William A. Mosow

National Labor Relations Board - Board Decisions

Jan 30, 1951

92 N.L.R.B. 1727 (N.L.R.B. 1951)

In Liic Matter Of WILLIAM A. Mosow and LOCAL 40, INTERNATIONAL
UNION, UNITED BREWERY, FLOUR, CEREAL , SOFT DRINK AND DISTIL-
LERY WORKERS OF AMERICA, CIO
Case No. 2-CA-284
SUPPLEMENTAL DECISION AND ORDER
January 30, 1951
On February 9, 1950, Trial Examiner Max M. Goldman issued his
Supplemental Intermediate Report in the above-entitled proceeding,'
finding that the Respondent had engaged in and was engaging in cer-
tain unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Supplemental Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Supplemental
Intermediate Report, together with a supporting brief. The Respond-
ent also requested oral argument. This request is hereby denied as
the record, exceptions, and brief, in our opinion, adequately present
the issues and positions of the parties.
The Board 2 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 Supple-
mental Intermediate Report, the exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following additions
and modifications :
1. The Trial Examiner found, and we agree, that the Respondent
discriminated against Andrew Evans and Joseph P. Vuola, in viola-
tion of Section 8 (a) (3) and 8 (a) (1) of the Act. However, unlike
the Trial Examiner, we find that such discrimination resulted not in
I On June 16, 1949 , the Trial Examiner issued his Intermediate Report in this proceed-
ing, recommending that the complaint be dismissed on jurisdictional grounds. The Board,
on October 21, 1949 , decided to assert jurisdiction and ordered that the proceeding be
remanded to the Trial Examiner for the preparation and issuance of a Supplemental
Intermediate Report , containing findings of facts, conclusions of law, and recommenda-
tions with respect to the unfair labor practices alleged. William A. Mosow, 86 NLRB 680.
See also Squirt Distributing Co., 92 NLRB 1667.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Houston and Murdock].
92 NLRB No. 254. 1727
1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discharge of these employees, but in the acceleration of the dates
of their separation.
As detailed in the Supplemental Intermediate Report, the Respond-
ent, on Saturday, November 15, 1947, requested driver Evans and
driver's helper Vuola to serve as salesman and driver, respectively.
The record fails to establish that this request, which was made by the
Respondent after he learned that the salesman then employed was
leaving and at a time when he desired to reduce his staff to one sales-
man and one driver, was in any way discriminatorily motivated.3
Evans and Vuola rejected the Respondent's request, and, significantly,
Vuola admitted that he expected such rejection would result in his
discharge. Thereafter, on the same day, the Respondent employed
a new salesman to commence work on Monday, November 17, and on
The next day, hired Forlenzo who was directed to report on Monday,
November 24, and who was to serve as a driver without a helper.
-Thus, while Evans and Vuola were not immediately discharged on
November 15, the Respondent manifestly contemplated their separa-
tion for nondiscriminatory reasons. However, it is further evident
that such separation was not intended to be effected before November
24, when Forlenzo was to report.
On Tuesday, November 18, the Respondent received the Union's
request for recognition. As indicated by the Trial Examiner, the
Respondent thereupon peremptorily discharged Evans on Wednesday,
November 19, telling him: "You wanted [a] Union in here. I don't
-want a Union in here. You're through," and on Thursday, November
.20, discharged Vuola, stating "you're through. . . . I have no use
for anybody who joins a union." We are of the opinion, and find, that
by such action the Respondent discriminatorily accelerated the separa-
tion of Evans and Vuola, thereby violating Section 8 (a) (3) and 8
(a) (1) of the Act.,'
2. We agree with the Trial Examiner that the Respondent on and
after November 19, 1947, refused to bargain collectively with the
Union in violation of Section 8 (a) (a)- and 8 (a) (1) of the Act.
