Duralite Co., Inc.

National Labor Relations Board - Board Decisions

Jul 25, 1961

132 N.L.R.B. 425 (N.L.R.B. 1961)

DURALITE CO., INC. 425
Upon the basis of the foregoing findings of fact and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the meaning of Section 2(5) of the
Act.
3 The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a) (3) and ( 1) of the Act.
[Recommendations omitted from publication.]
307; Todd Shipyards Corporation , Los Angeles Division , 98 NLRB 814; and Columbus
Iron Works Company, 107 NLRB 1354. The Board recognized and discussed that prin-
ciple in the Spielberg case. While the above cases support the proposition for which they
are cited, I think it sufficient to state that the facts In each of the cases are clearly
distinguishable from the facts found herein.
Duralite Co ., Inc. and Metal , Plastics, Miscellaneous Sales, Nov-
elty and Production Workers Union Local 222, International
Production , Service and Sales Employees
Local 485, International Union of Electrical , Radio and Machine
Workers, AFL-CIO and Metal , Plastics, Miscellaneous Sales,
Novelty and Production Workers Union Local 222, Interna-
tion Production , Service and Sales Employees
Duralite Co., Inc. and Dolores Ramos
Local 485, International Union of Electrical , Radio and Machine
Workers, AFL-CIO and Dolores Ramos
Local 222, Metal , Plastics, Miscellaneous Sales, Novelty and
Production Workers Union , International Production , Service
and Sales Employees and Local 485, International Union of
Electrical , Radio and Machine Workers, AFL-CIO and Dura-
lite Co., Inc., Party to the Contract . Cases Nos. 2-CA-6416,
,-CB-92518, 2-CA-6505, 2-CB-2526, and -CB-9249. July 25,
1961
DECISION AND ORDER
On September 6, 1960, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices within the meaning of Section 8(a) (1), (2), (3), and
(5) and Section 8(b) (1) (A) and (2) of the National Labor Rela-
tions Act, as amended, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Respond-
ents , Duralite Co., Inc., hereinafter referred to as Duralite, Local 485,
International Union of Electrical, Radio and Machine Workers, AFL-
132 NLRB No. 28.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, hereinafter referred to as Local 485, and the General Counsel
filed exceptions to the Intermediate Report and briefs in support
thereof.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following exceptions, additions,
and modifications.
The pertinent facts, more fully set forth in the Intermediate Re-
port, are as follows : Duralite, a corporation, is engaged in New York
City in the manufacture and sale of lawn furniture. Commencing in
1953, without any certification, Duralite entered into a number of
collective-bargaining agreements with Local 222. The last of these
contracts, which granted -exclusive recognition to Local 222, was
entered into on July 1, 1957, and was to remain in effect until July 1,
1959. It contained a union-shop clause, a checkoff clause, and a clause
requiring Duralite to pay sums to Local 222's "Welfare Fund" to
finance a welfare plan "for the benefit of employees of the Employer,
members of the Union." During this period and until February 12,
1959,, when Duralite granted recognition to Local 485, a Local 222
representative visited the Duralite plant to process grievances.
On February 6, 1959, Local 485 filed a petition seeking to represent
Duralite employees? Several days later, a representative of Local
485 called on Lesser, president of Duralite, and demanded recogni-
tion, claiming that Local 485 represented a majority of Duralite em-
ployees and threatening a strike if Duralite refused such recognition.
On February 12, 1959, representatives of Local 485 and Duralite
checked Local 485 authorization cards against employee signatures on
their payroll checks and concluded that approximately 75 percent of
Duralite employees had signed such authorization cards. Later that
day, Local 485 and Duralite entered into a written agreement in which,
among other things, Duralite (a) recognized Local 485 as the exclu-
sive representative of its employees; (b) agreed to negotiate a con-
tract with Local 485 to become effective on July 1, 1959 (the expira-
tion date of the existing Local 222 Duralite contract) ; (c) agreed to
discontinue checking off dues to Local 222; (d) agreed to exclude
Local 222 representatives from the plant; and (e) granted to Local
485 representatives access to the plant with authority to process griev-
1 In the absence of exceptions by the Respondent , Metal, Plastics, Miscellaneous Sales,
Novelty and Production Workers Union Local 222, International Production , Service and
Sales Employees , hereinafter referred to as Local 222, to the finding by the Trial Examiner
that Local 222 violated Section 8(b) (2) by maintaining and enforcing a welfare-fund
clause in its contract with Duralite which limited benefits to members of Local 222, we
adopt this finding pro forma
2 Case No 2-RC-9775
DURALITE CO., INC. 427
antes. On February 13, 1959, Duralite excluded a Local 222 repre- i
sentative from its plant and it thereafter ceased checking off member-
ship dues on behalf of its employees to Local 222. With Duralite's
permission, Local 485 posted on the plant bulletin board a notice an-
nouncing that membership in Local 485 was a condition of employ-
ment. Subsequent, Duralite and Local 485 executed a 3-year contract
effective from July 1, 1959. During a period beginning about July
1, 1959, Local 485 collected union dues from Duralite employees on
company premises during working time.
1. We agree with the Trial Examiner that, by withdrawing recog-
nition from Local 222 on February 12, 1959, completely and for all
purposes, at a time when its contract with Local 222 was still in effect,
and, subsequently, by refusing to permit Local 222 to continue admin-
istering that contract or processing grievances through its stewards,
Duralite acted in derogation of its duty to continue to recognize Local
222 as the exclusive representative of its employees during the con-
tract term and thereby violated Section 8 (a) (5).1 In finding this
violation of 8(a) (5), we do not hold that Duralite faced with the
rival claim and petition of Local 485 which raised a real question con-
cerning representation was then under obligation to bargain collec-
tively with Local 222 as to any future contracts.
2. We also find, in agreement with the Trial Examiner, that Dura-
lite violated Section 8 (a) (2) under the Midwest Piping rule 4 by
recognizing Local 485 on February 12, 1959, at a time when a real
question concerning representation existed with respect to its employ-
ees, since Local 222 was asserting its representative status in reliance
upon its contract simultaneously with a timely filed petition by Local
485.
