engaging in, protected concerted activities, which we
find amply warranted in this case and which we shall
therefore adopt.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner, as modified herein,
and hereby orders that Respondents, Russell Motors,
Inc., its officers, agents, successors, and assigns,
Village of Roslyn, Nassau County, New York, and
Amalgamated Local Union 355, its officers, agents,
and representatives, shall take the action set forth in
the Trial Examiner's recommended Order, as so
modified:
1. Delete from paragraph A 4a of the recom-
mended Order the words "or been charged" and the
words "the maximum lawful rate under the law of
the State of New York," and substitute for the latter
the words "6 percent per annum."
2. Delete paragraph A 5 from the recommended
Order.
3. Delete from section C of the recommended
Order paragraphs 2, 3, 5, and 7 and renumber the
remaining paragraphs accordingly.
4. Substitute the attached Appendix A and
Appendix B for those attached to the Trial Examin-
er's Decision.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial at which we and all other parties had
the opportunity to call witnesses and present evidence,
the National Labor Relations Board had decided
that Russell Motors, Inc., and Amalgamated Local
Union 355 have violated the National Labor Rela-
tions Act and it has ordered us to post this notice to
our employees and. to live up to its terms.
353
The National Labor Relations Act guarantees
certain rights, among them the right of employees to
select a representative of their own free choice to
bargain for them as a group with their employer. The
National Labor Relations Board has decided that we
violated this right of yours by assisting in bringing
Amalgamated Local Union 355 into the shop to
represent you, by our indicating to you that we prefer
that union in the shop rather than UAW Local 259,
and by saying that we would not deal with UAW
Local 259 but would go out of business instead. The
National Labor Relations Board has decided that
these actions and statements by us violated the law.
We will not do such things or say such things again.
WE WILL withdraw recognition from Local 355
as your bargaining representative.
WE WILL stop giving any effect to the "collec-
tive agreement" entered into between Russell
Motors, Inc., and Local 355, dated September 10;
1970. However, this will not affect your wage
rates, holidays, hospitalization, or other benefits.
WE WILL stop giving any effect to your
membership cards in Local 355, signed at any
time on or after September 8, 1970, and we will
not recognize Local 355 as your representative
unless Local 355 is officially certified as your
bargaining representative after a secret ballot
election held by the National Labor Relations
Board.
WE WILL stop giving effect to any pay deduc-
tion checkoff authorization signed by you, at any
time on or after September 8, 1970, for payment
to Local 355 of any union initiation fees, dues, or
other moneys; and we will return those cards to
you.
WE WILL, jointly and severally with Local 355,
refund to you, with 6-percent interest, all moneys
paid over by you to Local 355 or withheld by us
from your wages at any time since September 10,
1970, for the purpose of being paid over to Local
355 for union initiation fees, dues, or other
charges; and WE WILL make our books and
records available to agents of the National Labor
Relations Board to compute and to show that we
have complied with this requirement.
WE WILL NOT directly or indirectly give,
contribute, promise, or hold out any financial or
other support, aid, assistance, or preferential
treatment to any labor organization.
WE WILL NOT directly or indirectly authorize or
allow any official, supervisor, or agent of Russell
Motors, Inc., to enlist or solicit any of our
employees to join any labor organization.
WE WILL NOT in any manner interfere with,
restrain, or coerce any employee in his choice of
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UAW Local 259, or any other labor organization,
as his bargaining representative.
WE WILL NOT threaten to refuse to recognize,
negotiate, or deal with UAW Local 259 (or any
other labor organization) in the event our employ-
ees select UAW Local 259 (or any other labor
organization so selected) as their bargaining
representative.
WE WILL NOT threaten to shut down our shop
or business or any part of it if our employees
select UAW Local 259, or if any other labor
organization, as their bargaining representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
right to self-organization to form, join, or assist
any labor organization, to bargain collectively
through representatives of your own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such
activities.
We give you our assurance that you are all free to
join or not to join UAW Local 259 or any other
union (or, if you prefer, no union), as you see fit,
without any interference, restraint, coercion, threat,
or reprisal from us in any way, shape, or form.
RUSSELL MOTORS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Fourth Floor, 16 Court Street,
Brooklyn, New York 11201, Telephone
212-596-3535.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial at which we and all other parties had
the opportunity to call witnesses and present evidence,
the National Labor Relations Board has decided
that Amalgamated Local Union 355 and Russell
Motors, Inc., have violated the National Labor
Relations Act and it has ordered us to post this
notice to our members and to live up to its terms.
The National Labor Relations Act among other
things guarantees employees the right to be repre-
sented by labor organizations of their own free
choice. The National Labor Relations Board has
decided that Amalgamated Local Union 355 violated
this requirement of law by entering into a "sweet-
heart contract" with Russell Motors, Inc., in or about
September 1970, after using Russell supervisors to
get Russell employees to sign Local 355 membership
cards. The "sweetheart contract" recognized Local
355 and required Russell employees to remain
members of Local 355 with a wage "checkoff" of
union initiation fees and dues to Local 355. The
National Labor Relations Board has decided that
these activities violated the law. We will not do such
things again.
WE WILL stop giving effect to the "collective
agreement" entered into between Local 355 and
Russell Motors, Inc., dated September 10, 1970.
WE WILL stop giving effect to any Local 355
membership card signed by any service employee
of Russell Motors, Inc., on or after September 8,
1970.
WE WILL stop acting, purporting to act, or
holding ourselves out as the representative of any
service employees unit, or any member thereof, of
Russell Motors, Inc., unless and until we are
officially certified as bargaining representative
after a secret ballot election held by the National
Labor Relations Board.
WE WILL stop giving effect or demanding that
effect be given to any pay deduction checkoff
authorization signed by any Russell Motors, Inc.,
service employee at any time on or after Septem-
ber 8, 1970, for payment to Local 355 of any
union initiation fees, dues, or other moneys; and
WE WILL return all such authorizations to the
employees involved.
WE WILL, jointly and severally with Russell
Motors, Inc., refund to each service employee of
Russell Motors, Inc., with interest, all moneys
received by us from Russell Motors, Inc., pur-
suant to any checkoff authorization signed by
him on or after September 8, 1970, as well as any
moneys, with interest, for initiation fees, union
dues, or other charges paid by any service
employee of Russell Motors, Inc., based on any
membership card executed by him on or after
September 8, 1970. WE WILL make our books and
records available to agents of the National Labor
Relations Board to compute and to show that we
have complied with this requirement.
WE WILL NOT cause or attempt to cause any
employer to discriminate against any employee in
violation of Section 8(a)(3) of the National Labor
Relations Act, as amended.
WE WILL NOT in any other manner restrain or
RUSSELL MOTORS, INC. 355
coerce any employee in the exercise of the right to
self-organization, to form, join, or assist any labor
organization, to bargain collectively through
representatives of his own choice, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
AMALGAMATED LOCAL
UNION 355
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Fourth Floor, 16 Court Street,
Brooklyn, New York 11201, Telephone
212-596-3535.
TRIAL EXAMINER'S DECISION
PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHLBAUM, Trial Examiner: This consolidat-
ed proceeding under the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq (Act), was heard by
me in Brooklyn, New York, continuously from July 7
through July 23, 1971,1 with all parties represented by
counsel, who were afforded full opportunity to adduce
testimonial and documentary proof, cross-examine, argue
orally, propose findings and conclusions, and submit
briefs. Subsequent to the hearing, pursuant to time
extension granted on application, a letter memorandum
was filed on September 8, 1971, by counsel for the
Charging Party.
The principal issues presented are whether Respondent
Employer (Russell Motors, Inc.; Russell) violated Section
8(a)(2), (3), and (1) of the Act and whether Respondent
Union (Amalgamated Local Union 355; Local 355)
violated Section 8(b)(1)(A) and (2) of the Act, through
entering into and maintaining in effect between them an
Employer-assisted or "sweetheart contract" granting recog-
nition to Local 355 as the assisted and favored exclusive
bargaining representative of Russell employees, who were
thereby required to maintain their membership in Local
355 in order to retain their jobs, and required to pay union
fees and dues to Local 355 through automatic "checkoff"
payroll deductions by Russell, while at the same time
I The proceeding is based on charges filed by Local 259, United
Automobile, Aerospace and Agricultural Implement Workers of America
International Union (UAW Local 259) on September 28, 1970 (Case
29-CA-2136) and March 8, 1971 (Case 29-CB-920) with the Board's
Regional Director for Region 29, who on March 8, 1971, issued a complaint
in Case 29-CA-2136 and on March 31, 1971, consolidated the two cases
and issued a consolidated amended complaint, which was superseded on
April 15, 1971, by a second consolidated amended complaint That
relinquishing their right to strike; and through Russell's
threats to its employees to refuse to deal with, but instead
to go out of business if called upon to deal with, UAW
Local 259 (Charging Party here), a rival labor organization.
Upon the entire record2 and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. PARTIES; JURISDICTION
At all material times, Respondent Russell Motors, Inc., a
New York corporation with its principal office and places
of business in the county of Nassau, State of New York,
has been in the business of retail selling, distributing, and
repairing automobiles and related products. During the
representative 12-month period immediately antedating
issuance of the complaint, Russell derived gross revenues
exceeding $500,000 from that business. In the course of
those business operations in the same period, Russell
purchased and caused to be transported merchandise
valued in excess of $50,000 directly in interstate commerce
to New York State from other States.
I find that at all material times Respondent Russell
Motors, Inc., has been and is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act; that Respondent Amalgamated Local Union
355 has been and is a labor organization within the
meaning of Section 2(5) of the Act; and that jurisdiction is
properly asserted in this proceeding.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent Russell is a retailer and servicer of new
Buick and Opel automobiles, and also retails and repairs
used automobiles of American vintage. It has two places of
business, each in the village of Roslyn, Nassau County,
New York: one at 1039 Northern Boulevard (main office,
new-and used-car sales department, "Make-Ready" de-
partment, and body department and paint shop) and the
other at 1900 Northern Boulevard (parts department and
repair shop). The events to be described involved and
occurred at both locations.
Around nud-1966 Russell employees organized under
UAW Local 259, which after a Board-supervised election
was certified by the Board on July 20, 1966, as their
exclusive collective-bargaining representative (Case
29-RC-516). Thereafter, on November 16, 1966, in a
complaint proceeding instituted against Russell by the
Board, Russell stipulated-without admission of violation
of the Act-to the entry of a Board order and United
States Court of Appeals decree requiring Russell to cease
and desist from refusing to bargain collectively in good
complaint was further amended at the hearing herein
2 Hearing transcript as corrected by order on unopposed motion at the
hearing, and as further corrected in respect to certain obvious and
typographical errors listed on attached "Appendix C [omitted from
publication I" The voluminous transcript contains other obvious, typo-
graphical, insubstantial or not directly matenal errors which, for reasons of
practicality and in the absence of application by the parties, have been left
uncorrected
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faith with UAW Local 259; to cease and desist from
making unilateral changes in wages and other terms and
conditions of employment without bargaining with UAW
Local 259 ; to cease and desist from refusing to furnish
necessary bargaining data to UAW Local 259; to cease
and desist from inducing employees to abandon or
withdraw from membership in UAW Local 259 or
otherwise undermine that Union 's status as bargaining
representative , such as by initiating or circulating or
encouraging employees , to sign a petition rejecting that
Union ; and to cease and desist from " in any other manner
interfering with, restraining or coercing employees in the
exercise of rights guaranteed in Section 7 of the Act."
(Case 29-CA-744; G.C. Exhs. 7A and B .) The Board order
(March 5, 1968 ) and court Decree enforcing that order also
required Russell to bargain collectively with UAW Local
259 as Russell employees ' exclusive representative and to
post notices to its employees to that effect . (Ibid.)
According to Russell President Philpit , in the course of or
subsequent to the foregoing there was a strike or attempted
strike by UAW Local 259.
B. Russell Supervisory Hierarchy
Understanding of the events to be described requires
knowledge of the supervisory status in Russell 's organiza-
tional hierarchy of various persons involved in those
events. Accordingly, we initially consider that question in
relation to the persons with whom we are here concerned.3
Section 2( 11) of the Act defines a "supervisor" to be:
.. . any individual having authority , in the interest of
the employer, to hire , transfer , suspend , lay off, recall,
promote , discharge , assign , reward , or discipline other
employees , or responsibly to direct them, or to adjust
their grievances , or effectively to recommend such action,
if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment . [Empha-
sis supplied.]
Whatever a "supervisor" may otherwise be thought to be, it
is of course this definition which is controlling for purposes
of the Act and this proceeding . It is clear that the central
feature of the definition is direct or effective recommenda-
tory power over subordinates. Since Congress chose to
enumerate the quoted powers in the disjunctive , possession
of any of them is sufficient to constitute the possessor a
supervisor . NLRB Twenty- fifth Annual Report ( 1960), p.
45; N.L. R.B. v. Elliott - Williams Co., 345 F.2d 460, 463
(C.A. 7); N. L.R.B. v. City Yellow Cab Company, 344 F.2d
575, 580 (C.A. 6). It has frequently been pointed out that,
as succinctly capsulated in N.L.R.B. v. Swift and Company,
3 1 e, "service" employees-the same or substantially the same as the
unit in the 1966 Board representation and complaint proceedings (Cases
29-RC-516 and 29-CA-744) alluded to above The instant proceeding
involves no issue regarding the makeup or propriety of any appropriate
bargaining unit However, the contract executed between Russell and Local
355, referred to below, by its terms covered a "bargaining unit
consist[ing] of all service employees."
4 See also, e g, N L R B v Big Ben Department Stores, Inc, 396 F 2d 78,
82 (C A. 2)
5 Although the present tense is utilized here and elsewhere, unless
otherwise specified what is said applies to the times material to this
proceeding
292 F.2d 561, 563 (C.A. 1), quoted with approval in Marine
Engineers Beneficial Association v. Interlake Steamship Co.,
370 U.S. 173, 179, fn. 6, ". . . the gradations of authority
`responsibly to direct' the work of others from that of
general manager or other top executive to `straw boss' are
so infinite and subtle that of necessity a large measure of
informed discretion is involved in the exercise by the Board
of its primary function to determine those who as a
practical matter fall within the statutory definition of a
`supervisor.' "4
1. Philpit, Joseph Nocella, James Guido, and
Marquand
The head of Russell Motors, Inc., is5 Russell O. Philpit,
its president and principal, whose office is at the 1039
Northern Boulevard location. Immediately under him,
with office at 1900 Northern Boulevard, is Josephs
Nocella, who functions as chief of service personnel at
both locations. Joseph Nocella's immediate subordinate is
James Guido, who, as assistant service manager (with desk
outside of Nocella's office) functions as Nocella's stand-in,
exercising the latter's responsibilities (also at both loca-
tions) in his absence. Orval C. Marquand is manager of the
parts department (located at 1900 Northern Boulevard).
It is either admitted by the pleadings or was conceded at
the hearing7 that each of the foregoing is a Russell
supervisor within the meaning of the Act.
2. George Guido
Russell President Philpit described George Guido as the
manager of Russell's new-and used-car "Make Ready"
department, with the job title of "Foreman, New and Used
Car Department and Leasing Servicing Department,"
located at 1039 Northern Boulevard, where George Guido
has his office, According to Philpit, George Guido-who
functions immediately under Service Manager Joseph
Nocella-does not himself work on cars, but merely
schedules and assigns the work to other employees, whose
work he oversees. Credited testimony of Assistant Service
Manager James Guido, called as General Counsel's
witness, further establishes that his brother George Guido,
who as manager of Russell's "Make Ready" department
does not punch a timeclock, has the power to hire and fire
employees under him .8 Credited testimony of George
Guido himself (called as General Counsel's witness)
indicates that on the date he signed a membership card for
Local 355-elsewhere established as September 9, 1970-
he does not believe he was yet the manager of the "Make
Ready" department, but that he was such when, a few days
later (September 14, 1970-G.C. Exh. 9), he signed a
6 Joseph is here emphasized because Richard Nocella-Joseph's brother
-also figures prominently in events to be described
r After much testimony, in the cases of James Guido (especially by
witnesses Hugo Gruebel, Johnson, Turnll, Philpit, Joseph Nocella, and even
James Guido himself) and Marquand (especially by witnesses Dester, James
Guido, Johnson, Turnll, and Richard E Walker, as well as Marquand
himself), upon the basis of which I would have so found Assistant Parts
Department Manager Joseph van Lawrence, who takes Marquand 's place in
his absence, does not figure materially herein
8 In this capacity, George Guido replaced "Doc" Santini, Russell's
former "Make Ready" department manager, who left its employ around
July 1970
RUSSELL MOTORS , INC. 357
membership card for UAW Local 259. According to
payroll records of Russell, George Guido was shifted on
those records from a basis of $4 per hour to $195 per week
in the payweek commencing September 10, 1970. Credited
testimony of George Guido further establishes that as
"New Car" or "Make Ready" department manager he has
four men under him, who carry out his work orders and
whom he supervises; unlike he, they punch a timeclock and
are paid by the hour. It is clear from the foregoing, as well
as from corroborating testimony of other witnesses9 that at
least since September 10, 1970, or a day or two or so
thereafter, George Guido has been a supervisor of Russell
within the meaning of the Act,_and I accordingly so find.
3. Henry Mack
During the testimony when called by General Counsel. as
an adverse witness, Russell President Philpit conceded
Henry Mack to have been the foreman of its body shop,
including in September 1970, at its 1039 Northern
Boulevard premises, where, directly under Service Manag-
er Joseph Nocella, Henry Mack directed the work of the
body and paint shop employees, who carried out his
orders.10 In a later appearance, when testifying on behalf
of Respondent Russell, Philpit characterized Henry Mack
-along with Service Manager Joseph Nocella, Parts
Manager Marquand, and Assistant Service Manager James
Guido-as a person who "supervise[s ]" and "stimulate[s ]"
men to work and to be "more productive." Also testifying
on behalf of Russell, Service Manager Joseph Nocella,
referring to service personnel who receive commissions in
addition to salary, including Henry Mack-as well as
himself (Joseph Nocella), Marquand, James Guido, and
Hugo Gruebel-on direct examination characterized them
(including Henry Mack) as "part of management . . . they
are . . . considered supervisors...." A number of
witnesses called by General Counsel further established the
supervisory status of Henry Mack. Thus, Russell Assistant
Service Manager James Guido-himself a supervisor-
identified Henry Mack as the Russell body shop manager
and foreman who, compensated on a commission as well
as salary basis, while lacking the direct power to hire and
fire, nevertheless does have the power effectively to
recommend hiring and firing, and has effectively recom-
mended hiring. Henry Mack himself, called by General
Counsel and impressing me as a highly reliable witness,
testified that he is indeed the foreman of the Russell body
shop, having been promoted to that status in June 1970, by
Service Manager Joseph Nocella, who instructed him that
he no longer need punch the timeclock; that between June
and September 1970 he not only received a weekly raise
but also had commissions added and is the only person in
the body shop thus compensated; that in his capacity as
body shop foreman, although he himself works, he has
under and subject to him three employees who carry out
his orders. The testimony of Henry Mack further establish-
es that, although he does not possess the authority himself
to hire, fire, suspend, transfer, promote, or reward any
employee, he has effectively recommended action of that
nature to Service Manager Joseph Nocella, who has
invariably followed those recommendations as well as
Mack's overtime schedules; and that he (Henry Mack) also
gives men time off, in Nocella's presence as well as in his
absence. Body shop employees Palmer, Horace Mack, and
Castano all identified Henry Mack as the body shop
foreman under whom they work and from whom they take
orders and who grants time off; and who, unlike they, does
not punch the timeclock and has a desk.
