Twin County Trucking

National Labor Relations Board - Board Decisions

Dec 8, 1981

259 N.L.R.B. 576 (N.L.R.B. 1981)

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Twin County Trucking, Inc. and Local 478, Interna- ings, 2 and conclusions3 of the Administrative Law
tional Brotherhood of Teamsters, Chauffeurs, Judge.
Warehousemen, and Helpers of America and
Local 1964, International Longshoremen's Asso- ORDER
ciation, AFL-CIO. Cases 22-CA-9984, 22-
CA-10185, and 22-RC-8201 Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
December 8, 1981 lations Board hereby orders that the Respondent,
Twin County Trucking, Inc., Neptune and Tinton
DECISION AND ORDERp Falls, New Jersey, its officers, agents, successors,
BY MEMBERS FANNING, JENKINS, AND and assigns, shall:
ZIMMERMAN 1. Cease and desist from:
(a) Coercively interrogating employees concern-
On May 19, 1981, Administrative Law Judge ing their union activities and the union activities of
Walter H. Maloney, Jr., issued the attached Deci- other employees.
sion in this proceeding. Thereafter, Respondent (b) Threatening to castrate employees becausefiled exceptions and a supporting brief, and the tnthey have engaged in union activities.General Counsel filed a brief in response to Re- e e eng i ion acti
spondent's exceptions. (c) Offering promotions, wage increases, and
spondent's.exceptios. .o her benefits to employees in order to defeat aPursuant to the provisions of Section 3(b) of the other benefts to employees in order to defeat a
National Labor Relations Act, as amended, the Na- u on organzing drive.
tional Labor Relations Board has delegated its au- (d) Tllng employees that their union activities
thority in this proceeding to a three-member panel. are acts of futility
The Board has considered the record and the at- e) Telling striking employees that they would
tached Decision in light of the exceptions and never be hired again.
briefs' and has decided to affirm the rulings, find- (f) Urging employees to select as their bargaining
agent a labor organization other than the one they
'In its post-hearing brief, Respondent alleges that the Administrative have selected and telling them that the only union
Law Judge exhibited bias and prejudice against it, and on this ground which the Company would recognize is one which
moved for a rehearing of this case before a different administrative law
judge. Respondent contests the Administrative Law Judge's credibility met company approval.
resolutions, contending that he uniformly credited the testimony of the (g) Threatening to discharge employees, close
General Counsel's witnesses and discredited the testimony of its wit-
nesses. It is the Board's established policy not to overrule an administra- the plant, or merge the business with another com-
tive law judge's resolutions with respect to credibility unless the clear pany if employees selected a union as their bargain-
preponderance of all of the relevant evidence convinces us that the reso-
lutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 g agent.
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings. Nor do we find Case 22-CA-9984 have been withdrawn by the General Counsel. There-
merit in Respondent's contention that, because the Administrative Law fore, this motion is also denied.
Judge generally discredited Respondent's witnesses and credited the Gen- 2 In the second paragraph of the portion of his Decision entitled "The
eral Counsel's witnesses, his credibility resolutions are erroneous or at- Unfair Labor Practices Alleged," the Administrative Law Judge stated
tended by bias or prejudice. N.L.R.B. v. Pittsburgh Steamship Company, that, by April 1, 1980, union adherents had collected 21 signed authoriza-
337 U.S. 656 (1949). Respondent further alleges that the Administrative tion cards. In fact, as noted in fn. 7 of his Decision, the Union had col-
Law Judge demonstrated bias when in an off-the-record discussion at the lected 22 signed cards by this time. We hereby correct this inadvertent
hearing, prior to Respondent's presentation of its evidence, the Adminis- error.
trative Law Judge expressed his opinion as to the ultimate merits of the I The Administrative Law Judge dated the bargaining order April I,
case. However, Respondent did not object on the record to the alleged 1980, based on his finding that Respondent's unlawful conduct began on
discussion, and did not comply with our procedures for requesting dis- or about that date and the Union had attained signed authorization cards
qualification of an administrative law judge. Sec. 102.37, Rules and Regu- from a majority of Respondent's employees by then. The record indi-
lations of the National Labor Relations Board, Series 8, as amended. See cates, however, that Respondent had collected 21 authorization cards, a
Sanford Home for Adults, 253 NLRB 1132, fn. I (1981). Respondent's majority of the 40-employee unit, by March 31, and had previously de-
motion is denied accordingly. manded recognition. Accordingly, we find that Respondent's obligation
Respondent further moves to reopen the hearing to admit additional to bargain with the Union dates from March 31, 1980. See Hasbro Indus-
exhibits. Respondent seeks to introduce an affidavit of Respondent's tries, Inc., 254 NLRB 587 (1981); Cas Walker's Cash Stores, Inc., 249
owner, Joseph Lee, and letters written by Respondent's attorney, which NLRB 316, fn. 3 (1980), and cases cited therein; Frederick's Foodland,
Respondent claims demonstrate that Respondent agreed to reinstate the Inc., d/b/a Bucyrus Foodland North and Bucyrus Foodland South, 247
unfair labor practice strikers. However, these proposed exhibits all post- NLRB 284 (1980).
date the hearing and are relevant only as to the amount of backpay due The Administrative Law Judge found that Joseph Lee's April 8, 1980,
the discriminatees. Since this issue is to be decided at the compliance agreement with Union Business Agent John Senick to schedule a negotia-
stage of these proceedings, we hereby deny this motion. tion session for the next week constituted de facto recognition of the
Additionally, Respondent moves to strike the Administrative Law Union. This finding is unnecessary in light of the fact that Respondent's
Judge's finding that Respondent violated Sec. 8(aX3) of the Act. Re- bargaining obligation commenced on March 31, 1980.
spondent contends that the General Counsel has withdrawn these charges We have substituted the Order below in lieu of the Order provided by
and therefore the Administrative Law Judge lacked jurisdiction to make the Administrative Law Judge in order to correct certain inadvertent
these findings. However, the record indicates that the 8(aX3) violations errors and to conform to the remedy recommended by the Administra-
found by the Administrative Law Judge were charged in Case 22-CA- tive Law Judge. Member Zimmerman finds no practical difference in this
10185, and these charges were never withdrawn. Only certain charges in case between a bargaining order dated March 31 and one dated April 1.
259 NLRB No. 78
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DECISION AND ORDER T w in o ty r c i , I c., e t e a i t
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si i t i r i . t , t (b) T r t c e because
fil ti rti ri f, t te h reaen in uo a ctra t iese
r l l fil ri f i r t - hav p no uni a ge itresa
spondent's exceptions. o ff r l Promotions, wage increasesa and
i i ti o th e r b en ef l ts to l
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J e exhibited bias and prejudice against it, and on this ground hich the o pany ould recognize is One which
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TWIN COUNTY TRUCKING 577
(h) Granting employees wage increases in order nor full and immediate reinstatement to their
to defeat a union organizing drive and unilaterally former positions of employment, or, if those jobs
establishing wage increases and changes in working no longer exist, to substantially equivalent positions
conditions without first bargaining in good faith of employment, without prejudice to their seniority
with the unit bargaining agent concerning such or other rights and privileges they previously en-
changes; provided that nothing herein shall be con- joyed, and make them whole for any loss of pay or
strued to require the Respondent to rescind any in- benefits which they have suffered by reason of the
crease in wages or benefits which it has heretofore discrimination found herein, with interest, in the
granted. manner described in the section of the Administra-
(i) Refusing to reinstate unfair labor practice tive Law Judge's Decision entitled "Remedy." 4
strikers upon their unconditional request for rein- (c) Preserve and, upon request, make available to
statement. the Board or its agents, for examination and copy-
(j) Discouraging membership in or activities on ing, all payroll records, social security payment re-
behalf of Local 478, International Brotherhood of cords, timecards, personnel records and reports,
Teamsters, Chauffeurs, Warehousemen, and Help- and all other records necessary to analyze the
ers of America, or any labor organization, by dis- amount of backpay due under the terms of this
charging employees, either before or after they Order.
have gone on strike, or otherwise discriminating (d) Post at Respondent's places of business at
against them in their hire or tenure. Neptune and Tinton Falls, New Jersey, copies of
(k) Refusing to recognize and bargain collective- the attached notice marked "Appendix." 5 Copies of
ly with the aforementioned labor organization as said notice, on forms provided by the Regional Di-
the exclusive collective-bargaining representative rector for Region 22, after being duly signed by
of all of Respondent's full-time and regular part- Respondent's representative, shall be posted imme-
time truck drivers, platform workers and mechan- diately upon receipt thereof, and be maintained by
ics employed at the Respondent's Neptune and it for 60 consecutive days thereafter, in conspicu-
Tinton Falls, New Jersey, terminals, exclusive of ous places, including all places where notices to
office clerical employees, managerial employees, employees are customarily posted. Reasonable steps
professional employees, guards, and supervisors as shall be taken by Respondent to insure that said no-
defined in the Act. tices are not altered, defaced, or covered by any
(1) In any other manner interfering with, restrain- other material.
ing, or coercing employees in the exercise of the (e) Notify the Regional Director for Region 22,
rights guaranteed them by Section 7 of the Act. in writing, within 20 days from the date of this
2. Take the following affirmative action designed Order, what steps Respondent has taken to comply
to effectuate the purposes and policies of the Act: herewith.
(a) Upon request, bargain with Local 478, Inter- IT IS FURTHER ORDERED that Case 22-RC-8201
national Brotherhood of Teamsters, Chauffeurs, be, and it hereby is, severed from Cases 22-CA-
Warehousemen, and Helpers of America, as the ex- 10185 and 22-CA-9984; that the election conduct-
clusive collective-bargaining representative of all ed therein be, and it hereby is, set aside; and that
employees in the bargaining unit described below, the petition therein be, and it hereby is, dismissed.
with respect to rates of pay, wages, hours, and
other terms and conditions of employment and, if Member Jenkins would compute interest on backpay in the manner
an understanding is reached, embody such under- set forth in his partial dissenting opinion in Olympic Medical Corporation.
standing in a signed agreement. The bargaining unit 250 NLRB 146(1980).s
In the event that this Order is enforced by a Judgment of a United
is: States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-All full-time and regular part-time truck driv- ant to a Judgment of the United States Court of Appeals Enforcing an
ers, platform workers, and mechanics em- Order of the National Labor Relations Board."
ployed at Respondent's Neptune and Tinton
Falls, New Jersey, facilities, exclusive of all APPENDIX
office clerical employees, managerial employ-
ees, professional employees, guards, and super- NOTICE To EMPLOYEES
visors as defined in the Act. POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD(b) Offer Darren Brown, Kevin Brown, Anthony NATIONAL LABOR RELATIONS BOARD
Coffero, Steven Cole, Daniel Florio, Joseph Fon- An Agency of the United States Government
tana, Frank Harrington, Thomas Henville, John
Hewlitt, Joseph Hildebrandt, Stafford Hoffman, After a hearing at which all sides had an opportu-
James La Pointe, Ray La Pointe, and Brian O'Con- nity to present evidence and state their positions,
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250 N L RB 46 1980 .
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578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the National Labor Relations Board found that we WE WILL NOT in any other manner interfere
have violated the National Labor Relations Act, as with, restrain, or coerce employees in the exer-
amended, and has ordered us to post this notice. cise of rights guaranteed to them by Section 7
The Act gives employees the following rights:ofthe National Labor Relations Act.
WE WILL recognize and, upon request, bar-
To engage in self-organization gain collectively in good faith with Local 478,
To form, join, or assist any union International Brotherhood of Teamsters,
To bargain collectively through repre- Chauffeurs, Warehousemen, and Helpers of
sentatives of their own choice America, as the exclusive collective-bargaining
To engage in activities together for the representative of all employees in the bargain-
purpose of collective bargaining or other ing unit described below with respect to rates
mutual aid or protection of pay, wages, hours, and other terms and con-
To refrain from the exercise of any or all ditions of employment and, if an understanding
such activities. is reached, embody such understanding in a
E W L NT c y i e signed agreement. The bargaining unit is:WE WILL NOT coercively interrogate em-
ployees concerning their union activities and All full-time and regular part-time truck-
the union activities of other employees. drivers, platform workers, and mechanics
WE WILL NOT threaten to castrate employ- employed at our Neptune and Tinton Falls,
ees because they have engaged in union activi- New Jersey, facilities, exclusive of office
ties. clerical employees, managerial employees,
WE WILL NOT offer our employees promo- professional employees, guards, and supervi-
tions, wage increases, or other benefits in sors as defined in the Act.
order to defeat a union organizing drive. WE WILL offer full and immediate reinstate-
WE WILL NOT tell employees that their ment to Darren Brown, Kevin Brown, Antho-
union activities are acts of futility. ny Coffero, Steven Cole, Daniel Florio,
WE WILL NOT threaten to discharge employ- Joseph Fontana, Frank Harrington, Thomas
ees, to close the plant, or to merge the busi- Henville, John Hewlitt, Joseph Hildebrandt,
ness with another company if employees select Stafford Hoffman, James La Pointe, Ray La
a union as their bargaining agent. Pointe, and Brian O'Connor, and WE WILL
WE WILL NOT tell striking employees that make them whole for any loss of earnings they
they will never be hired again. may have suffered by reason of the discrimina-
WE WILL NOT urge employees to select as tion practiced against them, with interest.
their bargaining agent a labor organization
other than the one they have selected and tell TWIN COUNTY TRUCKING, INC.
them that only a union having company ap-
proval will be recognized.DECISION
WE WILL NOT grant employees a wage in- FINDINGS OF FACT
crease in order to defeat a union organizing
drive. STATEMENT OF THE CASE
WE WILL NOT discharge employees, wheth- WALTER H. MALONEY, JR., Administrative Law
er or not they are on strike, or otherwise dis- Judge: This case came on for hearing before me in
criminate against them in their hire or tenure, Newark, New Jersey, on a consolidated unfair labor
in order to discourage their support of and ac- practice complaint,' issued by the Regional Director for
tivities on behalf of Local 478, International
Brotherhood of Teamsters, Chauffeurs, Ware- 'The principal docket entries in this case are as follows:
housemen, and Helpers of America or any Charge filed by Local 478, International Brotherhood of Teamsters,ousemen, Chauffeurs, Warehousemen, and Helpers of America (herein called Union
other labor organization. or Teamsters) in Case 22-CA-9984 against Respondent on May 19, 1980;
WE WILL NOT unilaterally grant wage in- original consolidated complaint issued on July 30, 1980; Respondent's
answer to original complaint filed on August 8, 1980 charged filed by
creases or make changes in working conditions the Union against Respondent in Case 22-CA-10185 on July 29, 1980;
without first bargaining in good faith with first amended consolidated complaint issued on October 2, 1980; amended
Local 478, International Brotherhood of answer filed on February 18, 1981; hearing held in Newark, New Jersey,on March II, 12, and 13, 1981; and briefs filed with me by the General
Teamsters, Chauffeurs, Warehousemen, and Counsel and Respondent on or before April 27, 1981.
Helpers of America, as the exclusive collec- The principal docket entries in Case 22-RC-8201 are as follows:
R itive-bargaining representative o f the employees epresentation petition seeking an election in a unit of all full-time and
tive-barga ng representative f the employees regular part-time drivers, platform workers, warehousemen, mechanics,
in the bargaining unit described below. Continued
o f t h e N at io n a l L a b o r R e l a t i o n s A c t .
,
i ,.is
WE. WILL OTcorciveyintrroga em- o
,.drivers,
i