3. We also agree with the Trial Examiner that, notwithstanding the
absence of an express clause requiring membership in Local 485 as a
condition of employment in Local 485's contract with Duralife, dated
July 1, 1959, Duralite and Local 485 entered into an arrangement
8 Hexton Furniture Company, 111 NLRB 342; Marcus Trucking Company , Inc, 126
NLRB 1080, enfd. as mod, 286 F. 2d 583 (C.A. 2). Although we have found that the
welfare-fund clause in the contract between Duralite and Local 222 was unlawful, and,
therefore , such contract would not have barred a representation petition filed by a rival
union ( Radio Frequency Connectors Corporation , et at, 126 NLRB 1076 ), the presence
of the unlawful clause in the Duralite Local 222 contract did not justify Duralite in
resorting to self-help by withdrawing recognition from Local 222 during the term of this
contract and recognizing Local 485 See Ray Brooks v. N L.R.B., 348 U S. 96, in which
the Supreme Court stated ( at p 103 ) : "If an employer has doubts about his duty to
continue bargaining, it is his responsibility to petition the Board for relief , while con-
tinuing to bargain in good faith at least until the Board has given some indication that
his claim has merit . . Although the Board may, if the facts warrant , revoke the
certification or agree not to pursue a charge of unfair labor practice, these are matters
for' the Board ; they do not justify employer self-help or judicial intervention "
*Midwest Piping 4 Supply Co., Inc ., 63 NLRB 1060 ; Shea Chemical Corporation, 121
NLRB 1027 . As a real question concerning representation existed , the fact that Local
485 may have shown its numerical majority status is irrelevant ( Sunbeam Corporation,
99 NLRB 546, 550; Swift and Company, 128 NLRB 732)
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making membership in Local 485 a condition of employment and that
this arrangement was enforced commencing in July 1959. We rely on
the following facts : On February 12, 1959, immediately after Duralite
unlawfully granted recognition to Local 485, with Duralite's permis-
sion, Local 485 posted on the Duralite bulletin board a copy of its
agreement with Duralite and a notice stating that membership in
Local 485 was a condition of employment at Duralite. These notices
remained on Duralite's bulletin board until sometime in June 1959.
During a period beginning about July 1, 1959, when Duralite entered
into a 3-year agreement with Local 485, Local 485 collected union dues
from all Duralite employees on company premises during working
hours in the following manner : Once a month, Duralite employees re-
ceived their pay in cash, and immediately thereafter, they formed a
a line nearby where representatives of Local 485 collected union dues
from all Duralite employees. As we have found that Duralite vio-
lated Section 8(a) (2) by recognizing Local 485, we further find that
by making and enforcing an arrangement requiring membership in
Local 485 as a condition of employment, Duralite violated Section
8(a) (3) and Local 485 violated Section 8(b) (2).
4. We also find, in agreement with the Trial Examiner and for the
reasons stated by him, that Duralite discharged employee Dolores
Ramos in violation of Section 8 (a) (3) and that Local 485 caused such
discharge in violation of Section 8 (b) (2).5
THE REMEDY
Having found that Respondents have engaged in and are engaging
in certain unfair labor practices, we shall order that they cease and
desist therefrom and take certain affirmative action which we de-
termine necessary to effectuate the policies of the Act.
We shall adopt the Trial Examiner's recommendations that Dura-
lite be ordered to cease and desist from rendering any unlawful aid or
assistance to Local 485 or from performing or giving effect to any of
the terms and conditions of its agreements with Local 485, until such
time as Local 485 shall have been certified by the Board as the ex-
clusive representative of Duralite's employees. Although we have
found that Duralite, by withdrawing recognition from Local 222,
violated Section 8(a) (5), in agreement with the Trial Examiner, but
for a different reason, we shall not order Duralite to bargain with
Local 222. On November 14, 1960, Local 222 disclaimed any further
5 In their briefs to the Board , Duralite and Local 485 alleged that, subsequent to Ramos'
discharge , he was reinstated , and was then discharged for cause , and that the General
Counsel refused to issue a complaint with respect to the second discharge. As these are
matters outside the record , they should be left for determination in the compliance stages
of this proceeding . Accordingly , we expressly reserve the right to modify the backpay
and reinstatement provisions of our order herein as to Ramos if such appears necessary
on the basis of facts not now in the record . Coca-Cola Bottling Company of Louisville,
Inc., 108 NLRB 490, 494, footnote 23, reversed on other grounds 350 U . S. 264.
DURALITE CO., INC. 429
interest in representing Duralite's employees.' In view of this dis-
claimer of interest by Local 222, we believe that a bargaining order in
favor of Local 222 will not effectuate the policies of the Act.
Having found that by entering into and enforcing a union-security
arrangement, Duralite and Local 485 violated Section 8(a) (3) and
Section 8(b) (2), respectively, we shall order them to cease and desist
from such conduct. The Trial Examiner, relying on Brown-Olds,'
recommended that Duralite and Local 485 be ordered, jointly and
severally, to reimburse all Duralite employees for moneys which they
were required to pay to Local 485 under the union-security arrange-
ment. We do not adopt the Trial Examiner's recommendations as to
the reimbursement of dues remedy in view of N.L.R.B. v. Local 60,
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, et al.B There, the Supreme Court rejected the Brown-Olds
principle and refused to affirm a reimbursement order on the ground
that the record failed to indicate that the employees involved were in
fact coerced into joining the union or into paying membership dues.
There is no evidence in the record in the instant case that Duralite
employees were coerced into joining or paying dues to Local 485. Un-
like Member Leedom, we do not regard the situation here as tanta-
mount to that in Virginia Electric and Power Company v. N.L.B.B 9
While the Supreme Court, in Local 60, Carpenters, affirmed the Vir-
ginia Electric principle, it expressly pointed out that the union in-
volved in Virginia Electric was "a company union whose very
existence was unlawful," and that the "return of dues was one of the
means for disestablishing the union." Here, however, as the Board
does not find that Local 485 was a company-dominated union and
does not order its disestablishment, we believe that the Virginia Elec-
tric principle is inapplicable."
6 This disclaimer of interest was made by Local 222 after the close of the hearing in a
telegram addressed to Local 485. On September 29, 1960 , Local 485 advised the Board
of the receipt of this telegram. On April 4, 1961 , the Board issued a notice, served on
all the parties herein, directing them to show cause in writing , on or before April 14,
1961, why the aforesaid telegram should not be made part of the record . Local 222
having confirmed that it sent the aforesaid telegram and that the facts contained therein
were true and none of the other parties to this proceeding having objected, the Board,
on April 18 , 1961 , entered an order making the aforesaid telegram part of the record
J S Broian -E F. Olds Plumbing & Heating Corporation , 115 NLRB 594
8 365 U S 651.
e 319 U.S. 533.