Upon the basis of the foregoing, I find that at the times
here material Henry Mack was a supervisor of Russell
within the meaning of the Act.
4. Richard E. Walker
Richard E. Walker is carried on the Russell pay records,
at the times here material, as a weekly paid employee, at
$150-$175 per week. Testifying as General Counsel's
adverse witness, Russell President Philpit characterized
Richard Walker as a "Working Foreman ... directing the
paper work to . . . the mechanics . . . partially," in
August-September 1970, subsequent to which Philpit
"guess[es]" he was taken off that status. Philpit conceded,
however, that when the volume of work required, Richard
Walker "direct[d] the work of" others. Testifying later, as
Russell's own witness, Philpit accepted the characterization
of Richard Walker, during at any rate the period from
September 8-18, 1970, as the "shop foreman over the
mechanics" who issued "work orders to the mechanics."
Additional light was shed on the status of Richard E.
Walker by other witnesses, including not only Walker
himself but two of Russell's supervisors-Orval Marquand
and James Guido. Thus, Russell Parts Manager Marquand
-a Russell employee of 19 years' standing-expressly
referred to Richard Walker as the "shop foreman" and
"supervisor" of Richard Nocella, who figures prominently
in events to be recounted. Russell Assistant Service
Manager James Guido also identified Richard Walker as
his (i.e., James Guido's) successor as (repair) shop
foreman, Walker having been promoted to that job in 1969
and holding it into 1971 with about 10 mechanics under
him and subject to his orders and supervision. (According
to Richard Walker himself, however-no longer employed
at Russell, having quit there in July 1971-it was not until
February 1970 that he was promoted to repair shop
foreman from his former position as service adviser,
although he agrees that he continued to be the repair shop
foreman until early 1971.) Richard E. Walker's testimony
establishes that as repair shop foreman he was directly
under Service Manager Joseph Nocella; that he discontin-
ued punching the timeclock and was placed on a weekly
salary of $170 plus 1-percent commissions on labor (no
mechanics received any commission); that he supervised
10 to 11 mechanics and their work in the repair shop at
Russell's 1900 Northern Boulevard premises; that he
himself did no mechanical work, but functioned at a desk;
that he exercised his independent judgment in carrying out
his job and its responsibilities; that he had no power
himself to hire or fire; and that he had the power, in the
9 E g, James Guido, Henry Mack, and J C. Mack
10 Philpit denied, however, that Henry Mack has hiring power As shown
above, this is unessential to possession of supervisory status, in view of the
disjunctive nature of the Act's definition
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence of Service Manager Joseph Nocella, to give men
time off. Russell mechanic James Turnll, an impressive
witness presented by General Counsel, identified Richard
Walker as his shop foreman who assigned and also
reassigned or switched the jobs to be done by Turrill and
the other mechanics, all of whom regarded Walker as their
"boss" and carried out his orders. Turrill corroborated that
Walker himself did no mechanical work, and pointed out
that on duty Walker wore a white shirt and blue pants,
unlike the mechanics, who wore uniforms. Turnll recalled
that when Service Manager Joseph Nocella introduced
Richard Walker to the mechanics, Nocella told them that
Walker was their "boss" and ordered them to "do what he
[Walker] says" in the same way as if Nocella himself were
saying it. General Counsel's similarly highly impressive
witness Robert Johnson, a mechanic for 20 years with
Russell, likewise identified his supervisor, during at least
the period here directly material-August-September
1970-to have been Richard Walker, as also did mechanic
Hopkins and lubrication man Dester. Russell's present
supervisor Hugo Gruebel further confirmed Walker's
supervisory status at that time.
Upon the basis of the foregoing I find that at the times
here material Richard E. Walker was a supervisor of
Russell within the meaning of the Act.
this meeting and discussion was dissatisfaction among the
employees concerning their existing hospitalization bene-
fits.12 According to employee Guttilla, there was even
strike talk. Richard Nocella-the brother of Service
Manager Joseph Nocella-was concededly present at this
meeting. At this time Richard Nocella was employed as a
mechanic in the repair shop under Repair Shop Foreman
Richard E. Walker.
The unionization sentiment among Russell employees in
August 1970 was known to the management of Russell.
Employee Guttilla testified credibly that Service Manager
Joseph Nocella spoke to him about the strike talk among
the employees; this was undemed by Nocella. Russell
President Philpit, on direct examination as a witness for
Respondent Russell, testified that late in August-in
connection with claims or indications of inadequate
hospitalization coverage for the wife of employee Richard
Walker-he (Philpit) was informed by Service Manager
Joseph Nocella (as well as other supervisors) that there was
"Union activity" and "Rumbling .... In other words,
Union activity" and that his (Philpit's) expressed reaction
to this was, "[There has] of course always been this, a little
of it in our business and hands off. . . . Let' s see if we can
take care of the things that are wrong." Nocella's response
was, "I don't want a Union shop," with which Philpit
agreed. 13
C. August-September 1970
The account which follows, constituting my findings, is
based on a cumulation of testimony-extraordinarily
massive and covering thousands of pages-to the extent
credited, of witnesses who testified, as well as documentary
proof. Although there are differences in details, such as
precise dates and times-typically encountered during
trials-in the main important aspects of the case, there is
an impressive unanimity of testimony among General
Counsel's witnesses (principally Russell employees), partic-
ularly considering the large number, almost 25, brought to
the witness stand and subjected to rigorous cross-examina-
tion by extremely able counsel.
1. August 197011
There was unionization talk among Russell employees in
August 1970. Around mid-August (1970), 15 to 20 Russell
employees met in the shop (i.e., 1900 Northern Boulevard)
locker room, on their own' time, in the absence of any
foreman or supervisor, and discussed the subject of
collective action through a union, without specific mention
of any particular union. Figuring in and perhaps triggering
11 Credited testimony of General Counsel witnesses Stagnitta, Guttilla,
and Hopkins ; as well as that of Russell President Philpit
12 It is said that one of the employees (Richard Walker) was confronted
with the necessity of paying over $950 of an $1,100 hospitalization bill for
his wife Russell President Philpit put the figure as high as $3,000 or $4,000
supposedly "not covered by insurance "
13 The foregoing is in essence corroborated by the testimony of Russell
Service Manager Joseph Nocella, who-also as a Russell witness-stated
that he reported to President Philpit in August that there was unionization
talk among the employees stemming from their dissatisfaction over existing
hospitalization benefits because of the adverse experience of employee
Walker According to Nocella, Philpit told him to "bow out leave the
2. September 197014
Shortly after the foregoing August organizational activity
and meeting of employees, which was concededly known
to Russell management as shown, Richard Nocella
-brother of Service Manager Joseph Nocella-stated to
employees that he "had inquired about" a union and that
"not that he personally got the union, but he had gotten
cards for Local 355 for representation," which a few days
later he undertook to distribute among Russell employees
under circumstances to be described. Although, as will be
recalled, at the August organizational meeting of employ-
ees no foreman or supervisor was present, meetings
following the distribution of the Local 355 cards by
Richard Nocella were attended by Russell supervisors.
a. Enlistment of Russell employees into (Local 355
Numerous Russell employees provided highly consistent
accounts as to how they came to sign Local 355
membership cards. Invariably their accounts centered
around Richard Nocella-the brother of Russell Service
Manager Joseph Nocella, the top service supervisor of the
Russell hierarchy-or one or another Russell supervisor as
not only the source of their Local 355 cards or the
decision up to the men " However, I prefer and accept the version of Philpit
himself, who makes no mention of this remark Nocella now ascribes to him,
at any rate, if Philpit made such a remark ("bow out," etc) to Nocella, the
latter obviously did not follow it, as will be shown
i4 Testimony, as and to the extent credited, of General Counsel witnesses
Castano, Dester, Diamond, George Guido, James Guido, Hugo Grubel.
Richard Gruebel, Guttilla, Hopkins, Jefferson , Johnson, Kennedy, Henry
Mack, Horace Mack, J C Mack , Marquand, Palmer, Philpit, Renaldo,
Stagnitta, Stirt, Turrill, James Walker, Richard E Walker, and Williams, of
Respondent Employer ( Russell) witnesses Joseph Nocella and Philpit, of
Respondent Union (Local 355) witnesses Bisciglie, Richard Nocella, and
Stirt, and documentary evidence
RUSSELL MOTORS, INC.
instrument of their joining Local 355, but also as the
leaders of the Russell unit of Local 355. The Local 355
cards were openly distributed, and the solicitations of
employees to sign and join were openly made, almost
entirely during paid working time, not only without
objection or interference, but in many cases with the active
encouragement, support, and even participation of Russell
supervisory personnel.15 At no time did any Local 355
representative solicit any of those cards, nor apparently
was any Local 355 representative observed on or off the
premises, by rank-and-file employees other than Richard
Nocella, until after these cards were signed. Since almost
all of the Local 355 cards are dated September 9, 1970,16
and there is no contention that any Local 355 card was
executed prior to that date, it would appear that almost all
of the employees with which we are here concerned were
solicited and executed the Local 355 cards on September 9,
1970.
The employees' descriptions of the circumstances under
which they signed the Local 355 membership cards is
interesting and significant. Mechanic Turrill, a highly
credible witness, testified that he signed the card only
because Service Manager (i.e., top supervisor) Joseph
Nocella's brother, Richard Nocella-then also employed
in the Shop-"out of the clear blue sky" asked him to,
saying, "Here, sign it"; and that when Turrill "had second
thoughts after I signed it" and attempted the next day to
get the card back, Richard Nocella refused to return it to
him. Also solicited on September 9 by Richard Nocella to
sign Local 355 cards were Service Adviser (assistant or
associate to Assistant Service Manager James Guido)
Hugo Gruebel, mechanics Dester, Guttilla, Hopkins,
Johnson, Renaldo, and Stagnitta, parts department em-
ployee James F. Walker, and pickup-deliveryman Richard
E. Gruebel. Body shop employees Palmer, Horace Mack,
and Castano received their Local 355 cards from their
supervisor, Body Shop Foreman Henry Mack; 17 as did
"Make-Ready" department porter Jefferson. When lubri-
cation man Dester was handed a Local 355 card by
Richard Nocella, during worktime, Nocella informed him
that "we [are] going to get a union" and asked him to sign
the card. When Richard Nocella gave mechanic Stagnitta a
Local 355 card, also during worktime, Nocella told him
that "They wanted to have a union in ... he knew this 355
union." (Emphasis supplied.) Stagnitta told Nocella that he
was opposed to a union; he nevertheless signed it for
Nocella. When Richard Nocella gave mechanic Renaldo a
15 Russell President Philpit in cautiously worded testimony stated that
there is no "written," "strict ," or "definite" oral rule against solicitation, so
long as it does not "interfere with work," even though on worktime
However, his immediate lieutenant , Service Manager Joseph Nocella, swore
to the contrary that not only is there indeed a company rule (although not
"posted") against solicitation on company time, but that he also "warned"
employees-among them "may be" his brother Richard-that they were not
to hand out union cards Although on an absolute basis it is difficult to
choose between two interested witnesses of this caliber, on balance I prefer
and credit Joseph Nocella's testimony, which is in the nature of an
admission against interest, in this aspect, that there was indeed a company
rule against solicitation during worktime
16 The cards were executed in duplicate Of 24 different persons' cards
received in evidence (3 cards were received for Williams), 20 are dated
September 9 Of the remaining four, Castano's card is dated "8-9," an
obvious error for 9-9, the date on Bartolotta 's card is changed from "10/8"
to "9/8", Cnvello's card is dated "9-14", and J C Mack's card is dated
359
Local 355 card, Nocella told him he had obtained the cards
"from a fellow employee that he knew at another
dealership." 18 When handing mechanic Guttilla the Local
355 card for signature, Richard Nocella said merely, "Here
is the union card." Nocella told mechanic Hopkins, also at
work, "It is the union card, you know, you got to sign them
and give them back."
Various body shop employees obtained Local 355
membership cards from the desk of their supervisor, Body
Shop Foreman Henry Mack. New car ("Make Ready")
department porter Jefferson also obtained it from and
signed and returned it to the same place after the body
shop foreman "asked me [Jefferson] if I would like to have
a union in the shop" and informing him that he had
received the cards from Richard Nocella. Body shop
painter Horace Mack similarly signed a Local 355 card
which he obtained from the desk of the body shop foreman
after the latter told him and other body shop employees,
during worktime, that there were Local 355 union cards on
his desk which had been "brought over . . . from the other
shop . . . for a union," which the employees would have to
fill out if they wanted a union in which case "you will be
getting a little bit more benefits and plus I think you will be
making a little bit more money, you know." Bodyman
Castano likewise signed a Local 355 card after he was
asked by his supervisor, Body Shop Foreman Henry Mack,
"if you want to join the union with the majority of them?"
Car polisher J.C. Mack of the "New Car" or "Make
Ready" department signed the Local 355 card and handed
it back to his supervisor, "Make Ready" Department
Manager or Foreman George Guido.
Hugo Gruebel is now and has been since about February
1971 a Russell supervisor. In September 1970, as a "Service
Adviser"-the only such other than Assistant Service
Manager James Guido-while not technically a supervisor,
Gruebel was nonetheless closely allied with management
and did not work on cars, merely estimating and pricing
jobs, writing up orders, and checking out the work of
mechanics, at his own desk, not punching a timeclock, and
compensated on a straight salary plus commission basis.
Called as a witness by General Counsel, Hugo Gruebel
testified that he, as well as Assistant Service Manager
James Guido, was handed Local 355 cards on September 9
at Gruebel's desk, during worktime, Gruebel signed at
once, but-according to Gruebel-James Guido suggested
that "Maybe we should hold off signing the cards until we
check with another union." Nocella, however, said that
"10-6 " Although one of Stagnitta 's cards is dated "9-9," the duplicate
bears no date, and although two of Williams' cards are dated "9 -9," one of
two of his cards produced by Respondent Local 355 bears the date "9-8"
overwritten over "10-8 "
17 According to Palmer, after he heard from an unremembered
"somebody" that there were "some union cards on the desk there for me to
sign," he took a Local 355 card from the desk of Body Shop Foreman
Henry Mack, signed it at home, and placed it on Henry Mack's toolbox
Palmer denied that Henry Mack ever spoke to him about the card
However, Body Shop Foreman Henry Mack credibly testified, as will be
shown, that he did indeed ask Palmer to sign it I credit Henry Mack's
testimony over that of Palmer, an evasive witness who prevaricated at the
hearing regarding his signature
is This was untrue, since according to Richard Nocella's own testimony
he had obtained the Local 355 cards only from its official and representa-
tive, Henry Stirt, who corroborated this.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"The men already had this union on the line, that we had
the cards for this one and he didn't see any sense in getting
another one." Gruebel and James Guido-still according
to Gruebel, a most impressive witness-exchanged "won-
der[ed]" about "why [Local 355 was] brought in." About a
half-hour later, Gruebel heard James Guido report the
union solicitation activity to Service Manager Joseph
Nocella.
At the hearing, Russell mechanics, Turrill and Johnson
-highly credible witnesses, the latter a Russell employee
for 20 years-swore that during a recess in the hearing they
heard Repair Shop Foreman Richard Walker state, in the
presence of Richard Nocella, that he (Walker) had been
asked by Russell Service Manager Joseph Nocella to pass
out Local 355 cards and that Walker refused to do so, at
which point Richard Nocella entered Joseph Nocella's
office.19 This testimony of Turrill and Johnson was in
substantial effect corroborated by the testimony of Russell
Supervisor Richard E. Walker himself; and it is also like
that of Assistant Service Manager James Guido, who
swore that toward the end of June (shortly before this
hearing) Repair Shop Foreman Richard Walker had also
stated in his presence-as well as in the presence of Hugo
Gruebel and office clerk Melvin Cohen-that he (Walker)
had been given Local 355 membership cards by Joseph
Nocella notwithstanding the fact that Walker was a part of
management. Neither Gruebel nor Cohen was called to
dispute any of the foregoing. Furthermore, Mark Holt
Kennedy, a university student employed at Russell,
testified credibly that when he went to Service Manager
Joseph Nocella's office to tell him that he (Kennedy) had
missed a "meeting" of the employees, Service Manager
Joseph Nocella himself thereupon gave him Local 355
cards (in duplicate, and also a blue card for the welfare
plan or hospitalization) to sign. Kennedy signed and
returned the cards to Joseph Nocella's desk. Although
Kennedy's Local 355 membership card was not produced
or accounted for, Kennedy produced a Local 355 member-
ship card which he had obtained from Service Manager
Joseph Nocella's desk, after Richard Nocella had told him
that "Joe [Nocella] has them down on his desk ... for
safekeeping"; Kennedy swore that when he took this Local
355 card off the pile on Joseph Nocella's desk, right
underneath it was a similar card of Joseph Nocella.20
No less interesting or significant than the testimony of
Russell rank-and-file employees is that of Russell supervi-
sors and also its principal (Russell Philpit), regarding the
circumstances under which Russell employees were enlist-
ed into Local 355. Thus, Parts Department Manager
Marquand-called as a witness by-General Counsel-testi-
fied that during working hours early in September 1970
Richard Nocella took him to a parked Lincoln or Cadillac
in the Russell parking lot, and there introduced him to
19 Although-still according to Turrill's description of the overheard
conversation-Richard Nocella, who was present dunng the described
statement by Walker during the hearing recess, denied it, Richard Nocella
was hardly in a position to know what occurred between his brother (Joseph
Nocella) and Walker before Richard Nocella entered Joseph Nocella's
office Testifying as Respondent Local 355's witness, Richard Nocella
conceded he was not in the office at the time
20 No Local 355 card for Joseph Nocella was produced at the hearing
Because of numerous inconsistencies, hedging, evasiveness, and pretended
or actual memory failures which characterized Joseph Nocella's testimony,
Local 355 Representative Stirt . Although Marquand
(employed at Russell for some 18 years) informed Stirt that
he was manager of the parts department, Stirt told him he
could belong to Local 355- in constrast to another union
previously involved in organizational activity at Russell
-and gave him a card. Stirt also gave Marquand three
more Local 355 cards "because that's [your] department,"
after Marquand asked for them-"[You, Stirt,] give me
three cards and Richie [Nocella], you take the rest."
Returning to the Russell premises , Marquand distributed
the cards to his subordinates van Lawrence ( assistant
manager of parts department) and probably James F.
Walker, and after signing his own returned it to Richard
Nocella. All of the foregoing was, according to Marquand,
done during regular working time , as likewise was Richard
Nocella's collection of signed cards to the extent observed
by Marquand.
