Trading Port, Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1975

219 N.L.R.B. 298 (N.L.R.B. 1975)

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trading Port, Inc. and Local 294, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen,
and Helpers of America . Cases 3-CA-5506 and 3-
RC-5853
July 18, 1975
DECISION AND ORDER
On June 18, 1974, Administrative Law Judge
James V. Constantine issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions to portions of the Decision and state-
ments supporting the exceptions, and the Respon-
dent filed exceptions' to the Decision and a support-
ing brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions, state-
ments , and brief and has decided to affirm the rul-
ings, findings,2 and conclusions of the Administrative
Law Judge and to adopt his recommended Order as
modified herein.
A. Background Facts
The unfair labor practices hereinafter found oc-
curred within the context of the following back-
ground facts: On or about August 23, 1973, employ-
ee James Dillenbeck and two other employees
commenced an organizing campaign in behalf of the
Union at the Respondent's plant and, between Au-
gust 23 and September 4, they and other employees
met with union officials and induced employees to
sign union authorization cards. On September 4, Dil-
lenbeck and Robilatto of the Union met with
Respondent's president, Isadore Tabachneck,
claimed to have 43 signed union authorization cards
in a unit of 49 warehouse employees, and demanded
recognition. Tabachneck declined on the ground that
he preferred to follow Board procedures and file a
petition instead. He filed no petition, however.
On September 8, 39 employees unanimously voted
to strike on the following day ostensibly to obtain
union recognition. Later that day, Robilatto and
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
The Respondent 's request for oral argument is hereby denied , as the re-
cord, in our opinion , adequately presents the issues and arguments of the
parties.
2 We correct the Administrative Law Judge 's inadvertent references to
employee Quigley , rather than employee Savage , by substituting the name
Savage for Quigley wherever it appears in section III. A., para. 45, and in
section III , C., I , para. 8 of his Decision.
some employees met with Respondent's vice presi-
dent, Samuel Tabachneck, and sought to have him
agree to an election conducted by a state mediator.
Samuel Tabachneck refused, saying that he was wor-
ried about the effects of a strike and that if the em-
ployees went on strike he would file a petition with
the Board the following Monday. No such petition
was filed.
The strike began the next day, September 9. The
pickets carried signs stating that the Respondent's
employees were "on strike for better wages and bene-
fits, Local 294, Teamsters." Before, during, and after
the strike the Respondent engaged in the conduct
hereinbelow set forth which we find to be violative of
Section 8(a)(1) of the Act. On September 29, at a
union meeting, the warehouse employees voted to
call off the strike and return to work. That same day,
Samuel Tabachneck told the employees that he
would take back all of the strikers in accord with
their seniority, but he failed to do so, thereby giving
rise to the 8(a)(3) findings which we have made here-
in.
On October 1, the Union filed a petition for Certi-
fication of Representative in Case 3-RC-853. On
December 4, the Petitioner lost the election held pur-
suant thereto by a margin of 25 to 3, and filed objec-
tions to the election which have been consolidated
with the instant proceeding.
B. The 8(a)(1) Violations
The 8(a)(1) conduct presented below will be con-
sidered in three chronological groupings, as follows:
(1) prestrike conduct; (2) conduct during the strike;
and (3) poststrike conduct.
1. Prestrike 8(a)(1) conduct
On or about September 1, before either the
Union's bargaining demand or the strike, the
Respondent's supervisor, Solomon, asked employee
Ira Stockwell what he thought about the Union rep-
resenting him. When Stockwell replied that he want-
ed the Union to represent him, Solomon replied that
he would remember this remark and that whichever
way it went Stockwell could lose his job over it. We
find that Solomon's remarks constitute not only un-
lawful interrogation but also threat of job loss viola-
tive of Section 8(a)(1).
On September 5, Vice President Samuel Tabach-
neck, addressing a meeting of the Respondent's
warehouse and office employees, stated that the em-
ployees were attempting to form a union, that if they
voted to strike they would only hurt the Company
and the office employees, that by such actions the
219 NLRB No. 76
TRADING PORT, INC. 299
Respondent would lose customers who could not be
replaced because the Company might go out of busi-
ness, that all the employees could lose their jobs, and
that the employees could resolve the matter in other
ways; he concluded that they therefore should give it
much thought. Following the meeting , Tabachneck
asked employee Valerio, whom the Administrative
Law Judge credited, to try to influence the employees
to agree with his (Tabachneck's) views, and when
Valerio refused Tabachneck told him that if the em-
ployees voted for a strike "we weren't going to be
friends any more." We agree with the Administrative
Law Judge's finding that Samuel Tabachneck's re-
marks in the September 5 meeting constituted illegal
threats of plant closure and loss of jobs to discourage
union activity in violation of Section 8(a)(1), and that
his later remarks that same day to Valerio constitut-
ed illegal solicitation to discourage union activity in
violation of Section 8(a)(1).
2. The 8(a)(1) conduct during the strike
As noted, the strike continued from September 9
to September 29, 1973. During the strike,
Respondent's president, Isadore Tabachneck, daily
spoke to the strikers, individually and in groups, on
the picket line and at the premises, telling them that
they might as well go home, that they had ruined his
business, that the Company was selling out and put-
ting padlocks on the doors, that he would not hire
the employees back anyway, and that certain of the
employees had no seniority. Some 10 employee wit-
nesses testified to these remarks , and in several in-
stances their testimony was mutually corroborative.
Some of the remarks were directed towards certain
individuals. Thus, Isadore Tabachneck told Valerio
that he would only get back to work over his
(Tabachneck's) dead body. He told employee Gary
Deyss, a credited witness, that he would hire individ-
uals who had never worked for the Respondent be-
fore he would hire Deyss back. He told employee
Stockwell, a credited witness, to look for another job
because he would not have his job back when the
strike ended, and that he (Tabachneck) would close
the warehouse before he'd let a union in. He told
employee Cafaro, a credited witness, that the em-
ployees' return after the strike would be determined
when "a final status" of employees would be ascer-
tained. He told employee Riddick, a credited witness,
that the strikers would be out till Christmas, and that
as a result of the strike reducing its business the Re-
spondent was firing all but 10 of the strikers and
would take back only those 10. Ten strikers returned
to work during the strike.
We find, as did the Administrative Law Judge,
that the above conduct contained flagrant illegal
threats of plant closure and loss of jobs and seniority
in order to discourage union activity, in violation of
Section 8(a)(1) of the Act.'
On September 13, 1973, during the strike, the Re-
spondent sent letters to the strikers, informing them
that if they did not return to work by a certain date
they would be permanently replaced. Whether or not
the threats contained in these letters constituted
8(a)(1) conduct depends on a determination as to
whether or not the strike, initially or subsequently,
was an unfair labor practice strike .4
The only direct testimony as to the initial purpose
of the strike is that of Dillenbeck, who testified that
the strike vote of September 8 was "to obtain union
representation" and that the pickets carried signs en-
titled "on strike for better wages and benefits, Local
294, Teamsters." Dillenbeck's testimony implies both
a recognitional and an economic origin to the strike.
We must view his testimony against the factual situa-
tion which pertained at the plant during this period
of time. As noted above, on September 1 and 5, be-
fore the strike vote, the Respondent engaged in fla-
grant 8(a)(1) conduct against its employees, both in-
dividually and as a group. Immediately following the
strike vote the Respondent for the second time told
union representatives that it would file a petition and
thereafter failed to do so. When we add to these pres-
trike indicators of union animus and evident intent
not to bargain in any circumstances the
Respondent's later daily 8(a)(1) threats during the
strike, we are constrained to conclude that the strike
was essentially for recognition and an unfair labor
practice strike. Thus, by the time of the strike, Re-
spondent had committed (and thereafter continued
to commit) unfair labor practices of such magnitude
and pervasiveness that the possibility of a fair elec-
tion had completely vanished. As we find infra, by
the time of the strike Respondent had forfeited its
right to an election, and was obligated to recognize
and bargain with the Union on the basis of the
Union's clear majority showing. This obligation the
3 We do not find Respondent 's September 20, 1973, letters to its employ-
ees, advising them it would not pay its share of hospitalization insurance
benefits due on September 29, to have been unlawful . Strikers, whether
economic or unfair labor practice strikers , are not entitled to compensation
for the period they are on strike Hence , Respondent was within its rights in
ceasing to pay its share of the premiums. Illinois Bell Telephone Co. 179
NLRB 681 (1969), enfd. 446 F.2d 815 (C.A. 7, 1971) We note that, while
not itself paying its share of the premiums , Respondent nonetheless , made it
possible for the strikers to pay their shares directly. Though we find , infra,
that Respondent was by this time under an obligation to bargain with the
Union, the nonpayment of benefits to strikers during their period of striking
is not a matter about which a company has an obligation to bargain , hence,
we find no violation of Sec 8(a)(5) in this respect.
N L.R B. v. King Radio Corporation, Inc, 416 F.2d 569 (C A. 10, 1969),
Monahan Ford Corporation of Flushing, 157 NLRB 1034, 1045 (1966), and
cases cited therein
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent did not meet . The strike for recognition
was prompted by Respondent's unlawful refusal to
bargain . It was virtually impossible to resolve the re-
lated economic demands of the employees because of
what, by the time of the strike , had become an un-
lawful refusal by the Employer even to recognize the
Union . If Respondent 's unlawful conduct did not
solely cause the strike , it at least prolonged and ag-
gravated it. Hence , we find the strike to have been an
unfair labor practice strike 5 and that the letters of
September 13 and 20, threatening to replace employ-
ees we have found to have been unfair labor practice
strikers, contained coercive threats violative of Sec-
tion 8 (a)(1).
3. Poststrike 8(a)(1) activity
On October 8, after the strike, Isadore Tabachneck
told employee John Robinson, who had signed a
union card before the strike and picketed almost dai-
ly during the strike, that he had gone about the strike
the wrong way, that he was pretty far down on the
seniority list, that the employees would be voting for
their job rather than for the Union, and that he
would hire Robinson if the latter could induce those
from the bottom of the list to come to work. We find,
as did the Administrative Law Judge, that this con-
duct constitutes an illegal solicitation to discourage
union activity, in violation of Section 8(a)(1).
Also on or about October 8, Avrum Tabachneck,
the Respondent's treasurer and personnel director,
asked employee Charles Ballou how the other men
would vote in the election. Brunelle, then the
Respondent's warehouse manager and at that time
an admitted supervisor, also asked Ballou if they
could settle the matter without the Union, with their
own grievance committee and steward. On Ballou's
credited testimony, we find that the above conversa-
tions constitute illegal interrogation and solicitation
of employees to deal directly with Respondent rather
than through the Union and/or to form a company
union, both in violation of Section 8(a)(1).
On or about October 15, Avrum Tabachneck
asked employee Glenn Passino how he was going to
vote. In the same conversation, Tabachneck told Pas-
sino that he would give priority on recall to those
strikers who did not stay out the full 3 weeks of the
strike. Based on Passino's credited testimony, we
agree with the Administrative Law Judge that Avrum
Tabachneck's remarks in this conversation constitut-
ed coercive interrogation and a threat of reprisal
against those who continued to strike, both in viola-
s Ploof Transfer Company, Inc., 201 NLRB 828, 830 ( 1973), enfd. 485 F.2d
686 (C.A 5, 1973 ); Billups Western Petroleum Company, 169 NLRB 964
( 1968), enfd . 416 F. 2d 1333 (C.A. 5, 1969).
tion of Section 8(a)(1).
On October 21, Avrum Tabachneck told Robinson
that he, Tabachneck, was 100-percent sure of the
election, that Robinson was among five employees
whom Tabachneck would like to have report to work
the following Monday, that Dillenbeck was a two-
time loser as he had previously tried to start a union
with the police, and that Tabachneck at one time
thought Robinson was part of the initial movement
of getting the Union into the warehouse. Robinson
returned to work the following Monday. We find, in
accord with the Administrative Law Judge, that Av-
rum Tabachneck's remarks relative to Robinson
were violative of Section 8(a)(1), inasmuch as they
contained a threat not to rehire him as a reprisal for
this union activity.
On or about November 15, Avrum Tabachneck
asked Ballou if he was still strong for the Union, if he
was still going to vote for the Union, and why he was
going to vote for the Union; also, as to how the men
on strike were going to vote. Tabachneck also said to
Ballou: "If you can find a way not to come to the
election, I'll keep you in mind." We agree with the
Administrative Law Judge that these statements by
Avrum Tabachneck constituted a coercive inquiry
and a promise of benefit, both violative of Section
8(a)(1).
C. The Bargaining Order
The Administrative Law Judge found, and we
agree, that as of September 4, 1973, the Union had
valid authorization cards signed by 41 of the
Respondent's 49 employees and that, on that date,
the Union made a lawful demand for recognition
upon the Respondent which the Respondent de-
clined. The Administrative Law Judge further found,
and we agree, that the nature and pervasiveness of
the Respondent's unfair labor practices, as described
above, have made the holding of a fair election im-
possible and that a bargaining order is warranted to
best protect the employees' rights. We also agree with
the Administrative Law Judge's conclusions, for the
reasons stated by him, that the election held on De-
cember 4, 1973, be set aside and that the Respondent
be ordered to recognize and bargain, upon request,
with the union.
In ordering the Respondent to recognize and bar-
gain upon request with the Union, the Administra-
tive Law Judge, relying on the Supreme Court's deci-
sion in Gissel Packing Co., 6 found that the
Respondent violated Section 8(a)(5) of the Act by
refusing to recognize the Union under the above cir-
cumstances. In Steel-Fab, Inc., 212 NLRB 363
6 N.L.R B v. Gissel Packing Co., Inc., 395 U.S. 575 ( 1969).
TRADING PORT, INC. 301
(1974), which postdated the Administrative Law
Judge's Decision, the majority of the Board held, in-
ter alia, that it was unnecessary to find a violation of
Section 8(a)(5) of the Act in fashioning a bargaining
order remedy for an employer's 8(a)(1) violations.