18 Member Leedom would adopt the recommendation of the Trial Examiner for the re-
imbursement of dues remedy. He views the situation in this case as unlike that in
Brown- Olds . In the Brown-Olds type of situation , employees pay dues under an unlawful
union-security clause to a union which is concededly the lawful representative of a
majority of employees in the unit. Here, Local 485 was recognized by Duralite in viola-
tion of Section 8(a) (2) and , in implementation of this unlawful assistance, Duralite
and Local 485 made and enforced an unlawful arrangement requiring membership in
Local 485 as a condition of employment . As Duralite employees were thus coerced by
the union-security arrangement into supporting a union which was unlawfully imposed
upon them as their exclusive bargaining representative , Member Leedom regards the situa-
tion here as tantamount to that in Virginia Electric and, in adopting the Trial Examiner's
recommendation , he would rely on that decision . While it is true that, in Virginia Electric,
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent, Duralite Co., Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Recognizing or contracting with Local 485, International Union
of Electrical, Radio and Machine Workers, AFL-CIO, hereinafter
referred to as Local 485, or any successor thereto, as the representative
of any of its employees for the purpose of dealing with the said organi-
zation concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, unless and until
said labor organization shall have been certified by the Board as the
exclusive representative of such employees.
(b) Giving effect to, performing, or in any way enforcing its agree-
ments entered into beginning February 12, 1959, or any modifications,
extensions, supplements, or renewals thereof, or any other contract,
agreement, arrangement or understanding entered into with Local
485, or any successor, relating to grievances, labor disputes, wages;
rates of pay, hours of employment, or other conditions of employment,
unless and until said labor organization' shall have been certified by
the Board as the exclusive representative of the Company's employees.
(c) Assisting or contributing support to Local 485.
(d) Entering into, performing, maintaining, enforcing or seeking
to enforce any contract, agreement, arrangement, or understanding
requiring membership in Local 485 as a condition of employment,
except as authorized by Section 8(a) (3) of the Labor Management
Relations Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
(e) Encouraging membership in Local 485 or discouraging member-
ship in Metal, Plastics, Miscellaneous Sales, Novelty and Production
Workers Union Local 222, International Production and Sales Em-
ployees, hereinafter referred to as Local 222, by discharging any of its
employees or discriminating in any manner in regard to their hire or
tenure of employment, or terms or conditions of their employment.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist any labor organization, including Local 222, to
the union involved was company -dominated , and Local 485 is only company -assisted,
Member Leedom believes that the principle involved is equally applicable, since in both
situations , unlike the Brown-Olds type of situation , the status of the union to which the
employees were compelled to pay membership dues was achieved by means of the em-
ployer's unlawful assistance . ( See NLRB. v. Local 294, International Brotherhood of
Teamsters , etc (Grand Union Co .). 279 F. 2d 83, 87 (C.A. 2) ; N.L.R.B v. Cadillac Wire
Corp , 290 F. 2d 261 (CA 2).)
DURALITE CO., INC. 431
bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that this right may be affected by an
agreement conforming to the applicable provisions of Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Dolores Ramos immediate and full reinstatement and,
jointly and severally with Local 485, make him whole for any loss of
pay that he may have suffered by reason of the discrimination against
him in the manner set forth in the section of the Intermediate Report
entitled; "The Remedy."
(b) Withdraw and withhold all recognition from Local 485, or any
successor to said, organization, as the collective-bargaining representa-
tive of any of its employees unless and until such labor organization
shall have been certified by the Board as the exclusive representative
of such employees.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amounts due under the terms
of this Order.
(d) Post at its plant copies of the notice attached hereto marked
"Appendix A." 11 Copies of such notice, to be furnished by the Re-
gional Director for the Second Region, shall, after being duly signed
by an authorized representative of the Company, be posted immedi-
ately upon receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto marked "Appendix A" for posting
by Respondents Local 485 and Local 222 at their offices where notices
to members are customarily posted. Copies of said notice, to be fur-
nished by the Regional Director, shall, after being duly signed by
representatives of the Respondent Company, be forthwith returned
for such posting.
(f) Post at the same places and under the same conditions as set
forth in (e) immediately above, as soon as they are forwarded by the
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director, copies of Respondent Local 485's notice herein,
marked "Appendix B," and of Respondent Local 222's notice herein,
marked "Appendix C."
(g) Notify the said Regional Director in writing, within 10 days
from the date of this Decision and Order, what steps the Company
has taken to comply herewith.
B. The Respondent, Local 485, International Union of Electrical
Radio and Machine Workers, AFL-CIO, its officers, agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause the Company, its officers,
agents, successors, or assigns to discriminate against its employees by
entering into, maintaining, enforcing or seeking to enforce, its agree-
ments entered into beginning February 12, 1959, or any modification,
extension, supplement or renewal thereof, or any other contract,
agreement, arrangement or understanding requiring membership in
Local 485 as a condition of employment, except as authorized by Sec-
tion 8 (a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
(b) Causing or attempting to cause the Company, its officers,
agents, successors, or assigns, to discriminate against its employees
by any means, including discharge, in violation of Section 8(a) (3)
of the Act.
(c) In any other manner restraining or coercing employees of the
Company, its successors or assigns, in the exercise of the rights guar-
anteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized by Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with the Company make Dolores Ramos
whole for any loss of pay that he may have suffered by reason of the
discrimination against him in the manner set forth in the section in
the Intermediate Report entitled, "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents all records necessary to analyze the amounts due under the
terms of this Order.
(c) Notify Dolores Ramos and the Company that it has no objec-
tion to Ramos being employed by the Company.
(d) Post at its offices and meeting halls copies of the notice attached
hereto marked "Appendix B." 12 Copies of said notice, to be furnished
11 See footnote 11, supra.
DURALITE CO., INC. 433
by the Regional Director for the Second Region, shall, after being
duly signed -by an authorized representative of Local 485, be posted
by it immediately upon receipt thereof and maintained by it for 60
consecutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by it to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Mail to the Regional Director for the Second Region signed
copies of the notices attached hereto marked "Appendix B" for post-
ing by Respondent Company and by Local 222 as provided herein.
Copies of said notice, to be furnished by the Regional Director, shall,
after being duly signed by representatives of Local 485, be forthwith
returned for such posting.
(f) Post at the same places and under the same conditions as set
forth in (e) immediately above, as soon as they are forwarded by the
Regional Director, copies of the Respondent Company's notice herein
marked "Appendix A" and Local 222's notice herein marked "Appen-
dix C."
(g) Notify said Regional Director in writing, within 10 days from
the date of this Decision and Order, what steps Local 485 has taken
to comply herewith.