Similarly, Assistant Service Manager James Guido-also
called by General Counsel, and a most impressive
witness 21-testified that on Friday, September 11, 1970, he
was approached in the shop by Richard Nocella, who
asked him to sign a Local 355 membership card, stating,
"We want the union . That's it." Guido did not sign, but
reported the matter to Service Manager Joseph Nocella,
whose reaction was merely to indicate that the employees
were acting within their rights, although Nocella reported
the situation to President Philpit.
Russell New-Car or "Make Ready" Department Manag-
er George Guido-also called by General Counsel-testi-
fied credibly in like vein that during working hours on
September 8 or 9 he was approached by Richard Nocella
to sign a Local 355 membership card. Nocella told Guido,
"When you get a chance, sign the card and I'll pick it up."
Guido returned the signed card to Nocella the next day,
when Nocella "came around to pick up the rest of the
cards" and asked him (Guido), "Have you got your card
ready?"
Richard E. Walker, formerly 22 the Russell repair shop
foreman, also included in the General Counsel's over-
whelming array of witnesses, testified credibly that early in
the morning of September 9, during working hours, he
received a Local 355 membership card from Service
Manager Joseph Nocella in the latter's office in the presence
of Joseph Nocella's brother Richard, who was then a
subordinate of Walker in the repair shop. The circum-
stances were that Walker had gone into Service Manager
Joseph Nocella's office on business . There, on Joseph
Nocella's desk, he observed a pile of cards, one of which
Joseph Nocella handed to Walker. Both Nocellas informed
Walker that they were "bringing the union in" and that
this-a Local 355 membership card-was "the card."
Walker remonstrated that he did not think that as shop
foreman he should have a union card. Service Manager
and because of my favorable impression of Kennedy's testimonial
demeanor in contrast to that of Nocella, f prefer and accept Kennedy's
account
21 That the testimony of such witnesses , still employed by Respondent
Employer and thus in a sense testifying at considerable economic risk, may
be considered to have added reliability, see, e g, Wirtz v B A C Steel
Products, Inc, 312 F 2d 14, 16 (C A 4), Georgia Rug Mill, 131 N LRB 1304,
1305, fn 2, enfd. 308 F 2d 89 (C A 5)
22 Walker quit Russell 's employ in July 1971
RUSSELL MOTORS, INC.
Joseph Nocella's response was, "Everybody is going to
have the cards." Later in the day, Walker gave his signed
Local 355 card to Richard Nocella. Although Joseph
Nocella flatly denied the foregoing episode or even having
Local 355 cards on his desk,23 considering the elaborate
framework of inconsistencies , evasions , and alleged memo-
ry defects which characterized Nocella's testimony, and
based on testimonial demeanor observations and compan-
sons, I discredit Nocella's denial and credit Walker's
testimony.
Body Shop Foreman Henry Mack, in Russell's employ
for some 12 years, was also called to the stand by General
Counsel. He testified credibly that on or about September
9 during working time he was called on the Company's
intercommunicating phone by Richard Nocella, who told
him that he (Nocella) was sending Mack "cards for me and
the guys that are in [my] shop." Upon receipt from Nocella
of "a stack" of the Local 355 cards, Body Shop Foreman
Henry Mack then told his subordinates "what the cards
were for" and that he had received them from Richard
Nocella, who, according to Mack, was well known around
as Service Manager Joseph Nocella's brother. Thereafter,
Henry Mack "reminded [the men] that the cards were still
there on my desk" and he asked them whether they had
signed them , telling them "the purpose of the union" and
the benefit of a "good" union, Richard Nocella having told
him how "good" a union Local 355 was. When Henry
Mack obtained signatures on all of his subordinates ' cards,
he returned them, together with his own, to Richard
Nocella, who-as testified by Mack-was pressing him to
return them "as quick as possible ... it is better for the
shop and better for the boys." As has already been
indicated (testimony of J.C. Mack), Body Shop Foreman
Henry Mack was also a source of supply of Local 355
cards to "Make Ready" department personnel. Foreman
Mack readily admitted this in his testimony, conceding
that he also "told them [in the `Make Ready' Department]
that the cards were on my desk" in the body shop, what
they were for, and that, based on what Richard Nocella
had told him, Local 355 was a "good union."
Called as a witness by Respondent Local 355, Richard
Nocella testified that he is 33 and the brother and a
subordinate of Russell Service Manager Joseph Nocella,
who is 35, and that at some time previous to the events in
September 1970 here involved, his brother Joseph was his
immediate supervisor. According to Richard Nocella,
following August (1970) unionization talk, at which he was
present , among the men, looking toward better wages and
benefits , he procured the telephone number of Local 355
from an unidentified "friend," and contacted Local 355
Representative Henry Stirt just before Labor Day. Stirt
met Richard Nocella at the plant on the day after Labor
Day, September 8. Stirt, who was also called as a witness
for Respondent Local 355, conceded during his testimony
that when he first met Richard Nocella (i.e., on September
8) he knew or learned that Richard Nocella was "the
brother of the company's manager [Joseph Nocella]."
Although on direct examination Richard Nocella testified
that he brought Russell Parts Department Manager
23 It will be recalled that employee Kennedy also credibly swore to
seeing those cards on Joseph Nocella's desk
361
Marquand with him to his meeting with Stirt at the plant
on September 8, on cross -examination Nocella conceded
that he first met with Stirt alone. Stirt confirmed such a
brief prior private meeting with Nocella. After Nocella, in
Parts Department Manager Marquand 's presence, received
from Stirt a supply of Local 355 membership cards,
Nocella distributed the cards among Russell employees
that day and possibly also the following day (i.e.,
September 8-9), concededly during working time . Richard
Nocella testified that he conducted the Local 355 member-
ship card solicitation at the 1900 Northern Boulevard
premises , also giving some cards to Parts Department
Manager Marquand and (conceded on cross-examination)
possible also to James Guido (assistant service manager);
and that for the 1039 Northern Boulevard location he left
cards there with or for Body Shop Foreman Henry Mack.
It is Richard Nocella 's testimony that when handing out
the Local 355 cards he said "to all the fellows" that "This is
Union 355 that I am bringing in and these are the cards
that have to be signed for it." According to Richard
Nocella, by the following day, September 9, he had
received 21 signed Local 355 membership cards and
notified Stirt, who instructed him to "get together a four-
man committee . . . to discuss [ed] the money and
classifications of the men... .
Called as Respondent Russell 's witness , Service Manager
Joseph Nocella, who is in charge of all service activities at
both locations and functions directly under company head,
Russell Philpit , denied knowing `from my brother " 24 that
his brother Richard Nocella was distributing union cards
on company time , and further denied (as did his brother
Richard) any conversation with his brother on the subject
of distributing union cards. I was extremely poorly
impressed with the testimonial demeanor of this witness (as
well as his brother) and accordingly do not credit his denial
of knowledge that his brother Richard was distributing the
Local 355 cards, preposterously unlikely as it is under the
circumstances . Furthermore, this same witness (Joseph
Nocella) also testified that when he learned from Assistant
Service Manager James Guido-as, it will be recalled,
testified to by the latter-that Richard Nocella was
distributing union cards , he (Joseph Nocella) reported it to
Russell Philpit, the head of the Company, who did not
instruct him to do anything about it. This without more is a
concession of knowledge on Joseph Nocella's part of his
brother Richard 's activities. As to Joseph Nocella 's denial
that he ever spoke to his brother Richard-or to Supervi-
sors Marquand and Henry Mack-about distributing the
Local 355 cards, I have no difficulty under the circum-
stances in believing that Joseph Nocella indeed did not talk
to them about not distributing those cards.
Notwithstanding the testimony of Russell Service Man-
ager Joseph Nocella that he expressly informed his chief,
Company President Russell Philpit, about Richard Nocel-
la's Local 355 membership card distribution activities,
Philpit-testifying on his own behalf as Respondent
Russell 's witness-swore that he was unaware, prior to
signing a collective agreement with Local 355, allegedly on
September 10, as to who had solicited membership cards
24 Emphasis supplied.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Local 355. On cross-examination, however, Philpit
conceded that he had indeed been informed by his
immediate subordinate, Service Manager Joseph Nocella,
that Richard Nocella was distributing union cards-these
being the Local 355 cards dated September 9 upon the
basis of which he promptly recognized Local 355 and
allegedly executed a collective-bargaining agreement with
it on September 10. Philpit conceded that he did not
instruct Joseph Nocella to tell his brother (Richard) to
desist from distribution of Local 355 cards-a statement
which I fully accept, but which under all the circumstances
is strongly consistent with the desire if not intention of
raising no impediment to Russell employees being exclu-
sively "represented" by Local 355. Perhaps particularly
notable in this connection is the sharp contrast in Philpit's
warning-by his own admission-to James Guido that he
had violated a company rule by attempting to bung in a
different union, namely, UAW Local 259 (as will be
shown); Philpit conceded he uttered no such warning or
statement in regard to Local 355. Based on my adverse
reaction to Philpit' s testimonial performance-which was
characterized by inconsistencies, evasiveness, and exqui-
sitely sharp semanticisms-as well my demeanor observa-
tions , I reject Philpit's equivocating denial of awareness of
any activity in his Company on behalf of Local 355 prior to
being called upon to sign a collective agreement with it on
September 10 (which he assertedly promptly did, as he
claims).
b. The Local 355 "Employees' Bargaining
Committee"
A substantial number of the Local 355 membership
cards received by Richard Nocella from Local 355
Representative Stirt on September 8 were thus signed and
back in Nocella's hands by September 9-some 21 of
them. It will be recalled that, when Nocella so informed
Stirt on September 9, Stirt instructed Nocella to "get
together a four man committee . . . to discuss[ed] the
money and classifications of the men." This Nocella
proceeded promptly to do. According to Nocella's testimo-
ny, the four-man committee he designated consisted of (in
addition to Nocella himself) Parts Department Manager
Marquand, "Make Ready" Department Manager George
Guido, Body Shop Foreman Henry Mack, and Mechanic
Renaldo-three out of the four supervisors. Nocella
testified that he personally selected the "committee," and,
25 Testimony of Richard Nocella, in essence corroborated by Sint
26 This concession is of potential importance considering Respondents'
contention that the collective agreement between them was signed on
September 10, as discussed below The testimony of employee Dester also
indicates that the "negotiating committee"-which he and some other
employees were under the impression the employees "elected" (employee
Guttilla thought about a dozen employees did so after Supervisor
Marquand told them "we ought to have a little committee", although some
employees swore they no time even heard about such a committee)-met
with Stirt on September 15, on the day following two meetings of employees,
one with Local 355 Representative Stirt and the other with UAW Local 259
Representative Diamond, on September 14 (Monday) Nevertheless , as will
be shown, Respondents contend they signed their collective agreement on
September 10, which would have been 5 days before any "negotiating
committee" even met for the first time with Local 355 Representative Surti
27 Consider in this connection , again-see In 26 , supra -Respondents'
key contention , discussed below, that the collective agreement was signed
by them on September 10 Marquand testified that when this "committee"
during working time, so informed those he selected; he
further testified , on cross-examination , that "just the
committee" was to talk things over with Stirt. Such a
meeting , of this "committee" with Stirt , took place
thereafter at a local restaurant. Mechanic Renaldo-the
only nonsupervisory employee on the "committee" of four
designated by Nocella-declined to attend although
notified .25 The date of this meeting with Stirt is in
doubt-although Nocella testified on direct examination
that it took place on September 9, on cross-examination he
stated it was on September 9, 10, or thereafter; and then,
after swearing he was unable to remember the date of the
meeting, conceded that it could have occurred after the
attempted interposition of UA W Local 259 into the situation,
on September 14,26 as described below. According to
Nocella's testimony, the only substantial thing he is able to
remember about this meeting is that he gave Stirt the Local
355 cards and told him that if he "got what we wanted it
was go ahead and sign for a contract."
Parts Department Manager Marquand, a member of this
"employees' negotiating committee," testifying concerning
it, swore that he joined it a "couple of days" after signing
the Local 355 card-i.e., a few days after September 9; 27
and that it was not an elected committee, but that it "kind
of . . . form[ed] itself," seemingly named by Richard
Nocella, who "asked me [Marquand] would I go on the
committee." According to Marquand, although this "com-
mittee" met with Local 355 Representative Stirt, neither it
nor any other "employees' committee" at any time
negotiated with the Company. Marquand also conceded at
the hearing that Service Manager Joseph Nocella "became
aware" of Marquand's actions.28
Still another "employees' negotiating committee" mem-
ber, Body Shop Foreman Henry Mack, also swore credibly
that the "committee" meeting with Local 355 Representa-
tive Stirt occurred after the employees' meeting with UAW
Local 259, which is definitely and undisputedly fixed as
having taken place on September 14. 29 The only persons
present at this meeting were Local 355 Representative Stirt,
Richard Nocella, and three Russell supervisors (Marq-
uand, George Guido, and Henry Mack). According to
Henry Mack, Richard Nocella had invited him to the
meeting-a lunch with Stirt-so that he (Henry Mack)
could be told how much his men were going to get per
hour.30 Renaldo-a highly impressive witness whose
veracity impressed me as of high order-swore that
met with Stirt, the latter said nothing to indicate a contract had been signed,
and that "if the contract [i e, collective agreement ] had been signed [on
September 10, as claimed by Respondents ], there wouldn 't have been any
reason to have a meeting "
28 Although Marquand also testified , on leading cross-examination by
company counsel, that he had not been "authorize [d ] or encouraged ]" by
Company President Philpit or Service Manager Joseph Nocella to do what
he did , there is no showing of any objection on their part to Marquand's
activities , despite at least Joseph Nocella's knowledge thereof
29 Again consider in this connection Respondents ' insistent contention,
discussed below, that their collective agreement was executed on September
10 See fns 26 and 27, supra
30 "Make Ready" Department Manager George Guido, who attended
the meeting , added nothing in his testimony to the foregoing accounts of
Nocella, Marquand, and Henry Mack As already stated, the only
nonsupervisory member of the "committee" designed by Richard Nocella
(i.e, mechanic Renaldo) did not attend.
RUSSELL MOTORS, INC. 363
Richard Nocella called him to the meeting, telling him that
he was "on the Negotiating Committee"; that Renaldo
refused to go, stating, "I didn't like the way 355 was
running, and that I wasn't going to go, that we should have
a choice of either [of ] two unions," and that he was not
alone in feeling this way since Nocella "was running the
ball game" and "everything was going too fast for me on
the committee." After the "committee meeting," Renaldo
was told by Richard Nocella that the "committee" had met
and that some purely tentative wage rates had been
discussed, as to which Renaldo thereupon indicated he
favored different rates. Renaldo, also,31 was certain that
this occurred after the employees' September 14 meeting
with UAW Local 259, and therefore on or about September
15. 32
Called as a witness for Respondent Local 355, its
organizer Representative Henry Stirt33 testified that after
Richard Nocella notified him on the morning of September
9 (Wednesday; Labor Day holiday was on Monday,
September 7) that he had secured signed cards from a
majority of employees, he instructed Nocella to select and
bring a representative "group" to meet with Stirt that day
for lunch. When Stirt met with Nocella and the aforemen-
tioned three company supervisors (Marquand, George
Guido, and Henry Mack), Nocella told Stirt that one man
(i.e., Renaldo), "had refused to come"; according to Stirt
he asked them "what any specific demands were" and
stated he would seek to incorporate them into an
agreement with the Company; and he indicated to them
what current wage rates were under collective agreements
to which Local 355 was a party. (Stirt conceded at the
hearing that competing unions have different wage rates in
Nassau County, New York, where Russell is located.)
According to Stirt, the "committeemen" stated they
"would be very happy and so would the men that they
represented would be happy" with the Local 355 rates. Stirt
conceded at the hearing that these "representatives" or
"committeemen" were "actually [lust] picked by Richard
Nocella." According to Stirt, he was not told nor did he ask
whether any of the "committeemen" with whom he met
was a supervisor; however, he also testified that when he
noted that Marquand was attired differently than the
others he asked Marquand whether he was "a supervisor,"
and that Marquand replied that he was not but that he was
a "parts manager"-a reply which apparently satisfied
Stirt, an experienced union organizer, that Marquand was
not a supervisor. Stirt testified that he consulted with no
company employee other than those on this "committee"
as to what wage rates would be acceptable; and Stirt
conceded that he conducted his "negotiations" with the
Company personally with its president, Russell Philpit,
with no "committee" or anybody else present.
31 See fns . 26, 27, and 29, supra
32 Again this should be borne in mind in connection with Respondents'
important insistence , discussed below , that they executed their collective
agreement on September 10
33 Stirt is also treasurer and was formerly secretary-treasurer of Local
355 He has also figured prominently in various proceedings like the present
one before the Board and courts , as will be shown below
34 Based on the composite of testimony, to the extent credited, chiefly of
General Counsel witnesses Dester, Richard E Gruebel , Guttilla, Johnson,
Employees Guttilla and Hugo Gruebel credibly swore
that they had not even heard about any such "committee. "
c. The Local 355 "Employees' Membership
Meetings"34
During lunchtime on Monday, September 14, 1970,
Local 355 Representative Stirt held a Local 355 "member-
ship meeting" with Russell employees at Russell's premis-
es. Among those present, in addition to rank-and-file
employees, Stirt, and Richard Nocella, were Assistant
Service Manager James Guido, Parts Department Manager
Marquand, "Make Ready" Department Manager George
Guido, Body Shop Foreman Henry Mack, and Repair
Shop Foreman Richard E. Walker .1 Addressing the group,
Stirt said he knew Richard Nocella, and indicated to the
group what Local 355 members "get", or "usually get."
Before Stirt left with Richard Nocella, one of the
employees in the assembled group remarked that they still
had to hear from a representative of UAW Local 259 and
to hear him out as well. Parts Department Manager
Marquand urged the employees to go along with Local
355's "benefits," saying it was "a good idea."
In his account of this noontime meeting on September
14, Local 355 Representative Stirt testified that he asked
Richard Nocella to call the meeting after he told Nocella
on September 10 that a contract had been signed with
Russell, and that the purpose and content of the meeting
was to describe the contract to the employees. In this
version, Stirt is supported by Richard Nocella, who
testified that Stirt said that "the men had got their
classifications and the money that they had asked for and
that we got all the benefits as far as dental goes, Blue Cross
and Blue Shield." However, the many witnesses called by
General Counsel were substantially unanimous in firmly
denying that so much as mention was made concerning the
signing of any contract. Upon the record as a whole,
including comparative testimonial observations, I have no
hesitation in preferring and accepting the testimony of
General Counsel's witnesses that Stirt did not state or
indicate on this occasion that a contract had been signed.35
Meanwhile, UAW Local 259 had been contacted to visit
and speak to the employees, and did so-as will be shown
below-after 5 p.m. quitting time on the same day as the
foregoing meeting by Local 255 Representative Stirt (i.e.,
Monday, September 14). As the UAW Local 259 repre-
sentative, Ralph Diamond, entered the Russell premises at
1900 Northern Boulevard, a meeting of employees was in
process, and Diamond saw and heard an individual say to
the assembled employees that "If [you] were to make up a
committee and go to the boss that he would recognize .. .