.
i . DECISION
i - FINDINGS OF FACT
I isc ar e e ployees, heth- WALTER H. MALONEY, JR., Administrative Law
O , The
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Other Orga i a ,
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*;.,<> l,»,^n;»;»ng arepree~ant <-»> o ̂ kn o ^.,,aao t ti s i tive-bargaining O ^regular art-ti e ri ers, latf r r ers, are se e , ec a ic*s
.Continued
TWIN COUNTY TRUCKING 579
Region 22 of the National Labor Relations Board and the record as dock workers or platform workers) worked
amended at the hearing, which alleges that Respondent between the hours of 5 p.m. and midnight (or later). It
Twin County Trucking, Inc., 2 violated Section 8(a)(), was within the ranks of this group that the Teamsters or-
(3), and (5) of the National Labor Relations Act, as ganizing effort had its inception.
amended, herein called the Act. More specifically, the In early March 1980, in response to various complaints
amended complaint alleges that Respondent offered that had been discussed among the platform crew, dock-
wage increases to employees to dissuade them from sup- worker Anthony Coffero contacted Teamsters Local 584
porting the Union, told employees that their selection of in Union, New Jersey, and told the Union that Respond-
the Teamsters as a bargaining agent was an act of futil- ent's employees were interested in joining. Coffero spoke
ity, threatened to discharge employees and to close the by phone with Business Agent John Senick, obtained
plant if the Teamsters became the bargaining agent, coer- designation cards6 from Senick by mail, and began pass-
cively interrogated employees concerning their union ing them out to other employees at the terminal. By
sympathies and activities, discharged Daniel Florio be- April 1, 1980, Coffero and his associates had collected
cause of his union activities, and failed and refused to re- signed cards from 21 dockworkers, mechanics, and driv-
instate 14 named strikers upon their unconditional appli- ers.' The parties agree that, on that date, Respondent
cation. The General Counsel seeks a so-called Gissel3 employed some 40 individuals in this unit.8 Accordingly,
bargaining order and a bargaining order restraining Re- as of April 1, the Charging Party represented a majority
spondent from refusing to bargain by unilaterally chang- of unit employees.9
ing the wages and other terms and conditions of employ- On March 28, Senick sent a letter to Respondent in
ment of its dock workers without first bargaining about which he stated that Teamsters Local 478 had been des-
these issues with the Teamsters. Respondent denies these ignated as the bargaining agent for its drivers and plat-
allegations. It asserts that the Teamsters is not the major- form men and that he would like to set up a meeting
ity representative of their employees and it has no obli- with company representatives for the purpose of negoti-
gation to recognize and bargain with the Teamsters. The ating a contract. On Monday, March 31, Senick received
Charging Party contends that the Board should sustain a phone call from Fred Grill, Respondent's terminal
the objections it filed to the election conducted at Re- manager, who informed Senick that he would like to
spondent's terminal on May 8, 1980, because of the have a meeting the following week. Senick said he
unfair labor practices noted in those objections and other would be available, so Grill told him he would call again
unfair labor practices alleged in the amended complaint. to establish a firm date. Later that day, Grill phoned the
Upon these contentions, the issues herein were joined. 4 Union's office and left word that he would not meet
with Senick upon advice of his lawyer.
I. THE UNFAIR LABOR PRACTICES ALLEGED On April 1, Senick spoke by phone with Thomas F. X.
Respondent is a trucking company which is owned Foley, Respondent's attorney. There is a dispute as to
and operated by Joe Lee.5 It maintained a terminal at
Neptune, New Jersey, and now operates principally at The union cards used in this campaign were conventional authoriza-
Tinton Falls, New Jersey. Respondent makes what are ion cards which stated on their face:
essentially local deliveries although its trucks regularly I, the undersigned, hereby apply for admission to membership in
the above Local Union and voluntarily choose and designate it as
operate in States other than New Jersey. In the spring of my representative for purposes of collective bargaining, hereby re-
1980, when the events in this case took place, Respond- voking any contrary designation ...
ent employed 40 drivers, mechanics, dockworkers, and The cards also contained other undertakings and provided spaces for the
helpers, all of whom were unrepresented by any labor insertion of the date, the name, and other information pertaining to the
organization. Most of its warehousemen (referred to in applicant, and the applicant's signature' Respondent acknowledged the validity of cards signed by employees
Kevin Brown, Fred Brown, Anthony Coffero, Daniel Florio, Joseph
dispatchers, and helpers, with the usual exclusions, filed by Local 1964, Fontana, Frank Harrington, Thomas Henville, John Hewlett, Joseph Hil-
International Longshoremen's Association, AFL-CIO (herein called debrandt, James LaPointe, Raymond LaPointe, Bryan O'Connor, and
ILA), on April 14, 1980; Stipulation for Certification Upon Consent Elec- Donald Randall, and agreed that their cards should be admitted into evi-
tion agreement approved by the Regional Director for Region 22, on dence by stipulation. The General Counsel established through eyewit-
April 24, 1980; election held on May 8, 1980; objections to the conduct ness testimony that signed cards had been presented to Coffero on or
of the election filed by Teamsters on May 15, 1980, Report on Objections before April 1, 1980, by Eugene Bennett, Darren, Brown, Stephen Cole,
and Challenges issued on July 23, 1980. Stafford Hoffman, Walter Hughes, Roger Neil, David Summers, Gerald
' Respondent admits, and I find, that it is a New Jersey corporation Wardell, and Dennis Winslow. A 23d card, signed by William Dunn-
which operates a warehouse and interstate trucking business in Tinton kosky, was admitted into evidence. However, Dunnkosky did not begin
Falls and Neptune, New Jersey. During the preceding year, it performed to work for Respondent until after the strike began and signed his card
trucking services from points and places inside the State of New Jersey on April 9.
to points and places outside the State of New Jersey valued in excess of ' In addition to the 22 employees whose names are recited in fn. 7 as
$50,000. Accordingly, it is an employer engaged in commerce within the having signed cards on or before April 1, Respondent also employed the
meaning of Sec. 2(2), (6), and (7) of the Act. Both the Teamsters and following 18 bargaining unit employees on that date: Douglas Bass, Rich-
ILA are labor organizations within the meaning of Sec. 2(5) of the Act. ard Boucher, George Conklin, John Dangler, Gary Daniel, Robert
'N.LR.B. v. Gissel Packing Co, Inc, 395 U.S. 575 (1969). Harris, Julius Helmlinger, Donald Huey, James Jenkins, John Kelly, John
'Certain errors in the transcript have been hereby noted and correct- Lowe, John La Belle, Thomas La Belle, Thomas Przybylinski, Donald
ed. Sullivan, Daniel Thorpe, Dennis Vitello, and Richard Warth.
' While his name figured prominently in these proceedings, Joe Lee ' Respondent contends that a claim of majority status should be meas-
neither testified nor appeared during the course of the 3-day hearing in ured against a unit which had six additional employees-Bruce Burns,
this case. His absence was unexplained. In accordance with well-settled Gordon Dreher, Brian Gioia, Raymond Meyers, William Maximo, and
rules of evidence, I will assume that, had Joe Lee testified, his testimony Alex Mamusis. However, none of these employees was hired until at least
would support the General Counsel's case. April 7, and some were hired after that date.