C. The Respondent, Local 222, Metal, Plastics, Miscellaneous Sales,
Novelty and Production Workers Union, International Production,
Service and Sales Employees, its officers, agents, successors and as-
signs, shall: '
1. Cease and desist from :
(a) Causing or attempting to cause the Company, its officers,
agents, successors, or assigns, to discriminate against its employees by
maintaining or enforcing or hereafter executing a contract limiting
welfare fund benefits to its members.
(b) Restraining or coercing the employees of the Company by
maintaining or enforcing or hereafter executing a contract limiting
welfare fund benefits to its members.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices and meeting halls copies of the notice attached
hereto marked "Appendix C." 11 Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being
signed by an authorized representative of Local 222, be posted by it
immediately upon the receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by it to insure that said notices are not altered, defaced,
or covered by any other material.
is See footnote 11, 8vpra.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto marked "Appendix,C" for post-
ing by Respondent Company and Local 485 as provided herein.
Copies of said notice, to be furnished by the Regional Director, shall,
after being duly signed by representatives of Local 222, be' forthwith '
returned for. such posting.
(c) Post at the same places and under the same conditions as set
forth in (a) immediately above, as soon as they are forwarded by the
Regional Director, copies of Respondent Company's notice herein
marked "Appendix A" and Local 485's notice herein marked "Ap-
pendix B."
(d) Notify said Regional Director in writing, within 10 days
from the date of this Decision and Order, what steps it has taken to
comply herewith.
MEMBERS RODGERS and BROWN took no part in the consideration of
the above Decision and Order.
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 Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT recognize or contract with Local 485,- Interna-
tional Union of Electrical, Radio and Machine Workers, AFL-
CIO, or any successor as the collective-bargaining representative
of any of our employees for the purpose of dealing with such
labor organization concerning grievances, labor disputes, wages,
rates of pay, hours of work, or other conditions of employment,
unless and until said labor organization shall have been certified
by the National Labor Relations Board as the exclusive repre-
sentative of said employees.
WE WILL NOT enter into, perform, maintain, enforce or seek
to enforce, any contract, agreement, arrangement or understand-
ing requiring membership in said Local 485 as a condition of
employment, except as authorized by Section 8(a) (3) of the
Labor Management Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL NOT give effect to, perform, or in any way enforce
our agreements, entered into beginning February 12, 1959, or
any modifications, extensions, supplements, or renewals thereof,
DURALITE CO., INC. 435
or any other contract, agreement, arrangement or understand-
ing entered into with said Local 485, or any successor, unless or
until that organization shall have been certified by the National
Labor Relations Board as the exclusive representative of said
employees.
WE WILL NOT assist or contribute support to said Local 485.
WE WILL NOT encourage membership in said Local 485, or dis-
courage membership in Local 222, Metal, Plastics, Miscellaneous
Sales, Novelty and Production Workers Union, International
Production, Service and Sales Employees, by discharging any
of our employees or discriminating in any other manner in re-
gard to their hire or tenure of employment or terms or conditions
of their employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to join or assist any labor organization including
said Local 222, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or refrain from any or all such activities.
WE WILL withdraw and withhold all recognition from said
Local 485, or any successor organization, as the collective-
bargaining representative of any of our employees unless and
until such labor organization shall have been certified by the
National Labor Relations Board as the exclusive representative
of such employees.
WE WILL offer Dolores Ramos immediate and full reinstate-
ment and jointly and severally with said Local 485, make him
whole for any loss of pay he may have suffered as a result of the
discrimination against him.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization, except
to the extent that this right may be affected by an 'agreement con-
forming to the applicable provisions of Section 8(a) (3) of the Labor
Management Relations Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959. °
DURALITE Co., 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.
614913-62-vol. 132-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 485, INTERNATIONAL UNION OF
ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify you that :
WE WILL NOT cause or attempt to cause Duralite Co., Inc., its
officers, agents, successors, or assigns to discriminate against its
employees by entering into, maintaining, enforcing, or seeking
to enforce its agreements entered into beginning February 12,
1959, or any modification, extension, supplement or renewal
thereof, or any other contract, agreement, arrangement, or under-
standing requiring membership in Local 485 as a condition of
employment.
WE WILL NOT cause or attempt to cause the above-named Com-
pany, its officers, agents, successors, or assigns , to discriminate
against its employees by any means, including discharge, in vio-
lation of Section 8 (a) (3) of the Act.
WE WILL NOT in any manner restrain or coerce employees of the
above-named Company, its successors or assigns, in the exercise
of the rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized by Section 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL jointly and severally with the above-named Company
make Dolores Ramos whole for any loss of pay he may have suf-
fered by reason of the discrimination against him.
WE HAVE no objection to Dolores Ramos being employed by the
above-named Company.
LOCAL 485, INTERNATIONAL UNION OF
ELECTRICAL, RADIO AND MACHINE
WORKERS, AFL-CIO,
Labor Organization.
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.
DURALITE CO., INC.-
APPENDIX C
437
NOTICE TO ALL MEMBERS OF LOCAL 222 , METAL, PLASTICS , MISCEL-
LANEOUS SALES, NOVELTY AND PRODUCTION WORKERS UNION, INTER-
NATIONAL PRODUCTION , SERVICE AND SALES EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the Labor
Management Relations Act, we hereby notify you that :
WE WILL NOT cause or attempt to cause Duralite Co., Inc., its•
officers, agents, successors , or assigns to discriminate against its
employees by maintaining or enforcing or hereafter executing
a contract limiting welfare fund benefits to our members.
WE WILL NOT restrain or ceorce the employees of the above-
named Company by maintaining or enforcing or hereafter exe-
cuting a contract limiting welfare fund benefits to our members.
LOCAL 222, METAL, PLASTICS, MISCEL-
LANEOUS SALES, NOVELTY AND PRODUC-
TION WORKERS UNION, INTERNATIONAL
PRODUCTION, SERVICE AND SALES EM-
PLOYEES.
Labor Organization.
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding involving Duralite Co., Inc ., herein called the Company; Local
485, International Union of Electrical, Radio and Machine Workers, AFL-CIO,
herein called Local 485; Local 222, Metal , Plastics, Miscellaneous Sales, Novelty and
Production Workers Union, International Production , Service and Sales Employees,
herein called Local 222 ; was initiated upon charges filed by Local 222, Dolores
Ramos, an individual , and Local 485 . The hearing was conducted on various days
between and including June 1, 1959 , and February 24, 1960, at New York City.
The General Counsel presented oral argument and the Company and Local 485
filed briefs.
