Falcon Tank Corp.

National Labor Relations Board - Board Decisions

Nov 24, 1971

194 N.L.R.B. 333 (N.L.R.B. 1971)

FALCON TANK CORP. 333
Falcon Tank Corp. and Shopmen's Local Union No.
455, International Association of Bridge , Structural
and Ornamental Iron Workers of America,
AFL-CIO
Shopmen's Local Union No. 455, International Associ-
ation of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO and Falcon Tank Corp. Cases
29-CA-1973, 29-CA-2022, 29-CA-2163, and
29-CB-771-1
November 24, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On June 21, 1971, Trial Examiner Thomas S.
Wilson issued the attached Decision in this proceed-
ing. Thereafter, the Respondent Union and General
Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions2 as modified
herein.
We agree with the Trial Examiner that on or about
January 23, 1970,3 the Respondent Company violated
Section 8(a)(1) of the Act by advising that enforce-
ment of company policy as to tardiness and work
breaks would be changed in the event the employees
voted for the Union.4 We also agree that the
Respondent Company violated Section 8(a)(1) by
individually calling employees into the company
office and then asking each employee whether he had
signed a union car45 and whether he knew who had
brought the cards in to be signed.6 Unlike the Trial
Examiner we do not find such violations to be mere
technical violations based on isolated or ' ambiguous
incidents. Nor do we agree with the Trial Examiner's
statement to the effect that the Union's election
1 We disavow the Trial Examiner 's general comments concerning
procedural matters and his irrelevant, gratuitous opinion of New York
labor lawyers.
2 The Trial Examiner inadvertently erred in finding that on June 7,
1970, Epstein answered a letter for the Company pertaining to the Union's
request for financial information . The record mdicates that the correct date
of the letter was June 11, 1970, and we hereby make this correction
3 All dates hereinafter refer to 1970.
4 Cf. Martin Electronics, Inc., 183 NLRB No.4; The Dalf Corp., d/b/a
Hoffman Bros, 188 NLRB No. 57.
5 Struksnes Construction Co., 165 NLRB 1062.
6 N LR B v. Syracuse Color Press, Inc., 209 F.2d 596 (CA. 2, 1954),
cert. denied 347 U S. 966.
7 The Board has broad power to determine the necessary scope of its
victory absolved the Respondent from its intent to
violate the Act. Accordingly, we are of the opinion
that an order and remedy are necessary to dissipate
the continuing effects of the Company's unlawful
interrogation, polling, and threats concerning changes
in the enforcement of its work rules.?
Following certification of the Union on March 5
and during negotiations,8 the Company offered a 5-
cent-per-hour wage increase. This was subsequently
raised to 8 cents per hour conditioned upon the
Company being relieved of the expenses of uniforms.
Because of the employees' dissatisfaction with the
Company's negotiating position, a strike began on
April 3. The strike lasted 3-4 weeks.
On June 1 the Union requested that an auditor be
allowed to examine the Company's books to deter-
mine whether the Company was financially able to
make a further offer. While this request was pending,
the Respondent Company granted five of its employ-
ees increases which ranged from 10 to 50 cents per
hour.9
Under the aforementioned circumstances and even
assuming, arguendo, that an impasse existed on April
3 and, further, that the Union's June 1 request did not
break the impasse, the Company, nevertheless,
violated the Act in granting the June 7 increases since
the increases exceeded those offered by the Company
to the Union at the bargaining table.10 Accordingly,
unlike the Trial Examiner, we find that the Respon-
dent Company's granting of wage increases is in
violation of Section 8(a)(1) and (5) of the Act and that
a bargaining order is required.11
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Falcon Tank Corp., Brooklyn, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Warning its employees, because of their union
activities, not to engage in conduct previously
approved or condoned.
orders and it is authorized to restrain other violations , the danger of whose
commission in the future is to be anticipated from conduct in the past
N.L.R B v. Express Publishing Company, 312 U.S. 426; May Department
Stores d/b/a Famous-Barr Company v. N.LR B, 326 U.S. 376.
8 Bargaining sessions were held on March 11, 18, or 20, 24, 30 and April
2.
