Sunrise Lumber & Trim Corp.

National Labor Relations Board - Board Decisions

Mar 21, 1956

115 N.L.R.B. 866 (N.L.R.B. 1956)

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accord with an agreement of the parties, we find that the fol-
lowing employees of the Employer constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act:
All production and maintenance employees, excluding office clerical
employees, employees of the die shop department covered by separate
contract with the International Die Sinkers' Conference, guards, pro-
fessional employees, foremen, assistant foremen, and all other super-
visors as defined in the Act.
[Text of Direction of Election 11 omitted from publication.]
MEMBER RODOERS took no part in the consideration of the above De-
cision and Direction of Election.
13 As it is not clear from the record whether or not Local 323 continued in existence as
a local organization , or whether there are two such organizations affiliated respectively
with UL+ and the Steelworkers, we shall, under all the circumstances, place only the Inter-
national organizations on the ballot.
Sunrise Lumber & Trim Corp. and Local 282, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America , AFL-CIO.' Case No. 2-CA-4406. March 21,1956
DECISION AND ORDER
On December 15, 1955, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
,practices, and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
further found that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recommended dis-
missal of those allegations. Thereafter, the Respondent, but not the
General Counsel, filed exceptions to the Intermediate Report and a
supporting brief.
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 the brief, and the entire record in
1 The AFL and CIO having merged, we are amending the designation of the Charging
Union accordingly,
115 NLRB No. 127.
SUNRISE LUMBER & TRIM CORP. 867
the case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.3
4
ORDER
Upon the basis of the entire record in the case, and pursuant to
-Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
.Sunrise Lumber & Trim Corp., Massapequa, New York, its officers,
:agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 282, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO, as the exclusive representative of the em-
ployees in the unit found appropriate in the Intermediate Report,
with respect to rates of pay, wages, hours of employment, and other
,conditions of employment.
(b) Discouraging membership in Local 282, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO, or any other labor organization of employees, by
refusing to reinstate any of its employees because of their union
membership or activity, or in any other manner discriminating in
regard to their hire or tenure of employment or any term or condition
of employment.
(c) Offering its employees wage increases and other improved
working conditions for the purpose of undermining their union
activities.
(d) Soliciting its employees to discontinue protected concerted
activities. -
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 282, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Alner-
-ica, AFL-CIO; or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and 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 of
such activities, except to the extent that such right may be affected by
-an' agreement in conformity with Section 8 (a) (3) of the Act.
9 The Respondent 's request for oral argument is denied as the record and brief, in our
opinion , adequately set forth the issues and the positions of the parties
_7 In adopting the findings of the Trial Examiner , we find it unnecessary to pass upon
his obiter statement that the Respondent would have been guilty of unfair labor practice
;even If Union Representafive Cody had given advance approval of Tursi's offer of im-
proved wages and working conditions made directly to,employees.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action , which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Local 282, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO, as the exclusive representative of all
the employees in the aforesaid appropriate unit and, if an understand-
ing is reached, embody such understanding in a signed agreement.
(b) Offer to Sylvestro Casillo, John Honer, Alexander Petrillo,
and George Stephan immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seli-
iority or other rights or privileges, in the manner set forth in the sec-
tion of the Intermediate Report entitled "The Remedy."
(c) Make whole each of the employees specified in the paragraph
above, in the manner set forth in the section of the Intermediate Re-
port entitled "The Remedy," for any loss of pay he may have suffered
as a result of the Respondent's discrimination against him.
(d) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of back pay due and
the rights to reinstatement under the terms of this Order.
(e) Post in conspicuous places in its plant at Massapequa, New
York, including places where notices to employees are customarily
posted, copies of the notice attached hereto and marked "Appendix." 4
Copies of said notice, to be furnished by the Regional Director for the
Second Region, shall, after being duly signed by the Respondent's
representative, be posted by it immediately upon receipt thereof, and
maintained by it for at least sixty (60) consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent refused to reinstate
Anthony Addeo and Arthur Messina in violation of Section 8 (a) (3)
and (1) of the Act.
MEMBER RODGERS took no part in the consideration of the above De-
cision and Order.
4 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."
SUNRISE LUMBER & TRIM CORP.
APPENDIX
NOTICE TO ALL EMPLOYEES
869
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 our employees that :
WE WILL NOT discourage membership in Local 282, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO, or any other labor organiza-
tion of our employees, by refusing to reinstate any of our em-
ployees because of their union membership or activity, or in any
other manner discriminate in regard to their hire or tenure or
employment or any term or condition of their employment.
WE WILL NOT offer our employees wage increases or other im-
proved working conditions for the purpose of undermining their
union activities.
WE WILL NOT solicit our employees to discontinue protected
concerted activities.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Local
282, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of
their own choosing, to engage in 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 right may be affected by an agreement in conformity
with Section 8 (a) (3) of the National Labor Relations Act.
WE WILL, upon request, bargain collectively with Local 282,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO, as the exclusive repre-
sentative of all employees in the following bargaining unit with
respect to rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement. The bargain-
ing unit is :
All truckdrivers and- yardmen.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority or other rights or
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileges , and make them whole for any loss of pay suffered
as a result of our refusal to reinstate them.