XI

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580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some of the contents of this conversation and particular- retained on the payroll as full-time employees. They also
ly concerning whether or not Senick offered to exhibit asserted that they did not know who had started the
the cards then in his possession to a neutral third party unionization effort but whoever did it would be fired and
for purposes of a card check. There is no doubt that, in not rehired.
the course of this phone conversation, Senick again de- During the conversation, Grill told Hildebrandt that
manded recognition. At Foley's request, Senick wrote he suspected that Danny Florio had started the union
Respondent a second letter, dated April 2, in which he drive. Hildebrandt refused to comment. He told Grill
stated that he had in his possession authorization cards and Russell that he appreciated the confidence that was
signed by a majority of Respondent's drivers and plat- implied in their offer of a promotion and a raise but in-
form men. He again asked that Respondent contact him formed them that, if the purpose of the meeting were
immediately for the purpose of commencing negotiations. simply to pump him about who started the union drive
Shortly thereafter, a sign was posted on the dock noti- or to inquire into the specifics of the drive, the conversa-
fying dockworkers and drivers that a meeting with Joe tion was at an end because he would not divulge any
Lee would be held on the following Friday morning, such information. Grill told Hildebrandt that he did not
April 4. Friday was a holiday and attendance at the care who signed union cards and then reversed his posi-
meeting necessitated a special trip to the terminal by em- tion by asking Hildebrandt if in fact he had signed a
ployees who attended. During the week preceding the card. Hildebrandt replied that he had signed a card and
meeting, several supervisors had occasion to speak with that everyone else had also signed cards.
dockworkers concerning the Teamsters organizing drive. Throughout the week of March 31-April 4, Russell
In a conversation at the dock with employee Tony Cof- told employees that unionization was useless, that Joe
fero and several others, Grill stated that there could be ee would never stand for the Teamsters, and that he
trouble at the Company because of the Union drive. He,., , would go to any length to stop them. On one occasion,went on to say that, knowing Joe Lee as he did, if the j fr rr fr
Teamsters came in, Lee would just lock the doors. He Justafter the dockworkers had punched out for the
vri wc o e night, he told them that Lee would simply close thealso informed employees that, to be eligible to vote in a doors, that Lee would not pay the Tmss e sle
representation election, an employee had to be at least 18 d t h a t w o u ld e o o a
years of age with 1,000 hours of company service. Ont empyees d e out of
another occasion during the same week, dock worker During this same period of time, Russell asked dock-
John Kelly asked Grill if Grill knew who brought the worker Frank Harrington who started the union effort
Union into the terminal. Grill replied that he was going Harrington refused to say. He also asked Harrington ifUnion into the terminal. Grill replied tgoing he would attend the Friday meeting. Harrington replied
to get some of his buddies to find out and then "cut his h e w o u l d a t t e n d t he F meeting. Harngton replied
_ off," that he was committed to Local 478 and that he would
Night Foreman David Russell informed several of the not attend. Russell told Harrington that the Company
dockworkers that they did not have to attend the Friday was going to implement a plan for the warehouse which
morning meeting. He said that Joe Lee was going to dis- provided for six full-time employees, including a fore-
cuss the pros and cons of Local 478 but only those eligi- man, and two part-timers. He indicated that Harrington
ble to vote in a representational election could attend. was among those who would be retained, that the new
He repeated Grill's statement that only those over 18 wage rate would be $6 per hour, and that Hildebrandt
years of age with 1,000 hours of company service could would receive $6.75. Russell also said that Joe Lee was
vote. Coffero told Russell that he would like to see those going to have a medical and health plan, paid holidays,
eligibility requirements in writing and asked him what and a regular evening lunch period. He then named the
was going to happen at the meeting. Russell replied that other employees who would be retained. When Harring-
it was going to come down to the fact that, if the Team- ton asked if Coffero would be one of them, Russell said,
sters got in, Joe Lee would lock the doors and all the "No." Russell said again that only those who had 1,000
employees would be out of work. When asked how Lee hours of company time and were over the age of 18
could carry this off, Russell replied that Lee could close would be eligible to vote on the question of unionization.
down and reopen 30 days later under another name. He Harrington responded that this rule would eliminate ev-
also suggested that Lee had the option of merging his eryone who joined except Dallas Hoffman and Steve
Company with another company named Castways. Colley. Russell's only comment was, "That's the law."
A few days before the meeting, Grill and Russell had As advertised, Lee held a meeting of certain employ-
occasion to speak privately at the warehouse with dock- ees on the morning of April 4 in his office at the ware-
worker Joseph Hildebrandt. On that occasion, they told house. Most truckdrivers attended but Hildebrandt was
Hildebrandt that they were going to restructure the the only dock worker who showed up. Lee gave the as-
warehouse, keeping five full-time employees and 2 part- sembled employees an account of what he paid out, stat-
time employees in addition to Hildebrandt. At that time, ing that his books were open for inspection if anyone de-
there were two part-time employees and 12-15 others sired to see them. He went on to say that, if the Team-
who worked about 35 or more hours a week in the ware- sters came in, he would have to pay specified benefits
house. They offered Hildebrandt a job as foreman, at an and there was no way he could do so. Lee told his em-
increase of $6.25 (as compared with his current rate of ployees that he had other business ventures and could
$4 per hour), and told him that he would get an extra 75 survive without the trucking company. I credit testimo-
cents per hour across the board on Labor Day. They ny to the effect that Lee threatened on this occasion to
mentioned the names of the dockworkers who would be close the terminal if the Teamsters came in. He said he
ly~~~~~~~~~~~~--- ---------- whehe or not -----k ---- oehbt setdta he i o nwwh a tre h