We have carefully considered and reexamined the
policies and principles set forth in our decision in
Steel-Fab and the Supreme Court's decision in Gissel
and, while there may be certain truths to the ap-
proaches each takes to the issuance of and legal basis
for a bargaining order, we are now of the opinion
that the correct approach lies somewhere in between.
It has become increasingly evident to us that one
effect of the majority's holding in Steel-Fab, supra,
was to make our bargaining orders, viewed as purely
remedial, effective only from the date of the Board's
decision . In some instances , this left unremedied an
employer's unilateral changes in working conditions
made after a union had established its majority sta-
tus. See, e.g., Elm Hill Meats of Owensboro, Inc., 213
NLRB No. 100 (1974). This led to the unwanted re-
sult that an employer, by committing serious unfair
labor practices, could delay the holding of an elec-
tion indefinitely (since a fair one could no longer be
held), and insure himself a substantial period of time
until the Board issued a remedial bargaining order,
during which period he would not have to deal with a
union. Since the events which "triggered" the bar-
gaining duty occurred much earlier, i.e., at the time
of the unfair labor practices, and since the employees
had earlier expressed their desire for union represen-
tation, the Board's prospective bargaining order fell
short of reinstating the situation as it would have
been had Respondent obeyed the law and allowed a
fair election to proceed.
We find that an employer's obligation under a bar-
gaining order remedy should commence as of the
time the employer has embarked on a clear course of
unlawful conduct or has engaged in sufficient unfair
labor practices to undermine the union's majority
status. Such a position eliminates the possible ill ef-
fects of dating a bargaining order as of the issuance
of the Board's decision, which has resulted in un-
remedied unfair labor practices, while at the same
time assuring, as the Supreme Court stressed in Gis-
sel, that bargaining orders, by remedying all of an
employer's unfair labor practices, will "re-establish
the conditions as they existed before the employer's
unlawful campaign" and not place a union in a dis-
advantaged position.' Moreover, it seems to accord
' 395 U.S. at 612 . This same concern for the preservation of a union's
position as it existed prior to the dissipation of its majority status by an
employer's unfair labor practices was expressed by the Second Circuit Court
of Appeals in Seeler v. The Trading Port, Inc., 89 LRRM 2513, 2515, 77 LC
1 10,900 (May 27, 1975), the injunction proceeding in this very case.
most closely with what actually happened. An em-
ployer, as the Supreme Court has held, has a right to
an election so long as he does not fatally impede the
election process .8 Once he has so impeded the pro-
cess , he has forfeited his right to a Board election and
must bargain with the union on the basis of other
clear indications of employees' desires. It is at that
point, we believe, the employer's unlawful refusal to
bargain has taken place.
In the instant case , the Respondent's unfair labor
practices commenced as soon as it learned of union
activity among its employees. This unlawful course
of conduct, which touched all of the Employer's em-
ployees at one time or another, began on the heels of
the Union's recognition demand and continued una-
bated throughout the strike and up to the time of the
election. An examination of the Employer's miscon-
duct indicates clearly that it was intended to, and did
in fact, dissipate the Union's overwhelming majority
status among the Employer's employees.
Accordingly, we find that the Employer embarked
on a clear course of unlawful conduct which may
reasonably be deemed to have undermined the
Union's majority status and to have prevented the
holding of a fair election as of September 1, when the
Employer committed its initial violation of Section
8(a)(1) of the Act. However, inasmuch as the Union's
recognition demand was not made until September 4,
and inasmuch as all of the Employer's unfair labor
practices are otherwise individually remedied by our
adoption of the Administrative Law Judge's recom-
mended Order, we conclude that the Employer
should be required to recognize and bargain, upon
request, with the Union as of September 4.
Our main concern in granting bargaining orders
has been, and is, to correct and give redress for an
employer's misconduct and to protect the employees
from the effects thereof. To accomplish that result,
our policy is, and has been, to provide a full and
complete remedy for the unfair labor practices com-
mitted and on which the bargaining order is predicat-
ed. In the instant case, the Employer has engaged in
misconduct, as described above, which violated not
only Section 8(a)(1) and (3) of the Act but Section
8(a)(5) of the Act as well. In view of the nature of all
of the Employer's unfair labor practices, we find that
the Employer violated Section 8(a)(5) of the Act by
refusing to recognize and bargain with the Union as
the majority representative of its employees while
coterminously engaging in conduct which under-
mined the Union's majority status and prevented the
holding of a fair election.
8 Linden Lumber Division , Summer & Co v N L R.B., 419 U S 301 ( 1974).
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Independent 8(a)(5) Violations
Following the demand for recognition, the Re-
spondent engaged in the following conduct: (1) uni-
laterally eliminating certain jobs in November 1973
without consultation with the Union; and (2) encour-
aging an employee to form an independent employee
grievance committee to deal directly with the Re-
spondent rather than through the Union. We find, in
agreement with the Administrative Law Judge, that
these actions constitute separate violations of Section
8(a)(5) of the Act.
E. The Election
We agree with the Administrative Law Judge that
the many serious violations herein found rendered
the holding of a fair election unlikely or in fact un-
dermined the Union's majority, and we therefore
adopt his recommendations that the election in Case
3-RC-5853 be set aside, that Case 3-RC-5853 be
dismissed, and that a collective-bargaining order is-
sue.
AMENDED CONCLUSIONS OF LAW
In accord with our above findings, we adopt the
Administrative Law Judge's Conclusions of Law,
with the following modifications:
1. Substitute the following for Conclusion of Law
3(c):
"(c) Promising benefits to employees if they re-
turned to work before the strike terminated."
2. Substitute the following for Conclusion of Law
3(d):
"(d) Asking employees if the strike could be set-
tled without the Union."
3. Substitute the following for Conclusion of Law
4:
"4. By discriminating in regard to the tenure of
employment of those mentioned in Schedules A, B,
and C of the Complaint, Respondent has engaged in
unfair labor practices prohibited by Section 8(a)(3)
and (1) of the Act."
4. In Conclusion 7(a), after the word "Refusing"
insert the words "since September 4, 1973,".
5. Insert the following as Conclusion of Law 7(d):
"(d) Unilaterally eliminating certain employees
jobs without first bargaining thereon with Local
294."
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Trad-
ing Port, Inc., Albany, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order as so modified:
1. Substitute the following for paragraph 1(f):
"(f) Promising economic benefits to employees if
they return to work before their strike ends."
2. Insert the following as paragraph 1(m) and re-
letter the subsequent paragraph accordingly:
"(m) Unilaterally eliminating employees' jobs
without first bargaining with Local 294."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election in Case
3-RC-5853 be, and the same hereby is, set aside, and
that Case 3-RC-5853 be dismissed.
MEMBER FANNING, concurring:
I concur in the majority's decision, affirming the
Administrative Law Judge's findings and conclusion
that the Respondent violated Section 8(a)(1), (3), and
(5) of the Act.
In adopting the Administrative Law Judge's find-
ing that Respondent violated Section 8(a)(5) of the
Act, I rely upon the Supreme Court's decision in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969). As I indicated in my dissenting opinion in
Steel-Fab, Inc., 212 NLRB 363 (1974), and subse-
quent cases, I interpret the Gissel case to mean that a
union may establish its exclusive representative sta-
tus through the use of authorization cards where, as
here, an employer makes the holding of a fair elec-
tion improbable as a consequence of its unfair labor
practices.
MEMBER KENNEDY, dissenting:
I adhere to the sound principles enunciated in the
Steel-Fab decision. I dissent from the abandonment
of the Steel-Fab precedent. I believe that a bargain-
ing order is a proper remedy for the unfair labor
practices committed by Respondent. I would not
give retroactive effect to that bargaining order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ORDER
Pursuant to Section 10(c) of the National Labor
We hereby notify our employees that:
WE WILL NOT discourage membership in Local
TRADING PORT, INC. 303
294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by
discharging or laying off any of our employees
or in any other manner discriminating against
them in regard to their tenure of employment or
any term or condition of employment.
WE WILL NOT refuse to recognize or bargain
with said Local 294 as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed below.
WE WILL NOT encourage employees to form an
employee grievance committee to deal directly
with us rather than through said Local 294.
WE WILL NOT cease paying our share of the
medical insurance premiums of our warehouse
employees without first bargaining thereon with
said Local 294.
WE WILL NOT threaten to hire permanent re-
placements for employees engaged in an unfair
labor practice strike.
WE WILL NOT promise economic benefits to
employees if they return to work before any
strike they are engaged in ends.
WE WILL NOT threaten to close our warehouse
as a reprisal against a strike and WE WILL NOT
refuse to take back unfair labor practice strikers
when such strike ends.
WE WILL NOT request employees to influence
other employees to agree with our opposition to
a union in our warehouse.
WE WILL NOT ask employees how they will
vote in an N.L.R.B. election.
WE WILL NOT promise employees to take them
back out of seniority if they can induce other
employees with low seniority to return to work.
WE WILL NOT threaten to close our warehouse
or to take other reprisals if our employees
choose a union to represent them.
WE WILL NOT coercively interrogate employees
concerning their and other employees' union
membership, activities, and desires.
WE WILL NOT unilaterally eliminate employees'
jobs without first bargaining thereon with Local
294.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7
of the National Labor Relations Act.
WE WILL, upon request, bargain collectively
with said Local 294 as the exclusive bargaining
representative of all the employees in tire- bar-
gaining unit described below with respect to
rates of pay, wages, hours of employment, and
other conditions of employment, and, if an un-
derstanding is reached, embody such under-
standing in a written, signed agreement. The
bargaining unit is:
All warehousemen and driver employees em-
ployed at our warehouse located at North
Manning Boulevard and Prospect Avenue,
Albany, New York, excluding all office cleri-
cal employees, professional employees,
guards, and supervisors as defined in the Na-
tional Labor Relations Act.
WE WILL offer each of the employees named
below immediate and full reinstatement to his
former position or, if such position no longer
exists, to a substantially equivalent one, without
prejudice to the seniority and other rights and
privileges enjoyed by each, and make each
whole for any loss of pay he may have suffered
by reason of his discharge or layoff, or both,
with interest at the rate of 6 percent per annum.
Thomas Broderick John D. Cafaro
Warren Deitz Gary Deyss
James Dillenbeck Donald Engel
James Houck Richard McCoy
Thomas Merwitz Richard O'Toole
Glenn Passino Donald Peasley, Jr.
John Quigley Fowler Riddick
Robert Robinson William Savage
Michael Scanlon James W. Sim, Jr.
Ira Stockwell Richard Terry
Charles Ballou Raymond Valerio
WE WILL make whole each of the following
employees for any loss of pay he may have suf-
fered by reason of his being discriminated
against, with interest at the rate of 6 percent per
annum.
John Biermk Robert Bishop
Frank Houck, Jr. Donald Johnson
John Robinson
All our employees are free to become, remain, or
refuse to become or remain, members of said Local
294, or any other labor organization.
TRADING PORT, INC.
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
consolidated case , consisting of an unfair labor practice
case and a representation case , has been instituted under
the National Labor Relations Act, herein called the Act.
(29 U.S.C. 150, et seq.) In the unfair labor practice pro-
ceeding, Case 3-CA-5506, a charge was filed on December
10, 1973, against The Trading Port, Inc., herein called the-
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent or the Employer, by Local 294 of the Team-
sters , herein called Local 294 or the Union. Upon such
charge the General Counsel of the National Labor Rela-
tions Board, herein called the Board, by the Regional Di-
rector of Region 3 (Buffalo, New York), issued a complaint
on January 8, 1974, and amended on January 25, February
15, 1974, and at the trial, in substance alleging that Re-
spondent committed unfair labor practices contravening
8(a)(1), (3), and (5), and affecting commerce as defined in
Section 2(6) and (7), of the Act. Respondent has answered
admitting some facts but denying that it committed any
unfair labor practices.
In the representation case (3-RC-5853), the Union, on
October 1, 1973, filed with the Board a petition to be certi-
fied as the bargaining representative of the Employer's em-
ployees in a specified unit. After the election held on De-
cember 4, 1973, the Union on December 6, 1973,
seasonably filed objections to conduct affecting the results
of the election. On January 8, 1974, the Regional Director
directed a hearing on the issues raised by six of said objec-
tions before an Administrative Law Judge and a decision
thereon by said Administrative Law Judge. On said Janu-
ary 8, the Regional Director further ordered that the hear-
ing on the above unfair labor practice case be consolidated
with the hearing on said objections; and he also ordered
that after said Administrative Law Judge has issued his
decision that the representation case be transferred to and
continued before the Board.
Pursuant to due notice this consolidated case came on to
be heard, and was tried before me, at Albany, New York,
on March 5, 6, 7, 19, 20, and 21, 1974. All parties were
represented at and participated in the trial, and had full
opportunity to adduce evidence, examine and cross-exam-
ine witnesses , file briefs , and present oral argument . Briefs
have been received from all parties except the Union. The
General Counsel's motion to correct the transcript, and
Respondent's motion to correct the transcript, each is here-
by granted. The General Counsel's motion to strike
Respondent's reply brief is hereby denied.
In the unfair labor practice case the issues are:
1. Whether Respondent engaged in various acts which
interfered with, restrained, or coerced employees in viola-
tion of Section 8(a)(1) of the Act.
2. Whether employees of Respondent engaged in a
strike, and, if so, whether said strike was caused or pro-
longed by Respondent's unfair labor practices.
