J. E. Cote

National Labor Relations Board - Board Decisions

Dec 30, 1952

101 N.L.R.B. 1486 (N.L.R.B. 1952)

1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remained the significant terminal date for bar purposes.3 Because this
date will arrive in less than 2 months from the date of this decision,
no bar exists to a present determination of representatives.'
4. Pursuant to agreement of the parties, we find that the following
employees constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
All production and maintenance employees at the Employer's
Newark, New Jersey, plant, including receiving and shipping employ-
ees, but excluding drivers, office clericals, guards, watchmen, profess
sional employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
g Republic Steel Corp ., 84 NLRB 483.
'John Deere Plow Works, 94 NLRB 1286. In view of our decision herein that the
September 1, 1952, contract is a premature extension , we find it unnecessary to consider
the Petitioner ' s other grounds of attack upon that contract' s effectiveness for bar purposes.
JOSEPH E. COTE, D/B/A J. E. COTE, AND BROOK FARM FOODS, INC., AND
EDOUARD COTE and BAKERY & SALES DRIVERS & HELPERS LOCAL UNION
No. 686, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA, A. F. OF L. Case No. 1-
CA-1015. December 30,195°3
Decision and Order
On March 14, 1952, Trial Examiner Stephen S. Bean issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents J. E. Cote and Brook Farm Foods, Inc., had engaged in
and were engaging in certain unfair labor practices in violation of
Section 8 (a) (1), (3), and (5) of the Act, and recommending that
they jointly and severally cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner further found that the Re-
spondent Edouard Cote had not engaged in unfair labor practices and
recommended that the complaint be dismissed as to him. Thereafter,
the Respondents J. E. Cote and Brook Farm Foods, Inc., filed excep-
tions to the Intermediate Report and a supporting brief; and the Gen-
eral Counsel and the Union filed exceptions to the Intermediate Report,
the former filing a memorandum in support of his exceptions.
The Board 1 has reviewed the rulings of the Trial Examiner at the
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Murdock and Peterson].
101 NLRB No. 222.
J. E. COTE 1487
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed? The Board has considered the Inter-
mediate Report, the exceptions, briefs, and memorandum, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations 8 of the Trial Examiner with the following ex-
ceptions, additions, and modifications .4
1. The Trial Examiner found that the sale of the business to the
Respondent corporation was fictitious and that the Respondent cor-
poration operates the business as a front for the Respondent J. E.
Cote. We agree. The record clearly indicates that all the employees,
excepting those who were discriminatorily refused reinstatement, con-
tinued after the transfer of the business to the Respondent corporation
to perform the same work, in the same places, under generally the
same conditions of employment, and under the direction and control
of the same manager 2 We find therefore that the Respondent cor-
poration is merely the alter ego or a disguised continuance of the
business of the Respondent J. E. Cote." Furthermore, even if this
were the case of a bona fide transfer of a business and the Respondent
corporation was not the alter ego of the Respondent J. E. Cote, our
order would nevertheless issue against both Respondents. Thus, we
have consistently held that a successor, which takes over a business
with actual or constructive knowledge 7 of conduct amounting to un-
fair labor practices by its predecessor, and continues to operate the
business without any discernible change of existing labor policy, is
liable to remedy such unfair labor practices.8 Under the circum-
stances, we find that the Respondent corporation is, under either
theory, liable for the unfair labor practices, including violations of
8 (a) (1) and (3), as found by the Trial Examiner. Accordingly, we
are convinced that the coercive effect of the unfair labor practices set
a The Respondents except to the Trial Examiner 's ruling excluding evidence relating to
the future operations of the Respondent corporation . For the reasons stated in paragraph
2, infra, and because the Respondents have been in no way prejudiced by such ruling, we
affirm the Trial Examiner 's ruling of exclusion.
3In view of the absence of exceptions , we adopt the recommendation of the Trial Ex-
aminer to dismiss the complaint as to the Respondent Edouard Cote.
' As the record , exceptions , and briefs adequately present the issues and positions of
the parties , we deny the Respondents ' request for oral argument . We affirm the Chief
Trial Examiner 's ruling denying Respondents ' motion for permission to file a reply brief
before the Trial Examiner . There is no provision for the filing of reply briefs with the
Trial Examiner in the Board 's Rules and Regulations . Cf., Rules and Regulations , Series
6, as amended , Sec. 102 .42 with Sec . 102 73.
" The Respondent Edourd Cote was manager of the Respondent J. E. Cote, and continued
in the same capacity with the Respondent corporation , except that the title of his position
with the latter was president.
See Job . N. Fournier, Rome Lincoln -Mercury Corp ., 86 NLRB 397.
4 See footnote 5, supra. It is clear and we find that knowledge of Respondent J. E.
Cote's unfair labor practices is imputed to Respondent corporation through the Respondent
Edouard Cote.
'National Garment Company, 69 NLRB 1208 ; L. B. Hosiery Co., Inc., 88 NLRB 1000,
enforced 187 F . 2d 335 (C. A. 3).
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in the Intermediate Report can be dissipated only by requiring
the Respondents, jointly and severally, to take appropriate steps to
remedy such unfair labor practices .9
2. The Respondents claim that they neither are nor were at the time
of the hearing so engaged in interstate commerce as to come within the
jurisdiction of the Act 10 The Trial Examiner found that during the
year ending March 31, 1952, the Respondent J. E. Cote had purchased
merchandise amounting to $430,921, all of which was shipped to Cote
from points outside the State of New Hampshire, and had made direct
interstate sales of $63,616 to customers located outside of New Hamp-
shire. We agree with the Trial Examiner that the Respondent J. E.
Cote has engaged in interstate commerce within the meaning of the
Act.
We also find that the Respondent corporation is amenable to the
Board's jurisdiction, regardless of the theory by which the Respondent
corporation is held responsible for remedying the unfair labor prac-
tices of the Respondent J. E. Cote. Considering the Respondent
corporation to be the alter ego of the Respondent J. E. Cote, the
jurisdiction acquired over the latter necessarily attaches to the Re-
spondent corporation. Under the successorship theory, it is clear that
the operations of the Respondent corporation affect commerce within
the meaning of the Act. The Trial Examiner found, and we agree,
that the Respondent corporation was selling goods in the amount of
$1,000 to $1,500 weekly to purchasers outside the State of New Hamp-
shire. At the date of the hearing the Respondent corporation had
already been operating for, roughly, 12 weeks, and we find, accord-
ingly, that it was at that time engaged in commerce over and above
de minimis standards. We further find that during its first 6 months
of operation, the Respondent corporation has sold more than $25,000
0 L. B. Hosiery Co , Inc. , supra; Charles R. Krimm Lumber Company, 97 NLRB 1574,
see The Alexander Milburn Company, 78 NLRB 747.
30 In this connection , the Respondents have filed a petition requesting the Board to
reopen the record for the purpose of adducing evidence to show that, subsequent to the
date of the hearing, all of the Respondent corporation 's truck delivery routes have been
disposed of and the Respondent corporation is now solely a brokerage operation selling to
independent distributors and that, accordingly , the Respondent corporation is not now
and will not be engaged in interstate commerce and, furthermore , is unable to offer
reinstatement to any employee . The petition is denied The evidence sought to be
adduced, except to the extent set forth below, has no bearing on the issue of jurisdiction.
Moreover, as to the Respondent corporation 's ability to reinstate , the Board does not
require the Respondents to do a useless thing. Its order that the Respondents reinstate
employees discriminatorily discharged and that the Respondents bargain with the Union.
as hereinafter set forth , is conditioned upon the Respondents having in their employ
employees in the appropriate unit for which the Union has been certified . The material
sought to be introduced by the Respondents is matter to be dealt with in connection with
compliance . Walter Holm & Company, 87 NLRB 1169 and cases cited therein ; see
Southport Petroleum Company v . N. L. R. B , 315 U . S. 100 ; N. L. R. B. v. Caroline Mills,
167 F. 2d 212 ( C. A. 5).
J. E. COTE 1489
worth of merchandise to purchasers outside of New Hampshire.-
This volume of interstate business is sufficient to bring the Respondent
corporation within the Board's standards for asserting jurisdiction.12
That either or both of the Respondents are not now engaged in inter-
state commerce is not a material consideration, as the Board has juris-
diction to remedy any unfair labor practices found against the
Respondents, even if at the time of the Board's order it was established
that either or both of the Respondents had withdrawn entirely from
interstate commerce.13
3. We agree with the Trial Examiner that both the Respondent
J. E. Cote and the Respondent corporation unlawfully refused to
bargain with the Union, but we do not agree with his finding that the
Respondents attempted individually to bargain with their employees
in violation of the Act 14 The letter of June 25, 1951, to the employees
setting forth the bargaining impasse and the Respondent J. E. Cote's
solicitation of one employee to induce other employees to accept the
Respondent J. E. Cote's terms, as set forth in such letter, are not in
their context unlawful attempts to bypass the Union.15 They do not,
therefore, constitute a refusal to bargain with the Union.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents Joseph E. Cote,
d/b/a J. E. Cote and Brook Farm Foods, Inc., Manchester, New
Hampshire, jointly and severally, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Bakery & Sales Drivers
& Helpers Local Union No. 686, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, A. F.
of L., as the exclusive representative of all their employees in the unit
heretofore found appropriate, with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
"Although it is our practice to project available commerce data upon a yearly basis,
we have limited the projection of the available commerce figures for the Respondent cor-
poration to March 15, 1952, in light of the Respondents ' allegation in its petition to reopen
the record that the Respondent corporation had sold its distribution routes at some time
in late March of 1952.
12 Stanislaus Implement and Hardware Co., 91 NLRB 618.
as See N. L R. B. v. Cowell Portland Cement Co., 148 F. 2d 237, 241 (C. A 9), enforcing
as modified 40 NLRB 652, cert. denied 326 U. S. 735; Randolph Corporation , 89 NLRB
1490.
31 See Intermediate Report, p. 1513.
15 Harcourt and Co., 98 NLRB 892; National Carbon Division , Union Carbide and Car-
bon Corp. and National Carbon Co., Inc., 100 NLRB 689; at. Reeder Motor Company,
96 NLRB 84.
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discouraging membership in Bakery & Sales Drivers & Helpers
Local Union No. 686, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, A. F. of L., or in any
other labor organization of their employees, by discriminatorily lock-
ing out, discharging and refusing to reinstate any of their employees,
or by discriminating in any other manner in regard to their hire and
tenure of employment or any term or condition of employment.
(c) Interrogating their employees concerning, threatening them
with reprisals because of, seeking by promise of benefits to induce
their relinquishment of, their union membership and activities, or in
any other manner interfering with, restraining, or coercing their
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Bakery & Sales Drivers & Helpers
Local Union No. 686, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, A. F. of L., or any other
labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to George Thibodeau, Armand Caron, William Martell,
John Shea, and Donat Cantin 16 immediate and full employment at the
same or substantially equivalent positions at which they would have
been employed but for Respondents' discrimination against thbm,
without prejudice to their seniority and other rights and privileges,
and make them whole for any loss of pay they may have suffered by
reason of Respondents' discrimination against them, by payment to
each of them of a sum of money equal to the amount which he would
normally have earned as wages during the period from the date of
the Respondents' discrimination to the date of Respondents' offer of
reinstatement, less his net earnings during said period.