As already noted, the Respondent, on November 18, 1947, received
the Union's request for recognition. The Respondent contends, inter
alia, that its reply to the Union on November 19, conditioning recogni-
tion on "certification by the proper Government Agency," was moti-
vated by a good faith doubt as to the Union's majority status in an
' while the Trial Examiner found that Evans and Vuola had been interrogated by the
Respondent on November 14, 1947, 'concerning their union interest , the record shows that
both employees categorically denied to the Respondent that they had any union interest,
,and indeed they had not even contacted the Union at the time the Respondent requested
them to accept the new job assignments on November 15.
4 Cf. Pillsbury Mills, Inc., 74 NLRB 1113, and Vin.ita Garment Manufacturing Company,
!67 NLRB 915.
WILLIAM A. MOSOW 1729
appropriate unit. However, in the light of the Respondent's unlaw-
ful conduct on November 18, immediately following the receipt of
the Union's request, as set forth in the attached Intermediate Report,
and the Respondent's subsequent discriminatory acceleration of the
separation dates of Evans and Vuola on November 19 and 20, respec-
tively, as detailed above, we find that the Respondent's demand for
certification was prompted, not by good faith doubt concerning the
Union's representative status, but by a desire to avoid its statutory
duty to bargain.-'
Accordingly, we find as did the Trial Examiner that the Respondent
violated Section 8 (a) (5) and Section 8 (a) (1) of the Act"
The Remedy
We have adopted the Trial Examiner findings that the Respondent
violated Section 8 (a) (5), 8 (a) (3), and 8 (a) (1) of the Act.
However, as indicated above, we have found that the Respondent's
violation of Section 8 (a) (3) resulted from the acceleration of the
dates of separation of Evans and Vuola, rather than in the discharge.
of these employees. Accordingly, we do not adopt the Trial Ex-
aminer's recommendation that Evans and Vuola be offered reinstate-
ment. As to back pay, we shall order that the Respondent make whole
Evans and Vuola for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them, by payment
to each of them of a sum of money equal to the amount which each
would have earned as wages during the period from his date of separa-
tion to the date when he normally would have been discharged, absent
the discrimination, less his net earnings 7 during that period.' We
shall also order the Respondent to make available to the Board, upon
request, payroll and other records to facilitate the checking of the
amount of back pay due."
5 Cf. Everett Van Kleeck Company , Inc., 88 NLRB 785, and Joy Silk Mills , Inc., 85
NLRB 1263 . enfd . as mod. 1.85 F . 2d 732 (C. A. D. C.).
" In a statement filed with the Board on July 17 , 1950 , the Respondent asserts that the
complaint , insofar as it alleged that the Respondent unlawfully refused to bargain with
the Union , has been "disposed of" by virtue of the Respondent ' s execution of a contract
with the Union after the issuance of the Supplemental Intermediate Report , and covering
the employees in the unit found appropriate herein. We find no merit in this contention.
See N . L. R. B. V. Mexia Textile Mills, Inc ., 339 U. S . 563 ; cf . American National Insur-
ance Company, 89 NLRB 185 , and Pacific Moulded Products Co., 76 NLRB 1140. How-
ever , this contract will , of course , be considered at the compliance level.
' By "net earnings" is meant earnings less expenses , such as for transportation , room,
and board , incurred by all employee in connection with obtaining work and working else-
where , which would not have been incurred but for this unlawful discrimination, and
the consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,.
8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal„
or other work-relief projects shall be considered earnings . Republic Steel Corporation V..
N. L. R. B., 311 U. S. 7.
8 Cf. Pillsbury Mills , Inc., supra.
IF. W. Woolworth Company, 90 NLRB 289.
1730 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, William A.