3. Whether said strikers made an unconditional offer to
return to work, and, if so, whether Respondent lawfully
refused and failed to reinstate them.
4. Whether Respondent unlawfully ceased paying its
part of the medical insurance premiums of its employees
without bargaining thereon with the Union.
5. Whether Respondent discriminatorily laid off, or dis-
charged, or both, certain employees because of their union
activity or other protected activity.
6. Whether Respondent has unlawfully refused to recog-
nize and bargain with the Union in an appropriate unit.
In the representation case the issues are:
1. Whether Respondent made promises of benefit and
solicited grievances from employees to discourage support
for the Union.
2. Whether Respondent laid off and terminated employ-
ees because of their union activity.
3. Whether Respondent interrogated employees con-
cerning their loyalty to the Union.
4. Whether Respondent interrogated employees as to
how they would cast their ballots.
5. Whether Respondent made promises of benefits to
employees to cause them to fail to vote in the election.
6. Whether Respondent threatened employees with re-
prisals if the Union won the election.
Upon the entire record in this case, and from my obser-
vation of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I. AS TO JURISDICTION
Respondent, a New York corporation, is engaged at Al-
bany, New York, in the wholesale and retail grocery busi-
ness . Annually it sells and distributes products valued in
excess of $500,000, and receives goods valued in excess of
$50,000 directly from points outside the State of New
York. I find that Respondent is an employer within the
meaning of Section Section 2(2), and is engaged in com-
merce as defined in Section 2(6) and (7), of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been,
a labor organization within the purview of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
James Dillenbeck started to work for Respondent in
January 1962, and ended up as its head railroad receiver at
a wage of $4.10 an hour. A summary of his testimony fol-
lows:
For 2 years prior to 1973 employees were granted 5 days
of paid sick leave annually. However, towards the close of
1972 Robert Solomon, Respondent's warehouse manager,
admittedly a supervisor under the Act, told them that "if
we did not use the 5 days we would lose them and would
not be paid for them." Because some employees "took sick
time off at the end of" 1972, Sam Tabachneck,
Respondent's vice president and an admitted supervisor
under the Act, met with the employees about February
1973. Sam told them that because Respondent could not
afford to give both the paid sick leave and pay for part of
their hospitalization he was offering them the option of
retaining the 5-day paid sick leave or the partly paid hospi-
talization premium. Respondent had been paying almost
all of the premium on Blue Cross-Blue Shield. The employ-
ees thereupon "chose to drop the sick leave." At this time
there was an increase in the insurance premium, and Re-
spondent paid such increase.
About August 23, 1973, Dillenbeck met with two other
employees. As a result they began the next day to ask other
TRADING PORT, INC. 305
employees as to their feelings about a union. The employ-
ees "decided" they "wanted Teamsters Local 294 to repre-
sent" them. On the evening of August 29 Dillenbeck and
19 other employees met with officials of Local 294 at its
hall. At said meeting all the employees present signed
"cards to request representation." (See G.C. Exh. 2(a)
through 2(s).)
Dillenbeck also took some blank cards with him from
said meeting. A few days later he succeeded in inducing, or
was present at the solicitation of, more employees to sign
such cards. (See G.C. Exh. 3(a) through 3(h).) Besides Dil-
lenbeck other employees solicited and obtained additional
signatures to identical blank cards. All signed cards were
turned over to Dillenbeck and employee Houck, who in
turn gave them to the Union at its office.
About September 4 Dillenbeck telephoned to President
Nick Robilatto of Local 294 to come to Respondent's
warehouse. Then Robilatto and Dillenbeck met with
Respondent's president, Isadore Tabachneck. Claiming he
had 43 signed cards, Robilatto then asked for recognition.
At the time Respondent had 49 employees in its ware-
house. But Tabachneck refused on the ground "that he had
a right to call for an election with the . . . Board" and
would "petition for this election." But he never filed an
RM petition.
On September 5 Dillenbeck attended a meeting of ware-
house and office employees addressed by Respondent's
vice president, Samuel Tabachneck. After stating that the
warehouse employees were attempting to form a union, Ta-
bachneck mentioned that he felt they were "only hurting
the company by doing so," that they were also hurting the
"innocent" office employees; and that by such "actions"
by the warehouse employees Respondent would lose cus-
tomers "who could not be replaced because possibly the
company would go out of business, all of [the employees]
could lose [their] jobs." Continuing, he expressed the
thought that the employees "could resolve it in other ways,
and would [they] please give it much thought in that re-
spect...."
That afternoon Walter Snyder, Respondent's office
manager , told Dillenbeck that "what you're doing is going
to hurt you and . . . me and . . . the warehouse. I think I
can talk to Sam about returning sick pay, possibly giving
you a raise, possibly getting you extended vacation bene-
fits" provided Dillenbeck "forgot the Union." Dillenbeck
replied that he "would not accept any promises of bene-
fits" and that he preferred to have a union. Finally, Snyder
offered Dillenbeck the position of "a representative .. .
for the employees . . . a sort of company union type of
thing."
About September 6 William Brunelle , Respondent's
buyer and warehouse manager , made "the same offers"
and engaged in the same "conversation basically" as Sny-
der did to Dillenbeck the previous day and set forth in the
preceding paragraph, on condition that Dillenbeck "forgot
about the Union." Dillenbeck rejected these offers from
Brunelle, stating that he "wanted union representation."
Dillenbeck went to a meeting at the union hall on Sep-
tember 8, at which 39 employees of Respondent were pre-
sent. They voted unanimously to strike the next day "to
obtain union representation." Later that day Robilatto of
the Union, Dillenbeck, and some other employees met with
Sam Tabachneck and some other officials of the Company.
Robilatto requested Respondent to agree to a "fast elec-
tion" to be conducted by a state mediator, but Tabachneck
still insisted on an NLRB election. When Robilatto men-
tioned a strike as one of the "other alternatives," Tabach-
neck observed that a strike would harm Respondent very
much.
The strike started on September 9. Pickets bore signs
stating that Respondent's employees were "on strike for
better wages and benefits, Local 294, Teamsters." The
strike lasted for 3 weeks. During the strike about 10 or II
employees returned to work.
One of the pickets was Dillenbeck. According to him,
Isadore Tabachneck, Respondent's president, daily told
the pickets that they had "killed his business, and [they]
might as well go home. He was going to Florida to live. He
was going to put padlocks on the warehouse. [They] would
never come back to work again...." He told Dillenbeck
on some of these occasions that the latter had no seniority,
that Dillenbeck was killing Respondent' s business, for
which the "other men hated" Dillenbeck "for what [he] was
doing to them"; and that therefore Dillenbeck "might as
well go home." On the last day of the strike Isadore Ta-
bachneck told Respondent's truckdriver, Stockwell, a pick-
et, that there were no jobs left and that the former was
going to padlock the warehouse.
On Saturday, September 29, Dillenbeck went to a meet-
ing at the union hall, at which it was voted to call off the
strike and return to work. Then Robilatto met with Sam
Tabachneck, Respondent's vice president, and other com-
pany officials. Among other employees, Dillenbeck attend-
ed this meeting. Robilatto informed Respondent that the
strike had been called off if the men were taken back "ac-
cording to . . . seniority." Respondent claimed it had no
seniority list, but agreed to take them back "if there was
work . . . according to seniority" on the following Monday
morning , October 1. I credit Dillenbeck as to his version of
said meeting.
At 7 a.m. on October 1 Dillenbeck and about 24 or 25
others reported to work. Isadore Tabachneck instructed
the group to enter in the warehouse in groups of four and
speak to Avrum Tabachneck. The latter is Respondent's
treasurer and personnel director. When Dillenbeck, with
three other employees, encountered Avrum he told them
there was no work, but that if they wrote their names, ad-
dresses , and phone numbers on a pad he would call them
when work became available. They complied with this di-
rection . Then, at their request, he instructed the office to
give them "layoff slips" so that they could apply for unem-
ployment compensation. Dillenbeck has not since been
called back to work by Respondent.
During the strike Dillenbeck received from Respondent
letters dated September 13 (see G.C. Exh. 4) and Septem-
ber 20 (see G.C. Exh. 5). It was stipulated that identical
letters were sent to all the strikers. The first one, among
other things, stated that commencing September 13 Re-
spondent would hire replacements for the strikers, and
"hoped you will decide to return to work. . . . This strike
hurts you . . . it's absolutely unnecessary." The second let-
ter characterized the strike as "senseless [and] utterly ndic-
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ulous," stated that effective September 29 Respondent
would cease paying any part of the Blue Cross-Blue Shield
insurance premium , repeated that replacements would be
hired for the strikers , added that "when customers go-
jobs go . . . that is the way it is ," and concluded by "sin-
cerely hoping you will decide to return to work."
About November 5 Dillenbeck received still another let-
ter from Respondent . (See G.C. Exh. 6.) It was stipulated
this was mailed to all employees listed in schedule C of the
complaint . Said letter notified him that a "permanent re-
duction in force is called for . . . there is no chance that
you will be recalled to active employment at Trading Post
Local 294 filed an RC petition for an election . At a hear-
ing thereon on October 16, 1973 , Dillenbeck testified for
the Union . On December 4 the election was held . Howev-
er, while Dillenbeck was at a tavern with other employees
on November 30, officials of Respondent , including its
president , entered such tavern . Said president , Isadore Ta-
bachneck , told Dillenbeck that the latter "would never be
back there . . . [Respondent] was doing fine without" Dil-
lenbeck . To Ballou , another employee, said president re-
marked that Ballou "might as well hang around the race-
tracks and be a jockey or something because [Ballou]
wasn't coming back to work there . . . we're going to get
you." To all the employees there Tabachneck predicted
that the Union would lose the election . This last statement
is protected free speech which does not violate the Act.
Since the strike ended 10 employees have been recalled
by Respondent . Of them only one, Bishop , has greater se-
niority than Dillenbeck . Of all the employees "now work-
ing in the warehouse [i.e., on March 5 , 1974] six employees,
besides Bishop , outrank Dillenbeck in seniority. During the
time Dillenbeck was employed by Respondent seniority
was followed in "picking vacations ," the length of vaca-
tions , in determining "how much you contributed towards
your hospitalization insurance ," in a company sponsored
profit sharing retirement plan, and in layoffs . Dillenbeck
testified that he was able to and did perform several other
tasks assigned to him at the warehouse in addition to his
regular duty as head railroad receiver.
Another witness for the General Counsel , Raymond Val-
erio, gave testimony substantially as follows . He started
work for Respondent in October 1970, "primarily as the
damage man ." He signed a union card at the union hall on
August 29 , 1973. (See G .C. Exh . 2R.) In addition he suc-
ceeded in inducing employee Sam to sign such a card. (See
G.C. Exh. 7.) Valerio was present on about September 5
when Sam Tabachneck addressed the employees . In addi-
tion to corroborating Dillenbeck 's version of Tabachneck's
remarks , Valerio added that Tabachneck also told the em-
ployees that "They stand to be hurt, you stand to be hurt,
and they 're going to lose their jobs as well as you " in case
of a strike . Following that meeting Isadore Tabachneck
told Valerio that the former was fighting for the rights of
the employees and his , Tabachneck's, that he wanted an
election , and requested Valerio to try to " influence" the
employees to agree with Tabachneck . When Valero re-
fused this request Tabachneck told him that if the employ-
ees voted for a strike "we weren 't going to be friends any
more."
On September 8 the warehouse employees voted to
strike . Valerio picketed during this period . While so picket-
ing Isadore Tabachneck daily spoke to those on the picket
line. Valeno corroborated Dillenbeck as to what Tabach-
neck said to the pickets . Valerio further testified that on
this occasion Tabachneck told the pickets that they "had
ruined him , the business was done , he was going to padlock
the place."
On Friday, September 28, while Valerio was picketing,
Isadore Tabachneck shouted at the former that Valerio
"had been robbing him blind , he never knew he had a
partner," that he would take back employee Passino but
that Valerio would be overpaid at "three cents," that
"somebody [meaning Valerio ] was robbing me blind,
cleaning me out," and that "you [Valerio] might as well
leave . . . you'll never get back in this place . . . over my
dead body ." Valerio also corroborated Dillenbeck that it
was voted on September 28 at the union hall to terminate
the strike . As a result Valerio with other employees report-
ed to work at 7 a.m. on October 1. When Valerio arrived
there , Isadore Tabachneck told the employees to see per-
sonnel manager , Avrum Tabachneck four at a time. When
Valerio entered Avrum 's office the latter stated that "busi-
ness was off right now , it would take 7 to 10 days to get
things straightened out, and we would be hearing from
him." Then Avrum gave Valerio a "layoff slip." Valerio
concluded his testimony by asserting that he has not been
called back to work by Respondent.
The testimony of Donald Engel , a warehouse employee
of Respondent , may be concisely related as follows. He
signed a union card on August 29, 1973, at the union hall.
He also talked in favor of the Union to other employees at
the warehouse . On September 5 he attended a meeting of
employees addressed by Sam Tabachneck, Respondent's
vice president . Tabachneck warned them that if they struck
"it was going to hurt everybody involved" and also "a lot
of people who wouldn't have a vote ," such as the office
clericals.
At a meeting on September 8 at the union hall which was
attended by Engel it was moved to strike Respondent. (It
was stipulated by the parties that such a strike did occur
beginning September 10 and ending on Saturday, Septem-
ber 29.) Engel picketed every day of the strike. While
so engaged Engel observed Isadore Tabachneck,
Respondent's president , each day at the picket line. On one
of these occasions Tabachneck told Engel that "after all
this was over [the employees ] could go visit him at his con-
dominium down in Florida . . . [the employees] would
never get back in , he couldn ' t deal with [the employees]
while [they] were still out in the street."
