Salmirs Oil Co.

National Labor Relations Board - Board Decisions

Oct 10, 1962

139 N.L.R.B. 25 (N.L.R.B. 1962)

SALMIRS OIL COMPANY 25
3. On May 17, 1961, the Union was, and at all times thereafter has been, the
exclusive representative of all employees in such unit for the purposes of collective
bargaining.
4. By refusing to bargain collectively with said Union, by discouraging member-
ship in a labor organization through discriminatory discharge of employees , thereby
interfering with, restraining , and coercing employees in the exercise of rights guar-
anteed under the Act, Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section 8(a)(5), (3 ), and (1)
and Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX B
Date of receipt of
Employee: reinstatement offer
David Haefs------------------------------------------- July 22, 1961
John Vanden Heuvel------------------------------------ July 12, 1961
Robert L. Smith---------------------------------------- July 29, 1961
Kenneth Christensen ------------------------------------- July 26, 1961
Eugene Deeg- ------------------------------------------ July 29, 1961
Charles L. Derby--------------------------------------- July 29, 1961
William J . Godin---------------------------------------- July 18, 1961
James Haferbecker-------------------------------------- July 29, 1961
Mayford Kosmerchock ----------------------------------- July 25, 1961
Paul L . Melanson--------------------------------------- ------------
Richard Molenda--------------------------------------- July 29, 1961
Eugene Vercautern-------------------------------------- July 13, 1961
Clem Wallace------------------------------------------ July 12, 1961
Ronald Weigman--------------------------------------- July 18, 1961
Glen Wentzel------------------------------------------- ------------
Salmirs Oil Company and United Industrial Workers of North
America of the Seafarers International Union of North Amer-
ica, Atlantic , Gulf, Lake and Inland Waters District , AFL-CIO
Amalgamated Local Union 355 (Salmirs Oil Company) and
United Industrial Workers of North America of the Seafarers
International Union of North America, Atlantic , Gulf, Lake
and Inland Waters District , AFL-CIO. Cases Nos. 2-CA-8149
and 2-CB-3237. October 10, 1962
DECISION AND ORDER
On March 22, 1962, Trial Examiner William J. Brown issued his
Intermediate Report herein, finding that the Respondents engaged
in unfair labor practices and recommending that they cease and desist
therefrom and take affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondents and General Coun-
sel filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its power in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Leedom].
139 NLRB No. 7.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding, and adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner with the following modifications
and additions:
We agree with the Trial Examiner's findings that the Company
unlawfully assisted Local 355 to obtain its majority by introducing
Local 355's representative to its employees, on the Company's time
and premises, or on projects where the employees were working,
thereby aiding that representative in obtaining their signatures on
authorization cards. We also agree that when the Respondent Com-
pany signed the agreement in issue, the Respondent Union had been
designated by a coerced majority of Respondent's employees. It
is also clear that additional assistance was rendered by the action of
the Company in recognizing and executing a union-security agree-
ment with Local 355, by maintaining that agreement in effect, by
giving effect to checkoff authorizations in favor of Local 355, and by
permitting Local 355 to hold a meeting and solicit members on the
Company's time and premises on or about August 15, 1961. We find
that the above actions of the Company violated Section 8(a) (1), (2),
and (3) of the Act.'
We find further that Local 355's business agent utilized the Com-
pany's unlawful assistance in order to procure signatures on authori-
zation cards and then obtain recognition and a union-security agree-
ment, constituting a violation of Section 8(b) (1) (A) by Local 355
under the circumstances of this case.3 We also find that Local 355
violated Section 8(b) (2) by executing and giving effect to the union-
security agreement. Because Local 355 has engaged in similar im-
proper activities with respect to the employees of employers other than
the Company here involved, we shall issue a broad order designed to
protect all such employees 4 We shall also order the Respondents
jointly and severally to reimburse the Company's employees for all
initiation fees, dues, and other moneys unlawfully exacted from them.'
1 We find no merit in Respondents ' jurisdictional arguments , and conclude , in agreement
with the Trial Examiner , that Respondent Salmirs Oil Company was engaged in commerce
within the meaning of the Act , and within the Board ' s jurisdiction ( on the basis of the
standards applicable to nonretail businesses ) because it derived a substantial amount of
its gross revenue from sales which were nonretail in nature and made direct interstate
purchases which exceeded $50,000 annually . Bussey-Wsllaams Tire Co., Inc ., 122 NLRB
1146; Siemons Mailing Service, 122 NLRB 81.
n Fiore Brothers Oil Co., Inc., 137 NLRB 191.