9 The increases were granted June 7 and effective for the payroll period
ending June 5
10 N.LR.B. v. Crompton-Highland Mills, Inc., 337 U.S 217, rehearing
denied 337 U.S. 950. We further note that the unilateral increases were
granted only 3 months after the Union had been certified See Ray Brooks
v. N.L R B., 348 U.S. 96.
11 See our decision in C & G Electric, Inc., 180 NLRB No. 52.
194 NLRB No. 50
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Coercively interrogating or polling its employees
concerning union membership or activities.
(c) Granting wage increases to its employees in
order to induce them not to support Shopmen's Local
Union No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers of America,
AFL-CIO, or any other union, as their bargaining
representative.
(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the said
Shopmen's Local No. 455 as the exclusive representa-
tive of its employees in the appropriate unit found
herein with respect to rates of pay, wages, hours, and
all other terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its plant in Brooklyn, New York, copies
of the attached notice marked "Appendix" 12 Copies
of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by
Respondent Company's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent Company has taken to
comply herewith.
employed by us at our Brooklyn, New York,
plant; exclusive of office-clerical employees,
watchmen, guards and all supervisors as
defined in Section 2(11) of the Act.
WE WILL bargain, upon request, with the above-
named Union as the exclusive representative of all
employees in the unit described above with respect
to wages, hours, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
WE WILL NOT grant our employees wage
increases in order to induce them not to support
the above-named Union as their bargaining
representative.
WE WILL NOT warn our employees not to engage
in conduct previously approved of or condoned,
because of their union activities.
WE WILL NOT interfere with, restrain, or coerce
our employees by illegally interrogating or polling
them about union membership or activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of any of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
All of our employees are free to become, remain, or
refrain from becoming or remaining members of the
above-named or any other labor organization.
Dated By
12 In the event that this Order i's enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Shopmen's Local Union No. 455, International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, as the exclusive repre-
sentative of our employees in the appropriate unit.
The appropriate unit is:
All production and maintenance employees
FALCON TANK CORP.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Fourth Floor, 16 Court Street, Brooklyn, New
York 11201, Telephone 212-596-3535.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon charges duly
filed on April 7, June 3, and October 23, 1970, by the
Respondent Union and upon a charge filed on May 6, 1970,
by Respondent Company, the General Counsel of the
FALCON TANK CORP.
National Labor Relations Board, herein referred to as the
General Counsel' and the Board, respectively, by the
Regional Director for Region 29 (Brooklyn, New York),
issued its second amended consolidated complaint dated
January 13, 1971, against Shopmen's Local Union No. 455,
International Association of Bridge, Structural and Orna-
mental Iron 'Workers, AFL-CIO, herein called Respon-
dent Union or Union, and against Falcon Tank Corp.,
hereinafter referred to as Respondent Company or
Company.
The second amended consolidated complaint (complaint)
alleged that Respondent Company had engaged in and was
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5), and that
Respondent Union had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of
the Labor Management Relations Act, 1947, as amended,
herein referred to as the Act.
Each Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice, a hearing hereon was held before me
in Brooklyn, New York, from March 15 to March 19, 1971,
inclusive. All parties appeared at the hearing, were
represented by counsel, and were afforded full opportunity
to be heard, to produce and cross-examine witnesses, and to
introduce evidence material and pertinent to the issues.2 At
the conclusion of the hearing Respondent Company argued
the case orally. Respondent Union waived oral argument.
A brief was received from General Counsel on April 26,
1971.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT COMPANY
The complaint alleged, the answers admitted, and I
therefore find:
Falcon Tank Corp. is, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of New York. At all times
material herein, the Company has maintained its principal
office and place of business at 8 Lexington Avenue, in the
Borough of Brooklyn, city and State of New York, herein
called the plant, where it is, and has been at all times
material herein, engaged in the manufacture, sale, and
distribution of sanitary tanks and related products. During
the past year, which period is representative of its annual
operations generally, the Company in the course and
conduct of its business operations manufactured, sold, and
distributed at its plant products valued in excess of $50,000,
of which products valued in excess of $50,000 were shipped
from said plant in interstate commerce directly to the States
of the United States other than the State in which it is
located.
