Gallaro Bros.

National Labor Relations Board - Board Decisions

Jul 10, 1968

172 N.L.R.B. 1149 (N.L.R.B. 1968)

GALLARO BROS . AND G & G FOODS CO. 1149
Frank Gallaro and Joseph Gallaro , d/b/a Gallaro
Bros., and G & G Foods Co . and Retail Food
Clerks Union , Local 1500 , Retail Clerks Interna-
tional Association, AFL-CIO. Case 29-CA-884
July 10, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 23, 1968, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
proceeding finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
they cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondents
and the General Counsel filed exceptions to the
Trial Examiner's Decision, and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion, the exceptions and briefs, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-'
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondents
Frank Gallaro and Joseph Gallaro, d/b/a Gallaro
Bros ., and G & G Foods Co., Brooklyn, New York,
their agents, successors, and assigns , shall take the
action set forth in the Trial Examiner's Recom-
mended Order, as so modified:
Substitute the attached notice for the Trial Ex-
aminer 's recommended notice.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT fail or refuse to bargain, in
good faith, with Retail Food Clerks Union,
Local 1500, Retail Clerks International As-
sociation , AFL-CIO, as the representative of
our employees in the unit described below,
with respect to rates of pay, wages, hours of
employment, and, if an agreement is reached,
embody such understanding in a signed agree-
ment . The bargaining unit is:
All sales clerks, stock clerks, delivery
clerks, and cashiers , employed by us in
our store, exclusive of butchers, meat
wrappers, office clerical employees, part-
time employees working less than 20
hours a week, watchmen and guards, and
all supervisors as defined in Section 2(1 1)
of the Act.
WE WILL NOT bargain directly and in-
dividually with employees concerning rates of
pay, wages, hours of employment, and other
terms and conditions of employment, or offer,
promise, or grant employees wage increases,
vacations, holidays, medical and hospitaliza-
tion insurance, and other benefits and im-
provements in their working conditions and
terms of employment, to induce them to
refrain from becoming or remaining members
of the Union, or to induce them to abandon
their membership in and activity on its behalf.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization , to form labor organizations, to join
or assist Retail Food Clerks Union, Local
1500, Retail Clerks International Association,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in concerted
activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to
refrain from any and all such activities, except
to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL, upon request, bargain collectively,
in good faith, with the Union, as the exclusive
representative of the employees in the above-
described appropriate unit , with respect to
rates of pay, wages, hours of employment, and
.other terms and conditions of employment,
172 NLRB No. 107
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, if an agreement is reached, embody such
an understanding in a signed agreement.
WE WILL pay into the Retail Food Clerks
Welfare Fund such sums as would have been
paid into the plan, under the provisions of arti-
cle IV, paragraph 15, of the collective- bargain-
ing agreement, covering insurance and the
dental plan, in order that our employees will
have the benefits of which they were im-
properly deprived commencing January 30,
1967.
FRANK GALLARO AND
JOSEPH GALLARO, D/B/A
GALLARO BROS., AND
G & G FOODS Co.
(Employer)
business under the trade name and style of Gallaro
Bros ., and G & G Foods Co. Respondents maintain
their principal office and place of business in the
Borough of Brooklyn , city and State of New York,
where they are engaged in the operation of a retail
grocery store . During the year preceding the is-
suance of the complaint , a representative period,
Respondents derived , from their operations, gross
revenues in excess of $500,000 and, in the same
period , purchased and caused to be transported in
interstate commerce , canned goods , meats,
beverages , and other goods and materials valued in
excess of $50,000, directly from states of the
United States other than the State of New York.
The complaint alleges , the answer admits, and I
find that the Respondents are an employer engaged
in commerce within the meaning of Section 2(2),
( 6), and (7) of the Act.
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office, Fourth Floor , 16 Court Street , Brooklyn,
New York 11201 , Telephone 596-3535.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceed-
ing was heard before me in Brooklyn, New York,
on December 11, 1967, on a complaint of the
General Counsel and the answer, as amended, of
Frank Gallaro and Joseph Gallaro, d/b/a Gallaro
Bros., and G & G Foods Co., herein called the
Respondents .' The complaint alleges violations of
Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Labor Management Relations Act, 1947, as
amended, 61 Stat. 136, herein called the Act. The
parties waived oral argument and briefs filed by the
General Counsel, Respondents, and Charging Party
,have been carefully considered.
Upon the entire record, and from my observation
of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
Respondents are a copartnership, with Prank
Gallaro and Joseph Gallaro as copartners, doing
II. THE LABOR ORGANIZATION INVOLVED
Retail Foods Clerks Union, Local 1500, Retail
Clerks International Association , AFL-CIO, herein
called the Union , is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues raised by the pleadings and
litigated at the hearing are whether the Respon-
dents, as more fully set forth in the complaint, en-
gaged in activity in contravention of the provi-
sions of Section 8(a)(5) and (1) of the Act, by: (1),
on or about January 24, 1967, and thereafter, fail-
ing and refusing to recognize and bargain with the
Union, as the exclusive collective-bargaining
representative of Respondents' employees; or (2),
on or about February 1, 1967, and thereafter, bar-
gaining directly and individually with employees, in
an appropriate unit, concerning rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment; or (3), on or about February
1, February 20, and February 25, 1967, and on
other dates unknown, offering, promising, and
granting employees wage increases, vacations,
holidays, medical and hospitalization insurance,
and other benefits and improvements in their work-
ing conditions and terms of employment, to induce
them to refrain from becoming or remaining mem-
bers of the Union, or to induce them to abandon
their membership in and activity on its behalf.
Respondents, by way of answer, deny the com-
mission of any unfair labor practice. Affirmatively,
Respondents deny, at the time or times in question,
the Union was the representative of a majority of
the employees in the appropriate bargaining unit.
' The charge was filed on February 7, 1967 The complaint was issued on
July 6, 1967
GALLARO BROS . AND G & G FOODS CO. 1151
Respondents further assert that they were willing to
recognize and bargain with the Union , if it was the
majority representative , and that they , on February
3, 1967, filed an RM petition for the purpose of
having the question determined . Respondents
further assert that discussions with employees con-
cerning rates of pay, wages , hours of employment,
and other terms and conditions of employment
were initiated by the employees , and that the sub-
sequent granting of concessions was not for the
purpose of inducing the employees to abandon
their membership in or activity on behalf of the
Union.