Sylvestro Casillo Alexander Petrillo
John Honer George Stephan
All our employees are free to become or remain , or to refrain from
becoming or remaining, members in good standing of the above-
named Union or any other labor organization except to the extent
that this right may be affected by an agreement in conformity with
Section 8 ( a) (3) of the National Labor Relations Act.
SUNRISE LUMBER & TRIM CORP.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Charges having been duly filed , a complaint and notice of hearing thereon having
been issued and served by the General Counsel , and an answer having been filed by
the Respondent , a hearing involving allegations of unfair labor practices in violation
of the National Labor Relations Act, 61 Stat. 136, herein called the Act, was held
upon due notice at New York, New York , on November 9 and 10, 1955 , before
a duly designated Trial Examiner . The allegations of the complaint , denied by the
answer , in substance are that : ( a) On March 19 and 25, 1955, and thereafter , Sunrise
Lumber & Trim Corp .' refused to bargain collectively with Local 282, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
AFL-CIO,2 as the exclusive representative of its employees in an appropriate unit,
although a majority of said employees had designated the Union as their represent-
ative for such purposes , in violation of Section 8 (a) (5) and ( 1) of the Act; (b)
during March and April 1955 , the Respondent interrogated its employees concerning
their union affiliation and activities , and offered its employees wage increases and
other improved working conditions if they would refrain from becoming or remain-
ing members of the Union , in violation of Section 8 (a) (1) of the Act ; (c) as a
consequence of the Respondent 's conduct, on March 25, 1955, certain of its employees
ceased work concertedly and went on strike; (d) thereafter , the Respondent, by
threats of reprisals and promises of benefit , solicited its striking employees to return
to work and to abandon the Union , in violation of Section 8 (a) (1) and ( 5) of the
Act; and (e) during June 1955 , the Respondent refused , and has since continuously
refused, to reinstate its striking employees for the reason that they had joined or
assisted the Union and had engaged in the strike , in violation of Section 8 (a) (3)
and (1) of the Act. All parties were represented by counsel, were afforded full
opportunity to be heard , to examine and cross-examine witnesses , to introduce evi-
dence pertinent to the issues , to argue orally upon the record , and to file briefs and
proposed findings and conclusions . Oral argument was waived by all parties, how-
ever, except for the citation of authority by the General Counsel . On December 8,
1955 , the Respondent filed a brief. The Respondent 's motion to dismiss the com-
plaint , made at the close of the hearing, is disposed of in accordance with the
determinations below.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
i Herein called the Respondent.
s Herein called the Union.
SUNRISE LUMBER & TRIM CORP. 871
FINDINGS of FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, maintains its office and place of business
at Massapequa, New York, where it is engaged in the manufacture and sale of
lumber, milled products, building supplies, and related products. During the year
1954, the Respondent purchased products, including lumber, insulation, sheet rock,
and flooring, valued in excess of $585,000, which were shipped to it directly from
points outside the State of New York. There is no dispute, and I find, that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 282, International Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , AFL-CIO, is a labor organization admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
On March 18, 1955, three of the Respondent's truckdrivers met with John Cody,
the Union's business agent. Those employees, Alexander M. Petrillo,3 George
Stephan, and Arthur Messina, expressed a desire to be represented by the Union and
they signed cards which authorized the Union to enter into an agreement with the
Respondent requiring membership in the Union as a condition of employment .4 On
the next day, John Honer, another truckdriver, and Anthony Addeo, a yardman,
signed like cards. Also on March 19, Cody called at the plant and talked with
Francis J. Tursi, the Respondent's president. Cody related the purpose of his visit
and Tursi asked which employees Cody was "going to organize." Cody an-
swered: ". . the truckdrivers and the one yard man . . ." Tursi asked if Cody
possessed authorization cards, and Cody answered that he possessed 6 cards although
only 5 had been signed. Tursi requested an opportunity to inspect them, but Cody
refused to let him do so. Cody produced a printed form contract and offered it to
Tursi, saying that it "was what we [the Union] were asking for." Tursi told Cody
to give the form contract to Tursi's lawyer, whom Tursi did not identify, saying
that it "was against his religion to be unionized . .." and ordering Cody to "get
the hell off of my [the Respondent's] property and stay off." Cody departed .5
On March 23, Cody met with several of the employees who had signed cards. Also
present was Sylvestro Casillo, a truckdriver, who at that time signed a card of the type
which the other employees had signed. On the next day, the Union filed with the
Regional Director a petition in Case No. 2-RC-7393, alleging that the appropriate
unit consisted of the "Chauffeurs and Yardman."
On March 25, Cody visited the plant and met with the six employees who had signed
cards. They told Cody that they wished to strike if need be to obtain recognition of
the Union. Soon thereafter, Tursi arrived at the plant. Cody told him that the men
would strike in order to achieve recognition of the Union, and Tursi asked if Cody
would object to Tursi's meeting with the men outside the presence of Cody. There
was no objection by the men and Cody consented. The men went with Tursi to his
office.6 During the meeting which followed, one of the employees returned to Cody
S At various places In the transcript, "Petrillo" is erroneously spelled "DeTrillo."
These errors are hereby corrected.
