Twin County Transit Mix, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1962

137 N.L.R.B. 1708 (N.L.R.B. 1962)

1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.of a legitimate action the law is modified to make unlawful motives theretofore
valid, it should not be lightly presumed that efforts to eliminate those motives from
the action are not genuine. I therefore find that throughout the picketing the Re-
spondent's object, that is, the action which would have resulted in the cessation
of the picketing, was the satisfactory solution of its controversy with F.G. & W., and
the reopening of that plant.
The Respondent's communications to the Regional Director and to Coed in late
November constituted effective notice that the objectives at Coed of recognition and
organizing were being abandoned. The picketing was thereupon discontinued for
several days. When it was resumed it was with new picket signs declaring pur-
poses not violative of Section 8(b)(7). There is no evidence suggesting that these
declarations, and the Respondent's supporting testimony, were not genuinely reflective
of the Respondent's design after November 30, 1959. In the face of such specific
disclaimers, and in the absence of any evidence tending to negate them, it cannot
be presumed that the Respondent's objectives continued as before. If the Respond-
ent's action ,was not effective to evidence a change of objective, it is difficult to con-
ceive how such a change could be evidenced or manifested other than by the
permanent abandonment of all picketing, regardless of purpose. I do not think
that such abandonment is a prerequisite to a credible defense. It is true, as the
General Counsel says, that once a motive for action is established, there is gener-
ally a presumption that the motive persists until evidence indicates that it no longer
exists. See, for example, Local 222, International Ladies' Garment Workers' Union,
AFL-CIO (Valley Knitting Mills, Inc.), 126 NLRB 441, and cases cited therein.
The rule is a presumption, however, and rebuttable. It is not conclusive. In the
instant case, in my judgment, the evidence rebuts the presumption. There is no
basis for conclusion that the Respondent's disclaimers were mere pretexts. Whether
the picketing could be carried on validly now, in view of the dissolution of F.G. & W.,
is not presented and need not be decided.
It is therefore found that the evidence does not sustain the allegations of the
complaint to the effect that since December 15, 1959, the Respondent has picketed
Coed and Adrian with the object of forcing and requiring Coed to recognize and
bargain with the Respondent as the collective-bargaining representative of the
employees of Coed, and to force and require those employees to accept and select
Respondent as their collective-bargaining representative.
It is therefore unnecessary to consider other questions, such as (1) whether
peaceful picketing of the kind here involved, absent evidence of specific incidents
of force or threat, constitutes "forcing or requiring" within the meaning of Section
8(b)(7); (2) whether the section is applicable only to action directed to securing
exclusive recognition, and is inapplicable to attempts to achieve members-only rep-
resentation; 3 (3) whether the Regional Director's summary direction of election
is reviewable in this proceeding, and if so the validity of his action, and against
what standards it is to be measured; and (4) whether F.G. & W., Coed, and Adrian
are allies, and if so, the effect thereof on this controversy.
RECOMMENDATION
It is recommended that the complaint be dismissed in its entirety.
3If it is the former, the effect of the Board's September decision holding that the evi-
dence did not manifest such an object, would probably have to be considered.
Twin County Transit Mix, Inc. and Local 282, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America and Teamsters , Warehousemen , Helpers
and Production Workers, Local 424, Ind ., Party to the Con-
tract. Case No. 2-CSI.-8164_ Jul?' 30, 1062
DECISION AND ORDER
On April 24, 1962, Trial Examiner Max M . Goldman issued his
Intermediate Report in the above -entitled proceeding, finding that
137 NLRB No. 184.
TWIN COUNTY TRANSIT MIX, INC. 1709
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the General Counsel's exceptions and brief, and the
entire record in the case, and, as it finds merit in some of the General
Counsel's exceptions, adopts the findings, conclusions, and recommen-
dations of the Trial Examiner only to the extent consistent herewith.