8 See GEM International, Inc., et al., 137 NLRB 1343, and cases cited therein.
* See Fiore Brothers Oil Co., Inc., supra ; Lundy Manufacturing Corporation, 136
NLRB 1230.
e F{ore Brothers Oil Co., Inc., supra.
SALMIRS OIL COMPANY 27
In accordance with the policy recently adopted by the Board 6 we shall
include an allowance for interest on all initiation fees, dues and other
moneys unlawfully exacted from employees.' Such interest is to be
computed at the rate of 6 percent per annum on the basis of separate
calendar quarters with the interest to begin running as of the last day
of the calendar quarter for initiation fees, dues, and other moneys ex-
acted or due in that calendar quarter, until compliance with the
Order is achieved.
ORDER
Upon the entire record in this proceeding, and pursuant to Section
10 (c) of the Act, the National Labor Relations Board hereby orders
that :
A. Respondent Salmirs Oil Company, its officers, agents , successors,
and assigns, shall:
1. Cease and desist from :
(a) Recognizing Respondent Amalgamated Local Union 355 as the
representative of any of its employees for the purpose of dealing with
Respondent Company concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other terms and conditions of
employment, or giving said organization any other assistance or
support.
(b) Giving effect to the collective-bargaining agreement with Local
355, dated August 10, 1961, or to any modification, extension, renewal,
or supplement thereto, provided, however, that nothing in this Deci-
sion and Order shall require the Respondent Company to vary or
abandon any wage, hour, seniority, or other substantive feature of its
relations with its employees, which the Company has established in
the performance of this agreement, or to prejudice the assertion by
employees of any rights they may have thereunder.
(c) Giving effect to the checkoff provisions of authorization cards
executed by its employees in favor of Local 355.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist United Industrial Workers
of North America of the Seafarers International Union of North
America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
sIsis Plumbing & Heating Co ., 138 NLRB 716 ; Seafarers International Union of North
America, Great Lakes District, AFL-CIO, 138 NLRB 1142; J. J. Hagerty, Inc, 139
NLRB 633.
7 For the reasons stated in their dissenting opinion in Isis Plumbing & Heating Co., 138
NLRB 716, Members Rodgers and Leedom are convinced that the award of interest on
such exactions , like the attachment of interest to backpay , exceeds the Board's remedial
authority . While adhering to such view , for the purposes of this decision they are acced-
ing to the majority Board policy of granting interest on moneys due.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Respondent
Amalgamated Local Union 355 as the collective-bargaining repre-
sentative of any of its employees for the purpose of dealing with Re-
spondent Company concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other terms or conditions of employ-
ment, unless and until the Board shall certify Local 355 as such
representative.
(b) Reimburse each of its present and former employees for all
initiation fees, dues, and other moneys they have been required to
pay Local 355 by reason of Respondent Company's enforcement of its
agreement, dated August 10, 1961, with Local 355, or the checkoff
authorizations executed by its employees in favor of that Union, as
provided herein, being jointly and severally liable therefor with Local
355.
(c) Post at its plant on Staten Island, New York, copies of the
notice attached hereto marked "Appendix A." 9 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
upon being duly signed by Respondent Company, be posted by it
immediately upon receipt thereof, and be maintained by it for at least
60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent Company to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Post at the same place and under the same conditions as set
forth in A, (2), (c), above, as soon as forwarded by said Regional
Director, copies of the notice attached hereto marked "Appendix B." 9
(e) Mail signed copies of the notice attached hereto marked "Ap-
pendix A" to the Regional Director for the Second Region for posting
by Respondent Local 355 at its business offices and meeting halls in
conspicuous places, including all places where notices to members are
customarily posted. Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall be returned forthwith
to said Regional Director, after they have been signed by an official
representative of Respondent Company, for such posting.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
See footnote 8, supra.
SALMIRS OIL COMPANY 29
(6) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent Company has taken
to comply herewith.
B. Respondent Amalgamated Local Union 355, its officers, agents,
representatives, successors, and assigns, shall :
1. Cease and desist from :
(a) Acting as the collective-bargaining representative of any of
the employees of Respondent Salmirs Oil Company, unless and until
the Board shall certify it as such representative.
(b) Giving effect to the collective-bargaining agreement with the
Company, dated August 10, 1961, or any modification, extension, re-
newal, or supplement thereto.
(c) In any other manner restraining or coercing employees or
prospective employees of Respondent Company or any other employer
in the exercise of their rights to self-organization, to form labor organ-
izations, to join or assist United Industrial Workers of North America
of the Seafarers International Union of North America, Atlantic,
Gulf, Lake and Inland Waters District, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such
rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized by
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Reimburse each of the present and former employees of Salmirs
Oil Company for all initiation fees, dues, and other moneys unlawfully
exacted from them, pursuant to Local 355's agreement with that Com-
pany, dated August 10, 1961, or the checkoff authorizations executed
by them, as provided herein, being jointly and severally liable therefor
with Respondent Salmirs Oil Company.