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay due.
1a The General Counsel and the Union excepted to the Trial Examiner ' s failure to recom-
mend the reinstatement of John Shea and Donat Cantin, both of whom appear to have
been reemployed at some time during the hearing If John Shea and Donat Cantin have
already been reinstated to the same or substantially equivalent position, without prejudice
to their former rights and privileges, that part of this Order directing their reinstatement
shall be void.
J. E. COTE 1491
(c) Upon request, bargain collectively with Bakery & Sales Driv-
ers & Helpers Local Union No. 686, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, A. F.
of L., as the exclusive representative of all the employees in the
bargaining unit described herein, with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and if an
understanding is reached, embody such understanding in a signed
agreement.
(d) Post at their Manchester, New Hampshire, plant, copies of the
notice attached hereto marked "Appendix." 1T Copies of the said
notice, to be furnished by the Regional Director for the First Region,
shall, after being duly signed by Respondents, be posted by Respond-
ents immediately upon receipt thereof, and maintained by them for
sixty (60) consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the First Region, Boston,
Massachusetts, in writing within ten (10) days from the date of this
Order, what steps Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that as to Edouard Cote, the complaint herein
be, and it hereby is, dismissed.
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 our employees that :
WE WILL upon request bargain with BAKERY & SALES DRIVERS
& HELPERS LOCAL UNION No. 686, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, A. F. OF L., as the exclusive representative of all our
employees in the appropriate unit described below, and if an
understanding is reached, embody such understanding in a signed
agreement.
WE WILL NOT discourage membership in BAKERY & SALES DRIV-
ERS & HELPERS LOCAL UNION No. 686, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, A. F. OF L., or any other labor organization of our
employees, by discriminatorily locking out, discharging and re-
fusing to reinstate any of our employees, or discriminate in any
11 In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
242305-53--95
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other manner in regard to their hire and tenure of employment
or any term or condition of employment.
WE WILL NOT interrogate our employees concerning, threaten
them with reprisals because of, or seek by promise of benefits to
induce their relinquishment of, their union membership and
activities, or in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-organ-
ization, to form labor organizations, to join or assist BAKERY &
SALES DRIVERS & HELPERS LOCAL UNION No. 686, INTERNATIONAL.
BROTHERHOOD OF TEAMSTERS, CHAUrnURS , WAREHOUSEMEN &
HELPERS OF AMERICAS A. F. OF L., or any-other labor organization,
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes of col-
lective bargaining 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 and authorized
by Section 8 (a) (3) of the Act.
WE WILL offer to George Thibodeau, Armand Caron, William
Martell, John Shea, and Donat Cantin immediate and full em-
ployment to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay suffered as a result of
the discrimination against them. The bargaining unit is:
All driver-salesmen at our Manchester, New Hampshire,
plant, excluding warehousemen, garage and maintenance
employees, office and clerical employees, professional em-
ployees, and supervisors, as defined in the Act.
WE WILL NOT discriminate in regard to the hire or tenure of
employment against any employee because of membership in or
activity on behalf of any such labor organization.
All our employees are free to become or remain members of said
union or any other labor organization.
JOSEPH COTE D/B/A J. E. COTE,
Employer.
By ----------------------------------
(Representative ) ( Title)
Dated --------------------
BROOK FARM FOODS, INC.,
Employer.
By ----------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
J. E. COTE
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
1493
This proceeding, brought under Section 10 (b) of the National Labor Rela-
tions Act as amended (61 Stat. 136), herein called the Act, was heard in Man-
chester, New Hampshire, on December 18, 19, 20, 21, 26, and 27, 1951, before me
the duly designated Trial Examiner, pursuant to due notice to all parties. The
complaint, issued by the General Counsel of the National Labor Relations Board,
herein called respectively, the General Counsel and the Board, and based upon
charges filed by International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, A. F. of L., herein called the Union, alleged
that Joseph E. Cote d/b/a J. E. Cote, and Brook Farm Foods, Inc., herein called
Respondents and Edouard Cote (herein, although a respondent, referred to
individually for reasons of convenience that will appear later), had committed
the following unfair labor practices proscribed by Section 8 (a) (1), (3), and (5Y
of the Act: (1) On or about August 31, 1951, Respondents discharged and locked
out' employees John Shea, George Thibodeau, Armand Caron, Donat Cantin,
and Wiliam Martell, and thereafter refused and have since continued to refuse
to reinstate them to their former of substantially equivalent positions of employ-
ment ; (2) on or about April 4, 1951, and on or about April 28, 1951, Respondents
refused and have since continued to refuse to bargain collectively in respect to
rates of pay, wages, hours of employment or other conditions of employment
with the Union as the exclusive representative of all their employees in a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act ; (3) at numerous times during the period commencing
on or about April 4, 1951, and continuing to the date of issuance of the complaint
on December 5, 1D51, Respondents had (a) interrogated their employees con-
cerning their union membership and activities; (b) threatened their employees
with economic reprisals because of their union membership and activities; (c)
administered economic reprisals to their employees because of their union mem-
bership and activities; (d) made promises of immediate and future benefits to
their employees for the purpose of inducing them to relinquish their union mem-
bership and activities; (f) threatened their employees with discharge, loss of
employment, and other economic reprisals unless they ceased their union mem-
bership or their union activities or both ; (g) administered the threats to dis-
charge their employees who refused to relinquish their membership in the Union
or activities in behalf of the Union, or both ; and (h) coerced and induced certain
employees by promises of benefits to bring about the dissipation of the Union's
majority of their employees by causing other employees to repudiate the Union
and relinquish their union membership, union activities, or both ; and (4) that
by such conduct, Respondents have interfered with, restrained, and coerced
their employees in the exercise of rights guaranteed in Section 7 of the Act.
Respondents' answer avers that Joseph E. Cote ceased engaging in business
on August 31,1951; that about April 24,1951, Brook Farm Foods, Inc., commenced
as a broker selling products to Joseph E. Cote and others and on or about August
1, 1951, engaged in distribution of products to a limited extent and on or about
September 4, 1951, purchased the office equipment and stock in trade of Joseph E_
Cote and thereafter engaged in the distribution of products; that Edouard Cote
individually or under the name of J. E. Cote or of Brook Farm Foods, Inc., has
I The words "locked out" were added at the end of the first line of paragraph 6 of the
complaint by virtue of a motion to amend made by the General Counsel and allowed by the
Trial Examiner at the opening of the hearing.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
never been engaged in the businesses mentioned or described in the complaint;
that Brook Farm Foods, Inc., has not been a successor to Joseph E. Cote and
Joseph E. Cote has not done business under the name of Brook Farm Foods,
Inc. ; that Joseph E. Cote terminated the employment of John Shea, George
Thibodeau, Armand Caron, Donat Cantin, and William Martell, on or about
August 31, 1951, because, for personal reasons, he had decided to discontinue
his business. The Respondents severally specifically denied that they had com-
mitted any of the unfair labor practices alleged in the complaint, and Edouard
Cote and Brook Farm Foods, Inc., denied that either had employed or discharged
the persons named in the complaint or that either has refused to bargain col-
lectively with the Union as the exclusive representative of employees in a unit
appropriate for the purposes of collective bargaining.
Various motions were made by counsel during the course of the hearing. At
the start and end of the hearing, Respondent moved that the General Counsel
he ordered to set forth by amendment or by bill of particulars which of the three
named Respondents is charged with the unfair labor practices alleged and the
times and places of their commission. Action on the motion when first made
was reserved, the Trial Examiner stating that in the event Respondents consid-
ered they needed further opportunity to prepare their defense, time would be
allowed them before opening, after the conclusion at the General Counsel's case.
On December 21 at a time that the General Counsel had substantially completed
the presentation of his case-in-chief, at the request of all parties, the hearing
was suspended until December 26. Respondents made no further request for
additional time. When renewed at the end of the hearing, the motion for par-
ticulars was denied. Several motions to strike testimony admitted de bene were,
as appears in the record, either allowed or denied or are disposed of in accordance
with the findings made, or have not furnished a basis for conclusions reached
in this Report. Respondents' motions to dismiss, on which rulings were reserved,
are disposed of by the findings and conclusions herein. The General Counsel's
motion to conform the pleadings to the proof in formal matters is allowed. All
parties were represented at the hearing by counsel or by representative and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
to introduce relevant evidence, to argue orally, and to file briefs and proposed
findings. The case was argued orally by Respondents and on February 5 and
February 7, 1952, the General Counsel and Respondents filed briefs. They have
been carefully considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT'
I. THE BUSINESS OF RESPONDENTS
As of March 31, 1951, and until at least August 31, 1951, Joseph E. Cote d/b/a
J. E. Cote, was an individual proprietorship with his principal place of business
located in Manchester, New Hampshire, engaged as a wholesale distributor of
potato chips, candy, and other confectioneries. He had been engaged in this
business for 16 to 18 years. During the year ending March 31, 1951, purchases
of merchandise amounted to $430,921.29, all of which was shipped directly to the
2 In making the findings herein, I have considered and weighed the entire evidence. It
would needlessly burden this Report to discuss all the testimony on disputed points. Such
testimony or evidence by way of exhibits as is in conflict with these findings and is not
specifically discussed hereinafter is either not credited or has been considered insubstantial
or immaterial.
J. E. COTE 1495
proprietorship from points outside of the State of New Hampshire . During this
same period , direct interstate sales to customers located outside the State of
New Hampshire amounted to $63,616 .30. Joseph E. Cote d/b/a J. E . Cote, admits
that he was engaged In Interstate commerce within the meaning of the Act.
Under circumstances described more fully in a later section of this Report,
Brook Farm Foods, Inc., a corporation, was organized on April 11, 1951, under
the laws of the State of New Hampshire with Its principal place of business
located in Manchester, New Hampshire, where it has been engaged and is engaged
as a wholesale distributor of potato chips and other confectioneries. It sells
directly to customers located in Massachusetts, New Hampshire, and Vermont.
Beginning with a time subsequent to September 1, 1951, and as of the time of
the hearing, Brook Farm Foods, Inc., has purchased and still purchases mer-
chandise and sells merchandise , weekly, in substantially the same amount, both
as to interstate and Intrastate purchases and sales as did Joseph E . Cote d/b/a.
J. E. Cote and sells goods of a dollar volume of between $1,000 and $1,500 weekly
to purchasers outside of the State of New Hampshire. I conclude and find that
both Joseph E. Cote d/b/a J. E. Cote and Brook Farm Foods, Inc., are engaged
In commerce within the meaning of the Act. Edouard Cote is the brother of
Joseph E. Cote. He worked for him from 1934 to 1939 and from 1941 to 1943.