The facts, as found by the Trial Examiner, are not in dispute. The
Respondent is engaged in the manufacture, sale, and distribution of
ready-mixed concrete in the Smithtown, New York, area. From
July 1 to August 25,1961, Local 282, the Charging Party, engaged in a
strike against a group of employers (not including the Respondent)
in the ready-mixed concrete industry in the New York City area over
the terms of a new contract. During the course of that strike, Local
282 sought unsuccessfully to persuade the Respondent to close down
its operations until the strike ended. When the Respondent refused
to comply, four of its seven drivers went on strike.
In its efforts to avoid a shutdown, the Respondent offered to recog-
nize and contract with Local 282 as the bargaining representative of
its drivers. Finally, on July 28, Local 282 submitted a proposed
contract, but no action was ever taken on it. Beginning on July 28,
Local 282 picketed the Respondent's premises. On August 23, the
Respondent received by telephone a demand for recognition as the
representative of its drivers from Teamsters, Warehousemen, Helpers
and Production Workers, Local 424, Ind., herein referred to as the
Independent. This demand was rejected by the Respondent on the
ground that Local 282 also claimed to represent a majority of the
drivers.
On August 25, Local 282 ended its dispute with the area employers
and the picketing of the Respondent's premises stopped, at least by
that time. Sciortino, one of the Respondent's striking drivers, tele-
phoned the Respondent that same day to ask about returning to work.
An appointment was arranged for August 28, when all the striking
drivers appeared at the Respondent's premises. They were told by
Muratore, the Respondent's general manager, however, that they
could not be given any definite answer about returning to work be-
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of the pendency of some unidentified court proceeding, and
that it would be best to leave things "as they are right now." When
the drivers asked whether they could "shape up" for work each day,
Muratore replied that new men had been hired and there were no
trucks available for the returning strikers.
On August 29, the Independent filed an election petition with the
Board, in which it stated that no other union claimed to represent
these employees. On August 31, Riccardi, secretary-treasurer of the
Independent, appeared at the Respondent's plant and again demanded
recognition, threatening that all eight of the drivers then employed
by the Respondent would strike that day unless such recognition was
accorded. The claim was made in the presence of the eight drivers,
who indicated their support of the Independent's demands. On that
same day, the Respondent signed a collective-bargaining agreement
with the Independent which included a union-security clause. A few
days later, the Independent withdrew the petition it had filed with
the Board.
When the business agent of Local 282 and the four striking drivers
appeared at the Respondent's premises on September 5, they were
told by the president of the Respondent that the Respondent had
signed a contract with the Independent and that the striking drivers
had been replaced. Local 282 thereup began to picket the premises
with signs stating that the striking drivers had been locked out, and
that they sought reinstatement to their jobs.
The General Counsel contends that the Respondent violated Sec-
tion 8 (a) (2) and (1) of the Act by recognizing the Independent
while a real question concerning representation existed, and that it
violated Section 8(a) (3) and (1) of the Act by executing, during the
pendency of such a question, a contract requiring membership in the
Independent as a condition of employment. The Trial Examiner
recommended dismissal of the complaint on the grounds that (1) no
real question concerning representation existed at the time the con-
tract was executed, and (2) the striking drivers and Local 282 aban-
doned the strike and their jobs by failing to take any action in con-
nection therewith from August 28 to September 5. As he found no
violation of Section 8(a) (2), the Trial Examiner recommended dis-
missal of the Section 8(a) (3) allegation as well.
Real question concerning representation: We adopt the Trial Ex-
aminer's findings, as to which there have been no exceptions, that the
strike conducted by Local 282 against the Respondent commencing
around July 28 was economic and that the Respondent had replaced
all the strikers before executing the contract with the Independent.