4 The cards of those three employees are incorrectly dated March 19, 1955.
8 The findings concerning this conversation are based upon the testimony of Cody. On
the other hand, Tursi's version of the conversation differs in various respects Accord-
ing to Tursi, Cody said that the purpose of his visit was to organize the "whole plant,"
rather than the truckdrivers and yardman, and Cody did not say how many cards he
possessed. Tursi testified also that Cody told him that the form contract must be signed
without modification, else there would be a-strike, to which Tursi replied that Cody should
see his lawyer, giving the name and address, and that Cody answered that it was point-
less -to see the attorney because the form contract had to be signed in order to avoid
"trouble." Tursi acknowledged that be "asked . . . [Cody] to leave" the premises, but
Tursi did not deny having done so by ordering Cody to "get the hell off . . . and stay
off." As appears elsewhere herein, I am unable to credit Tursi's testimony in various
instances , and I reject his version of the above conversation.
6 The finding concerning Cody's remark to Tursi is based upon Cody's testimony and
the finding concerning Tursi's request to speak with the men outside the presence of Cody
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and obtained a printed form contract of the type which Cody had offered to Tursi on
March 19, and reference was made to the document in the meeting. Tursi said to the
men that he opposed having a union in the plant and he inquired about the men's
grievances. Foremost among the grievances were the hours of work, 10 hours a day
for 6 days a week, and the wages which ranged from $75 per week for Addeo to $85
for the highest paid truckdrivers. Tursi made a series of offers to the men conditional
upon their disavowal of the Union, each of which was rejected in turn. The initial
offer was a raise of $5 to each man, which was followed by offers of a $90 wage to
each one, one-half day off a week, and finally a full day off a week. There was also
an offer to pay certain hospitalization expenses of the men. In rejecting the offers, the
men told Tursi that they would not forego representation by the Union, and Tursi
replied that it was against his religion to have a union in the plant. The men said that
they would start striking, and the meeting ended.1 The men returned to the place in
the plant where Cody was waiting, received strike placards from him, and began
picketing. The picketing continued for a period of weeks.
Shortly after the strike began, Tursi and Francis Ruiz, a supervisory employee
as discussed below, approached employees on the picket line. Ruiz said to them that
they were damned fools for not accepting Tursi's offers, and Tursi said that he would
sell his trucks and rent other trucks before he would recognize the Union. The em-
ployees replied that they would continue striking until the Union was recognized.8
Within the next few days, Tursi spoke with Honer and Addeo while the latter men
were picketing, offering them $25 each if they would unload a freight car. They re-
fused. Sometime later, when Honer was picketing, Tursi told Honer that he would
arrange for Honer to install fences which were sold by the Respondent if Honer
would purchase a small truck which would be needed. Honer rejected the offer.9
On or about April 1 and 18, Messina and Addeo, respectively, requested and re-
ceived reinstatement. During the forepart of May and June, Messina and Addeo,
respectively, ceased work under circumstances which are not disclosed in the record
and which are not alleged to have been unfair labor practices.
As recited above, a petition was filed by the Union. On April 5 a conference was
held in connection with the matter, but it was unfruitful because the Respondent and
the Union did not agree upon the unit alleged in the petition to be appropriate. On
May 24 the Union filed its initial charge in this proceeding, and on June 10 it filed a
request to withdraw the petition which was approved by the Regional Director.
Also on June 10, Samuel J. Cohen, counsel for the Union, wrote to the Respond-
ent and demanded the reinstatement of Messina, who had been reinstated and whose
employment had been severed before June 10 as recited above, and Casillo, Honer,
Petrillo, and Stephan. No request was made for the reinstatement of Addeo who also
had been reinstated and whose employment had been severed before that date. Tursi
delivered Cohen's letter to his attorney, Alexander Eltman, with the information,
according to Tursi's testimony, that he would "be very happy to have those men back
in" his employ. In its brief, the Respondent says that Tursi instructed Eltman to
arrange the reinstatements of the men. On June 19, however, when Eltman responded
to Cohen's letter, he did not inform Cohen that Tursi would reinstate the men or that
is based upon the testimony of Cody, Honer, Petrillo, and Stephan. On the other hand,
Tursi testified that Cody said to him that there would be a strike unless Tursi signed the
form contract without modification and that Cody again rejected his suggestion that
Cody see has lawyer Tursi testified further that nothing else was said between himself
and Cody, and he offeied no explanation of the circumstances under which the men accom-
panied him to his office
P These findings ai e based upon the testimony of Honer, Petrillo, and Stephan who im-
pressed nie as reliable witnesses. On the other hand, Tursi's version of the conversation
is that he "tried to have" a conversation with the nien, that he asked, "what. was the
problem," that one of the men said that the bouts of work were too long, another said
that the wages were too low, and a third said that they would "like to have . . . [their]
hospitalization paid for" Thereupon, according to Tuasi, lie said, "why don't we discuss
these things like gentlemen'I" but one of the men said that it was pointless to do so be-
cause the men would strike unless Tursi signed the form contract "the way it is." Tursi
denied having said to the men that it was against his religion to have a union in the plant,
testifying that lie said instead that it was against his religion "to force any man to do
something he doesn't want to do." If Tursi's version be accepted, it is apparent that the
meeting consumed a few minutes at most Tuisi testified, however, that it consumed 25
to 40 minutes.
8 These findings are based upon the uncontradicted testimony of Petrillo . Tursi did not
deny having engaged in the conversation. Ruiz was not a witness
9 These findings are based upon the uncontradicted testimony of Honer.
SUNRISE LUMBER & TRIM CORP . 873
he had been instructed to arrange the reinstatements. He said noncommittally that
he would be pleased to discuss the matter and requested that Cohen telephone him.