This term specifically includes the attorney appearing for the General
Counsel at the hearing
2 General Counsel's unopposed "Motion to Correct the Record" dated
May 3, 1970, is hereby granted
335
Accordingly, I find that Respondent is now, and has been
at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE UNION INVOLVED
Shopmen's Local Union No. 455, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO , is a labor organization admitting to member-
ship employees of the Company.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. A Few Procedural Problems
In oral argument on the merits of the case Respondent
Company counsel referred to the instant matter as a
"perversion of justice." A more appropriate word probably
would have been "travesty." This would be applicable not
only to the merits but also to some procedural matters.
Item 1. Prior to hearing the Regional Office consolidated
for the purposes of hearing the complaints in Cases
29-CA-1973, 2022, and 2163 with that in Case
29-CB-771-1. The only palpable excuse for this consolida-
tion was that the CA cases ended with the strike of April 3,
1970, while the CB case began with that same event. The
result of this action was to create procedural problems
during the hearing due, in large measure, to the fact that
Respondent Company attorney and Respondent Union
attorney were unavailable at various times during the 5-day
hearing. This in turn required the Trial Examiner to order
General Counsel to proceed with his presentation of
evidence in accordance with which Respondent counsel
would hopefully be available on the day in question. In fact
this procedural problem became so acute on one occasion
that the Trial Examiner even, by request, asked certain
specified questions for and on behalf of Respondent
Company counsel. Necessarily the Trial Examiner's order
in this regard completely disrupted the normal and natural
presentation of testimony and, no doubt, handicapped
General Counsel in the presentation of his case.
It is a well-known historical phenomenon that New York
labor lawyers are, or consider themselves to be, a breed
apart so far as their availability for Board hearings is
concerned. This reluctance to appear seems to stem from
more remunerative employment elsewhere or perhaps, in
some cases, from bad advice previously given to the client.3
However, it would seem that a little more care in setting
hearing dates so that attorneys can, and will, be available
throughout would eliminate many of the difficulties such as
occurred in the instant matter.
Item 2. Strangely enough as this 5-day hearing wound up
General Counsel moved to hold the hearing open so that
he, whose Regional Office had set the case for hearing,
could present a witness , apparently theretofore unavailable
for undisclosed reasons, at some unspecified date so that
this witness could testify to matters alleged in the complaint
3 This opinion is a generalized one formed from many years of past
experience in hearing labor cases in New York and is not applicable to the
attorneys appearing here.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and thus be a part of General Counsel's casein-chief. This
seems to be a strange method of trying a case.
Item 3. The strike of April 3, 1970, which played a part in
both the CA and the CB aspects of this matter was all but 1
year old when this hearing was held. The cause for this
delay was not explained at the hearing. However, it does
create the impression that a dead horse was being whipped.
Item 4. Paragraphs 8 and 9 of the complaint allege that
"on or about November 25, 1969," Respondent Company
made certain promises of benefit and threats of reprisal "to
induce [the employees] to refrain from becoming or
remaining members of any labor organization, and to
refrain from giving any assistance or support to any labor
organization, and to induce them to abandon their
membership in and activity on behalf of any labor
organization." These promises and threats would constitute
well recognized unfair labor practices except for the fact
that the testimony adduced here proves, beyond a
peradventure of a doubt, that there was neither union nor
concerted activity among Respondent's employees until
January 1970. The pleading thus appears to be, at best, a
non sequitur.
B. The Case Against the Company
1. The facts
About July 1969 First Machinery Company, a previous
customer of Ace Stainless Tank Co., purchased the assets of
Ace Tank under the Bulk Sales Law. First Machinery then
created a corporation known as Falcon Tank Corp.,
Respondent Company here, to operate these purchased
assets in the same business as Ace had previously
conducted and under the general managership of Lloyd
Dawe, formerly the owner of Ace, and the foremanship of
Angelo Ortiz, formerly the foreman for Ace.
