S. Morena & Sons, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1967

163 N.L.R.B. 1071 (N.L.R.B. 1967)

S. MORENA & SONS, INC. 1071
another , as, for example , a laborer became a
storeroom assistant . Finally, at least some of the
Group I employees are plant clericals such as the
Board normally includes in a production and
maintenance unit unless they are specifically
excluded therefrom by agreement of the parties or
unless they are expressly included in other units.5
Neither of these circumstances is present here.
In light of all these factors , we find that the Group
I employees cannot constitute a separate appropri-
ate unit , and we shall dismiss the petition in Case
15-AC-9.6
Petition in Case 15-AC-7
The Local has petitioned to have its name
substituted in the certification in place of the
Association's name. The Employer alleges that the
disaffiliation action was ineffective because it did
not conform to the Association's constitutional
requirements. We find no merit in this position.
The Association's constitution provides a method
whereby it can be amended to effectuate such a
change. This method requires, first, the approval of
a resolution for amendment of the constitution by a
2/3 vote of the executive committee; and, second,
approval by a majority of members voting after 15
days' notice of an employee-member election. The
record indicates that the required notice of the
resolution was given to the members to amend and
that more than a majority voted to affiliate with the
Local and approve the resolution.
The record further establishes that Local 428 is
but a continuation of the certified Association
herein. The certified union took formal steps to
make certain that a majority of its membership
approved of such action; and, the Association gained
assurance from the Local that there would be no loss
of identity of the group constituting the Association.
Finally, the certified representative, in seeking
recognition of this new affiliation, made it perfectly
clear, despite its new affiliation that the "officers
and functional leaders" would remain the same' and
there would be no change in the day-to-day
relationships with the Employer. In these
circumstances, as we believe that the requested
substitution would insure to employees a continuity
of their present organization and representation, we
shall grant the Petitioner's motion and substitute
Office and Professional Employees International
Union, Local 428, AFL-CIO, for the Baton Rouge
Water Works Employees Association as certified
representative of the employees in the unit. Such
amendment of the certification is not, however, to be
considered as a new certification or recertification.8
Petition in Case 15-RM-214
As more fully set forth above, the Employer seeks
an election to determine the identity of the present
bargaining representative of its production and
maintenance employees, and it contends that its
Group I employees are entitled to a self-
determination election to indicate whether they wish
to be represented in a separate unit. However, we
have found that a separate unit of the Group I
employees is inappropriate and that the petition of
Local 428 for amendment of the certification by
substitution of its name for that of the Association as
successor should be granted. Accordingly, we find
that no question concerning representation exists,
and we shall dismiss the petition in this case.
ORDER
It is hereby ordered that the certification of
representative issued to the Baton Rouge Water
Works Employees Association in Case 15-RC-551
be, and it hereby is, amended by substituting the
name "Office and Professional Employees
International Union, Local 428, AFL-CIO," for the
name of the said Association.
Further, it is hereby ordered that the petitions
in Cases 15-AC-9 and 15-RM-214 be, and they
hereby are, dismissed.
5 Remington Rand, Division of Sperry Rand Corp ., 150 NLRB
409; Raybestos Manhattan Inc., 115 NLRB 1036, 1038.
6 Our decision herein is not to be construed as deciding
whether, if the separate unit sought could have been appropriate,
the proper procedure to accomplish its severance was adopted
here.
' In fact , all officers but the former president , who is a Group I
employee and active in seeking separate representation for that
group, continued to hold the same offices and to function in the
same way.
8 EmeryIndustnes , Inc., 148 NLRB 51.
S. Morena & Sons, Inc. and Local 11,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America. Case 22-CA-2844.
April 14,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On December 22, 1966, Trial Examiner George A.