B. Background
The Appropriate Unit-Previous Board
Certification-Collective-Bargaining Agreement
It is undisputed that, pursuant to an election held
on October 25, 1965, the Union was certified as the
exclusive collective-bargaining representative, on
November 29, 1965,2 in Case 29-RC-335, in an ap-
propriate unit , within the meaning of Section 9(b),
described as follows:
All sales clerks, stock clerks, delivery clerks
and cashiers, employed by Respondent at its
store, exclusive of butchers, meat wrappers, of-
fice clerical employees, part-time employees
working less than 20 hours a week, watchmen
and guards, and all supervisors as defined in
Section 2(1 1) of the Act.
It is undisputed that as a result of negotiations,
conducted on behalf of Respondents by Carmine
Gallaro3 and Eli H. Mellan, attorney, a collective-
bargaining agreement was entered into, effective
February 1, 1966, which by its terms terminated on
January 31, 1967, and did not contain a reopening
or automatic renewal clause . The agreement did
contain a lawful union-security clause, requiring
membership on the 31st day following the com-
mencement of employment, or the execution date
of the agreement, whichever was later. The agree-
ment also provided for the deduction of monthly
dues and initiation fees, upon appropriate
authorization.
The principal events herein, I find, occurred on
the dates commencing Tuesday, January 24, and
ending on Tuesday, January 31, 1967, with subsidi-
ary events on Friday, February 3, and on Saturday,
February 25, 1967.
C. The Refusal To Bargain-The Meeting and
Bargaining With Employees on January 30, 1967-
The Granting of Wage Increases and Fringe Benefits
I find it appropriate, at the outset, to note that
the feigned inability of Respondents' witnesses to
recall the dates of the principal events herein was
unimpressive, and, in my view, constituted a stud-
ied and calculated effort to obscure rather than
recite accurately the sequence of events herein.
For simplicity in identification, the three prin-
cipal Gallaro brothers are hereafter identified by
their first names : Joseph, Frank, and Carmine.
1. Union requests for bargaining-Respondents'
responses
Arthur Wolfson is first vice president of the
Union, and has been for 3 years. Wolfson, who con-
ducted the initial negotiations with Respondents, on
behalf of the Union, credibly related four telephone
conversations he had with Carmine on the dates in-
dicated. On January 24,4 Wolfson advised Carmine
the contract was expiring and inquired as to when
he would like to sit down to negotiate a renewal.
When Wolfson called attention to the fact that the
contract expired, by its terms, on January 3 1, Car-
mine responded that he thought it did not expire
until the end of February, and advised Wolfson that
he would discuss it with Joseph and Frank and call
back. When Carmine did not call back, on
Thursday or Friday, January 26 or 27, Wolfson
again called and inquired if Carmine was ready to
set a date to sit down and negotiate. Carmine ad-
vised that he had not discussed it with his brothers
and would call back on Monday, January 30. Not
having heard from Carmine, Wolfson again called
on the morning of Monday, January 30. Carmine
asserted that he still had to talk to his brothers.
Wolfson advised him that time was running out.
Carmine then advised Wolfson that Carmine would
definitely call him on Tuesday, "because he wasn't
sure whether we still represented the people, that
the people that wanted the Union originally are
out." Wolfson explained the word "out" meant that
they were no longer employed, also they were not
identified by Carmine. Wolfson again called Car-
mine, on Tuesday, January 31, and at that time
Carmine advised him "that the employees and the
officers of the Company had a meeting the previous
night and at which time they had decided to go
along without the Union." Carmine advised Wolf-
son this was the Respondents' position. Wolfson
responded if Respondents did not want to sit down
and negotiate that the Union would take whatever
legal steps were necessary.' It is undisputed that
there were no further conversations between the
Union and Respondents. Wolfson denied that Car-
mine , in the last conversation, made any reference
r While Respondents assert , in their brief, that the election tally in-
dicated eight votes for the Union and seven against , I find it unnecessary to
take official notice of the tally Respondents ' further assertion that two of
the employees , who were the initiators of the idea that the employees be
represented by this Union, terminated their employment shortly after the,
certification , is a factual statement without support in the record
' Also identified in the record and known as Carmelo , a brother of the
owners, Joseph and Frank Gallaro, and admittedly excluded from the unit
as part of management
4 All dates herein , unless otherwise specified, are 1967
s I do not credit the assertion of Carmine that Wolfson threatened a
picket line, or threatened to contact the Butchers Union Both of these as-
sertions were denied by Wolfson, whom I credit
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to an employee petition , the details of which are set
forth infra.
Carmine, whose recitation I find not credible, on
the basis of demeanor , as well as numerous state-
ments which were both self-contradictory and in
conflict with statements of other of Respondents'
witnesses , asserted there were only two telephone
calls from Wolfson . Carmine placed the time of the
first telephone conversation with Wolfson as
between January 20 and January 30, asserting, "I
wish I could tell you the exact date ." He then as-
serted that the second telephone call was approxi-
mately 3 days after the first telephone call, while he
later asserted it was between 7 and 10 days
between the first and second telephone calls. He
then placed the time of the second telephone call as
Saturday , January 28 , prior to his receipt , from Fer-
rara, of an employee petition.'
Carmine's recitation of the second telephone
conversation with Wolfson is transparently false,
and, in details , self-contradictory . Carmine asserted
that he knew about an employee petition for dis-
continuance of union representation , set forth infra,
2 or 3 days prior to the second telephone call. He
also described the time that he first saw this peti-
tion as being "towards the end of the last week-of
January ," which would be January 28 , at which
time he just "glanced " at the paper , did not count
the names or see who signed it. Carmine then
testified variously that there were two signatures on
the paper and also that there were four , either
would be less than a majority of the 10 in the unit.
Carmine asserted the petition had not been
delivered to him at the time of the second
telephone call, and also asserted , " I could have got-
ten the paper a day or two afterwards ." Carmine
was patently self-contradictory in asserting that he
advised Wolfson , in the second telephone conversa-
tion , that some of the employees did not want to be
represented by the Union . Having his memory
refreshed , by his pretrial statement of March 1, he
acknowledged that the affidavit contained the state-
ment that he did not so advise Wolfson . Carmine
had previously asserted that he had told Wolfson
that Respondents had become aware that some of
the employees were not entirely satisfied with the
Union , and that they were circulating a petition,
that they did not want the Union to represent them
any longer.?
2. The composition of the unit on January 31-
union -security clause in collective -bargaining
agreement
It is undisputed that the following named em-
ployees comprised the appropriate unit as it existed
on January 3 1: Crissali , De Stefano , Incorvia, Fer-
rara, Difiore , Buononato , Portelli , John Gallaro, Al-
len, and Crobet ,8 a total of 10 employees . It is un-
disputed that John Gallaro , a brother of Frank,
Joseph , and Carmine , became a member of the
Union on January 16 , and Allen , a part-time em-
ployee , became a member of the Union on the
same date . It is undisputed that Carmine, as a
representative of management , was excluded from
the unit , as was Mary Gallaro , wife of Joseph, the
latter by reason of the provisions of Section 2(3) of
the Act.