Upon the entire record in the case , and his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company , a New York corporation , is engaged at New York City in the
manufacture , sale, and distribution of lawn furniture and related products . During
1958 , the Company manufactured , sold, and distributed products valued in excess
of $250 , 000, of which products valued in excess of $50 ,000 were shipped directly to
States of the United States other than the State of New York . It is found that the
Company is engaged in commerce within the meaning of the Act.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
Local 222 and Local 485 are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The issues presented by the pleadings are whether ( 1) the Company and Local
485 violated Section 8 (a)(1), (2), (3 ), and (5 ) and Section 8(b)(1) (A-) and (2),
respectively, by, among other things , ( a) on February 12, 1959 , entering into and
effectuating an agreement recognizing Local 485 , as a bargaining agent, undertaking
to discontinue certain provisions of its contract with and to discontinue certain priv-
ileges of Local 222 as bargaining agent of the Company's employees , reaching an
arrangement , understanding , or policy and since July 1 , 1959 , enforcing such arrange-
ment, requiring membership in Local 485 as a condition of employment , while Local
222 was and Local 485 was not the majority representative of the Company's em-
ployees and while there was a petition for certification of representatives pending
before the Board ; (b) refusing to bargain with Local 222; (c ) discharging Dolores
Ramos on March 23, 1959; and whether (2) Local 222 violated Section 8 (b) (1) (A)
and (2 ) by maintaining and enforcing since August 26, 1958 , a collective -bargaining
agreement with the Company which required the employees be members in good
standing in Local 222 in order to be eligible for benefits under a welfare plan to
which the Company is required to contribute.
B. The events
The Company and Local 222 began a contractual relationship in 1953 . It does not
appear that Local 222 was certified by the Board as the representatives of the em-
ployees involved . Thereafter successive contracts were executed by the Company
and Local 222 . The last contract shows that it was entered into on July 1, 1957, and
by its terms was to remain in effect until July 1 , 1959. The contract contains an
automatic annual renewal provision subject to certain notice . This contract which
applies to the production , maintenance , and shipping employees , provides that it
"shall be binding upon the parties thereto , their respective successors or assigns," and
recites that it was made by and between the Company and "Metal, Plastic , Miscel-
laneous Sales, Novelty and Production Workers, Local #222, I .J.W.U., affiliated with
the A .F.L.-C.I.O., or its successors ." Among the signatures for Local 222, appear-
ing on the contract is that of Hyman J . Powell , secretary-treasurer, International Jew-
elry Workers Union , AFL-CIO. The contract provides for a welfare fund to which
the Company is obligated to contribute but which limits benefits to members of Local
222. The contract also contains a union -security provision . The Company has wide
seasonal fluctuations in its operations , and it was the Company 's practice until Febru-
ary 1959 , to deduct dues from an employee 's pay and remit the amount to Local 222
in instances where the Company did not have express written checkoff authorizations
from the employees involved.
At a meeting held on September 22, 1958 , which was attended by a few of the
Company 's employees , Local 222 disaffiliated from the I.J.W.U ., AFL-CIO. Prior
to this meeting Armando Avila , business representative of Local 222 , gave Dolores
Ramos, a shop steward at the Company , a notice relating to that meeting . There-
after by letter dated September 28, Local 222 , by mail notified all the employers,
including the Company, with whom it had contracts , that that organization would
thereafter be known as "Local #222-Metal , Plastics , Miscellaneous Sales, Novelty
and Production Workers." i There was no change in the officers of Local 222 or its
membership . Local 222 continued to service its contracts with employers including
the Company . Shortly after the disaffiliation , Dan DeSilva , plant manager who rep-
resented the Company in the grievance procedure with Local 222, in conversations
with Avila and Frank Tortorici, a business representative of Local 222 who serviced
the contract with the Company , acknowledged that he was aware of the disaffiliation.
On or about February 13, when Tortorici appeared at the plant , DeSilva informed
Tortorici that he was to be excluded from the plant as the Company was then recog-
nizing Local 485 as the representative of its employees . Tortorici insisted that Local
222's contract did not expire until July of that year . From September 1958 until
February 1959 , Local 222 enforced its contract with the Company , its representa-
i At a meeting on or about February 25, 1959 , Local 222 voted to affiliate with the
International Production , Service and Sales Employees.
DURALITE CO., INC. 439
tives visited the plant, processed grievances, and there was no change in the relation-
ship of the parties?
In the meanwhile about February 6, 1959, Local 485 filed a petition in Case No.
2-RC-9775, asserting that a question concerning representation existed involving the
production, maintenance, and shipping employees then covered by the contract with
Local 222. On or about February 9, the Company was notified of the filing of this
petition. At about the time of this notification to the Company, Wallace Eisenberg,
director of organization for Local 485, who was in charge of the campaign to
organize the Company's employees, appeared at the plant and called upon Bert
Lesser, president of the Company. On this occasion and in the presence of a number
of employees Eisenberg claimed that he represented the Companys' employees, de-
manded recognition of Local 485 and declared that he did not want men like Ramos
at the plant any longer. Eisenberg also demanded that the Company cease recogniz-
ing Local 222, cease checking off dues and also deny access to the plant to that
organization. Lesser questioned Eisenberg's claim of majority and pointed out that
the Company was under contract with Local 222. Eisenberg declared that he did not
care about the contract and that he could prove a majority through cards or a strike
and Lesser had until a certain date to decide which type of proof he wanted. Eisen-
berg admitted in his testimony that he had threatened Lesser with a strike to begin
on that named date. For about a week prior to this meeting, Local 485 had conducted
slowdowns in various departments of the plant.
On February 12, counsel for Local 485 and Milton Leder, comptroller of the Com-
pany, according to Leder's testimony, compared the signatures appearing on Local
485 membership cards with endorsements appearing on canceled payroll checks of
the current week. At that time, further according to Leder, the Company had in its
employ between 375 and 400 people and the signatures of close to 300 employees or
about 75 percent were found to correspond. The documents, the canceled payroll
checks, and the membership cards, used in the comparisons and which formed the
basis of Leder's conclusions that about 75 percent of the signatures corresponded were
not adduced at the hearing?
Later that day, February 12, about 50 or so employees, representatives of Local
485 and representatives of the Company, appeared at the offices of Theodore W.