The strike having ended , Engel reported to work at 7
a.m. on Monday, October 1. Avrum and Isadore Tabach-
neck informed the employees to enter in groups of four or
five . When Engel did so enter Avrum gave him and the
other employees each a layoff slip. (It was stipulated that
18 of the employees listed in schedule A of the complaint
offered to return to work on October 1. Their names are
recited in the transcript and need not be repeated here.)
John Biernik , an order selector for Respondent , signed a
union card but did not join the strike heretofore men-
tioned . However , he did not work during the strike. On
TRADING PORT, INC. 307
October 2 Isadore Tabachneck told Biernik that the latter
being "part-time," would not receive a "pink slip." Biernik
returned to work on November 19, 1973 . Between said Oc-
tober 2 and November 19 Avrum Tabachneck twice told
him, "Things are slow, I couldn't help you out right now
[about coming back to work]. We'll see, maybe in the fu-
ture." Although prior to the strike he worked 36 to 38
hours a week , Biernik "has not averaged out to 30 hours" a
week since November 19.
James Houck , a machine operator and receiver in
Respondent 's warehouse, also testified for the General
Counsel. A synopsis of his testimony is set forth at this
point. On August 29, 1973, he signed a union card at the
union hall . He also distributed union cards to fellow em-
ployees at the warehouse , and obtained signed cards from
four of them . (See G .C. Exh. 8(a) through (d).)
On September 5, Sam Tabachneck, Respondent's vice
president, addressed the warehouse employees. Houck cor-
roborated employee Dillenbeck's account of Tabachneck
as set forth above . On September 8 the warehouse employ-
ees voted in favor of a strike at a meeting held at the union
hall. During the strike Houck did some picketing. Said
strike was terminated by a vote taken on September 29 at
said hall. Houck on October 1 reported for work. When he
arrived at the warehouse Avrum Tabachneck gave him a
layoff slip and told him that Houck would be recalled "in
the future if work got better ." But Houck has not since
been told to return to work.
Daniel Peasley, Jr., was employed by Respondent as a
dairyman. On October 29, 1973, he attended a meeting at
the union hall where , among other things , he signed a
union card . He also saw employee James Harter sign a
union card. (See G.C. Exh. 9.) He went on strike with the
other warehouse employees and picketed during this time.
While so picketing Isadore Tabachneck told Peasley that
the latter lacked enough seniority to get back into the
warehouse and that Tabachneck would not take back Peas-
ley even if the latter "paid him." I credit Peasley upon this
aspect of his testimony ; Peasley's other testimony will be
disregarded because he abruptly left the stand to protest a
ruling of mine.
Glenn Passino was a multiple man in Respondent's
warehouse . He signed a union card and also obtained a
signed card from two other employees. (See G.C. Exh.
10(a) and (b).) About September 5, 1973, he was present at
a meeting at the warehouse at which Sam Tabachneck told
the employees that if they struck they not only were "tak-
ing food out of the office or clerical workers," but he
"would close the place down." Passino picketed everyday
during the strike . While so picketing Isadore Tabachneck
daily told the pickets that they "would be staying there
until the wintertime came ." Passino also heard Tabachneck
say to Gary Deyss, another picket, that Deyss "was so far
on the bottom of the seniority list I [Tabachneck] would
hire Mrs. Bishop or Mrs . Passino before I'd even take you
back in the warehouse again ." Actually Mrs. Passino never
worked for Respondent.
Passino went to the September 29 meeting at the union
hall at which it was voted to terminate the strikers. So he
arrived to work on October 1, the next Monday. When he
did, Avrum Tabachneck told him that "this" could have
been settled without engaging in a strike. Avrum also in-
formed him that no work was available and instructed him
to obtain a layoff slip from the office.
About mid-October 1973, Passino went to the ware-
house . There he encountered Avrum Tabachneck and Bru-
nelle. During a discussion by Avrum and Passino of the
coming NLRB election, Avrum asked Passino how the lat-
ter was going to vote. When Passino replied that he was
undecided, Avrum averred, "That's hard to believe be-
cause you're headstrong on it." Replying to a question by
Passino, Avrum answered that some employees would be
taken back in a couple of weeks, but that the men who "did
not stay out the full three weeks of the strike" would be
given priority because Respondent "had to respect the
rights of them guys before they would take anybody back."
A few moments later Brunelle, at that time a supervisor
of Respondent, asked Passino, "Why couldn't you do this
with a Company union?" This is not coercive and, there-
fore, does not transgress the Act. Passino rejoined that,
based on past experience with Respondent, "it would never
work." Following this Passino spoke to Isadore Tabach-
neck. The latter requested Passino "to work underneath the
table on a Sunday, filling orders," but Passino declined this
offer on the ground that he was on relief at the time. Al-
though this is not commendable, it does not violate the
Act. Passino concluded his testimony by stating that he has
not been recalled by Respondent.
Charles Ballou, who worked for Respondent in 1969,
1971, and 1973 gave testimony substantially as follows. In
1971 he was laid off by Respondent because of a lack of
work. In effecting such layoff Respondent followed senior-
ity. He was rehired in June 1973. Later that year he went
on strike and picketed during the entire time said strike
continued. While Ballou was picketing on about September
13 or 14, President Isadore Tabachneck of Respondent
said to him, "I want to thank you; you've done me a great
favor . . . I'm going to close the place up and go to Florida
and retire." Continuing, Tabachneck remarked that Re-
spondent "would just board up the doors and that would
be the end of it; no one would work."
On September 29 the employees voted to return to work.
Consequently Ballou showed up to work at 7 a.m. on Octo-
ber 1. However, Avrum Tabachneck told him and other
employees that they were laid off, handed them "unem-
ployment slips," and informed them he "was going to try
... to call the people back by seniority." About October 8
Ballou visited the warehouse. On this occasion Avrum Ta-
bachneck , in the presence of Brunelle , asked Ballou how
the strikers felt and how they would vote in the election.
Brunelle then asked Ballou "if there was any possibility of
settling this whole thing without [Local] 294 . . . having
our own grievance -committee , our own shop steward."
Sometime before November 1, 1973, Ballou telephoned
the warehouse. Both Brunelle and Avrum Tabachneck
each told him there was no chance of Ballou 's coming back
to work. This-is too indefinite to violate the Act, and I so
find. On November 15 Ballou visited the warehouse. Av-
rum asked him if Ballou were "going to be at the election
... if I was still strong on the Union, was I still going to
vote for the Union," and "if Ballou had any idea how [the
men] were going to vote." As Ballou left Avrum promised
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to "keep you in mind [for employment] . . . if you can find
a way not to come to the election." Finally, Avrum said "it
doesn't matter how [you] vote anyway because there would
never be a union in there."
About November 19 Ballou again telephoned the ware-
house to ascertain why two persons with less seniority than
he had been recalled to work. Avrum Tabachneck, with
whom he spoke, gave as the reason that these two were
"making less money" than Ballou . When Ballou mentioned
a third person with less seniority than he had also been
hired Avrum justified this "because they had to have a
black person working there." When Ballou alluded to the
fact that Respondent "already had [Robinson] a black man
there," Avrum remained silent.
About November 30, while Ballou was present with
other employees at the Ochard Tavern, some officials of
Respondent, including President Isadore Tabachneck, en-
tered it. Isadore told Ballou, "You may as well try to make
a living on the horses now because you'll never come back
to" Respondent. Isadore also told Dillenbeck and Ballou
that he, Isadore, was "not going to have to worry about"
Ballou or Dillenbeck "after Tuesday ... we're going to get
you.,,
Another witness for the General Counsel was Ira Stock-
well, a truckdriver and warehouseman for Respondent. His
testimony may be condensed as follows. He executed a
union card. (See G.C. Exh. 3(e), erroneously referred to as
3(c).) About September 1, 1973, Respondent's warehouse
manager, Robert Solomon, admitted to be a supervisor un-
der the Act, asked Stockwell what the latter thought of the
Union. This is not coercive and I so find. When Stockwell
replied that he desired a union to represent him, Solomon
rejoined, "No matter . . . [whether] we voted for the
Union or . . . against the Union, [Stockwell] would have a
chance of losing his job." This is a vague statement and
therefore does not violate the Act.
Stockwell went on strike with the other employees and
picketed all through said strike. On four or five occasions
while so picketing President Isadore Tabachneck of Re-
spondent each time told Stockwell, "I don't know what
you're out here for. You stand no chance of getting back
in. Furthermore, before I'd let a union in the warehouse, I
would padlock the warehouse."
On September 29 Stockwell with the others voted to re-
turn to work. However, when he came to work on October
1, Isadore Tabachneck told him to obtain a layoff slip from
Avrum Tabachneck because there was no work. When Av-
rum gave Stockwell such slip the former assured Stockwell
he would notify Stockwell when he was needed for work.
But Stockwell has never been recalled.
An abridgment of Michael Scanlon's testimony, an order
selector, checker, and truck loader at Respondent's ware-
house, is here set forth. He executed a union card. (See
G.C. Exhibit 11.) Although he joined the strike described
elsewhere herein, Scanlon did not picket while it lasted. On
October 1, 1973, he offered to return to work but Avrum
Tabachneck, Respondent's personnel director and treasur-
er, handed him a layoff slip. Scanlon voted in the election.
He was never called back to work.
John Quigley's testimony may be summarized at this
point. He worked in Respondent's warehouse as an order
selector and forklift operator. He signed a union card on
August 29, 1973, while attending a meeting at the union
hall. In September he went on strike and "fairly regularly,
almost every day" picketed while the strike lasted. While so
picketing Quigley saw Respondent's President Isadore Ta-
bachneck, "come out to the picket line" many times. On
these occasions Isadore told Quigley that the strike was
"foolish," that it was "hurting" the pickets as well as "the
business ," and that "the situation in the warehouse is such
that we'd only be able to rehire a few individuals and you'-
re one of the people I'd like to see rehired." I find no
violation of the Act in Tabachneck's said remarks.
As a result of being run over by a car on September 28
Quigley was still disabled when he testified in this trial on
March 7, 1974. He has not been recalled to work. Although
he carried hospitalization insurance while employed by Re-
spondent, it was canceled on September 29 by said Re-
spondent . (See G.C. Exh. 5.) When Quigley attempted to
vote at the December 4 election he was challenged by Re-
spondent on the ground he was no longer an employee.
Quigley was present when Vice President Sam Tabach-
neck addressed the employees at the warehouse. At that
event Sam told them, "Don't strike. A strike would be fool-
ish. It would hurt both the Company and the employees
[I] would abide by the results of the election, whichev-
er way they went." I find that the Act has not been contra-
vened by these remarks. Quigley not only signed a union
card but he also succeeded in inducing two other employ-
ees each to sign such a card. (See G.C. Exh. 12(a) and (b).)
Quigley has not been recalled to work since the strike end-
ed.
William Savage, a tractor-trailer driver, also testified. A
synopsis of his testimony follows. He participated in the
strike and picketed nearly every day during such strike.
While so picketing, he twice observed President Isadore
Tabachneck "at the picket line." Each time he spoke to
Savage. The first time Tabachneck spoke, he thanked all
those on the picket line "for helping him make up his mind
about whether he was going to buy a condominium in
Florida" to retire. I find this does not transgress the Act.
The second time he asked Quigley why Quigley was on
strike . This query is not prohibited by the Act, and I so
find. Upon receiving a reply that Quigley was seeking bet-
ter wages and "benefits ," Tabachneck asked , "Why don't
you look for another job." When Quigley answered that he
was so looking, Tabachneck retorted, "That's good be-
cause [you] probably won't have [yours] if we went back."
John Cafaro, a part-time employee of Respondent, also
appeared as a witness. A synopsis of his testimony follows.
He signed a union card (see G.C. Exh. 13), struck with the
other employees, and picketed while on strike. About No-
vember 1, 1973, he telephoned Respondent and asked "if
possibly I might get my job back." Either Avrum or Isa-
dore Tabachneck replied, "At this particular time, I'm un-
sure . I'm going to wait until the election is complete before
I make . . . a final status of my employees. . . . Ev-
erything was up in the air." Cafaro has never been recalled.
Another witness, Frank Houck, Jr., gave testimony sub-
stantially as follows. He signed a union card at the hall on
or about August 29, 1973. Later he struck with the others
and picketed every day during the strike. Although follow-
TRADING PORT, INC. 309
ing the strike he returned to work on October l he was
given a layoff slip by Avrum Tabachneck upon arrival.
About October 9 Avrum Tabachneck telephoned Houck
that the latter should come to work the next day. On about
October 10 Houck did start to work again . On that day
Avrum asked Houck why Houck was involved with the
Union. Houck replied, "the benefits." This question by Av-
rum is not coercive. Houck has noticed that since the strike
"customers do their own picking up" at the warehouse.
About November 30, while Houck was at the Orchard
Tavern with other warehouse employees, some of
Respondent's officials came in, according to Houck. This
does not constitute surveillance or any other conduct pro-
hibited by the Act.
Robert Bishop, a truck receiving clerk for Respondent,
gave testimony which may be adequately condensed as fol-
lows: He signed a union card, joined the strike, and picket-
ed daily during the strike. While picketing Bishop occa-
sionally observed Isadore Tabachneck there. On one of
these occasions Bishop heard Tabachneck say to another
striker, Gary Deyss, that as far as Tabachneck was con-
cerned Deyss was not employed there and that Tabach-
neck would hire Bishop's wife before he'd hire Deyss. But
Bishop's wife never worked for Respondent, according to
Bishop.
After the strike Bishop reported for work on October 1,
1973, but he was given a layoff slip by Avrum Tabachneck.
However, on October 9 Avrum took him back albeit on
another job. In this conversation Avrum stated that he
didn't like the Union "in there but if he had it . . . he'd
have to go along with it one way or the other . . . the
warehouse would still be there." Employees may work an
hour a day overtime since the strike, according to Bishop. I
find nothing in this paragraph condemned by the Act.