In 1945 he returned to the employ of Joseph E. Cote, for whom he was manager
until at least August 31, 1951. On April 24, 1951, Edouard Cote became presi-
dent and treasurer of Brook Farm Foods, Inc. For reasons appearing in a later
section of this Report, I conclude and find that Edouard Cote, as an individual
has not been shown to have been in business , or in commerce within the meaning
of the Act at any time material to the issues in this case.
II. THE ORGANIZATION INVOLVED
Bakery & Sales Drivers & Helpers Local Union No. 686, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, A. F. of L.,
is a ldbor organization within the meaning of the Act and it admits to member-
ship employees of the Respondent, Joseph E. Cote d/b/a J. E. Cote and Brook
Farm Foods, Inc.
III. THE UNFAIR LABOR PRACTICES
A. Background of events and general issues
In April 1951, J. E. Cote employed nine driver-salesmen , John Shea, George
Thibodean , Donat Cantin, William Caron and William Martell , all mentioned in
the complaint, and Paul Balduc, Paul Godbout, Roger Petit and Vaughan Jones.
He also employed Edouard Cote as manager, James Walsh (admitted to be a
supervisor at that time) as foreman, Norman LeBlanc as mechanic and ware-
houseman and Rita Cote Balduc as bookkeeper. As appears above, Edouard
Cote is Joseph's brother. Paul Balduc Is Joseph E. Cote's son-in-law and Rita
Cote Balduc is his daughter.
Shea and Thibodeaa had been members of the Union before 1951. On April
2, 1951, they, with Cantin and Martell , met at Caron's home where all five
signed union membership application cards. Shea delivered the cards to Emmett
E. Cudahy, the Union's business agent, on April 3,1951. On the same day, Cudahy
wrote Joseph E. Cote that the Union represented his driver-salesmen. On
April 6, Cudahy enclosed a copy of a proposed agreement with a letter to Joseph
E. Cote requesting a reply concerning when and where negotiations thereon
would commence. On April 8 Cudahy received a telephone call from Edouard
Cote, following which a meeting between Edouard Cote and Cudahy took place on
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 9, 1951. Edouard Cote stated he was acting for Joseph E. Cote. As a
result of this meeting, an agreement for a consent election was entered into
between Joseph E. Cote and the Union on April 13. At the election held on
April 26, 1951, at which Shea was observer for the Union, and Attorney Maurice
A. Broderick represented Joseph E. Cote, nine votes were cast, five in favor of,
and four against the Union. On May 8, 1951, the Board in Case No. 1-RC-2181,
certified the Union as the exclusive collective bargaining representative of all
employees in a unit, which it found to be appropriate, consisting of all driver-
salesmen at the Manchester, New Hampshire, plant of Joseph E. Cote d/b/a
J. E. Cote, excluding warehousemen, garage and maintenance employees, office
and clerical employees, professional employees, and all supervisors as defined
in Section 2 (11) of the Act, as amended.
Between April 26, the date of the election, and May 8, the date of the
Board's certification, Cudahy wrote Joseph E. Cote two letters, one on April 28
and the other on May 5, requesting that a date be set for bargaining negotia-
tions. No reply was received from Joseph E. Cote. On May 8, Attorney
Broderick of Manchester, New Hampshire, and Attorney Raymond C. Leahy of
Nashua, New Hampshire, both replied to Cudahy's letter of May 5. A meeting
set for May 18 was held at Joseph Cote's plant and was attended by Attorneys
Leahy and Broderick and Edouard Cote representing Joseph E. Cote d/b/a
J. E. Cote, and by Cudahy representing the Union. The parties proceeded to go
through the articles contained in the Union's proposal which had been submitted
a month and a half earlier. Edouard Cote objected to the union-shop clause
(Article I, b and c), referring to its effect upon employees who were not then
members of the Union. No agreement was reached at this session. Six to eight
meetings were held between May 1S and a date prior to July 13 on which day
Respondent Joseph E. Cote's attorney, Mr. Leahy, sent the Union a draft of a
proposed agreement. On May 18 Edouard Cote had indicated that he knew who
were and who were not members of the Union and at a subsequent meeting specifi-
cally named Shea, Thibodeau, Cantin, Caron, and Martell as being the union mem-
bers. By June 25, 1951, the parties had made considerable progress toward
coming to an understanding, but had not arrived at a complete agreement, al-
though Cote had apparently agreed to accept the union-shop clause.
On or about June 26, all of the nine driver-salesmen received a similar letter
dated June 25, 1951, from Joseph E. Cote. This letter stated Cote had been
attempting to negotiate a contract with the Union and had offered to increase
the commission on sales from 7 percent to 71/2 percent but that the Union had
declined the offer and was demanding a 10-percent commission or a guarantee of
$30 a week plus an 8-percent commission ° and that it would be impossible to
meet the Union's demands. Following receipt of this letter, Shea, Thibodeau,
Cantin, Caron, and Martell conferred with Cudahy. As a result of this con-
ference, Cudahy notified Attorney Leahy that the Union had decided to accept
the terms of payment as set forth in the letter of June 25, stating that since such
terms were the only portion of the proposal that had not hitherto been agreed
upon, negotiations should be considered concluded. Leahy agreed that such would
seem to be a fair assumption and that he would proceed to draft a contract
embodying the complete terms of the verbal understandings.
On July 14, Cudahy received from Leahy a copy of the agreement referred to
above. The stated effective date was May 24, 1951. This agreement contained
a union-shop clause and differed from the Union's original proposal of April 6,
3 The Union's original proposal of April 6, 1951, called for the payment of a 12-percent
commission on the sales of potato chips and of an 8-percent commission on the sales of all
other merchandise.
J. E. COTE 1497
1951, only in that It provided 60 rather than 30 days after employment within
which employees shall become members of the Union and for the payment of a
commission of 71/2 percent on all sales (except oleomargarine) rather than 12
percent on potato chips and 8 percent on all other merchandise, as originally
requested. Cudahy noticed that the agreement contained errors in setting forth
the first anniversay date as May 24, 1951, rather than May 24, 1952, and the
month of signature (as it was not received until July 14) as June 1951 rather
than July 1951. About July 18 Cudahy pointed out these errors to Leahy whom
he met in a Manchester hotel. Leahy who had a copy of the agreement in his
possession stated he was not returning to his office in Nashua for 2 or 3 days
and requested Cudahy to take the copy back to Leahy's office and ask his secre-
tary to type, for signature, six copies including the two changes in dates pointed
out by Cudahy. The latter complied with Leahy's request.
Nothing further having been heard from Leahy or any of Joseph E. Cote's
representatives, Cudahy telephoned Leahy the latter part of July or early part
of August that the Union had not received the signed contract. Leahy stated
he was at a loss to understand the delay inasmuch as he had forwarded the
copies to Joseph E. Cote's Manchester attorney, Mr. Broderick. Cudahy waited
several more days and then telephoned Broderick on August 13. Broderick said
he would have the signed contract very shortly and the same day wrote Cudahy
that Joseph E. Cote was out of town,' was expected to return in 10 days at which
time it was expected that the signed contracts would be "available."
Fourteen days later, on August 27, Cudahy telephoned Edouard Cote, who
said Joseph E. Cote had been out of town. Cudahy said the delay had been
rather prolonged and that he wanted to meet Edouard Cote on August 29 for
the express purpose of bringing the matter to a conclusion. Cudahy and
Edouard Cote met at the Joseph E. Cote's premises on Wednesday the 29th.
Edouard said Joseph was expected to return to Boston for a physical examina-
tion on Friday, August 31, and that he would attempt to have the contract
signed very shortly.' Cudahy intimated that because of the continued excuses
and delays that had been offered in lieu of the signed agreement, a strike
would be called unless the Union received the signed agreement before the
beginning of business on Tuesday, September 4, 1951. Edouard Cote then said
that if he had any difficulty in getting the agreement signed on Saturday,
September 1, he could probably get it Sunday , September 2, and agreed to deliver
the signed agreement to Cudahy' s home no later than the evening of Labor Day,
Monday, September 3.
On Friday, August 31, 1951, Joseph E. Cote wrote all of his driver-salesmen
the following letter:
This is to advise you that due to personal reasons I have decided io
liquidate my business immediately.
If you will call at my office on Tuesday morning, September 4, 1951, Mr.
Edouard Cote will explain the situation to you and give you your pay check.
Cudahy and the nine driver-salesmen appeared at Joseph E. Cote's office at
7 a. m., September 4. After some delay awaiting the arrival of Attorney
Broderick and an ensuing private conference between Edouard Cote and
Broderick, Edouard Cote, upon the suggestion of Cudahy that the men were
• As will later develop, Joseph E . Cote apparently did not leave Manchester on a trip of
approximately 12 days' duration until about August 19.
P At this meeting, Edouard Cote informed Cudahy that he had in his possession the
union application cards and Initiation fees of the driver -salesmen who up to about that
time had not become members of the Union.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present for the purpose of hearing an explanation , stated that Joseph E. Cote
had terminated his affairs as of August 31 and that he, Edouard, as Brook
Farm Foods, Inc., had taken over the business. He stated it was intended to
sell the routes to the individual driver-salesmen and that he was prepared
to make the offers of sale first to those people who were employees of Joseph E.
Cote. Edouard Cote gave each driver-salesman a slip of paper on which was
stated the price Joseph E. Cote wanted from each to purchase his particular
route. After an extended discussion the meeting was concluded with the under-
standing that on the following Friday, September 7, 1951, the driver-salesmen
would give their answers to the offer to sell the routes.
Cudahy stated the only thing with which the Union was concerned was the
signing of the contract which had already been agreed upon. Edouard Cote said
under the circumstances he saw no need for it and that he would not negotiate
with the Union.
The meeting of September 7 was attended by the same persons who had
been present on September 4. Many questions were asked of Edouard Cote
and Broderick respecting such matters as Joseph E. Cote being able to sell
anything if he had gone out of business on August 31, 1951, to sell a franchise
he did not possess and territory he did not have and Brook Farm Foods, Inc.'s
ability or willingness to guarantee route purchasers permanent and exclusive
selling rights.
Edouard Cote stated Brook Farm Foods, Inc., had purchased warehousing
and merchandise from Joseph E. Cote but had not bought and did not intend
to buy the trucks or acquire the ownership of the existing routes. When it was
suggested that the routes might be bought from whomever, if anyone, who owned
them, by a number of the driver-salesmen jointly, Cote stated he did not want
to sell to any combination of salesmen because he desired to avoid any possi-
bility of any combination acting in concert contrary to his interest and that he
proposed to retain control' over the persons who might buy, for the purpose
of determining whether they maintained a volume of business satisfactory to
him. A main point of discussion was what form and content of bill of sale or
contract Cote was prepared to submit to prospective purchasers. Cudahy and
the employees were unable to obtain any information on this point. Before
the gathering broke up, Cudahy stated that the employees were thoroughly dis-
satisfied with what they understood to be Edouard's proposal to sell property
which he maintained belonged to Joseph E. Cote and to retain the right of Brook
Farm Foods, Inc., to exercise supervision and that since the whole situation was
completely unclear they were not interested in buying.