We do not agree with his conclusion, however, that Local 282 thus
lost its showing of interest, for the economic strikers here involved
TWIN COUNTY TRANSIT MIS INC 1711
who had been replaced remained employees under the Act.' The
entire course of dealings between the Respondent and Local 282 dur-
ing the months of July and August establishes a claim by Local 282
to represent a majority of the employees, and acknowledgment by the
Respondent that such a claim existed, even though no specific request
for recognition was made.' The claim, moreover, was substantiated
by the fact that four of the seven employees in the unit at the time
struck in support of Local 282.' We find that this was a sufficient
showing of interest to create a real question concerning representa-
tion, and that the Respondent was therefore prohibited from recog-
nizing any union until the Board had determined that question'
Alleged abandonment of the strike: The Trial Examiner also found
that the failure of Local 282 and the striking drivers to communicate
with the Respondent from August 28 to September 5 constituted an
abandonment of the strike and their jobs. He reasoned that, because
of such abandonment, the economic strikers would not have been
permitted to vote in a Board election,' and that, therefore, the claim
of Local 282 was ". . . but an unsupported claim which could not give
rise to a question concerning representation." We do not agree.
During the 4 working days before the Respondent signed the con-
tract with the Independent, it held three discussions with one or
more of the striking employees. In none of these discussions did the
Respondent state unequivocally that it had no intention of taking
them back. The record does not show any affirmative act on the part
of the strikers renouncing their claims to employment, or on the part
of Local 282 renouncing its claim as the bargaining representative.
Nor does it show acquiescence by the strikers or Local 282 in the
Respondent's refusal to put the men back to work or in its failure
to recognize Local 282. On the contrary, when the Respondent in-
formed the striking drivers and the business agent of Local 282, on
September 5, that it had signed a contract with another union and
did not contemplate reinstating the strikers, they immediately threw
a picket line around the Respondent's plant to protest this action.
1 Section 2 ( 3) of the Act states "The term `employee ' shall include any employee . . .
and shall include any individual whose work has ceased as a consequence of, or in con-
nection with , any current labor dispute . . . and who has not obtained any other regular
and substantially equivalent employment No contention was made herein that.11
the striking drivers had obtained other employment within the meaning of this provision
2 Brittany Dyeing and Printing Corp , 126 NLRB 785
3 lVillsaia S Shitrett, d/b/a Greyhound Terminal , 137 NLRB 87 (IR)
4 Midwest Piping if Supply Co, Inc. , 63 NLRB 1060 See also Scheri er and Davidson
Logging Company, 119 NLRB 1587 , Novak Logging Company , 119 NLRB 1573 And see
N.L.R.B . v. Signal Oil and Gas Co, 303 F 2d 785 (C.A 5)
5 Section 9(c) (3) of the Act reads as follows: "Employees engaged in an economic strike
who are not entitled to reinstatement shall be eligible to vote in any election con-
ducted within twelve months after the commencement of the strike " The Board has
held that this clause protects the voting rights of those actually engaged in an economic
strike at the time of the election , but that if the strike has been abandoned , the strikers
are not entitled to vote The Martin Bros Container if Timber Products Coop, 127
NLRB 1086
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under these circumstances, we find that the strike continued at all
relevant times herein, and that neither the strikers nor Local 282
abandoned their claims against the Respondent.
As we have found that, on August 31, 1961, Local 282 had an active
and continuing claim to represent a majority of the employees, and that
such claim was supported by an adequate showing of interest, we find
that the Respondent violated Section 8 (a) (2) and (1) by recognizing
Local 424 while a real question concerning representation existed. We
further find that, by including a union-security provision in its unlaw-
fully executed contract, the Respondent also violated Section 8(a) (3)
and (1) of the Act.'
THE REMEDY
Having found that the Respondent has engaged in and is engaging
in certain unfair labor practices, we shall order that it cease and desist
therefrom and take certain affirmative action which we deem neces-
sary to effectuate the policies of the Act.