(b) Post at its business offices and meeting halls copies of the notice
attached hereto marked "Appendix B." 10 Copies of said notice, to be
furnished by the Regional Director for the Second region, shall, upon
being duly signed by an official representative of Respondent Local
355, be posted by Respondent Local 355 immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken
by Local 355 to insure that these notices are not altered, defaced, or
covered by any other material.
10 See footnote 8, supra
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at the same places and under the same conditions as set
forth in B, (2), (b), above, as soon as forwarded by said Regional Di-
rector, copies of the notice attached hereto marked "Appendix A." 11
(d) Mail signed copies of the notice attached hereto marked "Ap-
pendix B" to the Regional Director for the Second Region for post-
ing by Respondent Salmirs Oil Company at its place of business on
Staten Island, New York, in conspicuous places, including all places
where notices to employees are customarily posted. Copies of said
notices, to be furnished by the Regional Director for the Second
Region, shall be returned forthwith to said Regional Director, after
they have been signed by an official representative of Respondent Local
355, for such posting.
(5) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps Respondent
Local 355 has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges, in paragraph numbered 8 (a), a
violation of Section 8(a) (1) of the Act by the Respondent Company
in promising and granting various benefits to its employees to induce
them to become or remain members of Respondent Local 355.
" See footnote 8, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES AND TO ALL MEMBERS OF AMALGAMATED
LOCAL UNION 355
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL withdraw and withhold all recognition from Amal-
gamated Local Union 355 as collective-bargaining representative
of any of our employees, unless and until so certified by the Na-
tional Labor Relations Board.
WE WILL NOT give effect to the collective-bargaining agreement
signed with Local 355, dated August 10, 1961, or to any modifica-
tion, extension, renewal, or supplement thereto, or to any checkoff
in favor of Local 355.
WE WILL NOT give any assistance or support to Local 355.
WE WILL reimburse each of our present and former employees
for all initiation fees, dues, and other moneys unlawfully exacted
from them pursuant to the aforementioned agreement with Local
355 or the checkoff authorization they have executed in favor of
Local 355, with interest thereon at 6 percent, being jointly and
severally liable therefor with Local 355.
SALMIRS OIL COMPANY 31
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 labor organizations, to join or assist United
Industrial Workers of North America of the Seafarers Interna-
tional Union of North America, Atlantic, Gulf, Lake and Inland
Waters District, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized by Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
All our employees are free to become, remain, or refrain from be-
coming or remaining members in the above-named or in any other
labor organizations.
SALMIRS OIL COMPANY,
Employer.
Dated---------------- By-----------------------------------.
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York, New York, Telephone Number,
Plaza 1-5500, if they have any question concerning this notice or com-
pliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS OF AMALGAMATED LOCAL UNION 355 AND
TO THE EMPLOYEES OF SALMIRS OIL COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT act as the collective-bargaining representative of
any of the employees of Salmirs Oil Company unless and until we
have been certified by the Board as such representative.
WE WILL NOT give effect to our collective-bargaining agreement
with Salmirs Oil Company, dated August 10, 1961, or any modi-
fication, extension, renewal, or supplement thereto.
WE WILL NOT in any other manner restrain or coerce employees
of Salmirs Oil Company or any other employer in the exercise
of their rights to self-organization, to form labor organizations,
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to join or assist United Industrial Workers of North America of
the Seafares International Union of North America, Atlantic,
Gulf, Lake and Inland Waters District, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted ac-
tivities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL reimburse each of the present and former employees
of Salmirs Oil Company for all initiation fees, dues, and other
moneys unlawfully exacted from them pursuant to the aforemen-
tioned agreement with that Company or the checkoff authoriza-
tions they have executed in our favor, with interest thereon at 6
percent, being jointly and severally liable therefor with Salmirs
Oil Company.
AMALGAMATED LOCAL UNION 355,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York, New York, Telephone Number,
Plaza 1-5500, if they have any questions concerning this notice or com-
pliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The charges herein were filed under Section 10(b) of the National Labor Relations
Act on September 7, 1961, by the above-indicated Charging Party, hereinafter some-
times referred to as the Seafarers. Thereafter, on October 20, 1961, the General
Counsel of the National Labor Relations Board, by the Regional Director for the
Second Region, issued the complaint herein alleging the commission of unfair labor
practices on the part of the above-indicated Respondent Employer, hereinafter some-
times called Salmirs, and the above-indicated Respondent labor organization, herein-
after sometimes called Local 355.1 The duly filed answers of both Respondents
denied the commission of the unfair labor practices alleged.