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TWIN COUNTY TRUCKING 581
had other alternatives, such as merging with Castways, own comment to the effect that, the way the men were
but affirmed that neither Teamster Local 478 nor Local going then, everyone would be out of work. Grill did
701 would represent employees in his Company. say that Lee would be comfortable with the union at
Turning to Hildebrandt, Lee said that he was appalled Hoffman Trucking Company.
at the treatment that the dockworkers had been getting. Hildebrandt, Harrington, and Coffero replied. They
He admitted that he had overlooked them but asserted said that the choice of a union belonged to the employ-
that he was going to make it up to them. He said he had ees, not to the Company. Grill and Russell were then
been checking around, and specifically with Hoffman asked why Florio and Fred Brown had been fired. Grill
Trucking Company, and had learned that ILA-represent- stated that Brown had been fired at the request of their
ed dockworkers at Hoffman's were making $5.25 per insurance company because he did not have a driver's li-
hour. He said he was going to make certain dock work- cense and was involved in an accident while jockeying
ers full-time employees and increased their pay to $6 an trucks around in the terminal yard. He said that Florio
hour in order to make up for the neglect which they had had been fired for missing work too often and for being
suffered. 10 absent without calling in.
Coffero had a meeting with Senick later on in the day Grill announced the Company's plan to employ only
and told Senick what he had heard about the meeting in five full-time dock workers and two part-timers. He told
Lee's office. Coffero had not attended that meeting. He the employees that, if they did not follow the plan, Joe
made particular reference to Lee's plan to reduce the Lee would turn the key in the door and either sell the
number of dockworkers. Senick told Coffero that, if the Company or merge with Castways. In any event, he
Company did not put all the men to work on Monday, would not let Local 478 come in. Various employees ob-
Coffero should call a strike. jected, saying that this would leave 10 or 12 men out of
Dockworkers were next scheduled to report for work work. At this point in the meeting, Hildebrandt gave
at 5 p.m. on Monday, April 7. One dockworker, Daniel Grill an argument. He said that the new arrangement
Florio, had been absent from work the preceding was fine with him personally since it meant he was get-
Wednesday and Thursday. When he arrived at the termi- ting a raise but questioned Grill as to its effect on other
nal on April 7, Grill asked him why he had been off employees who would be out of work. Grill suggested
work. He explained that he had been absent in order to that the men sit down and talk with Joe Lee, asserting
take a government examination as a third-class marine that Joe Lee wanted either a company union or a union
radio operator. Grill also asked him if he had heard any- from the outside that he could live with. Hildebrandt re-
thing about the Union. Florio said that he had heard plied that the men wanted the Teamsters but that they
something. Grill replied that he did not care who started would be amenable to negotiating with Lee, stating "We
the Union as long as the men did not go through with it, don't want to shoot the works right off. We want to
because Joe Lee would shut the plant down before let- reason with Lee and don't want to kill him with a wage
ting a union come in. He then told Florio to go and rate he can't pay." Grill replied, "That's not going to
speak with Russell in the office. happen. There will be five full time [men and] two part-
When Florio spoke to Russell, Russell told him that he time."
would have to let him go because he had been absent. Coffero and others told Grill that the men could not
Florio objected, stating that he had received permission handle that proposal because it would mean being with-
to be off on Wednesday and on Thursday if necessary. out a job until an opening occurred. Grill's response was,
Russell retorted that Florio had only asked him for I "You do what you have to do and we will do what we
day's leave. Florio explained that he had needed 2 days have to do." The dockworkers held a brief meeting
off-one to study for the examination and the other to among themselves and decided to walk out.
take the test, but his explanation was to no avail. On the same evening, they established a picket line in
Florio reported his discharge to other dockworkers as front of the terminal, using homemade signs which read,
they were arriving for work. Another employee, Fred "Twin County Trucking Company on Strike, Local
Brown, had also been terminated. When the dock- 478." I credit corroborated testimony in the record that,
workers arrived, Grill and Russell held a brief meeting in the course of that evening, Grill came out to the
for the purpose of filling them in on changes which the picket line, told the pickets that he had checked with Joe
Company was going to make at the terminal. Grill told Lee, and informed them that they were all fired.
these workers what had occurred at the Friday meeting Early Tuesday morning, Lee had occasion to speak
which Joe Lee held. The employees were also told that with Coffero and striking employee Joseph Fontana in
Lee had stated his feeling that dockworkers had been ne- the Company's parking lot. Lee asked Coffero why he
glected and that he had apologized for the neglect. Grill had not attended the meeting on Friday. Coffero replied
reported that Lee had been checking other terminals and that he did not want to hear about any union that Lee
hoped that the men could sit down and come to a com- might propose Lee apologized to Coffero and Fontana
promise concerning a possible pay increase at the Twin for the treatment which had been accorded to dock-
City warehouse. Grill reported that Lee had said at the workers in the past. He made reference to their wage
Friday meeting that he could not absorb the scale in the re wkin conditions," including the fact that
Teamsters General Freight Agreement and added his
" One of the major complaints which dockworkers had previously
'o At that time, dock workers were earning between $3.50 and $4 per brought to Grill's attention was harsh treatment given them by Night Su-
hour. pervisor Russell. Russell is no longer with the Company

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582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dockworkers received no regular break during the if all of the men did not work on Wednesday evening,
course of the evening to eat dinner. He said that he was adding that he thought the Company was trying to wear
going to make it up to the men, adding that, if Coffero the men down gradually and break the Union. At start-
had come to the meeting, he would have seen for himself ing time on Wednesday the platform crew began to
that Lee was trying to be fair. He said that he had work as usual. However, about 8 p.m. Russell came to
checked around and found that dockworkers in the area Coffero, asked him not to get upset, but informed him
were being paid between $5.25 and $5.75 per hour. He that he was sending men home at that time as he had the
stated that, if he could afford $6.25 an hour, he would previous evening. He told Coffero that the Company
pay it, and asked Coffero and Fontana to think about was gradually working its way into a system which re-
going back to work for $6 an hour." Lee told them that quired five full-time dockworkers and two part-timers.
the Teamsters were a bunch of gangsters and hardnoses Coffero's response was, "It looks like you are trying to
and that he could not deal with them or live with them. start more trouble." Russell's only comment was, "You
He mentioned the ILA and said there was a possibility of do what you have to do and I'll do what I have to do."
having just a warehouse unit apart from the drivers. Cof- Coffero held a brief meeting with the dockworkers, after
fero replied that this plan would provide no security, ar- which all of them walked out and reestablished their
guing that, if the men got rid of Local 478, they had no picket line. This picket line lasted until May 8, when a
job security and Lee could then get rid of the them. representation election was conducted at Respondent's
Lee then asked Coffero to call off the strike. Coffero terminal. Among those going on at this time were the 14
said that he could not do so and told Lee he would have employees whose names appear in paragraph 25 of the
to speak with Senick. Lee then asked Coffero to arrange first amended complaint.
a meeting with Senick and Coffero did so. A meeting I credit corroborated testimony in the record that,
took place at 11 that morning in Lee's office. The upshot shortly after the dockworkers went out on strike for the
of the meeting was that Lee agreed to reinstate Florio second time, Grill came out to the picket line and told
and Brown and to pay the men for Monday night. The the pickets again that they were all fired for walking off
dockworkers then returned to work Tuesday evening. the job for no reason. A few days after the picketing
Senick and Lee also discussed, in general, the terms of began anew, Grill went through the picket line and
the Teamsters standard area agreement. Lee told Senickt ea sters st r r r t. t l i spoke to several pickets in passing. He told them that he
that he was just starting in business and could not afford was sorry about what had happened and stated that it
the Teamsters wage scale or the Teamsters health and was sy abt what Companyd h e a nd could not come
welfare contributions. to some kind of agreement. However, he warned the
I credit testimony in the record to the effect that, in Teamsters came into the plant, Joe
the course of this discussion, Senick told Lee he held au- pkets t, the eamsters cae to he , inclu
thorization cards signed by a majority of the employees Lee would s l lose th door a e o
in the unit. When Lee questioned this statement, Senick g hie, would be out of a Job.
offered to exhibit them to a clergyman for purposes of a On another occasion, Grill spoke with Hildebrandt at
card check. He told Lee he did not want to let Lee see the picket lne. He said that the men were foolish for
the cards personally for fear of company reprisal against going on strike, that they were not going to get any
card signers. He also asked Lee to bargain with him and where, and that the Teamsters were just a bunch of
Lee agreed to sit down and negotiate. However, Lee gangsters who wanted their money. He asked Hilde-
told Senick that he wanted to contact his attorney first brandt why he had signed a card and why the dock-
because he felt that he was personally a poor negotiator. workers "were doing something like this. Hildebrandt
He informed Senick that he would set up an appointment replied that the men had been receiving ridiculous treat-
the following week. Senick reported the results of this ment on the dock and just could not get any relief. Grill
meeting to the picketing employees. They ceased picket- insisted that they should have come to him and "we
ing and returned to work at or before their regular start- could have worked out something more equitable,"
ing time of 5 p.m. adding that the men were just "screwing" themselves be-
On Tuesday evening, four or five employees were sent cause Joe Lee could close the doors. He told Hilde-
home about 8 p.m. One of these was Bryan O'Connor, brandt that he could find a job anywhere because he had
who carpooled with Coffero and who had to walk home, been in trucking a long time, but the strikers would be
a distance of about 5 or 6 miles, because Coffero contin- out of jobs and so would a lot of employees who were
ued working. Coffero objected to Russell about sending still working.
men home, claiming it was a breach of the agreement On April 10, Lee spoke to Harrington near the picket
which had been concluded in Lee's office earlier in the line while Harrington was reading the paper in his car.
day. Russell just laughed. Coffero also brought to Rus- Lee told Harrington that it was too bad that the trouble
sell's attention the fact that O'Connor would have to had started. He said he had been meaning to put into
walk 6 miles in order to get home. Russell was equally effect a plan which would pay the dockworkers more
indifferent to this complaint. money and improve their conditions but he had been oc-
On the following morning, April 9, Coffero called cupied in consolidating new business for the Company.
Senick and told him what had happened the previous He went on to say that it was also too bad that the men
evening. Senick instructed Coffero to call another strike went for Teamsters Local 478 because they were a
bunch of gangsters. Lee insisted that Local 478 would
"At that time both men were making $3.50 an hour. never be allowed in his Company, insisting that if a