We have found, contrary to the Trial Examiner, that the Respondent
entered into a collective-bargaining contract with the Independent at
a time when a question concerning representation existed, in violation
of Section 8(a) (2) and (1) of the Act. We shall, therefore, order the
Respondent to cease and desist from rendering any unlawful support
or assistance to the Independent, to cease and desist from giving effect
to any of the terms and conditions of its contract with the Independent,
and to withdraw and withhold all recognition from the Independent
as the collective-bargaining representative of any of the Respondent's
employees until such time as the Independent shall have been certified
by the Board as the exclusive representative of the Respondent's em-
ployees in an appropriate bargaining unit.
We have also found, contrary to the Trial Examiner, that the Re-
spondent, by entering into a collective-bargaining contract in violation
of Section 8(a) (2) and including therein a provision requiring mem-
bership in the Independent as a condition of employment, encouraged
membership in the Independent and discouraged membership in Local
282, in violation of Section 8(a) (3) and (1) of the Act. We shall,
therefore, order the Respondent to cease and desist from such conduct.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Twin County
Transit Mix, Inc., Smithtown, New York, its officers, agents, succes-
sors, and assigns, shall :
e Paul Btazevich , et al, d/b/a MV "Liberator," 136 NLRB 13 ; Burke Oldsmobile, Inc,
128 NLRB 79, 85.
TWIN COUNTY TRANSIT MIX, INC. 1713
1. Cease and desist from :
(a) Assisting or contributing support to Teamsters, Warehouse-
men, Helpers and Production Workers, Local 424, Ind., herein referred
to as the Independent, or to any other labor organization.
(b) Recognizing or contracting with the Independent or any
successor thereto, as the representative of its employees for the pur-
pose of collective bargaining with respect to wages, rates of pay, hours
of employment, or other terms and conditions of employment, unless
and until such labor organization shall have been duly certified by
the National Labor Relations Board as the exclusive representative
of the said employees.
(c) Giving effect to the collective-bargaining contract dated Au-
gust 31, 1961, between the Respondent and the Independent or to any
extension, renewal, or modification thereof, unless and until the Inde-
pendent shall have been duly certified by the National Labor Rela-
tions Board as the exclusive representative of the Respondent's
employees; provided, however, that nothing in this Decision and
Order shall require the Respondent to vary or abandon those wage,
hour, seniority, or other substantive features of its relations with its
employees, established pursuant to any such agreement, or to prejudice
the assertion by employees of any rights they may have thereunder.
(d) Encouraging membership in the Independent, or discouraging
membership in Local 282, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein referred
to as Local 282, or in any other labor organization, by conditioning
the hire or tenure of employment or any term or condition of employ-
ment upon membership in, affiliation with, or dues payments to, any
labor organization, except as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
(e) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist Local 282, or any labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of mutual aid or protection as guaranteed in Section 7 of the
Act, and to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
649856-63-vo1. 137-109
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Withdraw and withhold all recognition from the Independent
as the exclusive representative of the Respondent's employees for the
purposes of collective bargaining unless and until said labor organiza-
tion has been duly certified by the National Labor Relations Board
as the exclusive representative of such employees.
(b) Post at its plant in Smithtown, New York, copies of the notice
attached hereto marked "Appendix.1,' 7 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent's representative, be posted
by it immediately upon the receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that these notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
7 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Ordei "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT assist or contribute support to Teamsters, Ware-
housemen , Helpers and Production Workers, Local 424, Ind.,
or to any other labor organization.
WE WILL NOT recognize or contract with the Independent Union,
or any successors , as the representative of any of our employees
for the purpose of collective bargaining with respect to wages,
rates of pay , hours of employment, or other terms and conditions
of employment, unless and until such labor organization shall
have been certified by the National Labor Relations Board as the
exclusive representative of our employees.
WE WILL NOT give effect to the agreement entered into with the
Independent Union on August 31, 1961, or to any extension,
renewal, or modification thereof, or to any superseding agreement,
unless and until the Independent Union shall have been certified
by the National Labor Relations Board as the exclusive repre-
sentative of our employees.