The hearing herein was held at New York, New York, January 8, 10, and 11,
1962, before Trial Examiner William J. Brown. All parties appeared and partici-
pated in the hearing and were accorded full opportunity to present evidence and
argument on the issues. At the close of the evidence the Respondent Employer and
the General Counsel argued orally on the record. Subsequent to the hearing briefs
have been received from the Respondent Employer and the General Counsel; they
have been fully considered.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
1 The correct name of the Respondent labor organization was explained by its attorney
at the hearing.
SALMIRS OIL COMPANY 33
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT EMPLOYER
It appears from the pleadings and evidence herein that the Respondent Employer,
a New York corporation having its principal office and place of business in Totten-
ville, Staten Island, New York, is engaged in the sale and distribution of fuel oil and
heating equipment and related products and the installation and servicing of heating
equipment. During the year preceding the issuance of the complaint, which is repre-
sentative of annual operations generally, it derived gross revenue from its operations
in the amount of $223,585.
Respondent contends that it is not engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that its selling operations are entirely in the
nature of retail sales. It asserts that under the Board's promulgated jurisdictional
standards the dollar volume of its sales are such that the Board should decline
jurisdiction. The General Counsel on the other hand asserts that a substantial
amount of Respondent's gross revenue, well in excess of any de minimis figure, is
derived from sales which are not to be considered retail in character, that the retail
jurisdictional limitation is not applicable, and that legal and discretionary jurisdiction
attaches by virtue of the volume of purchases in interstate commerce.
With respect to the direct interstate purchases it appears from a stipulation of
the parties that for the year ending June 30, 1961, Salmirs purchased directly from
points outside New York State goods in the amount of $142,000, including approxi-
mately $5,000 purchased through Salmir's wholly owned subsidiary, Salmirs Petro-
leum Corporation.
Of Respondent's gross sales of $223,585 it appears from the evidence herein that
sales to single-family and two-family homeowners where the owners live in the
houses in question amounted to $148,446; General Counsel concedes that these
sales are retail in character. The remaining sales amounting to $75,139 are in dispute
as to their character.
In oral argument counsel for the Respondent Salmirs conceded that if a part of
Respondent's sales, more than such amount as would be de minimis, may be con-
sidered nonretail then the Board's discretionary standards applicable to nonretail
businesses apply. At the same time the Respondent asserts that, on the authority
of the Second Circuit's decision in N.L.R.B. v. Reliance Fuel Oil Corp., 297 F. 2d
94, and the First Circuit's decision in N.L.R.B. V. Michael Benevento, et al., d/b/a
Benevento Sand & Gravel Company, 297 F. 2d 873, the law requires a showing of
interstate movement which is not satisfied merely by a showing of a dollar volume
of purchases or sales. It appears quite plainly however that legal jurisdiction attaches
in the instant case by virtue of the substantial volume of direct interstate purchases
and the only substantial question is as to whether the $75,000 sales set forth in
General Counsel's Exhibit No. 6, stipulated into evidence and concededly correctly
extracted from Respondent's own ledgers, are to be regarded as nonretail sales so as
to make inapplicable here the Board's established principle that jurisdiction will be
asserted over a retail enterprise only where its annual dollar volume of sales exceeds
$500,000.
The General Counsel has cited Bussey-Williams Tire Co., Inc., 122 NLRB 1146,
as authority for the proposition that the Board has determined that the criteria
applicable in distinguishing between retail and wholesale operations are those alluded
to by the Supreme Court in Roland Electric Company v. Walling, 326 U.S. 657, 674-
675, and that those criteria require the conclusion in the instant case that the sales
recapitulated in General Counsel's Exhibit No. 6 are not retail in character. I agree
with the General Counsel's position that the sales set forth in General Counsel's Ex-
hibit No 6 are not of a type designed to satisfy the personal wants of the purchaser or
those of his family or friends but rather constitute sales to trading establishments and
to industrial and commercial users. They are nonretail within the scope of the
Bussey-Williams doctrine for they clearly are shown to be sales to property owners
for heating property devoted to industrial, institutional, or commercial uses.
Respondent's reliance on N.L.R.B. V. Reliance Fuel Oil Corp., 297 F. 2d 94 (C.A.
2), rehearing denied 49 LRRM 2311, and N.L.R.B. v. Michael Benevento, et al.,
d/b/a Benevento Sand & Gravel Company, 297 F. 2d 873 (C.A. 1), is misplaced.