From August 22, 1969, to January 16, 1970, Respondent
Company increased the wages of its 10 employees by 15 to
50 cents per hour even though Respondent Company
claimed, without challenge, that it lost some $20,000 in its
first 6 months of operation.4
At some indefinite date in January, "about 3-4 weeks"
before January 22, 1970, employees Alfredo Ortiz5 and
Ramond Valois, during a lunch period in the plant with the
other eight employees of Respondent Company, suggested
to the employees that they join a union. The employees
seemed agreeable. So some 3 weeks thereafter Alfredo and
Valois visited the union hall where they saw Business Agent
William Colavito who explained to them the benefits the
employees could expect from union membership,` such as a
raise in wages, a welfare plan, insurance, etc. At this time
Colavito gave them cards to be signed by those employees
desiring a union. At lunchtime on January 22, Ramon and
Alfredo passed out these union membership cards after
4 The allegation of paragraphs S and 9 in the complaint is in effect that
.on or about November 25, 1964," Respondent Company's officials
"offered and promised to its employees wage increases ... to induce them
to refrain from becoming or remaining members of any labor organization
and to induce them to abandon their membership in and activities on
behalf of any labor organization." As there is no oral testimony to this
effect in this record and there is undemed testimony that the employees
engaged in no union or concerted activities known to or suspected by the
Company until January 22, 1970, any finding in accord with the above
explaining to the employees the union benefits. Every
employee signed.
These executed cards were then delivered to Colavito,
who on January 23 6 wired Respondent Company as
follows:
SHOPMEN'S LOCAL UNION NO. 455 HAS
BEEN' DESIGNATED BY A MAJORITY OF YOUR
SERVICE AND MAINTENANCE EMPLOYEES AS
THEIR COLLECTIVE BARGAINING REPRE-
SENTATIVE. AND ACCORDINGLY REQUESTS A
MEETING FOR THE PURPOSE OF DISCUSSING
TERMS AND CONDITIONS OF EMPLOYMENT.
IF YOU HAVE ANY QUESTION AS TO ITS
MAJORITY STATUS, LOCAL 455 IS WILLING TO
DEMONSTRATE THE SAME TO YOU AND/OR
ANY IMPARTIAL PERSON AGREED TO BY THE
PARTIES WITHIN THE NEXT 24 HOURS. AT
ANY REASONABLE PLACE AND HOUR SE-
LECTED BY YOU.
PLEASE CALL THE UNDERSIGNED AT
GR-5-2226 AND ADVISE OF YOUR POSITION.
Probably on January 23, the same day as the above
telegram was received by the Company, Angelo Ortiz
joined the employees on the company balcony during the
lunch break. With all the employees present Angelo
mentioned the receipt of the above telegram, said he
thought the employees had made a mistake in joining the
union and inquired as to why the men wanted a union
because the Company was giving such good benefits to its
employees. Angelo stated on this and possibly other
occasions,7 that Respondent Company bosses intended, if
the Union got in, to see to it that the employees returned
from their morning and afternoon breaks on time and not
to allow them to drift back at their leisure from such breaks
as they had been doing in the past. He added that if the men
did not report for work on time in the event the Union got
in, such employees would be fired and that lateness in
reporting for work would not be condoned as it had been in
the past. In short, Angelo insisted that the lax ways of the
past, about which he had criticized the employees aver a
long period of time, would be stopped in the ever the
employees voted for the Union. These statements constitut-
ed threats and interference, restraint, and coercion in
violation of Section 8(a)(1) of the Act. After Angelo had
made his statements, Alfredo asked the employees if they
still wanted the Union. In Angelo's presence each employee
answered "Yes" to the question.
After the receipt of the above telegram, company officials
called an employee, if not all the employees except Alfredo,
one by one, into the company office where the employee
was asked if he had signed a union card and who had
brought the cards in to be signed. Under proper safeguards
an employer faced with a request to bargain is entitled to
allegations of the complaint would necessarily have to be based upon pure
speculation . Accordingly, these paragraphs of the complaint will have to be
dismissed , which I hereby do.
5 Alfredo is the brother of Foreman Angelo Ortiz. First names will
therefore be used
6 All dates herein are in the year 1970 unless otherwise specified.
7 It is difficult, if not impossible , to tell from the testimony of the
witnesses whether there was one or more similar meetings on the balcony
during the lunch period.