WE WILL NOT encourage membership in the Independent Union
or discourage membership in Local 282, International Brother-
TWIN COUNTY TRANSIT MIX, INC. 1715
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization, by conditioning the
hire or tenure of employment or any term or condition of em-
ployment upon membership in, affiliation with, or dues payments
to, any labor organization, except where such conditions shall have
been lawfully established by an agreement in conformity with
Section 8 (a) (3) of theAct.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Local
282, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of mutual aid or pro-
tection, and to refrain from any and all such activities, except to
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a) (3) of the Act.
WE WILL withdraw and withhold all recognition from the In-
dependent Union as collective-bargaining representative of any
of our employees unless and until the Independent Union shall
have been certified by the National Labor Relations Board as the
exclusive representative of such employees.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
formity with Section 8(a) (3) of the Act.
TWIN COUNTY TRANSIT MIX, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 5th Floor, Squibb Building, 745 Fifth Avenue, New York 22,
New York, Telephone Number, Plaza 1-5500, if they have any ques-
tion concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding upon a complaint issued October 9, 1961, against Twin County
Transit Mix, Inc ., herein also called the Respondent or the Company, involves Sec-
tion 8 ( a)(1), (2), and ( 3) allegations and was initiated upon a charge filed Sep-
tember 18, 1961 , by Local 282, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein also called the Charging Party
or the Union. Involved in the events as Party to the Contract is Teamsters, Ware-
housemen, Helpers and Production Workers, Local 424, Ind., herein also called the
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Independent . The hearing was conducted between October 23 and November 2,
1961 , at Easton , Pennsylvania, and New York, New York, before Trial Examiner
Max M . Goldman.
Upon the entire record in the case , and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Twin County Transit Mix, Inc., a New York corporation, with its principal office
and place of business at Smithtown, New York, is engaged in the manufacture, sale,
and distribution of ready-mixed concrete and related products. During the past year,
which period is representative of its annual operations generally, in the course and
conduct of its business, the Company purchased and caused to be transported and
delivered to its place of business, cement and other goods and materials valued in
excess of $50,000, of which goods and materials valued in excess of $50,000 were
transported and delivered to it and received from other enterprises located in the
State of New York each of which other enterprises had received the said goods and
materials in interstate commerce directly from States of the United States other than
the State in which it is located. It is conceded and the Trial Examiner finds that the
Company is engaged in commerce within the meaning of the Act.
U. THE LABOR ORGANIZATIONS
Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America; and Teamsters, Warehousemen, Helpers and Production
Workers, Local 424, Ind., are labor organizations within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The events
There was a strike concerning a new contract in the ready-mixed concrete industry
in the New York City area between about July 1 and August 25, 1961. The Union
was a party to this dispute, but the Company had never had a contract with the
Union and was not a party to the negotiations.
For reasons of its own, the Company shut down its operations on July 1 at the
beginning of the industry strike. On June 30, the Company employed seven regular
drivers.' On July 25, while the industry strike was in progress, the Company decided
to resume its operations and to begin delivering concrete to its customers. Prior to
resuming operations, a meeting was held by Peter Intrabartilo and Joseph Muratore,
the Company's president and general manager, respectively, and the employees, to
arrange their return to work. Some of the drivers present, who referred to themselves
as "bookmen," decided not to return to work .2 Intrabartilo admittedly knew prior
to this time that Longobardi, Sciortino, and Joachim carried union books and that
Monti carried a book from a sister local. In fact, Intrabartilo had earlier suggested
to the bookmen that they keep their union books up to date. These four bookmen
did not on July 25 and the other three drivers did, on that date, return to work.
i The seven drivers in the Company's employ on June 30 were: Nick Sciortino, George
Longobardi, Salvatore Monti, Al Joachim, Harold DeJohn, John Sohl, and Tom Bociek.