Bishop was present at the Orchard Tavern with others
on about November 30 when some officials of Respondent
entered it. On this occasion President Isadore Tabachneck
told Dillenbeck in Bishop's presence that Isadore did not
think Dillenbeck would be back in the warehouse "regard-
less of how this thing went."
On cross-examination Bishop testified that although em-
ployees at the warehouse worked on Saturdays prior to the
strike, Saturday work was eliminated after the strike; that
although employees sometimes worked at night before the
strike, no night work has been performed since the strike;
and that no employees since the strike work more than 45
or 46 hours a week at the warehouse.
Another warehouse employee who took the stand for the
General Counsel is Fowler Riddick. His testimony may be
condensed as follows: On August 29, 1973, he signed a
union card at a union meeting . He also distributed "quite a
few" of such cards to employees at Respondent 's ware-
house. One of them, Kvale, signed a card. (See G.C. Exh.
14.) Riddick attended the meeting at the warehouse which
Vice President Samuel Tabachneck addressed. Taba-
chneck said that he heard the employees were "trying to
get the Union in there [and] . . . were thinking about going
on strike. . . . If [they] went on strike" they would hurt not
only themselves but the office personnel as well. Taba-
chneck added that he was going to file with the NLRB a
petition for an election because he would not recognize the
Union by a card showing, and insisted that a strike would
put Respondent out of business.
Riddick joined the strike and picketed until it was termi-
nated. While he so picketed President Isadore Tabachneck
told him that the employees were foolish to be striking;
that they would be out until Christmas; that Respondent
had suffered a 30- to 40-percent decline in business by rea-
son of the strike; and as a result he "would not need .. .
only about 10 of" the strikers, and that "the rest were
fired." On October 1, following the strike, Riddick report-
ed for work, but Avrum Tabachneck gave him a layoff slip
instead. Although Avrum said he would recall Riddick "if
business picket up," he has not since called Riddick.
Thomas Broderick's testimony may be adequately sum-
marized as follows: As a warehouse employee of Respon-
dent he went to the Union' s meeting of August 29, 1973, at
which he signed a union card. A few days later he joined
the strike described above and picketed for its duration.
Then on October 1, following the strike's end, he reported
to work. Avrum Tabachneck gave him a layoff slip and
promised "to keep in contact with [the strikers] if business
started picking up." Broderick has not since been recalled
by Respondent.
An order selector in Respondent's warehouse, John
Robinson, testified in substance that he signed a union
card at its meeting of August 29, 1973; he joined the strike
and picketed almost daily while it continued; he reported
to work on October 1, but was given a layoff slip by Avrum
Tabachneck; and about October 8 Isadore Tabachneck
told him the employees "went about [the strike] the wrong
way," Robinson "was pretty far down on the [seniority]
list," the employees would be voting for their job rather
than the Union, and he would "hire" Robinson if the latter
could induce those "from the bottom of that list" to come
to work.
Robinson further testified that about 3 weeks after Octo-
ber 1 Avrum Tabachneck told him that Avrum was "at
least 100 percent sure of the election," that Robinson was
among five employees whom Avrum would like to have
report to work the following Monday, that employee Dil-
lenbeck "was a two-time" loser as he "previously tried to
start a union with the police," and that Avrum at one time
thought Robinson was "part of the initial movement of
getting the Union into the warehouse." Robinson did go
back to work on the next Monday, October 29.
Avrum -Tabachneck again spoke to Robinson on or
about November 27. Avrum said, in response to
Robinson's question, that nothing could be done to take
back Robinson's brother who had been laid off but Avrum
"would feel obligated if [said brother] didn't show up for
the election ." In this conversation Avrum asked Robinson
"point blank, how are you going to vote ." Robinson's
brother voted in the election , but has not been recalled to
work by Respondent.
James Sim , Sr., a filler and .checker in Respondent's
warehouse, gave substantially the following testimony. He
signed a union authorization card, joined the strike, and
picketed during the entire time the strike endured. Al-
though on October 1, 1973, after the strike concluded, he
reported to work, Avrum Tabachneck handed him a layoff
slip. Sim has not since been recalled to work.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gary Deyss, an order selector for Respondent, gave tes-
timony substantially as follows: He signed a union card at
the October 29, 1973, meeting at the union hall, went out
on strike on September 9, and picketed while on strike.
Isadore Tabachneck came to the picket line "about every
day." On one of these visits he told Deyss and another
picket, Valerio, that since the men "did something nice for
him" he was going "to do something nice for the guys .. .
he was going to give a thousand dollars a piece" to the 10
strikers "who should have it the most." Continuing, Taba-
chneck told these two strikers they "were crazy, . . . were
smucks, and he didn't know why [they] were standing there
picketing." Nothing in this paragraph exceeds limits per-
missible under the Act, and I so find.
About 3 days later Tabachneck again spoke to Deyss as
the latter was engaged in picketing. This time he told Deyss
to look for another job because "you're way down of the
bottom of the list" for seniority and "I would take
Passino's wife back before I ever take you back, and she
doesn't even work there." Then on October 1, 1973, the
strike having ceased, Deyss reported to work, but he was
given a layoff slip instead. At the same time Avrum Ta-
bachneck informed him that the employees "would be re-
called if the business picked up." Deyss has not since been
recalled.
At the trial it was stipulated "that none of the employees
who were on the payroll as of September 4, 1973, have
been permanently replaced."
Another witness for the General Counsel is Richard
O'Toole, a truckdriver at Respondent's warehouse. His tes-
timony may be summarized as follows: He signed a union
card. (See G.C. Exh. 15.) About September 8, 1973,
Respondent's president, Isadore Tabachneck, apprised
O'Toole, "You're going to lose your seniority . . . because
of the profit sharing." Then an office employee told
O'Toole to "terminate my employment for one day in or-
der to get out of profit sharing." O'Toole replied, "Okay."
On September 9 O'Toole joined the strike heretofore
mentioned, and he picketed in connection therewith. Fol-
lowing the termination of the strike O'Toole on October 1
reported to work, but he was given a layoff slip. In addi-
tion, Avrum Tabachneck told him, "We'll call you if we
need you." But he has not been recalled to work. However,
at least five employees with less seniority than O'Toole
have been "recalled to active employment."
Another signer of a union card is Wayne Smith, em-
ployed by Respondent at its warehouse. (See G.C. Exh.
16.) He was told at the time he signed it that "if you didn't
sign a card and the Union won, it would cost you $133, but
if you did sign the card it would only cost you $33." I find
that Smith's card may not be counted in ascertaining
whether the Union enjoyed a majority because improper
means were used to obtain his signature. N.L.R.B. v. Savair
Manufacturing Co., 414 U.S. 270 (1973). Endless Mold, Inc.,
210 NLRB 159 (1974), and Wabash Transformer Corp., 210
NLRB 462 (1974), do not require a contrary result.
Still another signer of a union card is Delbert Pullman,
an order filler for Respondent. (See G.C. Exh. 17.)
Avrum Tabachneck, Respondent's personnel director
and secretary-treasurer, was examined by the General
Counsel. An abridgment of Avrum's testimony ensues. Ac-
cording to Avrum, in September 1973, Walter Snyder,
Respondent's computer operator and programmer, worked
as such in the computer room. The only other employee in
said room was a keypuncher. Snyder is on salary, but said
keypuncher is hourly paid and earns less than Snyder. In
said September William Stevens was manager of
Respondent's Quail Street grocery store in Albany. Neither
Snyder nor Stevens was employed by Respondent when
this case was tried. However, Stevens is carried on the pay-
roll at $20 a month in order to retain his Blue Cross-Blue
Shield benefits.
One day employee Peasley came to see Avrum about a
letter which Peasley received worded like General
Counsel's Exhibit 6. Avrum told him that Respondent had
"reevaluated" its business so that in the immediate future
"we saw no immediate need for calling anybody back, and
... if anything developed . . . [Peasley] would be notified
along with everybody else." Continuing, Avrum testified he
had not called Peasley back because the latter "was very
hot tempered, high strung . . . and [also Peasley] associat-
ed with employees [whom Avrum considered] violent."
However, Avrum expressed a willingness to recommend
Peasley for a job with any other employer.
Avrum also described the duties of Brunelle as assistant
buyer prior to the time when the latter admittedly became
a supervisor. They need not be repeated here.
Walter Snyder, a computer operator and programmer
for Respondent from May 1965, to December 1973, was
called as a witness by the General Counsel. His testimony
may be compressed as follows. He described his functions
as such computer operator and programmer in great detail.
In this capacity he was assisted by the only other person in
the computer room, a "keypunch girl [who] was trained as
a back-up for me." But he never gave her instructions as to
what work she had to do, nor directed her to work over-
time. In fact she herself decided, Snyder "guessed," as to
when she would work overtime. I find that on the record
developed concerning his duties Snyder is not a supervisor
under the Act.
Respondent's warehouse manager, since October 3,
1973, William Brunelle III, was the General Counsel's final
witness. An abstract of his testimony follows. Prior to the
September 1973, strike of the Union he was employed by
Respondent as an assistant buyer, "took care of the freight
entries . . . took orders over the phone once in a while
when the girls were tied up, and . . . did some customer
relations." As assistant buyer he was salaried and he han-
dled "the lesser accounts . The ones that didn't involve too
much work to them." However, he "had to check with the
head buyer on any large quantities."
B. Respondent's Defense
James Harter, an employee in Respondent's warehouse,
gave testimony essentially as follows. He joined the strike
and picketed until about September 22, 1973. After the
strike terminated Avrum Tabachneck discussed with him
three or four times individual employees who had not yet
returned to "active employment" regarding such employ-
ees' attitudes towards their jobs and how well they per-
formed their work. This was to determine who should be
TRADING PORT, INC. 311
preferred in returning to work.
Some time after the end of the strike in September 1973,
Avrum Tabachneck spoke individually to warehouse em-
ployees James Allen and Casper Dambrose "with respect
to the subject of Trading Port employees who had not yet
returned to active employment." This, too, was to decide
which employees were to be preferred in returning to work.
Avrum Tabachneck, Respondent's treasurer and person-
nel director, who had been called as a witness by the Gen-
eral Counsel, also testified for Respondent. A compendium
of his testimony follows. During the strike Respondent
hired two replacements. When he learned that the strike
was going to end he consulted counsel. Said lawyer advised
him to dismiss said two replacements and to "select the rest
of the work force . . . needed from the people who were
outside and that [Avrum] could use any means he wanted
to take them back except that [he] . . . could not [discrimi-
nate against] the employee participation in the Union."
Tabachneck did dismiss said two replacements. On Oc-
tober 1, 1973, the former strikers presented themselves to
him. He took their names, addresses, and telephone num-
bers, and informed them "if and when business picks up
we could call them back." But he never told any of them
that he or Respondent would call back anyone "by senior-
ity." In fact seniority "was not . . . a policy at Trading
Port . . . with the exception of possibly a small role in
vacations."
Following the strike the first two strikers to be recalled
were Bishop on October 9 and Houck on the next day. (See
it. Exh. 2.) This was because Flagler and Brunelle told
Avrum more machine operators were needed. On the ad-
vice of Flagler and Brunelle said Bishop and Houck were
recalled by Tabachneck as "the best machine operators out
then." Also during October Tabachneck discussed with
others, both employees and supervisors, at the warehouse
about the "attitude" and "ability to do the job in the ware-
house" of those who had not yet been recalled. Toward the
end of October and until December 27 a group of former
strikers was "reinstated" after he discussed with Brunelle
how business was going, "whether we needed people to
come back," "what type of people we felt we needed" to do
a particular job, and who was best suited for such job.
Their names appear on Joint Exhibit 2. None of these re-
called employees were sent the letter of November 1 to
employees announcing "a permanent reduction in force"
(See G.C. Exh. 6.)
Nor was said letter of November 1 sent to Deitz, Fideli,
and Quigley, none of whom has been recalled. It was not
sent (a) to Deitz because he was a part-time worker inter-
ested in full time work; (b) to Quigley because he was suf-
fering from an incurable sickness which permanently inca-
pacitated him; and (c) to Fideli because he was a part-time
worker with Respondent but a full-time employee of a
stockbroker.
Bellew [Ballou?] came to Tabachneck one day. Brunelle
was also present. Bellew-talked about gambling in the base-
ball "playoffs." Then Tabachneck asked Bellew , "What's
the odds on the election?" When Bellew replied that the
Union would win, Tabachneck said, "Well, that's one
opinion." Tabachneck testified that on this occasion Bel-
lew "was definitely under the influence of alcohol." But
Tabachneck denies he asked Bellew "how the men on the
outside were going to vote" or that Brunelle asked Bellew
"if there was any possibility of settling [the strike] without
[Local] 294 and with a company union."
Tabachneck had another conversation with Bellew in
mid-November. Brunelle came in soon after it started. Bel-
lew, who had the odor of liquor on his breath and was
"under the influence of alcohol," asked Tabachneck to
change his "employment date so he could get unemploy-
ment," but Tabachneck refused.
When Frank Houck returned to work on October 10,
Tabachneck told him that Tabachneck had no animosity
against him for participating in the strike and hoped that
Houck harbored no animosity towards Respondent; and
that Tabachneck "did not agree with the strike [and] .. .
didn't care for the Union." But Tabachneck also told
Houck that if the Union won the election "it was some-
thing" the former "would just have to learn to accept."
In mid-October 1973, Tabachneck spoke to Passino in
the office after it was reported to the former that Passino
"said he's going to blow people's heads off." Brunelle was
present at the time. When Passino inquired why he, "a
much better worker than most of the people in there," had
not been recalled to work, Tabachneck replied "we will
recall any people back as we need them."