Edouard Cote stated that business would resume on the following Monday.
September 10, that he would attempt to sell the routes right away and claimed
that one employee whose name he did not mention, had already bought a route.'
Cudahy, following arrangements made on September 7, telephoned Edouard
Cote on September 10. Cote stated that he was resuming operations and had
temporary employment, until such time as he could find route purchasers, for
Caron and Cantin, two of the five employees who had joined the Union on
April 2, 1951. Cudahy discussed this with Caron and Cantin. They decided
they did not want to accept temporary work under these conditions or unless
Although it is unnecessary to consider the point here, it is unlikely that had the sale
of the routes been effected , the purchasers would have been other than Brook Farm Foods,
Inc's employees Nat-Car Carriers, Inc., 88 NLRB 75, affd. 189 F. 2d 756 (C A. 3), cert.
den. 342 U S. 919.
'Actually none of the routes have been sold. It appears that "as of now" Brook
Farm Foods, Inc., has various routes run through driver- salesmen.
J. E. COTE 1499
all five of the original union members were reinstated . The "old " driver-salesmen
who worked starting September 10, were Balduc , who is Joseph B. Cote's son-
In-law , Godbout, Petit (who was no longer there the following week), and
Jones as well as Walsh whose former status had been that of foreman . During
the following week , Earl Stone and Andy Pichette were employed . L. Pelletier
went to work as a driver- salesman about September 21, 1951, and Joseph 'R
Cote's son, Robert Cote, was employed in the same capacity before October 4.
Balduc, Godbout, Petit, Jones, Walsh, Stone , Pichette , Pelletier, and Robert Cote
either had not applied for union membership until after J. E. Cote's representa-
tives had agreed to a union shop or were not members of the Union at the time
of the-heating and bad not been members during the year 1951.
B. Specific issues
1. Relationship between Respondents
It is apparent that all the main issues must be appraised in, and that a pur-
chase upon their resolution may be supplied by, a consideration of the setting of
Joseph E . Cote 's announcement of August 31, 1951 , that he was discontinuing
business and Edouard Cote's announcement of September 4, 1951, that a corpo-
ration had been formed, had taken over Joseph E. Cote's business, and was to be
run as a brokerage through routes, merchandise, trucks, and equipment to he
sold to individuals. That these events occurred is not questioned. Only the
reasons for the action taken are in dispute. Determination of the actual reasons
will be the first object of this section.
The General Counsel takes the position in brief, that Joseph E. Cote discon-
tinued doing business under his own name and thereafter did business under a
new name to avoid his legal obligations to deal with the Union. Counsel for
Respondents claims that Respondent Joseph E. Cote's decision to go out of busi-
ness was induced by his poor health and his belief that a distributorship could
not be effectively conducted through the direct employment of salesmen and
that there is no evidence that his discontinuing business and discharging his
salesmen was in any way related to unfair labor practices, that there is no evi-
dence that Respondent Edouard Cote ever conducted business on his own ac-
count and that Respondent Brook Farm Foods, Inc., is in no adequate sense of
the word a successor of Joseph E. Cote and has not engaged in any unfair labor
practices but, to the contrary, by virtue of offering on September 7, 1951, two
jobs to union members starting September 10, 1951, and of putting to work two
union members during the hearing , has affirmatively manifested a lack of hos-
tility to the Union.
The specific issues to be decided as to Respondent Joseph E. Cote are whether
he refused to deal with the Union, and was guilty of the discriminatory dis-
charges and engaged in the forms of coercion alleged in the complaint ; also, as
to either Edouard Cote and Respondent Brook Farm Foods, Inc., or both,
whether he or it were more than Joseph E. Cote's mask and cloak, whether the
Union represented a majority of his or its employees , which in turn depends
upon whether he or it had any existence independently of Joseph E. Cote, or
were mere covers for Joseph E. Cote ; and if he or it, or both, as pawns and tools
of Joseph E. Cote, were guilty of violations of the Act in discriminatorily re-
fusing to reinstate former employees.
Within no more than a week after Joseph E. Cote received the Union's letter
of April 3 , 1951 , requesting recognition as bargaining agent for his driver -sales-
men, his brother and manager Edouard Cote , consulted Attorney Maurice A.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Broderick of Manchester, requesting him to form a corporation for the purpose
of buying and selling food products and specialties and doing all things inci-
dental to the same. On April 11, 1951, the secretary of state of New Hampshire
issued a certificate of incorporation to Merrimack Valley Products, Inc., with a
capital stock consisting of 100 shares of no par value. The incorporators were
Attorney Broderick, elected clerk, his wife, Natalie A. Broderick, elected presi-
dent, and his secretary, Elizabeth G. Mahoney, elected treasurer. Broderick
received 8 shares of stock in payment of legal services and Natalie A. Brod-
erick and Elizabeth G. Mahoney received 1 share each. On April 24, 1951, 2 days
before the representation election, it was voted to change the name of the cor-
poration to Brook Farm Foods, Inc., and Edouard Cote, Joseph E. Cote's brother
and manager, to whom the 90 shares of stock not previously issued were trans-
ferred, was elected president and treasurer. Dora G. Cote, Edouard Cote's
wife, and Paul Balduc, a driver-salesman employee and son-in-law of Joseph E.
Cote, and husband of Rita Cote Balduc, a daughter and office employee of Joseph
E. Cote, became directors of Brook Farm Foods, Inc. The corporation had no
employees until August 1, 1951. On that date Paul and Rita Balduc were em-
ployed part time although they continued to work for Joseph B. ,Cote. Vaughan
Jones, who had been employed by Joseph E. Cote, entered the employment of
Brook Farm Foods, Inc., on August 1, 1951, as a driver-salesman on the chain-
store route but continued to use a motor vehicle owned by Joseph E. Cote, for
the purpose of making deliveries of merchandise. On August 1 or the follow-
ing week, Gloria Cote, another daughter of Joseph E. Cote, came in to work as
assistant to Rita Balduc.
On May 1, 1951, Brook Farm Foods, Inc., established a bank account in the
Amoskeag National Bank. The first withdrawal was made on May 9, 1951, in
payment for merchandise to Wise Potato Chip Company, a concern with whom
Joseph E. Cote for a number of years had been transacting by far the greatest
amount of business among any of the approximately 50 firms with which he had
been dealing. After April 24, 1951, Joseph E. Cote had informed Wise Potato
Chip Company that Edouard Cote had formed a corporation and requested that
Wise turn the account over to the corporation. Neither Joseph E. Cote nor
Brooks Farm Foods, Inc., had a written contract with Wise or any of the other
concerns with which he or it did business, for the general purchase of merchandise.
Joseph E. Cote and Wise did have a written "central billing agreement" with
respect to the distribution of goods to and business transactions between Joseph.
E. Cote and chain stores only. On June 4, 1951, Wise cancelled this agreement
with Joseph E. Cote and se,:'. vnnther like contract to Brook Farm Foods, Inc.,
for execution.'
In May or June, Brook Farm Foods, Inc., took over the accounts of 2 other
concerns that had previously done business with Joseph E. Cote : to wit,
Lummis and Co., and New England Pretzel Company. After August 31, 1951,
Brook Farm Foods, Inc., started buying merchandise from approximately 20
companies which had previously sold goods to Joseph E. Cote. Edouard Cote
testified that between the 20th and the end of May 1951, he gave Joseph E. Cote
8 It is unclear when Wise Potato Chip Company first consigned and billed goods to the
corporation. Whether the corporation's payment to Wise on May 9 was for merchandise
sent on its account or that of Joseph E. Cote, is also uncertain. In view of the fact that
Wise on June 4, 1951, notified Joseph E. Cote his dealer contract (central billing agree-
ment) had automatically become void and requested Brook Farm Foods, Inc., to execute a
new one, it is a reasonable assumption that the actual transfer of this account from
Joseph E Cote to Brook Farm Foods, Inc., took place nearer June 4 than May 9.
a ndte in the sum of $50,000' for the privilege of selling Wise Potato Chips,
Lummis and Co., and New England Pretzel Company's products, as Brook Farm
Foods, Inc.
It further appears from Edouard Cote's testimony, that from sometime in
May until the end of August, Brook Farm Foods, Inc., as a broker, sold the Wise,
Lummis, and New England Pretzel products to Joseph E. Cote, who in turn
then sold and distributed this merchandise to customers through his nine driver-
salesmen . For the purpose of delivery to chain stores in August, Brook Farm'
Foods, Inc., utilized a 1950 Ford Van Truck, owned by Joseph E. Cote, on which
the legend was changed to read "Brook Farm Foods, Inc." On September 7,
1951, by a bill of sale signed in his behalf by Joseph E. Cote's daughter and his
and Brook Farm Foods, Inc.'s bookkeeper, Rita Balduc, acting under a power-
of-attorney, Joseph E. Cote conditionally transferred to Brook Farm Foods, Inc.,
the truck which it had been using since August 1, eight other trucks and all his
stock on hand, furniture, fixtures, and equipment. In payment, Brook Farm
Foods, Inc., gave Joseph E. Cote a noninterest bearing time note and one non-
interests bearing demand note, both dated September 4, 1951, and a noninterest
bearing demand note, dated September 7, 1951.10
Beginning September 10, 1951, Brook Farm Foods, Inc., operated its business
with the same bookkeeper, Joseph E. Cote's daughter, the same mechanic ware-
houseman, and five of the same driver-salesmen (including Walsh who had been
Joseph E. Cote's foreman and Baldue, his son-in-law), as those who had worked
for Joseph E. Cote. It has utilized the services of the same accountant. As
we have seen, within a short time after September 10, it employed four additional
driver-salesmen, including a son of Joseph E. Cote, who had not previously
worked for Joseph E. Cote and before September had employed a second daughter
of Joseph E. Cote as assistant bookkeeper. Thereafter, nine driver-salesmen
on the payroll of Brook Farm Foods, Inc., covered the same routes in the same
manner as those which had been run by, and were paid on the same basis as, the
nine driver-salesmen employees who previously had been on the payroll of
Joseph E. Cote. From September 1951 until at least December 24, 1951, the only
difference in the mode of operation has been in the matter of personnel, the five
union members , Shea, Thibodeau, Cantin, Caron, and Martell, not having been
on the payroll, and the position of foreman having been discontinued.
The corporation used the same trucks and office equipment and occupied the
same premises (owned by Joseph E. Cote to whom Edouard Cote testified the
corporation, as a tenant-at-will, paid rental beginning May 1), as those used
and occupied by Joseph E. Cote. Up to 7 days after the commencement of the
hearing, two signs marked "J. E. Cote" and four signs marked "Private Parking,
Customers Only, J. E. Cote, Owner" remained posted on or near the premises.
The corporate respondent has purchased merchandise from substantially the
same dealers and has sold it to substantially the same purchasers, as had Joseph
E. Cote. Neither the driver-salesmen nor the Union were informed prior to
September 4, 1951, that a corporation had been formed, that a change in the
manner of handling goods acquired from Wise, Lummis, and New England
Pretzel had been made, that a sale of the business was being contemplated," or
'This note, stated by counsel to be in Joseph E. Cote's possession , was neither called
for nor offered in evidence.