Kheel, an arbitrator, who conducted a spotcheck of the designation cards and the
next day issued a document entitled, "Award" in which he recited that he compared
in excess of 50 designations of 296 designation cards and payroll checks and concluded
that the majority of employees of the Company had signed Local 485 designation
cards. It does not appear that Local 222 was notified of pendency of this event .4
The 50 or so employees and the representatives that evening, February 12, there-
after went to the offices of counsel for Local 485, where the Company and Local
485 executed instruments, among other things, providing as follows: (1) recogni-
tion of Local 485 in the unit set forth in the contract between the Company and
Local 222; (2) an undertaking by the Company and Local 485 to negotiate a
collective-bargaining agreement to become effective July 1, 1959; (3) discontinu-
ance of the checkoff of dues for the benefit of Local 222; (4) discontinuance of
welfare fund payments by the Company under its contract with Local 222; (5) ex-
clusion of Local 222 representatives from the plant; (6) grant to Local 485 repre-
sentatives of access to the plant and the exclusive right to process grievances; and
(7) retention of seniority safeguards and all other conditions of employment in
effect at that time. Lesser admitted that these undertakings were made and en-
forced, in part, because of Local 485s strike threat.
2 Canceled checks representing the remittances for checked off dues issued by the Com-
pany payable to "Industrial Production Workers-Local 222," dated in August and Sep-
tember 1958, show the endorsement, "Local #222-I J.W.1J., American Federation of
Labor," and canceled checks made to the same payee and issued for the same purpose
dated October, November, and December 1958, shows the endorsement, "Local #222
Metal, Plastics, Miscellaneous Sales, Novelty and Production Workers "
3 Local 485 contends that because the Company threatened to discharge employees who
responded to its subpenas, it was prevented from establishing through the individual em-
ployees that it represented a majority of the employees at the time of the recognition.
( The Company 's conduct in this respect is the subject of another proceeding , Case No.
2-CA-6927, 128 NLRB 648.) Local 485, elected not to seek enforcement of subpenas as
to the employees and also elected not to require Leder , whom it had called as a witness,
to produce documents showing the signatures referred to above in the text.
This award was confirmed and a judgment was entered in New York County on
September 16, 1959. It does not appear that Local 222 was notified of this proceeding.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- On the occasion of the execution of the above-described instruments at Local
485's counsel's office, some or all of the 50 or so employees present signed a docu-
ment entitled, "Petition" demanding that Local 485 be granted recognition, that no
further dues of Local 222 be deducted from wages and that the employees be re-
funded dues previously improperly deducted from wages and paid over to Local
222. Some employees also thereafter signed this document at the plant. The
checkoff authorization forms for the benefit of Local 222 provided for revocation
by another means and during another specified period of time.
The instruments described above as having been executed by the Company and
Local 485 on February 12, were thereafter posted on the Company's bulletin board
by Local 485. Between shortly after February 12 and until about June there also
appeared on the Company's bulletin board an announcement which Local 485
caused to be posted stating in substance, when viewed with the above-described in-
struments which were also displayed nearby, that membership in good standing in
Local 485 was a condition of employment and that new employees were to pay their
initiation fees upon the completion of their trial period.
The Company and Local 485 thereafter executed a collective-bargaining agree-
ment for a 3-year term effective July 1, 1959. It does not appear that this agree-
ment contains a provision expressly requiring membership in Local 485 as a condi-
tion of employment or a provision arranging for the checkoff of union dues. Be-
ginning in July all the Company's employees covered by the contract began paying
dues to Local 485. Local 485 collects its dues in the following manner: Once a
month on certain paydays on company time and property the employees form a
line to receive their pay in cash as it is dispersed by an armored car service and
the employees then form a line nearby where representatives of Local 485 collect
dues from each of the employees.
C. The conclusions
During an unexpired term the Company abrogated its contract with Local 222 in
derogation of its duties under Section 8(d), admittedly in part because of Local
485's threatened strike. On February 12 the Company recognized and bargained
with Local 485 as the representative of the employees and thereby engaged in the
"self-help of judicial intervention" 5 prohibited under the Midwest Piping doctrine.6
The Company having under pressure of a strike threat by Local 485 engaged in
this self-help and, in a manner favorable to their views, the Company and Local 485
having resolved the conflicting claims and judicial issues as to which labor organ-
ization, if any, may represent the employees-a prerogative which was not theirs-
the Company and/or Local 485 now seek approval of this conduct by advancing
the following propositions in their defense: (1) after the disaffiliation meeting of
September 22, 1958, Local 222 as a contracting party ceased to exist and hence no
conflicting claims as to representation arose when Local 485 filed its representation
petition about February 6, 1959, and made its demand for recognition upon the
Company about February 9; (2) in the event that it is concluded that after the
disaffiliation meeting a valid successorship did arise, Local 222's contract interest
should not be given consideration in view of the assistance given Local 222 by the
Company namely, (a) the Company accorded recognition to Local 222 in 1953,
without proof of majority, (b) dues were checked off from the pay of employees
for the benefit of Local 222 as late as February 1959, absent express written
authorizations, (c) a provision in the contract between Local 222 and the Company
obligates the Company to contribute to a welfare fund which limits benefits to
members of Local 222-the only matter which is the subject of the instant com-
plaint in Case No. 2-CB-2597 and which is based upon a charge filed by Local
485 after its recognition by the Company; (3) the ability of Local 485 to "control"
5 As the Supreme Court stated in Ray Brooks v. N.L R.B., 348 U.S 96, 103:
If an employer has doubts about his duty to continue bargaining, it is his re-
sponsibility to petition the Board for relief, while continuing to bargain in good
faith at least until the Board has given some indication that his claim has merit.
[Citations omitted.] Although the Board may, if the facts warrant, revoke a cer-
tification or agree not to pursue a charge of unfair labor practice, these are matters
for the Board ; they do not justify employer self-help or judicial intervention. The
underlying purpose of this statute is industrial peace. . . . Congress has devised a
formal mode for selection and rejection of bargaining agents and has fixed the
spacing of elections, with a view of furthering industrial stability and with due
regard to administrative prudence.
e 63 NLRB 1060.
DURALITE CO., INC. 441
the plant by conducting slowdowns, the spot cardcheck, a designation card majority
and the execution of the petition by no more than about 50 or so out of 375 or 400
employees on February 12, established the majority status of Local 485 on February
12; and (4) Local 222 is a socially undesirable organization as shown by, among
other things, a staff report by the Committee on Ethical Practices, AFL-CIO.
All that requires determination at this time is whether there was a real question
concerning representation on February 12, when the Company recognized and con-
tracted with Local 485. In the latter part of September 1958, Local 222 disaffili-
ated from its then international without change of officers or loss of membership.