It is undisputed that the contract contained a
valid union-security provision , and that , pursuant to
proper authorizations , dues were deducted and
transmitted to the Union , for the period ending
January 3 1 . Wolfson credibly related that no em-
ployee filed a request for withdrawal from member-
ship, prior to January 31 , or, inferentially,
thereafter.
3. The employee antiunion petition
It appears that a petition was circulated by Fer-
rara , a member of the unit , in the store and el-
sewhere , which ostensibly contains the signatures of
eight employees . However , only five signatures of
unit employees are verified in this record.'
The petition is written on what may be described
as advertisement stationery , or note paper, of
ALPO pet food , distributed by Allen Products
Company, Incorporated . It is reasonable to infer
that this note paper , or stationery , was obtained
from Respondents ' stock.
The legend on the petition reads:
We the undersign [ sic] of G. G. Foods of 490
Henry St Brooklyn do not want to be represent
' 1 find of no consequence the recitation of Carmine that his father was in
the hospital , having suffered a heart attack , on an unspecified date, at the
time of the first telephone call, and that for this reason he could not ask
Joseph and Frank if they were ready to negotiate a contract Carmine was
uncertain if he related his father 's illness to Wolfson , and asserted "I don't
think that would have been a just cause for postponing ( bargaining] -
Being shown his pretrial affidavit , to refresh his memory, Carmine
acknowledged that he did not give Wolfson a reason, in the first telephone
conversation , for not being ready to negotiate
' I find incredible and implausible Carmine's assertions relative to
whether he discussed renegotiating with the Union with his brothers Joseph
and Frank Carmine asserted "The discussion came up that because of the
wishes of the employees that they did not want to be represented by the
Union , we felt that it would be best if we followed whatever the employees
wanted If they did not want the Union, we would go and let you take care
of it, you know , make you aware of the facts and seek your advise" the
"you" referred to is the Respondent 's attorney
Asked if he indicated this to Wolfson , Carmine asserted , "Absolutely, I
told him if the employees wanted to deal with the Union, its perfectly all
right with us We have nothing against the Union We have had a very good
relationship with them And as far as we are concerned , we will do what-
ever the employees want -
" While the parties stipulated that Legari was in the unit, I find the con-
trary Legan asserted she is part-time and works 19 hours a week She is
thus excluded from the certified unit
' The petition contains the purported signatures of Buononato , Legari,
Ferrara, John Gallaro , Crissali , Portelli , Incorvia, and De Stefano
Buononato, John Gallaro, and Incorvia did not appear as witnesses, and
there is no verification of the signatures of the latter two De Stefano, Cris-
sah, and Portelli , each appeared as witnesses and identified their respective
signatures Ferrara asserted that he circulated the petition and obtained the
signature of Buononato , during working time
GALLARO BROS . AND G & G FOODS CO. 1153
[sic] by Loc. Retail Food Clerks Union any
more.
The document bears the date of 1-30-67. This date
is further discussed infra.
I consider next the inconsistent and incredible
explanation of Ferrara as to his reason for circulat-
ing the petition, and Respondents' knowledge of its
circulation both prior to and on January 30.
Ferrara asserted that he made a number of trips
to the Regional Office of the Board, to obtain ad-
vice on how to get rid of the Union, but was unable
to identify the individual, or individuals, from
whom he received the asserted advice. Ferrara re-
lated that, "When the Union first went in I was
looking to get rid of it. So I come up here quite a
few times to find out when I could start doing
something . And they told me to draw up a petition
a month before the contract is up." Later, after ob-
taining all of the signatures, but before the docu-
ment was dated, and before he gave it to Carmine,
Ferrara asserted he went to the Regional Office, ex-
hibited the signed petition, and was told by an
unidentified individual that it was not necessary to
file the petition. He was unable to relate when this
occurred in relation to the time that he gave the
petition to Carmine. Ferrara also related that he
had been told that the petition had to be filed, with
the Board, 30 days before the contract was up. He
acknowledged knowing the contract terminated on
January 31. Since the record clearly establishes that
the signatures, excepting only Buononato, were ob-
tained after the first telephone call from Wolfson,
on January 24, and, as I find infra, the last four
Ferrara's explanation follows
Q Did they [Carmine , Frank, and Joseph] at the very inception,
any of them know what you were doing on this"
A Well, at first nobody knew, but then Joe seen it I didn't tell him
what it was about I just told him it was a little piece of paper He
probably figured it out for himself -
Q You said in this last statement , Joe saw something'
A He seen it
n
Q Did you show it to him"
A No He just wanted to see it when I was getting one of the signa-
tures At that time I was getting ( Buononato's I signature
Q Did Joey ever discuss the paper with you)
A He would try, but I wouldn't- I'd just ignore him I dind't want
nobody to know nothing unless I know what I was doing
Q Say that again
A I didn' t want to discuss nothing with any of the bosses until I
found out of my rest of the employees if they wanted to do it
Q Did Joey say anything to you as to how he felt about you circu-
lating the petition"
A No, because I never told him what it was
Q Did he ever see you circulating the petition in the store and talk
to you about what you were doing"
A No, he just seen me getting [ Buononato 's] signature and he told
me do it on your own time, whatever you are doing, don't do it within
working hours and stopping them from workers He had customers, so
signatures were obtained on January 30, I find this
recitation of Ferrara incredible.
Ferrara's initial explanation was that he started to
circulate the paper "directly after Christmas, but
then I found out some information that we didn't
need it, since the case wasn't up yet. Then we
needed it again and then I went about getting it."
The first signature is that of Buononato. Ferrara
described the time he obtained Buononato's signa-
ture as "in the middle of-towards the beginning of
January." Ferrara acknowledged that he was ob-
served by Joseph, engaging in this activity during
worktime. Ferrara denied that Carmine, Frank, or
Joseph, knew of his intention to circulate the peti-
tion, in advance. I find Ferrara's recitation of
Joseph's knowledge of the petition, at the time Fer-
rara obtained Buononato's signature, evasive and
incredible.10 The recital of Joseph, of this event, not
only conflicts with the recital of Ferrara, but can be
described as illuminating."