On June 22 Cohen tried unsuccessfully to reach Eltman by telephone, and on that or
the next day Eltman returned the call without reaching Cohen. Thereafter, at un=
disclosed dates before July 1 or after July 31, during which month Cohen was on
vacation, he tried without success to reach Eltman by telephone. There was no fur-
ther correspondence between the attorneys, and Casillo, Honer, Petrillo, and Stephan
were not offered reinstatement.
B. The refusal to bargain collectively
1. The appropriate unit
The Respondent's plant consists of an office structure, in which office and sales func-
tions are performed, a mill, and a lumberyard. The complaint alleges that the appro-
priate unit consists of the truckdrivers and yardmen alone and that salesmen, mill-
hands, part-time employees, and supervisors should be excluded. According to the
General Counsel's contention, there are 6 employees in the unit , namely, the 5 truck-
drivers, Casillo, Honer, Messina, Petrillo and Stephan, and the yardman, Addeo. On
the other hand, as related below, the Respondent asserts that 14 additional employees
should be included. All parties would exclude certain fence installers and the
office and clerical employees.
The truckdrivers were engaged primarily in delivering materials to customers
and, upon occasions when materials had to be exchanged, in receiving such materials
from customers and returning them to the plant. At the beginning of each work-
day, the drivers received their assignments from Ruiz, the foreman of the drivers and
yard employees, and each driver loaded upon his truck the materials called for by
the customers' orders. Upon occasions when the materials could not be handled
by one man, the drivers were assisted by another driver or Addeo in loading the
trucks and making deliveries. After returning to the plant, the drivers were given
additional assignments by. Ruiz. According to the uncontradicted testimony of
Honer and Petrillo, these two truckdrivers spent, respectively, about 60 and 95 per-
cent of their working time in this work. Stephan, the only other truckdriver who
was a witness, testified that he spent about 90 percent of his working hours in a
combination of this work and infrequently unloading freight cars. In conformity
with State law, each of the drivers possessed a chauffeur's license.io
In addition to the work described above, the truckdrivers performed other tasks.
Honer testified that upon assignment by Ruiz he spent from 20 to 30 percent of his
working time in making fences, sometimes assisted by Addeo, and that no other
truckdriver engaged in that task. Honer's work in this connection was performed
at the plant with a portable jigsaw and is not to be confused with the work of fence
installers described below. Another type of work which the drivers performed was
to remove lumber from freight cars, which consists of placing the lumber on trucks,
hauling it to the plant, and stacking it. Honer testified that from 5 to 10 percent of
his working time was so spent while Stephan testified that he performed this work
only about "three times a month." It is clear from the testimony of Honer, Petrillo,
and Stephan concerning the percentage of their time which was spent in delivering
materials that only a small portion of their working hours was spent in removing lum-
ber from freight cars, and there is evidence that the work was done at times by
stevedores who were not among the Respondent's employees.
Still other types of work which some or all of the truckdrivers performed , general-
ly on busy days such as Saturdays when cash-and-carry customers called at the plant,
and on rainy days when some products could not be transported without risk of
damage from the rain, were to fill the orders of customers who wished to take their
purchases with them, to clean up the yard, saw lumber, and assemble ping pong
tables.
We turn from the work of the truckdrivers to that of the yardman, Addeo. As
recited above, he assisted truckdrivers in loading trucks and making deliveries, and
he worked with Honer in making fences. In addition, he participated in unloading
10 As will appear, the Respondent asserts that a number of other employees drive trucks,
but the record does not disclose whether they possess chauffeurs' licenses. In connection
with the State's requirement that all truckdrivers possess such licenses. Tursi gave con-
flicting testimony. Thus, he first testified that he did not know of such a requirement.
He acknowledged, however, that in hiring Honer he inquired if Honer possessed a chauf-
feur's license and that he prohibited Addeo's driving a truck upon learning that Addeo
did not possess such a license. After testifying concerning these incidents, Tursi testi-
fied that he believed that the State does require such a license.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
freight cars and filled the orders of cash -and-carry- customers . Not having a
chauffeur 's license , as set out in footnote 10, he did not drive a truck.
The Board has held , in a case involving a business enterprise similar to that of the
Respondent, that truckdrivers and yardmen constitute an appropriate unit . Burton-
Lingo Company, 91 NLRB 5. The Respondent argues in its brief , however, that a
number of its employees "cannot be distinguished, occupationally , from the six
alleged truck drivers and yardmen" and that "the work of its employees was so varie-
gated as to render impossible the formulation of a unit based on craft skills or occu-
pational duties such as `truck driver' or `yard-man."' Our next question , therefore,
is whether certain other employees should be included in a bargaining unit with the
drivers and yardman, as the Respondent contends , and we turn to a discussion of
the duties of such other employees . In this discussion the issues sometimes turn on
the resolution of conflicting testimony because the Respondent 's payroll records are
blank in spaces designed to recite the nature of an employee's work and do not
contain other entries to show the number of hours each employee worked each week
or whether the basis of compensation was hourly or otherwise.
Grant Kreinberg and Norman Haff are part-time employees who regularly work
on Saturdays and at times on such holidays as the Respondent is open for business.