70 It does not appear whether any payment has been made on any of these three notes or
the $50,000 note said to have been given late in May. The one September note calling for
payment on a certain date was not due until January 1, 1952, 4 days after the hearing
closed.
11 It is true that Joseph E. Cote testified he had not reached this decision until August 30.
15Q DECISIONS OF NATIONAL -L*BOR- RELATIONS BOARD
that a change from a distributorship to a brokerage was being considered."
Recapitulating , Brook Farm Foods, Inc., has Edouard Cote, Joseph E. Cote's
brother and the manager of his business , as its active president and treasurer
and employs Balduc, Joseph E . Cote's son-in-law, who became a director of the
corporation, his daughter, Rita Balduc, who holds his power of attorney, a
second daughter, Gloria Cote, and a son , Robert Cote. Of the 13 persons working
in the business , 5 including E, douard are closely related to Joseph E. Cake and his
sister-in-law is vice president of the corporation. Since August, Joseph E. Cote
has spent 12 to 16 hours a week at his premises occupied by Brook Farm Foods,
Inc., engaged chiefly in doing repair work and occasionally relieving his
daughters at noon and making sales.
As will later appear, both Joseph E. Cote, despite the bargaining that led
shortly after June 25, 1951, to a final agreement , which thereafter he failed to
sign , and Edouard Cote showed hostility to the Union and engaged in coercive
conduct directed toward discharging union membership, representation, and
activities.
In the face of this multitude of more than suggestively incriminatory facts
and circumstances, surely the Cote brothers are required to establish with the
utmost cogency any other conclusion than that Joseph E. Cote had discriminated
against and coerced his employees as charged and had refused to bargain with
the Union by refusing to sign a contract agreed upon between the Union and his
representatives and that, by discontinuing business and the organization of
Brooks Farm Foods, Inc., as a cover for the continuance or revival of his
operations, both Joseph E. Cote and Brook Farm Foods, Inc., his pawn or tool,,
have each been guilty of violations of the Act by refusing to reinstate former
employees in positions substantially equivalent to those they had held on and
before August 31, 1951.13
In an attempt to meet, control, and rebut the evidence and contentions of the
General Counsel, Respondents offered testimony, inter aria, of Joseph E. Cote's
illness, of advice given to him before the advent of the Union to discontinue the
use of salesmen and trucks, of an offer of employment to two of the five union
members made by Brook Farm Foods, Inc., on September 4, 1951, and of the
offer of employment made by Brook Farm Foods, Inc., during the hearing on
December 20, 1951, to two union members and their acceptance of the offer on
December 24, 1951, and evidence in denial of allegedly coercive statements and
conduct testified to by employees, and contend that in no way was the conduct
of either Respondent motivated by a desire to avoid any responsibilities of the Act.
Joseph E. Cote testified that in 1949 he was troubled with pyorrhea, that certain
of his teeth were removed, that his health improved thereafter, that he became
nervous and was examined by Dr. David W. Parker in July or August 1951, that
he went to see a friend in Cape May, New Jersey, the Saturday or Sunday before
August 22 or 2314 for 2 or 3 days, then went to Philadelphia for a few days
following which he traveled by train to Chicago and attended the National Food
Distributors Convention from August 22 to 25, that he returned by plane to Boston
where he visited friends and on the recommendation of one of them, went to
Dr. Sandler 16 of Cambridge, Massachusetts, for a physical examination. He
further testified that he returned to Nashua and Manchester August 31, having
decided the night before that he "could not take it anymore" and to quit business.
11 On April 16 Martell asked Edouard Cote if he was thinking of selling the route and
was told at the time that the route was not for sale.
13 N L R B. v. E. C Brown Co., 184 F. 2d 829 (C. A. 2).
14 This places the date of his departure as August 1S or 19, 5 or 6 days after Broderick
wrote Cudahy Cote was out of town.
u Dr. Sandler was not a witness.
J. E. CUE 1503
1 Dr. David W. Parker, long a general practitioner , testified that he first exam-
It ed Cbte on June 19, 1951. He received a history of Cote having been ill in 1948
after an extraction of all his teeth and of his getting progressively better until the
spring of 1951, until he began to have business troubles and worries. He made
a diagnosis of nervous instabil}ty. He prescribed a mild sedative and advised
the patient to get away from things for a month. He examined Cote again on
August 2 , finding nothing particularly wrong with him physically but learned
for concluded ) that he had been overworking. His diagnosis was that the patient
was run-down nervously and advised his getting away from business and resting
for at least a month. On August 2, Dr. Parker gave Cote a letter, addressed
"To Whom It May Concern," containing substantially the above recitation.
On December 13, 1951, Attorney Broderick brought Cote to Dr. Parker's house.
The doctor found the patient "not too good, pretty jittery," he acted "all shot,
all jittery," and thought he should take an indefinite period off.
Dr. Simon Stone, a neuro-psychiatrist, testified that he examined Joseph D.
Cote on December 20. 1951, and made a diagnosis of "anxiety state" which In
his opinion had probably preexisted for a number of years and that he thought
the patient was able to perform manual work. Neither physician expressed an
opinion (other than Dr. Parker's opinion in August, that Cote should get away
from business for at least a month and in December that he thought he should
take an indefinite period off) with respect to Cote's ultimate ability permanently
to continue to carry on the responsibilities of his business, nor ventured a long-
range prognosis.
Roland St. Onge, an accountant, testified that Joseph E. Cote's profits in 1948
were 1.9 percent of net sales, in 1949 were 2.3 percent of net sales and in 1950
were 2.6 percent of net sales ; that he Informed Cote the percentage of profit
for the type of business he was engaged in should be from 3.6 percent to 4
percent,'" that he felt Cote's failure to make more money was, possibly due to
three or four factors including the cost of operating trucks and that he advised
him usually in January or February following a given year of operation, to
change his method of doing business. Joseph E. Cote testified he had planned
to, do something about St. Onge 's suggestion but kept putting it off, that he had
never had any labor trouble until the Union's letter of April 4 came In, that he
had talked with Attorney Broderick in 1950 about making "an estate out of the
mill" but that there was always something that would come up so it was post-
poned and postponed until he and Edouard made up their minds when Brook Farm
Foods, Inc., was formed on April 11 that he was going to get rid of half his
business.
During the course of the hearing , on December 19 and 20, 1951 , counsel for
Respondents offered Shea and Cantin 1' employment by Brook Farm Foods, Inc.,
on the same routes on which they formerly worked for Joseph E. Cote at the same
rate of pay or compensation and under the same physical conditions of employ-
ment as was the case when they were employed by Joseph E. Cote. Shea and
Cantin went to work on December 24,1951.
2. Interference, coercion , and restraint
Within a week of the day driver-salesman William E. Martell signed the union
application card, Joseph E. Cote called him into his office, asked him if he
knew what was going on, told him that the men had decided to organize a
14 St. Onge first testified this percentage should be 3 to 6 percent and later changed his
testimony to state 3 6 to 4 percent.
17 The offer of temporary employment made to Caron and Cantin on September 4, 1951,
is referred to in Section III, A, of this Report.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union and that they were not satisfied with the way things were going on and
asked him if he realized what he was doing . Martell professed not to understand
what Cote was talking about . Then Cote said that Martell had a wife and
family and should not get mixed up in anything of this sort and asked him if he
could not use $300. Martell replied that he could, and Joseph E. Cote stated he
would place the money in his hand that night if Martell were interested and
would stick by him. Martell answered he was not quite sure what Cote meant
but regardless of anything there wasn't quite enough money around to,pay him
to do something he did not think was right. Ten or fifteen minutes before the
representation election held on April 26, 1951, Joseph E. Cote asked Martell what
he was going to do in regard to the election and asked Martell if he could depend
on him. When Martell made an evasive reply, Cote told him to remember that
]le had a wife and family, that they had always gotten along, and stated that
he did not intend to give up 40 or 50 thousand dollars, that he was an old farmer
and "they" have not got him cornered yet''
Shortly after April 2, 1951, driver- salesman Donat Cantin (to whom, we have
seen, a temporary position was offered September 4, 1951, and to whom employ-
ment was offered by Brook Farm Foods, Inc., on December 19 and 20, 1951, and
who went to work for Brook Farm Foods, Inc., on December 24, 1951) was driven
to his home by Edouard Cote and the two men engaged in conversation in Cote's
automobile parked in front of Cantin's house. Cote asked Cantin if he were in
with the "boys." Cantin told him he was. Cote asked him what reason he had
to be sticking with that gang and told him he would amount to nothing with them,
that he could have a better route if he wanted it and that it could be arranged
so that he could purchase the house in which he lived, which Cantin had at one
time wanted to buy, if he would go against the "boys." Cote asked Cantin what
the price would be to break "this" up and told Cantin he was pretty sure he
knew who the "boys" were and that he would be taken care of if "this" were
broken up. The following morning Joseph E. Cote while in the warehouse told
Cantin he knew what had been said by Edouard Cote and Cantin the night before,
and before the election of April 26, 1951, while walking back and forth in the
driver's settlement room, Joseph E. Cote said he had never had a union in his
plant, never would have one, that he broke the union before and would break it
again.
In May or June 1951, Foreman James Walsh" (who on the basis of a stipu-
lation between the parties was agreed to have been a supervisor within the
meaning of the Act during April 1951 and whose duties, upon undisputed evidence,
were not changed between April, May, June, and July 1951, I find was a supervisor
within the meaning of the At in April, May, June, and July 1951), told Cantin
he was foolish to double-cross Joseph E. Cote.
One day during the week commencing April 2, 1951, Edouard Cote accompanied
driver-salesman George Thibodeau on his route. On this trip Cote told Thibodeau
he had heard some of the "boys" wanted to join the Union and asked him if he
had heard anything about it and why they wanted to join. Thibodeau replied
that they were dissatisfied with the way he let the supervisor (Walsh) handle
is Martell testified concerning a conversation he had with Edouard Cote about April 16,
1951. Although there is no denial that the conversation took place as stated by Martell,
the discussion respecting union matters was obviously provoked by Martell himself and it
is quite apparent that Martell's purpose was to "sound out" Cote. Under the circumstances,
in' arriving at any ultimate conclusion I shall not rely upon testimony of anything that
was said during this talk and accordingly, shall not express any opinion concerning the
question of whether what Edouard Cote did say on that occasion constituted interference.
restraint, or coercion.
as Walsh was not a witness.
J. E. COTE 1505
the men. Cote asked Thibodeau if he personally was dissatisfied and Thibodeau
stated his truck was in poor condition and the supervision was a part of his
dissatisfaction. Cote told Thibodeau he would get him another truck and that
if it would make any difference he would get rid of Walsh. Thibodeau told
Cote it would not. At the end of May , Foreman Walsh while riding on a truck
with Thibodeau, told the latter that after the favors Joseph E. Cote had done for
him, he was foolish to double-cross him and go against him. Shortly after June
25, 1951, Joseph E. Cote spoke to Thibodeau about the letter (previously referred
to in section III, A of this Report) he had sent to all the driver-salesmen, and
told Thibodeau he thought he was the only one to turn the men over and to get
them to agree to his terms and asked him to see if he could not get the "boys"
to agree to the letter. Thibodeau contacted all of the other four union members
and had a meeting with them and Cudahy. At this meeting it was agreed to
accept the terms of the letter, and Thibodeau reported the result to Joseph E.