Donald Kiesecker was also on the Company's payroll on June 30. Kiesecker, who was
an experienced driver in the transit mix Industry, was a temporary employee who worked
on June 29 and 30 only, and was hired for the sole purpose of training Bociek who was
then a new employee.
2 The Union's records show that the following drivers' last paid dues before this event
on the first date appearing opposite their names and next paid dues on the next date
shown :
Al Joachim---------------------------- March 30, 1959 August 23, 1961
Nick Sciortino------------------------- October 15, 1959 August 3, 1961
George Longobardi_____________________ June 26, 1961 August 3, 1961
Salvatore Monti did not attend the meeting referred to above and, according to the
Union's records, was not transferred from a sister local to the Union until August 10, 1961.
There was no showing that Joachim, Sciortino, or Longobardi lost membership in the
Union by expulsion or withdrawal. See United States Gypsum Company, 90 NLRB 964,
983 ; and N.L R.B. v. National Seal Corporation, 127 F. 2d 776, 779 (C.A. 2).
TWIN COUNTY TRANSIT MIX, INC. 1717
The next day, July 26, Union Delegate Thomas McElligott visited Intrabartilo at
the Company's office. The two men who had known each other over the years
had talked about the unionization of the Company about a year earlier. In the
discussion of July 26, McElligott asked Intrabartilo not to operate during the
industry strike. Intrabartilo replied that he would like to cooperate, but that his
trucks were the subject of certain indebtedness, and that if payments were not
made as required, when the industry strike was over he might not have a company
left concerning which to negotiate a contract with McElligott.
McElligott and Intrabartilo met again on July 26. On this occasion Muratore and
some of the bookmen who had refused to return to work were also present. During
the course of this event, Intrabartilo stated that he would sign any contract so that
he could operate the business. McElligott stated that he had only the original con-
tract. Intrabartilo proposed that the men return to work and that he would sign
a contract after the industry dispute was resolved. No agreement was reached.
The following day, July 27, in accordance with a decision reached earlier in a
meeting which some of the men had with the Company, the bookmen-Sciortino,
Joachim, Monti, and Longobardi-returned to work for the first time. At the end
of that day, some of the bookmen again met with Intrabartilo and Muratore and
stated that they were jeopardizing their union books by working and were going
to cooperate with the Union by refusing to work. This was the last day the four
bookmen named above worked for the Company.
A large crowd gathered in front of the Company's premises on the next day,
July 28. Among those present were McElligott and Intrabartilo. On this occasion
Intrabartilo stated that if the Union gave him a contract, he would sign it providing
he could resume operations. McElligott stated that he did not have a contract with
him at the time. Later that day representatives of the parties and some of the
bookmen met in the Company's office and McElligott handed Intrabartilo the
original 29 proposals which the Union had used in the industry talks, but which
in those negotiations had by then been narrowed to 6, declaring that if the Company
could live with those proposals it was the Company's business. On this or another
occasion, McElligott declared that the Company could never "eat" the Union's
original 29 proposals. The Company's representatives stated that they would sub-
mit the matter to their attorney and get in touch with the Union .3 As of this
date, July 28, the Respondent had not hired any drivers since the time it shut down
its operations on July 1.
Beginning about July 28, the Union began picketing the Respondent's premises.
The Respondent conceded that the four bookmen participated in the picketing and
after July 27, when they started picketing, had allied themselves with the Union.
The picketing continued until about August 25, and the picket signs stated that the
Company was on strike or unfair .4 The Company thereafter operated with the
three original employees and with newly hired permanent replacements.
Around August 23, while the industry dispute and the picketing at the Company
were still in progress, Mario Riccardi an officer of the independent, telephoned
Intrabartilo and, claiming to be the majority representative, requested recognition.
