The Pembek Oil Corp.

National Labor Relations Board - Board Decisions

Jun 14, 1967

165 N.L.R.B. 367 (N.L.R.B. 1967)

PEMBEK OIL CORP.
The Pembek Oil Corporation and
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America, Local Union No . 677. Case
1-CA-5652
June 14,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On March 21, 1967, Trial Examiner Alvin
Lieberman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended
dismissal of these allegations. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision together with a supporting brief, and the
General Counsel filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, the Pembek Oil
Corporation, Meriden, Connecticut, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
' In the absence of exceptions, we adopt pro forma the Trial
Examiner 's finding that employee Emery's authorization card is
invalid because he signed it on the misrepresentation that
he was the only employee in the unit who had not signed a
card Phil-Modes, /nc , 159 NLRB 944, Dan Howard Mfg. Co , 158
NLRB 805, cf. Merrill Axle and Wheel Service, 158 NLRB 1113
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
367
ALVIN LIEBERMAN, Trial Examiner: This proceeding,
with all parties represented, was heard in Meriden,
Connecticut, on November 28, 29, and 30, 1966,' upon a
complaint of the General Counsel' and Respondent's
answer. The issues litigated were whether Respondent
violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended (herein called the Act).
More particularly, the questions foe decision are as
follows:
1. Did Respondent violate Section 8(a)(3) and (1) by
discharging Carl Collins 91
2. Was the unit for which the Union requested
recognition from, and bargaining with, Respondent
appropriate for those purposes?
3 Did the Union represent a majority of Respondent's
employees in a unit appropriate for collective bargaining
when the foregoing request was made?
4. Did Respondent violate Section 8(a)(1) arid (5) of the
Act by refusing to bargain with the Union, by bargaining
directly with its employees, by inducing them to abandon a
lawful strike, or by inducing them to repudiate the Union 9
Upon the entire record,4 upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the arguments made and briefs
submitted by the General Counsel and Respondent, I
make the following.
FINDINGS OF FACT'
I. RESPONDENT'S BUSINESS
Respondent, a Connecticut corporation, whose principal
office and place of business is located at Meriden,
Connecticut, is engaged there in the installation and
servicing of oil burners and related equipment and in the
retail sale of fuel oil. Respondent annually purchases and
' All dates referred to in this Decision fall within 1966
2 The complaint was issued on a charge filed by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No 677 (herein called the
Union ) During the trial the complaint was amended to set forth
the name of the Union as it appears in the caption and by
substituting for paragraph 10, as originally set forth, the following
paragraph
10 All employees employed by Respondent at West Main
Street, Meriden, Connecticut, including fuel truck drivers,
installation men , servicemen , soot men, but excluding
salesmen , office clerical employees and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act
3 On motion of Respondent made at the conclusion of the
General Counsel's case-in-chief ¶8 of the complaint which alleges
that Respondent failed and refused to reinstate Collins and so
much of ¶ 9 and other paragraphs of the complaint which relate to
¶ 8 were dismissed for the reason that the General Counsel
offered no evidence to establish those allegations. I have been
urged by the General Counsel to reconsider this ruling and I have
done so Having reconsidered and having taken into account the
General Counsel's arguments, I find no convincing reason for
changing niy ruling.
4 Errors in the transcript have been noted and corrected
5 The motion to dismiss the complaint made by Respondent at
the close of the trial is disposed of in accordance with the findings
and conclusions set forth in this Decision
165 NLRB No. 51
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receives products valued in excess of $50,000 from
suppliers located outside the State of Connecticut and
Respondent's gross volume of business annually exceeds
$500,000. Accordingly, I find that Respondent is engaged
in commerce within the meaning of the Act and that the
assertion of jurisdiction over this matter by the National
Labor Relations Board (herein called the Board) is
warranted. Siemons Mailing Service, 122 NLRB 81, 85;
Carolina Supplies and Cement Co., 122 NLRB 88, 89.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case concerns itself with the events
following the Union's authorization by Respondent's
employees to act as their collective-bargaining
representative. Among these were the Union's demand
for, and Respondent's refusal of, recognition and
bargaining; the discharge of one employee; a strike;
Respondent's direct bargaining with the striking
employees; and, coming full circle, the employees'
repudiation of the Union.
The General Counsel contends that Respondent's
refusal to recognize and bargain with the Union pursuant
to its demand was based upon its determination to gain
time within which to destroy the Union's status as the
collective-bargaining representative of the employees
concerned, hence in violation of 8(a)(5) of the Act. In
support of this argument the General Counsel points to
Respondent's discharge of an employee, claimed by the
General Counsel to have been discriminatory and,
accordingly, violative of Section 8(a)(3) of the Act; to its
direct bargaining with employees who had earlier signed
cards authorizing the Union to act as their collective-
bargaining agent which, the General Counsel postulates,
induced the employees involved to abandon a lawful strike
and repudiate the Union, all in violation of Section 8(a)(1)
and (5) of the Act.
Taking issue with the General Counsel on all points
Respondent argues that it has not violated Section 8(a)(5)
of the Act by its refusal to accede to the Union's demand
for recognition and bargaining because of its good-faith
doubt as to the Union's claim that it represented a majority
of its employees; because the unit for which the Union
requested recognition is not appropriate for collective-
bargaining purposes; and because the authorization cards,
upon which the Union's majority is bottomed, are invalid
by reason of misrepresentations in their procurement.
Further Respondent argues that it did not engage in direct
bargaining with the employees concerned and that any
dealing by Respondent directly with its employees was
discontinued immediately upon its being advised that such
conduct might be, in the circumstances of this case,
improper. Running out the skein, insofar as this phase of
the case is concerned, Respondent contends that its direct
8 The findings with respect to the duties of Respondent's
employees are based on the testimony of Grant, Fred J Knell,
Respondent 's president , Robert J. Thuotte , its office manager and
dispatcher, Thomas F Yale, a driver employed by Respondent,
and Carl Collins, who was employed as a driver by Respondent
and whose discharge is claimed by the General Counsel as having
been violative of Sec. 8(a)(3) of the Act
dealing with its employees did not induce them to abandon
their strike or to repudiate the Union. Finally, while
admitting the discharge, Respondent asserts that it was
occasioned solely by the many errors made by the
employee in question and that it had no prior knowledge of
his activities on behalf of the Union.
B. Facts
1. The nature of Respondent's operations
Respondent installs and services oil burners in existing
commercial establishments and homes, the former being
referred to as industrial work and the latter as domestic
work. In addition, Respondent on occasion installs oil
burners in buildings under construction and regularly sells
fuel oil.
Insofar as material, in the operation of its business
Respondent employs installer-servicemen, power
cleaners, oil truck drivers (herein respectively called
servicemen, sootmen, and drivers), and a maintenance
man. The usual duties of the servicemen, who exercise
skills not possessed by Respondent's other employees,
consist of installing, servicing, and repairing industrial and
domestic oil burners and related equipment, in existing
buildings. During the period critical to this proceeding
Respondent employed eight servicemen, of whom six did
both industrial and domestic work. Of these, two also
installed oil burners in buildings under construction. This
work, however, occupied their time for only about 6 weeks
a year. The remaining two servicemen did only domestic
work.
Respondent's drivers deliver fuel oil to its customers,
compute the amount of money due from customers for the
oil delivered by them, and enter this sum on an invoice
which is left with the customer at the time of the delivery.
Although their principal duties relate to the delivery of fuel
oil, the drivers also assist servicemen. This type of work is
done by the drivers for about 2 or 3 months a year,
generally in the summertime, when there are little, or no,
deliveries to be made. As John W. Grant, Respondent's
secretary, testified, "in a given week [during this period a
driver could spend] all his time or 90 per cent of his time"
assisting servicemen.
The sootmen clean oil burners and related equipment.
On rare occasions sootmen also assist servicemen. The
maintenance man, as Grant further testified, "keeps [the
shop] clean" and "takes care of the stock. 116
Respondent is party to a collective-bargaining contract
with Local Union No. 21, United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry (herein called Plumbers Union).' This
contract covers two of Respondent's employees, the
servicemen who install oil burners in buildings under
construction. It is applicable, however, only when they
perform this type of work, which, as I have found, they do
for about 6 weeks during each year. The contract has no
relevance when the employees concerned perform the
usual functions of servicemen; i.e., the installing,
servicing, and repairing of oil burners in existing buildings.8
' Insofar as it may be material , I fi,id that Plumbers Union is a
labor organization within the meaning of the Act
9 These findings are based on the contract between
Respondent and Plumbers Union, which is in evidence as Reap.