Downing, issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
163 NLRB No. 146
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, S. Morena & Sons, Inc.,
Jersey City, New Jersey, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Substitute the following for paragraph 2(b) of
the Trial Examiner's Recommended Order:
"(b) Offer to its striking employees upon their
application on the termination or abandonment of
the strike, immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings , including backpay and the interest thereon
computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716, which they
may suffer from a date 5 days after their application
for reinstatement to the date of their actual
reinstatement, dismissing if necessary any persons
hired as replacements for said strikers, and place
upon a preferential hiring list such strikers for whom
no employment is immediately available, with
priority to be determined among them by such
system of seniority or other nondiscriminatory
practice as Respondent theretofore applied, and
thereafter offer, in accordance with such list,
reinstatement as positions become available."
2. Add the following as paragraph 2(c) and
reletter the following paragraphs consecutively:
"(c) Notify the above-described employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner. This proceeding,
brought under Section 10(b) of the National Labor
Relations Act, as amended, was heard at Newark, New
Jersey, on October 31 and November 1, 1966,' pursuant to
due notice The complaint, which was issued on
September 15 on a charge dated August 1, alleged in
substance that Respondent engaged in unfair labor
practices proscribed by Section 8(a)(1), (3), and (5) of the
Act by (1) interrogating its employees and warning them of
discharge in connection with their union membership and
activities; (2) assigning Benny Roger Taylor to more
arduous job tasks because of his union membership and
activities; and (3) refusing to bargain with the (certified)
Union as the collective-bargaining representative of its
employees in an appropriate unit at all times on and after
June 23 Respondent answered, denying the unfair labor
practices as alleged.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS, THE LABOR ORGANIZATION
INVOLVED
Respondent is a New Jersey corporation with its
principal office, place of business , and a warehouse at
Jersey City, where it is engaged in the purchase and sale of
scrap paper and ri lated products . I find on facts alleged in
the complaint and admitted by answer ' that Respondent is
engaged in commerce within the meaning of the Act, and
that the Charging Union is a labor organization within the
meaning of Section 2 (5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Following organizational activities among Respondent's
truckdrivers, balers, and warehouse employees in May, an
election was held on May 24 and was won by the Union,
which was certified on June 2. A strike occurred during
contract negotiations on August 1 and was still pending at
the time of the hearing
The issues herein are solely factual ones concerning the
complaint allegations (see Statement of the Case), denied
by answer, and turn entirely on the resolution of
credibility. They include also an issue whether the strike
was caused and prolonged by unfair labor practices.
B. Interrogations, Threats, and Promises
Four employees, Thomas Stephens, Joseph Jones,
James Nicholson, and Benny Taylor, testified to occasions
before the election when Respondent's president, Joseph
Morena, called them separately into his office and
questioned them concerning their knowledge of union
activities and in some cases concerning their union
sentiments . Stephens was also asked if he knew who
All events herein occurred in 1966
I.e , the annual sale of goods valued in excess of $50,000 to
concerns located in New Jersey, each of which ships annually to
extrastate points products valued in excess of $50,000
S. MORENA & SONS, INC.
started the Union,'; and Taylor was asked to inform
Morena if he heard anyone talking about the Union.
Jones testified further that Morena stated that if the
Union won, which Morena doubted, he would keep the
men who went with him and would let those go who went
with the Union. When Jones replied that he would have to
go with the majority, Morena continued that if he did so,
Morena would let Jones go too and that he would not have
the Union telling him his business. Nicholson testified that
Morena also stated that he would not have a shop with the
Union, reminded Nicholson how well Morena had treated
the employees by lending them money and throwing
parties , and offered Nicholson a raise of 5 cents an hour.
Taylor testified that Morena als i told him that those who
were for Morena and against the Union would always have
goodjobs
Stephens, Jones, Taylor, and Marvin Henderson
testified to further threats which Morena made after the
Union won the election.4 Stephens testified that he heard
Morena tell Cottie (Cody) in the presence of Henderson,
Roland Morgan, and himself, that "the guys" wanted a
union but that no union was going to tell him what to do,
that he would get a packer (a laborsaving device described
as something like a garbage truck), that Morena, his
brother, Cody, and Morgan would do the work, and that
the rest of the employees would have to go Taylor testified
that prior to the first negotiati n meeting Morena stated
that if the Union came in he would have to lay off some
men and that he would keep those who were against the
Union and guarantee them good pay.