Intrabartilo informed Riccardi that the Union also claimed to represent the majority
of the men. Before the conversation ended, Riccardi stated that he would file a
petition with the Board. On August 29, the Independent filed a petition in which
it stated that no other claim had been made by any other labor organization .5
As already noted the industry dispute came to a close on Friday, August 25. On
that day, Sciortino, who had been at the union meeting when the settlement was
announced, thereupon telephoned Intrabartilo stating that he would like to talk to
Intrabartilo about returning to work. Intrabartilo declined to discuss the matter
on the telephone and suggested that they talk at the plant on Monday morning. On
Monday morning, August 28, Sciortino, Longobardi, Monti, Joachim, and Kiesecker,
who had been a temporary employee immediately prior to the closing of the plant
on July 1, appeared at the premises. Muratore ordered Joachim off the premises
and -Intrabartilo ordered Kiesecker off the premises. Although Muratore stated that
the order did not apply to the other men, the other three bookmen thereupon also
left. Intrabartilo explained at the hearing that the only one of the men he had
considered reemploying was Monti, because of the type of conduct, which he viewed
as coercive, the others had engaged in during the course of the strike. Later that
3In another proceeding before the Trial Examiner ( Case No. 2-CC-649) [137 NLRB
858) involving the Company and the Union, the record as there developed concerning
this incident supported a finding that the Union's representatives stated that they would
return in a few days for further discussions.
' This finding is based upon notice of the findings in Case No. 2-CC-649, above.
Case No. 2-RC-11556 , not published in NLRB volumes.
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day, while Monti waited outside, Sciortino and Longobardi again appeared at the
premises and talked with Muratore. Sciortino asked Muratore whether the drivers
would be returned to work in the positions they had held prior to the strike.
Muratore replied that he could not give them an answer at that time because of
some court proceeding. Sciortino asked whether they could "shape the job" or
appear for work in the mornings to get such work as was available. Muratore stated
that they could appear for work at any time they wanted to, but that the Company
had all the men it needed and there were no trucks available. The record does not
show that the Union and/or the bookmen picketed on this day or during that week.
On the morning of August 31, Riccardi of the Independent, who had claimed to
represent the Company's employees in a telephone conversation with Intrabartilo
about August 23, was present with the Company's then total of eight drivers when
Intrabartilo arrived for work. In the presence of the eight men, all of whom had
signed authorization cards which were then on file with the Board in support of the
representation petition, Riccardi declared that he represented all of the drivers and
that there would be no work unless the Company recognized the Independent. About
an hour or two after the regular starting time, Intrabartilo recognized the Inde-
pendent and undertook to bargain regarding a contract, on condition that the drivers
return to work. The eight drivers thereupon returned to work. Later that day, the
Company and the Independent executed an agreement, which, among other things,
required membership in good standing in the Independent as a condition of employ-
ment. It is conceded that this contract was thereafter maintained and enforced.
A few days after the contract was signed, the Independent withdrew the petition then
pending with the Board.
McElligott, who had been at the picket line every day during the course of the
industry dispute, returned to the Company's premises on the day after Labor Day,
Tuesday, September 5, in an effort to get the bookmen back to work. Present
during this incident were other officials of the Union, the four men, and also
Intrabartilo and Muratore. Intrabartilo stated that he had signed a contract with
the Independent as the then drivers had engaged in a strike. Intrabartilo stated
further that he could not take the four men back as he had hired new men to take
their place. On the afternoon of September 5, after a hiatus in the picketing the
Union's pickets reappeared at the Company' s premises this time with signs declar-
ing in effect that they were locked out by the Company and that all they wanted was
their jobs.6
B. The conclusions
The General Counsel, relying upon a Midwest Piping 7 theory, alleges through
his complaint that the Union made a claim to the representation of the Company's
drivers on July 28, that the Independent made the same claim when it filed its
representation petition on August 29, that a question concerning representation thus
arose, and that the Company resolved that question by recognizing and contracting
with the Independent on August 31, and it thereafter maintained and enforced the
contract which requires membership in the Independent as a condition of employment
in violation of Section 8(a) (1), (2), and (3) of the Act.