In Reliance the court refused enforcement of the Board's order and remanded the
case for further evidence as to the actual or potential effect on commerce of the
Employer's unfair labor practices. In so doing the court pointed out that the record
was completely barren as to the dollar amount of precedent interstate movement of
the fuel oil sold by Reliance to homeowners. On petition for rehearing the court
again indicated that its refusal of enforcement was based on its holding that the
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's jurisdiction cannot be made to rest on a mere showing that the Employer
purchased an indeterminate amount of goods which, at one time, had moved in
interstate commerce.
Benevento, too is distinguishable. There the employer made neither interstate
purchases nor interstate sales and the court expressly pointed out that Benevento's
case was one where, so far as the record indicated, the product involved never left
the State of its origin, but was created and consumed within the Commonwealth of
Massachusetts.
The record in the instant case clearly shows annual purchases by Salmirs of
$137,000 of goods coming directly from points outside New York. Additional
evidence of an impact on interstate commerce is unnecessary. Southern Dolomite,
129 NLRB 1342. I find that Salmirs' operations affect commerce within the meaning
of the Act and that assertion of jurisdiction is warranted.
II. THE LABOR ORGANIZATIONS INVOLVED
In accordance with the pleadings, as amended at the hearing, and the evidence, I
find that United Industrial Workers of North America of the Seafarers International
Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-
CIO, and Amalgamated Local Union 355 are labor organizations within the meaning
of 2(s) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The introduction to the issues
As indicated above Salmirs is engaged in the purchase and resale of fuel oil and
related products. Its operations are conducted in the Staten Island area. It is a
closely held family-type corporation, stockownership being divided between Jacob
Salmirs, Respondent's president and his daughter, Jeanette, the treasurer of the cor-
poration who occasionally works in the office. Leo Glazer, husband of Jeanette, is
vice president and secretary of the Company and works full time on its behalf in the
office and regularly on installation and repair jobs. Respondent denies that he is a
supervisor within the meaning of the Act and his status in this regard is crucial to.the
issues herein.
During the first 2 weeks of August 1961, within which period the unfair practices
allegedly were committed, Salmirs employed three full-time servicemen: Patrizio,
Merrill, and Siersema, and three regular full-time drivers: Maggio, Gilmore, and
Reilly. Also in full-time employment during the period in question as a helper on
the trucks was Walter Kaner, employed for the summertime only and for also other
periods of vacation from college.2 During the period in question Respondent also
employed, for a period of 1 or 2 days, employees Bausch and Armitage who appear
to be regularly employed by Salmirs during the wintertime but who work only
occasionally during the summer months.
Sometime in June 1961 the Seafarers commenced organizational efforts among
Salmirs' employees and filed a petition June 9, 1961. This petition was withdrawn
on June 19 following Salmirs' refusal to consent to an election. On August 10, 1961,
Salmirs execpted an agreement with Local Union 355. The agreement recognized
Local 355 as the bargaining representative in a unit consisting of drivers, servicemen,
yardmen, helpers, mechanics, and maintenance employees excluding office clericals.
It runs for a 2-year term and contains union-security and checkoff clauses. The
General Counsel contends and offered evidence tending to establish that the agree-
ment of August 10 was executed at a time when Local Union 355 did not represent
an uncoerced majority of Salmirs' employees.
The main issues in the case, the jurisdictional problem being resolved as above
indicated, related to the status of Leo Glazer and, if it be established that he is a
supervisor, whether he on behalf of Salmirs induced employees to sign cards desig-
nating Local 355 as the bargaining agent and authorizing the checkoff of union
dues in favor of that organization.
B. The supervisory status of Leo Glazer
Leo Glazer is the vice president of Salmirs and in full charge of its affairs in the
absence of President Jacob Salmirs. He receives a salary of $150 per week and
received a bonus of $4,000 for Salmirs' fiscal year ending February 28, 1961. While
s gager is a grandson of Salmirs ' president.
SALMIRS OIL COMPANY 35
he occasionally performs manual work in connection with installations and repairs
(a function incidentally, also performed occasionally by President Salmirs) his
principal function is plainly shown to be the direction of the working force of
drivers and servicemen. Evidence of the plenary character of his authority in this
regard in his assignment of employees in the slack summer season to perform repair
and construction jobs about the residences of the Respondent's officers. The evi-
dence also plainly indicates that he informed a group of employees that anyone of
them failing to turn off a hose at the outlet rather than the nozzle would be fired
by him on the spot.
It is clearly shown that Leo Glazer possesses and exercises authority sufficient to
constitute him a supervisor under Section 2(11) of the Act. This authority requires
the use of independent judgment and is far from being merely clerical or routine,
as abundantly appears from the evidence herein as to Glazer's laying out and
directing difficult installations and his issuing instructions on the basis of his superior
knowledge of the equipment and the customers. The evidence requires the con-
clusion that Glazer is a supervisor under the Act. See Ohio Power Company v.