Shortly before October 29, when Robinson was recalled
to employment, Tabachneck spoke to him about returning
to work. In this conversation Tabachneck "acknowledged
the fact that [Robinson] was in on all the union representa-
tive meetings with us" and hoped that Robinson had no
animosity towards Respondent. Robinson replied that he
desired to return to work, and that he "had no animosity."
After Robinson returned to work Tabachneck spoke to
him about the former's absenteeism and "mostly his late-
ness." In late November Robinson explained his said con-
duct because he had a problem getting his daughter to
school. In this conversation Robinson asked if his brother
stood a chance of being called back. Tabachneck replied
that if business warranted it "we can call them back .. .
[and] by their abilities." Then Robinson asked whether it
would do his brother any good if the brother "voted for
you or maybe he didn't show up" for the election. Tabach-
neck replied, "People will be called back as we need them."
Finally, Tabachneck testified on direct that in early 1971
Respondent laid off 21 of its warehouse employees, but
seniority "definitely was not" followed in "accomplishing"
this result. .
On cross-examination Tabachneck admitted that when
some employees offered to return to work during the strike
no criteria were applied in determining whether to take
them, but that criteria were resorted to only as to those
who wanted to come back to work after the strike.
Elli Benno, Respondent's comptroller, another witness
for Respondent, in substance testified that a layoff of ware-
house employees in 1971 was not made on the basis of the
date when they were hired. (See Resp. -Exh. I and it. Exh.
4.)
On about October 3, 1973, William Brunelle III, was
promoted to be Warehouse Manager of Trading Fort. He
had previously testified for the General Counsel. An
abridgment of his testimony on behalf of Respondent is
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
narrated here. After the strike terminated he had many
conversations with Personnel Director Avrum Tabachneck
"on the subject of personnel . . . who had not . . . re-
turned to active employment." Among other things they
discussed "criteria for recall of [such ] personnel." Such
criteria related to whether the person was a good worker,
,.was versatile," and had "a good attitude towards his job";
and "rate of pay naturally entered into it."
Brunelle corroborated Avrum Tabachneck's testimony
touching on a conversation between Avrum and Glen Pas-
sino in Brunelle 's presence . But Brunelle did not talk to
Passino immediately before, during, or immediately after
the foregoing communication . And Brunelle was present
when Avrum spoke to Bellew (Ballou?) on October 8, 1973,
about a baseball bet. When Avrum asked what the odds
were , Bellew replied , "Oh, the Union will win." This
caused Avrum to say, "Well, that's your opinion." When
Bellew asked what chance he had "of coming back to
work," Avrum answered, "As soon as there are job open-
ings people will be called back to work ." Brunelle insisted
that Bellew was "under the influence of alcohol" when the
latter spoke to Avrum Tabachneck. (I believe Bellew and
Ballou are one and the same person. The transcript men-
tions both.)
Brunelle also was present when Bellew spoke to Avrum
Tabachneck in mid-November 1973. On this occasion Bel-
lew asked Avrum to "change the date so I can collect un-
employment," but the latter refused. When the conversa-
tion soon related to the coming election, Tabachneck asked
Bellew if the latter was "going to make it in the condition
you're in now." Bellew replied, "I'll be there December
4th."
On December 3 Bellew (Ballou?) telephoned Brunelle.
The former gave Brunelle "five to one" the Union would
win. Brunelle merely replied, "We'll find out tomorrow."
Then Ballou commented, "We're going to protest five
votes," naming them, and added, "You couldn't have won
anyway." When Ballou asked if their friendship would
continue after the election, Brunelle replied, "the way you
vote's got nothing to do with our friendship. We'll always
be friends." On this occasion Brunelle claimed that
Ballou 's "breath smelled."
Respondent 's vice president , Sam Tabachneck , testified
for it. His testimony is concisely reproduced here. He con-
sulted counsel in early September 1973, regarding what he
could express in a speech he desired to deliver to Trading
Port employees. This speech was then typed up (see Resp.
Exh. 2) by counsel's secretary and then revised by Sam to
meet suggestions of said counsel. Said revised version was
then typed (see Resp. Exh. 3) and on September 5 was
delivered by Sam to Trading Port warehouse employees in
the warehouse. Office employees were also present. Sam
told such employees at the time that they could have a
copy of such speech if they so desired. In such speech Sam
also remarked, departing from the prepared text, a union
"will hurt you, it will hurt us, and it will hurt these innocent
[office employee] people who have no voice in the union
matters whatsoever , strikes , or anything else pertaining to
union matters."
On Saturday, September 29, 1973, a group of employees,
including Dillenbeck and Houck, accompanied by Presi-
dent Robiletto and another Local 294 official, called on
Sam and President Isadore Tabachneck of Respondent.
Robiletto said that the strike had ended and asked Respon-
dent to take back all the men on the following Monday
morning ; i.e., October 1. Sam responded that "there was
no business. There was no work . . . and there were no
customers . . . there was just no work for [the men] to do."
But Robiletto insisted that the men report to work "to get
... lay off slips so that they could get unemployment in-
surance." Employees Dillenbeck and Houck "were insist-
ing that the men be called back in seniority." Sam an-
swered that he "knew nothing about any seniority" and
that he would not "commit" himself "without advice of
counsel ." When Robiletto asked if Local 294 should file a
petition for an election, Sam "suggested" that it should.
Respondent's president, Isadore Tabachneck, was an-
other witness for it. In substance he testified as follows.
During the strike he daily entered and left the premises of
Respondent to perform his duties as such president, and
sometimes on these occasions exchanged words , which he
characterized as "social amenities," with picketing employ-
ees. To one of them, Valerio, he said that he thought Valer-
ie "was robbing me blind." When Tabachneck greeted
picketer Stockwell, the latter said "it's going to make me
very happy here so I can put a padlock on your ware-
house." So Tabachneck gave him a lock to "have ready"
for such purpose.
During this strike Tabachneck also spoke to another
picket on the picket line, Savage, telling Savage that anoth-
er firm where Savage was seeking work had asked Tabach-
neck for an appraisal of him, that Tabachneck had written
a "very good recommendation," and that if this other job
"is better . . . I think you'd be smart to take it." Tabach-
neck told another picket, Rettick, that the strikers "would
be better" by asking the Union leaders to petition for an
N.L.R.B. election "or you will be out here to Christmas or
maybe later because we will . . . deal only the way the law
allows , the American way."
Tabachneck corroborated his brother, Sam, as to what
was said at the September 29 meeting between Respondent
and Local 294 and some strikers.
In late November 1973, Tabachneck spoke to Ballou in
the Orchard Grill. Ballou discussed horserace betting, but
Tabachneck stated he was not interested. But nothing was
said about the Union or the forthcoming election on this
occasion.
On Monday, October 1, 1973, employees presented
themselves to return to work. Tabachneck told them to
enter four at a time to "get their slips." Sometime later
employee Passino told him that Passino was on relief and
unemployment insurance and that thereby he was not only
"better off than working" but "in no hurry to look for a
job." When Passino mentioned that he was going to visit
"the dogs in the warehouse," Tabachneck reproved him for
referring to fellow employees as dogs.
Respondent's final witness was Jerome Morenoff. An
abridgment of his testimony follows. He is a director of
Respondent and president of Ocean Data Systems, the lat-
ter being "computer facilities manager for the Trading Port
computer facility." Until 1968 "the primary customers" of
Trading Port were "the independent retailers in the Albany
TRADING PORT, INC.
area." Trading Port was the "primary supplier of these in-
dependent retailers ." In 1968 Respondent made an effort
to expand its business with independent retailers , but it met
with very little success.
As a result of not being able to enlarge its business with
the independents, Respondent decided to seek the business
of chain stores both in and beyond the Albany area. It
discovered that such chains had their own warehouses, so
that Respondent could only hope to become their "second-
ary supplier." Respondent succeeded in becoming a sec-
ondary supplier for four chains, so that ultimately they ac-
counted for 15 or 20 percent of its business.
In late 1972 Respondent started a systematic analysis to
ascertain how it could improve "the profit margins of
Trading Port since we felt that it was very difficult . . . to
obtain any new sources of revenue through increased cus-
tomers or new customers." By the spring of 1973 the price
of food, food products, and paper bags not only rose astro-
nomically but these commodities "became extremely hard
to get." Consequently Respondent's larger and chain cus-
tomers "were taking all our irreplaceable items out of stock
... this . . . not only hurts us but it hurts our other cus-
tomers ." In addition many small independent retailers
"were having a very tough time staying alive [and] . . . one
or two . . . of the large out-of-town wholesalers were mov-
ing into the area [making] competition even more severe in
the area." Other woes Respondent encountered were the
tightness of money and the high interest cost of obtaining
money.
Then, again, the high price of money prevented Respon-
dent from hedging against future rises in products it
bought. And the gas shortage and gas price increase caused
the lessors of trucks which Respondent leased to raise the
rental of said trucks . (See Resp . Exh. 4.)
As a result of the above facts Respondent decided to
cancel its truck leases (see Resp . Exh. 5) and get out of the
delivery business altogether. In addition, (a) slow pay cus-
tomers and poor risk customers were eliminated by Re-
spondent, and (b) the "entire operation" of Respondent
was streamlined," so that, e.g., overtime and weekend and
night work were abolished and "productivity of workers
themselves" was studied carefully.
The strike of the Union which began September 10,
1973, caused Respondent to lose several customers perma-
nently and some customers "partially, [the latter] because
they didn't want to become completely reliant upon Trad-
ing Port ." Statistical evidence which Respondent contends
supports its "permanent reduction in force" letter of No-
vember 1 (see G.C. Exh. 6) is alleged to be found in Resp.
Exhs. 6, 7, 8, and 9.
C. Concluding Findings and Discussion
1. As to 8(a)(1) violations
I find that Respondent's letters of September 13 and 20
(see G.C. Exhs. 4 and 5) constitute unlawful threats to hire
permanent replacements for the strikers, whom I find else-
where herein to be unfair labor practice strikers.
Dillenbeck's testimony is credited, and Respondent's ev-
idence inconsistent therewith is not credited . In addition to
313
demonstrating that Respondent entertained antiunion ani-
mus, which, of course, is not an unfair labor practice, said
testimony does disclose a violation of Section 8(a)(1) of the
Act as it reveals a threat by Respondent to cause employ-
ees to lose their jobs if they selected a union, promised
benefits if employees forgot the union, promised Dillen-
beck a position as representative of a "sort of company
union," threatened to padlock the warehouse during the
strike so that employees "would never come back to work
again," informed employees that there were no more jobs
left on the last day of the strike, and told employees they
would never get back in after the strike.
Additionally, I find, on Dillenbeck's credited testimony,
that Respondent agreed to take back the men "if there was
work . . . according to seniority" when it was informed
that the strike had been terminated, and that Respondent
on November 30 told Dillenbeck that he and Ballou would
never be back with Respondent. This last part is a threat of
reprisal forbidden by the Act.
Crediting Valerio, and not crediting Respondent's evi-
dence not consonant therewith, I find that Respondent
told employees that they were going to lose their jobs in
case they went on strike; Valerio was requested to influ-
ence employees to agree with Respondent; and Valerio was
told while picketing neither he nor the employees would
"ever get back in the place." This conduct is prohibited by
the Act, and I so find.
I credit Passino that Avrum Tabachneck asked him how
the former was going to vote in the coming NLRB election.
It is my opinion, and I find, that this is coercive interroga-
tion proscribed by the Act as it was made during a period
when Respondent engaged in extensive Section 8(a)(1) vio-
lations. I also credit Passino that in this same conversation
Tabachneck told the former that Respondent would give
priority on recall to those strikers who did not stay out the
full 3 weeks of the strike. This last statement, I find, vio-
lates the Act as it amounts to a reprisal against those who
continued to strike.
About October 8 I find that Avrum Tabachneck asked
Ballou how the strikers felt and how they would vote in the
election. I find this is coercive interrogation prohibited by
the Act. Brunelle , who was present at the time, inquired of
Ballou if the strike could be settled without the Union and
by having a grievance committee selected by the employ-
ees. This inquiry violates Section 8(a)(1) of the Act as it
tends to undermine the Union by methods proscribed by
said Act. On November 15 Avrum asked Ballou how the
men were going to vote at the election, told Ballou there
would never be a Union in the warehouse, and promised to
keep Ballou in mind if he refrained from voting. This con-
travenes the Act in part as a threat to keep out the Union
by any means, in part as a coercive inquiry, and in part as
a promise of benefit. Ballou was told about November 30,
"You'll never come back ... we're going to get you." This
is a coercive statement violating Section 8(a)(1) of the Act.
In making the findings recited in this paragraph I have
credited Ballou and have not credited Respondent's wit-
nesses whose testimony is_ not compatible with his.
While Stockwell was picketing, President Tabachneck
more than once told the former that Stockwell had no
chance of getting back and that Tabachneck would close
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the warehouse before he'd let a union in the warehouse. I
credit Stockwell's version of these incidents and do not
credit Tabachneck thereon. I find, crediting Stockwell, that
Tabachneck's utterances transgress Section 8(a)(1) of the
Act.
President Isadore Tabachneck told Quigley, while the
latter was picketing, to look for another job, and that Quig-
ley probably would not have his job back when the strike
ended. Crediting Quigley upon this aspect of the case, I
find that Tabachneck's said remarks are prohibited by Sec-
tion 8(a)(1) of the Act.
I credit Cafaro that Respondent about November 1 told
him that whether he or any other employees returned after
the strike would be determined after the election when "a
final status" of employees would be ascertained. I find this
is a threat to take reprisals against employees which is not
sanctioned by the Act.