Mosow, Stamford, Connecticut, his officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 40, International Union,
United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of
America, CIO, or in any other labor organization of his employees,
by discharging any of his employees or by discriminating in any
other manner in regard to their hire or tenure of employment, or any
term or condition of employment;
(b) Refusing to bargain collectively with Local 40, International
Union, United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, CIO, as the exclusive representative of his
employees in the unit found appropriate in the Supplemental Inter-
Inedia,te Report and set forth in Appendix A herein;
(c) In any other manner interfering with, restraining, or coercing
his employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Local 40, International
Union, United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and to refrain from any or
all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the amended Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Make whole Andrew Evans and Joseph P. Vuola in the manner
set forth in the section entitled "The Remedy," for any loss of pay
they may have suffered by reason of the Respondent's discrimination
against them ;
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due under the
terms of this Order;
(c) Upon request, bargain collectively with Local 40, International
Union, United Brewery, Flour, Cereal, Soft Drink and Distillery
WILLIAM A. MOSOW 1731
Workers of America, CIO, as the representative of his employees in
the unit referred to in paragraph 1 (b) above, with respect to rates
of pay, wages, hours of employment, or other conditions of employ-
ment, -and, if an understanding is reached, embody such understand-
ing in a signed agreement;
(d) Post at his plant in Stamford, Connecticut, copies of the notice
attached hereto, marked Appendix A.10 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 the Respondent immediately upon receipt thereof and maintained
by him for sixty (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 said notices are not altered, defaced, or covered by any other
material;
(e) Notify the Regional Director for the Second Region, in writing,
within ten (10) . days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX A
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, I hereby notify my employees that :
I WILL NOT discourage membership in LOCAL 40, INTERNATIONAL
UNION, UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DIS-
TILLERY WORKERS OF AMERICA, CIO, or any other labor organiza-
tion of my employees, by discharging any of my employees, or in
any other manner discriminating as to their hire and tenure of
employment or any term or condition of employment.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist LOCAL 40, IN-
TERNATIONAL UNION, UNITED BREWERY, FLOUR, CEREAL, SOFT
DRINK AND DISTILLERY WORKERS OF AMERICA, CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to
"In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words , "Decision and Order ," the words , "A Decree of
the United States Court of Appeals Enforcing."
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
I WILL MAKE WHOLE Andrew Evans and Joseph P. Vuola for
any loss of pay suffered as a result of the discrimination against
them.
I WILL BARGAIN collectively, upon request, with the above-named
Union as the exclusive representative of all employees in the bar-
gaining unit described herein with respect to rates of pay, wages,
hours of employment, or other conditions of employment, and if
an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All drivers and helpers at the Stamford, Connecticut, plant,
excluding supervisors as defined in the Act.
All my employees are free to become, remain, or refrain from becom-
ing or remaining members of the above-named Union or any other
labor organization, except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
I will not discriminate in regard to the hire or tenure of employment or
any term or condition of employment against any employee because
of membership in or activity on behalf of any such labor organization.
WILLIAM A. Mosow,
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 materials.
SUPPLEMENTAL INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On June 16, 1949, the undersigned issued an Intermediate Report and Recom-
mended Order recommending, upon the basis inter alia of an absence of a show-
ing that the-Respondent was an exclusive or franchised distributor of the beer
or carbonated beverages he sold, that the Board not assert its jurisdiction.
Neither the General Counsel nor the charging party filed exceptions to this
recommendation with the Board. The Respondent, however, filed a "Statement
of Exceptions," in which he admitted that he operates under a franchise and
that he is the exclusive distributor of the beer and the carbonated beverages
in question . The Board, thereafter on October 21, 1949, decided to assert juris-
diction,' pointing out that it was its policy to assert jurisdiction over franchised
wholesale distributors of out-of-State beer, wine, and liquor, and directing the
undersigned to make findings and recommendations with respect to the unfair
labor practices alleged.
1 86 NLRB 680.
WILLIAM A. MOSOW 1733
Upon the entire record in the case , and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
In accordance with the Board 's determination referred to above, it is found
that the Respondent is engaged in commerce within the meaning of the Act.