N.L.R.B., 176 F. 2d 385 (C.A. 6), cert. denied 338 U.S. 899; The Eavey Company,
115 NLRB 1779, 1781, footnote 4.
C. The employer unfair labor practices
1. Promises and grants of benefits
The complaint alleges, in paragraph numbered 8(a), promises and grants of
wage increases, vacations, and other benefits and improvements in working condi-
tions on the part of Salmirs acting through Leo Glazer and others, for the purpose
of inducing employees to become and remain members of Respondent Union.
While, as found below, Glazer is clearly shown to have been instrumental in obtain-
ing signatures on authorization cards for Local Union 355, a preponderance of the
evidence does not establish that he independently promised and granted benefits of
the type referred to, to induce employees to become members of local 355. It is
accordingly recommended that insofar as unfair labor practices are alleged on the
part of Salmirs within the scope of 8(a) of the complaint, those allegations be
dismissed.
2. Recognition of Local 355
The remaining allegations of sections 8 and 9 of the complaint concern charges
that Glazer urged and solicited employees to sign authorization and checkoff 3 cards
in favor of Respondent Union, Local 355, that Respondent improperly executed the
agreement of August 10 recognizing Local Union 355 and thereafter deducted from
employees' pay dues, initiation fees, and other charges 4 in favor of Respondent
Union, and permitted Respondent Local to conduct union business on Salmirs'
premises during working hours.
The fundamental issue in the case is the determination of the facts as to the
events of August 8, 1961. Maggio, a Salmirs' driver, testified that on the morning
of August 8, on his reporting for work, Glazer told him that he was sending Maggio,
Patrizio, and Kaner to a service job on Grand Avenue and that he was going to
bring a union agent down there to meet Maggio and the others, that if a union had
to come in, this union was the one that Salmirs thought right.5 According to Maggio,
about 11 o'clock Glazer came to the Grand Avenue job and this time identified the
union he had in mind-Local Union 355-and stated that it had not had a strike
in 8 years and that if there were any difficulty Maggio and Patrizio should not have
any worry because Salmirs would subcontract cleaning work to them. In the course
of this talk, according to Maggio, he, Patrizio, and Kaner informed Glazer that they
would sign cards in Local 355. Thereafter, sometime after lunch, according to
Maggio, Glazer returned to the Grand Avenue job, this time accompanied by Stirt,
who was introduced as the representative of Local 355 and who repeated the items
3 The authorization cards in question contain checkoff authorization clauses The first
deduction from pay occurred on August 22, 1961.
4 There- is no evidence of the deduction of any amounts other than Local 355 dues.
5 The evidence reveals, although there is some inexactness as to the time involved, that
Glazer had previously discussed the Seafarers and unions generally with Maggio.
672010-63-vol. 139-4
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously referred to by Glazer as recommending his union. At that time, Glazer
being present, Maggio, Patrizio, and Kaner signed cards in Local 355.
Glazer's version is that on ,the morning of August 8 he talked to Patrizio, Maggio,
and Kaner in a group and directed them to the Grand Avenue job. He denied re-
ferring to a union at that time and testified that he was at the Grand Avenue job only
once on that date, shortly after 1 o'clock, that he arrived alone and did not see Stirt
on the Grand Avenue premises and, in fact, met Stirt for the first time 2 days later
on August 10 when Stirt came to Salmirs' office.
The parties recognize, and I agree, that there is here a basic issue of credibility.
In resolving this issue I cannot ignore testimony that Maggio came to the stand with
a background of general hostility to labor organizations arising out of an unfortunate
experience in his prior employment as a bricklayer which engendered his refusal to
sign with the Seafarers at the time their campaign was active. He must be appraised
as a witness who is at least not partisan in favor of the Charging Seafarers.
Respondent has attempted to detract from the credibility of Maggio pointing to
some discrepancies in his testimony, some instances of failure to include matters testi-
fied to at the hearing in his pretrial written statement and some alleged improbabili-
ties. Thus Respondent has pointed out that on his direct examination Maggio referred
to the fact that he always got his paycheck from Glazer whereas on his cross-
examination he testified that he was always paid weekly in cash. This minor dis-
crepancy may be explained by the fact that the initial inquiry in this matter was
not as to the nature or form of the payment but as to the source of his payment for
time spent working on residences of Respondent's officials as distinguished from
driving the truck. There is also a discrepancy, which appears to be minor in char-
acter, in Maggio's testimony relating to a conversation in the garage lot with Glazer
in the course of which Glazer inquired as to Maggio's interest in the union campaign
and Maggio replied that he would be the last one to sign for a union. This con-
versation, according to Maggio's direct examination, occurred in July. But the Re-
spondent points out that the Seafarers had withdrawn their petition June 19 and
there was no union activity throughout the entire month of July. Union campaigns
do not terminate, however, with such definiteness of timing as to make this of
significance.