Cote. Cote said he would not forget such a favor.
The same week that driver-salesman Armand P. Caron (who had gone to work
for Joseph E. Cote in 1946 and to whom temporary employment was offered on
September 4, 1951) signed his union membership application card at a meeting
held at his home, Edouard Cote called Caron to the further end of the warehouse,
where he stated he understood some of the "boys" were joining the Union and
asked him if he knew anything about it. Caron claimed that he did not. To
Cote's assertion he understood he was going to join, Caron gave an equivocal
answer. Cote went on to say that he did not think anyone would benefit by
joining, that if they did, things could be made miserable for them and none of
them would be happy at their work. As Caron was walking away, Edouard
Cote said to him that if the Union should come in, he would make it so miserable
for some of the driver-salesmen that they would be sorry. During the same week
Joseph E. Cote also talked to Caron, whom he called into his automobile which
was standing outside a restaurant in Franklin, New Hampshire. He asked
Caron his reasons for joining the Union and stated he had been thinking of
giving him a job as foreman, said that if the reason for the men joining the
Union was their dissatisfaction with Foreman Walsh, Walsh would be fired
that night and asked Caron if he would consider any offers. Caron's route,
which comprised a northern area, covered a number of summer resorts. During
summer seasons prior to 1951 he had stayed out in his territory on Thursday
and Friday nights to take care of the additional business . In June 1951, one
of the Cotes ordered Caron to discontinue staying out on Friday nights. This
made it necessary for him to return to Manchester in the small hours of Saturday
after having worked till late Thursday nights and all day and evening on Fridays.
He informed either Joseph E. or Edouard Cote that complying with this order,
coupled with the fact that Foreman Walsh had just reduced his truck's speed
governor from 48 to 43 miles per hour, might make it impossible for him to service
all the customers and require him to turn back before he had completed all his
stops. He was told that if he did not complete his route somebody would be
found who would cover it. The contract orally agreed upon by the Union shortly
after June 25, 1951, and submitted to the Union in writing on behalf of Joseph
E. Cote by Attorney Leahy on July 13, 1951, provides that driver-salesmen shall
not be required to work more than 5 days in any 1 week but that those covering
beach routes," so-called, shall cover them at their option on Saturdays from May
¢G I take notice that Concord and Franklin and communities in New Hampshire to the
north thereof, are not lQcated on beaches. I also take notice that the district covered by
Caron in the environs of and to the north of Concord and Franklin is one of the most
frequented countryside and mountain summer resort areas in the United States.
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1 to September 15. Caron spoke to Cudahy who told him that due to the fact he
and Shea ran summer resort routes, it was permissible. for them to work Satur-
days . When Caron informed Edouard Cote of this, the latter stated that he,
not Cudahy, was running the show.
John E. Shea who went to work for Joseph E. Cote as a driver- salesman in
February 1949, signed his union application card on April 2, 1951, and delivered
the five cards that were signed that day to Cudahy' s home in Massachusetts. He
Was offered work by counsel for Respondents during the hearing on December
19 and 20, 1951, and entered Brook Farm Foods, Inc. 's employ on December 24,
1951. About April 4, 1951, Joseph E. Cote talked to him in the yard of the
Court Street Market in Exeter, New Hampshire, saying that a union in his shop
was going to spoil his reputation. When Shea replied that an election would
determine whether or not the employees were to be represented by a union, Cote
said that if Shea would assure him a vote at that time he would give him $250
cash in hand that night when he returned to the office. When Shea returned
to the shop that evening, Joseph E. Cote was engaged in conversation with two
representatives of Wise Potato Chip Company and Shea went home without
talking to him. Later that evening Foreman Walsh appeared at Shea's home
and invited him to "the fights." The two men went to a club and talked over
their beers. Walsh said he understood Shea had joined the Union, although
he did not know why and stated that Shea knew the promise Joseph E. Cote
had made him and that the promise still obtained. Walsh and Shea met again
at the same club about April 16, 1951. Walsh voiced his impressions of Caron
and Martell and Cantin and Thibodeau, and stated he would not trust two men
in Shea's "group," that he did not blame Cantin for joining the Union, that he
would not want Thibodeau on his side because he was a "switch-hitter," 21 that
Shea should think thoroughly before voting, and that if the Union should come in,
Edouard Cote would put on an additional fleet of trucks so that when Shea went
out on his route, he would carry just enough merchandise to make his minimum
earnings and that the other trucks would take over and finish the routes.
On the Friday night before the election of April 26, 1951, in the utility garage
where their trucks were kept, Joseph E. Cote told Shea that if the Union should
not win the next week he would give all the "boys" a substantial raise. On
April 24, 2 days before the election Edouard Cote met Shea in the First National
Store on Granite Street, Manchester, helped him fix up some gondolas, walked
out into the yard and stood by the door of Shea's truck, after he had entered
the cab, and told Shea that if the Union should win the election he would put on
more trucks so that the driver-salesmen would only make their minimum wage.
3. Discrimination
As irrefutably appears, Martell, Cantin, Thibodeau, Caron, and Shea were dis-
charged by Joseph E. Cote on August 31, 1951. After all five had declined
Edouard Cote's offer to buy routes on September 7, Cantin and Caron, who had
been told in substance that the routes were to be sold promptly, were offered
temporary jobs with Brook Farm Foods, Inc., until such time as the routes were
sold. Counsel for Respondents has urged that by these offers it cannot be found,
as alleged, that there was a failure and refusal to reinstate Cantin and Caron or,
in the alternate, liability, if any, for back pay, subsequent to the offer , should
be thereby cut off. The questions therefore arise whether these employees were
offered reinstatement to their former or substantially similar positions or
whether the offer was of such character as to constitute a relief of the, obliga-
21 The record (p. 365) Is corrected accordingly.
J. E. COTE 1507
tion to compensate Caron and Cantin for back pay subsequent to September 4,
1931 . This question must be answered In the negative . This is so because
Edonard Cote's limited offer to Joseph E. Cote's discharged employees of a tem-
porary job falls far short of having been such an unconditional offer to reinstate
them to their former or substantially equivalent positions as is contemplated by
the Act. Editorial "El Impartial," Inc., 92 NLRB 1795 , 1805 ; Quest-Shon Mark
Brassiere Co., Inc. , 80 NLRB 1149 , 1154, enf. 185 F . 2d 285 ( C. A. 2), cert den.
342 U. S. 812; N. L. R. B. v. Electric City Dyeing Co., 178 F. 2d 580, 983 (C. A. 3) ;
N. L. R. B. v. Van Deusen , 138 F. 2d 893, 895 ( C. A. 2) ; Stokely Foods , Inc., 91
NLRB 1267, affd., Stokely Goods , Inc. v. N. L. R. B., 193 F . 2d 736 (C. A. 5).
As it previously appears, Cantin and Shea, during the course of the hearing,
were offered and accepted employment under the same conditions as they had
worked for Joseph E . Cote. Caron was not offered employment at this time.
Both Joseph E. and Edonard Cote had knowledge of the fact that the alleged
live 8 (a) (3)'s were members of the Union and knew that one vote would
decide the election , With the possible exception of Foreman Walsh, these
five men were the most experienced of all the driver -salesmen in point of service.
The four less experienced employees who had not signed union authorization
cards until after the union -shop election , went to work as direct driver -salesmen
on the payroll of Brook Farm Foods , Inc., on September 10. After these four
returned , Edouard Cote offered temporary employment to two of the original
union members , pending such time as the routes remained unsold . They never
have been sold nor does it appear that any attempt was made to sell them since
September 8, 1551. Foreman Walsh was made a driver-salesman and Stone,
Pichette , Pelletier , and Robert Cote were newly hired as driver -salesmen taking
over jobs of Martell , Cantin , Thibodeau , Caron, and Shea.
4. The refusal to bargain
We have seen that Joseph E . Cote's authorized representatives came to terms
with the Union with respect to a bargaining agreement about June 25, 1951, and
that one of Respondents ' attorneys prepared the contract and another of their
attorneys submitted it to Joseph E. Cote or Edouard Cote for the former 's signa-
ture. It also appears that Joseph E . Cote was in Manchester "available" to at-
tend to his business until about August 19 , that he declined to sign the contract
during the period of nearly 2 months between the time it was prepared and the
time he went away to the convention and that he refused to sign it after his
zaturn to Manchester the last of August . It will be recalled that during the
time bargaining conferences were taking place , Joseph E . Cote requested one
of his employees to exert his efforts to induce the other members of the Union
to accept his terms.
It has been pointed out that on September 4, 1951 , Edouard Cote as president
of Brook Farm Foods, Inc., declined to bargain with the Union.
C. Concluding findings and ruling
1. Relationship between Respondents
It Is well recognized that an employer may lawfully discontinue , reduce,
or change his method of operation for any reason whatsoever , good or bad, sound
or unsound , in his sole discretion . and without censorship from the Board,
provided only that the employer 's action is not motivated by a purpose to inter-
fere with and to defeat his employees ' union activities . If the latter is the
true purpose, it is unlawful .` But many times the Board with frequent ap-
Pep8i-Cola Bottling Company of Montgomery , 72 NLRB 601.
242305-53-96
150,8 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
proval of the courts has held that successor corporations and other suc-
cessors have taken over the businesses for the purpose of enabling predecessors
"to evade dealing with the Union and to evade responsibility under the Act,"
N. L. R. B. v. Hopwood Retinning Co., 98 F. 2d 97, 100-101 (C. A. 2) where the
relationship between management was less close than that revealed in section
III, B, 1 of this Report u
The Act contemplates that the employing industry should be regulated and
brought within its corrective and remedial provisions. It is not the purpose of
the Act to enforce private remedies, and contrary to the contention of Respond-
ents, the remedies which the Board is authorized to prescribe in the furtherance
of public interest have little analogy to the common law remedies for the
collection of debts. N. L. R. B. v. Adel Clay Products Co., supra, 134 F. 2d 342.