They have employment elsewhere for 5 days each week . As employees of the Re-
spondent , they work in the yard, filling the orders of cash-and-carry customers, load-
ing lumber upon trucks , and performing miscellaneous tasks. The General Counsel
contends that they are regular part-time yardmen, but he would exclude them from
the unit because their principal employement is with other employers .- I reject this
contention and I find that Kreinberg and Haff should be included in the unit. The
fact that a regular part -time employee holds a full -time job elsewhere does not
per se affect his inclusion within a bargaining unit . Cf. Personal Products Corpora-
tion , 114 NLRB 959.
Leonard Kuntz, who also worked on Saturdays only, was employed on February 5,
1955, and resigned on March 19, 1955. There is testimony by Tursi that Kuntz did
"everything," working in the yard , waiting on customers , unloading lumber, driving a
truck, etc. On the other hand, there is testimony by Honer that Kuntz worked in
the office as a salesman, selling small items which were displayed there, and taking
the orders of customers for other products . This conflict need not be resolved be-
cause Kuntz's last day of employment was the day of the Union's initial demand for
recognition . Since he was not an employee on the date of the refusal to bargain
recited below , he will be excluded from the unit.
Eugene Duranty is a regular full-time employee . The record is incomplete con-
cerning his duties , however. According to Tursi , Duranty's duties are to do "every-
thing," but Tursi could not relate the proportion of time which Duranty spent in any
type of work. Duranty earned $ 110 per week which was $25 in excess of that earned
by the highest paid truckdrivers. As appears herein , I have been unable to credit
Tursi's testimony in various instances . In this instance, however, Tursi testified
without contradiction that Duranty is the Respondent 's "most experienced lumber
driver," having worked in the lumber business before becoming employed by the Re-
spondent . This factor, coupled with the facts that the Respondent had 6 trucks and
that only 5 employees were identified as regular drivers, warrants an inference that
Duranty may have devoted a substantial portion of his working time to delivering
materials to customers by truck. Under the circumstances , being unable to determine
that Duranty should be in or out of the unit, I shall include his name when consider-
ing the Union's majority status below. See footnote 14.
Ruiz, the foreman of truckdrivers and yard employees, is described by the Re-
spondent as "a working foreman" who is not a supervisor within the meaning of the
Act. He earned $115 a week, which is well in excess of that earned by the truck-
drivers and Addeo, and the Respondent asserts that that figure includes extra com-
pensation because it required Ruiz to work during the 2 nights each week that the Re-
spondent is open for business . Although Tursi testified that Ruiz performed various
functions around the yard, it is clear that his work is supervisory and that he should
be excluded from the unit because he is a supervisor within the meaning of the Act.
As already recited, he gave the truckdrivers their daily work assignments. He also
assigned overtime work. He offered Honer a transfer from a job in the plant's mill
to that of truckdriver, which Honer accepted. He participated with Tursi in inter-
viewing applicants for employment and made effective recommendations to Tursi.
Thus, while Tursi testified that he would "listen" to Ruiz' recommendations and him-
self make the "final decision ," it is clear from the uncontradicted testimony of Stephan
that when Stephan was hired he was sent by Tursi to Ruiz, who questioned Stephan
concerning his qualifications and who told Tursi to "put . . . [Stephan] on the
payroll."
SUNRISE LUMBER 8c TRIM -CORP. 875
Al Falciano and Walter Lehman work in the plant's mill making such articles as
cabinets for kitchen and other uses, sink tops, and scallops for cornices. Falciano
is the more experienced and capable millman, and his weekly earnings during March
1955 ranged from about $120 to $145.11 Lehman earned slightly more than $100
during the 1 week that the record discloses his earnings. Upon occasion, such as on
busy Saturdays, they filled the orders of cash-and-carry customers and performed
other tasks. I find that the principal duties of Falciano and Lehman are dissimilar
to those of the truckdrivers and the yardmen, that they are under different super-
vision, and that they should be excluded from the appropriate unit.12
Aniello Spampanato is a part-time employee. During the first quarter of 1955, he
worked only 1 week during January and returned to work about February 1. Dur-
ing the workweeks ending March 1 through March 29, he did not work for the Re-
spondent, but he again returned to work during the workweek ending April 5. Ac-
cording to Tursi, Spampanato was laid off in late February because his services were
not needed. Tursi testified that Spampanato was a yardman, doing "whatever had
to be done." The record shows, however, that during a single workweek in Febru-
ary Spampanato earned $171.92 as compared with the $75 weekly which was earned
by Addeo, the full-time yardman. Tursi testified that he could not recall the work
which Spampanato performed to earn that amount of money, but that at times
Spampanato does maintenance work on the Respondent's buildings. In view of
Spampanato's relatively high earnings, I find that he is not a yardman. I find also
that he is an irregular part-time employee who performs building maintenance work
for the Respondent as needed. As an irregular part-time employee and as a main-
tenance man, he is to be excluded from a unit of truckdrivers and yardmen.