Exh. 10 and the testimony of Knell, Respondent's president.
PEMBEK OIL CORP.
The maintenance man spends all his working time in
Respondent's warehouse. The servicemen, sootmen, and
drivers work there when they are not performing duties
away from Respondent's premises.
The servicemen, sootmen, drivers, and maintenance
man are hourly rated and each has a timecard. Except for
the maintenance man, they wear the same work uniform.
All including the maintenance man, benefit from an
insurance program maintained by Respondent," have the
same vacation and sick leave privileges, and, as Grant,
Respondent's secretary, related, share the same restroom
"and other facilities in the shop."' °
At the trial it was stipulated that Knell, Grant, Thuotte,
and Arthur Moskaluk, respectively Respondent's
president, secretary, office manager and dispatcher, and
sales engineer, are its only supervisors. As Respondent's
president, Knell is "overseer of the whole operation."
Respondent's sales engineer assigns work to all
servicemen, "directs the activities" of those performing
industrial work, and, on occasion, also directs the work of
the sootmen, drivers, and maintenance man. Whenever a
serviceman encounters "difficulty on [a] job," apparently
without regard to whether the problem arises on industrial
or domestic work, assistance is sought from, and given by,
the sales engineer.
The work of the drivers, domestic servicemen, and
maintenance man is supervised by the Respondent's
dispatcher Respondent's secretary "directs the activity"
of the sootmen and assists the sales engineer in assigning
work to the servicemen. The dispatcher regularly
"reports" to Respondent's president, and from time to
time to its secretary.''
2. Respondent's collective-bargaining history
It has already been found that Respondent and the
Plumbers Union are parties to a contract of Respondent's
servicemen, presently two in number, who install oil
burners in buildings under construction. Respondent has
had similar contracts with the Plumbers Union since about
1950. However, no labor organization has ever represented
all of Respondent's employees.''
3. The Union's organizing campaign
Shortly after Collins started to work for Respondent'
he began to hear complaints from other employees
concerning their working conditions , and, because he was
0 The two servicemen covered by the Plumbers Union contract
participate additionally in a health, welfare, and pension program
provided for by that agreement.
10 The findings in this paragraph are based on Grant's
testimony
t i The findings with respect to the functions of Respondent's
supervisors are based on Grant's testimony
12 These findings are based on the testimony of Knell and
Grant , respectively Respondent 's president and secretary.
"As will appear below Collins , whose discharge, as already
noted, is alleged by the General Counsel as having been violative
of Sec 8(a)(3) of the Act, was hired by Respondent on August 19
"These findings are based on testimony given by Collins and
Galullo
15 This finding is based on the authorization cards received in
evidence as G C Exhs. 11, 12, and 14 through 20, and the
testimony of the employees who signed the cards in question
except Robert Chiaro, whose whereabouts were unknown at the
time of the trial.
369
a union member, was requested by several to "contact
someone for them to talk to about a union." Accordingly,
Collins communicated with James Galullo the Union's
business representative, who sent authorization cards and
literature to Respondent's employees. Galullo also sent a
supply of authorization cards to Collins, some of which
Collins distributed among Respondent's employees.
In addition to distributing the cards, Collins met with
Respondent's employees individually and in groups and
informed them of the benefits to be derived from
representation by the Union. There was also a meeting on
September 13, at the Union's headquarters attended by
some of Respondent's employees and Galullo, the Union's
business representative. At this meeting Galullo asked
those present who had not signed cards to do so and
received from the employees a series of proposals as to
terms and conditions of employment which, as Galullo
stated, "they wanted the union to negotiate on."'a
4. The Union's requests for recognition and Respondent's
replies
By September 8, nine employees in the unit alleged in
the amended complaint as being appropriate "for the
purposes of collective bargaining" had signed cards
authorizing the Union to act as their collective-bargaining
representative. 15 On September 9, the Union, in writing,
informed Respondent that "a majority of [Respondent's]
truck drivers, oil burner servicemen and installers,
mechanics, and helpers have authorized [the] Union to
act as their collective bargaining representative," and, in
essence, requested that Respondent recognize, and
bargain with, it as such representative. 16 On
September 12, the Union filed a representation petition
(Case 1-RC-9178) which was later withdrawn without
prejudice.
Upon receipt of the Union's letter," Respondent
retained counsel and turned the letter over to him. He, in
reply, informed the Union, on September 13, that
Respondent disputed both the Union's majority claim and
"the appropriateness of the unit." With respect to the
authorization cards, Respondent's lawyer stated that they
were signed "solely for the purpose of obtaining a
representation election ... and, if not for that purpose,
were signed based upon misrepresentations by
representatives of your Union as to [their] import." It was
further stated in this letter in acknowledgment of the
Union's filing of its representation petition that
16 There is an apparent variance between the unit set forth in
the Union's letter (G C. Exh 2, in evidence) and that contained in
9 10 of the amended complaint (G C Exh 13, in evidence) which
describes the unit as "[ a]ll employees employed by Respondent
including fuel truck drivers, installation men, servicemen,
soot men, but excluding salesmen, office clerical employees and
supervisors ." Respondent raises no issue concerning these
seemingly different unit descriptions and concedes in its brief
that the unit set forth in the amended complaint "is the same unit
originally sought by the Charging Union." In view of this
concession, I find that the two documents, i e , the Union's letter
and the General Counsel's amended complaint , in fact , describe
the same unit As the unit description set forth in the amended
complaint appears to be more artful than that contained in the
Union's letter , all subsequent mention of the unit involved will
have reference to the former, and, for the reasons set forth in fn.
53, tnfra, will be construed as including the maintenance man.
"The letter was received by Respondent on September 12
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent would recognize the Union "only" upon its
certification by the Board."
As previously mentioned, several employees of
Respondent attended a meeting at the Union's
headquarters on September 13. At this meeting another
employee in the unit, the 10th to do so, signed an
authorization card.'"
The following day, September 14, representatives of the
Union and Respondent met with agents of the Federal and
State mediation services. As is usual in such situations,
the parties met jointly and separately with the mediators.
At one of the joint sessions the Union again requested
recognition and bargaining and again Respondent refused,
stating on this occasion that the unit was inappropriate
and that it would recognize the Union if it won a
representation election.20
In view of Respondent's contentions concerning the
Union's "majority" and the invalidity of the authorization
cards signed by its employees, findings must be made
concerning the number of employees in the unit, and the
circumstances surrounding the signing of the cards.
Concerning the former, it was stipulated that at the time in
question here Respondent employed 8 servicemen, 4
sootmen, 2 drivers, and 1 maintenance man, a total of 15.2'
As I have already found, 10 employees signed
authorization cards. In pertinent part, these cards contain
the following recital:
I hereby authorize the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America to represent me for the purpose of
collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of
employment ...
Respondent maintains that signatures to all the cards
were obtained through misrepresentations sufficient to
nullify them. In its brief Respondent points particularly to
four cards, those signed by William F. Carlson, Felix
George Rouleau, James Emery, and Donald MacLellan, as
being illustrative of the misrepresentations made by
Collins, who solicited signatures on behalf of Union, or by
Galullo, the Union's business representative, to all the
employees who signed cards." Accordingly, Respondent
urges at least that the cards signed by these employees not
be counted in determining the Union's majority. In detail,
the events surrounding the signing of the cards in question
are as follows:
William F. Carlson: Carlson, a serviceman in
Respondent's employ, received his card in the mail and
signed it on September 1, after first reading it. Before
1" These findings are based on the testimony of Knell and
Grant, respectively Respondent's president and secretary, and on
the letter written by Respondent's lawyer (G C Exh 6, in
evidence)
19 Like the other findings with respect to the signing of
authorization cards, this finding is based upon the card, itself
(G C Exh 21, in evidence), and the testimony of the employee
who signed the card
20 These findings are based on the testimony given by Galullo,
the Union 's business representative , and Grant, Respondent's
secretary.