Thereafter and until early February 1959, when Local 222's representatives were
excluded from the plant by the Company pursuant to its contract with Local 485,
Local 222 continued to service and enforce its contract with the Company. It is
found that Local 222 had merely undergone a change of name and a disaffiliation,
that Local 222 did not lose its identity as an entity and that it continued as a party
to the contract as a successor for the unexpired term?
Concerning the assistance defense, as the same criteria are applied in Midwest
Piping situations to determine the existence of a question concerning representa-
tion as are uniformly applied in representation proceedings under Section 9(a) and
as an effective challenge to the status of Local 222 as the bona fide representative
of the majority of the employees through procedures established under the Act
was not made prior to recognition, this defense appears to be of no consequence
at this time.8 The other matters urged as defenses are either immaterial or beyond
the power of the Board.9
It appears that in relation to the expiration date of Local 222's contract with the
Company on July 1, 1959, Local 485's representation petition of about February 6
and its demand upon the Company for recognition about February 9, 1959, were
timely and gave rise to a real question concerning representation. 10
Shortly after recognition on February 12, 1959, despite Local 485's disqualifi-
cation under Section 8(a)(3) as Local 485 had been the beneficiary of support in
violation of Section 8(a)(1) and (2) under the Midwest Piping rule, Local 485
posted a notice and as this notice remained posted for several months it is inferred
that it continued to be posted with the Company's assent, announcing that member-
ship in Local 485 was a condition of employment. Beginning in July 1959, on
company time and property and in an organized fashion and here it is also inferred
that this occurred with the Company's assent, Local 485 collected dues from all the
employees. It is accordingly concluded that Local 485 and the Company had an
arrangement which was enforced beginning July 1959, under which membership in
Local 485 was a condition of employment.
It is accordingly found that (a) the Company violated Section 8(a)(1), (2), (3),
and (5) by (1) abrogating its contract and refusing to bargain with Local 222, (2)
recognizing and contracting with Local 485 while there was a question concerning
representation, and (3) entering into and enforcing an arrangement with Local 485
making membership in Local 485 a condition of employment; (b) Local 485 vio-
lated Section 8(b)(1)(A) and (2) by entering into and thereafter enforcing an
arrangement with the Company making membership in Local 485 a condition of
employment; and (c) Local 222 violated Section 8(b)(1)(A) and (2) by having
maintained and enforced a welfare-fund provision in its contract with the Company
which limits benefits to members of Local 222.
D. Dolores Ramos
The General Counsel alleges that Ramos who had been employed by the Com-
pany and who had been shop steward for Local 222, was discriminatorily discharged
on March 23, 1959, by the Company in violation of Section 8(a)(1) and (3) and
that the discharge was caused by Local 485 in violation of Section 8(b)(1) (A) and
8('b)(2).
As already found, when Eisenberg, director of organization for Local 485, ap-
peared at the plant and demanded recognition of Lesser, the Company's president,
7 See, Barris-Woodson Company, Inc, 179 F 2d 720, 723 (C.A. 4) ; and Carpinteria
Lemon Association, et al, 240 F. 2d 554, 557 (C A 9).
8 See, B. M. Reeves Company, Inc., 128 NLRB 320, and Nathan Warren & Sons, Inc,
119 NLRB 292. See, for example, Lundy Manufacturing Corporation, 125 NLRB 1188,
particularly the findings relating to footnote 28
0 See, Novak Logging Company, 119 NLRB 1573, 1574; and Nassau and Suffolk Con-
tractors' Association, Inc, and its members, 118 NLRB 174, 175
10 See, Delume Metal Furniture Company, 121 NLRB 995.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eisenberg declared that he did not want men like Ramos at the plant any longer.
About a week later while Ramos, in the presence of Tortorici, business representa-
tive of Local 222, was outside the plant during a rest period urging fellow em-
ployees to maintain their loyalty to Local 222, Eisenberg grabbed Ramos by the
collar and asked whether he wanted to start something. Tortonci interceded on
Ramos' behalf and the incident came to an end. A few days later, February 18,
Ramos obtained approval from DeSilva, plant manager, for a leave of absence until
March 25.
In about the middle of March, Ramos returned to the plant office concerning an
income-tax matter. On this occasion Eisenberg in the presence of Luis Santiago,
shop chairman for Local 485, and a group of employees told Maximino Gomez,
assistant manager, that he, Eisenberg, did not want Ramos there and to throw him
out.
On March 20, Ramos appeared at the plant and arranged with DeSilva to return
to work the following Monday, March 23. On this occasion DeSilva advised Ramos
to see Santiago before he started working as Santiago was the one who ran things
for Local 458. When Ramos reported for work on March 23, he did not first see
Santiago. Later that morning Santiago came to Ramos and reported that he had
just had a meeting with the men, that they wanted Santiago to call Local 485 and
inform that organization that Ramos was back at work and that if Ramos was at
work the next day they were planning a strike. At the end of the day, De-Silva, after
first threatening to suspend Ramos for his absence, told Ramos to forget about the
suspension and report for work the next morning. The following day, March 24,
when Ramos reported for work DeSilva told Ramos that Ramos had to leave the
plant as Local 485 did not want him there. Ramos left the plant and returned
the next day, March 25, when DeSilva instructed Ramos to come to the plant every
day, punch his timecard and then go home.
At about this time when Ramos had reported for work after the leave of absence,
Gomez received a telephone call from Eisenberg inquiring whether Ramos was
working at the plant. Gomez reported that Ramos was at the plant working and
Eisenberg asked Gomez if Gomez did not know that Ramos was not supposed to
work at the plant again.
Around the end of March DeSilva reported to Lesser that the feeling of the men
was running high against Ramos, that Ramos was not coming along with a majority
of the men, that to permit Ramos at the plant would probably produce violence
and a walkout and that there would be no work performed at the plant. Lesser,
who had concluded that as the men would not permit Ramos to come to the plant
that Ramos favored Local 222, instructed DeSilva to refuse to allow Ramos in the
plant.
With some exceptions from about March 25 until May 20, Ramos came to the
plant, punched his timecard, performed no work, and was paid by the Company.
On May 20 when Ramos appeared at the plant to punch his timecard DeSilva in-
formed Ramos that Ramos had to be removed from the payroll. DeSilva explained
to Ramos that Ramos was in danger of violence and that Local 485 was offering
Ramos employment elsewhere and that Local 485 had informed DeSilva that they
were going to call a strike if Ramos was continued on the payroll. DeSilva sug-
gested that Ramos accept the other employment that he had been offered by Local
485 and that he be "a good boy." Ramos was told to look for another job and
was given a week's pay.