Ferrara flatly denied ever discussing the anti-
union petition with Joseph or Carmine, prior to ac-
tually handing it to Carmine, on January 30. In con-
tradiction. Carmine acknowledged first seeing it
"some time in the month of January" when it was
shown to him by Ferrara, at which time he just
glanced at it and did not count the names or see
who signed it. Carmine then related that he did see
a "couple" of names. Having examined the docu-
ment he then asserted "half of these signatures
were on it." Carmine then fixed the time that he
first saw the document as "towards the end of the
last week of January." He then fixed the time as
Friday or Saturday, January 27 or 28.12
I just put it away and went on my own way
Q At the time he said do it on your own time , did he know you
were working on this petition"
A No
Joseph testified as follows
Q Isn't it a fact that some time in January of 1967 you had a con-
versation with Mike Ferrara with regard to his circulating a petition in
the shop"
TRIAL EXAMINER Petition of what kind"
Q To decertify the Union or to get rid of the Union"
A To my knowledge"
Q Did you have such a conversation with him-
A Fora few minutes I had, yes
TRIAL EXAMINER If you had a conversation , it would be to your
knowledge
Q And in the course of this conversation, isn't it a fact that Mike
said that he was trying to get rid of the Union"
A How do you want me to answer that now
TRIAL EXAMINER Did he or didn't he"
A Well, yes
Q Isn't it a fact that you told him you didn 't like the idea unless he
had more than a majority of the employees"
A Well, I told him if its his idea to forget about it
Q And what did he say, if you recall"
A He says he thinks he has the majority
Q He didn't show you the petition at this time, did he"
A No
Q And you don't know if he had any signatures signed at that time
do you"
A No, l don't
Ferrara 's assertion that he had the paper in his pocket for a week,
completely signed , is not credited
r
354-126 O-LT - 73 - pt 1 - 74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carmine acknowledged that when Ferrara ex-
hibited the paper to him, on January 27 or 28, "I
did say something about if you people want to be
represented among yourselves, or whatever you are
trying to do, you have to have a majority of the em-
ployees and that's about the end of the conversa-
tion." Respondent's contention that it never ad-
vised Ferrara relative to the circulation of the paper
is, thus, patently without merit.
Ferrara asserted he handed the document to Car-
mine , on January 30, having placed the date on it
on that date, after he had obtained all of the signa-
tures . Carmine was unable to remember if Ferrara
delivered the petition to him or to Joseph, and as-
serted he received it, "the last couple of days of
January, possibly the last day." He was certain it
was prior to February 1.
Carmine related that, immediately upon receipt
of the paper, he called Respondent's attorney to
have him file an RM petition, which was sub-
sequently filed on Friday, February 3. Carmine
clearly fixed the time of the receipt of the petition
as prior to the expiration of the union contract, on
January 30.11 1 do not credit the assertion of Joseph
that he was certain the contract had expired at the
time Respondents received the paper from Fer-
rara. 14
Frank similarly asserted that they had no
evidence, prior to January 3 1, that the employees
did not want the Union to represent them. Frank
similarly asserted that he was advised of the receipt
of the employee petition after the contract expired.
I do not find credible this testimony of Frank. It is
undisputed that a copy of the employee's petition
was filed, with the RM petition, on February 3. The
RM petition was dismissed, by reason of the pen-
dency of this action, and, on appeal, the dismissal
was upheld.
I find it unnecessary to treat with the patent inac-
curacies of some witnesses as to when they signed
the employee petition. As an illustration, De
Stefano asserted he signed the petition 2 weeks
after January 30. Since it was filed in the Regional
Office on February 3, in its present form, as I have
found, it must have been signed by him on or be-
fore January 30. Portelli similarly did not know if
she signed the Ferrara paper in January or Februa-
ry.
4. The bargaining with employees on January 30
It is undisputed that, with Carmine, Joseph, and
Frank present in the store, the employees met, de-
cided upon an improvement in wages and main-
tenance of certain conditions provided for in the
unybn agreement, and negotiated with the em-
yers, and that these improvements were placedp1
in effect on Saturday, February 25, retroactive to
and including January 30. It is undisputed that the
employees had only one meeting with manage-
ment.'
I first consider the testimony as to the date of the
meeting, finding it as confused as most of the
testimony in the record. De Stefano responded in
the affirmative when asked if the meeting was in
January or early February, then acknowledged that
he did not recall the date of the meeting . Crissali
was unable to state if the employee meeting took
place 1 day, 2 weeks, or a month after she signed
the Ferrara petition. She knew it was "after the
holidays." While Crissali sought to relate the meet-
ing to the time she attached her signature to the
Ferrara petition, she was uncertain if her signature
was placed on the petition in January or February.
Portelli asserted the meeting occurred on Wed-
nesday night, but did not know if it was January 25,
February 1, 8, or 15. Legari could not fix the date
of the meeting, or relate how much time elapsed
between her signing of the Ferrara petition and the
meeting. Ferrara fixed the time of the meeting as
being after the signing of the petition he circulated,
with no specification of date. Frank asserted the
meeting was after the contract expired, but could
not specify what day of the week it was held, then
later asserted that it was after the RM petition was
filed, and could have been on February 9 or 10.
Frank's explanation was that he normally pays out
orders on Wednesday or Thursday. It is noted that
" The following excerpt, from Carmine's testimony, appears
0 Do you know how long between the time you spoke to me ] Mel-
lan ] to the time that I filed the petition"
A Well, it was practically immediately because the sequence of
time was rapid I mean the contract was expiring and Wolfson had
threatened to throw a picket line outside, and you know, I wanted to
let you be aware of all the facts
I find it unnecessary to resolve the self-contradiction in the testimony of
Joseph, relative to his knowledge of the employee petition Joseph, first on
cross-examination by his own counsel , asserted that he had never seen the
petition, then identified it as having been turned in by Ferrara , prior to
Respondent's negotiating with its employees
" Joseph figuratively was hoisted with his own petard, in the following
recitation
0 Are you sure that the contract with the Union was expired at the
time you received this paper from Mr Ferrara"
A Yes
0 You are The contract expired on January 31, and the petition
was filed on February 3 January 31 is a Tuesday and February 3 is a
Friday Now, on which of the days, Wednesday, Thursday or Friday
did you tell your brother Carmine to get a hold of the lawyer and have
him file the petition"
A I couldn't answer that honestly
0 And listen to this question very carefully Prior to receipt of this
paper from Mr Ferrara, what evidence did you have, if any, that the
Union didn't represent a majority of the employees"
A I couldn't answer that truthfully
0 Did you have any evidence"
A Not to my knowledge
0 And you are now telling us that you received this paper from Mr
Ferrara after the Union contract expired, is that correct"
A I couldn't promise you that I couldn't answer that
1s I do not credit the assertions of Ferrara and Crissali that nothing was
agreed to at the first meeting, and that the employees had a second meeting
with management 2 weeks later, at which time management advised that
they would go along with the employees ' requests The other witnesses all
asserted there was only one meeting
GALLARO BROS . AND G & G FOODS CO. 1155
the 9th and 10th were Thursday and Friday, not
Wednesday and Thursday. Joseph first pled a
complete inability to recall if the meeting occurred
in January or early February, asserting , "I have no
recollection of days. I forget dates right away."