While employee Riddick was picketing President Ta-
bachneck spoke to Riddick. Only the following statements
to Riddick, which I credit, that Tabachneck told him, vio-
late the Act. Those statements are (a) that the strikers
would be out till Christmas, and (b) as a result of the strike
reducing its business Respondent fired all but 10 of the
striking employees and would take back only these 10.
These statements , I find, demonstrate a threat to take re-
prisals against the strikers.
John Robinson, a striker whom I credit, was told by
Isadore Tabachneck about October 8 that notwithstanding
the former was low on the seniority list he would be
"hired" if Robinson could induce employees from the bot-
tom of the seniority list to come to work. I find this is
prohibited by the Act as a promise of benefit to strikers
lacking seniority. In late October Avrum Tabachneck
spoke to Robinson. None of Avrum's conversation in my
opinion violates the Act except that which characterizes
Dillenbeck as a "two-time" loser, thus indicating that Dil-
lenbeck would not be rehired as a reprisal for his present
and past (with the police) union activity.
Again crediting Robinson, I find that on or about No-
vember 27 Avrum Tabachneck expressed to Robinson that
Avrum would be obligated if Robinson's brother did not
show up for the election and also "point blank" asked how
Robinson was going to vote. Insofar as Respondent's evi-
dence contradicts Robinson I do not credit Respondent's
such evidence. I find that Avrum' s language is coercive and
therefore violates the Act only in interrogating Robinson
how he was going to vote. I find no violation of the Act in
being "obligated" if Robinson's brother failed to vote.
While striker Deyss was picketing Isadore Tabachneck
told the former that Deyss was close to the bottom of the
seniority list and that Isadore would take striker Passino's
wife, who did not even work there, before Isadore took
back Deyss. I credit Deyss on this branch of the case and
do not credit Isadore's contradictory testimony. And I find
that this contravenes the Act as a threat of reprisal against
a striker.
O'Toole, whom I credit, while striking was told by Isa-
dore Tabachneck that the former was about "to lose se-
niority . . . because of the profit sharing." About the same
time an office employee told O'Toole to resign for one day
so as "to get out of profit sharing." I find this is a threat of
reprisal not sanctioned by the Act.
2. As to the refusal to recognize and bargain
with Local 294
Respondent's answer admits, and I find, that the follow-
ing employees of Respondent compose a unit appropriate
for the purposes of collective bargaining within the pur-
view of Section 9(b) of the Act:
All warehousemen and driver employees employed
by Respondent at its warehouse located at North
Manning Boulevard and Prospect Avenue, Albany,
New York, excluding all office clerical employees,
professional employees, guards, and supervisors as de-
fined in the Act.
Further I find that on or about September 4, 1973, Respon-
dent had 49 employees in said unit, and that Local 294 on
said date, having 42 valid cards and thus representing a
majority of the employees in said unit, made a lawful de-
mand upon Respondent to be recognized as the exclusive
bargaining representative of said employees and to bargain
collectively on behalf of said employees as such representa-
tive.
Although Local 294 had 43 cards on this occasion, I find
that one, i.e., Smith's (see G.C. Exh. 16), should not be
counted as it was obtained by improper inducements. The
reasons therefor and the Supreme Court decision support-
ing this conclusion are set out above where Smith's testi-
mony is narrated.
The question then is whether the Union is entitled to be
recognized on the basis of its card count or whether Re-
spondent may refuse such recognition unless and until the
Union establishes its majority in an election conducted
pursuant to Section 9 of the Act. On this issue I find that
Respondent's activities as found herein constitute indepen-
dent violations of Section 8(a)(1) and (3) of the Act "which
have made the holding of a fair election unlikely or which
have in fact undermined a union's majority," or both.
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 610 (1969). In
addition I find that these unfair labor practices "are of
such a nature that their coercive effects cannot be eliminat-
ed by the application of traditional remedies, with the re-
sult that a fair and reliable election cannot be had." Gissel,
supra at 614.
Finally, I additionally find that the "possibility of eras-
ing the effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) by the use of traditional remedies,
though present, is slight and that employee sentiment once
expressed through cards would, on balance, better be pro-
tected by a bargaining order." Gissel, supra at 614.
3. As to certain unilateral actions of Respondent
I have found above that Respondent encouraged an em-
ployee to form an employee grievance committee to deal
directly with Respondent rather than through Local 294.
This amounts to a violation of Section 8(a)(5) of the Act as
it bypasses the Union which represents the employees, and
I so find. Also I find that Respondent on September 20
unilaterally ceased paying its share of the medical insur-
TRADING PORT, INC. 315
ance premiums of its warehouse employees . (See also G.C.
Exh. 5.) This too, I find , contravenes said Section 8 (a)(5),
since it is a condition of employment which must be taken
up with the Union before it can be changed.
Respondent unilaterally eliminated certain jobs in No-
vember 1973. Even if this was prompted by economic con-
ditions, it is a mandatory subject of collective bargaining.
Hence I find this action contravenes Section 8 (a)(5) of the
Act. N.L.R.B. v. Columbia Tribune Publishing Company,
495 F.2d 1385 (C.A. 8, 1974).
4. As to alleged 8(a)(3) violations
It is my opinion , and I find , that the strike beginning
September 9 and ending September 29 was an unfair labor
practice strike , as I find that it was caused by Respondent's
refusal to recognize and bargain with the Union and was
prolonged by the other unfair labor practices found to have
occurred during and prior to the strike . It is not denied,
and I find , that , except as noted in the next sentence, the
employees named in Schedule A of the complaint made
unconditional offers on Monday , October 1, 1973, to re-
turn to work , and that Respondent on and since that date
has failed and refuses to reinstate such employees . Howev-
er, it was stipulated (see p . 496 of Transcript) that Biernik,
Bishop , Cafaro , Deitz , and Johnson did not make an un-
conditional offer to return to work until a few days after
said October 1, and that Johnson , McCoy, Merwitz, and
Terry made no individual offers to return to work. But I
find that the Union on behalf of all strikers on September
29 made an unconditional offer for them to return on Oc-
tober 1 , and that this is a sufficient unconditional offer by
each employee.
Unfair labor practice strikers have a right to be reinstat-
ed to their former positions when the strike ends and they
denote that they desire to return . Valley Oil Co., Inc., 210
NLRB 370 (1974). Cf. N. L. R. B. v. Pepsi Cola Company, 496
F.2d 226 (C.A. 4, 1974 ). Their employer may not discrimi-
nate against them by selecting only those who measure up
to standards which he suddenly , at the time they offer to
return to work , adopts and which at no time prior to that
had been imposed . Assuming that Respondent adopted
such standards before the strike started , patently he did not
enforce them because he still continued to employ those
who later became strikers but who were not in its opinion
qualified to work according to such prestrike criteria.
Hence I find that if some employees who later struck failed
to meet prestrike standards Respondent not only over-
looked or condoned such deficiencies in its employees, but
it cannot abruptly seize on an employee's alleged short-
comings after the strike ends as a pretext to deny him
employment because he engaged in a valid strike. Cf.
N.L.R.B. v. West Side Carpet Cleaning Co., 329 F.2d 758,
761 (C.A. 6, 1964); N. L. R. B . v. Park Edge Sheridan Meats,
Inc., 341 F.2d 725, 728 (C.A. 2, 1965); N. L. R. B . v. Midtown
Service Co., 425 F .2d 665 , 670-671 (C.A. 2, 1970).
In addition to finding that such deficiencies were over-
looked or condoned (Mid- West Towel and Linen Service,
Inc., 143 NLRB 744, 754, enfd . 339 F .2d 958 (C.A. 7,
1964) ), I find that such shortcomings were never called to
the attention of those employees whose failings displeased
Respondent . Failure to warn has probative value in de-
termining that terminating an employee for such conduct is
a pretext to mask the fact that such discharge was for a
reason prohibited by the Act. E. Anthony & Sons v. Melrose
Processing Co., 351 F.2d 693, 699 (C.A. 8, 1965); N. L. R. B.
v. Midtown Service Co., supra.
In this connection Respondent offered evidence that
economic necessity prevented it from taking back all the
strikers and offered documentary evidence which it
claimed supported this contention . It may be that a de-
tailed analysis of such evidence may uphold this thesis. But
I believe that such position is more properly litigable at the
compliance stage of the proceeding . I am merely ruling
that Respondent's method of determining which employ-
ees to take back is discriminatory , so that a reinstatement
order is called for. The identity of those to be reinstated
may be ascertained at the compliance stage . In this connec-
tion I credit Passino that Avrum Tabachneck told him that
priority would be given to strikers who did not stay out the
full 3 weeks of the strike . I consider this a discriminatory
method of deciding whom to take back , and I so find.
Another reason why I find that Respondent's formulated
plan of determining which strikers to take back is discrimi-
natory in that it failed to follow seniority in taking them
back. It is true that seniority was not strictly followed in a
layoff of 1971 by Respondent. (See Resp. Exh. 1.) However
said Respondent's Exhibit 1 not only shows that 21 out of
67 were laid off and that all but 7 of said 21 lacked senior-
ity, but that '5 others were very low on the seniority list. (I
assume No . 67 is the lowest in seniority . Thus all but 2 of
said employees laid off were No. 34 or higher.)
In any event I find that Respondent followed seniority
after 1971. Upon this aspect of the case I credit the Gener-
al Counsel's evidence (one example , that Sam Tabachneck
told Deyss the latter was "far on the bottom of the senior-
ity list") that Respondent mentioned a seniority list to em-
ployees seeking to return after the strike , and followed se-
niority on vacations . Respondent 's contrary evidence is not
credited . Hence I find that under the circumstances taking
back employees without regard to their seniority contra-
venes Section 8(a)(3) of the Act.
It is not denied, and I find, that when employees on
October 1 returned to work Respondent laid them off. A
list of such employees is set forth in schedule B of the
complaint . And I further find that such employees, being
unfair labor practice strikers , were entitled to be reinstated.
Respondent contends that economic conditions required it
to layoff said employees until business improved . But the
fact remains , and I find , that Respondent continued to op-
erate its warehouse on and after said October 1. It follows,
and I find, that Respondent could have, and should have,
taken back some of the strikers at the conclusion of the
strike. Since it did not take back any on October 1, I am
constrained to find that such conduct constitutes a viola-
tion of Section 8(a)(3) of the Act. Whether Respondent's
business conditions prevented it from taking back all its
warehouse employees , and, if so , which ones were entitled
to return to work, are issues which more properly can be
disposed of in compliance proceedings. See Weltronic Com-
pany v. N.L.R.B., 419 F.2d 1120, 1123 (C.A. 6, 1969); cert.
denied 398 U.S. 938 (1970).
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated November 1, 1973, Respondent dis-
charged 20 former strikers whom it had not yet recalled
because it had "evaluated the way in which we have been
doing business in the past and determined the way in
which we intend to do it in the future." (See G.C. Exh. 6.)
Those receiving such letter are listed in schedule C of the
complaint. Those already recalled, 23 in number, whose
names are designated on Joint Exhibit 2, did not receive
such letter . However , said letter was not sent to Deitz,
Fideli, and Quigley, although they had not been recalled,
for reasons given by Avrum Tabachneck when he testified
for Respondent . But Quigley testified at the trial. His only
incapacity was a broken leg received in an automobile ac-
cident, but which should heal and thus render him able to
return to work . However, Quigley's hospitalization , togeth-
er with that of all the strikers, was canceled by Respondent
on September 29. (See G.C. Exh. 5.) As found above such
cancellation was found to be discriminatory. As to Quigley
the discrimination apparently caused him to lose the finan-
cial benefits attributable to his hospitalization . I shall rec-
ommend that he should be reimbursed by Respondent for
said losses, if any.
On the basis of the facts found in this case I am con-
vinced, and find, that the discharge of the 20 former strik-
ers whose names appear in schedule C of the complaint,
after they, or the Union on their behalf, made an uncondi-
tional offer to return to work following the conclusion of
the strike , constitutes an unfair labor practice condemned
by Section 8(a)(3) of the Act. This is because an unfair
labor striker is entitled to have his job back when he has
offered unconditionally to return to work and, if his job or
a substantially similar one is not available , he must be
placed on a priority list for a position which may arise
thereafter. Cf. Federal Prescription Service v. N.L.R.B., 496
F.2d 813 (C.A. 8, (1974). The elimination of unit jobs, al-
beit for economic reasons , must be taken up with the
Union. Town & Country Mfg. Co., Inc. 136 NLRB 1022,
1027, enfd. 316 F.2d 846 (C.A. 5, 1963); N.L.R.B. v. Colum-
bia Tribune Publishing Co., supra . I do not consider Renton
News Record 136 NLRB 1294 (1962), as compelling a con-
trary result.
Respondent contends that its business conditions re-
quired it to adopt a permanent reduction in force which
caused those 20 named in schedule C to be discharged. But
I find that this argument is not well taken , because after a
strike ends unfair labor practice strikers must be rehired
and may not be discharged. Whether Respondent cannot
immediately reinstate said 20 in said schedule C is an issue
which may be resolved at the compliance stage of this pro-
ceeding . N.L.R.B. v. Columbia Tribune Publishing Co., su-
pra.
5. Miscellaneous matters
Respondent has vigorously attacked the credibility of
Ballou , a witness for the General Counsel, on the ground
that Ballou was under the influence of alcohol when he
spoke to officials of Respondent . But regardless of his con-
dition when he talked to such officials I find that he was
coherent when he spoke to them and that he correctly re-
membered what they said to him. Hence I find that his
being under the influence of alcohol, if true, did not affect
his ability to recall the conversations under consideration.