In view of the foregoing it is found that on March 24, when Plant Manager
DeSilva informed Ramos that Ramos had to leave the plant as Local 485 did not
want him there and Ramos' employment relation was first adversely affected, the
Company and Local 485 violated Section 8(a)(1) and (3) and 8(b)(1)(A) and
8 (b) (2) of the Act, respectively.I"
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Local 485 and Local 222 set forth in section III, above, occur-
ring in connection with the operations of the Company set forth in section 1, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
I' D. W Newton, d/b/a Newton Brothers Lumber Company, 103 NLRB 564, 567;
Chief Freight Lines Company, 111 NLRB 22, 24; Montauk Iron & Steel Corp, 127 NLRB
993; and Eureka Vacuum Cleaner Company, 69 NLRB 878, 879
DURALITE CO., INC.
V. THE REMEDY
443
Having found that the Company, Local 485, and Local 222 have violated the Act,
the Trial Examiner shall recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that the Company violated Section 8(a)(1) and (3) and Local 485
violated Section 8(b)(1)(A) and (2) with respect to Dolores Ramos, it will be
recommended that Local 485 notify the Company and Ramos in writing that Local
485 has no objection to his employment by the Company and that the Company
offer Ramos immediate and full reinstatement to his former or substantially equiv-
alent position without prejudice to his seniority or other rights and privileges and
that the Company and Local 485 jointly and severally make Ramos whole for any
loss of pay he may have suffered by reason of the discrimination against him, said
loss of pay to be computed on a quarterly basis in accordance with the formula
adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. Local 485
shall not be liable for any backpay which may accrue for the period beginning S
days after it notifies the Company and Ramos as aforesaid.
Having found that the Company violated Section 8 (a) (1) , (2) , and (3) by recog-
nizing and contracting with Local 485 while there was a question concerning repre-
sentation and by entering into and enforcing an arrangement with Local 485 making
membership in Local 485 a condition of employment and having found that Local
485 violated Section 8(b) (1) (A) and (2) by entering into and enforcing an ar-
rangement with the Company making membership in Local 485 a condition of
employment, it will be recommended that the Company and Local 485 cease and
desist from this conduct. It will be also recommended that the Company withdraw
and withhold all recognition from Local 485 or any successor as the collective-
bargaining representative of its employees unless and until such labor organization
shall have been certified by the Board as the exclusive representative of such em-
ployees. Nothing in this recommendation shall be construed to require the Com-
pany to vary wage, hour, seniority, or other substantive features of the relationship
between the Company and its employees which may have been established in
accordance with its contract with Local 485. As the recognition and the union-
security arrangement with Local 485 is illegal and as the employees were unlaw-
fully coerced by the notices into becoming members of and making payments to
Local 485 as a condition of employment, it will be recommended that the Company
and Local 485 jointly and severally refund to employees all moneys they were
illegally required to pay as a price for their employment.12
Having found that Local 222 violated Section 8(b)(1)(A) and (2) of the Act
by having maintained and enforced a welfare fund provision in its contract with the
Company which limits benefits to its members, it will be recommended that it cease
and desist from this conduct.
As Local 222 was the beneficiary of the discriminatory welfare provision described
above and union dues were checked off by the Company without an express authori-
zation by the employees therefor, it will be recommended, although the Company
refused to bargain with Local 222 in violation of Section 8(a)(5), that the Board
refrain from granting Local 222 the usual bargaining order.
As the unfair labor practices committed by the Company and Local 485 are of
a character striking at the root of employee rights safeguarded by the Act, it will be
recommended that they cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
As many of the employees involved speak Spanish only, it is intended that the
notices hereinafter recommended to be posted be presented in both English and
Spanish and that the Regional Director provide the notices in Spanish properly
translated.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 222 and Local 485 are labor organizations within the meaning of the Act.
2. Local 222 has engaged in and is engaging in unfair labor practices in violation
of Section 8(b) (1) (A) and (2) of the Act.
3. Local 485 has engaged in and is engaging in violations of Section 8(b)(1)(A)
and (2) of the Act.
12 See, J S. Brown-E F Olds Plumbing & Seating Corporation , 115 NLRB 594; and
Len8craft Optical Corporation and Rayex Corporation , 128 NLRB 836.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Company has engaged in and is engaging in unfair labor practices in
violation of Section 8(a)(1), (2 ), ( 3), and ( 5) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Dittler Bros.,'-Inc., Ruralist Press, Inc., Foote & Davies, Inc.,
and Frank Carter and Julia Akins, Partners , d/b/a Superior
Printing Company 1 and Truck Drivers and Helpers Local
Union No. 728, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Petitioner. Case No. 10-RC-4736. July 25, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Donald D. Greer, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed?
Upon the entire record, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organizations named below claim to represent certain
employees of the Employers.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employers, within Section 9(c) (1)
and Section 2 (6) and (7) of the Act.'
4. The Petitioner seeks a multiemployer unit comprised of the em-
ployees of the above-named Employers. Employer Foote & Davies,
Inc., hereafter called Foote & Davies, and the Intervenor are the only
parties objecting to the unit sought. Both urge the exclusion of
Foote & Davies from the requested multiemployer unit. Foote &
Davies argues that it has never participated in "true" multiemployer
i The names of the Employers appear as corrected at the hearing.
z We find no merit in the contention of the Intervenor, Atlanta Printing Specialties and
Paper Products Union , Local 527 , Subordinate to International Printing Pressmen and
Assistants' Union of North America, AFL-CIO, that the Regional Office (Tenth Region)
gave improper assistance to the Petitioner prior to the filing of the instant multiemployer
petition . For the Regional Director ' s staff was merely carrying out its duties when, in
connection with having Petitioner withdraw single-employer petitions , it told Petitioner
of the existence of the multiemployer bargaining history involving the above-named
Employers . See Statement of Procedure of the National Labor Relations Board, Section
101.18. Accordingly , we deny Intervenor 's motion to dismiss based on such grounds.
Intervenor 's further contention that the form of the petition was not in conformity with
Section 102 . 60 of the Board ' s Rules and Regulations is without merit.
3Intervenor attacks Petitioner ' s showing of interest . The sufficiency of a Petitioner's
showing of interest is an administrative matter not subject to litigation 0 D. Jennings
& Company, 68 NLRB 516 . We are administratively satisfied that the Petitioner 's show-
ing of interest is adequate to support the instant multiemployer petition.
132 NLRB No. 29.