21 In addition to these, Respondent employed two office clerks
221 do not agree that this is so Thus, Thomas Yale, a driver,
testified that Collins merely told him he would receive a card in
the mail and that he had no other conversation with Collins before
reading and signing his card Thomas Padden, a sootman,
testified that before signing his card Collins told him that "it was a
receiving the card Carlson asked Collins whether he would
become a member of the Union if he signed the card.
Collins' answer was "No." Collins further told Carlson
that the cards would enable Galullo to "talk to the
company on the employees' behalf." Although not so
informed by any representative of the Union, Carlson
concluded that the card "was only to show ... the union
that there were enough men interested in maybe forming a
union"; the Union would inform Respondent of this fact;
and "then it would be up to us to decide whether or not we
wanted to vote the union in."'-1
Felix George Rouleau• After receiving his card, but
before signing it, Rouleau, a serviceman, asked Collins
whether the card "would be binding us to the union in any
way." Collins' response was that it would not; the card was
"introductory" '24 and Rouleau should "attend a meeting
to see what the union had to offer." On the following day,
September 4, Rouleau read the card, signed it, and mailed
it to the Union.''
James Emery: Emery, a sootman in Respondent's
employ, signed his card on September 7, after being told
by Collins that "he was the last one" and that "everybody
else had signed. '126
Donald MacLellan With other employees of
Respondent, MacLellan, a serviceman, attended the
meeting held at the Union's headquarters on September
13. Galullo, the Union 's business representative,
told the assembled employees that among those present
two had not signed authorization cards. Galullo, without
saying more, then gave a card to MacLellan, who was one
of those who had not yet signed. MacLellan signed the
card at that time without reading it because, as he put it,
there was "general conversation" among the employees
"that we wanted to talk to the union, see what they had to
offer and cards were more or less permission to talk to the
Union." No representative of the Union was present at the
time or times of this "general conversation" and although
Collins was there he was not the person who told
MacLellan that cards had to be signed by employees as a
prerequisite to their talking to "the Union."27
5. Collins' discharge
Carl Collins was hired as a driver by Respondent on
August 19. He started to work the following day. He was
discharged on September 12, several hours after
Respondent received the Union's recognition and
bargaining request. At the time of the termination of his
employment Collins was told by Grant, Respondent's
card that the union usually sends out lust to give them the
authorization to negotiate " John Yale, a serviceman, could
remember no conversation at all with Collins about the card
which he signed, and Robert Parisi also a serviceman, gave
similar testimony, although he received the card which he signed
from Collins
23 These findings are based on Carlson's testimony
20 In context this word appears to be meaningless
25 These findings are based on Rouleau's testimony
26 These findings are based on Emery's testimony Emery also
testified that he had decided to sign his card on the day before his
conversation with Collins, during the course of which the card
was signed This testimony was elicited from Emery by a leading
question from the General Counsel at a time when Emery was his
witness Accordingly , I will give it no weight Liberty Coach
Company, inc , 128 NLRB 160, 162
2' These findings are based on testimony given by MacLellan,
Rouleau, and Galullo
PEMBEK OIL CORP.
secretary, that he was being discharged because he made
"too many mistakes in computing the price of fuel oil "
Later that day Grant gave Collins a Connecticut
Employment Security Division form, prepared by
Respondent and signed by Grant in which the "Reason for
Unemployment" was stated to be "Inability To Figure Or
Compute Prices."'"
About October 22, Respondent offered to reinstate
Collins to the job he held at the time of his discharge.
Because Collins was then employed elsewhere, he refused
Respondent's offer.2"
Prior to his employment by Respondent, Collins was
interviewed by Grant and Thuotte, Respondent's
dispatcher. At the time Collins was wearing a union button
and he told his interviewers that he had been a union
member.-'o During this conference the duties of a driver's
job were explained to him and Collins was told about "the
job training." In the latter connection, Thuotte, as Collins
testified, told him that he would "go out with another man
for a while to learn the job and that [Respondent] invested
approximately a year in a man before he would become
efficient like they like their employees to be.";'
Findings concerning Collins' activity in support of the
Union have already been made and appear under the
heading "The Union's organizing campaign." The
meetings mentioned there, at which Collins related to
Respondent ' s employees the advantages of union
representation, were held in Respondent's shop, the
regular work station of the employees who attended, on a
Saturday, and on other days of the week. Although
Saturday is a regular workday for Respondent's
employees, none of Respondent's supervisors were
present in the plant at the time the Saturday meeting was
held.
In addition to attending these shop meetings and there
explaining the benefits obtainable by the employees
through a relationship with the Union, Collins signed an
authorization card, distributed others to employees, and
engaged in discussions with them concerning the signing
of the cards. Like the meetings, these, too, took place on
Respondent's premises.'''
As found above, Collins worked for Respondent as a
driver from August 20, until his discharge on
September 12, several hours after Respondent's receipt of
2' The finding concerning the conversation between Grant and
Collins with respect to the reason for Collins' discharge is based
on Collins' testimony Grant's version of this conversation is that
he told Collins that he was being discharged for "making too may
mistakes in the delivery of oil " Grant' s account , as can be seen,
differs from Collins' in that it omits any reference to the nature of
the "mistakes " This is not a mere semantic distinction It is
material in view of Respondent 's position , as set forth in its brief,
that Collins' discharge was occasioned not only by his errors in
computation , but also by his mistakes in other areas . Because I
was favorably impressed with Collins' demeanor as a witness and
because his testimony as to the conversation in question is
corroborated by the Connecticut Employment Security Division
form (Resp Exh 11, in evidence ), which, as noted , was prepared
by Respondent and given to Collins on the day of his discharge, I
accept Collins' version of the event rather than Grant's
2s These findings are based on Collins' testimony
30 In its brief Respondent concedes that it had knowledge at the
time Collins was hired that in the past he had been a member of a
union
31 Collins' testimony in this regard was substantially
corroborated by Thuotte who related that during the interview "It
371
the Union 's bargaining request. At that time , as has also
been found, Grant, Respondent's secretary, told Collins
that he was being discharged because of his computation
errors.
Collins did make errors in computing the total price of
the oil which he delivered to Respondent's customers.
Collins made his first error of this nature on the very first
day of his employment and continued to make similar
errors.
Collins mathematical deficiencies came to the attention
of both Grant and Thuotte, respectively Respondent's
secretary and dispatcher, during his first week as a driver
for Respondent. Neither, however, spoke to Collins about
this until Grant did so in connection with Collins'
discharge on September 12, by which date Collins had
been in Respondent's employ for more than 3 weeks. '13
Not only did they not speak to Collins about any of his
mistakes,'' as set forth above, but also neither Grant nor
Thuotte before September 12 had determined to take any
disciplinary action against Collins because of them.
During the morning of that day, however, after the Union's
bargaining request had been discussed by Grant and
Knell, Respondent's president, and had been shown to
Thuotte, he suggested to Grant that they "sit down and
talk about [Collins]." They did so and jointly decided to
discharge Collins.-'-,
One final fact remains for consideration in connection
with Collins' dismissal . Although, as Thuotte and Grant
both stated, the decision to terminate Collins' employment
was theirs jointly and was arrived at after a conference,
each gave conflicting testimony with respect to this joint
decision. Thus, Thuotte testified that he and Grant arrived
at their joint determination to discharge Collins "based on
this incident of Gumkowski'"" [and] the mistakes he made
in figuring oil tickets." Grant, on the other hand, recited as
the grounds for the joint decision the whole gamut of
Collins' faults as a driver, including his computation
errors, his spillage of oil on a customer's cellar floor, his
delivery of oil to a customer who did not order any, his
giving a customer an invoice which should have been given
to another, and his failure to make a timely delivery of oil
to a customer who lived in a new area of the city because
he could not find the house.
was said that the starting pay was high because it takes quite a
while for a man to be a good oil driver "
32 See, e g., the testimony of Carlson , Parisi , and Rouleau.
13 During Collins' second week of employment Grant informed
Padden, a rank -and-file employee, of Collins' computation errors
and asked him to tell Collins about them Padden , however, did
not inquire nor did Grant say, what would happen if Collins'
arithmetic did not improve Although Padden relayed the
substance of his conversation with Grant to Collins, he could not
remember whether he did that before or after Collins ' discharge
31 In addition to his computation errors , Collins spilled oil on
the cellar floor of one of Respondent 's customers , and on the lawn
of another, delivered oil to a customer other than the one it was
intended for , gave a customer an invoice which should have been
given to another , and on September 10, was unable to make a
delivery at the time promised because he could not find the home
of the customer who lived in a new section of the city.