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l l t . t l il -

" . f
TWIN COUNTY TRUCKING 583
union were allowed to come in, it would be a union he II. ANALYSIS AND CONCLUSIONS
approved of. He made specific reference to a "Hoffman
Company union." Harrington asked Lee what he meant A. Independent Violations of Section 8(a)(1) of the
by a "Hoffman union." Lee replied that it was ILA Act
Local 1964. He explained that Local 1964 was in at the (a) Grill's statement to several dockworkers during the
Hoffman Company and that he had some familiarity with week of March 31-April 4, to the effect that there could
it. Harrington replied that the "president of the company be trouble at the Company because of the Union's drive
doesn't pick the union; the men pick the union." Lee and that if the Teamsters came in Joe Lee would just
then told Harrington that, if Local 478 got in, he would lock the doors, is a clear and emphatic threat which vio-
merge the Company with Castways Freight and turn the lates Section 8(a)(l) of the Act
key in the door, because Local 478 would never repre- (b) During this same period of time, Grill stated to em-
sent the men in his Company. ployee John Kelly that he did not know who started the
Harrington had another casual conversation with Lee Union but that he was going to get his buddies to find
at the picket line. On one occasion, Harrington told him out who was responsible and then "cut his - off." A
that "we'll be back in there legally, moving freight for threat to castrate, whether taken literally or viewed
your company." Lee retorted, "Never. You will never merely as a figure of speech, has an unmistakably coer-
work for me again." During the course of another con- cive impact and violates Section 8(a)(l) of the Act. See
versation, Lee came out with a trade publication in the N.L.R.B. v. Moss Planing Mill Co., 206 F.2d 557 (4th Cir.
trucking industry and informed Harrington of a help 1953).
wanted ad appearing in the paper for a truck salesman. (c) Russell's statement to Coffero on the eve of the
(Harrington had previously been a truck salesman.) Har- Company's meeting that, if the Teamsters got in, Joe Lee
rington told Lee that he was not interested because the would lock the doors and all of the employees would be
truck business was "shot" and because he liked the phys- out of work is also a clear and emphatic threat which
ical work involved in the freight business. He also said violates Section 8(a)(l) of the Act. Russell's elaboration
he needed a job and intended to stay in the freight busi- of the way in which Lee could close the business, either
ness. by merger with another company or by closing and later
On April 14, ILA Local 1964 filed a representation pe- reopening under another name, emphasized his remarks
tition seeking an election in the unit for which the Team- and compounds the gravity of his illegal statements.
sters had made a demand. On April 23, a representation (d) The statement of Grill and Russell to Hildebrandt,
case conference was held at the Board's office in on the occasion when they offered him a promotion and
Newark, attended by representatives of Respondent, a substantial wage increase, that the Company did not
Local 1964, and Teamsters Local 478, which had inter- know who started the Union but the employee responsi-
vened. A stipulation for certification upon consent agree- ble would be discovered, discharged, and not rehired is a
ment was signed and an election was scheduled for May threat which violated Section 8(a)() of the Act.
8. The Teamsters was represented at the representation (e) There is little doubt that the restructuring of the
case by its attorney, John A. Craner. In the course of the warehouse which was decided on immediately upon the
discussions which took place at the conference, Craner receipt of the Union's demand letter, as well as the pro-
told Lee and his attorney, Thomas F. X. Foley, that he posed wage increases which accompanied this reorgani-
was offering to return all strikers to work immediately zation, were part of an effort by Respondent to head off
and unconditionally. Either Lee or Foley replied that the unionization of the terminal. Accordingly, when
they could return only when and if there were openings Grill and Russell offered Hildebrandt a promotion and a
and informed Craner that there were no current open- wage increase on or about April 2, their action constitut-
ings. ed a promise of benefit aimed at discouraging union ac-
Several striking employees attended the conference. tivity and violates Section 8(aXl) of the Act. N.LR.B. v.
Upon their return to the terminal at Neptune, they spoke Exchange Parts Company, 375 U.S. 405 (1964). The same
with Grill. Hildebrandt told Grill about the conversation findings apply to the actual grant of wage increases
between Craner and Lee at the conference concerning which Respondent made to several returning strikers to
the reinstatement of strikers. Grill said that he would induce them to abandon the strike.
have to see if any openings developed. Although vacan- (f) Grill's question to Hildebrandt as to whether Hilde-
cies have occurred from time to time at the terminal brandt had signed a union card constitutes illegal interro-
since that date, none of the individuals named in the first gation which violates Section 8(aXl) of the Act.
amended complaint have been reinstated. (g) Grill's statement to Hildebrandt that he suspected
At a representation election held on May 8, the tally that Danny Florio had started the union drive constitutes
of ballots revealed that ILA Local 1964 received 19 the creation of the impression that union activities of em-
votes, Teamsters Local 478 received 17 votes, and 10 ployees are the subject of company surveillance and vio-
votes were challenged. The Report on Objections and lates Section 8(a)(l) of the Act.
Challenges recommended that three challenges be sus- (h) Russell's statement to employees that unionization
tained, that two be overruled, and that the other five be was useless, that Joe Lee would never stand for the
held in abeyance, pending a determination as to whether Teamsters, and that he would go to any lengths to stop
the challenged voters were replacements for economic them amounts to a statement that their union activities
strikers or for unfair labor practice strikers. were futile and thus violates Section 8(a)(1) of the Act.
i l )(l

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584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
His further statement that Lee would close the doors and that the men should select the "Hoffman Company
the employees would be out of a job is a threat which union," namely, ILA Local 1964, is an interference with
violates Section 8(a)(l) of the Act. Section 7 rights of employees which violates Section
(i) Russell's interrogation of employee Frank Harring- 8(a)(l) of the Act.
ton as to who started the union drive is coercive interro- (u) Lee's statement to Harrington at the picket line on
gation which violates Section 8(a)(l) of the Act. this occasion that, if the Teamsters came in, he would
(j) Russell's statement to Harrington that, under the merge the business with Castways and turn the key in
new plan for the warehouse, Harrington and others the door because Local 478 would never represent the
would receive a pay increase is a promise of benefit Company is a threat which violates Section 8(aXl) of the
aimed at discouraging union activity and violates Section Act.
8(a)( 1) of the Act. (v) Lee's statement to Harrington at the picket line on
(k) The credited testimony to the effect that Joe Lee, another occasion that Harrington would never work for
when speaking, to employees at the Friday meeting, told Lee again constitutes a violation of Section 8(a)(l) of the
them that if the Teamsters came in he would close the A
terminal constitutes a threat which violates Section
8(a)(l) of the Act. B. The Discharge of Daniel Florio
(1) Lee's promise, made on the same occasion, to raise
wages of dockworkers and make up for the neglect they Daniel Florio was a dockworker who had signed a
had suffered, constitutes an illegal promise of benefit union card and who had attended a meeting of dock-
which violates Section 8(a)(1) of the Act. workers with Union Business Agent Senick which was
(m) Grill's statement to Florio on April 7, that Lee held on March 18, at Gepps' Bar. While Florio was by
would shut down the plant before letting a union come no means the most active union supporter, Grill suspect-
in, is a threat which violates Section 8(a)(l) of the Act. ed that he was and voiced this suspicion to Hildebrandt
(n) Grill's statement on April 7, to assembled dock- on or about April 1. Grill was also heard to say that he
workers, in which he repeated Lee's statement of the would find out who brought the Union into the terminal
previous Friday that he apologized for his neglect of and would "cut - off."
dockworkers in the past and hoped that the men could Florio was fired on April 7, by Russell, ostensibly be-
sit down and work out a compromise on wage increases, cause he asked for a day off to take a marine radio oper-
is a promise of benefit which violates Section 8(a)(l) of ator's examination and instead took 2 days off. When
the Act. His further statement on this occasion that, the Russell was called to the stand, he did not corroborate
way the men were going, everyone would be out of Respondent's defense. Instead, Russell testified in a ram-
work is a threat which violates Section 8(a)(1) of the bling manner concerning another and remote occasion
Act. on which Florio had been given time off to take another
(o) Grill's statement to dockworkers on this occasion examination. He gave no support to the Company's posi-
that Lee would never accept the Teamsters as the em- tion that Florio was entitled to be off only on the
ployees' bargaining agent constitutes an unlawful inter- Wednesday before his discharge and that he was sched-
ference with the protected concerted activities of em- uled to return to work on Thursday Florio testified cre-
ployees and violates Section 8(a)(l) of the Act.ployees and violates Section 8(a)(1) of the Act. dibly that he had asked Russell in advance for time off to
(p) Lee's statement to Coffero and Fontana at the(p) Lees statement to Coffero and Fonana take the radio operator's examination and had told Rus-
picket line on April 8 that he was sorry about past prob- se th e it ee as o on n to study
lems among dockworkers concerning wages, lack of ale s a ong dock orkers concerning ages, lack f a slfor the examination and one on which to go to Philadel-
fixed dinner break, and other aspects of their workinge exation n hctoo to Ph e
conditions and that he would make it up to them consti phia to take the examination. In fact, Florio took off theconditions and that he would make it up to them consti- W
tutes a promise of benefit aimed at inducing them to Wednesday and Thursday prior to his discharge for this
abandon a strike and violates Section 8(a)(l) of the Act. excused purpose. Friday was Good Friday and a holday
(q) Grill's statement to pickets during the strike that, if at Respondent s terminal. Testimony in the record con-
the Teamsters came into the plant, Joe Lee would close cerning an occasion on which Florio was found drunk in
the doors and everyone including himself would be out the parking lot related to an incident whch was remote
of a job is a threat which violates Section 8(a)(l) of the in time from the discharge and had no causal connection
Act. with it.
(r) Grill's questions to Hildebrandt on the picket line The discharge of a suspected leader in the organizing
as to why he signed a card and why the dockworkers campaign took place against a background of strong
were "behaving like this" constitutes unlawful interroga- union animus. It was effectuated for a purported reason
tion which violates Section 8(a)(l) of the Act. which was not substantiated by record testimony and for
(s) Grill's further statements to Hildebrandt on the a reason which was clearly pretextual, inasmuch as
picket line that the dockworkers, by striking, were Florio was given permission to be away the day on
merely "screwing" themselves because Lee would close which he was assertedly absent without leave. The fact
the doors and they would all be out of jobs is a threat that Florio was reinstated on April 8 in no way affects
which violates Section 8(a)(l) of the Act. the original illegality of the discharge. Accordingly, by
(t) Lee's statement to Harrington at the picket line discharging Daniel Florio on April 7, because of his
that, if a union were allowed to come in at Twin union membership and his union activity, Respondent
County, it would be a union which Lee approved of and herein violated Section 8(a)() and (3) of the Act.
(l)
i) (l)
(l)
t