Henderson testified that some 2 or 3 days after the first
bargaining session, Morena called him into the office and
stated that Morena did not want any union running his
business and that, "[I]f it were not for the Union-he had
to let them go because no union was coming into his
place."' Jones testified that he heard Morena discussing
the Union with Morgan and his brother some 3 weeks after
the election and that Morena stated that, "[T] hey would
never get a union shop there," and that, "[Y]ou can lead a
horse to water but you can't make him drink."
Morena began his testimony with a flat denial that he
never spoke with the five employees regarding the Union
or union activities and he denied specifically all the
statements which they attributed to him. On cross-
examination , however, Morena, admitted that after he
heard of the union activities , allegedly through Stephens,
he called all his employees into the office individually,
including Stephens, because he "wanted to find out why,
what was going on, what was happening." Morena
questioned them as to whether they were happy with their
jobs and satisfied with their pay and whether they had any
grievances because, he testified, "If they were unhappy I
was going to try to straighten it up, to see what could be
done about it " Questioned elsewhere about that
testimony, Morena became evasive, stating , "Done about
what?" and, "I don't know what you mean `done about
3 Stephens denied that he volunteered to Morena information
about the organizational activities and denied that he showed a
union card to Morena Respondent sought obliquely to impeach
that testimony by calling Morena's sister , Raffala, who testified
that Stephens gave her a blank authorization card and told her
that such cards were being passed around , and that she reported
those facts to her brothers I find that the latter testimony did not
constitute sufficient basis for impeachment, for Stephens was
questioned only about his statements to Morena , not to the sister
Furthermore , Raffala 's testimony itself supported Stephens'
denial that he informed Morena of the union activities
1073
what."' Morena also testified inconsistently that he called
in all the employees after Stephens' alleged report of
union activity, but claimed later that Stephens' report and
his own questioning all occurred at the same time.
Because of the number of the incidents involved and the
similarity of the statements attributed to Morena, the
testimony of the General Counsel's witnesses became in
effect, through cumulative weight, mutually corroborative
Furthermore, not only was no direct corroboration offered
of Morena,5 but after he learned of the union activities,
Morena admittedly engaged in the systematic questioning
of employees to find out what was happening and what
could be done.
I therefore credit the testimony of the General Counsel's
witnesses, and I conclude and find that Respondent
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act by
Morena's conduct in interrogating the employees
concerning their union membership, sentiments, and
activities, in requesting employees to inform on union
activities, by stating that there would never be a union
there, by threatening, if the Union won, to release
employees who favored the Union, and by promising
raises, good jobs to, and to retain those who sided with
him.
C. Taylor's Job Reassignment
Benny Taylor was employed for some 6 years as a driver
on Respondent's west New York City run and was
normally accompanied by a helper. Respondent replaced
Taylor on that run shortly after the negotiations began,
assigning it to one Petro, an employee of 3 years' tenure,
who had never driven the route before. Taylor rode with
Petro as a helper for the first 2 weeks, showing Petro the
route, and during that time he learned to operate the
simple mechanism of the new packer. Taylor testified that
Petro also had not previously operated the packer, that
there was nothing special about it, and that it was in fact
an easier job than before because the loading mechanism
made it faster and easier to load. After 2 weeks Taylor was
assigned to Petro's run, which was somewhat harder than
his own because he did not have a helper, and in addition
Taylor was required to work in the shop loading the press
and unloading trucks. There was no denial of that
testimony.
Morena testified that he put the packer into service
some week or so before he changed Taylor's job, that
Petro was more familiar with the mechanical operation,
that he put them on the run together in the beginning (with
Taylor as helper) so that Taylor could get a little
experience and so that if one of them got sick, the other
could take over. He admitted that Taylor learned to
operate the mechanism before he was taken off.