Asked if he recalled if the contract with Local 1500
was still in existence at the time of the meeting,
Joseph responded, "To my knowledge, probably
was." Asked if the contract was due to expire
within a short period of time, Joseph responded, "I
could say yes to that. 1116 Carmine asserted, "We all
seem to be in the same pickle with remembering
dates. It happened within the first 10 days of
February." Carmine also asserted the meeting took
place after they received Ferrara's petition, a week
or 10 days after. I do not credit this recitation of
Carmine.
Carmine earlier testified that he received the
second telephone call from Wolfson, 1 or 2 days
after he first saw Ferrara's petition. I have found,
supra, under subsection a., that on Tuesday, January
31, Carmine advised Wolfson, "that the employees
and the officers of the Company had a meeting the
previous night and at which time they decided to go
along without the Union." Carmine did not deny
this assertion of Wolfson, relying on his denial that
there was any telephone call after January 27 or 28.
I have found, in the subsection immediately above,
that Carmine first saw the Ferrara petition on
January 27 or 28, according to Carmine. Ac-
cordingly, in the light of the conflicting evidence,
and the events set forth supra and infra, I find it
reasonable to infer that the employees' meeting ac-
tually occurred on the evening of January 30, while
the contract was still in effect.
Crissali had a meeting at her home, which was at-
tended by Portelli, Ferrara, De Stefano, and
Buononato. The only evidence in the record as to
when this meeting was held appears in a recitation
of De Stefano, in his pretrial statement of March
16, in which he related that the meeting at Crissali's
home was 2 days before the meeting of the em-
ployees at the store with Frank, Joseph, and Car-
mine ." Accordingly, I find it reasonable to infer
that the meeting at Crissali's home occurred on
January 28, at which time Crissali, and the names
appearing after her signature, Portelli, Incorvia, and
De Stefano, were not on the petition. According to
De Stefano, the group at Crissali's home discussed
requesting an increase of 25 cents an hour, sick
leave, and vacation time.
The testimony relative to the events on the even-
ing of Monday, January 30, are as garbled and con-
fused as the recitation of the other events. How-
ever, after the store was closed that evening, it ap-
pears all of the employees, with the possible excep-
tion of Incorvia, remained and had a meeting.
Frank is variously described as being in his office
part of the time and in the meeting part of the time.
Joseph is described as being around the store. It ap-
pears that Carmine participated in a great deal of
the meeting, although not necessarily all of it, and
was the channel of communication between the
employees and Frank and Joseph. It appears that
the employees first requested an increase of 25
cents per hour, which was rejected. They then
requested an increase of 15 cents an hour the first
year and 10 cents an hour the second year, and the
continuation of Blue Cross and Blue Shield
coverage, which was provided for in the agreement
between the Respondents and the Union. No men-
tion was made of the life insurance coverage and
dental plan provided for in article IV, paragraph
15, in the union contract, which requires employer
contributions.
Portelli first asserted that Frank and Joseph did
not agree to the increase of 15 cents an hour the
first year and 10 cents an hour the second year.
Shown her pretrial affidavit of March 2, to refresh
her memory, she acknowledged having stated at
that time that the wage increases had been agreed
to that night. Portelli then could not remember if
the Blue Cross and Blue Shield coverage, of the
union contract, was likewise agreed to, but
acknowledged a statement indicating such an
agreement did appear in her pretrial statement. De
Stefano could not recall what agreement was
reached relative to a wage increase but did recall
that the Employer, agreed to pay for hospitaliza-
tion.
Carmine, who described Crissali as the
spokesman for the employees, related that Crissali
said that the employees would like to bargain for
themselves, if possible. Carmine assserted, "I sort
of informed them that because of this legal problem
with the Union, we weren't sure whether this meet-
ing is being properly held, I mean we are not
familiar with labor regulations and whether we are
committing any sort of violation. But they wanted
to continue. So we couldn't stop them and we
listened to what they had to say." Carmine was self-
contradictory. At one point he asserted, "They
were satisfied with the salaries they were getting,
which happened to be above or equal to what the
Unions were paying them, and they felt that there
was no necessity for a union." Immediately
10 1 do not credit Joseph's later recitation that the meeting with the em-
ployees could have been a week or 10 days after the filing of the RM peti-
tion Similarly , I do not credit Joseph 's effort to recant the above by stating,
"I didn't understand the question "
'r It is appropriate at this point to note that Crissali first asserted, "I in-
vited them all up to my home and then we signed the papers [Ferrara's peti-
tion] " Crissali , later, did not remember anyone signing the petition at her
home, and did not see anyone sign it at that time Later , she asserted they
did not sign the petition at her home and that she signed it at the store
Crissali acknowledged that she had been discharged in January On'
Thursday she had an earache and requested permission of Frank to leave
She reported on Friday and Saturday , and was discharged on Saturday, by
Joseph At her request, the Union intervened, and Joseph acknowledged
that he did not know that Frank had excused Crissali, and reinstated her
Crissali was unable to relate whether her discharge occurred on Saturday,
January 14, 21, or 28
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter, Carmine asserted, "they pointed out as
in previous practice or times they would normally
receive an increase in salary every 6 months or
every 12 months, whatever the case happened to
be. And since a year has lapsed since they got the
last increase, they felt that they were entitled to
another increase which they felt they needed
because they could use the extra money." Carmine
then related that he advised them that he could not
promise an increase but was willing to listen to
what they were asking for. At this point they
requested a 25-cent-an-hour increase, which Frank
and Joseph rejected. Five minutes later, after being
advised of the rejection, the employees advised that
they would be willing to take 15 cents the first year
and an additional 10 cents the following year. Car-
mine asserted that Frank and Joseph indicated,
"We'll agree to an increase if we find that its per-
fectly legal to give them an increase." Carmine,
however, asserted that there were no promises as to
when it would be effective. I have found, supra, that
it is undisputed that these increases were placed
into effect on February 25, retroactive to January
30.
Carmine acknowledged that, during the meeting,
Crissali wanted to know if the sick and medical
benefits would be continued, and Frank and Joseph
agreed that these conditions would be retained,
"but only with the understanding that whatever we
agreed to would eventually be legal and binding,
that we weren't creating any additional problems."
I find it significant that Carmine acknowledged that
he had no knowledge of the charges herein, filed by
the Union on February 7, at the time the wage in-
creases were agreed to.