Respondent also points to a discrepancy between Maggio's testimony on direct
examination and on cross-examination as to whether on ,the morning of August 8,
Glazer's first conversation with Maggio was with Maggio alone or whether Maggio
was with his fellow workers, Patrizio and Kaner. There is alleged to be a similar
discrepancy between Maggio's testimony that at the Grand Avenue job on August 8
Stirt first appeared on the jobsite in the company of Glazer and his pretrial statement
which refers to the fact that "a man (Stirt) did come around." I cannot find in
these two occasions substantial ground for discrediting Maggio .6
There is also an alleged discrepancy in Maggio's testimony that on the morning of
August 8, Glazer told him that he and Stirt were going to see Bausch and Armitage to
bearing the date of August 4. There is, however, no necessary inconsistency here
"sign them up too." This is allegedly inconsistent with Bausch's card in evidence and
inasmuch as the cards could well have previously been left with Bausch and Armitage
and signed and held for the return of Stirt to pick them up.
General Counsel has similarly alluded to a number of items which he contends
"seriously cast doubt as to the credibility" of Glazer's testimony. I do not find in
these items referred to by General Counsel necessary reason for discrediting Glazer.
I resolve the credibility issue on the basis of my appraisal of the two on the stand in
the course of their testifying. In so doing, I am, however, taking into account the
inherent probability of bias which I find absent in the case of Maggio in view of his
established lack of sympathy for unions or the Seafarers particularly whereas I find
that Glazer as an officer of the Company and by his own predilection has a natural,
innate interest in the outcome.
Also in appraising Glazer's testimony, essentially consisting of a denial of the
facts as testified to by Maggio, I am not unmindful of the fact that neither Glazer
nor Salmirs has come forward with an explanation as to the circumstances surround-
ing the execution of the contract with Local Union 355, on August 10, only 2 days
after the events testified to by Maggio. This is not a matter of putting the burden
0I find that no significance attaches to the fact that Maggio was scheduled to be shop
steward of Local 355 since that appears to have been the dubious distinction accorded the
junior employee.
SALMIRS OIL COMPANY 37
of proof on Respondent; but the testimony of Maggio clearly sufficed to transfer to
Respondent the burden of going forward with the evidence as to the issues relating to
the events of August 8, 1961. Balancing all considerations and relying on my ob-
servations of the witnesses and the circumstantial probabilities of truth inherent in
their accounts I resolve the credibility issue in favor of the version given by Maggio.
It thus clearly appears tome that the cards designating Local Union 355 and signed
by Maggio, Patrizio, and Kaner on August 8 as well as those signed by Bausch and
Armitage, the former on August 4 and the latter on August 8, were procured with
the direct intervention of Glazer.? Furthermore, by August 10, the date of execution
of the contract, Gilmore and Merrill had not signed authorization cards as clearly
appears from the facts undisputed in the evidence, that they signed on August 14.
There was some dispute in the testimony of Siersema as to the date on which his card
was executed but in either view of the testimony it must be resolved against the con-
tentions of Respondent, for it either was signed on August 8 pursuant to Glazer's intro-
duction of Stirt and was a coerced authorization on August 10 or was signed sub-
sequently on August 14, which date it bears, and thus could not be counted as a
valid designation on August 10.
In short, the preponderance of the evidence indicates that when, on August 10, 1961,
Salmirs signed its agreement with Local Union 355, that labor organization had been
designated by a coerced majority of employees of Salmirs. In the circumstances the
act of executing an agreement for exclusive recognition and establishing the terms and
conditions of employment amounted to an unfair labor practice within the scope of
Section 8(a)(2) on the part of Salmirs. Inasmuch as the agreement required mem-
bership in Local Union 355 as a condition of employment it constituted discrimina-
tion within the scope of Section 8(a)(3) of the Act.