•
II. THE ORGANIZATION INVOLVED
Local 40, International Union, United Brewery, Flour, Cereal, Soft Drink
and Distillery Workers of America, CIO, is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The events
At the time of the incidents material here , the Respondent conducted his busi-
ness at Old Greenwich , Connecticut . The Respondent then owned one truck
.and employed a driver , Andrew Evans , and a helper , Joseph P . Vuola, to make
deliveries. Evans and Vuola are the employees involved in the charge. William
A. Mosow, the Respondent, did some sales work and also employed a salesman.
Mina G. 'Mosow, the Respondent's wife, performed the office work and also par-
ticipated with her husband in the management of the business including matters
Involving the hire and discharge of personnel.
The Respondent received delivery of merchandise at his place of business from
the M & L Trucking Company. It was customary for the M & L driver, one Al,
to help Evans and Vuola unload the M & L truck . Al, although not refusing to
work with Evans and Vuola because they were not union men, sought to induce
them to join a union, explaining to Evans certain advantages . that could be thus
obtained. Evans in turn discussed the matter with Vuola, the helper. On
Thursday, November 13, 1947, however, another M & L driver, one Skippy, re-
fused to unload the truck because Evans and Vuola were not union men, and
called Evans and Vuola scabs. Skippy also discussed with the men the advis-
ability of joining a labor organization. Evans and Vuola informed 1\losow of
Skippy's refusal to help them unload the truck because they were not union men
and of his calling them scabs. After some arrangements were made , the truck
was unloaded.
The next day, Friday, November 14, Mosow called Evans aside and inquired,
"What's this I hear about unionizing this place ?" Evans disclaimed any knowl-
edge of the matter but Mosow warned, "You know, Evans, I have " no use for
anybody that wants to belong to a union." The conversation closed when Evans
incorrectly assured Mosow that nothing had been said about unions. The same
day Mrs. Mosow made a similar inquiry of Vuola. She asked him, "What's this
all about that I hear, about a union going around?" Vuola too disclaimed any
knowledge of the matter.
On Saturday morning, Mosow discussed proposed changes in work assign-
ments with Evans and Vuola. Mosow planned to start Evans as a salesman, if
Vuola would undertake to do the delivery work alone. Mosow informed the
-men that the salesman was leaving that day, and proposed that Evans take his
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place, and that Vuola take the truck out alone.2 Vuola indicated that he would`"
not take the truck out alone with more than 150 cases, explaining that that was-
the practice in his prior employment and that he did not intend to do more than
that for the Respondent. Mosow replied that Vuola would take out as many
orders as came in. Vuola stated that he supposed that he was going to be dis-
charged, but Mosow declared that he was not discharged and that he should
come to work on Monday as usual. When it became clear that Mosow and
Vuola could not reach an agreement as to the terms of the proposed new assign-
ment, Mosow urged Evans to persuade Vuola to accept Mosow's terms so that
Evans could do the selling work, explaining that it would not be economically
feasible to maintain a limit of 150 cases as Vuola had desired. Evans then of-
fered to do the driver's and helper's work for a $10 a week increase but Mosow
declined, stating that he could not afford to pay the increase. Sometime on this
day Mosow and Evans discussed the terms of the salesman's job. They too
were not able to reach an agreement. Evans declined the sales position which
had been offered him contingent upon Vuola's acceptance of the driver's job be-
cause he would receive the same pay he had before plus certain expenses for his
car, but would also be required to spend a few hours every morning helping Vuola
load the truck. Later that day Mosow hired a new salesman. That evening
Evans and Vuola went to see union representative James J. Simonelli and each
executed an authorization card with the Union. As a result of an invitation
the Respondent made by telephone on Saturday afternoon Anthony S. Forlenzo,
who had applied for employment earlier, went to see the Mosows on Sunday.
Arrangements were then made for Forlenzo to commence work as=a driver with-
out a helper the following week on Monday, November 24.3
The men worked on Monday, November 17, and started the next day, Tuesday,
as usual. During the early part of Tuesday morning Mosow received a letter
from the Union stating that it had been authorized by the Respondent's em-
ployees to represent them and requesting that the parties meet for the purpose
of negotiating a contract not later than Thursday, November 20. Upon receipt
of this letter the Respondent telephoned Simonelli. During the conversation it
Mrs. Mosow testified that the proposed reassignment of the men was prompted by a
sharp drop in business in November and that business declined rapidly during November.