Joseph, in answer to a question as to what was
agreed upon at this meeting, responded, "I think it
was the first year 15 cents." Joseph acknowledged
that the Blue Cross and Blue Shield coverage was
also agreed to. However, Joseph qualified the
agreement with the statement, "This agreement was
made only if it was legal with the NLRB Board. I
told them this might not be legal." Frank
acknowledged that, when the agreement was
reached with the employees, it was agreed that it
would be effective the first week in February,
which actually commenced on January 30. Frank
also acknowledged that the retroactive payments,
made on February 25, were computed on the basis
of the time worked on and after January 30.
While Carmine first denied that the employees
requested a written contract, having his memory
refreshed by a pretrial statement, he acknowledged
that Crissali did make such a request. Joseph
acknowledged the subject of a written contract was
mentioned and that he advised that he did not
know if it was legal. It is undisputed that no written
agreement was prepared.
Ferrara initially denied that during this meeting
he advised Frank, Joseph, and Carmine that if the
employees could not reach an agreement they
would stick with the Union, but that the employees
would cooperate to get the Union out of the shop,
if they got the same conditions that they had with
the Union. Later, having his memory refreshed by
his pretrial statement, Ferrara acknowledged that
he had advised Frank, Joseph, and Carmine that if
the employees could not reach an agreement they
would stick with the Union."'
Crissali, apparently alluding to the statement of
Joseph, set forth supra, asserted that at the outset
of the meeting the employees were advised, "Well,
we can't talk to you. It's against the law.Ve are not
allowed to talk to you on these terms. We don't
want to know what you are doing and we don't
want to speak to you." Wolfson credibly related
that, after Crissali's discharge had been adjusted,
Crissali called him and advised him that when the
Union first came in she was against the Union, that
after the Union interceded in her behalf, she was
now in favor of it, "and to be careful of further
movements being made in behalf of the em-
ployer. "19
Concluding Findings
It is undisputed that, after certification by the
Board, on November 29, 1965, the Union and
Respondents entered into a collective-bargaining
agreement which terminated, by its terms, on
January 31, 1967. Wolfson, union representative,
made appropriate requests for bargaining, directed
to Carmine, on January 24, 26, or 27, Monday,
January 30, and Tuesday, January 31. Respondents
His testimony follows
Q Isn't it a fact you told Frank, Carmine and Joseph, that if the em-
ployees couldn't reach an agreement , then the employees would stick
with Local 1500 as their representative"
A Yes
I do not credit the assertion of Ferrara that his pretrial statement was not
sworn to
" I do not credit Crissali 's denial that she so advised Wolfson Crissali de-
nied that during the meeting anything was said about the employees
cooperating in getting rid of the Union Shown her pretrial affidavit the fol-
lowing colloquy ensued
Q Is it now a fact that your affidavit states that you believe in the
course of the meeting that an employee stated that the employees
would cooperate in getting rid of the Union providing the employees
got the same conditions as they had with the Union"
A No
Q Is that what you told me in this affidavit"
A I probably told you that way, but I didn't mean it, if I said it that
way, because its not the way I meant it And when its read back to me
now, even though its initialed, that 's not the way I meant it
Q When this affidiavit was taken, we read this affidavit together, is
that right"
A Yes
Q And isn 't it a fact that where you thought you made mistakes, or
I made mistakes, we crossed out aspects of it, and you initialed
changes"
A Yes
Q Is that right"
A Yes
Q Okay And we read the full statement together and signed each
page at the end , is that right"
A Right
I do not credit the denial of Crissali
GALLARO BROS. AND G & G FOODS CO.
would rely on the premise that Carmine at no time
uttered words of refusal . I find no merit in such
premise . It is well established that failure to act
constitutes refusal , and this result has been found in
numerous Board cases , with court approval. Car-
mine , by way of response to each of Wolfson's
inquiries , relied on the tenuous assertion that he
had not discussed negotiations with Joseph and
Frank . Carmine , by his own admission , was aware
of the activity of Ferrara , on Friday or Saturday,
January 27 or 28 , and was aware , at that time, that
Ferrara had the signatures of less than a majority of
the employees in the unit . It was not until the last
day of the contract , on January 3 1, that Carmine
advised Wolfson " that the employees and the of-
ficers of the Company had a meeting the previous
night and at which time they had decided to go
along without the Union." In contradiction of this
assertion of Carmine , and standing uncredited,
Frank and Joseph sought to establish that Respon-
dents had no knowledge of the employees ' alleged
disaffection with the Union , prior to the expiration
of the contract.
I have found , supra , that on January 30, the em-
ployees met with Carmine , Joseph , and Frank, and
under the threat , apparently expressed by Ferrara,
that the employees would continue their union af-
filiation if they did not receive the same conditions
existing in the contract and a wage increase , arrived
at an agreement which provided for a 15-cent-per-
hour increase , which later became effective as of
January 30 , with a further increase of 10 cents per
hour , to be effective a year later , as well as Blue
Cross and Blue Shield coverage . The qualms of
Respondents are reflected in the assertions of Car-
mine and Joseph , as expressed in the words of
Joseph , "This agreement was made only if it was
legal with the NLRB Board. I told them this might
not be legal."
In the Ray Brooks case20 the Supreme Court has
held that where employees are dissatisfied with
their chosen representative relief is provided
through the Board's processes. Similarly, if an em-
ployer has doubts about his duty to continue bar-
gaining , " it is his responsibility 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 ." Herein,
Respondents sought to effectuate their own solu-
tion , by entering into an agreement with the em-
ployees, without awaiting , and in fact prior to in-
voking , the Board 's processes.
In the Wasson case21 the Board restated its policy
as: It is well established that where , as here, a cer-
tified union requests an employer to negotiate a
new collective-bargaining agreement to become ef-
fective upon the expiration of a 1-year agreement
2 Rai Brooksv NLRB, 348US 96, 103
21 H P Wasson & Company, 170 NLRB 293
21 Citing Celanese Corporation of America, 95 NLRB 664, 673, Lavstrom
1157
negotiated after the Union was certified, there ex-
ists a presumption that the Union retains the sup-
port of a majority of the employees in the unit; and
the employer may refuse such request only if it can
show by objective facts that it has a reasonable
basis for believing that the Union has lost its
majority status since its certification . 22 In Wasson
the Board then found that an employer-conducted
poll, intended to supply the objective evidence
required to support a belief of loss of majority, was
taken in a coercive atmosphere and was therefore
unreliable . It is difficult to conceive a more coer-
cive atmosphere than negotiating directly with em-
ployees relative to wage increases , at a time when
majority representation can, at best , be said to be in
doubt.