35 These findings are based on testimony given by Grant and
Thuotte and the following exhibits received in evidence G C.
Exhs. 3(a) through (h), inclusive , and Resp Exhs 4 and 5
36 Gumkowski is the name of the person who owned the house
in the new part of the city which Collins could not find in time to
make his delivery at the hour promised
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The events following Collins ' discharge
After his discharge Collins and several employees
gathered at a local tavern where they talked about Collins'
dismissal . In addition , the employees expressed an
interest in meeting with Galullo, the Union's
representative . Through Collins' efforts such a meeting
was arranged for the following evening at the Union's
headquarters."
About 10 employees attended this meeting, which was
chaired by Galullo. Galullo designated Collins as the
Union's steward , discussed with the employees Collins'
discharge , Respondent 's refusal to recognize the Union,:""
and outlined measures which might be taken , including a
strike, to procure Collins' reinstatement and a collective-
bargaining contract . In connection with the contract, the
employees submitted to Galullo a paper on which was
written the benefits they expected the Union to obtain for
them through negotiation with Respondent. After
considering the various courses which could be pursued,
the employees decided to strike for the purposes of
obtaining a contract and Collins ' reinstatement.:"'
On September 14, almost all the employees who had
attended the meeting the previous evening struck and
picketed Respondent ' s permises with signs stating
"PEMBEK WORKERS ON STRIKE-TEAMSTERS
LOCAL NO. 67" and "WE PROTEST DISCHARGE OF
OUR STEWARD-LOCAL NO. 677 TEAMSTERS
WATERBURY." The strike was short lived , however,
and, as appears below , was discontinued the next day.
Early during the morning of September 15, the striking
employees decided among themselves to return to work.
The strikers appear to have made this decision because
the two servicemen in Respondent 's employ who were
members of the Plumbers Union had not honored their
picket line the previous day.
Having decided to terminate their strike Carlson, on
behalf of all the employees involved , telephoned Grant,
Respondent 's secretary, to ask whether they "could come
in and sit down and talk ." Upon Grant 's acquiescence, the
employees went to Respondent ' s premises where they
conferred with Knell , Thuotte, respectively Respondent's
president and dispatcher , and Grant.40
Before the meeting started Knell , Respondent's
president , called its lawyer for advice as to the proper
course which Respondent should pursue in the
circumstances . Respondent 's lawyer, however , was not in
his office at the time."
Neither the employees nor Respondent's officials who
were present at the conference appear to have appointed a
particular member to act as spokesman for their
respective groups. Representatives of each spoke out at
will.
The first to speak was Carlson who stated tl- -it the
employees were there to discuss their "gripes ." To this,
Knell, Respondent 's president , replied , as Emery, one of
the employees in attendance testified , " that he had no idea
37 These findings are based on testimony given by Collins and
Galullo.
38 Although Galullo had not yet received Respondent 's letter
informing the Union of its rejection of the Union 's request for
bargaining , Respondent had, apparently earlier that day, posted a
notice informing its employees that it would not recognize the
Union, a copy of which was given to Galullo at the meeting
30 These findings are based on testimony given by Galullo,
Carlson, and Rouleau and G.C. Exh. 10, in evidence.
things had gotten as bad as they were ... that maybe ...
this was a good thing that it did come out ... and that ...
we could straighten something out by having this get
together." Grant, Respondent's secretary, took a less
conciliatory line, stating at the outset of the conference
that he, too, had "gripes" and "wanted ... an 8-hour day."
The employees then briefly mentioned some of the
things with which they were concerned including the lack
of a pension plan, and their desire to have a posted pay
scale. There was also a cursory reference to sick and
holiday pay. Respondent's representatives made no
comment with respect to their employees' complaints,
except as to pension and sick pay. Concerning the former,
Respondent's representatives indicated that Respondent
had already made inquiries in that area of several
insurance companies. As to sick pay Grant stated that
such benefits would not be provided where absence from
employment was occasioned by the sickness of a number
of the employees' family.
No specific proposals were presented by either side and
no agreements were reached by Respondent and its
employees other than one to meet again during the
following week. Carlson, one of the employees present,
then suggested that they "go in the back shop" and
prepare proposals for submission to Respondent before
the next meeting between the employees and Respondent.
While the employees were so engaged, Respondent's
lawyer returned the call, which Knell had previously made
to him. Upon being informed of what had happened
Respondent's lawyer absolutely forbade further meetings
with the employees because, as Knell put it, "having
signed the cards, they are considered members of the
union, and until this thing is settled one way or the other,
you cannot bargain with them no how." Grant and Knell
immediately notified the employees that on advice of its
lawyer Respondent would not meet further with them.
Upon being pressed for the reason Grant told the
employees that Respondent's attorney "has informed us
that you have signed cards, and you are automatically
represented by the Union. `42
Later that day, September 15, the employees decided
that they no longer desired the Union to represent them.
Emery, an employee who participated in the decision,
informed Galullo, the Union's business representative, of
this, telling him that the employees "didn't want anything
to do with the Teamsters Union ... that they did not want
him to represent [the employees; and that they] wanted
out because [they] believed [they] were misled into it."
Subsequently, the employees concerned, except
Collins, engaged a lawyer43 and instructed him to notify
the Union formally that they rescinded the authority
previously given the Union to represent them for the
purpose of collective bargaining. Such notices, on behalf
of each employee involved, except Collins, were sent to
the Union on October 5.44
40 These findings are based on testimony given by Carlson,
Emery, Rouleau, and Grant
4i These findings are based on Knell's testimony
42 These findings are based on testimony given by Carlson,
Emery, Knell, and Grant
43 It does not appear that the lawyer chosen by the employees
had any relationship with Respondent or its attorney.
14 These findings are based on testimony given by Emery and
Carlson and on Resp Exhs 7(a) through (j) in evidence.
PEMBEK OIL CORP. 373
C. Contentions and Concluding Findings as to
Respondent's Alleged Violation of Section 8(a)(3) of the Act
Respondent contends that Collins was discharged
because of the mistakes which he had made and that the
termination of his employment was not related to his union
activity. Moreover, Respondent argues that the General
Counsel has not established that Respondent had
knowledge of Collins' participation in the Union's
organizing campaign . The General Counsel, in opposition,
urges that Collins' discharge was attributable to his efforts
on` behalf of the Union and that it can be inferred that
Respondent had knowledge that Collins was so engaged
while in its employ.
To be sure, knowledge such as Respondent claims it did
not have is a necessary ingredient of a violation of Section
8(a)(3) of the Act and must be shown to have existed before
an unfair labor practice within the meaning of that section
can be said to have occurred. Although there is no direct
evidence to establish that Respondent had knowledge of
Collins' activities on behalf of the Union, it is settled law
"that direct knowledge of an employee's concerted or
union activities is [not] a sine qua non for finding that he
has been discharged because of such activities. On the
contrary, there is well established ... precedent that such
knowledge may be inferred from the record as a whole."
Wiese Plow Welding Co., Inc., 123 NLRB 616, 618.
Considering the "record as a whole," I conclude, as did
the Board in Wiese, "that such an inference should and
must be drawn" in the instant case, particularly in the
light of the following factors, most of which were also
present in Wiese: (1) Respondent's knowledge at the time
it hired Collins that he had been a member of a union in
the past and "was thus a potential source of union
organization";45 (2) the small number of employees in
Respondent' s plant ;46 (3) Collins' proselytizing on behalf
of the Union among his coworkers almost from the very
start of his employment by Respondent, much of which
was done on plant premises during working hours; and
(4) the timing of Collins' discharge, which occurred
abruptly and without prior warning47 several hours after
Respondent received the Union' s bargaining request.
Having concluded that Respondent had knowledge of
Collins' activities on behalf of the Union, it must next be
determined whether Respondent was motivated by
antiunion considerations in discharging Collins, as the
General Counsel urges, or solely because of his mistakes,
as Respondent contends. If the former is the case, then,
clearly, Collins' discharge violated Section 8(a)(3) of the
Act. N.L.R.B. v. Great Eastern Color Lithographic
Corporation, 309 F.2d 352, 355 (C.A. 2), cert. denied 373
U.S. 950. If the latter, then, equally clearly, Respondent's
termination of Collins' employment did not constitute an
unfair labor practice. Mitchell Transport, Inc., 152 NLRB
122, 123, affd. sub nom. Hawkins v. N.L.R.B., 358 F.2d 281
(C.A. 7).