)( t h e A c t . v ' t t t t i t t i t li
( ) r it t ti t t ff t t t , i i
(l)
.
l) . ischarge f i l l rio

)(l

'
)(l
c t . i i ti t t t
' i i ti . i
t t l r t t t r t - ti t t l i ti l l
l ' i i ti l f l y
ference it the r t ct c c rt ti iti f - t r t r . l i t tifi
ti ( )(l) f t ct.^l ^^^ployes an violtes ( Act.dibly
(p) Lee's state ent t ff r t at the ' i ti
i t li ril 8 t t rr t t r - s t h m n 2 d f
r i , ., .„.lemsamon dokworers oncrnin wags, ack f a for the exa ination and one on hich to go to Philadel-
fi i r r , t r t f t ir i p o t t h e examination. In factorio t ok ofat
i ti- p a examination. In fact, Floh o took off the
t t s a r is f fit i t i i t t ecdnes r ri r t i i r f r t i
ti l aex c u s ed pondn's temial w as G o o dny n a nd ar olr d a
( ) ill' t t t i t i
a t nt i l ti
l an i o n w h ic h F l o ri o w
as f o u n d d r u n k in
lf t h e lo t r e la
t e d t o an in c id en t w h ic h w as r em o t e
ti l) i n t im e f r o m
t h e i l ti

,
l) )
ena
eod oy
aminat o
ithrc h lc
TWIN COUNTY TRUCKING 585
C. The Character of the Original Strike On April 7, were all fired for going on strike without a legitimate
1980 reason. As noted above, discharging employees because
On Friday, April 4, Senick told Coffero that, if Re- they have gone on strike is a patent and flagrant viola-
spondent did not put all the men to work on April 7, he on of the lawand g economc stkers
should call a strike. It has already been found that Re- to replacement is equally illegal. When Respondent took
spondent's plan to cut the size of its work force at the this action on the night of April 9, it again violated Sec-
dock and to raise the wages of the remaining dock- tion 8(aXl) and (3) of the Act and its action served to
workers was directly prompted by the onset of the orga- prolo n g t h e st rik e a l rea d y in p ro g res s . In a sm u c h a s t h e
nizing campaign and by Respondent's desire to prevent 14 unfair labor practice strikers thereby became discri-
the Teamsters from coming into the terminal as the bar- minatees, t was not necessary for them to offer reinstate-
gaining agent of the employees. Accordingly, a strike to ment in order to be entitled to return to ther jobs or to
protest the implementation of this discriminatively moti- re ce e b ac A b es G oo dw I n c 24 1 N L R B 27
vated change in wages and working conditions was an (199).
unfair labor practice strike. On April 23, at the representation case conference in
It is also clear that the striking employees were greatly Newark, the unfair labor practice strikers, through their
concerned with the reasons for the discharge of Brown attorney, offered fully and unconditionally to return to
and Florio. They discussed these discharges with Grill work- The offer was refused. The refusal to reinstate
and Russell at the meeting of April 7, and questioned unfair labor practice strikers upon their unconditional
these management representatives as to the reasons these offer to return to work is a violation of Section 8(aX1)
two dockworkers had been terminated. There is little and (3) of the Act. National Tape Corporation, 187
doubt that one of the causative factors which prompted NLRB 321 (1970); Abingdon Nursing Center, 197 NLRB
this walkout was the discriminatory discharge of Florio 781 (1972); ABCO Engineering Corp., 201 NLRB 686
and that one of the necessary conditions for calling off (1973) The refusal by Respondent to reinstate the 14
that strike was Florio's reinstatement, a condition which strikers on April 23 is an unfair labor practice. As it oc-
Lee agreed to on April 8. Accordingly, I conclude that curred wthin the period established by the Board in
Respondent's further unfair labor practice in discharging Goodyear Tire and Rubber Company, 138 NLRB 453
Florio caused or prolonged the April 7 walkout. (1962), for considering objections to the conduct of the
I have also credited corroborated testimony that, on election," this unfair labor practice also constitutes
the evening of April 7, Grill came to the picket line, told grounds for setting asde the election which took place
the pickets that he had spoken with Lee, and informed on May 8.
them that Lee had discharged them. Discharging em- E. The Refusal To Bargain
ployees because they have gone on strike violates rights
protected by Section 7 and 13 of the Act, and no citation 1. The majority status of the Teamsters
of authority is necessary to establish this proposition.
Discharging economic strikers before they are perma- In Trading Port, Inc., 219 NLRB 298 at 301 (1975), the
nently replaced is a violation of the Act. N.L.R.B. v. In- Board determined that "an employer's obligation under a
ternational Van Lines, 409 U.S. 48 (1972). When Re- bargaining order remedy should commence as of the
spondent discharged its striking employees on the eve- time the employer has embarked on a clear course of un-
ning of April 7, it violated Section 8(a)(1) and (3) of the lawful conduct or has engaged in sufficient unfair labor
Act. This unfair labor practice also served to prolong the practices to undermine the Union's majority." While this
strike which was in progress and to constitute the strik- holding does not require that a union's majority status be
ing employees as unfair labor practice strikers, if they determined as of the same date that the bargaining order
were not already such from the inception of the walkout. commences, it is logical to predicate a finding of major-
ity status based upon the employee complement which
D. The Character of the Strike of April 9, 1980 existed as of that date.' 5 As found above, Respondent
There is no factual question that the employees who embarked upon its campaign of unfair labor practices on
or about April 1. The record herein contains a stipulation
walked out on April 9 did so because Respondent per- o r a bo ut A pril 1 . T h e r e c o r d herein contains a stipulation that some 40 individuals were employed in the bargain-
sisted in implementing its plan for revising the operations h at some 40 nd v d ua ls w e re m
of the warehouse. This plan, which called for fewer em-
ployees and a substantial increase in the wage rates of 4 The representation petition in Case 22-RC-8201 was filed on April
the dockworkers who remained, was devised and put 14 1980.
into effect as a means of counteracting the Teamsters or- I Par. 16 of the first amended complaint alleges that all full-time and
ganizing campaign. As indicated above, this action con- regular part-time truckdrivers, platform workers, and mechanics em-
stituted a violation of Section 8(a)(1) of the Act. Hence, ployed at Respondent's Neptune, New Jersey, terminal, with the usual
exceptions, constitutes a unit appropriate for collective bargaining. Re-
a strike to protest the further implementation of this plan spondent states that such a unit could constitute a unit appropriate for
constitutes an unfair labor practice strike. collective bargaining but denies that such a unit ever existed. It is clear
On the first night of the second strike, Grill visited the from the record that the unit did exist, is appropriate for collective bar-
picket line and told the picketing employees 3 that they gaining, and was the unit in which Respondent agreed to an election
which was conducted on May 8. The facility in question was largely re-
located some 4 miles away to a new terminal in Tinton Falls, New
" This action was directed at all 14 employees named in par. 25 of the Jersey, but this relocation in no way affected the appropriateness of the
first amended complaint. unit.
i i if t h e y
h av e g o n e o n t r ik e is a p a t n t an d fl ag r an t v i o la -
ll il , t o n o f t he
l aw and dshri e o no m ic s t r k e r s pro
l ll t t r l t i ll ill l. hen espondent took
spondent's plan to cut the size of its work force at the thi
s c t i t ni t of ril 9, it again violated Sec-
dock and to raise the wages of the remaining dock- ti
o n 8( a w l) a nd (3) o f t h e A c t an d it
s ac t io n ser v ed t o
tl
t st ri k l r d y i p r o g r es s . Inas m u ch as t h e
nizing ca paign and by espondent's desire to prevent 14 u
n f a ir l ab o r practice s t ri k er s t h er e b y became discri-
l t i t , it t ry f r t t ff r reinstate-
i i l , tri t m en t in o r d e r t o b e n ti t led t o r e t urn to their jobs or to
ti ri i ti l iv kpay. iliti &
$ ill, I c ., 27
i 97 .
i l i t i n A il 2 3 e nt ti
It i l l t i tl i i

f u l l y an d diti ll t r t r t
ril w o r k . T he o ff er w as r ef us ed . T h r e f u sa l to r i t t
l t i , ti u n f ir
l ab o r r ti tri r t ir c iti l
t ti o f e r r e t u r n t o w o r k a i l ti ti ( l)
i an d ( 3) o f t he A c t . N at a l ration,
ti N L R B 32 1 19 70 ); i r i t r,
i r 78 1 97 2); A B C O i e ring rp.,
r i ll 19 73 ). T h e r ef u sal t t r i t t t
i l i ' t, i k e s il i
i . i l , it i i t li t r i
i r i dy ea r T r e a n d
R u b ber 138
l ri r r l t il l t. 9 62 ), f o r i ri t
ti l ti , t i f ir l r r ti l tit t
i i ril g r o u n d s f o r tti
a sid e t h e el ec t i w ic h t o o k lace
" y
i i . f l r ain
f

,
. . -
.
l) )