[Local] 355, and . . . [you] would get wage increases or
benefits through this effort." When Diamond later asked
the individual who had thus been addressing the employees
Kennedy, Horace Mack, Marquand, Stagnitta, Turrill, James Walker, and
Richard E Walker, of Respondent Local 355 witnesses Richard Nocella
and Stirt , and of Respondent Russell witness Joseph Nocella Minor
discrepancies , such as in dates and times, have also been reconciled or
resolved
35 See also fns 26, 27 , 29, 31, and 32 , supra, and discussion under sec. 11,
C, 2,e, The "Negotiation" and execution of the "Collective Agreement"
between Local 355 and Russell, infra
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who he was, the latter identified himself as the service
manager (i.e., Joseph Nocella). More will be said below
concerning the ensuing meeting of the employees with
UAW Local 259 Representative Diamond.
Thus, when the UAW Local 259 representative (Dia-
mond) arrived on the scene after 5 p.m. on Monday,
September 14, an employees' meeting was in progress and
being addressed by Service Manager Joseph Nocella. At
that meeting, Local 355 Representative Stirt was also
present. According to Stirt's version of what took place
there, he (Stirt) discussed the new classifications and wage
rates and inquired of the mechanics what level they each
thought they belonged in; and at this point, since "there
was a lot of confusion," Joseph Nocella was sent for to
announce the "slotting" of the various mechanics for the
new classification and wage rate purposes "and then we
take it from there." According to Stirt, all mechanics with
but a single exception (James Walker) "agreed unanimous-
ly" with Nocella's "Slottings," and Stirt then left after "I
[Stirt] asked also whether they were in agreement with the
whole agreement . . . and they all unanimously agreed."
Testifying on the same subject, also as a witness for
Respondent Local 355-Richard Nocella professed to be
unable to remember what Stirt said, other than that when
the subject of employee "classifications" came up, since
some employees were unaware of what these were or would
be, Service Manager Joseph Nocella was called in and he
announced the classifications of the mechanics. Richard
Nocella (as well as his brother Joseph) agreed that, as the
meeting was ending and UAW Local 259 Representative
Diamond appeared on the scene, Local 355 Representative
Stirt had already left. Also testifying on this subject-as
Respondent Russell's witness-Service Manager Joseph
Nocella stated that what he described to the assembled
employees was classifications in a contract already signed,-
on cross-examination, however, he swore he was unable to
remember what he told the employees at this meetmg.36
According to General Counsel witness Stagnitta, howev-
er, after Service Manager Joseph Nocella was called in to
this meeting by Richard Nocella and described the
classifications, Stirt then said, "If [you] all agree[d], [I will]
see if [I] could get a contract for the men...." and that
"he [Stirt] was going to take it up with Mr. Philpit."37
d. The attempted interposition of UA W Local
25938
As has already been indicated, on the heels of the
described second (5 p.m.) September 14 Local 355
"membership meeting," another meeting of employees
36 For reasons already and elsewhere stated, as well as my adverse
impressions of this witness' credibility in relation to the issues here, I do not
credit his assertion that the contract had already been signed
37 Stagnitta's version, which I credit-particularly in view of the
cumulatively consistent and credible testimony of various other General
Counsel witnesses that there was no mention by Stirt or otherwise on
September 14 that a contract had been signed See also fns 26, 27, 29, 31,
32, and 35, supra, and discussion under sec II, C, 2, e, infra
38 Based on the composite of testimony, to the extent credited, chiefly of
General Counsel witnesses Dester, Diamond, Hugo Gruebel, Richard E
Gruebel, George Guido, James Guido, Guttilla, Hopkins, Horace Mack,
Marquand, Renaldo, James Walker, and Richard E Walker, Respondent
Local 355 witnesses Richard Nocella and Stirt, Respondent Russell
witnesses Joseph Nocella and Philpit, and relevant exhibits Minor
took place, this one with UAW Local 259; or, in another
way of looking at it, the employees who had been
assembled to hear Local 355 Representative Stirt and
Service Manager Joseph Nocella continued on to hear
UAW Local 259 Representative Diamond.
It will be recalled (A, supra) that UAW Local 259 had
represented the Russell service employees prior to 1970,
after its official certification by the Board following an
election; and that, following that Board certification, there
had been charges, a complaint, a Board order, and a court
decree against Russell for unlawful refusal to bargain with
UAW Local 259.
When James Guido was approached by Richard Nocella
on Friday, September 11, to sign a Local 355 membership
card, as will be recalled he asked Richard Nocella whether
the latter's brother, Service Manager Joseph Nocella, knew
about it. Receiving a negative answer from Richard
Nocella, Guido reported the incident to Joseph Nocella,
who in effect defended Richard Nocella's action. Under
these circumstances, about an hour later (on the same day,
September 11, Friday), after talking it over with rank-and-
file employees (e.g., Richard Gruebel, Hopkins, Johnson,
Renaldo, Stagnitta, and Tumll, none of whom mentioned
they had already signed a card for Local 355), Guido
contacted UAW Local 259 Representative Diamond.39
Guido told Diamond that "there was something fishy
going on" involving Local 355, with most of the men not
satisfied with it, and he asked Diamond to come over and
speak to the employees. It was for this reason that
Diamond came over on Monday, September 14, to meet
with the employees, just after shop quitting time (i.e.,
shortly after 5 p.m.).
At this September 14 late afternoon meeting of the
employees with UAW Local 259 Respondent Diamond,
Guido said nothing about either union, but merely
introduced Diamond and left the meeting to him. The
employees expressed themselves as "very dissatisfied with
Joe Nocella classifying the mechanics and they wanted to
know . . . who did this." Diamond indicated that normally
classifications are arrived at through collective bargaining;
and he read them the UAW Local 259 wage classification
standards applicable to some 80 shops in the industry,
compared the UAW Local 259 benefits with those
advanced by Local 355, and answered employees' ques-
tions.40 Diamond then retired so as to permit the
employees to talk privately. When he was called back, he
was told that the men "wanted to go along with me [i.e.,
Diamond]." As testified by Dester, at the private discus-
sion among the employees they decided to "abandon
discrepancies, such as in dates and times, have also been reconciled or
resolved
39 While it thus appears that it was James Guido, Russell's assistant
service manager and one of its supervisors, who called UAW Local 259 in
on September 11, that circumstances is not material in this proceeding,
which does not involve any allegation that UAW Local 259 was an assisted
labor organization Respondent Union's counsel "agree [s] that we are
not trying [UAW Local ] 259 here "
40 According to Richard Nocella (testifying as Respondent Local 355's
witness), Diamond described the UAW Local 259 pension plan and also
explained that under the UAW Local 259 system all mechanics received
$4 86 per hour (apparently substantially higher than the existing Russell and
at least some of the proposed Local 355 rates)
RUSSELL MOTORS, INC.
[Local] 355 and back Local 259"; and the testimony of
various employees who attended the meeting establishes
that they did indeed there sign UAW Local 259 member-
ship cards-according to Diamond, some 16 or 17, as
indicated by James Guido all there present (including
himself, Marquand, George Guido, Henry Mack, Hugo
Gruebel, office clerk Cohen, and Richard Nocella)-not-
withstanding that they had previously signed cards for
Local 355 under the circumstances shown. When some of
the men then told Diamond that they had signed cards for
Local 355 and that its "negotiating committee" was
scheduled to meet with the Company on the following day,
Tuesday, September 15, Diamond told them to instruct the
"negotiating committee" not to meet with the Company
since they were being represented by UAW Local 259.
Diamond thereupon immediately sought out Company
President Philpit, but was informed by Service Manager
Joseph Nocella that Philpit was not there. Diamond asked
Joseph Nocella for recognition, but Nocella refused.41
Diamond then requested Joseph Nocella to notify Philpit.
Additionally, that very evening (Monday, September 14)
Diamond in the name of UAW Local 259 dispatched a
telegram to Russell requesting recognition. It is noted that
this telegram "confirms" the described earlier recognitional
request of Diamond to Joseph Nocella and also asks that
the status quo be maintained and that "all negotiations
cease with the Amalgamated Local 355 until such time as
an National Labor Relations Board election will be held to
determine who is the collective bargaining agent for the
service department employees." No response was received
to this telegram. On September 16, UAW Local 259 filed a
petition with the Board requesting an election.
On the following morning (i.e., Tuesday, September
15)-Joseph Nocella conceded he may on that day have
seen the UAW Local 259's telegram of September
14-James Guido was summoned into President Philpit's
or Service Manager Joseph Nocella's office, where he was
dressed down by Philpit in the presence of Joseph Nocella.
It will be recalled that it was James Guido who had called
UAW Local 259 Representative Diamond into the picture.
Philpit angrily demanded to know from Guido why he, as
"part of management," had called UAW Local 259 in,
since he "had no right doing so," and accused Guido of
having "broken a Company policy" by a "manager
bringing in a union." Nocella chimed in with, "I don't
know why you did it, Jimmy. You had no right to do it;
you had no right to do it." (Philpit conceded that he took
no comparable action and made no comparable accusation
to those of his supervisors who were active on behalf of
Local 355. Neither, of course, did Nocella.) Philpit stated
to Guido that he could not afford the UAW Local 259
rates and would not enter into any collective agreement
with UAW Local 259; and that the only way the employees
would receive "benefits" from him was "to bring in the
[Local] 355 " Philpit said he thought he (Philpit) "was
doing something good by bringing the [Local 355] union
in." 42 Philpit and Nocella were excited and angry. Philpit
made no mention at this meeting (September 15) of any
41 1 discredit Joseph Nocella ' s denial that such a conversation ever took
place between him and Diamond I was well impressed with the testimonial
demeanor of Diamond, who testified forthrightly, factually, and with
365
contract having been signed with Local 355; but he did
threaten that he would "never sign a contract with [Local ]
2 5 9 . . . . . . 1 1 sell the business first ." To Guido's statement
that Local 355 was "an employers' union"-he having
learned that it was a "sweetheart union "-neither Philpit
nor Nocella made any comment.
Philpit's version of the foregoing episode is that when he
called James Guido into his office on Tuesday morning,
September 15, he merely told him, in the presence of
Joseph Nocella, that Guido could not participate in union
activities because of his job and that "I [Philpit] didn't
want any more of it"; and that he also told Guido that he
had signed a contract with Local 355 "a few days before."
Philpit flatly denies making the other statements, recount-
ed above, attributed to him by Guido. Joseph Nocella
supports Philpit in these denials , but Nocella 's version
differs significantly from that of Philpit. According to
Nocella, after Philpit queried Guido as to "why he [Guido]
brought in [UAW Local] 259," Guido said he was "very
disturbed about the fact that somebody [was] not telling
him about what was going on upstairs in the shop with
[Local] 355" and that he was unaware of what was going
on in his own shop, to which Nocella remarked that he
(Guido) should not have gotten involved since the
Company has a "hands off policy." Nocella additionally
testified-in response to leading questions-that Philpit
stated that since "We have the contract signed by [Local]
355" why then "the involvement insofar as [Guido] was
concerned," to which Guido responded that "it was for the
good of the men and for the good of the Company... .
that [UAW Local] 259 was a better Union than [Local]
355." Philpit replied-still according to Joseph Nocella-
that "the contract was signed and that it was a good
contract and that the men had agreed to the contract."
Mention has been made several times of Respondents'
present contention that they entered into a signed
collective agreement on September 10.43 A flavor of the
quality of Philpit's testimonial performance may be
gleaned from the fact that he first-on direct examination
-threw in that when he (Philpit) told Guido that a
contract had already been signed with Local 355, Guido
acknowledged that he was "aware of that." On cross-
examination, however, Philpit contradicted this and
expressly denied that Guido had remarked that he was
aware of such a contract; and Philpit conceded (on cross-
examination) that he did not tell Guido there was already a
signed contract with Local 355. Still later, Philpit swore
that he merely told Guido that Local 355 had given him a
contract "to sign." (This was on September 15; Philpit now
claims herein that the contract was signed on September
10.) As a result of leading redirect examination, Philpit
attempted to return to his original version by stating that
he told Guido there was a contract and that Guido
"indicated" he knew . On recross-examination , however, he
took the position that he had told Guido on the preceding
Thursday or Friday (September 10 or 11) that a contract
had been signed; but he again tossed in qualificational
matter . With a persisting testimonial style of this genre, and
candor and sincerity
42 Emphasis supplied
43 Supra, and discussion Infra
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indeed at times even worse (consider , for instance, his
textbook example of evasion involving a written pretrial
statement repeatedly initialed by him and on which he had
crossed out his signature ), I was left with an indelible
impression of an extraordinarily evasive and canny
witness. I have already had occasion to comment on the
testimonial performance of Joseph Nocella, as to whose
testimony in this particular aspect I received the strong
impression that it was being tailored as he went along.
Upon the record as a whole , including testimonial
demeanor comparisons, I have no hesitancy in preferring
and crediting the testimony of James Guido concerning the
described September 16 episode in Philpit's office.
Joseph Nocella concedes that, after he saw the UAW
Local 259 recognitional request telegram of September 14,
he called a meeting of all service employees on Wednes-
day, September 16, after 5 p.m. According to Nocella, he
there told the assembled employees about the UAW Local
259 recognitional request telegram and informed them that
although they had signed membership cards for UAW
Local 259 they had also signed cards for Local 355, that the
Company had a "signed contract with Local 355," and that
while he himself was "no Union man ... we have to go by
the contract that was signed and agreed upon . . . with
[Local]355." Local 355 Representative Stirt, who was
apparently also present at this meeting, distributed Local
355 medical hospitalization ("Welfare Plan") cards for the
employees' signatures , advising them-according to his
testimony-that "they had to fill out the cards and that
once the cards were in they are covered under the
agreement .44 I mean the Welfare Fund and they are able to
collect benefits." When-still according to Stirt-some
employees pointed out that they had signed membership
cards in UAW Local 259, Stirt further advised them that
"we had an agreement with the Company, and that [UAW
Local] 259 couldn' t represent them, we [Local 355] had to
represent them . . . you can sign cards for twenty different
Unions and it means nothing, it doesn't have any weight.
The first card that you sign you sign giving Amalgamated
Local 355 the authority to represent them, these are the
cards that I had and this is the representation and I
proceeded with their authorization to proceed to get a
contract, and the contract that we had would be valid."
Several employees 45 who were present at this September
16 meeting and who testified provided a fuller and more
convincing account, which I credit, regarding the antece-
dents of this meeting and what was said at the meeting.
Employee Dester-an extremely persuasive witness-
swore that Richard Nocella told him on or after September
15 that he didn't "give a damn about the UAW" even
though the employees had all signed up with the UAW. As
to the meeting itself, employee James Walker testified that
Joseph Nocella, in the presence of other company
supervisors attending the meeting , informed the assembled
employees that Philpit "could not afford the UAW's
package, that it was too expensive and that he would close
44 Perhaps a "Freudian slip "
45 All were still employed at Russell when they testified herein See fn
21, supra
46 This could only have been an allusion to the Company's previous
"trouble" with UAW Local 259, involving a Board order and court decree
against the Company for unlawfully refusing to bargain with that union
down the shop rather than sign a contract with the UAW";
and that Philpit and Nocella "wanted Local 355."
Employee Kennedy testified to the same general effect. In
like vein , employee Hopkins testified that at this meeting,
which lasted almost an hour, Joseph Nocella, talking on
the subject of unions , mentioned "the trouble" they had
had before ; 46 that the Company "did not like unions .. .
because of what happened before"; that Nocella "wanted
355"; and that "he would rather close the shop down than
let that union [UAW Local 259] in." According to
Kennedy, Richard Nocella said that "the only way we
could get UAW in was to strike."
e. The "Negotiation" and execution of the
"Collective Agreement" between Local 355 and
Russell
As has been shown, almost without exception the Local
355 membership cards are dated September 9, 1970-i.e.,
20 of 24; only I is dated September 8. Although there is
substantial evidence-consisting of the credible insistence
of certain card signers that they signed their Local 355
cards, now dated September 9, on a date subsequent to
September 9-September 9) may nevertheless be regarded
as the earliest possible date on which those cards were
delivered signed. Notwithstanding this, Respondents now
claim that they negotiated, entered into, and signed a
comprehensive collective agreement by September 10. As
will be shown , however , there is considerable indication to
the contrary. The circumstances, as well as direct testimo-
ny of numerous highly credible witnesses , strongly suggest
that the agreement was actually "negotiated" and signed
subsequent to the attempted September 14 interposition of
UAW Local 259 , and therefore-since it bears the date of
September 10-backdated. The reason for such a backdat-
ing would be apparent-namely, to establish that the
parties had concluded an agreement before UAW Local
259 arrived on the scene.47 The circumstances surrounding
the "negotiation" and alleged execution of this "collective
agreement" will not be explored.
According to Local 355 Representative and Official
Henry Stirt, after he obtained 21 signed Local 355
membership cards from Richard Nocella on the afternoon
of September 9 he visited Russell President Philpit,
displayed the cards to him, and requested recognition; and
Philpit examined the cards for about an hour and returned
them to Stirt . This is what Stirt testified to when called to
the witness stand , at the outset of the hearing , by General
Counsel. However, when Stirt again testified, toward the
end of the hearing , this time as a witness for Respondent
Union, Stirt provided a substantially amplified and variant
version of this meeting . Stirt then (as union defense
witness) testified that after he requested recognition
Philpit, after 10 or 15 minutes with the cards, agreed that
47 However , as acknowledged in closing argument by counsel for
Respondent Union, even if the parties had in fact executed a collective
agreement before UAW Local 259 arrived on the scene , this would still in
no way rule out that Local 355 had been an employer-assisted union or
otherwise introduced and recognized by Russell in violation of the Act as
here charged
RUSSELL MOTORS, INC. 367
they "looked legitimate" and that Stirt had "a clear
majority,"48 and then and there orally received Stirt's
demands as well as a "form contract" identical to the
collective agreement which was ultimately signed between
Local 355 and Russell.49 Stirt (continuing with the account
he gave as Respondent Union's defense witness) added
that he and Philpit then discussed the various provisions
from beginning to end, including employee classifications
and wage rates, to all of which Philpit agreed with Stirt.