FALCON TANK CORP. 337
investigate the truth or falsity of the respondent's claim of
majority representation. The proper safeguards were not
present here. The inquiry as to who was responsible for
bringing the union cards into the plant is obviously
interference, restraint, and coercion in clear violation of
Section 8(a)(1) of the Act.
Thereafter the parties agreed to a consent election in a
production and maintenance unit. The election was held on
February 13 and was won by the Union by an Sato 1 vote.
On March 5 the Union was certified as the exclusive
bargaining agent for the employees in the production and
maintenance unit.
Following the certification the Company and the Union
negotiated on March 11, 18, 24, and 30 and April 2 in
sessions which lasted from 9:15 a.m. to 1 p.m., according to
the Union, or several hours later, according to the
Company.
The negotiations began on March 11 when Business
Agent Colavito, representing the Union, presented Attor-
ney Epstein, representing the Company, with a proposed
collective-bargaining agreement consisting of 29 sections
encompassing some 58 pages of typewritten material which
purported to cover the wages, hours, and working
conditions of Respondent's 10 employees. It was suggested
that the parties go over the proposal section by section and
page by page. This the parties started to do.
The trouble began on the first two lines of page 1 of
section 1 which read, "This agreement shall be applicable to
all production and maintenance employees including plant
clerical employees. .... The Company had no "plant
clerical employees" among its 10 employees and had no
plans to have any such. Epstein said that under these
conditions he could not understand why plant clerical
employees were included. Undaunted, Colavito answered
that if and when the Company had any plant clericals, the
Union wanted them and, besides, such plant clericals were
included in all of the 200 contracts that Local 455 had in the
industry and so they would be in this contract. The debate
on this question waxed so hot and heavy, as well as so
inconclusively, that it was decided to leave that section and
discuss section 2.
Section 2 provided that the International Union "is not a
party to the contract" but before the contract or
amendments thereto could "become binding and effective,"
the International had to approve the contract and the
amendments. Epstein objected that the contract was to be
between Local 455 and the Company and that the
International had no part therein, especially as the
International had not been on the consent-election ballot.
Undaunted, again Colavito answered that this was the way
it was in all of the 200 contracts the Local had and that was
the way it was to be in this contract. Again the debate
waxed hot, heavy, and inconclusive so that it was again
decided to pass on to section 3 on "union recognition."
Section 3 provided that the Company was recognizing the
Union as the exclusive representative of the Company's
"production, maintenance and plant clerical employees as
defined in section 1" of the proposal. The long argument
over section 3 was, of course, a mere reiteration of that over
section 1 and with the identical result, so that the parties
decided to pass on to section 4.
Section 4 of the proposal, labeled "union security," is a
four-page provision of six (A-F) parts providing, among
other things, that all employees should be or become
members of the Union within 31 days and be discharged if
within 3 days after notice of delinquency from the Union
the employee did not furnish the Company with documen-
tary proof of compliance and providing for the establish-
ment and financing of a nondiscriminatory hiring hall from
which the Company would obtain all its employees. In the
past the Company had hired Spanish-speaking employees
off the street and so Epstein could see no advantage to the
Company to having to hire through a hiring hall and said
so. Again section 4 was in all of Local 455's 200 contracts
and would be in this one, according to Colavito. At some
point during these negotiations Epstein asked to see the 200
contracts of Local 455. The request was refused-at least
until the Company signed the agreement. The discussion of
section 4 consumed the remaining time of the negotiations
that day, whatever time they may have recessed, so that
little, if any, agreement had been reached except that the
parties agreed to meet again on March 18.
In order not to unduly extend this report by a discussion
of each and every one of the 29 sections, it need only be
said that the same practice, the same arguments, and the
same results followed in the succeeding sessions with a few
notable exceptions. For instance the Company agreed to
the checkoff proposal although the dues in that proposal
had been raised from $6 to $8 per month since the time that
the proposal had been mimeographed.
At the session of March 18 the parties finally reached
section 6 "hours of work" and section 7 "overtime pay";
i.e., money matters . With money matters at issue , Epstein
began to argue about the fact that his "tiny, tiny" company
had already lost $20,000 and could not afford to pay any
further wage increases after those increases granted during
the fall and winter of 1969 without being forced into
bankruptcy. From this point on, while money matters were
at issue, this argument about Epstein's "tiny, tiny"
company was repeated with the same frequency as that
regarding the 200 contracts of Local 455 had been
previously.