John Pehowdy, in the words of Tursi, has "25 years in the lumber business" and
is the Respondent's "only experienced lumberman." His weekly pay at one time in
1955 was $125, later becoming $135, and Tursi testified that these amounts included
extra compensation for working during the 2 nights each week that the Respondent
is open for business.13 Tursi testified also that Pehowdy performed various types of
work such as working in the yard, waiting on customers, and loading and unloading
trucks, but it is clear that Pehowdy is not a yardman. Pehowdy's earnings far exceed
those of the full-time yardman, Addeo. Moreover, Tursi's testimony shows that
Pehowdy is a valued advisor in a major component of the business. Thus, accord-
ing to Tursi, he once purchased lumber at a cost of $3,000 to $4,000 without obtain-
ing the advice of Pehowdy with the result that Tursi could not dispose of the lum-
ber and suffered the monetary loss, whereas he would not have made the purchase
had he obtained Pehowdy's advice. I find that Pehowdy should be excluded from a
unit of truckdrivers and yardmen because he works under different supervision and,
as an experienced lumberman, performs work which is specialized and unlike that of
the employees in the unit.
n There is evidence that Falciano performed supervisory functions Thus, Honer testi-
fied that when he was hired as a millworker he applied to Tursi who referred him to
Falciano, that Falciano inquired about his qualifications, that thereafter Tursi asked
Falciano : "Will he [ Honer ] do?", that Falciano answered : "Yes," and that Tursi there-
upon hired Honer. Honer also testified that Falciano is "in charge of the mill." The
General Counsel asserts that Falciano should be excluded from the unit because his duties
are unlike those of the truckdrivers and yardmen and that perhaps he also should be ex-
cluded as a supervisor within the meaning of the Act. I believe it is unnecessary to deter-
mine whether Falciano is such a supervisor.
12 The findings concerning the work of Falciano and Lehman are based upon the testi-
mony of witnesses for the General Counsel On the other hand, Tursi testified that both
Falciano and Lehman did "everything" around the plant, loading and unloading trucks,
driving trucks, unloading freight cars, etc This testimony is unpersuasive when one
considers Tarsi's entire testimony Thus, Tursi testified that during a particular week
In March 1955 Falciano performed the same types of work as a truckdriver, Petrillo,
although Falciano earned $145 87 and Petrillo earned $84. Tursi's explanation for Fal-
ciano's much higher earnings is that Falciano worked on the Sunday of that week and
that Falciano is able to perform "many duties" which Petrillo is unqualified to perform,
such as making cabinets. Tursi also testified that Falciano advises customers on such
matters as how to erect doors and the materials needed therefor.
13 Pehowdy did not work for the Repondent at the times of the Union' s demands for
recognition, and the weekly earnings set forth above are amounts which he received there-
after. He had been absent from work during the period of mid-July 1954 to mid-April
1955. I deem it unnecessary to decide the questions whether Pehowdy was on a leave of
absence during that period and whether he is a regular full-time employee.
876 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
Norman Vogeney , a retired Army officer , began work for the Respondent in 1950,
or 1951 . He worked in the office , but because he frequently was absent from work
he was given other duties . When working in the yard , he performed tasks assigned
to him by Ruiz such as filling orders for cash -and-carry customers . His work con-
tinued to be irregular,. however , and it appears that he reported for work at times
suitable to him rather than to the Respondent . During January , 1955, Vogeney
worked 3 days or less, during February he did not work , and during March, the
month in which the Union made its bargaining demands, he worked 3 or 4 days
each week . I find that Vogeney is an irregular part -time employee who should be
excluded from the unit for that reason.
Kenneth Hobbie , Tom Dunican , Cameron Witmer , and Charles Hammer are en-
gaged in sales and construction work . Hobbie deals with customers in such matters
as building garages. He estimates the cost and solicits the orders . When an order
is received , he obtains the necessary construction permit , compiles a list of needed
materials, hires persons to do the concrete and carpentry work, and oversees the
construction . He has a drawing account of $50 weekly and is paid a percentage of
the profits on each of his projects. Dunican performs the same type of work and
is compensated upon a like basis. Witmer, who may have been a new or part-time
employee at times material , also performed that type of work, but his method of
compensation is not disclosed in the record. Hammer's work is confined to fences
which are erected under his supervision after he receives orders therefor . The fences
are erected by fence installers whom none of the parties would include within the
unit. Hammer is paid a percentage of the profits on each of his projects . To some
extent , according to Tursi, these four employees drive trucks in delivering materials
to their respective projects. It is clear , however , that their supervision , if any, their
work and their basis of compensation set them apart from the truckdrivers and
yardmen, and I find that they should be excluded from the unit.
I find that the Respondent 's truckdrivers and yardmen constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
2. The Union's majority status
We have seen that on March 23, 1955, the Union possessed six cards which had
been signed by employees in the unit and which authorized the Union to execute
a collective -labor agreement requiring union membership as a condition of employ-
ment. Although the cards do not expressly designate the Union as the employees'
representative for purposes of collective bargaining generally, such designation is
inherent therein. Cf. Lebanon Steel Foundry v. N. L. R. B., 130 F. 2d 404 (C. A.,
D. C.), cert. denied 317 U. S. 659. We have seen too that on March 25 the same
six employees began a strike and engaged in picketing , seeking thereby to achieve
recognition of the Union as their representative . It is well established in Board
and court law that voluntary participation in strike activity by employees constitutes
a designation of the sponsoring labor organization as their representative . Seven-Up
Bottling Company of Miami, Inc., 92 NLRB 1622, enfd. 196 F. 2d 424 (C. A. 5).
These 6 employees constitute a majority of the 9 employees who were in the unit on
those dates. Accordingly, I find that on March 23, 1955, and at all times thereafter,
the Union was the duly designated representative of a majority of the employees in
the appropriate unit and, pursuant to Section 9 (a) of the Act, was the exclusive
representative of all employees in such unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment , and other conditions of
employment.