Although, according to Stirt, this discussion became
"heated" on the subject of the proposed welfare benefits
and holidays, Philpit "went along" with those as well and,
in fact, made no changes in anything. Further according to
Stirt's later version, this discussion lasted about 2-1/2
hours, with nobody there other than Stirt and Philpit. Stirt
also testified that he told Philpit he would return the
following day with the agreement in final form; when
asked at the hearing what happened to the "draft" he had
discussed with Philpit, Stirt's reply was that his office clerk
had "destroyed" it and that he did not know what Philpit
did with his copy.50 Continuing with Stirt's account as
union defense witness, Stirt testified that he returned to
Philpit with the "final" typed copy on the following
morning, September 10 (Wednesday), at which time Joseph
Nocella was also there; and that the only specific subject
which came under discussion then was the actual classifi-
cations into which specific mechanics would fall, but that
this was never reduced to writing since "It was something
that we had to discuss further." The contract was then
signed, according to Stirt, just before noon of September
10, in duplicate, with Stirt himself writing "Russell Motor
Inc." [sic] below Philpit's signature at the end. Notwith-
standing his foregoing testimony, however, on cross-
examination Stirt testified that the meeting of September
10 at which Joseph Nocella was present was merely like a
"proofreading activity," and that a discussion regarding
employee classifications did not essentially occur.51 Since
Stint's testimony was characterized by much inconsistency
and alleged memory lapses, as well as evasiveness and
48 It is interesting to observe in this connection, as set forth below, that
Philpit testified he could "expressly" recall receiving only II cards from
Stirt (A set of 21 of these cards was given by Surt to the Board's Regional
Director's office on September 22 ) Other variations between the Surt and
Philpit accounts of what took place will be apparent from a comparison of
the two versions
49 Here, again , it is of further interest to note that according to Philpit's
version-set forth below-Surf gave Philpit the draft about a day or two
after he received the signed union cards from Stirt This would place
Philpit's receipt of the draft at September I I-after the date of September
10-appearing on the signed document
50 See In 49, supra Philpit produced no such draft either
51 According to Stirt (on cross-examination as Respondent Union's
witness), he gave Philpit and Philpit agreed to the Appendix A (classifica-
tions and wage rates) portion of the contract in the very form in which it
appears at the end of the signed contract dated September 10 When asked,
however, where the parts department employees are shown there, Stirt,
conceding they are not there listed, claimed they were intended to be
included under "Helpers," base rated at $3 per hour Stirt then took the
position that since Marquand, as a member of Local 355, is in the parts
department, he would be considered under the classification of "Helpers"
under Appendix A of the contract When it was thereupon pointed out to
Stirt-still on cross-examination-that Marquand is the manager of the
parts department and earns as much as a "B + Mechanic" under Appendix
A (i e, $3 85 per hour), Stirt's response was that the rates on Appendix A
were only "minimum" rates it is, of course, obvious that Job classifications
and wage rates are usually the most basic features of collective bargaining
some outright prevarication, and also considering testimo-
nial demeanor as observed, I was left with a poor eventual
impression of his veracity in relation to the matters here at
issue.
According to Russell President Philpit-when called to
the witness stand first early in the case by General Counsel
as his second witness, immediately following Local 355
official Stirt-Philpit expressly recalled receiving only 11
signed Local 355 cards from Stirt when Stirt first visited
him, and it was "several" and possibly "even more than
five days" later that he signed the collective agreement
with Local 355. Since Stirt could not in any case have been
in possession of even as many as I I signed cards before
they were signed, and since the cards did not come into
Stirt's possession before September 9, this would, accord-
ing to this testimony by Philpit himself, place the signing of
the contract no earlier than September 11 (Friday) and as
late as even after September 14 (Monday), contrary to
Respondents' current contention that the contract was
executed on the date it bears, September 10. Philpit's
testimony when he was recalled to the stand toward the
end of the case, as Respondent Russell's witness, again
indicates that there was an intervening period of some days
between Stirt's visit to him with the signed cards (allegedly
on September 9) and the execution of the collective
agreement with Local 355-further negating Respondents'
present contention that the agreement was executed on
September 10. Thus, when he returned to the stand as
Russell's witness late in the case, Philpit testified that after
receiving the signed union cards from Stirt (i.e., September
9, allegedly, but certainly in no event before that date), he
(Philpit) 1, 2, or 3 days later52 received from and discussed
with Stirt a draft of a contract, telling Stirt that it was
satisfactory without change. Finally, Philpit testified that
he did not before September 15 tell Marquand, George
Guido, or Henry Mack that he had signed a contract with
Local 355.53 Ample comment has already been made
concerning Philpit's testimonial style and quality.
Philpit (as well as Stirt) conceded that Russell had had
52 In his typical testimonial style, Philpit subsequently attempted to
obfuscate this earlier testimony by "offhandedly" suggesting that it "could
have been 1 /2 hour later", subsequently he further blurred it by impatiently
minimizing it as "Several hours Could be 40 hours " Further example has
already been given of this witness' manner of testifying-of of which his
extraordinary evasive feat at the hearing regarding his pretrial statement
must be indelible upon any person who witnessed the performance
53 While I can well believe that Russell did not tell them before
September 15 that he had signed a contract with Local 355, this by no
means establishes or supports Philpit's current contention that he signed it
on September 10, rather , in the context of the total circumstances, it
supports the inference that he did not tell them until on or after September
15 because it was not signed until on or after September 15 It is quite
unlikely that Philpit would not have told his own supervisors (and even the
rank-and-file employees)-particularly considering the situation-that he
had signed a contract with Local 355 Although Philpit states he did,
however, tell James Guido and "possibly" also Hugo Gruebel prior to
September 15 that he had signed a contract with Local 355, 1 discredit this
in view of Guido's and Gruebel's testimony credibly to the contrary, and
since there is no persuasive reason to believe (particularly considering the
quality of the testimonial source) why Guido and Gruebel should have been
singled out for such revelations It is further to be noted in this connection
that according to Philpit's own testimony it was September 15 -on the
occasion when he called Guido to Nocella's office to dress him down for
having brought UAW Local 259 Representative Diamond in the previous
afternoon-when Philpit allegedly (credibly disputed by James Guido) told
James Guido that he had already signed a contract with Local 255. This
(Continued)
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no contractual relationship with Local 355 prior to that
here embodied in the agreement which they dated
September 10. Philpit added that that agreement constitut-
ed the only "collective bargaining" he had engaged in in 20
years, despite the fact that the Russell employees have
been previously represented, as has been shown, by UAW
Local 259 with the ensuing Board order and court decree
against Russell for unlawfully refusing to bargain with
UAW Local 259.
Russell Service Manager Joseph Nocella's testimonial
contribution on this subject was that he was present in
Philpit's office on September 10 when Stirt said he "had
... all the cards for Local 355 and he was presenting a
contract to Mr. Philpit." This again, it will be noted, is in
contrast to the testimony of Stirt as well as that of Philpit.54
According to Joseph Nocella, they then (September
10)-once more in contrast to Stirt's version and also
Philpit's version-discussed the terms of the "finally
prepared contract," which was then and there signed
without change, but with some things "in the relationship
and insofar as the classification of the men . . . and
benefits" filled in in Stirt's handwriting.55 On- cross-
examination, however, Nocella spoke of a "collective
bargaining session" which he attended with Philpit and
Stirt prior to this; and he claimed inability to "recall" or
"remember" anything that was said prior to the execution
of the contract, including whether there was any disagree-
ment about anything or whether nonunit employees were
so much as mentioned. Finally, according to his testimony,
Nocella allegedly first mentioned the signing of the card on
September 14.
Richard Nocella also testified in relation to this subject.
Called as a witness for Respondent Local 355, on direct
examination he was asked the question of whether, when
Stirt spoke to a group of employees during lunchtime on
September 14, "the word contract [was] mentioned."
Nocella's reply took the form, "Yes ... that the men had
got their classifications and the money that they had asked
for and . . . the benefits...." According to Richard
Nocella's testimony on direct examination, when he signed
would seem to indicate that it was September 15, and not before, when, even
according to Philpit, Philpit told Guido a contract had been signed,
unless-and Philpit did not so claim nor here testify-he had also told
Guido the very same thing before September 15 It is finally noted in this
connection that on cross-examination Philpit altered his previous testimony
by swearing that what he told Guido was merely that Local 355 had given
him a contract "to sign." (Emphasis supplied) During leading redirect
examination, Philpit sought to repair this testimonial slip by stating that he
told Guido that "the contract was there"-thus obfuscating the question of
whether it had been signed or not. Then sought to be pinned down on
recross-examination, Philpit this time flatly stated that he told Guido on
September 10 or I l that a contract had been "signed," but with renewed
equivocation Philpit also testified that the Local 355 health -hospitalization
("Welfare Plan") "blue cards" were also distributed to "everybody" on
September 10 or 11 This conflicts with the testimony of all other witnesses,
including even Stirt and Respondents' other witnesses, and is patently
untrue
51 It will be recalled, for example, that Stirt testified that it was on
September 9 that he mentioned the Local 355 cards and that only he and
Stirt were there , not Nocella Nocella 's version is also in significant respects
at odds with that of Philpit
56 Neither of the copies of the collective agreement here presented shows
any such thing On cross-examination , Nocella qualified his earlier
testimony by stating that did not "recall" when he first heard Philpit and
Stirt discuss classifications and wage rates
56 A pretrial statement taken by a Board agent from Nocella, admitted
a membership card for UAW Local 259 on September 14
he knew that Russell had already signed a contract with
Local 355; but he is unable to remember when the contract
was signed and unable to explain how he knows it was
signed before September 14, conceding that he first saw it
"in October sometime." On cross-examination, however,
Richard Nocella conceded that on September 14 (the date
of the UAW Local 259 meeting when he signed its card) he
did not know (or does not remember knowing) whether a
contract had been signed between Russell and Local 355,
and that he does not remember when he learned that such
a contract had been signed; and he also conceded-in
seeming contrast to Philpit, Stirt, and Nocella-that as of
September 14 the classification of the employees had not
yet been worked out.56
A procession of employees-supervisors as well as rank-
and-file--called by General Counsel as witnesses , provided
highly convincing testimony throwing the gravest doubt on
Respondents' contention that they entered into their
collective agreement on September 10, the date it bears.
Thus, rank-and-file employee Dester, an impressively
credible witness, swore that at the September 14 meeting
Local 355 Representative Stirt discussed wage rates with
the employees, telling them what Local 355 members "get"
or "usually get," and that Stirt in no way indicated a
contract had already been signed. Dester further swore
that Service Manager Joseph Nocella came in later and
categorized each mechanic by name and his proposed
classification slot and wage rate, but that some employees'
classifications and rates were not so much as mentioned at
this meeting; and that it was further indicated there that
the "employees' negotiating committee" would thereafter
negotiate with Philpit. Further, Richard Nocella, a member
of that "committee," subsequently told Dester that-des-
pite the fact that the employees later that day (September
14) had met and signed up with UAW Local 259-he
(Nocella) "didn't give a damn about the UAW" even
though the employees had all signed up with UAW, yet
made no mention of any contract between Russell and
Local 355. Dester first learned of such a contract around
into evidence for impeachment purposes only, states
At no time during the meeting on that day [September 10, 1970],
did Stirt tell me [Richard Nocella I he had signed a contract with the
boss I do not think he did because we still had to work out the wage
classifications for each of the men The day after the [September
14, 1970 ] meeting with the UAW man , Henry Stirt of Local 355 came
back to the shop [ i e., on September 15, 1970 ]. . I do not recall him
[Surt] saying he had already signed a contract with the boss, but I
doubt it since we still had not worked out the classifications for each of
the men with him
A couple of days later , on a Wednesday or Thursday [September 16
or 179], myself , George Guido, Henry Mack & Orval Marquand met
with Stirt at Howard Johnsons on Northern Blvd & Port Washington
Blvd in Roslyn to work out the job classifications & wage rates for
each of the men we wanted Stirt to present to the boss. Stirt said he
would present our demands to the boss and report back to us
A few days after the Howard Johnson meeting, Stirt did come back
to the shop to tell us what the boss had agreed to What Stirt told us
met with the men's approval
I do not know when a contract was actually signed between the boss
& Local 355 since I was not a witness to the signing. I do not recall
when I first got a copy of the contract My copy does have a September
10, 1970 date on it for when the contract was signed
Nocella conceded at the hearing that this statement-with the possible
exception of some things he allegedly could no longer remember-although
unsigned was accurate to the best of his knowledge and belief
RUSSELL MOTORS, INC.
November. Dester's testimony that Stirt said nothing to the
employees on September 14 concerning a contract having
been signed by Russell with Local 355 is borne out by the
likewise highly credible testimony of employee witnesses
Horace Mack and Turrill. In his similarly impressively
delivered testimony, rank-and-file employee Renaldo
recounted that when Richard Nocella told him on
September 15-subsequent to the employees' meeting with
UAW Local 259-that the "employees' negotiating com-
mittee" (of which Renaldo was a designated "member" but
had refused to participate in because he was leery of the
situation) had met, and Nocella described its proposed
tentative wage rates to Renaldo, the latter did not agree
but suggested different rates; in no way did Nocella indicate
that a contract had already been signed between Russell and
Local 355. Still another extremely impressive rank-and-file
employee witness, Stagmtta, swore that at the employees'
meeting of September 1457 the employees were informed
by Stirt that he "was going to take ... up" with Philpit the
proposed new wage rates and that "If [you] all agree[d], [I,
Stirt, will] see if [I] could get a contract"-clearly
indicating no contract was yet in effect between Local 355
and Russell. Yet another highly credible rank-and-file
employee, James Walker, swore that at the employees'
September 16 meeting with Joseph Nocella and Stirt
(described above)-where Joseph Nocella stated that
Philpit and Nocella "wanted Local 355" and that Philpit
"could not afford the UAW's package, that it was too
expensive and that he would close down the shop rather
than sign with the UAW"-neither Nocella nor Stirt gave
any indication that there was already a contract between
Russell and Local 355. To the contrary, Stirt stated that
Local 355 would "match any package that UAW came up
with"-strange talk for a union official already holding a
signed contract in his pocket. Stagnitta, as well as James
Walker, first heard that there was such a contract in
October-from his supervisor, Marquand.58
Respondent Russell's own supervisors-produced as
General Counsel's witnesses-threw additional light on the
subject. Respondent's Parts Department Manager Mar-
quand-who, it will be recalled, was an active member of
the "employees' negotiating committee" designated by
Richard Nocella-a highly credible witness, swore that a
few days subsequent to the date (September 9) he signed his
Local 355 card, the "employees' negotiating committee"
met with Stirt and agreed on various features "that should
be incorporated in a contract with Russell Motors. . . . If
the contract had been signed, there wouldn't have been any
reason to have a meeting " (Emphasis supplied.) Marquand
further swore that at this meeting-subsequent to Septem-
ber 10-Start gave no indication (to his own committee)
that Local 355 already had a contract with Russell; and
57 Or September 16-at any rate subsequent to September 10
ss The testimony of rank-and-file employees Richard Gruebel and
Guttilla indicates they were first told of a contract between Russell and
Local 355 on or after September 16-also well after September 10 Hugo
Gruebel, now a Russell supervisor and even in September 1970 management
related, testified that when in the locker room a few days after September 9
Stirt in the presence of Joseph Nocella descnbed benefits under Local 355,
Stirt made no mention of a contract with Russell, and that it was not until
the following week that Stirt said he had a contract UAW Local 259
Representative Diamond was first told about such a contract about a week
369
that it was not until on or about September 21 that Stirt
said he had signed a contract with Russell.
Russell Assistant Service Manager James Guido, also a
highly credible witness , swore that when Richard Nocella
asked him on Friday , September 11, to sign a Local 355
card and he (Guido) reported this to his superior , Service
Manager Joseph Nocella , neither of the Nocellas indicated
that a contract had already been signed by Russell with
Local 355. Guido further credibly testified that when
Philpit called him to the office on September 15 to berate
him for introducing UAW Local 259 Representative
Diamond to the employees on September 14, Philpit made
no mention of any contract between Russell and Local
355; as a contrary indication , Philpit stated that he would
"never sign a contract with [ Local ] 259.... I 'll sell the
business first."
Also Respondent 's "Make Ready" Department Manager
George Guido testified credibly that when he signed the
UAW Local 259 membership card at the end of the day of
September 14, he had no knowledge of any contract
between Russell and Local 355 ; and that he first learned of
such a contract about 3 weeks later, in October.
The "Collective Agreement" dated September 10,
1970
With regard to the "collective agreement" under discus-
sion, it is noted that at the very beginning it bears the
typewritten date "10th day of September, 1970"; that it is
for a term of 2 years, to September 9, 1972; that it states at
the beginning it is between Local 355 and "Russell Motors,
Inc.," but is signed at the end "Russell Philpit" and
thereafter is added-concededly in Stirt's handwriting
-"Russell Motor Inc.," the word "Inc." being written
over the word "Corp."; that by its terms Russell recognizes
Local 355 as the "sole bargaining agent of all employees"
in the bargaining unit consisting of "all service employ-
ees"; that by its terms a Local 355 shop is created-i.e.,
"all service employees"59 are required to remain or join,
and thereafter maintain membership "in good standing" in
Local 355 as a condition of their employment; 60 job
classifications and wage rates are specified in an Appendix
A; the employer is required to contribute into the Union's
"United Welfare Fund"; 61 it defines worktimes, holidays,
vacations, and sick leave; under its terms employees or
groups of employees are expressly declared to be not
vested by virtue thereof with any rights or remedies
enforceable "either at law, equity or otherwise, and
whether as principal or third party beneficiary or other-
wise, it being understood and agreed on the contrary, that
all of the rights and privileges created or implied from this
Agreement shall be enforceable only by the parties hereto
or two after he filed an election petition on behalf of UAW Local 259 on
September 16; he had been informed when he spoke to the assembled
employees on Monday, September 14, that there was then "no contract
They were going to meet for the first time with the boss on Tuesday
[September 15 ] "
ss 1 e, nonsignatones as well as signatories of Local 355 cards
60 1 e, Local 355 may compel the discharge of any employee notjoining
Local 355 or not maintaining Local 355 membership in good standing
Si Discussed infra
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[i.e., Local 355 and Russell], and only in the manner
established by this Agreement"; 62 a shop steward maybe
either "appointed or elected by the Union"; the shop
steward's "duty ... shall be to see that there is no
violation of this Agreement"; the shop steward "shall have
top seniority," even to the extent of displacing another
employee; the Employer may hire at will without regard
for union membership, with the absolute right to fire
during the first month of employment; all disputes and
controversies are subject to a mandatory grievance-arbitra-
tion procedure, with the final step being arbitration before
a single arbitrator named by both parties; there is a
mandatory "check off" pay deduction for "all Union
membership dues and initiation fees" in such amounts "as
may be established by the Union"; "During the life of this
Agreement, there shall be no strike, stoppage of work, slow
down, picketing, boycotting, lockout, or any other econom-
ic pressure or activity of any kind by either party against
the other for any reason or matter, controversy or
grievance, or claim of breach of contract of any kind,
nature or description, between the parties hereto"; the
"reopener" provision provides that if the parties are unable
to agree on contract revisions, "the disagreement shall
become a dispute hereunder and shall be subject to the
arbitration provisions of this Agreement"; and the agree-
ment "automatically" renews itself from year to year unless
formally renounced in advance by either party. It is noted
that the "body" of the agreement-i.e., that portion before
the signature-does not list any wages, but merely states
"See Appendix `A' "; and that the annexed "Appendix
'A'," after listing certain classifications and rates, in turn
states: "In the event agreement cannot be reached on any
additional conditions, the disagreement shall become a
dispute hereunder and shall be subject to the arbitration
provisions of this Agreement."63
It is conceded that since its execution this "collective
agreement" has been in full force and effect, and that
under it Russell has made the payroll "checkoff" deduc-
tions for union fees and dues required by its terms.
Crediting the described testimony of the supervisory and
rank-and-file employees and upon the record as a whole, I
consider it most unlikely that this "collective agreement"
was actually executed on September 10, but that far more
likely it was executed at some time on or after September
15-that is, after the advent of UAW Local 259-and
either backdated to September 10 or signed without
changing the date of September 10 typed thereon.
It seems most unlikely that Respondent Employer would
not inform its own supervisors-particularly considering
what was going on-that it had made a contract with Local
355; and at least as unlikely that Local 355 would not
likewise promptly publicize such a fact to its newly "won"
members.