Joseph E. and Edouard Cotes' opposition to and interference with union
activities which has been discussed in sections III, C, 2 and 3 and concerning
which concluding findings will be made in section III, C, 2 and 3, amply reveal
their desire to evade their responsibility of dealing with the Union. Suffice it
here to point out that before the election, employees were interrogated concerning
their union membership and activities, threatened with reprisal if the Union
prevailed and promised money if they would vote against the Union. While
this was going on, and unrevealed to the Union during the course of continuing
bargaining conferences, Merrimack Valley Products, Inc., was incorporated, 7
days after receipt of the Union's letter requesting recognition and collective
bargaining conferences. On April 24, when it must have become apparent that
the Cotes were satisfied that the five employees whom they knew were union
members were not succumbing to and not likely to yield to their entreaties,
promises of reward and threats of reprisal, and were going to vote for the
Union 2 days later, the name of the corporation and the constituency of its
officers were changed, thereby disclosing the purpose of Joseph E. Cote's relatives
to engage or work in the same business as he was conducting. Thereafter Joseph
E. Cote's authorized bargaining representatives and the Union, following Cote's
action in directly writing the employees on June 25, 1951, agreed upon a contract
which was to be effective as of May 24, 1951. However, Joseph E. Cote, although
he remained in Manchester until about August 19, failed to sign the contract
prepared by his counsel and which obviously was agreeable to Edouard Cote to
whom he had delegated authority to represent him and it was not until the day
after the Union had threatened a strike unless the contract was signed by
September 4, that, on his own testimony, Joseph E. Cote decided to cease
business, and it was not until September 4 that it was revealed to the employees
or the Union that Brook Farm Foods, Inc., had been organized the preceding April
during the height of union activities.
Joseph E. Cote, who I would say is no more than 50 years of age, had been
engaged in other business activities in addition to those connected with the
proprietorship of his food distribution enterprise before August 31 and has
continued to engage in other affairs, such as those connected with Turcotte's
23 See, for example, Alexander Milburn Company, 78 NLRB 747; Parkside Hotel, 74
NLRB S09: M. M. Joffee Company, et at., 74 NLRB 1568; Southport Petroleum Co. v. N L.
N. B., 315 U. S. 100, 106; N. L R. B. v. Hopwood Retinnznq Co., supra, 98 F. 2d 97, 100-
101 (C. A. 2) and 104 F. 2d 302, 303-304 (C. A. 2) ; N. L. R. B. v. O'Keefe cE Merritt, 178
F. 2d 445, 448-449 (C. A. 9) ; N. L. R. B. v. Hoppes Mfg Co., 170 F. 2d 962, 964 (C. A.
6) ; N. L. R. B. V. National Garment Co., 166 F. 2d 233 (C. A. 8), certiorari denied 334
U. S. 845; Union Drawn Steel Co. v. N. L. R. B., 109 F. 2d 587, 595 (C. A. 3) ;
N. L R B. v. Adel Clay Products Co., 134 F. 2d 342, 346 (C. A. 8) ; Butler Bros. v. N. L.
R. B., 134 F. 2d 981, 984-985 (C. A. 7), certiorari denied 320 U. S. 789; N. L R. B. v.,
Condenser Corp., 128 F. 2d 67, 71-72 (C. A. 3) ; N. L. R. B. v. Baldwin Locomotive Works,
128 F. 2d 39, 43-44 (C. A. 3) ; cf. Walling v. Reuter, 321 U. S. 671, 674.
J. E. COTE 1509
Market and his own garage, since September 4. It is apparent that in connection
-with the distributing business , he was frequently away from his office before
.September. For example, he was in Franklin, New Hampshire, on a day during
the week of Monday, April 2, where he talked to Caron ; in Exeter, New Hamp-
shire, about April 4, where he talked to Shea ; and in Chicago, Illinois, from
August 22 to 25 where he attended the National Food Distributors Convention.
There is evidence from Dr. Stone and Joseph E. Cote that Cote is a farmer in
Bedford, New Hampshire, but the record does not disclose how much, if any, of his
time, either before or after August 1951, Cote devoted to the farm or how many
more, if any, hours than 12 to 16 which he admitted he had spent weekly at the
plant since September 10, 1951, he was occupied at the plant before that date.
Cote's mid-summer trip of approximately 12 days' duration, to New Jersey,
Pennsylvania, and Illinois does not suggested the type of vacation or relaxation
that might normally be expected of a person exhausted to the point of retirement
by business worries and troubles. Neither physician who testified in his behalf
expressed the opinion that Cote was so completely incapacitated. As I observed
Cote during the several days of the hearing and listened to the physicians'
testimony, I agree with Dr. Stone that Cote is not disabled for physical work.
Although while in the hearing room he presented the aspect of an Ibsen in one
of his gloomier moods, I do not feel that Joseph E. Cote suffers from lack of
mental capacity or any marked degree of being run down nervously or of
anxiety state. It is a fair inference from the facts related by his employees
concerning his statements, threats, and warnings to them, and his failure to
sign the contract agreed to by his bargaining representatives, that he was
indeed mentally agitated by the turn of union events, but it cannot be said a
perturbation of spirit or unwillingness to "take it any longer," thus engendered,
constitutes either proof that a person did not participate in transferring the
identity of his business for the purpose of avoiding dealing with a union, or a
legal justification for such conduct. I am satisfied that Cote has attempted to
exaggerate2' the state of his health as a factor in bringing about the purported
liquidation of his affairs.
A second reason, and one not entirely consistent with the first, which it is
apparently contended caused Joseph E Cote to make his alleged decision to
go out of business is that he had been advised and had felt for some time that
a brokerage dealing with distributors would be more profitable than a direct
distributorship which entailed the heavy expense of operating trucks. He
testified he had been thinking about making a change from a distributorship to
a brokerage for a considerable period but had not taken any final action. In the
21 Cote's first visit to Dr . Parker was made after the Union had written him two letters
urging a rapid conclusion of negotiations and his subsequent visits to physicians were made
after his representatives had agreed upon a contract with the Union . It is quite apparent
they were made for the purpose of examination rather than for treatment . He would
have it believed his purpose in collecting certificates from the doctors was to enable him
to prove to his brother that he was not able to carry his full share of the load. It is
difficult for me to believe, assuming , as he testified , that Edouard Cote was merely a
salaried manager of, and had no other interest in, his business, that Joseph E Cote would
feel called upon to explain his reasons , or apologize to his employee , for not working
harder, that his brother would not take his employer's word or indeed why Joseph felt it
essential to procure, for purposes of persuasion, not one, but three or four certificates
Testimony of this sort only tends to lead to the belief that Edouard was more closely
connected with Joseph's business and Joseph more intimately identified with Brook Farm
Foods, Inc.. than either would admit. In any event, I feel that these certificates were
obtained not for the reason claimed but , first in anticipation of the possible eventuality
of unfair labor practice charges and later, after the charge was filed, and still again after
the complaint was served, for the purpose of endeavoring to establish a plausible defense
to the Union 's and General Counsel 's contentions.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meantime the profits of his business increased from year to year. The short
answer , however, to this contention is that Joseph E. Cote, in his own name, at
least , did not make this change. Rather does he claim that he went out of
business, entirely. Whether he did attempt to make the change in the name of
Brook Farm Foods, Inc., in the hope, unfulfilled up to the present, that as an
undisclosed party at interest or principal in the corporation, he could do business
as a broker, need not here be separately decided.
The coincidence of the formation of the corporation with the union activity,
the precise timing of Joseph E. Cote's ostensible decision to go out of business
with the threatened work stoppage, the testimony of a number of witnesses con-
cerning the threatening and coercive statements made to them, the precipitate
manner of the discharges, the close family control of the corporation now em-
ploying all but three of Joseph E. Cote's employees, and the similarity of its
business activities, all point strongly toward the existence of a concerted plan
to thwart the Union's ambitions. Somerset Classics, Inc. cE Modern Manufactur-
ing Company, Inc., 90 NLRB 1672 affd. 193 F. 2d 613 (C. A. 2). I am convinced,
contrary to the contentions of Respondents, that it has not been established by
them with the "utmost cogency" 75 that Joseph E. Cote, broken by years of ex-
cessive work, went out of business because of his health or that Brook Farm
Foods, Inc., was not a cover for the continuance of his operations.
In summary, I find that the reasons advanced by Respondents for Joseph E.
Cote's announcement he was discontinuing business were not the real motives
therefor and that the actual reason for setting up Brook Farm Foods, Inc.,
was to avoid dealing with the Union and to evade whatever might be Joseph E.
Cote's responsibility for unfair labor practices.
In agreement with counsel for Respondents, I conclude that the record does not
establish the fact that at any time material to the issues in this case was
Edouard Cote in business for himself as an individual or as an employee In the
ordinary sense of the word. I consider the cases cited by General Counsel inap-
posite and find that Edouard Cote has not done business under the trade name
of Joseph E. Cote or Brook Farm Foods, Inc. In my opinion, the evidence is in-
sufficient to prove that he has engaged in business individually, as distinguished
as acting as Joseph E. Cote's manager and Brook Farm Foods, Inc.'s president.
Hence it cannot be found that he has personally played the part of their tool,
pawn , or cover. I shall therefore recommend dismissal of the complaint with
respect to Edouard Cote.
2. Interference, restraint, and coercion
I find, on well-established principles," that by the following Inquiries and
statements, however obliquely expressed, more fully set forth in section III, B, 2,
Respondents Interfered with, coerced, and restrained their employees in the
exercise of their rights under Section 7 of the Act, in violation of Section 8 (a)
(1) thereof:
1. Joseph E. Cote's statement to employee Martell that the men had decided
to organize a union and his Inquiry of Martell as to whether he knew what
was going on.
2. Joseph E. Cote's offer to pay Martell $300 If he would stick by him.
23 N. L. R. B. v. E. C. Brown Co., 184 F. 2d 829 (C. A. 2), supra.
"N. L. R. B. v. National Plastic Products Co., 78 NLRB 699 enfd. 175 F. 2d 755 (C. A.
4) ; N. L. R. B. v. Harris-Woodson Co., 162 F. 2d 248 (C. A. 5) ; N. L. R. B. V. A.mertcan
Pearl Button, 149 F. 2d 311 (C. A. 8) ; N. L. R. B. V. General Motors, 150 F. 2d 201 (C A.
3) ; Elwood M. Jenks, 81 NLRB 707.
J. E. COTE -1511
3. Joseph E. Cote's Inquiry of Martell as to whit he was going to do in regard
to the election and as to whether he could depend upon him.
4. Edouard Cote's inquiring of employee Cantin as to whether he was in with
the boys and what reason he had to be sticking with the gang.
5. Edouard Cote's statement to Cantin that he could have a better route
and that it could be arranged so that he could purchase a house if he would go
against the boys.
6. Edouard Cote's inquiry of Cantin as to what the price would be to break
up the-Union.
7. Joseph E. Cote's statement that he never has had a union in his plant, never
would have one, that be broke the Union before and would break it again.
8. Edouard Cote's inquiry of employee Thibodeau whether he had heard about
joining the Union and why the employees wanted it.
9. Edouard Cote 's statement to Thibodeau that he would get him a new truck
If that would make any difference.
10. Edouard Cote's inquiry of Thibodeau as to whether it would make any
difference if he got rid of the foreman.
11. Joseph E. Cote's request of Thibodeau that he try to get the boys to agree
to Cote's contract proposals.
12. Edouard Cote's inquiry of employee Caron as to whether he knew any-
thing about the boys joining the Union.
13. Edouard Cote 's statement to Caron that if the employees joined the Union
things could be miserable for them and that none of them would be happy at
their work.