3. Meeting on company premises
The complaint alleges that Salmirs engaged in an unfair labor practice within the
scope of Section 8(a)(1) and (2) of the Act by permitting representatives of Re-
spondent Local Union 355 to conduct union business on Salmirs' premises during
working hours. The evidence is undisputed that about August 15 Respondent Union's
business representative, Henry Stirt, conducted a union meeting on Salmis' premises
during working hours and with the knowledge of Leo Glazer. Although at that time
Respondent Union was recognized by Salmirs pursuant to the terms of the August 10
agreement, that factor is immaterial in view of the circumstances outlined above
surrounding the recognition on that date. In the course of this meeting on Re-
spondent's premises, Stirt took the occasion to sign up additional employees. The
uncontradicted testimony of serviceman Merrill is to the effect that when he arrived at
the shop on .the morning of Tuesday, August 15, he was told by truckdriver Gilmore
that Stirt would be in soon to sign him up. Shortly thereafter Stirt did arrive and
conducted a meeting in the course of which Merrill and Reilly signed the authoriza-
tion cards for Local 355. Reilly generally confirmed Stirt's presence and the con-
duct of union business on the morning of August 15 and the fact that he signed
the card on that date. Under the circumstances surrounding the assistance and
recognition given the favored Respondent Union, Salmirs' actions in permitting the
conduct of union business and solicitation of employees on its permises amounted
to unfair labor practices within the scope of Section 8(a)(1) and (2).
D. The union unfair labor practices
Respondent Local Union 355 was represented at the hearing by its attorney,
Eltman, and by its business representative, Henry Stirt. It offered no evidence at
the hearing and has not filed a brief. The role of Local Union 355 appears to have
been a relatively passive one. On the record herein it does not appear to have engaged
in any organizational efforts among employees of Respondent other than through
the presence of Business Representative Stirt at the Grand Avenue job (to which
he was either conducted or directed by Glazer) and at another job where Stirt,
accompanied by Glazer, signed up Gilmore. The only instance in the record wherein
Stirt appears to have functioned independently is in the course of the discussion on
the morning of August 15 at Salmirs' premises when he informed Reilly that he
7 This solicitation by Glazer requires a finding that the allegations of paragraph num-
bered 8(b) of the complaint have been fully established
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should not get too involved in questions of majority but rather join the Union as a
friend . At that time Stirt also induced Merrill to sign an authorization card.
It is, however, impossible to appraise the Union as completely innocent of wrong-
doing; in fact the record indicates connivance with Salmirs to foist the agreement of
August 10 upon the employees here involved when they had not designated Local 355
of their own free chosing . Local 355 is not the mere innocent beneficiary of
Salmirs' illegal acts but is particeps criminis, even though it does not appear to have
originated the scheme for recognition . The question remains as to whether the
combination of Local 355's availability for recognition and its cooperation with
Glazer's acts amount to unfair labor practices . In view of the plain provisions of the
Act, making it an unfair labor practice for a labor organization "to restrain or
coerce employees in the exercise of the rights guaranteed in Section 7" and "to
cause or attempt to cause an employer to discriminate against an employee... .,"
I find and conclude that by cooperating with Salmirs in forcing recognition and union-
security arrangements upon the employees , Respondent Union engaged in unfair labor
practices within the scope of Section 8(b)(1) and ( 2). See New York State Em-
ployers Association, Inc. and Red Star Express Lines of Auburn, Inc., 93 NLRB 127;
Bayly Manufacturing Company, 103 NLRB 1337.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in con-
nection with the operations of Respondent Employer described in section I, above,
have a close, intimate , and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain of the unfair labor
practices alleged in the complaint , I shall recommend that they be required to cease
and desist therefrom and take affirmative action designed to effectuate the policies
of the Act . Since the agreement of August 10, 1961, is found to have been entered
into and subsequently maintained under conditions and at a time when Respondent
Union did not represent the free choice of a majority of employees in the unit
covered thereby , I shall recommend that the Respondents be required to set aside
the agreement and that Respondent Employer be required to withdraw recognition
from the Respondent Union and continue to withhold recognition unless and until
such time as Respondent Union is certified in accordance with the terms of the Act.
Inasmuch as the evidence plainly indicates that the union-security and checkoff
provisions and the authorization cards executed in accordance with the terms of the
agreement are inseparable parts of the unlawful course of conduct of the Respond-
ents, it will be ordered that Respondent Employer and Union jointly and severally
reimburse employees for amounts deducted pursuant to these authorizations . Finally,
it will be ordered that appropriate notices be posted.
Upon the basis of the foregoing findings of facts, and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent Employer is engaged in commerce within the meaning of Sec-
tion 2 ( 6) and (7) of the Act.
2. The Respondent Union is a labor organization within the meaning of Section
2(5) of the Act,
3. By soliciting employee authorization for Respondent Union , by according ex-
clusive representation rights to Respondent Union at a time when it did not
represent an uncoerced majority of employees and by providing for union -security pro-
visions in such agreement , Respondent Employer has engaged in unfair labor prac-
tices within the meaning of Section 8(a) (1), (2 ), and (3 ) of the Act nand Respondent
labor organization has engaged in unfair labor practices within the scope of Section
8(b)(1)(A) and (2 ) of-the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]