It must be noted here, however, that the union wage and
overtime proposals as well as the Union's proposals for a
"welfare fund," a "pension fund," and a "sick leave fund"
could hardly be classified as moderate. Overtime was either
double or triple time according to a complicated formula.
The wage proposal provided for a $1-per-hour across-the-
board increase as of February 13, 1970, and a further
increase of "not less than" 25 cents per hour across-the-
board on July 1, 1970. Further, the proposal provided that
the second and third shifts would work 7 hours for 8 hours'
pay, thereby providing a shift differential of approximately
50 cents per hour per man. Of course, the Company had
never had a second or third shift and had no plans for any
but, like everything else in this highly legalistic, complicated
union proposal, Local 455 had it in 200 contracts and it
would have it in this one regardless of the fact that the
Company had no such shifts and planned none. So Epstein
reiterated time and again that his "tiny, tiny" company
could not afford any of such monetary increases. Epstein
did however offer a 5-cent-per-hour increase which he
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subsequently increased to 8 cents per hour conditioned
upon the fact that the Company would be relieved of the
expense of uniforms for its employees.
At one session Epstein for the Company brought in an
11-page counterproposal covering among other things a
complicated "management rights" clause with others
covering "plant visitation," "call-in pay and report-in pay,"
"no strike-no lockout," "holidays," "vacations," "leaves of
absence," and "miscellaneous." This turned the tables and_
now it was Colavito objecting and agreeing to nothing but
saying that he would "look them over" or "consider them."
Colavito never got around to announcing the results of his
"consideration."
This in short constituted the negotiations here. There was
agreement on the checkoff and on the use of the bulletin
boards. There was agreement on little else. Everything else
was left in limbo.
The April 2 negotiation session ended before the parties
had even gotten to a consideration of the last section of the
proposal, section 29 of the Union's proposal labeled
"termination." The parties did make an appointment to
continue these negotiations on April 7 when section 29
would be considered for the first time.
On the evening of April 2 Colavito met with the company
employees and informed them that the Company had not
signed the union contract and, therefore, the employees
would have to go on strike. The employees began picketing
the company plant on April 3. One rather nonenthusiastic
union employee purportedly joined the picket line because
he was told by Alfredo Ortiz, an enthusiastic union
supporter, that, in effect, "this union does not fool, it breaks
the leg."
It is noteworthy in this regard that the Union supplied
Art Shaffer, whom Colavito had requested to take care of
the picket line at the company plant, on or before April 1
and, therefore, prior to the negotiation session of April 2,
with picket signs for use at the company premises. It was
these signs the employees used when the picket line was set
up on April 3.
The meeting scheduled for April 7 was, in fact, held at the
request of a Federal mediator in the mediation services
offices. The parties were segregated into separate rooms. A
few minutes thereafter the mediator reported to the
Company that the Union was "standing firm" on its offer.
That report ended the meeting. No further meetings have
ever been called.
Picketing at the plant lasted for 3 or 4 weeks. Within a
few days of the establishment of the picket line some of the
employees began drifting back to work for the Company.
Some of the employees took jobs with other companies.
During the final 2 weeks of picketing Art Shaffer was the
sole picket on the line.
While the picket line was in existence, the Company
employed a man with a covered carryall truck to pick up
the employees then working for the Company, deliver them
into the plant, and return them home after work. During
this same period of time the Company paid the employees
working at the rate of time-and-one-half their regular
wages. After the picketing ended, the wages of the
employees returned to the regular time rate. As of June 5
Respondent Company increased the wages of five employ-
ees from 10 to 50 cents per hour.
Ramon Valois, with Alfredo the leader of the organiza-
tional effort, also returned to work and was subsequently
discharged. The complaint contains no allegation that this
discharge was in violation of the Act.
Alfredo Ortiz never sought to return to work with the
Company.