" Taylor served as the Union's observer at the election and
Henderson was designated as alternate observer They were also
employee members of the negotiating committee which began
negotiations on June 23.
5 It is difficult to interpret the latter statement literally since
there was no evidence that employees had been terminated
Morena 's language was presumably intended to convey the kind
of threat which Stephens , Jones , and Taylor testified to above
6 Testimony was offered through certain nonstriking employees
to the general effect that Morena never threatened them
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morena became quite evasive when questioned about
the comparative experience of the two employees, as
reflected by his following testimony:
TRIAL EXAMINER: Who was the more experienced
driver, Taylor or Petro?
THE WITNESS: I had broken in 'Petro on this
packer and he knew how to drive this packer.
TRIAL EXAMINER: That doesn't answer the
question.
THE WITNESS: Petro is a better driver.
TRIAL EXAMINER: That isn't my question. Read
him the question, Mr. Reporter.
(Question read.)
THE WITNESS: I would say about the same.
TRIAL EXAMINER: How long has Taylor been with
you?
THE WITNESS: Six years.
TRIAL EXAMINER: How long has Petro been with
you?
THE WITNESS: Three years.
Q. (By Mr. Neff): As far as you know, has Petro
had any prior driving experiences before joining you.
A. Yes, sir.
TRIAL EXAMINER: And Taylor?
THE WITNESS: I didn't ask Taylor.
Furthermore, though claiming familiarity with Petro's
former "record," Morena ultimately admitted that he did
not ask Petro whom he worked for and that he knew of
Petro's ability only from watching him drive.
Concluding Findings
Directly pertinent to the issue of Taylor's job change
were Morena's earlier threats, section B, above, that he
intended to let go those who supported the Union and,
more specifically, that he intended to get a packer and to
keep those who were against the Union. Morena was
obviously aware of Taylor's prounion sentiments from his
service as the Union's observer at the election and later
from his service on the negotiating committee.
The substitution of Petro on Taylor's route was plainly a
step toward the implementation of the earlier threats,
particularly since Morena made no persuasive showing
why Taylor's route was taken from him after 6 years and
assigned to a driver with half his service and experience.
Testimony by Morena and other witnesses for Respondent
to the effect that Taylor's new job was not more arduous
than the old one involved mainly a matter of semantics, for
whether it was more arduous or only less desirable, a case
was made out, for Taylor's testimony plainly established
why he considered the new job to be less desirable, and
Morena finally agreed that there was no reason why Taylor
should not have his old job back if he wanted it.
I therefore conclude and find on the entire evidence that
Respondent assigned Taylor to a differciit and less
desirable job in implementation of his earlier threats,
thereby discriminating against him to discourage
membership in the Union.
D. The Refusal to Bargain
Negotiations began on June 23 and further meetings
were held on June 30, July 5, 11, and 22, August 4, 16, and
24, and September 1, 6, 12, and 19. Prior to August 16 the
Union was represented by either or both Leo Avnet and
Thomas Lynch, secretary-treasurer and recording
secretary, respectively, of the Union, and at times by a
committee of employees, including Benny Taylor and
Marvin Henderson. Beginning on August 16 the Union was
represented by its attorney, Zachary Schneider, as sole
spokesman, though there were also present at various
times Avnet, Lynch, and members of the employee
committee.
Respondent was represented through September 1 by
its attorney, David Werther, and by Joseph Morena, and at
some point in July, Arthur Fortugno, a friend of Morena's,
began to attend as an adviser. Also present at times were
Morena's sister and brother. Beginning with the meeting
of September 6, Morena himself represented Respondent,
with Fortugno in attendance and sometimes also Morena's
brother.