She testified further that she and Mr. Mosow had considered this matter for several weeks,
but it was not until the Friday preceding Mr. Mosow's discussion with the men on Saturday
that Mr. and Mrs. Mosow decided to submit the proposal to the men. The Respondent,
through Mrs. Mosow, introduced certain records of deliveries. The figures given did not
distinguish between beer and carbonated beverages ; and they represent the number of cases
of beverages actually delivered which is less than the number of cases loaded on a truck
because customers very frequently refuse to accept delivery. These records show average
daily deliveries for the week October 13-17 to be 230 cases. No data were disclosed for the
week of October 20-24. The daily average for October 27-31 was 164 cases, the daily
average for November 3-7 was 178 cases (the deliveries for one day in this week were not
given), and the daily average for November 10-14 was 190 cases: The data in the record
afford no basis for concluding that the October 13-17 week may be used as a standard of
comparison. Mrs. Mosow admitted that it was very difficult to distinguish a good week's
business from a poor week's business, the enterprise being relatively new. A comparison of
the three successive weeks preceding the discussions with the men, contrary to Mrs. Mos-
ow's testimony, shows a 9 percent increase in deliveries in the second week over the first
week, and a 6-percent increase in the third week over the second week or a 15-percent
increase in the third week over the first week.
3 Forlenzo started to work for the Respondent on November 24. Except for some inci-
dental help Forlenzo received from his uncle and. some boy, he was not provided with a
regular helper until shortly before he left the Respondent's employ in the middle of April.
There is no showing that Forlenzo's hours a day or days a week were the same as those
which prevailed prior to his hire.
WILLIAM A. MOSOW 1735
became clear that the Union sought to represent the driver and the helper,
Evans and Vuola. The Respondent informed Simonelli that Evans was to be
discharged for inefficiency and that another man had been hired to replace him.
The parties agreed to meet the coming Saturday , November 22. Mosow there-
upon went into the warehouse where Evans and Vuola were working and inquired
who had contacted the Union . They admitted that they both had been to the
Union. Mosow declared that in view of the fact that they wanted a union
thereafter they would alternate taking the truck out alone while the other was
off and he instructed Evans to go out with the truck alone that day. Addressing
Evans, Mosow stated that he (lid not expect that Evans would join a union.
Evans took the truck out alone that day while Vuola remained at the warehouse.
At about this time the Respondent again telephoned Simonelli and arranged
to meet that night instead of Saturday . After cleaning up the warehouse Vuola
was sent home early that day. Early that evening , shortly before the time the
parties had arranged for their meeting, the Respondent called Simonelli again
cancelling the meeting that had been arranged for that night and stating that
the Union would receive a letter setting forth the Respondent 's position.
The next day , Wednesday , November 19, Mrs. Mosow wrote the Union con-
ditioning recognition upon "certification by. the proper Government Agency."
Both Evans and Vuola reported for work that day and started to load the truck.
Before Vuola left to make the deliveries , Mosow informed Evans that he was dis-
charged. When Evans questioned Mosow as to the reason for his discharge
Mosow replied that Evans wanted a union at the Respondent's place of business
and that Mosow did not. After Evans received his check at the office, Mosow
told him not to go back and talk with Vuola. Sometime before Vuola left to
make the deliveries , Mosow stated to Vuola that he did not want a union at his
place of business , that he did not know why Vuola agreed to join the Union, and
that he did not think that Vuola would do such a thing.
Vuola reported for work the next morning , Thursday , November 20, but before
he left for the deliveries Mosow discharged him, explaining that he had no use
for anyone who joins a union. Upon Vuola's inquiry thereafter Mosow stated
that in addition to this reason, Vuola was being discharged because he was an
unsatisfactory employee.'