2. Conclusions
In the above statement of facts I have already indicated
that Respondent Company committed at least two
violations of the Act prior to the holding of the consent
election. Although, no doubt, the Company intended
thereby to interfere with, restrain, and-coerce its employees
into abandoning their organizational effort and thus these
acts are technically violations of the Act, it is quite obvious
from the 8 to 1 vote for the Union in the consent election
that the Company's intent was not realized.
During an economic or unfair labor practice strike, the
employer enjoys the right to continue operating his business
if he can even though he may have to pay higher wages to
those employees working than he had previously paid. By
the time of the June 7 wage increases, negotiations with the
Union had long since ended. An employer is not required
to freeze his wage rates forever merely because there had
been wage negotiations in progress some months in the
past. Life must go on. Hence I see no unfair labor practices
in the wage increases granted or paid by Respondent
Company.
Nor can I see any refusal to bargain in the instant matter
by Respondent Company. At the time of the strike on April
3 the parties to the negotiations had not even completed
their original, preliminary survey of the Union's long and
technical proposals. In fact the parties had not even
considered the question of the duration of the contract, i.e.,
section 29 "termination." That was to have been considered
at the next meeting on April 7. Following that considera-
tion the parties would then have gotten to the nitty gritty of
"give and take" bargaining. Of course Respondent
Company had voiced innumerable objections to all but two
of the Union's proposals and had otherwise agreed to none,
not even the recognition clause. But even there Respondent
Company had the right to object to the Union's attempt to
expand the appropriate unit by the inclusion of "plant
clericals" therein. It is also true that this objection may well
have been more theoretical than real because the Company
employed none such and had no immediate intention of
hiring any. But, on the other hand, the Union had no
legitimate right to insist upon expanding the unit beyond
that in which the consent election had been held, to wit, the
production and maintenance employees. If the Company
chose to agree to this unilateral expansion of the unit that
would be one thing but it also had the right not to agree to
such expansion. Throughout Epstein was voicing legitimate
objections to a document which was almost worthy of a
General Motors negotiation.
Likewise it must be noted that at the time of the strike
Colavito had under "consideration" some 11 pages of
company proposals to which he had made objection but
had given no final answer to or attempted to reconcile with
FALCON TANK CORP. 339
his objections. His own called strike of April 3 canceled any
further talk or bargaining regarding the company
proposals-as well as those made by the Union. The Union
made no attempt to continue negotiations during the strike
or thereafter.
Even if we assume that Company Attorney Epstein
intended ultimately to prevent an agreement from being
arrived at, which might well be the fact, Colavito's
impatience, exemplified by the commencement of the strike
on April 3 and the failure to continue negotiations
thereafter, effectively prevented any and all proof of any
such intent on Epstein's part. There is more to collective
bargaining than putting a contract proposal before an
employer and saying, "sign here," which appears to have
been Colavito's theory of collective bargaining. The Board
and the courts universally hold that bargaining collectively
is a give-and-take proposition between the union and the
employer. The parties here had almost reached the give-
and-take portion of these negotiations when Colavito's
impatience ended the negotiations. If perchance Epstein's
mind was "hermetically sealed" against arriving at any
agreement, the cessation of negotiations by the strike
prevented Epstein from showing it.
On June 1, Union Attorney Belle Harper requested the
right to have an auditor examine the Company's books "to
determine whether in fact the Company is financially able
to make a further offer." On June 7, Epstein answered that
the Company "is prepared to permit the examination of its
general ledger, which will reflect its financial condition."
When the Company had made its 5-cent-per-hour, or its
conditional 8-cent-per-hour, wage offer to Colavito during
the negotiations, Colavito had made no similar request to
see the Company's books. Although Epstein failed to return
one or two telephone calls from Harper, he finally did
inform Harper that the General Counsel was then
examining the company books and that, if there were more
that the Union wanted after that examination, he would be
glad to discuss the matter. That ended this exchange which
had all the appearance of a belated attempt to shore up a
weak or nonexistent case.
So, as there is in this record no proof that Respondent
Company was not bargaining in good faith with the Union
while the Union wanted to bargain, I must, and hereby do,
dismiss the complaint as it pertains to the alleged refusal to
bargain by the Company.