On the record of this case, Respondent's claim that it
dismissed Collins because of his mistakes does not appear
to be well taken. It seems to me, in this connection, that
Respondent expected new employees, such as Collins, to
make mistakes, else why would Thuotte, Respondent's
dispatcher, have told Collins when he was hired that
Respondent "invested approximately a year in a man
before he would become efficient." Furthermore, Collins'
faults came to Respondent's attention during the first
week of his employment. He was, nevertheless, permitted
to continue working for an additional period of more than 2
weeks. However, several hours after Respondent's receipt
of the Union's request for bargaining, which was the
culmination of Collins' organizing effort on behalf of the
Union among Respondent's employees, he was summarily
and without prior warning discharged, ostensibly because
of the mistakes which he had made.
The timing of Collins' abrupt discharge coming as it did,
without warning, hard on the heels of the Union's
recognition request and the relatively long period during
which Respondent suffered Collins' deficiencies as an
employee, lead me to believe that the real reason for
Collins' dismissal was his activity on behalf of the Union
which had its fruition in the Union's request that
Respondent bargain with it. In this regard, it has been held
that the "abruptness of a discharge and its timing are
persuasive evidence as to motivation." N.L.R.B. v.
Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert.
denied 355 U.S. 829. It has been further held that "an
employer's tolerance of an employee's shortcomings until
he engages in union activity is an indication of
discriminatory motivation." Virginia Metalcrafters,
Incorporated, 158 NLRB 958, footnote 3.48
Finally, my belief that the assigned reason for Collins'
dismissal was pretextual is strengthened by the conflicting
testimony given by Grant and Thuotte, respectively
Respondent's secretary and dispatcher, as to the basis for
the joint decision to discharge Collins. In N.L.R.B. v.
Radcliffe and Mancke, 211 F. 2d 309, 314 (C.A. 9), cert.
denied 348 U.S. 833, the court aptly stated that "the giving
of ... inconsistent ... reasons by management for the
discharges of employees, properly, may be considered by
the Board ... in determining the real motive which
actuated the discharges." To the same effect see
International Furniture Company, 98 NLRB 674, enfd.
199 F.2d 648 (C.A. 5).
Accordingly, I conclude that by discharging Collins,
Respondent violated Section 8(a)(3) and (1) of the Act.
15 Texas Industries, Inc, 156 NLRB 423, 426
16 It will be remembered , in this regard , that exclusive of two
office clerks, Respondent's entire complement consisted of 15
employees In Wiese Plow Welding Co , Inc, 123 NLRB 616, 618,
on which I place considerable reliance for my finding of
"company knowledge " the number of employees involved was
"approximately 13." In other cases in which the Board made a
similar finding based in part on the fact that the plant in question
was small, the total number of employees ranged from 9 to 130
See, e g., New French Benzol Cleaners and Laundry, Inc , 139
NLRB 1176, 1179, 1190 (9 employees), Allied Distributing
Corporation, 130 NLRB 1348, 1349, 1350, enfd 297 F.2d 679 (C A
10) (13 employees); Tru-Line Metal Products Company, 138 NLRB
964, 966, 972, enfd 324 F 2d 614 (C A 6) (36 employees), Stokely
Foods, Inc , 91 NLRB 1267, 1270, 1277 (75 employees). Malone
Knitting Company, 152 NLRB 643, 644, 647, enfd 358 F 2d 880
(C A 1) (80-90 employees), Quest-Shon Mark Brassiere Co , Inc ,
80 NLRB 1149, 1150, enfd 185 F 2d 285 (C A 2) (130 employees)
911 do not construe the conversation between Grant,
Respondent's secretary, and Padden concerning Collins'
computation errors as constituting an "informal warning" to
Collins, as Respondent contends in its brief First, (.rant did not
tell Padden that disciplinary action would be taken against Collins
if lie persisted in making such errors Second, Padden, like
Collins, was a rank-and-file employee Finally, there is no
evidence to establish that Padden informed Collins of his
conversation with Grant prior to Collins' discharge
4s See also Nitro Super Market, Inc ,161 NLRB 505
299-352 0-70-25
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Contentions and Concluding Findings as to
Respondent 's Alleged Violations of Section 8(a)(1) and (5)
of the Act
The complaint asserts that Respondent violated Section
8(a)(1) and (5) of the Act by refusing to bargain with the
Union , by causing its employees to abandon a lawful
strike, by bargaining directly with its employees, and by
causing its employees to repudiate the Union. Inasmuch as
the latter allegations have a substantial bearing upon the
refusal -to-bargain averment , they will be discussed first.
1. The strike and its abandonment
On September 14, following Respondent's rejection of
the Union's first request for recognition and its discharge
of Collins in violation of Section 8(a)(3) of the Act,
employees who signed cards authorizing their
representation by the Union struck Their purposes in
striking, as I have found, were to compel Respondent to
enter into a collective-bargaining agreement and to obtain
Collins' reinstatement. On the next day, September 15,
the employees terminated their strike and returned to
work.
The complaint alleges that Respondent caused its
employees to abandon their strike and that by doing so it
violated Section 8(a)(1) and (5) of the Act. I do not agree. I
cannot find on the record of this case that the termination
of the strike was induced by any conduct on the
Respondent's part. On the contrary, the evidence
establishes conclusively that the employees, of their own
volition, decided to abandon the strike and that this
decision was not made because of anything done by
Respondent, but because two servicemen in Respondent's
employ refused to honor the picket line established by the
striking employees at Respondent's premises on
September 14.
Accordingly, I conclude that the General Counsel has
not sustained his burden of proving by a preponderance of
the evidence that Respondent violated Section 8(a)(1) and
(5) of the Act by causing its employees to abandon their
strike as alleged in paragraph 15 in the complaint I will,
therefore, recommend that this paragraph and all relating
paragraphs of the complaint be dismissed insofar as they
have reference to Respondent's causing the abandonment
of the strike.
2. Respondent's direct dealing with its employees and
their repudiation of the Union
The General Counsel contends that Respondent
violated Seection 8(a)(1) and (5) of the Act in bypassing
Union and bargaining directly with its employees following
their return to work after their strike and by causing them
to repudiate the Union. Although Respondent denies this,
it argues by way of avoidance that even if it did commit an
unfair labor practice by bargaining directly with its
employees that violation was remedied by Respondent's
refusal to meet further with its employees and the
immediate notice to this effect which it gave to its
employees. Insofar as the repudiation of the Union is
concerned Respondent asserts that this was not
,9 As the Supreme Court stated in this regard , " the relief which
the statute empowers the Board to grant is to be adapted to the
situation which calls for redress ." N L R B v Mackay Radio &
occasioned by its inducement, but, rather, by the
employees' disenchantment with the Union.
Briefly, the facts in connection with this phase of the
case, as I have found them, are that upon the termination
of their short-lived strike Respondent and the employees
who had struck engaged in a mutual "gripe" session.
Among the complaints aired by the employees was their
concern over the absence of a pension plan and a posted
pay scale. They also expressed dissatisfaction with some
aspects of their sick and holiday pay
Although the meeting continued for a substantial period
of time, neither Respondent nor the employees appointed
a spokesman for their respective groups, and the
conference was, in general, informed. No proposals were
presented by either side and no agreements were made as
to matters which would normally be found in a collective-
bargaining contract. In connection with the employees'
complaints over the lack of a pension plan, however,
Respondent indicated that it had already started
negotiations in that regard with several insurance
companies.
At the conclusion of the conference Respondent agreed
to meet again with the employees during the following
week. The employees then went into Respondent's shop to
prepare proposals for submission to Respondent before
their next meeting.
Immediately after the meeting Respondent's president
was advised by its lawyer not to meet further with the
employees during the pendency of the Union's
representation claim. Respondent's president promptly
informed its employees that it would follow its lawyer's
advice.
