Sunrise Lumber & Trim Corp.Download PDFNational Labor Relations Board - Board DecisionsMar 21, 1956115 N.L.R.B. 866 (N.L.R.B. 1956) Copy Citation 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. Copy with citationCopy as parenthetical citation