B. Conclusions
1. Interference, restraint, and coercion ; the discriminatory discharges
The Respondent contends that he decided to discharge Evans and Vuola on
Saturday, November 15, when he was not able to reach an agreement with them
as to the proposed new assignments and that he thereafter hired replacement
employees. He explained, in addition, that Evans and Vuola were not discharged
on Saturday because he wanted to maintain his deliveries.
Concerning Vuola specifically, the Respondent stated that the reasons Mrs.
Mosow gave for Vuola's discharge in a certain document she had submitted to
4 The findings in this Report are based principally upon Evans' and Vuola's credible
testimony. Because of the undersigned's view of the relative reliability of their testimony
as compared to that of Mr. and Mrs. Mosow, the latter's denials and explanations are
not credited. The undersigned also does not credit the testimony of Anthony S. Forlenzo,
the employee with whom the Respondent had reached an agreement on November 15 to
appear for,work as a driver on November 24. Forlenzo gave testimony of admissions by
the Respondent at the time employment arrangements were being made with him and
thereafter, in which the Respondent disclosed illegal motivation and intent.
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Second Regional Office in furtherance of the prosecution of a charge which
the Respondent had filed against the Union were true-namely, that Mosow had
discharged Vuola because (1) he was not reliable, (2) he was not satisfied with
conditions, and (3) he was quick tempered.' At the hearing Mosow added an
additional reason for the discharge-Vuola had refused to take the truck out
alone. Although the first three reasons find some support in Mosow's general
statement that Vuola was not a satisfactory employee, which he made at the time
of the discharge upon Vuola's inquiry and after Mosow had admitted that Vuola
was discharged for joining the Union, these reasons find no support in the credible
evidence. These reasons are, moreover, negated by Mosow's offer on Saturday,
November 15, to have Vuola take the truck out alone. Mosow's failure to mention
Vuola's refusal to take the truck out alone and to accept the proposed assignment
in this prior enumeration of reasons for the discharge, in addition, reflects upon
the true significance of that incident. Moreover, Vuola took the truck out alone
on Wednesday and was to take it out alone again on Thursday without the
quantity limitation -he had sought to obtain during the discussion with Mosow
on Saturday.
During his conversation with Simonelli on November 18, Mosow stated that
Evans was to be discharged for inefficiency. At the hearing, however, Mosow
gave many complaints against Evans, some of which were adduced on cross-
examination after he was confronted with the document referred to above,-(1)
Evans did not know the delivery territory as Evans had said he did when he was
hired on October 6, (2) Evans made deliveries to persons who had not placed
orders, (3) Evans did not fill orders correctly, causing loss of sales, (4) Vuola
had complained during his first week of employment that Evans had him do all
the work and that he could not work with Evans, (5) Evans' attitude as an
employee was not very good, he was stubborn and would not do things, he would
"grumble" when he was given orders, and he had to be "pushed," (6) Evans
refused to cooperate in collecting cash for soft drinks, (7) he caused an excess
breakage of merchandise, (8) he left partially empty soda bottles around from
which he and the prior helper had drunk, (9) he was not available when Mosow
5 These reasons were first disclosed in cross-examination by the General Counsel. The
Respondent objected to the General Counsel's use of the document in question, urging
that as a matter of policy such materials should not be used against the party submitting
them because the knowledge of such possible use' would discourage full disclosures and
thus hamper the investigation of charges. He also stated, by way of analogy, that the
relationship' between the General Counsel and a charging 'party was akin" to that,'of the
attorney-client relationship and that it would be improper for an attorney to turn over
information he had received from a client. to another .attorney working at adverse, pur-
poses. The Respondent also alluded to the policy of the United States Conciliation
Service of not permitting its Conciliators to testify as to matters arising in the course
of negotiations. -
The first point of the Respondent's objection assumes that charging parties would
not make full disclosures as a matter of public duty and that the desire to successfully
prosecute their own charge is insufficient incentive to prompt frank dealings with the
Government. Acceptance of the Respondent's view-the equivalent of a grant of im-
munity-moreover, would tend to encourage questionable charges and thus not only
occupy the Boai-d with frivolous claims but also permit the use of the Government's
machinery for private harassment and gain. In addition, one would be able to obtain
immunity from prosecution for his own violations of the law by merely communicating
the matter to the Government while he pressed a charge of real or feigned substance
against another. The attorney-client relationship analogy appears to be inapposite, for
the General Counsel acts not to secure private rights but to enforce public duties. Lastly,
the function of the Conciliation Service is to aid in settling labor disputes by mediation,
not to prosecute and adjudicate alleged violations of law as is the function of the General
Counsel and the Board respectively.