There are certain difficulties with the General Counsel's theory. On August 31,
when the Company recognized and contracted with the Independent, the Company
was faced with an unmistakable demonstration of the Independent's representative
status-a strike by all of its then eight permanent employees to obtain recognition
and bargaining. Knowing that there was no vacancy for any of the four union
members who had struck, that these people would not then be reemployed, and
hence could not dilute a unanimous showing of adherence to the Independent, the
Company thereupon effectuated its then employees' immediate right to be represented
by the labor organization of their own choosing by recognizing and contracting with
the Independent. As at the time of the Independent's recognition all of the Union's
members had been replaced by permanent employees, it would follow that the
Union did not have any showing of interest to support its claim to representation
upon the basis of membership among the Company's employees, and consequently
on that basis no real question concerning representation then existed.8
The General Counsel can find little comfort in Section 9(c) (3), as amended,
to support his argument that the union members would have been eligible to vote
in a representation election as replaced economic strikers. Although this section of
9 The findings as to the picketing is based upon notice of the findings and the record
in another proceeding before the Trial Examiner (Case No 2-CC-653) [137 NLRB 1321],
involving Acme Concrete & Supply Corp. and the Union.
a Midwest Piping & Supply Co., Inc., 63 NLRB 1060.
s See Coronet Manufacturing Company, 133 NLRB 641.
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 1719
the Act does establish the eligibility of replaced economic strikers to vote along
with permanent replacements to resolve a question concerning representation, this
provision also states that eligibility to vote is to be limited to employees "engaged"
in pan economic strike 9 Here, on August 25, the day the industry strike had come to
an end , a union member called the Company in an effort to return to work, and
by the close of the day on August 28, all of the Union's members had shown
a desire to return to work and were told that there were no jobs available. For a
period of about a week thereafter there is no showing of any conduct by the four
union members or the Union showing any further interest in employment at the
Company or any dispute with the Company. It was not until September 5, several
days after the Independent was recognized, that the four union members and the
union representatives next reasserted their interest by seeking reemployment. At
that time the Company again pointed out that the jobs had been filled by permanent
replacements and refused to reemploy the union men. It was not until this point
in the sequence of events that the Union started to picket again and this time
asserting that the union members were locked out. On this state of the record,
balancing the concurrence of the ending of .the industry dispute with the application
for employment by the unionmen and the absence of a showing of any conduct
by the Union or the men for a period of about a week thereafter that would indicate
a continuing dispute with the Company, as against the picketing activity thereafter
protesting the refusal to hire, it is found that the strike had been abandoned at the
time of the recognition of the Independent and that the four men were then no longer
engaged in the strike.
It thus appears that as all of the Union's members were permanently replaced in
the course of an economic strike, and as its members were no longer engaged in a
strike under Section 9(c) (3), the Union had but an unsupported claim which could
not give rise to a question concerning representation. The Independent demonstrated
its representative status by the strike among the employees to obtain recognition,
and the Company was then under a duty to bargain with it. Since the Independent
was the majority representative, the Company was privileged to contract with it for
the union-security provision described above. Accordingly, it will be recommended
that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union and the Independent are labor organizations within the meaning
of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint within the meaning of Section 8(a)(1), (2), and (3) of the Act.
RECOMMENDATION
Upon the basis of the foregoing findings and conclusions , and upon the entire
record , it is recommended that the complaint be dismissed.
9 Section 9(c) (3) reads in part, as follows:
Employees engaged in an economic strike who are not entitled to reinstatement shall
he eligible to vote under such regulations as the Board shall find are consistent with
the purposes and provisions of this Act in any election conducted within 12 months
after the commencement of the strike.
See W. Wilton Wood, Inc, 127 NLRB 1675.
Local Union No. 38, International Brotherhood of Electrical
Workers, AFL-CIO and Cleveland Electric Illuminating Com-
pany. Case No. 8-CD-24. July 30, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by Cleveland Electric Illuminating Company, herein
137 NLRB No. 193.