Witnesses to the negotiations were Avnet, Lynch, and
Schneider for the General Counsel, and Morena and
Fortugno for Respondent. Werther was not called and it
was represented that he was in Florida at the time of the
hearing. Furthermore, though Morena testified that
Werther made notes concerning the negotiations and
concerning matters on which Morena had little or no
recollection, no attempt was made to procure Werther's
notes or his testimony.
It is unnecessary to rcview at length the course of the
negotiations for I find that Morena made apparent by the
end of the first meeting what he had indicated by his
earlier conduct vis-a-vis the employees,7 that he had no
intention of reaching an agreement and that such attitude
continued to the end of the negotiations when he served on
Schneider a copy of his answer to the complaint herein
and stated that "since we were going to trial," he was
withdrawing his prior wage offers. My conclusions are
based not only on Morena's prior unlawful conduct but
also on the fact that I am unable to credit Morena's
testimony, which was again evasive, inconsistent, and
contradictory."
The testimony of the General Counsel's witnesses on
the other hand was based in large part on their notes,
contemporaneously made during the meetings, and was
both consistent and cumulative. Based on their credited
testimony and without detailing fully all items of evidence
indicative of bad-faith bargaining, I note below the most
significant facts which establish that Morena was not
bargaining in good faith.
At the first meeting Werther went through the Union's
proposed contract with Morena and with one or the other
indicating acceptance of nearly all of the provisions,
including such important ones as union security, checkoff,
seniority, arbitration, welfare, and a substantial wage
' E g , his statements after the certification that there would
never be a union in the shop and that , "You can lead a horse to
water but you can ' t make him drink " Morena had also begun the
implementation of his threats to get rid of the union supporters by
putting the packer into operation on Taylor's route and by
reassigning Taylor to other work
" Partial corroboration by Fortugno was directed mainly to the
point (conceded by the union representatives ) that the Union at no
time offered a contract which did not include provisions for
arbitration , seniority , checkoff, and welfare Fortugno's
recollection of details and specifics , however, was admittedly
poor Thus after first testifying that the Union never changed its
position on checkoff, Fortugno answered that at the end he
thought the Union was willing to forego that demand , but finally
conceded that he did not recall specifically because, "There was
so much bargaining back and forth "
S. MORENA & SONS, INC.
increase." Indeed, the prospects for reaching an
immediate agreement seemed so bright that the union
representatives conferred with employees during a caucus
about submitting the agreement for ratification. Following
the caucus, however, Morena denied that agreement was
reached, claimed lack of authority to bargain on the basis
of the Union's demands, and stated that he would have to
consult with his brother and sister (who were equal
shareholders with him in the family corporation). "i
No substantial progress was made during the remainder
of the negotiations, for Morena never agreed to any of the
substantive items proposed by the Union such as seniority,
checkoff, union security, arbitration, welfare, and he
refused further to consider such relatively innocuous
proposals as time off for jury duty, leave of absence
without pay, washup time, and bereavement pay
Particularly illuminating was Schneider's testimony
concerning the prior benefits clause, which Morena
admitted he rejected despite Werther's okay Schneider
testified that Morena's objection to many of the Union's
demands was that it was Respondent's practice to give the
employees those things. When Schneider requested
however that the practices be put in writing, Morena
refused on the ground that then the men would want them
and that, "Right now it's my discretion and as long as it is
not in writing I can give it to them as I see fit." Morena
substantially confirmed that testimony, admitting that he
might have said that, "[I]f we put it in writing the men will
know it's there and they will take advantage of it."
Concerning seniority, Morena also admitted that despite
Werther's interpretation of the clause, he stood on his own
(different) interpretation and rejected the provision.
Furthermore rejection of the Union's proposals was
followed by no counterproposals except concerning wages
and welfare, and that was ultimately conditioned on
surrender by the Union of all other demands. Thus
Schneider testified that after the Union had made various
reductions in its own wage proposals, Morena offered at
the September 12 meeting to give an 18-month contract on
the basis of a 10-cent raise, plus 5 cents to welfare after 3
months, omitting all other proposals When Schneider
pointed out that Morena was talking about a contract
which would contain only two or three paragraphs, Morena
agreed that was correct.