WILLIAM A. MOSOW 1737
wanted him and Mosow had to send for him at the gasoline station, and (10) he
was always wanting more money. The credible evidence, however, fails to sub-
st:antiate,the existence of some of these complaints as facts ; it fails to substantiate
that the Respondent considered other of the complaints to be serious; and it con-
tradicts the existence as facts of still others. Aside from such lack of substantia-
tion of the enumerated complaints, Mosow's offer to Evans of sales work-the
qualifications for which would appear inconsistent with the attributes the com-
plaints represent-demonstrates the insignificance of these complaints. Mosow
sought to explain the offer of a sales job as being the result of a promise he had
made to Evans when Evans had applied for a sales job but was hired as a driver
on October 6, that he would give Evans a sales job when the. first opportunity
arose and that, in addition, he wanted to give Evans a second chance. Yet, on
the first day or sometime during the first week of Vuola's employment as helper,
Vuola having commenced work on October 27,° Mosow stated to Vuola that he did
not like Evans, that he planned to discharge Evans, and that Vuola was hired
as the replacement. In addition, the offer can hardly be considered as a ful-
fillment of that promise when not only was the sales job offered coupled with
the requirement that Evans spend several hours each morning helping Vuola
with loading, but it was also conditioned upon Vuola's acceptance of the driver's
job without the aid of a helper. It appears, moreover, that Mosow learned of the
salesman's leaving on the Monday preceding the Saturday that Mosow talked
with the men, yet Mosow did not when the salesman gave his notice, as one would
expect if it was a matter of fulfilling a promise and giving a man another chance,
come forward and inform Evans of the opportunity that had arisen and make
him an offer of a real sales job.
Although Mosow explained that Evans and Vuola were not discharged on
Saturday because he wanted to maintain his deliveries, he knew when he dis-
charged Evans on Wednesday and Vuola on Thursday before Vuola left to make
the deliveries that day that all he, Mosow, could rely upon then to take care of
future deliveries was Forlenzo's word that he would appear for work on Monday.
Moreover, this explanation overlooks the fact that Mosow made the discharges
on Wednesday and Thursday morning thus leaving the Thursday and Friday
pre-week end deliveries unattended and foreclosing the effectuation of the pur-
pose he testified he had had to maintain deliveries. Significantly, the discharges
began on Wednesday, the day the Respondent took the position that he would
condition his recognition of the Union upon certification.
It is accordingly found, particularly in view of the Respondent's conduct in
violation of Section 8 (a) (1) of the Act-(1) Mr. Mosow's inquiry of Evans and
Mrs. Mosow's inquiry of Vuola on November 14 as to their union interest and
activity, (2) Mr. Mosow's warning to Evans on November 14 that he had no use
for anyone who was interested in joining a union, (3) Mr. Mosow's inquiry of
Evans and Vuola on November 18 as to who had contacted the Union, and (4)
Mr. Mosow's penalizing Vuola and Evans by requiring each to take the truck out
alone beginning November 18 because they had wanted a union, that Andrew
Evans and Joseph P. Vuola were discharged in violation of section 8 (a) (3) on
November 19 and 20, 1947, respectively, for the reasons the Respondent admitted
to each, namely, that they were discharged for illegal considerations.