Particularly in view of conflicts between versions of
62 Under this provision, presumably, an employee could not even bring
suit for wages-only the Union could on his behalf if it chose to This
provision also appears to take no cognizance of the right preserved to
employees by Sec 9(a) of the Act to present grievances directly to their
employer
63 This final provision-particularly considering the fact that certain
employees' (James Walker and Marquand) wages were raised beyond the
rates listed in Appendix A subsequent to the execution of the contract-is
Respondents' witnesses, as well as internal inconsistencies
in the respective accounts which they individually put
forth, and also my lingering major misgivings on the score
of their veracity based on observed testimonial demeanor,
I cannot bring myself to credit their contention that, under
the circumstances described, the "collective agreement"
which they entered into was actually fully negotiated by
and signed on September 10, 1970, as they now assert. I am
rather of the belief, and upon the entire record find, that
that "collective agreement" was entered into after the
advent of UAW Local 259 on the scene, that is after
September 14, 1970, and that it was backdated to, or
entered into as of, September 10, 1970, in an attempt to
insure that its employees would be exclusively "represent-
ed" by Local 355 and to forestall (1) its employees' being
represented by UAW Local 259 or any labor organization
of their own free choice, (2) the necessity for Russell to
recognize, deal, or negotiate with UAW Local 259 or any
labor organization of Russell's employees' own free choice,
and (3) a Board-conducted election to determine by
official secret ballot its employees' true representational
desires.
f. The Local 355 welfare plan
Respondents' "collective agreement" contains a provi-
sion (art. XII) creating a "Welfare Fund" for "each
employee covered by this Agreement," with the Employer
required to contribute a certain monthly amount to "the
United Welfare Fund" on each such employee's behalf
"for the purpose of financing the Welfare Plan for the
benefit of said employees." The provision further stipulates
that "In the event that the Trustees [unidentified] of the
said Welfare Fund shall determine that the amounts
contributed by Employers [note the plural] are insufficient
to adequately provide for the benefits made available to
employees, the Employer agrees to make payment in such
increased amounts as shall be determined by the said
Trustees." There is a further proviso that "The Trustees of
said Fund shall have the right to provide for inclusion in
the Plan of Union officers, agents and employees, and such
other persons as they may determine shall be included."
Local 355 Official Stirt, called as a Local 355 witness,
testified that the "United Welfare Fund"-which he
characterized as "our welfare fund"-referred to in the
parties' "collective agreement" is a creature of Local 355
solely and exclusively; only Local 355 members, or those it
otherwise permits, may participate therein, Stirt explained
that it covers all officials and employees of Russell even
though they are not unit or Local 355 members; however,
these would not be admitted unless the employee unit here
was unionized under Local 355. It also covers all Local 355
officials, agents, and employees. According to Stirt, the
further indication that whenever the contract was signed, the parties had not
yet fully negotiated its terms or the terms which are normally to be found in
a bona-fide collective agreement resulting from arms' length dealing, for
with relation to those classifications of rates not yet agreed upon, the
"agreement" was no more than an "agreement to agree if agreement is
possible " Stirt himself conceded that , with employees not yet "slotted" into
classifications at the time the "collective agreement" was executed, that was
left for later and that "If we have any disagreement, we would arbitrate "
RUSSELL MOTORS , INC. 371
fund is a trusteed fund of Local 355 and various
employers,64 in part administered by Local 355 and with
Stirt as an unpaid "trustee." Philpit, Joseph Nocella, and
Marquand confirmed that they, as well as other Russell
executives, supervisors, clerical, and other nonbargaining
unit employees, participate in this "Welfare Plan," which
issues membership or identification cards carrying the
legend "United Welfare Fund."65 Russell President Philpit
testified-corroborated by Local 355 official Stirt-that he
(Philpit) "insisted upon" this universal inclusion before he
would enter into the "collective agreement" with Local
355, and that Stirt agreed to this in "an oral understand-
ing," which Stirt later testified is "the normal practice of
the Union to do that, that when we do come into a shop is
to take the whole group into our welfare fund. They don't
have to be members of the Union if they are out of the
bargaining unit." According to Stirt, this "discussion also
include[d] taking Mr. Philpit and the Company supervisors
in as well . . . because they are sales people," and under
Stirt's oral agreement with Philpit the Company "was to
pay [premiums] for all of them including . . . the nonunit
employees . . . without any exception."
According to Stirt, he left cards for the "Welfare Fund"
at the Russell premises, together with Local 355 union dues
"checkoff" authorization cards, on Wednesday, September
16. Of such cards here in evidence, none is dated earlier
than September 16.
Since the parties' continuing participation in a "Welfare
Fund" of the character described, under the circumstances
discussed, is not in this proceeding specifically alleged to
be in violation of the Act, nor are we here concerned with
any other possible legal requirements other than those of
the Act,66 our interest is focused only on its relation to the
overall situation, involving basic allegations of an "assist-
ed" and otherwise improperly installed union under a
"sweetheart" arrangement with the Employer. Considering
the circumstances insofar as they involve the described
"Welfare Plan," introduced under the aegis of Local 355
for unit employees but extending also to nonunit employ-
ees and even company executives with conceivably
conflicting claims and interests to be "impartially" admin-
istered, such universality of "protection" (to the possible
economic detriment of unit employees, whose economic
"package" may to an extent be reduced) smacks of an
accommodative element between the Employer and Local
355 suggestive of close relationship and common interest
and not the usual arms' length dealing.
g. The Local 355 "Shop Steward"
Although there appears to be some uncertainty or
difference of opinion as to whether Richard Nocella-the
brother of Russell Service Manager Joseph Nocella-was
eventually "elected" as Local 355 Shop Steward,67 it is
undisputed that at any rate initially and through the
64 Russell President Philpit swore he does not participate in the fund's
administration and does not know who does
65 There is no express reference on these cards to Local 355
66 Cf , e g , Art, Title Ili, Welfare and Pension Plans Disclosure Act of
1958, Internal Revenue Code and 26 CFR
67 Although Dester recalled such an "election" among some of the
employees around the end of September, Guttilla maintained there was-m
critical period here Nocella was self-appointed, and that at
all times he alone has been serving as the Local 355
steward. It will be recalled that the "collective agreement"
itself does not require that a Local 355 steward be elected,
but calls merely for a steward "appointed or elected by the
Union" who thereupon automatically attains "top seniori-
ty" in the shop-even to the extent of displacing another
employee-and is vested by the "collective agreement"
with the "duty ... to see that there is no violation of this
Agreement" (with all questions as to whether there is a
"violation" required to be grieved and arbitrated at the sole
instance of Union and Employer before a single arbitra-
tor).
Russell Service Manager Joseph Nocella testified that
company records show that his brother Richard Nocel-
la-umquely among the employees-was paid $115.50 for
25-30 hours "miscellaneous" (N. B., not "overtime") in
addition to $154 for 40 regular hours, for the two critical
weeks in September 1970. Joseph Nocella pleaded igno-
rance as to the meaning of "miscellaneous," suggesting as
an explanation that his brother Richard-a "B" mechanic
then-was an extraordinarily gifted mechanic.68
h. Employer threats
It has already been noted that, during the course of the
described events in September 1970, various threats are
ascribed to Respondent Employer, involving refusals to
deal with UAW Local 259 and predicted dire economic
consequences which would ensue if that union were to be
chosen as the employees' representative. In this immediate
connection, there will again be recalled Russell's previous
torrid history with UAW Local 259 following its official
certification by the Board after a secret election and
Russell's refusal to bargain with that union, eventuating in
a Board Order and court decree.
The threats in question were far from insubstantial, since
they not only bespoke a replay of the Employer's earlier
unlawful refusal to deal with UAW Local 259, but also cut
to the sinew and bone of the employees' jobs by
threatening plant shutdown in the event Local 259 were
chosen by the employees.
Employee James Walker, a highly credible witness,
testified that at the September 16 meeting of Service
Manager Joseph Nocella with the assembled employees,
Nocella told them that Russell President Philpit "could not
afford the UAW's package, that it was too expensive and
that he would close down the shop rather than sign a
contract with the UAW." Likewise, employee Hopkins
testified that on this occasion Service Manager Joseph
Nocella referred to the "trouble" they had before and that
the Company did not like unions "because of what
happened before"-which could only have been a refer-
ence to UAW Local 259; and that for this reason he
"wanted [Local] 355" and "would rather close the shop
"vote" and that Nocella was shop steward because "he told me " Nocella
himself maintains he was "voted in" at "one of the meetings "
68 While Joseph Nocella testified on redirect examination that other
employees also at times received various amounts under the heading
"miscellaneous," there was no attempt to show what these were for, nor, of
course, would it shed light on what Richard Nocella was paid for, which
Respondents chose not to disclose
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
down than let that umon [UAW Local 259] in." Still
another employee, Kennedy, testified credibly that Joseph
Nocella told the entire assembled shop that UAW Local
259 "was the wrong union [and that] Philpit said he would
rather close down than have the UAW come in because it
would cost him too much money." When employees
indicated they did not like various features of Local 355
and preferred UAW Local 259, Richard Nocella remarked
in the presence of Joseph Nocella-without contradiction
by the latter-that "the only way we [employees] could get
UAW in was to strike."
It will, finally, be recalled that-as described in another
connection-Assistant Service Manager James Guido, a
high-ranking supervisor in the Russell hierarchy and a
highly creditable witness, testified that when he was called
to Service Manager Nocella's office on September 15 for a
dressing-down for calling UAW Local 259 in, Philpit told
him that he "could not afford the [Local 259] rate[s]" and
that he would "never sign a contract with [Local] 259... .
I'll sell the business first."
Philpit and his Service Manager Joseph Nocella contra-
dict all of these employees, including their own supervisory
subordinates, and deny that they said these things. It
would serve no useful purpose to repeat my previous
observations concerning the quality of their testimony.
Crediting the described employees' testimony, I find that
the threats were indeed made.
i, Miscellaneous
On his return from vacation, late in September, Russell
Repair Shop Foreman Richard E. Walker in Service
Manager Joseph Nocella's office, with Richard Nocella
present, asked, "How come all of a sudden after all these
years we're getting a union in Russell Motors?" The
response of both Nocellas was that "they had contact with
the union which would give broader medical coverage plus
dental coverage."
In October 1970 employee Richard Gruebel, who had
not signed a Local 355 membership card, was given such a
card by Service Manager Joseph Nocella in his office. It is
noted, in this connection, that, as has been mentioned,
Respondents' "collective agreement" contains a mandato-
ry "union shop" membership provision, requiring all unit
employees to become and remain members of Local 355
and to pay that union initiation fees and dues during the
life of the contract and any automatic or other renewal,
under penalty of discharge.
Around April or May 1971, when President Philpit in the
repair shop mentioned having to appear in court in an
unfair labor practices case over the Union, Shop Supervi-
sor Richard E. Walker asked him, "How did we get
involved with the unions in the first place? I felt that we
could have resolved any differences without the benefit of
the union." Philpit's reply, according to Walker, was, "It
was going to become inevitable that all of the dealers
would eventually have a umon." Philpit does not deny
saying this, but merely says he cannot "recall" saying it.
Late in 1970 or early in 1971, Assistant Service Manager
James Guido was called into Philpit's office, with nobody
else there. Philpit told Guido that UAW Local 259 was
hiring a lawyer, and that Philpit wanted a statement from
Guido. Philpit appeared to be taking notes of Guido's
ensuing remarks, which Guido neither read nor was asked
to sign. At the conclusion of this interview , Philpit told
Guido he had discussed "this situation" at a meeting with
"several of his Buick dealer friends,"69 who told him they
could not understand why Russell retained Guido in its
employ. Philpit purported not to remember any such
incident. I credit Guido's account as above described.
Three Russell employees testified concerning Board
subpenas requnng their attendance as witnesses at the
behest of General Counsel or the Charging Party (UAW
Local 259) in this case. Employee James Walker swore that
upon receipt of these subpenas, Local 355 Representative
Bisciglie 70 explained to them that there would be a trial
and that although "anybody can be subpoenaed . . . you
can't be forced to say anything," and advised them to
"disregard" the subpenas and that Local 355 and the
Company "will let [you] know if [you] had to go down."7i
Similarly, employee Renaldo-likewise a highly creditable
witness-testified that he was advised by the Local 355
representative (brought to Renaldo by Richard Nocella)
that he did not have to sign a pretrial statement which he
had given to a Board agent and that "Nobody's forcing
you into saying anything." Although a third employee,
Horace Mack, was allegedly unable to recall all of what
Bisciglie told employees about the subpenas when Bisciglie
visited the shop on that occasion, other than that Bisciglie
assured the men that "there is [nothing] really to worry
about," Mack did confirm the episode.
Testifying on this subject, Biscighe denied the statements
attributed to him; according to him, it was the employees
who asked him what to do about the subpenas which had
been served on them, and his (Bisciglie 's) response was that
they must appear and tell the truth. As for the pretrial
statement incident involving Renaldo, after first insisting
he was unable to recall any conversation regarding such a
statement other than one with Richard Nocella, Biscigle
later said 8 or 10 other employees were also present on the
occasion; still later, Biscigle recalled another such conver-
sation, in February or March 1971, but did not provide
details.
On the basis of comparative demeanor observations as
well as the weight of the conflicting testimonial versions, I
have no hesitancy in preferring and accepting the employ-
ees' versions as described.
A telling incident, as credibly recounted by Russell's
former Repair Shop Foreman Richard E. Walker, occurred
between Walker and Richard Nocella on July 8, 1971, the
day before Walker left Russell 's employment. Walker told
Nocella that he still felt that as shop foreman he (Walker)
should not have been in the Union (Local 355) and that
Service Manager Joseph Nocella should not have given
him the Local 355 membership card. Richard Nocella
called Walker a liar and said he (Richard Nocella) had
given Walker the card in "Joe's" office and presence.
69 Cf N L R B v. Raymond Buick, 445 F 2d 644 (C A 2), also involving exclusively, on behalf of Local 355, in the forepart of 1971
Local 355 and a nearby Buick agency other than Respondent Russell 7' Walker also stated that he subsequently was told that Bisciglie had
70 Biscigle took over from Shrt to "service" the Russell employees "retracted" this
RUSSELL MOTORS, INC.
Walker stood firmly by his guns that it was Joseph Nocella
who had given him the card and offered to verify it with
Joseph Nocella . Richard Nocella did not take up the
invitation . Walker also commented adversely upon Rich-
ard Nocella 's recent elevation , because of his brother
Joseph , from class "B" to class "A" mechanic . Although
vigorously cross-examined regarding this episode (which
was disputed by the Nocellas, but to a degree corroborated
by witnesses Johnson and Turrill ), Walker adhered to it
ruggedly and convincingly . I credit Walker 's described
account of the episode.
During his testimony , Russell President Philpit conceded
that-although there was not "anything remain[ing] to be
negotiated" when he signed the "collective agreement"
with Local 355-he increased the wages of James Walker
as well as Marquand subsequent to his signing the
"collective agreement" with Local 355, but he denied he
did this to bring their wages in line with UAW Local 259
wage rates . The following (Fig. 1) is a comparison of wage
rates under the speedily executed "collective agreement"
between Russell and Local 355 (claimed by the latter to be
the area "prevailing rates") and those under contracts of
UAW Local 259 (claimed by it to be the area "prevailing
rates"):
Local 355
Hourly Rate
UAW Local 259
Hourly Rate
Job Classification (1970-72) 1970--72
Mechanic
"A" $4.86 $4.86-$5.15
awn 3.85
"8e 3.45 3.77--4.02
New Car Make Ready Man 3.545-3.795
Lubeman 3.25
Lubeman-Rackman-Helper 3.515--3.765
Partsmen
3.96--4.21
"B" 3.575-3.825
Helper J 3.00
Metalman and 4.68-5.15
Combination
Painter 3.77-4.02
Utilityman 2.75 2.89-3.14
Peter 2SIl
J Local 355 Official Stirt testified that under the Local 355 contract
Partsmen were classified as "Helpers."
Fig. 1: Wage Rate Comparisons , Local 355 and UAW Local 259
(Source: G.C. Exh. 3A, Appendix A, and G.C. Exh. 20,Appendix A)
D. Resume, Resolution, and Rationale
As has been shown and found , in 1966 Respondent
Russell 's service employees by secret ballot in a Board-
conducted election selected UAW Local 259 as their
bargaining representative. Notwithstanding the Board's
official certification of UAW Local 259, a complaint
proceeding was thereafter instituted against Russell,
72 Both Philpit and Stirt conceded the absence of any prior contractual
relationship, Philpit additionally testifying that the "collective agreement"
here in question was the only one he has had in 20 years It would seem that
these circumstances may additionally be taken into account in resolving the
issue of whether a suddenly and speedily installed union has achieved such
373
resulting in a stipulated Board order and court decree
enjoining Russell from continuing to refuse to bargain
collectively in good faith with UAW Local 259 and to
cease and desist from attempting to oust that union as its
employees' representative.
When, in the late summer of 1970, there were rumblings
of renewed union activity among service employees, the
movement was swiftly headed off or channeled into the
direction of another, "independent" union, Amalgamated
Local Union 355. This was accomplished through the
activities of Richard Nocella, brother of Russell Service
Manager Joseph Nocella and self-styled Local 355 shop
steward, with the active assistance of various Russell
supervisors, who in a I-day "campaign" enlisted 21 service
employees-substantially the full crew-to sign member-
ship cards to join Local 355. These activities, camed on
openly and without concealment on Russell premises
during paid working time, were known to Russell,
including not only its Service Manager Joseph Nocella
(chief of all service employees) but also its president,
Russell Philpit, who did nothing to hinder those activities
even though they were in violation of Russell rules banning
such solicitation.
When before any agreement was concluded between
Local 355 and Russell, UAW Local 259 was invited into
the fast-developing situation, the employee (a supervisor)
who had called UAW Local 259 in was-in total contrast
to those who had been openly soliciting for Local 355 on
company premises during paid working time, in violation
of company rules-berated by Russell President Philpit
and Service Manager Joseph Nocella, in Nocella's or
Philpit's office, and informed in no uncertain terms that
UAW Local 259 would not be tolerated by Russell as its
employees' representative, and that Russell would shut
down rather than deal with it.