I agree with the General Counsel that Respondent's
discussion with its employees which embraced such
matters as sick and holiday pay, pensions, and posted
wage scales constituted individual bargaining in
derogation of their right to be represented by the Union
and, hence, a violation of the Act. I am convinced,
however, that a remedial order is not required insofar as
this aspect of the case is concerned. I am persuaded in this
regard by Respondent's argument that unfair labor
practices committed by Respondent in dealing directly
with its employees were cured by its immediate
discontinuance upon being advised to do so by its lawyer
and by its prompt notice to the employees that it would not
meet further with them. A Board order could not
accomplish more.49
A different result is required, however, by the sequel to
Respondent's direct bargaining with its employees; i.e.,
their repudiation of the Union. Respondent contends that
it did not contribute in any way to their employees'
withdrawal from the Union. This argument, however, is
not well taken, for in the field of labor management
relations law no less than in other areas of jurisprudence
"a man is held to intend the foreseeable consequences of
his conduct,""' here, the repudiation of the Union by the
employees.
Respondent's conduct which resulted in the "forseeable
consequence" of the Union's repudiation started with its
meeting with its employees, at the outset of which they
stated that they wanted to discuss their "gripes." To this
Telegraph Co , 304 U S 333,348
so The Radio Officers' Union v N L R B, 347 U S 17,45
PEMBEK OIL CORP.
Respondent's president replied that perhaps "we could
straighten something out by having this get together." As
the meeting progressed Respondent's representatives
indicated that a pension plan, the absence of which
appeared to be of greatest concern to the employees,
might be in the offing. Although no agreements were
actually reached, hope for employee benefits through
further conferences was held out by Respondent's promise
to meet again with its employees the following week.
After having thus instilled in its employees the
expectation that matters might indeed be straightened out,
the employees were informed by Respondent that there
would be no further meetings because, in the words of its
secretary "you have signed cards and you are
automatically represented by the Union.
It needs no great imagination to foresee that
Respondent's entire course of conduct in this regard,
including not only the manner in which its individual
bargaining with its employees was terminated, but also the
violative bargaining itself, and the hope which it
engendered for future benefits would result in the
employees' rescission of the authority of the Union to act
as their bargaining representative. This action was taken
by them immediately and formalized in writing some 3
weeks later.
In sum, Respondent by bargaining directly with its
employees started the chain of events which foreseeably
resulted in their repudiation of the Union. Respondent
must , therefore, be held responsible for this predictable
consequence of its conduct. Accordingly, I conclude that
by causing its employees to repudiate the Union,
Respondent violated Section 8(a)(1) of the Act.
Before determining whether, as alleged in the
complaint , Respondent violated Section 8(a)(5) of the Act
by refusing to bargain with the Union, preliminary findings
must be made concerning the appropriateness of the unit
for which the Union sought recognition" and as to whether
the Union represented a majority of the employees in that
unit.52
3. The appropriate unit
The complaint, as amended at the trial, asserts that "all
employees employed by Respondent ... including fuel
truck drivers, installation men, servicemen, soot men, but
excluding salesmen, office clerical employees and
supervisors"5 i constitute a unit appropriate for collective
bargaining.
It is well established that in determining the
appropriateness of a unit for collective-bargaining
purposes, the prime consideration is the community of
interest shared by the employees involved. E. H. Koester
Bakery Co., Inc., 136 NLRB 1006,1009. As further pointed
out in Koester, the factors "which tend to show the
presence or absence of this community of interest" are
varied and include such things as the employees'
"common experience, duties, wages, hours, and other
working conditions." All Koester teaches must be taken
51 Joslin Dry Goods Company, 118 NLRB 555, 557, 558
52 H W. Elson Bottling Company, 155 NLRB 714, 715-716
"Although, as I have found , Respondent employs a
maintenance man, he is neither specifically included nor
excluded in the unit description appearing in the amended
complaint However , in view of the inclusive reference to "all
employees ," the absence of the term "maintenance man" from
the exclusions , and the seeming understanding of the parties that
the maintenance man was intended to be included by the General
375
into consideration and evaluated.
I have found that the employees in question are hourly
rated. Each has a timecard. All except the maintenance
man wear the same work uniform. All benefit from an
insurance program maintained by Respondent and enjoy
the same vacation and sick leave privileges. All work in
Respondent's warehouse, except when they are
performing duties away from Respondent's premises.
Finally, insofar as "common experience ... and working
conditions" are concerned, all the employees involved
share the same restroom and other facilities in the shop.
The main function of the drivers is, as I have found, to
deliver fuel oil to Respondent's customers. I have also
found, however, that for a substantial portion of their time,
generally in the summer when there are few deliveries to
be made, the drivers assist the servicemen in their work.
Supervision is also a factor to be taken into account in
determining whether there is a community of interest
among the employees concerned. L. D. Caulk Company,
158 NLRB 423; Federal Electric Corporation, 157 NLRB
1130. In this regard, there is, as has been found, a
considerable amount of common and overlapping direction
of the work performed by the employees in question. Thus,
Respondent's president oversees its "whole operation."
Its sales engineer "directs the activities" of the industrial
servicemen, and, with assistance from Respondent's
secretary, assigns work to all servicemen. The drivers,
domestic servicemen, and maintenance man are normally
supervised by Respondent's dispatcher and the sootmen
by its secretary, but from time to time Respondent's sales
engineer also exercises supervision over the sootmen,
drivers, and maintenance man. Organizationally, although
the dispatcher usually "reports" to Respondent's
president, he does so, on occasion, to its secretary.
An evaluation of the foregoing factors in my opinion
"tends to show the presence ... of [a] community of
interest" among Respondent's servicemen, sootmen,
drivers, and maintenance man sufficient to warrant
their inclusion in a single unit for collective-bargaining
purposes.54 It is Respondent's position, however, as
set forth in its brief, that to include the servicemen
in a unit which also embraces the other employees
in question would be improper because of their special
skills, their "lack of interchangeability with other
employees"75 and the coverage of some of them by
Respondent's contract with the Plumbers Union, which
Respondent submits "is a bar to these proceedings." For
these reasons Respondent argues that a unit consisting
only of servicemen, excluding those covered by the
Plumbers Union contract, "would be more appropriate"
than one which also includes other employees.
Considering first Respondent's arguments bottomed
upon the contract, it appears that this agreement covers
only two of Respondent's servicemen. Accordingly, even if
this were a representation proceeding,S° this contract
would not operate as a bar, at least insofar as the
employees not covered by the contract are concerned. Cf.
N. Sumergrade & Sons, 121 NLRB 667, 669-670.
Counsel, the unit description set forth in the amended complaint
will be construed as including the maintenance man
11E H Koester Bakery Co , Inc., 136 NLRB 1006,1009
55 This contention appears to be effectively negatived by the
assistance afforded the serviceman by the drivers, as pointed out
above
55 See Hexton Furniture Company, 111 NLRB 342, 343-344,
which applied contract bar principles to a complaint case alleging
violations of Sec 8(a)(5) of the Act.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor does the contract between Respondent and the
Plumbers Union preclude the placement of the two
covered servicemen in a unit which also includes
Respondent's other employees. The contract is applicable
to the two servicemen in question only for a 6-week period
in each year during which they install oil burners in
buildings under construction. During the rest of the year
they do the same kind of work as Respondent's other
servicemen and are subject to the same working
conditions as all other persons in Respondent's employ.
They are, therefore, dual-function employees. As such,
regardless of the contract, they may be placed in the same
unit with other employees whose interests they share.
Berea Publishing Company, 140 NLRB 516, 519. In
Denver-Colorado Springs-Pueblo Motor Way, 129 NLRB
1184, overruled in other respects by Berea Publishing, the
employee in question was, as are the two servicemen here,
covered by a contract with another union. Although the
Board noted this factor, it was given no weight in
determining the unit placement of the dual-function
employee there under consideration.
While I agree with Respondent that the servicemen
exercise special skills, I do not agree that they should for
this reason be set apart for unit purposes from the other
employees with whom they share common working
conditions and other interests. Cf. Meramec Mining
Company, 134 NLRB 1675, 1676, in which the Board
stated that the unit placement of certain highly skilled
technical employees would be determined upon "an
analysis of their community of interest," taking into
consideration not only their "skills and duties," but also
the other usual factors such as "the presence and absence
of common supervision, the similarity or disparity of
working conditions, the kind of industry, the contact or
interchange with other employees, and the organization of
the plant."