,.
. 1
i t l ti t t t l r its i f f ir l r r ti s
i t t
r r i t i ti l ti
ti ti t t so m e
40 individuals e r e e ployed in the bargain-
l i g u n it o n t hat d a te .
tantial f ,_. -„„, ,, .,ployees and a. substantial increase in the wage rates of The representation petition in Case 22-RC-8201 was filed on April
,
"1
S
i ti )(l p loyed at ' l
i i l ti i l t t t t t it l tit t it r ri t f r
Consti Stri
fr o m th e r ec o rd
"
g a ""ng d wa s th e it wh c h
to c tio n
This
ai c
a

d ua ls
he
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have already found that 22 employees, or a majority representative of its drivers, dockworkers, and mechan-
of the unit employees, had signed Teamsters designation ics. Later, Respondent withdrew this recognition but
cards on or before April 1. At the hearing, Respondent without any justification or excuse. (The advent of ILA
leveled individual challenges at only two of these cards, Local 1964 was in no small part prompted by Respond-
namely, those signed by Walter Hughes and Eugene ent's own illegal action and Lee's widely expressed pref-
Bennett. 16 Bennett gave no testimony whatsoever which erence for the Union which represented employees at the
could impinge upon the validity of the authorization card Hoffman Trucking Company.) Accordingly, I conclude
which he signed on March 18, 1980. In Hughes' testimo- that Respondent herein violated Section 8(a(1) and (5)
ny, he admitted signing a card on March 28. He testified of the Act
that Coffero told him on that occasion that everyone was
going to join, so he signed the card which Coffero 3. The appropriateness of a Gissel order
handed to him. Later, when the first strike began, Cof-
fero asked Hughes to go on strike, noting that he had In 1969, the Supreme Court declared in Gissel Packing
signed a card and asking him if he were going to stick Co., supra, that the Board may issue a bargaining order
with the other employees. Hughes reportedly protested in lieu of directing a representation election in cases
at that point to Coffero, telling Coffero that he had said where an employer's unfair labor practices are so serious
that everyone was going to sign when in fact they had that a fair and free election cannot be held. In the period
not. It was at this point that Hughes told Coffero that he of time which has elapsed since Gissel, this approach to
wanted no part of the Union. remedying serious unfair labor practices has been repeat-
Even if Hughes' testimony is credited, it does not edly applied both by the Board and the courts. See, for
depict a misrepresentation of fact by Coffero which example, N.LR.B. v. Broad Street Hospital and Medical
prompted Hughes to sign an authorization card. Indeed, Center, 452 F.2d 302 (3d Cir. 1971); N.L.R.B. v. Easton
Coffero's reported statement to Hughes does not consti- Packing Company, 437 F.2d 811 (3d Cir. 1971); N.L.R.B.
tute a representation of any current or past fact but was v. Colonial Knitting Corp., 464 F.2d 949 (3d Cir. 1972);
merely an expression of hope for the future of the orga- Toltec Metals, Inc. v. NL.R.B., 490 F.2d 1122 (3d Cir.
nizing drive. ("Everyone is going to sign.") As such, t 1974); Frito-Lay Inc. v. N.L.R.B., 585 F.2d 62 (3d Cir.
forms no basis for challenging the validity of the card on 1978) NL.R.B. v. Kenworth Trucks of Philadelphia, Inc.,
which Hughes showed an allegiance he was quick 580 F.2d 55 (3d Cir. 1978); NL.R.B. v. Daybreak Lodge
enough to pledge until the Union's strike action brought Nrsing and Convalescent Home Inc. 585 F2d 79 (3d
home to him the fact that the Union might call upon himhome to him the fact t at t Union might call upon him Cir. 1978); N.L.R.B. v. Eagle Material Handling, Inc., 558
to back up his signature with action. Accordingly, I con- F.2d Cir. 19778) Electrial Products Divinc
F.2d 160 (3d Cir. 1977); Electrical Products Division ofelude that since April 1, 1980, the Teamsters was the ma- d d s Corporan v. N R 6
jority representative of Respondent's employees in a unit or o r v N.L.R.B., 617 F.2d 977 (3d
appropriate for collective bargaining. Cir. 1980).
Recently, this doctrine has come under fire in some
2. The Union's demand for recognition quarters. In his dissent in N.L.R.B. v. K & K Gourmet
Meats, Inc, 640 F.2d 460 at 470-471 (3d Cir. 1981), Cir-Since a Gissel order is essentially a remedy for a viola- Meats Inc640 2d460 at47 71 (3d ir 1981) ir-
tion of Section 8(aX)) of the Act, such an order need not c u t Judge Gibbons observed:
be predicated upon subsidiary findings that a union has It is no secret that at least a significant minority
made a demand for recognition or that an employer has o te e er this c t liee tat the Su-
rejected that demand. However, since the General Coun-e . . el
sel has alleged that Respondent herein violated Section preme Court in N8L.R.. v. Gissel Packg Co. 547
8(a)(5) of the Act as well as Section 8(a)(1) and (3), such575 , , LEd. 2d 547
findings are appropriate in this case and are amply sup- (1969), erred in interpreting the National Labor Re-
ported by the record. In its letters of both March 28 and lations Act to permit the National Labor Relations
April 2, the Teamsters requested recognition. Senick also Board to enter a bargaining order as a remedy for
requested recognition over the phone in talking with unfair labor practices committed in the course of an
Grill and with Foley and in person while talking with organizing campaign. Nor is it any secret that those
Lee on April 8 at an emergency meeting which took judges who are uncomfortable with the Gissel con-
place in Lee's office at the terminal. On this latter occa- struction of the statute have been signalling the
sion, Lee negotiated with Senick concerning the return Board vigorously that bargaining orders are unwel-
of the striking employees and the reinstatement of Florio come in this circuit. .... At the same time the
and Freddie Brown. As the meeting concluded, Lee Board is receiving from a different group of judges
agreed to set up a meeting the following week among on this court quite a different signal. ... These dif-
himself, his attorney, and Senick for the purpose of fur- ferent signals are that we acknowledge the primacy
ther negotiating a collective-bargaining agreement. This of the Supreme Court in interpreting the Act, at
action constituted a de facto recognition accorded to the least until Congress speaks, that we acknowledge
Teamsters by Respondent as the collective-bargaining the primacy of the Board as fact finder, and that if
the Board decides to enter a Gissel order we will be
'" Respondent introduced evidence of misrepresentation relating to as- satisfied with a statement of reasons reasonably
sertions made to certain employees who were not card signers but such id ifyin f i
statements, even if made, could have no possible bearing on the Union'sidentifying for the basis, among everal permi
majority status or on the cards which establish that status. ble bases, for choosing that remedy.

-

, . ' t ti - t t s t erei violated Section 8(aXI) and (5)
. t stifi f the ct.
.
,

.
,
. .B.
P. i . );
l i , .L. .
i i i i ." it ; i
f i ll i t li i t ); . . l lphia,
i ll i i . . reak
t l til t i ' tri ti r t lesce t , I c., .
ll i _.,-\» / *irj ce im he c at i l hi . . .
t i i t r it ti . r i l , I - . 1 60
i .
nt ti i it Midland-Ross C
orpo r ation v . . . . ., 617 .2d 977 (3d
i l ti i i .
.
s entia l i l
eat s, I n c. 640 F .2 d 4 60 a t 4
70M 7 1 ( 3d C ir 19 8 1) , C i
r -
ti ( X I
l t G i b o n s r :
r i t i i r fi i t t i i i t
f r iti t t l f the m mb s of t i our believ hat t
r j t t t . r, i t r l -p C i NL - - -. G P C. 395
l ll t t t r i i l t ti U.S. 575 (1969), 95 S. Ct. 1S918 23 L.E d£ 2
(l U '-- 5 { ' ". , "', . .
19 6 9 ), e r r e d t ti l r -
la t i n s A c t t o it t h e ti l r l ti
B o r d to e n te r
i t