The negotiations ended on September 19 following the
issuance of the complaint in the present proceeding.
Schneider testified that Morena served upon him a copy of
Respondent's answer to the complaint in the present
proceeding, stating that, "[W]e offered you 10 cents in
money and we offered you 5 cents in welfare, and now
we're taking it all back and we are offering you nothing."
" Morena testified that as he was without experience in
negotiations he hired an attorney who understood what a union
contract was and that he relied upon Werther's advice to noting
agreement to various provisions as they were read and explained
to him by Werther Despite that testimony and his claim of
ignorance, Morena admitted that he later vetoed Werther's
approval of provisions for arbitration, seniority, and a prior
benefits clause which obligated Respondent only to maintain such
benefits as were currently in effect
'o Though the corporate bylaws provided that the board of
directors (the three Moreuas) should have the management and
control of the business and property of the Company, they
provided further that the president was the chief executive officer
and that during intervals between meetings of the board, he had
"general control and management of the business and affairs of
the Company " The evidence showed further that no meetings
1075
Thus things stood at the end as they had throughout the
negotiations, with Morena making good his threat not to
drink from the well of collective bargaining, and thus he
maintained the position he took on September 1 (in
rejecting the seniority clause and in refusing to make a
counterproposal), "Everything is at my discretion, I will
run it as I am running it now."
It would be difficult to imagine a more clear-cut case of
a refusal to bargain in good faith than that which is shown
by the present record. I conclude and find from the entire
record that at all times on and after June 23, Respondent
refused to bargain in good faith with the Union, thereby
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act."
E The Strike and its Cause
A strike vote was taken on July 28 or 29, and on
August 1 some eight employees, including Benny Taylor,
began a strike which is still pending. I conclude and find
on the basis of unrefuted testimony that the strike was
caused by Respondent's failure to bargain in good faith
and that the strike therefore began and was prolonged as
an unfair labor practice strike.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
2. By assigning Benny Taylor to a different and less
desirable job, Respondent engaged in discrimination to
discourage membership in the Union, thereby engaging in
unfair labor practices proscribed by Section 8(a)(3) and (1)
of the Act.
3. All employees employed at Respondent's Jersey City
warehouse, including truckdrivers and balers, but
excluding all office clerical employees, salesmen,
professional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4 At all times on and after June 2, 1966, the Union has
been the exclusive collective-bargaining representative of
all the employees in the aforesaid unit
5. By refusing on and after June 23, 1966, to bargain
with the Union, Respondent engaged in unfair labor
practices proscribed by Section 8(a)(5) and (1) of the Act.
were held of sufficient formality or importance to result in the
making of minutes, though it was Morena's view that whenever he
conferred with his brother and sister, a directors' meeting was
being held
" Though Respondent sought to inject at the hearing a defense
that it was somehow relieved of its duty to bargain by alleged
unlawful secondary boycott activity engaged in by the Union,
Schneider testified that though reference was made in the
September 1 meeting to the Company's charge, it did not state
that that was the basis for not trying to negotiate with the Union
and that Respondent at no time threatened to break off
negotiations if the Union continued its boycott activity The
record indicates further that the first charge was withdrawn or
settled and that a new charge, filed on the eve of the hearing, was
pending investigation in the Regional Office
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The strike by Respondent's employees which began
on August 1, 1966, was caused and was prolonged by
Respondent's aforesaid unfair labor practices.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action of the
type which is conventionally ordered in such cases as
provided in the Recommended Order below, which I find
to be necessary to remedy and to remove the effect of the
unfair labor practices and to effectuate the policies of the
Act. Because of the nature and extent of Respondent's
unfair labor practices, I shall recommend a broad cease-
and-desist order.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following:
RECOMMENDED ORDER
S. Morena & Sons, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating coercively employees concerning their
union membership, sentiments, and activities.