3. The refusal to bargain
On March 25, 1955, as found above, Tursi rejected Cody's demand for recogni-
tion of the Union and thereafter offered improved working conditions to the five
truckdrivers and Addeo if they would repudiate the Union. Following the rejection
of such offers, Tursi again refused to recognize the Union and the employees began
a strike. The Respondent advances several defenses to its refusal to bargain. The
defense that the unit is inappropriate has been disposed of above. The Respondent
asserts too that there "is not sufficient proof in the record that the union ever claimed
to represent a majority of any `group' or number of employees, or that Cody showed
any such proof to respondent." This contention is unpersuasive. It has been found
that Cody claimed to represent the truckdrivers and the full-time yardman. More-
over, if Tursi was unaware of the Union's unit claim and majority status before
March 25, he was enlightened by the events of that day. This is so because Tursi
knew whom Cody claimed to represent when Tursi asked Cody if he could speak
with the five truckdrivers and Addeo, and he learned from those employees orally
SUNRISE LUMBER & TRIM CORP. 877
and by their strike activity that the Union represented them . Another defense is
that "any alleged refusal to bargain" by the Respondent "was offset by the union's
refusal to bargain," that is, by the Union's submission of a printed contract to Tursi
with an alleged " sign or else ultimatum" which removed the possibility of good-faith
negotiations . This defense is grounded in Tursi's testimony, which has been rejected.
See footnotes 6 and 7. Still another defense, that the entire complaint must be dis-
missed on the ground that the Union and the striking employees sought an unlawful
contractural provision, is rejected in section III, D, below. I find that the Respond-
ent, by its rejection of the Union's demand for recognition on March 25, 1955, and
thereafter, refused to bargain collectively in violation of Section 8 (a) (5) and (1)
of the Act.
With respect to Tursi's offers of improved working conditions to the employees
on March 25 if they would repudiate the Union, the Respondent argues that the of-
fers were an "exercise of free speech" by Tursi. It is well settled, however, that such
offers are not protected by Section 8 (c) of the Act. N. L. R. B. v. Electric City
Dyeing Co., et al., 178 F. 2d 980 (C. A. 3), enfg. 79 NLRB 872. The Respondent
also argues that Tursi's offers were "condoned" by the Union when, I infer, Cody
consented to Tursi's speaking with the six employees outside Cody's presence. I
disagree. I do not regard Cody's consent as containing advance approval of the com-
mission of unfair labor practices, but, assuming the contrary, such approval is not
binding upon the Board in the performance of its statutory functions. The Respond-
ent having been obligated to deal only with the employees' chosen representative, its
offers of improved working conditions to the employees were violative of Section 8
(a) (5) and (1) of the Act.
C. Interference, restraint, and coercion
During the course of the strike, as recited above, Tursi said to employees on the
picket line that he would sell his trucks and rent other trucks before he would recog-
nize the Union. This remark, being tantamount to a threat to abolish the jobs of
the striking truckdrivers, was violative of Section 8 (a) (1) of the Act. As we have
seen , Tursi also solicited Honer and Addeo to return to work, and Addeo later ob-
tained reinstatement. The solicitation was calculated to undermine the Union and
was a part of the Respondent's pattern of unlawful opposition to the purposes of the
Act. It was, therefore,'violative of Section 8 (a) (I)- of the Act. N. L. R. B. v.
Clearfield Cheese Co., Inc., 213 F. 2d 70 (C. A. 3), enfg. 106 NLRB 417; Efco
Mfg., Inc., 108 NLRB 245.
D. The strike and the refusals to reinstate certain strikers
As described above, on March 25, six employees struck to secure recognition of
the Union. The Respondent argues in its brief that "the purpose of the strike was
to force the employer to violate the Act" because (1) the cards which the employees
signed allegedly limited the Union's authority to the execution of a contract requir-
ing membership as a condition of employment and (2) the form contract which
Cody offered to Tursi on March 19, and which was in use at Tursi's meeting with the
employees on March 25, provides for an "illegal union security clause." The pro-
vision is as follows:
SECTION 8 (a). Members of the . . . [Union] to be employed when
available, otherwise those who will become members of . . . [the Union] at
its next meeting.
(b) If Section 8 (a) of this contract is in conflict with! [sic] the Labor Man-
agement Relations Act it is understood and agreed that such provision shall not
be operative so long as such conflict exists but shall become operative immedi-
ately upon repeal of said Law or upon said Law being determined to be un-
constitutional or inapplicable. If Section 8 (a) is not operative for the foregoing
reason then throughout the term of this agreement all employees shall be re-
quired, as a condition of employment, to become members of the Union on or
after thirty (30) days following the beginning of employment or the effective
date of this agreement whichever is the later. This requirement is subject to re-
ceipt of the necessary certification from the National Labor Relations Board.
I do not believe that the issues herein require a determination of the alleged in.
validity of the quoted provision. If it be assumed arguendo that the provision con-
travenes the Act, its existence in the proposed contract did not relieve the Respond-
ent of the obligation to recognize the Union and to bargain collectively. N L R. B.
v. White Construction Co., 204 F. 2d 950 (C. A. 5). Moreover, the provision was
not mentioned in Tursi's conversations with Cody or the employees, insofar as the
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record discloses, and the purpose of the strike was not to force the Respondent to
agree to the provision. The purpose instead, as the reliable evidence fully estab-
lishes, was to overcome the Respondent's opposition to the principle of collective
bargaining. I find that the striking employees were unfair labor practice strikers
and, therefore, were not vulnerable to refusals to reinstate them.