Thereafter, to the knowledge of Russell and its supervi-
sors, a substantial majority of the service employees signed
membership cards, later in date than the cards they had
signed for Local 355, designating UAW Local 259 as their
sole bargaining representative, upon the basis of which
UAW Local 259 requested recognition and preservation of
the status quo pending determination of the question of
representation through a secret ballot election to be
conducted by the Board. Notwithstanding its knowledge of
these facts, Russell ignored these requests of UAW Local
259, and instead-through Service Manager Joseph Nocel-
la again expressly telling the employees that it would under
no circumstances deal with UAW Local 259, but would
rather shut down-proceeded to enter into whirlwind
"negotiations" and to execute a "collective agreement"
with Local 355, a labor organization with which Russell
had had no prior dealing.72 Respondents Russell and Local
355 either backdated or otherwise signed that "collective
agreement" as of a date I day after the date on the 21
Local 355 cards; namely, September 10, 1970.73
Russell's blitzkrieg enlistment of employees, whirlwind
"negotiations," and lightning-like alleged contract execu-
unique "instant success" as a result of employer assistance See N L R B v
Link-Belt Co, 311 U S 584,588
7' As indicated above, it is in any event no answer for Respondents to
contend, as they (particularly Local 355) do, that Local 355 simply beat
UAW Local 259 to the punch, and that Russell executed a contract with
(Continued)
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion are' most unusual in labor relations as chronicled in
the annals of the Board. Such suspicious speed, within the
frame of reference of Russell's past hostility and even
Board order and court decree proscribing refusal to
bargain in good faith with UAW Local 259, its announced
preference of Local 355, its open membership campaign at
its own expense through its own supervisors and manage-
ment-related personnel on behalf of Local 355,74 its
deliberate misdating of the "collective agreement" hastily
executed with Local 355, the terms and provisions of that
"collective agreement" including the mandatory Local 355
membership75 and dues "checkoff" with surrender of the
right to strike and other employee rights, and its threats to
shut down rather than deal with UAW Local 25976 speak
eloquently of a snug "sweetheart" arrangement as charged.
So far as Respondent Russell is concerned, they speak
loudly of Employer assistance and support 77 to Local
355; 78 Employer encouragement (of Local 355) as well as
discouragement (of UAW Local 259) of union membership
and thus discrimination in regard to hire and tenure of
employment; and, further, interference, restraint, and
coercion of employees in the exercise of their right to select
a bargaining representative of their own free choice, and
their other rights guaranteed to them in Section 7 of the
Act. Oil Transport Co., 182 NLRB No. 148, enfd. 440 F.2d
664 (C.A. 5); Shea Chemical Corporation, 121 NLRB 1027,
1029. They speak dust as loudly, so far as Respondent
Local 355 is concerned, of restraint and coercion by Local
355 of employees in the exercise of their Section 7 rights
and of causing as well as attempting to cause Russell to
discriminate against its employees in violation of Section
8(a)(3) of the Act.79 Upon the entire record, I find and
Local 355 before UAW Local 259 came on the scene Although I do not
believe this in fact occurred, even if it did Local 355 was still an assisted and
otherwise unlawfully employer-sponsored union for the Russell employees
Under the circumstances shown, this would have been true even if UAW
Local 259 had never come on the scene at all
74 "[A]n employer may properly be held responsible for 'interfering' in
the affairs of a union because of participation by his supervisors even
though such participation was not expressly authorized or ratified."
Plumbers Local 636 v NLRB, 287 F 2d 354, 360 (C A D C) See also
Il LR B v Park Edge Sheridan Meats, Inc, 323 F 2d 956 (C A 2) No
representation question is presented when the showing of interest is based
on cards solicited by supervisors, since such a union is incapable of
representing the employees Desdu Productions, Inc, 106 NLRB 179
75 Cf Shipwrecking, Inc, 136 NLRB 1518, 1520
96 Cf N L R B v Gissel Packing Co, 395 U S 575, 618-6620, Textile
Workers v Darlington Co, 380 U S 263, 274, fn 20, N L R B v Exchange
Parts Co, 375 U.S 405, 409, N L R B v Virginia Electric & Power Co, 314
U S 469, 477, 478; Holly Hill Lumber Company v N L R B, 380 F 2d 838,
841 (C A 4), N L R B v Eastern Die Co, 340 F 2d 607, 608 (C A I), cert.
denied 381 U S 951, N LR B v Tru-Line Metal Products Company, 324
F 2d 614, 616 (C A 6), cert denied 377 U S 906, United Fireworks Mfg Co
v N L R B, 252 F 2d 428, 430 (C A 6) "The right of employees to be
represented by officials of their own choice doubtless must outweigh any
principle of persona non grata " N LR B v Signal Manufacturing Co, 351
F 2d 471 (C A I), cert denied 382 U S 985
77 As, through enabling and tolerating card solicitation for Local
355-as distinguished from UAW Local 259-on company premises during
paid working time, by company supervisors and personnel; and through
overt company favoritism toward Local 355 and coercive campaigning
against UAW Local 259 Cf, e g, Modern Cleaners Company, 100 NLRB 37,
enfd sub nom N L R B v Giallanza, 208 F 2d 243 (C A 2); N LR B v
Clinton Woolen Mfg Co, 141 F 2d 753 (C A 6), Oil Transport Co, 182
NLRB No 148, enfd 440 F 2d 664 (C A 5, nonfiling of representation
petition by rival union not determinative), Shea Chemical Corporation, 121
NLRB 1027, 1029, Jack Smith Beverages, Inc, 94 NLRB 1401, enfd as
modified 202 F 2d 100 (C A 6), cert denied 345 U S 995, Midwest Piping
conclude that Respondents in fact did these things, Russell
in violation of Section 8(a)(2), (3), and (1), and Local 355
in violation of Section 8(b)(1)(A) and (2), of the Act.
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. At all material times, Respondent Russell Motors,
Inc., has been and is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. At all material times , Respondent Amalgamated
Local Union 355 has been and is a labor organization
within the meaning of Section 2(5) of the Act.
3. At all material times, Local 259, United Automobile,
Aerospace, and Agricultural Implement Workers of Amer-
ica International Union, Charging Party herein, has been
and is a labor organization within the meaning of Section
2(5) of the Act.
4. Assertion of jurisdiction in this proceeding is proper.
5. By its conduct set forth in section III, above, found
to constitute unfair labor practices, Respondent Russell
Motors, Inc., has:
a. In violation of Section 8(a)(2) of the Act, contributed
financial or other support to a labor organization, viz
Amalgamated Local Union 355;
b. In violation of Section 8(a)(3) of the Act, discrimi-
nated in regard to hire and tenure of employment and
terms and conditions of employment: (1) to encourage
membership in a labor organization, viz. Amalgamated
Local Union 355; including by said Russell Motors, Inc.,
agreeing to a maintenance of membership requirement in a
and Supply Co, Inc, 63 NLRB 1060 In this connection , Respondent
Russell's history of animus against UAW Local 259 has been considered. It
may also be said that premature employer recognition in the face of a rival
union claim lends status to the prematurely recognized union, thereby
further interfering with, restraining, and coercing the employees' true
freedom of choice. Local 355 Official Stirt testified that "subsequent to that
[recognition of Local 355 by Philpit on September 9], other people signed
up later on, when we had the agreement "
78 It is not alleged or contended by General Counsel that Local 355 is a
"dominated" or "interfered with" union under Sec 8 (a)(2), presumably
because the Employer here was neither the original sire nor accoucheur of
Local 355 itself-although in a sense the Employer was such to his
employees here Under certain circumstances , employer "domination" has
been predicated upon the prominent role of supervisors, as here, in the
sponsored union activities , committees , and meetings (Wahlgren Magnetics,
132 NLRB 1613, Thompson Ramo Wooldridge, Inc, 132 NLRB 993, enfd.
as modified 305 F 2d 807 (C A. 7, and employer " interference" has been
predicated upon supervisors' membership-as here-on an employees'
bargaining committee (Nassau and Suffolk Contractors' Association, Inc, 118
NLRB 174, see also Plumbers Local 636 v N L R B, 287 F.2d 354
(C A D C ), quoted in fn 74, supra A finding of employer "domination" (as
distinguished from employer "assistance") may warrant an order disestab-
lishing the dominated union N LR B v District 50, UMW, 355 US 453,
458-459, Jack Smith Beverages, Inc, 94 NLRB 1401, enfd as modified 202
F.2d 100 (C A 6), cert denied 345 U S 995
79 That scienter or wilfulness is unessential to violation of Sec 8(b)(I)(A)
and (2), see 1LGWU [Bernhard-Altmann Co J, v N L R B, 366 U.S. 731,
738-39 An 8(a)(2) violation by an employer supports a finding of an 8(b)(1)
violation by the assisted union for interference with employees' rights to
organize themselves , such as through concluding a contract with the
employer (N L R B v. Richard W Kaase Company, 346 F.2d 24 (C.A. 8),
Ellery Products Manufacturing Co, Inc, 149 NLRB 1388), particularly
where the contract unlawfully conditions employment upon maintenance of
union membership (cf United Association of Journeymen & Apprentices,
Plumbers Local 231, J S Brown-E F Olds Plumbing & Heating Corp, 115
NLRB 594)
RUSSELL MOTORS, INC
collective agreement with said labor organization notwith-
standing that said labor organization was not duly
employee-authorized and further notwithstanding that said
labor organization was established for said Russell Motors,
Inc., employees, and maintained and assisted by actions of
said Russell Motors, Inc,, defined in Section 8(a) of the Act
as unfair labor practices; and (2) to discourage member-
ship in a labor organization, viz Local 259, United
Automobile, Aerospace, and Agricultural Workers of
America International Union;
c. In violation of Section 8(a)(1) of the Act, interfered
with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
6. By its conduct set forth in section III, above, found
to constitute unfair labor practices, Respondent Amalga-
mated Local Union 355 has, in violation of Section
8(b)(1)(A) and (2) of the Act, restrained and coerced
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has caused and attempted to
cause an employer, viz Russell Motors, Inc., to discrimi-
nate against its employees in violation of Section 8(a)(3) of
the Act.
7. The foregoing unfair labor practices, and each of
them, have affected and are continuing to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
There remains the question of remedy.
It is a widely acknowledged principle in the transaction
of human affairs that previous conduct is a reliable guide
to anticipated future behavior. This case affords a good
example of that principle so far as the past is concerned. It
should also utilize that principle thereapeutically to
provide a less bleak future.
Neither of Respondents is a stranger to the Board,
although Local 355 is very well known indeed. So far as
Respondent Russell is concerned, as will be recalled, there
is a previous history, a few years ago, of unlawful refusal to
bargain with UAW Local 259 in the face of that Union's
official certification by the Board following a secret ballot
election , resulting in a Board order and court decree by the
Second Circuit Court of Appeals of the United States.
Notwithstanding all this, as has been shown, Russell
persists in its obdurate hostility to its employees' selection
of that Union as bargaining representative, to the extent of
threatening to go out of business and thus end their jobs
rather than deal with it, and instead foisting a "sweetheart
union" (Local 355) on its employees to prevent that
eventuality. These circumstances warrant and require a
stronger and more effective remedy than the last time.
So far as Respondent Local 355 is concerned, the
reasonable limitations of decision writing as well as
decision reading mandate a more synoptic treatment than
the chronology really warrants.
We are told that in fashioning an appropriate remedy we
may properly consider a Respondent's history. N.L.R.B. v.
Gissel Packing Co., 395 U.S. 575, 614; N.L.R.B. v. Seven-Up
Bottling Co, 344 U.S. 344, 348-49; Truck Drivers & Helpers
Local Union No. 728, Teamsters v. N.L.R.B., 332 F.2d 693,
695, 697 (C.A. 5), cert. denied 379 U.S. 913; Local 138, etc.
v. N.L.R B., 321 F.2d 130, 138 (C.A. 2); N.L.R.B. v.
375
Springfield Building & Const. Trades Council, 262 F.2d 494,
498-499 (C.A. 1), cited with approval in N.L.R.B. v. Ochoa
Fertilizer Corp., 368 U.S. 322; Jaffe, The Judicial Enforce-
ment of Administrative Orders, 76 Harv. L. Rev. 865, 892
(1963).
Local 355 has had a long and consistent history of
violations before the Board and courts for more than
10 years, including the following cases 80 (1) Lundy
Manufacturing Corporation, Amalgamated Local Union 355
& ano. (Cases 2-CA-6083, 2-CA-7330, 2-CA-7330-3,
2-CA-6403, and 2-CA-7330-2; acts dating from 1957),
136 NLRB 1230 (1962), enfd. 316 F.2d 921 (C.A. 2, 1963),
cert. denied 375 U.S. 895 (1963); (2) Fiore Brothers Oil Co.,
Inc., Amalgamated Local Union 355 & ano. (Cases
2-CA-8146 and 2-CB-3234), 137 NLRB 191 (1962), enfd.
317 F.2d 710 (C.A. 2, 1963); involves Stirt ; (3) Salmirs Oil
Company, Amalgamated Local Union 355 & ano. (Cases
2-CA-8149 and 2-CB-3237), 139 NLRB 25 (1962);
involves Stirt; (4) Malcolm Konner Chevrolet, Amalgamated
Local Union 355 & ano. (Cases 22-CA-1282 and
22-CB-527), 141 NLRB 541 (1963), enfd. 338 F.2d 972
(C.A. 3, 1964); involves Stirt; (5) Richmond Rambler Sales,
Inc., Amalgamated Local Union 355 & ano. (Cases
29-CA-223 and 29-CB-70; 1965), Board Order (DS-609;
1965) and court decree (Ca. 2; 1966) on consent; involves
Stirt and Bisciglie ; (6) Command Lincoln-Mercury Corp.,
Amalgamated Local Union 355 & ano. (Cases 29-CA-360
and 29-CB-134; 1965), Board Order (DS-644; 1966) and
court decree (C.A. 2; 1966) on consent; involves Stirt; (7)
Raymond Buick, Inc., Amalgamated Local Union 355 & ano.
(Cases 29-CA-731, 29-CA-773, and 29-CB-259), 173
NLRB 1292 (1968; Board at 1293 speaks of Local 355's
"peculiar proclivity to be involved in collusive situations"),
enfd. 445 F.2d 644 (C.A. 2, 1971); involves Tolkow; (8),
(9), and (10) Buckingham Livery Service, Fugazy-Continen-
tal, Inc., Amalgamated Local Union 355, et al. (Cases
29-CA-916,29-CA-1092, and 29-CA-1214), Board orders
adopting TXDs on no exceptions (1969), enforced by
consent order sub nom. N.L.R.B. v. Fugazy-Continental,
Inc. (C.A. 2, 1969; consolidated cases); (11) Vanella Buick
Opel, Inc. and Amalgamated Local Union 355, Intervenor
(Cases 22-CA-4204, 22-CA-4206, and 22-RC-4745), 191
NLRB No. 107 (1971); (12) and (13) Robin Ford Sales, Inc.
and Amalgamated Local Union 355; Consolidated Petroleum
Terminal, Inc. and Amalgamated Local Union 355, con-
tempt proceedings involving contempt by Local 355 of
three previous Second U.S. Circuit Court of Appeals
decrees in Salmirs (1964) and Richmond Rambler (1966)
cases, supra (C.A. 2, Nos. 28,481; 30,236-7; & 30,405-6); 5-
day adversary hearing, on reference of C.A. 2, in U.S.D.C.,
E.D.N.Y. (69-Civ. 1560), before U.S.D.J. Dooling as
Special Master, 77 LRRM 2989 (Oct. 23, 1970), finding
and report confirmed and adopted and civil contempt
judgment entered against Local 355, Stirt and Tolkow, 77
LRRM 3082 (C.A. 2, July 12, 1971); involves Stirt, Tolkow,
& Bisciglie , with finding that Bisciglie in Robin Ford
backdated "collective agreement" between Local 355 and
Employer; (14) Vanella Buick Opel, Inc., Amalgamated
Local Union 355 & ano. (Cases 22-CA-4373 and
22-CB-1857), 194 NLRB No. 123; and (15) the instant
case.
80 Officially noticed in connection with Remedy herein
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The factual pattern encountered in these cases is largely
the same as that found in the instant case; viz: introduction
and installation of Local 355 as "exclusive bargaining
representative" for all unit employees as a result of
Employer connivance, coercion, interference, or assist-
ance ; utilization of Employer executives or supervisors to
enlist employees into Local 355 membership; a blitzkrieg
signing up of employees on Local 355 cards, followed by a
speedy "collective agreement" with the Employer; provi-
sions in the "collective agreement" for a Local 355 "Union
shop," with mandatory requirement that all employees join
and maintain Local 355 membership as the puce of
retaining their jobs, and with the Employer "checking off"
from employees' wages and paying directly to Local 355 all
Local 355 fees and dues on behalf of all employees; and a
competing union or unions thereby discriminated against
and ousted. As has already been noted, repeated violations
of Board orders and court decrees are involved, capped by
the recent contempt judgment by the Second U.S. Circuit
Court of Appeals. The locale of almost all cases is the Long
Island-Metropolitan New York City (including nearby
New Jersey) area; and identified throughout various of the
cases as the active officials and representatives of Local
355 are Stirt, Bisciglie, and Tolkow.
Not only is Respondent Local 355 thus well known to
the Board, but so also are the dramatis personae which it
supplies to act out the scenario which has enjoyed so many
repeat performances. Thus, we meet again Stirt and
Biscighe .81 The script is again essentially the same-among
other things, the use of Employer supervisors to dragoon
employees into Local 355, the swift signing of a "collective
agreement" featuring a Local 355 "security" provision
requiring mandatory membership in Local 355, with
mandatory initiation fees and dues "checked off" as
continuing deductions from employees' wages as the price
of retaining jobs, and the surrender of the right to strike or
complain about any employment conditions. It is also
noted, for example, that in the Robin Ford case in the
above chronology there was an express finding by Judge
Dooling that the Local 355 representative (Bisciglie)
backdated the Local 355 "collective agreement" with the
Employer-like here. The Local 355 official and represent-
ative primarily involved in the instant case, Henry Stirt,
cannot claim unfamiliarity with the script which he
reenacted here as leading man, since he played the role
before; he has signed notices, stipulations, and consent
decrees in prior proceedings. His actions must therefore be
judged as calculated and deliberate. On October 23, 1970,
81 Stirt explained here that he has been treasurer as well as an organizer
and business agent of Local 355, an "unaffiliated independent" labor
organization, for about 2-1/2 years, and prior to that secretary-treasurer for
about 6 years, that Bisciglie has been secretary for about 2-1/2 years, that
Bernard Tolkow is "Business Manager" who runs the Union on a day-to-
day basis, and that the president is Charles Goldstein
82 Further experience appears amply to have borne out the concern of
the statutory authors that "Experience has demonstrated that the
Board has not been able in some instances to correct unfair labor practices
until after substantial injury has been done Since the Board 's orders
are not self-enforcing , it has sometimes been possible for persons violating
the act to accomplish their unlawful objective before being placed under
any legal restraint and thereby to make it impossible or not feasible to
restore or preserve the status quo pending litigation " (S Rep No 105, 80th
Cong , 1st Sess 8, 27 ] 1947 1 )
83 See, e g, Fibreboard Corp v. N L R B, 379 U S 203, 215-217,
in the Second Circuit Court of Appeals contempt proceed-
ings in N.L.R.B. v. Amalgamated Local Union 355, U.S.
District Judge Dooling found (G.C. Exh. 17-Id., Findings
54 and 55, adopted by the court of appeals):
54. Tolkow and Bisciglie were fully cognizant of the
implications of their own conduct and fully participant
in the conduct of Local 355 in organizing Robin Ford
Sales, Inc., and Tolkow knew and understood the terms
of the cease and desist orders and the enforcement
decrees referred to in findings 4, 6 and 7.
55. Stirt was fully cognizant of the implications of his
conduct and fully participant in the conduct of Local
355 in organizing Consolidated Petroleum Terminal,
Inc., and Tolkow and Stirt knew and understood the
terms of the cease and desist orders and the enforce-
ment decrees referred to in findings 4 and 6.