9 The prior helper quit the Respondent's employ on October 25. A few days before
Vuola was hired the Respondent had advertised in a local newspaper for a driver. Vuola
did not apply for employment in response to this advertisement.
929979-51-vol. 92-111
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The refusal to bargain
a. The appropriate ' unit and representation by the Union of a majority therein:
It is found as alleged that all drivers and helpers of the Respondent employed
at his Connecticut plant, exclusive of all other employees and all supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
On November 15, 1947, each of the men in the unit executed an authorization
card on behalf of the Union. It is accordingly found on the basis of these
authorization cards that beginning November 15, 1947, and at all times material
thereafter the Union was the representative of the employees in the appropriate
unit within the meaning of Section 9 (a).
b. The refusal to bargain
On November 19, the Respondent, after having interfered with, restrained,
and coerced his employees, refused to recognize the Union, conditioning recogni-
tion upon certification. The Respondent having immediately thereafter dis-
criminatorily discharged the two employees in the unit, he may not condition
recognition upon certification or refuse to accept authorization cards as proof of
majority , for he would thus benefit by his own wrongdoing.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several states, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within..
the meaning of the Act, it will be recommended that the Respondent cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
It has been found that the Respondent has refused to bargain by certain con-
duct described above. It will therefore be recommended that the Respondent
cease and desist from this conduct and upon request bargain collectively with the
Union with respect to rates of pay, wages, hours, and other terms and conditions
of employment.
It has been found that the Respondent discriminated in regard to the hire and
tenure of employment of Andrew Evans and Joseph P. Vuola. It will, therefore,.
be recommended that the Respondent offer Evans and Vuola immediate and full
reinstatement to their former or substantially equivalent positions,' without
prejudice to their seniority or other rights and privileges and to make them whole
' See Artcraft Hosiery Company, 78 NLRB 333, 334. In a conference with a State
conciliator held shortly after the discharges, Nfosow refused to recognize the Union upon
the basis of Evans ' and Vuola's authorization cards , but took the position that be would
recognize the Union if the new driver joined the Union.
' In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position '.' is intended to mean "former position
wherever possible and if such position is no longer in existence , then to a substantially
equivalent position ." See The Cliase National Bank , 65 NLRB 827.
WILLIAM A. MOSOW 1739
for any loss of pay they may have suffered by reason of the Respondent's discrim-
ination against them by payment to each of a sum of money equal to that which he
normally would have earned as wages as an employee from the date of his
discharge to the date of the offer of reinstatement, less his net earnings during
such period.
The undersigned is convinced that the unfair labor practices found mani-
festly indicate a disposition on the part of the Respondent to thwart self-organiza-
tion of his employees and to -deprive them of their rights under the Act. There is
a likelihood not only that such acts may be repeated but that the other unfair
labor practices proscribed by the Act may be resorted to or committed by the.
Respondent. It will therefore be recommended that the Respondent be ordered;
to cease and desist from in any manner interfering with, restraining, or coercing
its employees in the exercise of their rights as guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Local 40, International Union, United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, CIO, is a labor organization Within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Andrew
Evans and Joseph P. Vuola, thereby discouraging membership in Local 40, Inter-
national Union, United Brewery, Flour, Cereal, Soft Drink and Distillery Work-
ers of America, CIO, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
3. All drivers and helpers of the Respondent employed at the Respondent's
Connecticut plant, excluding all other employees and all supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. Local 40, International Union, United Brewery, Flour, Cereal, Soft Drink
and Distillery Workers of America, CIO, was on November 19, 1947, and at all
times thereafter has been, the exclusive representative of all the employees in the
aforesaid unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
5. By refusing on November 19, 1947, and at all times thereafter to bargain
collectively with the aforesaid labor organization as the exclusive representative
of all his employees in the aforesaid appropriate unit, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.
6. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of, the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]