On June 10, 1955, as recited, Attorney Cohen wrote to the Respondent and de-
manded the reinstatement of Casillo, Honer, Messina, Petrillo, and Stephan.' Al-
though Attorney Eltman, on behalf of the Respondent, replied to Cohen's letter, he
did not say that Tursi had instructed him to arrange the men's reinstatement. In-
stead, Eltman said to Cohen that he would be pleased to discuss the matter. There-
after, Eltman and Cohen were unsuccessful in their efforts to telephone each other,
and Eltman did not at any time offer reinstatement to the men. In its brief, the Re-
spondent asserts that the Union did not make an adequate effort to secure the men's
reinstatements. This assertion is patently without merit. The Union was not re-
quired to repeat its reinstatement demand. The demand having been made, the Re-
spondent was obligated to grant it. Eltman's noncommittal reply was tantamount
to a rejection.
With respect to Casillo, Honer, Petrillo, and Stephan, I find that on June 19, 1955,
the date of Eltman's letter to Cohen, the Respondent rejected their request for re-
instatement. The rejection was in derogation of their statutory rights and constituted
violations of Section 8 (a) (3) and (1) of the Act. With respect to Addeo and
Messina, we have seen that they were reinstated and that their employment was
later terminated under circumstances which are not alleged to have been unfair labor
practices, the reinstatements and terminations both having occurred before the date
of Cohen's letter. Accordingly, I reject the General Counsel's contention that the
Respondent was obligated to offer reinstatement to Addeo and Messina following the
receipt of Cohen's letter. I also reject the General Counsel's contention that Addea
applied for reinstatement during June 1955 since, for reasons unexplained in the
record, Cohen failed to include his name among those for whom Cohen was request-
ing reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON -COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent 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 and have led to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
- It has been found that the Union represented a majority of the employees in the
appropriate unit and that the Respondent refused to bargain collectively with it.
Accordingly, I shall recommend that the Respondent, upon request, bargain collec-
tively with the Union as the exclusive representative of the employees in the appro-
priate unit.14
It has been found also that the employees in the appropriate unit went on strike on
March 25, 1955, in protest of the above unfair labor practices, and that on June 19,
1955, the Respondent refused to reinstate Casillo, Honer, Petrillo, and Stephan. I
shall recommend, therefore, that the Respondent offer to said employees immediate
and full reinstatement to their former or substantially equivalent positions (The
Chase National Bank, etc., 65 NLRB 827), without prejudice to their seniority or
other rights or privileges, dismissing, if necessary, any persons hired by the Respond-
ent on and after March 25, 1955, who were not in the Respondent's employ on that
date. I shall also recommend that the Respondent make whole each of said em-
ployees for any loss of pay he may have suffered by reason of the Respondent's
refusal to reinstate him, by payment to him of a sum of money equal to that which he
normally would have earned from the date of the refusal to reinstate, June 19, 1955,
14 In determining the issues concerning the appropriate unit and the Union's majority
status therein, I expressed doubt concerning the inclusion of Duranty. Nothing in'the
recommebdations herein is intended to require his inclusion within the unit at the times
of bargaining negotiations if information in the possession of the parties should demon-
strate that he does not spend a substantial portion of his working time in delivering ma-
terials to customers by truck.
HURON PORTLAND CEMENT"CO. 879
to the date of a proper offer of reinstatement , less his net earnings (Crossett Lumber
Company, 8 NLRB 440, 497-8) during said period , the payment to be computed upon
a quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany , 90 NLRB 289 . See also N . L. R. B. v. Seven-Up Bottling Company, etc.,
344 U. S. 344: -F shall recommend also that the Respondent preserve and make
available to the Board or its agents;'uporr request , for examination and copying, all
payroll records , social-security payment records, timecards , personnel records and
reports, and all other records necessary to analyze the amounts of back pay due and
the rights to reinstatement under the terms of these recommendations.
In view of the nature of the unfair labor practices committed , particularly the
unlawful refusals to reinstate employees, I shall recommend further, in order to
make effective the interdependent guarantees of Section 7 of the Act, that the
Respondent cease and desist from, in any manner , infringing upon the rights guaran-
teed in said section . N. L R. B. v. Express Publishing Company, 312 U. S. 426;
N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C. A. 4).
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
2. All truckdrivers and yardmen at the Respondent's plant in Massapequa, New
York, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. The Union, on March 23, 1955, was, and at all times thereafter has been, the
exclusive representative of all employees in such unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of
the Act. -
5. By discriminating in regard to the hire and tenure of employment of Sylvestre
Casillo, John Honer , Alexander Petrillo, and George Stephan , and each of them, and
thereby discouraging membership in a labor organization , the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
6. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent has not engaged in unfair labor practices by the alleged
refusals to reinstate Anthony Addeo and Arthur Messina.
[Recommendations omitted from publication.]
Huron Portland Cement Co. and Amalgamated Local No. 176,
United Stone and Allied Products Workers of America, AFL-
CIO, Petitioner. Case No. 7-12C-2943. March 21, 1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before John F. Burst, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Eniployer is engaged in commerce within the meaning of
the Act.
115 NLRB No. 135.