Respondent's final argument, insofar as this phase of
the case is concerned, is that a unit consisting only of
servicemen, excluding those covered by its contract with
the Plumbers Union "would be more appropriate" than
one which also includes other employees. A short, but
effective, answer to this is found in Morand Brothers
Beverage Co., 91 NLRB 409, 418. There the Board aptly
stated that the Act does not require "that the unit for
bargaining be the only appropriate unit, or the ultimate
unit , or the most appropriate unit ; the Act requires only
that the unit be 'appropriate '.1157
Respondent's arguments as to why the servicemen
should not be included in a unit for collective bargaining
which also includes Respondent's other employees being,
in my opinion, without merit. I conclude, in view of the
sufficiency of their community of interest that
Respondent's drivers, servicemen, sootmen, and
maintenance man constitute an appropriate collective-
bargaining unit.
4. The Union ' s majority
Having concluded that a unit consisting of Respondent's
drivers, servicemen , sootmen , and maintenance man is
57 Although Morand Brothers has had a checkered history on
enforcement and on remand , the principle enunciated in the text
does not appear to have been questioned . See Morand Brothers
Beverage Co. v N.L R.B., 190 F.2d 576 (C A. 7), enfg. in part and
remanding 91 NLRB 409, and 204 F.2d 529, enfg 99 NLRB 1448,
cert denied 346 U.S 909; rehearing denied 346 U S 940
appropriate for collective bargaining, it must next be
ascertained whether the Union represented a majority of
the employees in this unit. In this regard, it is
Respondent's contention that the authorization cards on
which the Union's majority claim is based are invalid
because of misrepresentations in their procurement.
There were 15 employees in this unit on September 9
and 14, on both of which dates the Union requested
recognition. To establish the Union's majority the General
Counsel offered 10 cards in evidence. Nine were signed
before September 9, and the 10th was signed on
September 13.
Although contending that each card was obtained by
misrepresentations sufficient to invalidate it, Respondent
refers specifically to four, those signed by Carlson,
Rouleau, Emery, and MacLellan, as being illustrative of
all,58 and urges that these four, at least, be not counted in
determining the Union's majority. If this were done, it
would, of course, result in the Union's representation of
only six employees in the unit , less than a majority.
The cards unequivocally authorized the Union to
"represent" those who signed "for the purposes of
collective bargaining." No other stated purpose appeared
on the cards. "An authenticated signature on an
authorization card [like those signed by the employees
here] is prima facie evidence that it is what it purports to
be-a designation of the Union as the employee's
bargaining representative, unless it is shown that the
employee was induced to sign the card through
beguilement of serious misstatement of fact. "59 this is so,
"irrespective of what the employee thought ... as long as
the solicitor does not make a significant false statement
." South Bay Daily Breeze, 160 NLRB 1850.
Considering the disputed cards in the light of these
principles, I find, insofar as Carlson is concerned, that he
was truthfully and in accordance with the text of the card
told by Collins, who solicited cards on behalf of the Union,
in response to an inquiry, that he would not become a
member of the Union by signing the card and that the
cards would authorize the Union to "talk to the company
on [his] behalf." Collins told Rouleau substantially the
same thing and added a suggestion that Rouleau attend a
union meeting . No statements as to the card's purport
were made to MacLellan. He was merely asked by Galullo,
the Union's business representative, to sign the card, and
he did so.
The impressions harbored by Carlson and MacLellan as
to the significance of the cards were their own and were
not engendered by any statement made by Collins,
Galullo, or any other representative of the Union. Thus,
Carlson testified that it was his "own conclusion" that the
purpose of the card was to indicate the signer' s interest in
"forming a union "; the Union would so notify Respondent;
and then the employees could decide "whether or not
[they] wanted to vote the union in." MacLellan formed a
completely different impression as to the meaning of the
cards based upon, as he testified, " general conversation"
ss See fn. 22 for my conclusion with respect to this.
59 To undercut the validity of an authorization card "which (as
in this case ] plainly designates a union as bargaining agent, the
employer can prevail only with clear evidence of
missrepresentation ." Amalgamated Clothing Workers ofAmenca,
AFL-CIO v. N.L.R B , 371 F.2d 740 (C.A.D C.).
PEMBEK OIL CORP.
among the employees.60 He concluded that employees had
to sign cards as a prerequisite to their talking to "the
Union."
As South Bay Daily Breeze directs, however, I may not
rely on these thoughts as to the meaning of the cards in
determining their validity. I may only consider whether
there is clear evidence that the employees were "induced
to sign ... through beguilement or serious misstatement of
fact." Finding neither present I conclude that there was no
impropriety in the Union's procurement of authorization
cards from Carlson, Rouleau, and MacLellan. They will,
therefore, be counted in determining whether the Union
represented a majority of the employees in the unit.
A different conclusion is required with respect to
Emery's card. By September 7, the day on which Emery
signed his card, only six other employees in the unit had
done so.61 Notwithstanding this, Collins told Emery on
that day that all the other employees had signed cards and
that he was the only one who had not. This
misrepresentation was serious enough to invalidate
Emery's card. Pizza Products Corporation, 153 NLRB
1265, 166, 1271, enfd. as modified in other respects 369
F.2d 431 (C.A. 6). It will, therefore, not be considered in
ascertaining the Union's majority status.
Adding the cards signed by Carlson, Rouleau, and
MacLellan to the six other cards signed by employees in
the unit,6' all of which I find to be valid, the Union
represented eight employees in the unit on September 9,
the date of its first request for bargaining and nine on
September 14, the date on which it again requested
recognition. Inasmuch as there were a total of 15
employees in the unit on those dates, I conclude that the
Union represented a majority on both occasions.
5. Respondent's refusal to bargain with the Union
In justification of its refusal to bargain with the Union,
Respondent makes two basic arguments. The first is that
the unit for which the Union sought recognition is
inappropriate. The second is that in good faith it doubted,
at the time of the bargaining requests, that the Union
represented a majority. Accordingly, Respondent argues
in its brief, it had sufficient reason "to refuse recognition
and to demand that the Board processes be followed to,
first, determine what the appropriate unit was, and,
second, by the use of the Board's election procedures to
determine whether or not the employees in such an
appropriate unit desired to be represented by the Union."
Countering the General Counsel's contention that
Respondent's refusal to recognize and bargain with the
Union was not based upon its foregoing claims but upon its
determination to gain time within which to destroy the
Union's majority status, Respondent also asserts in its
brief "that absolutely no independent 8(a)(1) violations
have been proved by substantial evidence" and that there
"was no flagrant violation of the Act."
60 Although Collins was present when this "general
conversation " took place , MacLellan admitted that Collins did not
say anything which contributed to the establishment of his
impression
611 am including Padden's card in this figure , although it, too,
was signed on September 7.
"These consist of cards signed by Collins, Robert Chiaro,
Thomas Yale, Padden, John Yale, and Parisi
11 Even if Collins ' violative discharge had been Respondent's
377
Respondent's argument concerning the appropriateness
of the unit is without merit. It is well settled that an
employer acts "at its peril" in refusing to bargain on the
ground that the unit in which the Union seeks recognition
is inappropriate if it is concluded, as in this case, that the
unit is appropriate. Tom Thumb Stores, Inc., 123 NLRB
833, 835. See also Hoskins Ready-Mix Concrete, Inc., 161
NLRB 1492.
Respondent's other arguments in defense of its refusal
to bargain with the Union are likewise without merit.
Where an employer in good faith genuinely doubts that a
union seeking recognition represents a majority of the
employees involved he may refuse to recognize the union
until its claim is established by an election. An employer,
however, is not entitled to an election where he engages in
serious unfair labor practices in order "to gain time within
which to undermine the Union's support" and then asserts
a good-faith doubt as to the union's majority. In such a case
the election procedure will be bypassed and the employer
will be required to bargain with the union provided the unit
involved is appropriate and the union in fact represented a
majority of the employees when it requested recognition.
This is the teaching of Joy Silk Mills, Inc., 85 NLRB 1263,
enfd. as modified in other respects 185 F.2d 732
(C.A.D.C.), cert. denied 341 U.S. 914, and of countless
subsequent cases.
The facts of this case, I am convinced, require the
application of the Joy Silk rationale . Respondent's serious
unfair labor practices, including the discharge of Collins in
violation of Section 8(a)(3) and (1), its direct bargaining
with its employees, and its having caused them to
repudiate the Union, in violation of Section 8(a)(1) of the
Act, belie Respondent's professed good-faith doubt as to
the Union's majority." 1, therefore, reject Respondent's
contentions in this regard, and find, in view of
Respondent's serious violations of Section 8(a)(1) and (3) of
the Act, that its refusal to bargain with the Union was in
bad faith, and was designed to gain time in which to
destroy the Union' s status as its employees' collective-
bargaining representative.