(b) Requesting employees to inform on union activities.
(c) Threatening its employees that if the Union wins the
election to release those who favored the Union.
(d) Promising raises and good jobs to, and to retain,
those employees who side with Respondent.
(e) Stating that there will never be a union at the
warehouse.
(f) Discouraging membership in the Union, or in any
other labor organization of its employees, by assigning
them to more arduous or less desirable jobs, or in any
other manner discriminating in regard to their hire or
tenure of employment or any term or condition of
employment.
(g) Refusing to bargain with the Union as the collective-
bargaining representative of the employees in the
appropriate unit.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, loin, or assist Local 11, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an
agreement authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act
(a) Offer to Benny Taylor, upon his application,
immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Offer to its striking employees upon their
application on the termination or abandonment of the
strike, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings which they may suffer
from a date 5 days after their application for reinstatement
to the date of their actual reinstatement, dismissing if
necessary any persons hired as replacements for said
strikers, and place upon a preferential hiring list such
strikers for whom no employment is immediately
available, with priority to be determined among them by
such system of seniority or other nondiscriminatory
practice as Respondent theretofore applied, and thereafter
offer, in accordance with such list, reinstatement as
positions become available.
(c) Bargain collectively, upon request, with the Union
concerning rates of pay, wages, hours of employment, or
other conditions of employment of its employees in the
appropriate unit herein found.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay which
may become due under these recommendations.
(e) Post in its offices and warehouse at Jersey City, New
Jersey, copies of the attached notice marked
"Appendix." 12 Copies of the said notice, to be furnished
by the Regional Director for Region 22, shall be posted by
Respondent immediately upon receipt thereof, after being
duly signed by Respondent's representative, and
maintained by it for 60 consecutive days thereafter, in
conspicuous 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.
Notify the Regional Director for Region 22, in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith 1:1
In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
13 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 22, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT interrogate coercively our employees
concerning their union membership, sentiments, and
activities
WE WILL NOT request our employees to inform on
union activities.
WE WILL NOT threaten our employees that if the
Union wins the election we will release employees
who favored the Union.
S. MORENA & SONS, INC
WE WILL NOT promise raises and good jobs to, or to
retain, those employees who side with us against the
Union
WE WILL NOT state that there will never be a union
in our warehouse.
WE WILL NOT discourage membership in Local 11,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization of our employees, by reassigning
them to more arduous or less desirable jobs, or in any
other manner discriminate in regard to their hire or
tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
said Local 11, or any other labor organization, to
bargain collectively through representatives of their
own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities.
WE WILL offer to Benny Taylor, upon his
application, immediate and full reinstatement to his
former or substantially equivalent position, without
prejudice to his seniority or other rights and
privileges.
WE WILL, upon application, offer to our striking
employees immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges, dismissing if necessary any persons whom
we hired to replace them, and we will place upon a
preferential hiring list such strikers for whom no
employment is immediately available, with priority to
be determined among them by such system of
seniority or other nondiscriminatory practices as we
heretofore applied, and thereafter - offer, in
accordance with such list, reinstatement as positions
become available.
1077
WE WILL bargain collectively, upon request, with
Local 11, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of our employees in
the appropriate unit concerning rates of pay, wages,
hours of employment, and other conditions of
employment. The bargaining unit is:
All employees employed at our Jersey City
warehouse, including truckdrivers and balers,
but excluding all office clerical employees,
salesmen, professional employees, guards and
supervisors as defined in the Act.
All of our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
above-named or any other labor organization, except to the
extent that such right may be affected by an agreement
authorized in Section 8(a)(3) of the Act.
S. MORENA& SONS, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United States
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 614 National
Newark Building, 744 Broad Street, Newark, New Jersey
07102, Telephone 645-3088.
U S GOVERNMENT PRINTING OFFICE 1969 0-295-269