. .
* t i t i f i r r t ti r l ti t as- s tisfi it a State ent f reasons reasonably
rt i ,;y * . y-. „i. i. * _ i * *
f l i ri nion'side tifying f US t i , Sever l r issi-
t
1 (3 ir ); e c a l
( )
b ns
TWIN COUNTY TRUCKING 587
Until this case, the guerilla warfare against Gissel duct on the part of this Respondent began on or about
orders has been carried out by insisting that the April 1, 1980, so any unilateral changes in wages or
Board's opinion writing is so opaque that we cannot working conditions which were implemented on or after
understand it and remanding. ... With the present this date without negotiation with the employee bargain-
majority a new weapon is resorted to. The majority ing agent amounts to an unlawful refusal to bargain
simply substitutes its fact finding for that of the within the meaning of Section 8(aX5) of the Act.
Board. Perhaps the new tactic reflects a conclusion Prior to the Good Friday meeting which Respondent
that finally the Board has devised a formula for stat- held with some of its work force, several members of the
ing its reasons satisfactorily.... platform crew, including Hildebrandt and Harrington,
While a court may be empowered to ignore Board were told by company supervisors that their wage rate
would be substantially increased and that the size of theprecedent and Board findings or give an "ungenerous would be su y ease and thahe ze of the
reading"" to its own precedents, it may not properly dock crew would be substantially reduced. This same
message was given to all dockworkers by Grill and Rus-ignore what the Supreme Court has done. Accordingly, mss w n t d ork b l ad R-
I set forth the basis upon which the Supreme Court con- sell on Monday evening, April 7. Most of the dock
cluded, in Gissel, that a bargaining order was warranted workers went on strike on April 9, and some drifted
in that case because a fair and free election could not be back to Respondent's payroll as the strke wore on. Sev-
held therein. A comparison of the facts in Gissel with the eral returning strikers testified at the hearing that, upon
facts in this case amply demonstrates that a Gissel order their return or shortly thereafter, they began to be paid
should be ordered herein. Gissel involved a seriat rates of t considerably in excess of what they had been re-
unfair labor practices committed in a bargaining unit of ceiving when they walked out. At the emergency meet-
47 members during the course of an organizing cam- ing between Lee and Senick which was held on the
paign. Those violations included the discriminatory dis- morning of April 8, agreement was reached to hold an-
charge of two employees, an announcement by the com- other meeting the following week for the purpose of ne-
pany vice president that union meetings would be placed gotiating a contract covering the unit here in question.
under surveillance and that reports to the company That meeting was called off. At no time did Respondent
would be made, concerning the presence of a member of negotiate any changes in the wages or manning require-
the owner's family in the vicinity of a union meeting, ments for its dockworkers with the Teamsters nor, with
several instances of coercive interrogation, a statement the exception of an agreement to set up an aborted nego-
by the company vice president to an individual employee tiating session, did it even offer to do so. Both wages and
that "I can give you more than they [the Union] can," manning requirements are mandatory subjects of bargain-
and another statement by the same individual that he did ing. Accordingly, I conclude that, when Respondent uni-
not want to hear more about "this union stuff." The basis laterally implemented the above-recited changes without
upon which I have concluded that a free and fair elec- bargaining, it violated Section 8(a)(1) and (5) of the Act.
tion could not be run in this case because of the repeated Upon the foregoing findings of fact, and upon the
anf flagrant unfair labor practices of this Respondent is entire record herein considered as a whole, I make the
set forth above in sections C, 1, 2, 3, and 4 of this Deci- following:
sion, and I reiterate the conduct found therein in support
of a recommendation for Gissel order as fully as if I re- CONCLUSIONS OF LAW
peated it in haec verba at this point in the Decision. I Respondent Twin County Trucking Inc. is now
stress also that the illegal discharge of 14 out of 40 mem- pondent T l y T k n I n c s no
bers of a bargaining unit, as found in this case, cannot by and at all times mateal herein has been engaged in com
any stretch of the imagination be regarded as isolated merce withn the maning of Section 2(2), (6), and (7) of
conduct having no bearing on the expression of employ-
ee sentiment at the ballot box. 2. Both Local 478, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
4. The offering and granting of wage increases to America, and Local 1964, International Longshoreman's
bargaining unit employees Association, AFL-CIO, are, respectively, labor organiza-
tions within the meaning of Section 2(5) of the Act.In the amended complaint the General Counsel has al- t w .
leged that the Respondent violated Section 8(aXl) and 3. All full-time and regular part-time truck drivers,
(5) of the Act by offering and then granting wage in- latform workers, and mechanics employed at the Re-
creases to bargaining unit employees without negotiating spondents Neptune and Titon Falls, New Jersey, facili-
those increases with their bargaining agent. According to ty, but excluding all office clecal employees, manageral
the Board doctrine enunciated in Trading Port, supra, an employees, professional employees, guards, and supervi-
8(aX5) violation can be predicated upon such conduct if sors as defined in the Act, constitute a unit appropriate
it occurs at or after the point in time when an erring em- for collective bargaining within the meaning of Section
ployer has embarked upon a clear course of unlawful 9(b) of the Act.
conduct or has engaged in sufficient unfair labor prac- 4. Since on or about April 1, 1980, Local 478, Interna-
tices to undermine the Union's majority status. Such con- tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen, and Helpers of America, has been the exclusive
" The phrase belongs to Chief Judge Seitz, dissenting in NL.R.B.. v collective-bargaining representative of all of the employ-
Permanent Label Corporation, 657 F.2d 512 (3d Cir. 1981). ees in the unit found appropriate in Conclusion of Law 3

. . .
(

t i l f r t t- l it s e f its r f rce, several e bers of the
tisfactorily. . . .platform
While a court
w e r e to ld b y c o m p t h i r r a te
t
l sti inceas and that the size of the
i ? it r t , it ay not properly
d o c k c r e w w o u ld b e su b st a nt ial l y reduced. This same
readng"7 t it ow prcedetsit ay ot roprly essa e as i e t all c r ers rill a s-
i r t t r rt has , r i l , s ell o M a y eng Ar 7. Most of the dock-
I s t f rt t sis i t r rt - wse rs o n M o n d a y e v e stieo ril 9.M o s t o f t h e d o c kr
cl e , i issel, t t a ar ai i r r as rr t bworkers t stp ntl , s e donfted
b a c k t o s n -
t e r a l r t r i tri r testifie at t e eari that, upon
t h i r e t u o r rtl t r ft r, t e a t e paid
es a t r t e s
i i t l t. t t r eet-
il , t r t l a -
) )
,

peated it i haec ver at t is i t in t e ecisi . IR n r i , .
str ss ls t t t ill l is r f 14 t f - an a apltient Twin Count Trucking. Incg is now
rs f a r i i it, as f i t is s , t ma n d a t a i t h es ateanal r i s i f
m e rc e w l t h ln t h e mA a nt. o f S e c tl o n 2 , 6 . a n d o f
B o t L o 7 8 ,
, ., ,, i.,/-, ,,-, .,. , ~~~tions
o t mn o S 2.. o t A .
l t ti 1
f u l l t e an d l
) ti i p , i l t t -
i i i ti ti
nd en t 's t int ll , r , f ili-
r i i i
t , u t l i ll ffi lerical l y s, anagerial
ing t, a, l , r f i l l , r , and s rvi-
t if s o r s as d e i d i
t h e A c t , tit t a it r ri t

fo r ll ti i i it i t i f ti
(b) A c t .
S in c e
t i o n a l
se e , l r ,
. . . .
precedent and Board findings or give an "ungenerous
w o u l d b e s st ti ll in c r eas t t t i
A pril
n c re as ed d
i t nstko
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for purposes of collective bargaining, within the meaning them that the only union which the Company would rec-
of Section 9(a) of the Act. ognize would be one which met company approval; and
5. By refusing to recognize and bargain collectively by telling striking employees that they would never be
with, and by withdrawing recognition from, Local 478, hired again, Respondent herein violated Section 8(a)(l)
International Brotherhood of Teamsters, Chauffeurs, of the Act.
Warehousemen, and Helpers of America, as the exclusive 9. The strikes which occurred at Respondent's termi-
collective-bargaining representative of its employees in nal on April 7 and 9, 1980, respectively, were both
the bargaining unit found appropriate in Conclusion of caused and prolonged by Respondent's unfair labor prac-
Law 3 herein; and by unilaterally granting wage in- tices
creases and making changes in the complement of plat- 10 The aforesaid unfair labor practices have a close,
form crews without first bargaining in good faith with intimate and adverse effect on the free flow of com-intimate, and adverse effect on the free flow of com-said Union concerning said changes, Respondent herein
violated Section 8(a)(5) of the Act. merce within the meaning of Section 2(2), (6), and (7) ofviolated Section 8(a)(5) of the Act.
6. By discharging Daniel Florio on April 7, 1980; by the Ac
discharging the employees who went on strike on April THE REMEDY
7, 1980; and by discharging Darren Brown, Anthony
Coffero, Steven Cole, Daniel Florio, Joseph Fontana, Having found that Respondent herein has engaged in
Frank Harrington, Thomas Henville, John Hewlitt, certain unfair labor practices, I will recommend that it
Joseph Hildebrandt, Stafford Hoffman, James La Pointe, be required to cease and desist therefrom and to take
Ray La Pointe, and Bryan O'Connor because they en- certain affirmative actions which are designed to effectu-
gaged in a strike or because of their membership in and ate the purposes and policies of the Act. Since the inde-
sympathy with Local 478, International Brotherhood of pendent violations of Section 8(a)(l) of the Act found
Teamsters, Chauffeurs, Warehousemen, and Helpers of herein are repeated and pervasive, I will recommend to
America, Respondent has violated Section 8(a)(3) of the the Board a so-called broad 8(a)(1) remedy designed to
Act. _ ,. *,,,o> ,Asuppress any and all violations of that section of the Act.
7. By refusing on April 23, 1980, to reinstate 14 unfair Hickmott Food Inc. 242 NLRB 1357 (1979). As dis-
labor practice strikers upon their unconditional request cussed more fully above the recommended Order will
to return to work, Respondent herein violated Section d
8(a)(l) and (3) of the Act. Such action also constitutes provide for a Gssel remedy and wil provide that Re-
objectionable conduct warranting the setting aside of an spondent be required to offer full and immediate rein-
election which was conducted on May 8, 1980, in Case statement to all of the discimiatees named in paragraph
22-RC-8201. 25 of the first amended complaint and to make them
8. By the acts and conduct set forth above in Conclu- whole for any loss of earnings which they may have sus-
sions of Law 5, 6, and 7; by threatening to discharge em- tained by reason of the discrimination practiced against
ployees, lock the doors, or merge the Company with an- them, in accordance with the Woolworth formula," with
other company if the Union came in; by threatening to interest thereon at the adjusted prime rate used by the
castrate employees because of their union activities; by Internal Revenue Service for the computation of tax pay-
offering employees promotions, wage increases, and ments. Olympic Medical Corporation, 250 NLRB 146
other unnamed benefits in order to defeat the unioniza- (1980); Isis Plumbing & Heating Co., 138 NLRB 716
tion of the Company; by coercively interrogating em- (1962). I will also recommend that Respondent be re-
ployees concerning their union activities and the union quired to post the usual notice, advising its employees of
activities of other employees; by telling employees that their rights and of the results in this case.
their union activities were acts of futility; by urging em- [Recommended Order omitted from publication.]
ployees to select as their bargaining agent a labor organi-
zation other than the one they had selected and telling F. W Woolworth Company, 90 NLRB 289(1950).
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