In the Celanese case , supra , 672-673, the Board
held, in setting forth the legal principles controlling
in situations of this type , and particularly to in-
dicate the relationship between the existence of a
Board certificate and the right of an employer to
question a union 's majority in good faith, inter alia
After the first year of the certificate has
elapsed, though the certificate still creates a
presumption as to the fact of majority status by
the Union , the presumption is at this point
rebuttable even in the absence of unusual cir-
cumstances . Competent evidence may be in-
troduced to demonstrate that , in fact, the
Union did not represent a majority of the em-
ployees at the time of the alleged refusal to
bargain . A direct corollary of this proposition
is that after the certificate is a year old, as in
cases where there is no certificate , the em-
ployer can , without violating the Act, refuse to
bargain with a union on the ground that it
doubts the Union's majority , provided that the
doubt is in good faith- the sole issue , there-
fore, in determining whether the Respondent
has refused to bargain within the meaning of
the Act is whether, in spite of the fact that the
Union was the exclusive representative of the
employees at all times , the Respondent's ulti-
mate refusal to bargain until the Union proved
its majority was based on a good faith doubt of
majority.
Respondents herein did not await the processing of
an RM petition, or even the filing of it , or provide
the Union any opportunity to demonstrate whether,
in fact , it had a majority . To the contrary, with
precipitate haste , immediately after the close of
business on Monday , January 30, Respondents,
with expressed doubt as to the legality of their ac-
tion , sought to determine the cost involved in
securing the disaffection of the employees with the
Union , and to dissipate the Union 's majority status.
The Supreme Court has held that the granting of
Manufacturing Co , 151 NLRB 1482, enforcement denied 359 F 2d 799
(C A 7), accord United StitesGipsum Company , 157 NLRB 652
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits • with the intention of inducing the em-
ployees to vote against the Union is conduct
proscribed by Section 8(a)(1). N.L.R.B. v.
Exchange Parts Company, 375 U.S. 405, 409.
I find it unnecessary to resolve an issue raised by
General Counsel, in his brief, in which he asserts
that a majority of the signatures obtained by Fer-
rara were obtained during worktime, with the Em-
ployer's knowledge. I have found much of the
testimony of Respondents' witnesses incredible, for
reasons fully set forth, and I believe it appropriate
to avoid resolution of questions which are not es-
sential to a determination of the problem
presented. It would appear to suffice to note the ad-
missions of several of Respondents' witnesses that
Respondents were advised, by Ferrara, that if no
agreement was reached on January 30, the em-
ployees would reassert their "loyalty" to the Union.
I have found that it was under these circumstances
that Respondents sought to dissipate the Union's
majority status . The Board has stated: By virtue of
the existence of the contract, the Union was enti-
tled to exclusive recognition for at least the term of
the contract. Shamrock Dairy, Inc., 124 NLRB 494;
Hexton Furniture Company, 111 NLRB 342; Oil-
field Maintenance Co., Inc., 142 NLRB 1384, 1387
(in re the Pipefitters).
As stated by the Board in the West Surburban
Transit Lines, Inc., 158 NLRB 794, 798:
Respondent cannot be found guilty of an un-
lawful refusal to recognize or to bargain with
the Union if, as Respondent claims , it had a
good-faith doubt of the Union's majority
status. The existence or absence of a good-
faith doubt, however, "is to be determined as
of the time the employer refused to recognize
[or bargain with] the union. Once it is shown
that the employer entertained no such genuine
doubt ... at the time it refused to bargain, an
unfair labor practice has been established. The
fact even if later developed that there were
grounds which might have created a genuine
doubt at that time is then immaterial."23
I find it unnecessary to resolve the contention of
the Charging Party that Ferrara, in circulating the
employee petition, was, in fact, acting as an agent
of the Respondent, in the light of my findings
herein. The same applies to Charging Party's con-
tention that Carmine and Joseph encouraged the
circulation, if not the actual initiation, of the peti-
tion.
Respondents assert, in their brief, that the sole
position taken by the Employers at all times, from
the moment of the initial request by the Union to
negotiate a new contract, was that the Employers
were and have always been perfectly willing to bar-
gain collectively "provided the issue of representa-
tion is first resolved." There is not a scintilla of
"Citing Fred Snow, dlbla Snow & Sons v N L R B, 308 F 2d 687, 694
(C A 9), N L R B v Kellogg's Inc, dlbla Kellogg Mills. 347 F 2d 219
evidence in this record that the issue of majority
representation was raised by Respondents prior to
January 31, when Carmine advised Wolfson of his
doubt. In fact, Carmine denied that this conversa-
tion occurred. Joseph and Frank, the owners, each
asserted that they had no evidence whatsoever,
prior to the expiration of the union contract, that
the Union did not have a majority.
I similarly find no merit in Respondents' effort to
engage in semantics, in asserting the acknowledge-
ment of Wolfson that Carmine did not specifically
state that he would not bargain, "but he just stal-
led" for time. I have found that failure is identical
to refusal, in the legal requirement to bargain under
the circumstances this record reflects, on and after
January 24, when the Union made its initial ap-
propriate request.
I also find no merit in Respondents' assertions
that the employee meeting was at the request of the
employees, after "the employees had submitted
their written petition to the employer indicating
that they no longer wished to be represented by the
Union," and "that [while] the precise date of this
meeting could not be ascertained," in view of my
finding that the presentation of the petition and the
employee meeting both occurred on January 30, in
accordance with Carmine's advice to Wolfson, the
following morning. Respondents' assertion that
"the employers did absolutely nothing to dissuade
the employees from continuing with the Union, and
that the employees' decision no longer to be
represented by the Union was their own indepen-
dent action, reached of their own initiative, and
served as a proper basis to challenge and question
the Union's representative status," ignores Respon-
dents' intervention by bargaining with the em-
ployees and the granting of economic benefits,
which act effectively undermined the Union's
majority status and foreclosed the possibility of the
Board conducting a meaningful election.
Respondents correctly call attention to the Mid-
west Piping24 doctrine in which the Board held that
an employer must remain neutral, and await deter-
mination of majority status by the Board, where a
real question of representation is raised, by con-
flicting claims. Respondent, the Board held,
breached its duty of neutrality when it bargained
with one claimant. Apparently, Respondents herein
would differentiate between the execution of a con-
tract, with the Union, and negotiation directly with
the employees. In my view, Respondents misread
this area of the case decisions and has misin-
terpreted their intent.