Section 10(c) of the Act empowers the Board to order
violators "to cease and desist from such unfair labor
practice, and to take such affirmative action including
reinstatment of employees with or without back pay, as
will effectuate the policies of this Act." Test of this
statutory authority has drawn from our highest Court the
characterization that it "charges the Board with the task of
devising [ effective ] remedies." N.L.R.B. v. Seven-Up
Bottling Co., 344 U.S. 344, 346.82
We are constantly adjured by higher authority to design
effective remedies; 83 as indicated, obedience to the Act's
mandates requires no less. "It is now axiomatic that the
Board has broad discretion in fashioning an affirmative
remedy under Section 10(c) to `effectuate the policies of the
Act.' See, e.g., N.L.R.B. v. Gissel Packing Co., 395 U.S. 575,
612, 216 (1964)." Lipman Motors, Inc v. N. L. R. B., 451 F.2d
823 (C.A. 2). Nor is the fact that a remedy never has been
applied before reason for not applying it if warranted.
N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 600, and cases
cited; Heck's, Inc., 191 NLRB No. 146.
Under the circumstances shown, it would be nothing less
than a travesty to fail to recommend utilization of the full
armamentanum of the Board's remedial powers to prevent
still further repetitions of deliberately continued lawless
preying on employees, the intended beneficiaries of the
Act's guarantees. In the situation and against the back-
ground shown, I find that it is likely that the described
actions on the part of Local 355 will recur in the absence of
effective measures, which are accordingly called for here.
After careful and searching consideration, I have
resolved to recommend an order which, while fair, contains
those features which I think the public interest requires in
N L R B v Erie Resistor Corp, 373 U S 221, 236, N L R B v Seven-Up
Bottling Co, 344 US 344, 346-349, Virginia Electric & Power Co v
NLRB , 319 U S 533, 539-540, Phelps Dodge Corp v N L R B, 313 U.S
177, 188, 194, 198 The Board has expressed concerned awareness of the
seriousness of this problem and the essentiality of solutions See, e g ,
McCulloch, A Tale of Two Cities or Law in Action, 1962 Proceedings of
American Bar Association Section of Labor Relations Law, 14, 25, in which
the former chairman spoke of the necessity for designing remedies "that will
give more protection to the rights of self-organization, discourage unfair
labor practices by unions and employers , and encourage the practice and
procedure of collective bargaining " There are additional considerations
here "The fact that the election is still to be held adds strength to the view
that the policies of the Act would require an appropriate Board order to
offset , insofar as such an order could do so, the effect of such unfair labor
practices" United Steelworkers of America, AFL-CIO (Wagner Industrial
Products Co)v.NL.RB,386F2d981,983(CADC)
RUSSELL MOTORS, INC.
order to effectively discourage and hopefully to terminate
the deliberate flaunting of the Act which has continued for
over a half generation to characterize Respondent Local
355's modus operandi. Those features will be apparent from
the contents of the order recommended to the Board,
which it would be superfluous to preview at this point.
Where essential or appropriate, additional rationale is
there supplied.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this consolidat-
ed proceeding, and upon all other proceedings identified
above and officially noticed herein, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended: 84
ORDER
A. Russell Motors, Inc., and its officers, agents,
successors, and assigns, and Amalgamated Local Union
355 and its officers, agents, and representatives, shall
jointly and severally forthwith:
1. Cease and desist from giving effect to a certain
"collective agreement" entered into between Russell
Motors, Inc., and Amalgamated Local Union 355 dated
September 10, 1970, or to any of its terms or provisions;
without prejudice, however, to any wage rate, wage increase,
vacation or holiday or sick leave period, hospitalization,
medical or dental insurance coverage, or-any other
economic benefit or emolument granted thereunder, or
accruing or to accrue to any employee of Russell Motors,
Inc., thereunder or in consequence thereof.
2. Cease and desist from giving effect to, or maintain-
ing or asserting the validity of, any "membership card"
executed by any employee of Russell Motors, Inc., on or
since September 8, 1970, for the purpose of recognizing
said Local 355 as the representative of the signatory of
such card.
3. Cease and desist from giving effect to any authoriza-
tion executed by any employee of Russell Motors, Inc., on
or since September 8, 1970, requiring or authorizing
Russell Motors, Inc., to "check off," deduct, withdraw,
withhold, or otherwise not pay to any such employee, or to
pay over to Amalgamated Local Union 355 for initiation
fees or dues or on account of any obligation of member-
ship in said Local 355, any part of such employee's wages
due; and return each such authorization to the signatory
employee.
84 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
85 This provision is deemed particularly appropriate in view of the
inclusion in the parties' described "collective agreement " of mandatory
union maintenance -of-membership and fees-dues "checkoff" requirements
which have concededly been enforced by Respondents here at all times Cf,
e.g, Virginia Electric & Power Co v N L R B , 319 U S 533, 539-541,
N L R B v Raymond Buick , Inc, 445 F . 2d 644 , 645 (C A 2), Bernhardt
Bros Tugboat Service, Inc v N L R B, 328 F 2d 757 (C A 7)
86 In view of the current level of legal interest charges , I see no
justification for limiting interest below the lawful rate permissible in the
jurisdiction where the moneys in question were unlawfully exacted from the
employees I do not regard the requirement that lawful interest be added to
377
4a. Reimburse each employee of Russell Motors, Inc.,
who has paid or been charged, or who has had deducted
from his wages, by "checkoff" or ,therwise, under or in
consequence of the aforesaid "collective agreement" dated
September 10, 1970, or any "checkoff" authorization or
otherwise, any and all initiation fees , dues, and other
charges, payments, exactions, and amounts paid by or on
behalf of such employee, on or since September 10, 1970; 85
plus interest at the maximum lawful rate under the law of
the State of New York.86
4b. Preserve and, upon request, make available to the
Board or its agents, for examination and copying, their
respective payroll records, social security payment records,
timecards, personnel records, payment receipt records,
reports, and all other records, including those of the United
Welfare Fund ofl Amalgamated Local Union 355, necessary
to determine the amounts of refunds due and the extent of
compliance with this recommended Order.
5. Reimburse Local 259, United iAutomobile, Aero-
space,' and Agricultural Implement Workers of America
International Union for its organizing expenses incurred in
connection with the service employees of Russell Motors,
Inc., on and since September 14, 1970, and for its
reasonable attorneys' fees and disbursements in the
consolidated proceeding resulting in this recommended
Order; the amounts thereof to be determined, if agreement
cannot be reached thereon, by order on petition to the
Board, jurisdiction being expressly retained for that
purpose.87
B. Russell Motors, Inc., and its officers, agents,
successors, and assigns, shall forthwith:
1. Withdraw and withhold recognition from, and cease
and desist from recognizing, negotiating, or dealing with,
Amalgamated Local Union 355 as the bargaining repre-
sentative of any unit of employees of Russell Motors, Inc.,
unless and until said Local 355 has been duly certified by
the National Labor Relations Board to be such representa-
tive following a Board election.88
2. Cease and desist from unlawfully, directly or
indirectly, giving, contributing, promising, or holding out
any financial or other support, aid, assistance, or preferen-
tial treatment to any labor organization.
3. Cease and desist from directing, authorizing, or
permitting any official, supervisor, or agent of Russell
Motors, Inc., to enlist or solicit, directly or indirectly, any
employee of Russell Motors, Inc., to join any labor
organization.
repayment of an unlawful exaction as the imposition of a penalty . Cf. UAW
[UdylueCorp],v.NL.RB,79LRRM2031,2041 (CADC)
87 Cf UAW [Udyhte Corp J v N L R B, supra , N L R B v Local 825.
Operating Engineers, 430 F 2d 12251 (C A 3), Local 57, ILG WU (Garvin
Corp], v N L R B, 374 F 2d 295, 304, fn 22(C A.D.C ), per Burger. J.), cert
denied 387 U S 942, Port Drum Company, 170 NLRB 555, 556-557. and 180
NLRB No 90 It is deemed appropriate to extend this requirement to
Respondent Russell in view of the circumstances herein , involving its
announced , persisting intransigeance on the subject of dealing with UAW
Local 259 notwithstanding the previous history of its relationship with that
Union , including a Board order and Court decree following its unlawful
refusal to bargain after Board certification of that Union after a Board
election, as well as its pursuit of that policy notwithstanding its timely
receipt herein from UAW Local 259 of oral and telegraphic requests for
recognition and maintenance of the status quo pending a Board election
88 Cf Burns International Detective Agency v. N L R B, 441 F 2d 911
(C A 2), The Carpenter Steel Company, 76 NLRB 670
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Cease and desist from in any manner interfering
with, restraining, or coercing its employees in the choice of
Local 259, United Automobile, Aerospace, and Agricultur-
al Implement Workers of America International Union, or
any other labor organization, as their bargaining represent-
ative.
5. Cease and desist from threatening not to recognize,
negotiate, or deal with Local 259, United Automobile,
Aerospace, and Agricultural Implement Workers of Amer-
ica International Union (or- any other labor organization),
in the event employees of Russell Motors, Inc., select said
UAW Local 259 (or any other labor organization so
selected) as their bargaining representative.
6. Cease and desist from threatening to shut down its
plant, shop, business, or operations, or any part thereof, in
the event that its employees select Local 259, United
Automobile, Aerospace, and Agricultural Implement
Workers of America International Union (or any other
labor organization) as their bargaining representative.89
7. Cease and desist from encouraging or discouraging
membership in any labor organization by discrimination in
regard to hire or tenure of employment or any term or
condition of employment.
8. Cease and desist from in any other manner interfer-
ing with, restraining, or coercing any employee in the
exercise of his right to self-organization; to form, join, or
assist any labor organization; to bargain collectively
through representatives of his own choosing; to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection; or to refrain from any
and all such activities.
9. Post at each of its locations in the Village of Roslyn,
Nassau County, New York (viz, 1039 Northern Boulevard
and 1900 Northern Boulevard), copies of the "Notice to
Employees" and also copies of the "Notice to Members"
attached hereto marked "Appendix A" and "Appendix
B."90 Copies of said Appendix A, on forms provided by
the Board's Regional Director for Region 29, shall, after
being duly signed by the authorized representative of
Russell Motors, Inc., be posted by Russell Motors, Inc.,
immediately upon receipt thereof, and be maintained by it
89 See cases cited in In. 76, supra. Textile Workers v. Darlington Co., 380
U.S. 263, 274, In. 20, expressly cautions that, while actual termination of
business operations rather than deal with a union is not proscribed, the
threat to do so is.
99 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notices 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."
91 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify said Regional Director, in writing, within 20 days from the date of
this Order, what steps Respondent, has taken to comply herewith."
92 Cf. Burns International Dectective Agency v. N. L. R. B., 441 F.2d 911
(C.A. 2); Laura Modes Company, 144 NLRB 1592, 1596. Respondent Local
355 conceded during closing argument that the Board has power to so order.
93 Ibid. In recommending inclusion of this feature in the Order, I do so
with full awareness that the Board declined to adopt such a feature when
suggested by my Brother Plaine in 1968 in Raymond Buick, Inc., 173 NLRB
1292, enfd. 445 F.2d 644 (C.A. 2); and that my Brother Fitzpatrick
thereafter in Vanella Buick Opel, Inc., 194 NLRB No. 123 (1971), in view of
the Board decision in Raymond Buick as he expressly stated did not consider
it appropriate to recommend this particular remedy against Local 355 in the
indicated pattern of violations on its part. But in declining to adopt this
remedy when recommended by my Brother Plaine, the Board at that time
for 60 consecutive days thereafter, in conspicuous places,
in the aforementioned locations, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material. Copies
of said Appendix B shall, immediately upon receipt thereof
from said Regional Director, likewise be posted, main-
tained, secured, and safeguarded.
10. Deliver signed copies of the Notice to Employees
marked "Appendix A" to the Board's Regional Director
for Region 29 in a quantity to be designated by said
Regional Director, for the purpose of posting by Amalga-
mated Local Union 355.
11. Notify said Regional Director, in writing, within 20
days from the receipt of this Decision and recommended
Order, what steps Russell Motors, Inc., has taken to
comply herewith.91
C. Amalgamated Local Union 355 and its officers,
agents, and representatives, shall forthwith:
1. Cease and desist from representing or purporting to
represent, or holding itself out as representative of, any
employees of Russell Motors, Inc., under or in conse-
quence of a certain "collective agreement" entered into
between Amalgamated Local Union 355 and Russell
Motors, Inc., dated September 10, 1970, or any of its terms
or provisions, or otherwise unless and until said Local 355
has been duly certified by the National Labor Relations
Board to be such representative following a Board
election 92
2. For a period of 3 years from the date of any final
Order herein or in any proceeding growing out of this
proceeding, cease and desist from representing or purport-
ing to represent, or holding itself out as representative of,
or entering into any collective agreement as representative
of, any unit of employees of any employer, not presently
validly represented by Amalgamated Local Union 355,
unless and until said Local 355 has been duly certified by
the National Labor Relations Board to be such representa-
tive following a Board election.93
3. Cease and desist from utilizing officials, supervisors,
or agents of an employer to unionize or to attempt to
(1968) expressly stated that it was doing so only "at this time" (173 NLRB
at 1293). Since then, however, Local 355 has not only again continued to
engage in the acts here found, but it as well as its officials have been held in
civil contempt by the Second Circuit Court of Appeals (77 LRRM 3082)
following a full adversary hearing before United States District Judge
Dooling sitting as a Special Master of the Court of Appeals (F.Supp., 77
LRRM 2989). I therefore consider that the time is now ripe-more than
ripe-for a renewed recommendation that this remedy be adopted . It should
not be necessary for the Federal agency armed with responsibility for
policing industrial relations to "fox hunt " recidivists to earth with the same
dull weapons which have repeatedly proven ineffective in the past. Nor is
the Board required to "play hide-and-seek" with violators of the Act. Mexia
Textile Mills, Inc. v. N.L.R.B., 339 U.S. 563, 568. Extention of the effect of a
Board order against a union beyond the immediate employer is by no
means unknown. For example , in District 65, Retail etc. Union (The St. John
Associates, Inc., et al.), 157 NLRB 615, involving a union "swarm-in" upon
various employers' premises for organizational purposes during worktime,
the Board did not limit its cease-and-desist order to the involved employers'
premises but extended it to the premises of "any other employer in the
geographic area of its jurisdiction ." Id. at 626. When the Board order was
enforced in N.L.R. B. v. District 65, Retail, Wholesale and Department Store
Union, 375 F.2d 745, 747 (C.A. 2), the court took the occasion to state, "If
the much used phrase 'law and order' is to have any meaning in our society,
the Board's decision supporting these words must be enforced. The manner
in which the union proceeded justifies the broadest type of order."
(Continued)
RUSSELL MOTORS, INC.
unionize that employer's employees, to induce or attempt
to induce such employees to be represented by Amalga-
mated Local Union 355, or to assist or aid said Local 355
in organizing such employees.
4. Cease and desist from causing or attempting to cause
an employer to discriminate against an employee in
violation of Section 8(a)(3) of the National Labor Rela-
tions Act, as amended.
5. For a period of 3 years from the date of any final
Order herein or in any proceeding growing out of this
proceeding, cease and desist from issuing or delivering to
any employee or employer for any purpose any member-
ship application, or membership or representational
authorization card or other designation, of or pertaining to
Amalgamated Local Union 355, unless there are legibly
and prominently imprinted thereon the following words:94
THE NATIONAL LABOR RELATIONS BOARD
HAS FOUND THIS UNION GUILTY OF COLLU-
SION WITH EMPLOYERS TO VIOLATE RIGHTS
OF EMPLOYEES, AND THIS UNION HAS BEEN
ADJUDGED TO BE IN CONTEMPT OF COURT.
6. Cease and desist from in any other manner restrain-
ing or coercing any employee in the exercise of his right to
self-organization, to form, join, or assist any labor
organization; to bargain collectively through representa-
tives of his own choosing; to engage in concerted activities
for the purpose of collective bargaining or other mutual aid
or protection; or to refrain from any and all such activities.
7. Mail a copy of the Notice to Members, marked
Similarly, in Teamsters, Local 901 (Associated Federal Hotels), 193 NLRB
No 90, the Board's cease-and-desist order by its terms extended throughout
all of Puerto Rico, "in view of the egregious nature of the violation in this
case and the foregoing record of recent similar violations by the Union"
which were officially noticed Id. While Respondent Union is closing
argument here conceded that the Board has the power to prevent Local 355
from representing the Russell employees here without an election, it
disputes the Board 's power to do so regarding any other employees , citing
N L.R B v. Gissel Packing Co, 395 U S 575, and UMW v Arkansas Oak
Flooring Co, 351 U S 62 1 do not agree Nor do I understand the court's
language in the Gissel and Arkansas Oak Flooring cases , indicating that
employer recognition of a bargaining representative upon the basis of a card
showing without an election, may under certain circumstances be proper or
required, to mean that such recognition is mandatory, nor that the Board is
powerless to act so as to prevent such exclusive representation even as to
nonsigners of cards (possible 49 percent of a unit), under abusive
379
"Appendix B," to each member of Amalgamated Local
Union 355.95
8. Post in conspicuous places at its business places and
meeting halls, including all places where notices to
members are customarily posted, copies of the Notice to
Members and also copies of the Notice to Employees
attached hereto marked "Appendix B" and "Appendix
A".96 Copies of "Appendix B," on forms provided by the
Board's Regional Director for Region 29, shall, after being
duly signed by the authorized representative of Amalga-
mated Local Union 355, be posted by said Local 355
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
in the aforementioned locations, including all places where
notices to members are customarily posted. Reasonable
steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material. Copies
of said Appendix A shall, immediately upon receipt thereof
from said Regional Director, likewise be posted, main-
tained, secured, and safeguarded.
9. Deliver signed copies of the Notice to Members
marked "Appendix B" to the Board's Regional Director
for Region 29 in a quantity to be designated by said
Regional Director, for the purpose of posting by Russell
Motors, Inc.
10. Notify said Regional Director, in writing, within 20
days from the receipt of this Decision and recommended
Order, what steps Amalgamated Local Union 355 has
taken to comply herewith.97
circumstances such as those found here, involving deliberately persisting,
egregious violation of repeated Board orders and court decrees in the
planned and patterned illegal misuse of such cards so as to frustrate the
Act's most basic purposes and guarantees
94 See cases officially noticed herein , enumerated supra, Raymond Buick,
Inc and Amalgamated Local Union 355, 173 NLRB 1292, 1293 (1968), enfd
445 F 2d 644 (C.A 2); N L R B v Amalgamated Local Union 355, 77
LRRM 2989, 2991, 2993 (Finding 26), 2996-97 (Findings 54 and 55), and 77
LRRM 3082 (C A 2), and fns 83, 85, and 93, supra
95 This requirement is not limited to members or alleged members of
Local 355 in the employ of Russell Motors , inc Cf Loray Corp, 184 NLRB
No 57, J P Stevens and Co, Inc, 157 NLRB 869, 878-879, enfd 380 F 2d
292, 304 (C A 2), cert denied 389 U S 1005
96 See fn 90, supra -
97 See fn 91, supra