Accordingly, having found that the unit for which the
Union requested recognition was appropriate for purposes
of collective bargaining and that the Union represented a
majority of the employees in that unit when it requested
Respondent to bargain with it, I conclude that
Respondent's rejection of those requests and its refusal to
bargain with the Union constituted violations of Section
8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
only unfair labor practice , my conclusion with respect to this
phase of the case would not be different See Dee's of New Jersey,
Inc , 161 NLRB 204, where the Board stated in a related context
that "a discriminatory denial of employment [ is] the kind of
conduct which is most likely to impress upon employees the
disfavor with which the employer regards his employees'
organizing activities " and that, therefore, "a serious view must be
taken" of such a violation
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, my recommended order
will direct Respondent to cease and desist therefrom and
to take such affirmative action as will effectuate the
purposes of the Act. 64 In this connection, as Respondent
has already offered reinstatement to Collins, Respondent
will be required only to make him whole for loss of
earnings he may have suffered by the discrimination
practiced against him. Any backpay found to be due to
Collins shall be computed in accordance with the formula
set forth in F.W. Woolworth Company, 90 NLRB 289, and
shall include interest in the amount and manner provided
for in Isis Plumbing & Heating Co., 138 NLRB 716.
Contending that the strike which took place on
September 14, was an unfair labor practice strike, the
General Counsel urges that the order to be entered herein
provide that the strikers "be made whole for the
consequences of Respondent's actions." While I agree
that the work stoppage in question was an unfair labor
practice strike,''r' there is no evidence that the strikers
were refused reinstatement when they decided to return to
work. Absent this, as is well settled, a "make whole"
remedy, insofar as they are concerned, is unwarranted.
In view of the repudiation of the Union by Respondent's
employees, Respondent urges that the entry of a bargain-
ing order would completely disregard the right of those
employees, as set forth in Section 7 of the Act, to refrain
from collective bargaining. Respondent, however, as I
have found, is responsible for its employees' defection
from the Union. Were Respondent to be permitted to
continue its refusal to bargain with the Union because it
does not now represent a majority of its employees would
be to permit Respondent to profit from its own wrong. As
the Supreme Court stated in Medo Photo Supply
Corporation v. N.L.R.B., 321 U.S. 678, 687, which involved
a situation substantially similar to the one presented here:
Petitioner cannot, as justification for its refusal to
bargain with the Union, set up the defection of union
members which it had induced by unfair labor
practices, even though the result was that the union
no longer had the support of a majority. It cannot
thus, by its own action, disestablish the union as the
bargaining representative of the employees,
previously designated as such of their own free will.
See also, to the same effect, Franks Bros. Company v.
N.L.R.B., 321 U.S. 702, 703-705.
Accordingly, my Recommended Order will contain a
provision requiring Respondent to bargain with the Union.
It will also contain, in view of the nature and extent of the
unfair labor practices engaged in by Respondent, broad
cease-and-desist provisions.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) of the Act.
64 Having concluded that Respondent has already cured the
unfair labor practices involved in its direct bargaining with its
employees, I will not recommend the entry of an order remedying
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By bargaining directly with its employees and by
causing them to repudiate the Union and to rescind the
authority of the Union to represent them for purposes of
collective bargaining, as set forth in section III hereof,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the Act.
4. By discharging Carl Collins because of his
membership in, and activities on behalf of, the Union,
thereby discouraging such conduct, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. All employees employed by Respondent, including
fuel truckdrivers, installation men, servicemen, power
cleaners, also known as sootmen, and maintenance man,
excluding salesmen, office clerical employees and
supervisors as defined in the Act, constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
6. At all times material herein the Union has
represented a majority of the employees in the unit set
forth in Conclusion of Law 5, above.
7. By failing and refusing to recognize and bargain with
the Union as the collective-bargaining representative of
the employees in the unit set forth in Conclusion of Law 5,
above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
8. Respondent did not engage in unfair labor practices
in the manner set forth in those portions of paragraph 15
and related paragraphs of the complaint insofar as those
paragraphs make reference to Respondent's having
caused its employees to abandon a lawful strike.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this case, I hereby issue
the following:
RECOMMENDED ORDER
The Pembek Oil Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Causing or inducing employees to repudiate
International Brotherhood of Temasters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 677, or any other labor organization.
(b) Causing or inducing employees to rescind the
authority of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 677, or any other labor organization, to
represent them for purposes of collective bargaining.
(c) Discouraging membership in International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No. 677, or any other
labor organization, by discriminating against employees in
regard to hire or tenure of employment or any term or
condition of employment.
(d) Failing or refusing to recognize or bargain
collectively concerning rates of pay, wages, hours, or other
terms or conditions of employment with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
this violation See D, 2, supra, for my reasons
85 Mitchell Concrete Products Co , Inc , 137 NLRB 504,506
PEMBEK OIL CORP.
and Helpers of America, Local Union No. 677, as the
exclusive collective-bargaining representative of its
employees in the following appropriate unit
All employees employed by Respondent, including fuel
truckdrivers, installation men, servicemen, power
cleaners, also known as sootmen , and maintenance man,
excluding salesmen, office clerical employees and
supervisors as defined in the Act.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National
Labor Relations Act, as amended, or to refrain from any or
all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment in
conformity with Section 8(a)(3) of the Act.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Make Carl Collins whole for any loss of earnings he
may have suffered by reason of the discrimination
practiced against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(c) Upon request, recognize and bargain with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 677, as the exclusive representative of all employees
in the aforesaid appropriate unit with respect to rates of
pay, wages, hours, or other terms or conditions of
employment and, if an understanding is reached, embody
such understanding in a signed agreement.
(d) Post at its premises copies of the attached notice
marked "Appendix A."66 Copies of said notice, to be
furnished by the Regional Director for Region 1, after
being duly signed by an authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.67
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor
practices not specifically found herein.
66 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
67 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
379
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that.
After a trial in which both sides had the opportunity to
present their evidence it has been found that we violated
the law by committing unfair labor practices and we have
been ordered to post this notice and to keep the promises
that we make in this notice.
WE WILL NOT cause, induce, request, or encourage
you to repudiate or withdraw or resign from
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 677, or any other union.
WE WILL NOT cause, induce , request , or encourage
you to cancel, or seek the return of, any card you may
have signed naming, authorizing , or designating
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 677, or any other union , to act as your collective-
bargaining representative.
WE WILL NOT discourage union activity or
membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union No. 677, or any other union,
by discriminating against you if you choose to engage
in union activity, or if you join International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local Union No. 677,
or any other union.
WE WILL NOT in any other way interfere with,
restrain, or coerce you in the exercise of any rights
guaranteed to you by the Act. In this connection, we
will respect your rights to self-organization , to form,
join, or assist any union, and to bargain collectively
through any union or representative of your choice as
to wages, hours of work, and any other terms or
conditions of employment You also have the right,
which we also will respect, to refrain from doing so.
WE WILL NOT discriminate against any employees
for engaging in union activity or for joining any union
Since it has been found that we did so when we fired
Carl Collins, to whom we have already offered full
reinstatement to his old job, WE WILL pay him for any
loss he suffered because we fired him.
WE WILL, upon request, bargain collectively with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 677, as the exclusive representative of all our
employees in the appropriate unit with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment, and put into
writing and sign any agreement which is reached. The
appropriate unit is:
All persons whom we employ, including fuel
truckdrivers, installation men, servicemen,
power cleaners, also known as sootmen, and
maintenance man, but excluding salesmen, office
clerical employees and supervisors.
All our employees are free to become, remain, or refrain
from becoming or remaining, members of International
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Teamsters, Chauffeurs, Warehousemen This notice must remain posted for 60 consecutive days
and Helpers of America, Local Union No. 677, or any other from the date of posting and must not be altered, defaced,
union. or covered by any other material.
THE PEMBEK OIL If employees have any question concerning this notice
CORPORATION or compliance with its provisions, they may communicate
(Employer) directly with the Board' s Regional Office, 20th Floor, John
F. Kennedy Federal Building, Cambridge and New
Dated By Sudbury Streets, Boston , Massachusetts
02203,
(Representative ) (Title) Telephone 223-3300.