Accordingly, for the reason set forth, I find that:
(a) Respondents failed and refusd to recognize and
bargain collectively with Local 1500, as the exclu-
sive collective-bargaining representative of Respon-
dents' employees, in an appropriate unit, commenc-
(CA 9)
N MId%esr Piping & Suppl% Co. 111c , 63 NLRB 1060
GALLARO BROS. AND G & G FOODS CO. 1159
ing January 24, and thereafter; (b) on January 30,
Respondents bargained directly and individually
with the employees in the unit described concern-
ing rates of pay, wages, hours of employment, and
other terms and conditions of employment; and (c)
on January 30, Respondents', by owners, Frank and
Joseph, and by their agent, Carmine, offered,
promised, and granted, waged increases, Blue Cross
and Blue Shield coverage, and other benefits and
improvements in their working conditions, and
placed said conditions in effect on approximately
February 25, retroactive to January 30, to induce
them to abandon their membership in the Union
and activity on its behalf; and that each of said acts
constituted unfair labor practices in derogation of
the provisions of Section 8(a)(5) and (1) of the
Act. 5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in sec-
tion III, above, occurring in connection with the
Respondents operations described in section I,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that the Respondents have engaged
in certain unfair labor practices, I will recommend
they cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies
of the Act.
Having found that Respondents have refused to
bargain with the Union in violation of Section
8(a)(5) and (1) of the Act, I shall recommend that
they be ordered to bargain in good faith with the
Union , upon request , as the exclusive representa-
tive of all of their employees, in the appropriate
unit described, concerning rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment and, if an understanding is
reached, embody such an understanding in a signed
agreement . In addition, in order to restore the
status quo ante, I will recommend that Respondents
be ordered forthwith to reinstate and make the con-
tributions required of the Employer to the welfare
plan and dental plan, as provided in article IV,
paragraph 15, of the collective-bargaining agree-
ment, in order to restore the insurance and dental
plan benefits which the employees previously had,
prior to Respondents' unfair labor practices, as
found herein.26 Said payments to continue until
such time as the matter is resolved through the col-
lective-bargaining processes, herein ordered.
It is further recommended that Respondents be
ordered to cease and desist from in any like or re-
lated manner infringing upon rights guaranteed to
their employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact
and upon the entire record of the case , I make the
following:
CONCLUSIONS OF LAW
1. Respondents are employers engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Retail Food Clerks Union, Local 1500, Retail
Clerks International Association, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All sales clerks, stock clerks, delivery clerks,
and cashiers, employed by Respondents at its store,
exclusive of butchers, meat wrappers, office clerical
employees, part-time employees working less than
20 hours a week, watchmen and guards, and all su-
pervisors as defined in Section 2(1 1) of the Act,
constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. The Union has been the exclusive representa-
tive of all employees for the purposes of collective
bargaining in the aforesaid unit, on and after
November 29, 1965, within the meaning of Section
9(a) of the Act.
5. By failing or refusing to recognize and bargain
with the Union, on and after January 24, 1967, as
the exclusive collective-bargaining representative of
Respondents' employees; by bargaining directly and
individually with employees, in an appropriate unit,
on January 30, 1967, concerning rates of pay,
wages, hours of em- ployment, and other terms and
conditions of employment; and by offering, promis-
ing, and granting employees wage increases, vaca-
tions, holidays, medical and hospitalization in-
surance, and other benefits and improvements in
their working conditions and terms of employment,
on January 30, 1967, and by placing said improve-
ments into effect, retroactively, on February 25,
1967, to induce said employees to refrain from
becoming or remaining members of the Union, or
to induce them to abandon their membership and
activity on its behalf; Respondents have, in each in-
stance , engaged in, and are engaging in, unfair
labor practices within the meaning of Section
8(a)(5) of the Act, and have thus interfered with,
restrained, and coerced their employees in the ex-
ercise of rights guaranteed in Section 7 of the Act,
and have thus engaged in, and are engaging in, un-
fair labor practices within the meaning of Section
8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
xs N L R B v Katz, d/h/a Wdha,u hurg Steel Products Co , 369 U S 736xR George E Light Boat Storage, Inc , 153 NLRB 1209, Oierntte Trans-
portation Compam, 157 NLRB 1185, 1192
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER Disclosure Act of 1959.
Upon the basis of the foregoing findings of fact
and conclusions of law , and upon the entire record
in the case , I recommend the Respondents Frank
Gallaro and Joseph Gallaro , d/b/a Gallaro Bros.
and G & G Foods Co., their officers , agents, suc-
cessors , and assigns , shall be ordered to:
1. Cease and desist from:
(a) Failing and refusing , upon request , to bar-
gain collectively with Retail Food Clerks Union,
Local 1500, Retail Clerks International Associa-
tion , AFL-CIO, with respect to rates of pay , wages,
hours of employment , and other terms and condi-
tions of employment , as the exclusive representa-
tive of their employees in the appropriate unit
described supra.
(b) Bargaining directly and individually with em-
ployees concerning rates of pay , wages , hours of
employment , and other terms and conditions of em-
ployment , or offering , promising , or granting em-
ployees wage increases , vacations , holidays, medi-
cal and hospitalization insurance , and other
benefits and improvements in their working condi-
tions and terms of employment to induce them to
refrain from becoming or remaining members of
the Union , or to induce them to abandon their
membership in and activity on its behalf.
(c) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of their right to self-organization , to form
labor organizations, to join or assist Retail Food
Clerks Union, Local 1500 , Retail Clerks Interna-
tional Association , AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing , and to en-
gage in concerted activities for the purposes of col-
lective bargaining , or other mutual aid or protec-
tion , or to refrain from any or all such activities, ex-
cept to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
27 In the event that this Recommended Order is adopted by the Board,
the words " a Decision and Order " shall be substituted for the words "the
Redommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain collectively, in good
faith, with the Union, as the exclusive representa-
tive of the employees in the above-described ap-
propriate unit , with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment, and, if an agreement is
reached, embody such an understanding in a signed
agreement.
(b) Pay into the Retail Food Clerks Welfare
fund such sums as would have been paid into the
plan, under the provisions of article IV, paragraph
15, of the collective-bargaining agreement, absent
the illegal changes in wages and working condi-
tions. However, nothing contained herein is in-
tended to require any change in existing rates of
pay or working conditions.
(c) Post at its place of business in Brooklyn,
New York, copies of the attached notice marked
"Appendix." [Board's notice substituted for Trial
Examiner's notice.]27 Copies of said notice, on
forms provided by the Regional Director for Region
29, after being duly signed by the Respondents'
authorized representative, shall be posted by
Respondents 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 Respon-
dents to insure that said notices are not altered,
defaced, or covered by an other material.
(d) Notify the Regional Director for Region 29,
in writing , within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.28
IT IS FURTHER RECOMMENDED that unless within
20 days from the date of the receipt of this Trial
Examiner 's Decision , Respondents shall notify the
said Regional Director, in writing , that it will
comply with the foregoing Recommended Order,
the National Labor Relations Board issue an Order
requiring Respondents to take the aforesaid action.
peals Enforcing an Order " shall be substituted for the words " a Decision
and Order"
2" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondents
have taken to comply herewith -
U. S GOVERNMENT PRINTING OFFICE 1973 O-LT - 354-126 (pt. 1)