Despite the findings above made, I am also going to
dismiss the Section 8(a)(1) allegations against the Company
here on the ground that at the worst they were isolated, and
perhaps even ambiguous, incidents and that it would not,
under the circumstances existing here, effectuate the
policies of the Act to provide a remedy therefor.
C. The Case Against the Union
The Facts and Conclusions
The case against the Union consists of evidence (1) that
during the strike a number of padlocks on the plant doors
had been jammed with wood or welding wire so that they
had to be replaced six or seven times, and (2) of two
8 With picket Shaffer admittedly standing within a few feet, either
statement appears factually incorrect.
incidents where pickets used harsh words or threatened
men driving cars or trucks into the plant.
In a case where the picketing continued for 3 or 4 weeks
as this one is said to have, the above recitation indicated
that these three incidents were, at least, isolated events.
However, during this period of the strike there is evidence
that six or seven padlocks used by the plant were jammed
with wood or bailing wire and were thus made unusable.
Presumptively from the number of jammed locks during the
strike period one would assume that probably the Union or
the strikers had something to do with the jamming. The
closest any testimony came to proving that the Union was
responsible for this jamming was the testimony of one
employee who, on one occasion, saw a group of employees,
including one union agent, Matienzo, looking at a jammed
padlock. As a witness Matienzo recalled the incident but
denied having had anything to do with the jamming of the
lock and, indeed, testified that he told the group looking on
that this was "kid stuff" and would do no good. However,
there being no evidence showing union responsibility for
this-or any other jammed lock, I must , and hereby do,
dismiss this allegation of the complaint.
As for the driving incidents, there is testimony by
company officials that on one occasion when the company
driver was delivering the employees into a plant one
morning during the strike, Union Agent Matienzo threat-
ened the driver as he drove his carryall out of the plant after
delivering the employees for work by yelling at him, "We
know where you live. We'll get you." The other company
official testified that Matienzo shouted at the driver, "We'll
fix you up. We'll wait for you in Jersey."
Matienzo also recalled the incident and admitted that he
probably called the driver "a scab" or words to that effect.
Technically that is a threat and, therefore, a violation of
Section 8(b)(1)(A).
Unfortunately conduct and verbage on a picket line is not
that which one would expect at a pink tea. Tempers will rise
on a picket line and things will be said that should not be
said. It is unfortunate but it is also life.
The final incident here is another case of making a
molehill into a mountain. A truck made a delivery into the
plant. As the truck pulled out of the plant, Shaffer, who was
on picket duty as usual , yelled at the driver asking if he had
made a delivery to the plant and that he should not have
done so because they were on strike. Thereupon either
Dawe or Angelo Ortiz or both (depending upon which
version of the company testimony one chooses to believe)
remarked to the driver that either "you don't have to worry
about getting deliveries here because as far as I am
concerned, there is no strike in here because I don't see any
picket lines in here" or "where are the pickets if were on
strike." Then, according to company witnesses , Shaffer
yelled at the driver, "You make any more deliveries here
we'll fix you up" or "You, if you ever come here again that
will be the last thing you ever do." In his version Shaffer
denied making the threat and merely remarked to the driver
that he, Shaffer, "would appreciate" it if the driver did not
make any more deliveries.9 Thereupon all the witnesses are
in agreement that the three individuals involved began
9 This pink tea phraseology seems slightly unrealistic under the
circumstances.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choosing each other "for size," as one witness aptly phrased
it. However, happily, before any selection was made, cooler
heads prevailed and all returned to their respective duties.
Assuming, without deciding, that the threat was made, it
would have constituted an unfair labor practice but, like the
other matters here, still remained an isolated event in a long
strike.
Because of the isolated and picayunish nature of these
events, like those found against the Company, I feel that the
policies of the Act will not be effectuated by providing a
remedy here and wasting more time over that. Too much
time has been wasted on this case already. I therefore
dismiss the allegations against the Respondent Union.
CONCLUSIONS OF LAW
1. Falcon Tank Corp. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Shopmen's Local Union No. 455 , International
Association of Bridge , Structural and Ornamental Iron
Workers of America , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Neither of the Respondents here have engaged in any
of the unfair labor practices alleged in the complaint.
RECOMMENDED ORDER
Accordingly, I hereby order this case dismissed in toto.