Colony Materials, Inc.

National Labor Relations Board - Board Decisions

Sep 5, 1962

138 N.L.R.B. 441 (N.L.R.B. 1962)

COLONY MATERIALS, INC. 441
WE WILL, upon request, bargain collectively with the aforesaid
labor organization as the exclusive representative of the employ-
ees in the appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of rights guaranteed
by Section 7 of the Act.
SAM BELZ UPHOLSTERED PRODUCTS COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Seventh Floor Falls Building, 22 North Front Street, Memphis,
Tennessee, Telephone Number Jackson 7-5451, if they have any ques-
tion concerning this notice or compliance with its provisions.
Colony Materials, Inc. and International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers Local No. 492.
Case No. 28-CA-677 (formerly 33-CA-677). September 5, 1962
SUPPLEMENTAL DECISION AND AMENDED ORDER
On December 19, 1961, the Board 1 issued a Decision and Order I
herein, finding that the Respondent had discriminated against cer-
tain strikers by refusing to accept their unconditional offers to return
to work. Thereafter, on January 19, 1962, the Respondent filed a mo-
tion for reconsideration to reopen the record to take further evidence
as to the cause of the strike, inasmuch as the Trial Examiner and the
parties erroneously assumed, without litigating the matter, that the
Board, in a prior decision involving this Respondent,3 had deter-
mined that the strike was an unfair labor practice strike. By order
dated February 28, 1962, the Board remanded instant case to Trial
Examiner Wallace E. Royster for a further hearing on this matter.
On June 11, 1962, the Trial Examiner issued the attached Supple-
mental Intermediate Report. Thereafter, the Respondent filed ex-
ceptions to the Supplemental Intermediate Report and a supporting
brief.
I Consisting of Members Fanning and Brown , with Member Rodgers concurring with the
result reached.
9134 NLRB 1347.
9 Colony Materials , Inc, 130 NLRB 105
138 NLRB No. 53.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Sup-
plemental Intermediate Report, the exceptions and supporting brief,'
and the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
ORDER
IT IS HEREBY ORDERED that the Board's Order in the original Decision
and Order in this case be, and it hereby is, amended by striking from
subparagraph (a) of paragraph numbered 1 the words "unreplaced
strikers," and substituting in lieu thereof the words "unfair labor
practice strikers."
IT IS HEREBY FURTHER ORDERED that the notice required to be posted
by the Respondent, attached as the Appendix to the Board's original
Decision and Order in this case, be, and it hereby is, amended by strik-
ing the words "unreplaced strikers" from the sentence thereof begin-
ning "WE WILL NOT" and substituting in lieu thereof the words "un-
fair labor practice strikers." 5
' The Respondent's request for oral argument is denied as, in the opinion of the Board,
the record, including the exceptions and the supporting brief, adequately presents the
contentions and the positions of the parties.
5 Said notice is likewise hereby modified by adding the following immediately below the
signature at the bottom of the notice: "We will notify any of the above-named employees
presently serving in the Armed Forces of the United States of their right to full re-
instatement upon application in accordance with the Selective Service Act after discharge
from the Armed Forces."
SUPPLEMENTAL INTERMEDIATE REPORT• AND RECOMMENDATION
After a Board Order had issued in this matter on December 19, 1961,1 upon
motion of the Respondent, the Board on February 28, 1962, directed a further
hearing before Trial Examiner Wallace E. Royster to take evidence on the following
issues: (1) Was the strike an unfair labor practice strike, and (2) if not, had the
strikers been replaced at the time they applied for reinstatement.
Pursuant to due notice, a further hearing was held before me in Santa Fe, New
Mexico, on April 3, 1962, on these issues. All parties were represented by counsel.
In a Decision and Order in a prior case 2 involving the Respondent, the Board on
February 10, 1961, in affirming its Trial Examiner, found that the Union on April
1 and 6, 1960, "explicitly and unequivocally requested recognition" of the Respond-
ent and that the Respondent in violation of the Act refused to extend it. In conse-
quence of this finding I have given no consideration to testimony adduced at the
instant hearing on that point.
At the further hearing in this matter, Roger Wallace, a representative of the
Union, testified that on April 11, 1960, at a meeting attended by employees of the
Respondent and by employees of Respondent's predecessor, Kenneth Pike, a dis-
cussion took place concerning Respondent's refusal to bargain with the Union and
1134 NLRB 1347.
2 Colony Materials, Inc., 130 NLRB 105.
DRIVERS & CHAUFFEURS, LOCAL UNION NO. 816, ETC. 443
its refusal to hire certain individuals who had been in the employ of Pike. Because
of these considerations , according to Wallace , a strike resolution was proposed and
adopted. The next morning, April 12, a picket line was placed near Respondent's
premises and a number of its employees engaged in a strike. The pickets carried
signs stating that the Respondent was "Unfair , refuses to bargain with employees'
representative , Teamsters Local 492." F. R. Childers, also a representative of the
Union, testified to the same effect as Wallace.
Philip Naumberg , Respondent 's president, testified that on the day that the strike
began he made no attempt to discover its cause and that he did not remember the
legend on the picket signs.
I fully credit the testimony of Wallace and that of Childers concerning the union
meeting of April 11, and find that the men voted to strike to force the Respondent
to extend recognition to the Union and to bargain with it as well as to bring about
the hiring of former employees of Pike. Thus, as one of the causes of the strike
was Respondent 's refusal to extend recognition to and to bargain with the Union,
as this refusal has been found by the Board to be unlawful and in derogation of
rights secured to employees by Section 7 of the Act, it follows that the strike was
caused in part at least by Respondent 's unfair labor practices . I find that the strike
beginning April 12, 1960, was an unfair labor practice strike from its inception.3
I therefore do not reach the question of replacement of the unfair labor practice
strikers.
RECOMMENDATION
I recommend that the Board adopt the foregoing findings and that it in considera-
tion thereof amend its Decision and Order of December 19, 1961, to reflect the fact
that the strike was an unfair labor practice strike and in all other respects to reaffirm
that decision.
3 N.L It B. v. Birmingham Publishing Company, 262 F. 2d 2 (C A. 5).
Drivers and Chauffeurs , Local Union No . 816, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America and Montgomery Ward and Co., Incorpo-
rated . Case No. ?-CD-178. September 5, 1962
ORDER QUASHING NOTICE OF HEARING
This is a proceeding under Section 10(k) of the Act following a
charge filed September 3, 1959, by Montgomery Ward and Co., Incor-
porated, herein called Montgomery Ward, alleging a violation of
Section 8(b) (4) (D) by Drivers and Chauffeurs, Local Union No.
816, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called Local 816 or the Respond-
ent. Specifically, the charge alleged that Local 816 had induced
and encouraged employees of Montgomery Ward and of Sidel Truck
Leasing Corporation, herein called Sidel, to engage in a strike for the
purpose of forcing Sidel to assign certain work to members of Local
816 rather than to employees of Sidel, who were members of Teamsters
Local 138, herein called Local 138. A duly scheduled hearing was
held before Oscar Geltman, hearing officer, on February 3 and 24,1960,
at New York City, where Montgomery Ward and Local 816 appeared
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing upon the issues.
138 NLRB No. 58.