Further, Respondent was aware of Ballou's drinking habits
for some time, according to its testimony, but it did noth-
ing about them while he worked at its warehouse. This
indicates that Ballou's condition never disturbed Respon-
dent in the past, so that he was able to comprehend Re-
spondent in the past. And, finally, I expressly credit
Ballou 's version of said conversation , as I was impressed
with his sincerity, frankness, and demeanor on the stand.
It is desirable that I briefly mention that I find Dillen-
beck has not been reinstated for discriminatory reasons,
regardless of whether the other strikers were lawfully de-
nied reinstatement or not. This is because I expressly find
that Dillenbeck was a very strong advocate of the Union
who was also very active on its behalf, that Respondent
had knowledge of his said activity, and that, crediting the
General Counsel's evidence, Respondent stated that it
would never take back Dillenbeck. If anyone is deserving
of reinstatement certainly Dillenbeck has a very meritori-
ous case.
At this point I wish to mention that in making the find-
ings of fact set forth in this decision I have credited evi-
dence which in my opinion supports such findings. In so
crediting I have generally adopted the testimony of the
General Counsel's witnesses, although at times I have cred-
ited Respondent's testimony. But I have not given reasons
in connection with crediting each piece of testimony relied
on in arriving at such findings, as to do so would unneces-
sarily prolong an already lengthy decision.
Finally, I have been guided by, and have followed, cer-
tain rules of law in arriving at the foregoing findings. They
are set forth in this paragraph. (a) The burden of proof
rests on the General Counsel to establish the allegations of
the complaint, and this burden never shifts to the Respon-
dent. A corollary to this rule is that no burden is imposed
on Respondent to disprove any of said allegations. (b) The
failure of Respondent to prove any one or more of its de-
fenses does become affirmative evidence which will aid the
General Counsel in sustaining his burden of proof. (c) It is
not imperative that the discharges or layoffs be motivated
solely by discriminatory considerations to render them un-
lawful. It is sufficient to find such discharges or layoffs
unlawfully terminated if a substantial ground leading to
said dismissals was the union activity of the employees not-
withstanding that valid reasons may also have existed si-
multaneously for not calling back some strikers. (d) Nei-
ther engaging in union activity by employees, nor
Respondent's harboring antiunion animus, without more,
is sufficient to ascribe illegal motives to Respondent in ef-
fectuating the discharges and layoffs involved in this case.
(e) It is well established that direct evidence of discrimina-
tory motivation is not necessary to support a finding of
discrimination. Such intent may be inferred from the re-
cord as a whole. Heath International, Inc., 196 NLRB 318,
319 (1971).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Those activities of Respondent set forth in section III,
TRADING PORT, INC.
above, found to constitute unfair labor practices, occurring
in connection with its operations described in section I,
above, have a close , intimate , and substantial relation to
trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
As Respondent has been found to have engaged in un-
fair labor practices, I shall recommend that it take specific
action, as set forth below, designed to effectuate the policy
of the Act.
In view of the fact that Respondent unlawfully terminat-
ed a number of employees, it will be recommended that it
be ordered to offer each immediate and full reinstatement
to his former position, or, if such is not available, one
which is substantially equivalent thereto, without prejudice
to the seniority and other rights and privileges of each. It
will further be recommended that each be made whole for
any loss of earnings suffered by reason of his termination.
Since the discriminatory discharges or layoffs go "to the
very heart of the Act" (N.L.R.B. v. Entwhistle Mfg. Co.
(C.A. 4), 120 F. 2d 532, 536 (C.A. 4, 1941) ), I shall recom-
mend that the Order to be issued safeguard employees
against infringement in any manner of the rights vouch-
safed to them by Section 7 of the Act. R & R Screen En-
graving, Inc., 151 NLRB 1579, 1587 (1965). All backpay is
to be computed on a quarterly basis in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest at the rate of 6 percent per annum to be calculated
in the manner prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
It will further be recommended that Respondent pre-
serve and make available to the Board and its agents, upon
reasonable request , all pertinent records and data neces-
sary to aid in analyzing and ascertaining whatever backpay
may be due. It will also be recommended that Respondent
post appropriate notices.
Elsewhere in this Decision I have found that Respon-
dent, engaged in unfair labor practices forbidden by Sec-
tion 8(a)(1) and (3) of the Act. It is my opinion, and I find,
that said activities by Respondent are pervasive and inter-
fered with the exercise of a free and untrammeled choice if
an election were held and also tended to foreclose the pos-
sibility of holding a fair election. Accordingly, I find that
Respondent has committed a violation of Section 8(a)(5) of
the Act by refusing to recognize the Union in an appropri-
ate unit under the circumstances set out above, that a bar-
gaining order is proper, that an election is not required,
and that employee sentiment once expressed through cards
will, on balance, be better protected by a bargaining order
without an election. N.L.R.B. v. Gissel Packing Co., 395
U.S. 575, 614-615 (1969).
Upon the basis of the foregoing findings of fact and the
entire record in this 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.
317
2. Respondent is an employer within the meaning of
Section 2(2); and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
3. By engaging in the following conduct Respondent
committed unfair labor practices contrary to the provisions
of Section 8(a)(1) of the Act:
(a) Threatening to hire permanent replacements for em-
ployees engaged in a strike against unfair labor practices.
(b) Threatening to cause employees to lose their jobs or
to take other reprisals if they selected a union or went on
strike.
(c) Promising benefits to employees if they forgot the
Union or if they returned to work before the strike termi-
nated.
(d) Promising an employee a position in a "sort of com-
pany union," and asking employees if the strike could be
settled without the Union.
(e) Threatening to close its warehouse as a reprisal
against the strike and refusing to take back unfair labor
practice strikers when the strike ended.
(f) Requesting employees to influence other employees
to agree with Respondent's opposition to a union in the
warehouse.
(g) Asking employees how they were going to vote in the
N.L.R.B. election.
(h) Promising to take back an employee out of seniority
if said employee could induce those with low seniority to
come to work.
4. By discriminating in regard to the tenure of employ-
ment of those mentioned in schedules A, B, and C of the
complaint, thereby discouraging membership in the Union,
a labor organization, Respondent has engaged in unfair
labor practices prohibited by Section 8(a)(3) and (1) of the
Act.
5. All warehousemen and driver employees employed
by Respondent at its warehouse located at North Manning
Boulevard and Prospect Avenue, Albany, New York, ex-
cluding all office clerical employees, professional employ-
ees, guards, and supervisors as defined in Section 2(11) of
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
6. On or about September 4, 1973, and at all material
times thereafter, the Union represented a majority of the
employees in the above appropriate unit, and has been the
exclusive representative of all said employees for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(a) of the Act; and Respondent was on that date, and
has been since, legally obligated to recognize and bargain
with the Union as such.
7. By engaging in the following conduct Respondent has
committed unfair labor practices prohibited by Section
8(a)(5) and (1) of the Act:
(a) Refusing to recognize and bargain collectively with
the Union in regard to the employees in said appropriate
unit on or about and since September 4, 1973.
(b) Encouraging an employee to form an employee
grievance committee to deal directly with Respondent
rather than through Local 294.
(c) Unilaterally ceasing to pay its share of the medical
insurance premiums of its warehouse employees without
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first bargaining thereon with Local 294.
8. The above-described unfair labor practices affect
commerce within the contemplation of Section 2(6) and (7)
of the Act.
9. Respondent has not committed any other unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDERI
Respondent, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any
other labor organization, by discharging or laying off em-
ployees or otherwise discriminating in any manner in re-
spect to their tenure of employment or any term or condi-
tion of employment.
(b) Refusing to recognize and bargain with the Union as
the exclusive bargaining representative of all the employees
in the above-described appropriate unit.
(c) Encouraging employees to form an employee griev-
ance committee to deal directly with Respondent rather
than through Local 294.
(d) Unilaterally ceasing to pay its share of the medical
insurance premiums of its warehouse employees without
first bargaining thereon with Local 294.
(e) Threatening to hire permanent replacements for em-
ployees engaged in an unfair labor practice strike.
(f) Promising economic benefits to employees if they
forgot the Union or if they returned to work before their
strike ended.
(g) Threatening to close its warehouse as a reprisal
against a strike and refusing to take back unfair labor prac-
tice strikers when such strike ended.
(h) Requesting employees to influence other employees
to agree with Respondent's opposition to a union in the
warehouse.
(i) Asking employees how they would vote in an
N.L.R.B. election.
(j) Promising employees to take them back out of se-
niority if they could induce other employees with low se-
niority to return to work.
(k) Threatening to close its warehouse or take other re-
prisals if its employees chose a collective-bargaining repre-
sentative.
(1) Coercively interrogating employees concerning their
and other employees' union membership, activities, and
desires.
(m) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
i In the event no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations , the findings, conclusions , recommenda-
tions, and recommended Order herein shall, as provided in Sec. 102.48 of
said Rules and Regulations , be adopted by the Board and become its find-
ings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, recognize and bargain with the Union
as the exclusive representative of all employees in the
aforesaid appropriate unit and, if an understanding is
reached, embody such understanding in a written, signed
agreement.
(b) Immediately resume paying its share of the medical
insurance premiums of its warehouse employees, including
those reinstated by this decision, to the extent it has not
already done so, and reimburse any of said employees for
any losses they may have suffered by reason of
Respondent's unilateral cancellation of its said share on or
about September 29, 1973.
(c) Bargain collectively with Local 294 regarding what
part, if any, of the premiums mentioned in the preceding
paragraph Respondent is to pay.
(d) Offer to each of the employees whose names are set
out in schedules A, B, and C of the complaint, who have
not yet been recalled to work, immediate and full reinstate-
ment to his former job or, if it no longer exists, to a sub-
stantially equivalent one, without prejudice to the seniority
and other rights and privileges previously enjoyed by each.
(e) Make whole each employee described in the preced-
ing subparagraph, as well as all other employees in said
schedules A, B, and C who have already been recalled to
work, for any loss of pay each may have suffered by reason
of Respondent's discrimination against him, for the period
commencing October 1, 1973, to the date of reinstatement
or an offer of reinstatement. Such backpay, if any, shall be
with interest at the rate of 6 percent as provided in the
section above entitled "The Remedy."
(f) Preserve and, upon reasonable request, make avail-
able to the Board and its agents, for examination and copy-
ing, all payroll records and reports and all other records
required to ascertain the amount, if any, of any backpay
due under the terms of this recommended Order.
(g) Post at its premises at Albany, New York, copies of
the attached notice marked "Appendix." 2 Copies of said
notice, after being signed by a duly authorized representa-
tive of Respondent, shall be posted by it immediately upon
receipt thereof, in conspicuous places, including all places
where notices to employees are customarily displayed.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(h) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from receipt of this decision, what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
REPORT ON OBJECTIONS
Although the Union lost the election, it has filed timely
2 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
TRADING PORT, INC. 319
objections to conduct affecting the results of the election.
(See G.C. Exh. 1(e).) Those numbered 1, 3, 4, 5, 6, and 9
are before me for disposition. Said objections in substance
allege that Respondent (a) made promises of benefits and
solicited grievances in order to discourage support for the
Union; (b) laid off and terminated employees in violation
of Section 8(a)(3) of the Act; (c) interrogated employees
concerning their loyalty to the Union and how they would
vote in the election; (d) made promises of benefits to em-
ployees if they did not vote in the election; and (e) threat-
ened employees with loss of jobs and plant closing if the
Union won the election.
In section C, above, I have made findings of fact on the
issue of whether Respondent engaged in any violations of
the Act. Some of those findings disclose that Respondent
committed acts prohibited by Section 8(a)(1), (3), and (5)
of the Act. However, as the Union's foregoing objections
do not involve Section 8(a)(5) of the Act, Respondent's
conduct contravening said Section 8(a)(5) may be disre-
garded upon this aspect of the case. But the 8(a)(1) and (3)
violations relevant to the present issue are briefly set out in
the remainder of this portion of my decision.
As found above, Respondent contravened the Act when
it:
(1) Threatened to cause employees to lose their jobs if
they selected a union.
(2) Threatened to hire permanent replacements for the
unfair labor practice strikers.
(3) Promised economic benefits if employees forgot the
Union.
(4) Promised employee Dillenbeck a position as repre-
sentative of a "sort of company union."
(5) Threatened to padlock the warehouse and told strik-
ing employees they would never be taken back after the
strike ended.
(6) Threatened to discharge employees if they struck.
(7) Asked Passino and Robinson how they were going to
vote in the N.L.R.B. election; and asked Ballow how the
employees would vote in said election.
(8) Told Passino that it would give priority to those
strikers who returned before the strike terminated.
(9) Asked Ballow if the strike could be settled without
the Union.
(10) Promised to keep Ballow in mind if he refrained
from voting in the election.
(11) Told Stockwell during the strike it would close the
warehouse before letting a union in said warehouse. (The
foregoing 11 instances violate Section 8(a)(1) of the Act.)
(12) Terminated and laid off employees for discrimina-
tory reasons proscribed by Section 8(a)(3) of the Act.
On the basis of the foregoing facts I find that the elec-
tion should be set aside, and I so recommend. But I find, as
more fully described above, that Respondent's said unfair
labor practices are pervasive so as to prevent the holding of
a free election , and that consequently, a bargaining order
based on a card count is warranted. Hence I additionally
recommend that the RC petition in Case 3-RC-5853 be
dismissed and that all prior proceedings held thereunder be
vacated in view of the remedy requiring recognition and
bargaining based on a card majority. Irving Air Chute, Inc.,
149 NLRB 627, 629 (1964). Said recommendations are
made to the Board because the Regional Director's order
directing a hearing on the objections provides that my de-
cision relating to said objections "be transferred to and
continued before the Board in Washington, D.C." and his
said order also states that the filing of exceptions in said
RC case shall be governed by Section 102.69(e) of the
Board's Rules and Regulations.