14. Edouard Cote's statement to Caron that if the Union came in he would make
it so miserable for some of the driver-salesmen that they would be sorry.
15. Edouard Cote's Inquiry of Caron as to his reasons for joining the Union.
16. Edouard Cote's statement to Caron that if the reason for the men joining
-the Union was dissatisfaction with the foreman , he would discharge the foreman.
17. Edouard Cote's inquiry of Caron as to whether he would accept any offers.
18. Joseph E. Cote's statement to employee Shea that if he would assure
Cote a vote at the representation election he would give him $250.
19. Foreman Walsh 's statement to Shea that if the Union should come in,
Edouard Cote would put on additional trucks so that Shea would only make
his minimum earnings.
20. Edouard Cote's statement to Shea that If the Union should not win the
representation election he would give all the driver -salesmen a substantial raise.
21. Edouard Cote's statement to Shea that if the Union should win the election
he would put on more trucks so that the driver-salesmen would only make their
minimum wage.
3. Discrimination
The alleged violations of Section 8 (a) (3) of the Act must be considered In
the light of the facts found in sections III, B , 1 and 2 and the conclusions reached
In sections III, C, 1 and 2 and in the general context of the background of
events and general issues set forth In section III, A , above.
By amendment to the complaint , the General Counsel has alleged that in addi-
tion to unlawfully discharging and failing to reinstate five employees, Respond-
ents also locked them out. The Act provides no definition of the word lockout.
At common law it Is described as the "cessation [by an employer ] of the furnish-
ing of work to employees in an effort to get for the employer more desirable
terms." The Board has frequently used the term where an employer has pre-
vented an employee from working . In the Instant case the term would seem to
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be more applicable to the instances of Shea and Cantin whose severance from
employment, in view of their reinstatement to employment under preexisting
conditions , was temporary, than to the instances of the three other union mem-
bers. The latters' separations were permanent , in the sense that they have not
been reinstated. As to them the use of the word "discharged" and the term
"refused and failed to reinstate " is appropriate. However, it is my conclusion
that the purpose actuating the conduct of Respondents , whether it be called a,
discharge or a lockout, was identical and it is my conviction that the facts estab-
lish that purpose as having been a discrimination as to the hire and tenure of'
employees because of their membership, activities, and interest in the Union.
The retention by Brook Farm Foods, Inc., of all the employees who had voted
against the Union in the April 26 election and the adverse treatment of the
employees who had voted for the Union is a clear mark of a discriminatory
purpose. N. L. R. B. v. Winona Knitting Mills, Inc., 163 F. 2d 156, 160 (C. A. 8) ;.
N. L. R. B. v. Bank of America, 130 F. 2d 624, 629 (C. A. 9), certiorari denied,
318 U. S. 791, 792.
It is a fair inference" that the reason for Respondents having locked out or
having discharged and failed to reinstate the union members was their desire
to avoid having to deal with the Union. Since they had been locked out or
discharged, upon the continuance of Joseph E. Cote's business in its new identity,
the union members had a right to reinstatement to their old positions even with-
out express application an their part Se
Respondents have pointed out that in N. L. R. B. v. Blair Quarries, Inc., 152'
F. 2d 25 (C. A. 4), The Northeast Glove Co., 74 NLRB 1697 and Simmons Engi-
neering Co., 65 NLRB 1373, no orders to reinstate and make whole discharged
employees were made and therefore no financial burdens were imposed upon
successors. They have then argued that an order of reimbursement for lost
earnings in this case would encounter constitutional difficulties as unreasonably
requiring one party to pay because another had done something which that other
ought not to have done. In Blair Quarries, the decision and order of the Board
and the petition for the enforcement thereof were directed against both Blair
and South Carolina Granite Company, but subsequently the case against Granite
was settled upon the payment of back pay to two employees who had been
discriminatorily discharged, and the proceeding against it was dismissed. In
Northeast Glove and Simmons Engineering, the question of back pay was not
involved.
One of the fallacies of this argument of Respondents' lies in the fact that, as
ruled immediately above, upon the continuance of Joseph E. Cote's business in its
new identity as Brook Farm Foods, Inc., the discharged employees had a right
"Pertinent here are Judge Frank's remarks in F. W. Woolworth Co. v. N. L. R. B., 121
F. 2d 658, 660 (C. A 2) :
Implicit in petitioner's argument is a basic objection to reliance upon so -called "cir-
cumstantial evidence ." But courts and other triers of facts, in a multitude of cases,
must rely upon such evidence, 1. e., inferences from testimony as to attitudes, acts,
and deeds ; where such matters as purposes , plans, designs, motives, intent , or similar
matters, are involved, the use of such inferences is often indispensable. . . . Persons
engaged in unlawful conduct seldom. write letters or make public pronouncements
explicitly stating their attitudes or objectives ; such facts must usually be discovered
by inference ; the evidence does not come in packages labeled, "Use me," like the cake,
bearing the words, "Eat me," which Alice found helpful in Wonderland.
28 N. L. R. B. v. Van Deusen, 138 F. 2d 893, 895 (C. A. 2) ; N. L. R. B. v. Remington
Rand, Inc., 130 F. 2d 919, 932 (C. A. 2) ; N. L. R. B. v. East Texas Motor Freight Lines,
140 F. 2d 404 (C. A. 5) ; N. L. R. B. v. Cowell Portland Cement Co., 148 F. 2d 237 , 241 245
(C. A. 9), certiorari denied, 326 U. S. 735; Idaho Potato Growers v. N. L. R. B., 144 F.
2d 295, 304-305 (C. A. 9 ), certiorari denied, 323 U. S. 769.
J. E. COTE 1513
without application to reinstatement, consequently , the corporation's refusal'to
i'ilfatate was violative of the Act and reptOdtioh by it would be a payment for
its own wrong rather than a financial burden imposed because of the default
of another . And this would be true whether the corporation should be regarded
a successor to Joseph E. Cote or whether it be considered that its affairs were
so intertwined with those of Joseph E. Cote as to constitute the two a single
integrated enterprise. Moreover, the cases are legion where financial burdens
have been imposed upon successors because of the unfair labor practices of their
predecessors.20
For these reasons and upon the basis of these authorities, I reject Respondents'
contention that a distinction should be drawn between cases involving the pay-
ment of money and those which require a party to bargain collectively, to cease
and desist from coercive conduct and to post notices only.
On the record taken as a whole, I conclude and find that Shea, Thibodeau,
Caron, Cantin, and Martell were not discharged by Respondents because of
Joseph E. Cote's cessation of business, but that on the contrary, the preponder-
ance of substantial evidence leads to the conviction that in violation of Section 8
(a) (3) and (1) of the Act, they were locked out, discharged, and refused re-
instatement because of their union activity and to discourage the continuance
thereof by other employees.
4. The refusal to bargain
a. The appropriate unit and the Union's majority
All driver-salesmen at the Manchester, New Hampshire, plant of Respondents,
excluding warehouseben, garage and maintenance employees, office and clerical
employees, professional employees, and all supervisors as defined in Section 2
(11) of the Act, as amended, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9 (b) of the Act, as amended.
At all times subsequent to April 2, 1951 (on which date five out of nine driver-
salesmen had joined the Union), the Union represented a majority of the em-
ployees in the above unit.
b. The refusal
The Cotes were legally bound to negotiate with a sincere desire to reach an
agreement. N. L. R. B. v. Reed & Prince Mfg. Co., 118 F. 2d 874 (C. A. 1). This
it is clear they did not do. While going through a semblance of surface bargain
they were in the meantime scheming out a series of moves that they hoped
might eventually enable them to keep the Union out.
Although this finding is made generally on the basis of the entire record, it
is premised especially on the following facts: (1) Joseph E. Cote's failure to
sign a contract agreed upon by his authorized representatives; (2) Respond-
ents' attempt individually to bargain with their employees; 80 and (3) Respond-
ents' flat refusal on September 7, 1951, of the Union's request to bargain.
It is quite clear that even had Brook Farm Foods, Inc., been a bona fide vendee,
the certificate of the Union as the exclusive bargaining representative of Joseph
E. Cote would have been valid against it, in view of the fact that no substantial
89 Cf. cases cited in footnote 23.
80N. L. R. B. v. Winona Textile MillS, Inc., 160 F . 2d 201 (C. A. 8), rehearing denied
April 21, 1947 ; Dixie Culvert Manufacturing Company, 87 NLRB 554; V-O Milling Com-
pany, 43 NLRB 348, 359 ; South Carolina Granite Company, 58 NLRB 1448, 1461 ; Alabama
Marble Company , 83 NLRB 1047, 1049.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes were made in the personnel or operations of the enterprise. South
Carolina Granite Company , et al ., 58 NLRB 1448, supra , enforced in this respect;
N. L. R. B. v. Blair Quarries, Inc., 152 F. 2d 25, supra (C. A. 4).
I conclude and find that on or about June 25, 1951, and from that time on.
Respondents refused to bargain collectively with the Union and that they thereby
engaged in unfair labor practices in violation of Section 8 (a) (5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of Respondents set out in section III, herb 'f,
occurring in connection with the operations of Respondent described in section I,
hereof, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It has been found, from the facts set forth, and for reasons stated in sections
III, B and C hereof, that both Respondents are guilty of the unfair labor prac-
tices found herein to have been committed. It will therefore be recommended
that Respondents Joseph E. Cote and Brook Farm Foods, Inc., be jointly and
severally " required to remedy their violations of the Act.
Since it has been found that said Respondents have engaged in unfair labor
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that said Respondents have engaged in certain acts of
interference, restraint, and coercion, it will be recommended that they cease
therefrom.
It having been found that said Respondents discriminatorily discharged John
Shea, George Thibodeau, Armand Caron, Donat Cantin, and William Martell on
or about August 31, 1951, and thereafter discriminatorily refused to reinstate
John Shea and Donat Cantin until December 24, 1951, and continued discrimina-
torily to refuse to reinstate George Thibodeau, Armand Caron, and William
Martell, I will recommend that said Respondents offer George Thibodeau, Armand
Caron, and William Martell each his former or a substantially equivalent posi-
tion (see The Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, 65 NLRB 827, 829), without prejudice to their seniority or other
rights and privileges and that Respondents make them and Donat Cantin and
John Shea whole for any loss of pay they may have suffered by reason of such
discrimination, by payment to each of them of a sum of money equal to that
which he normally would have earned as wages from August 31, 1951, to the
date of offer of reinstatement, or, in the cases of Donat Cantin and John Shea,
to December 24, 1951, less his net earnings during such period ( see Crossett
Lumber Company, 8 NLRB 440)." It is further recommended that the loss of
pay shall be computed upon the basis of each separate calendar quarter or portion
thereof, to the date of a proper offer of reinstatement. The quarterly periods,
herein called "quarters," shall begin with the first day of January, April, July,
and October. Loss of pay shall be determined by deducting from a sum equal to
that which would normally have been earned for each such quarter, or portion
33 See Charles R Hrimm Lumber Company, 97 NLRB 1574,29 LRRM 1287.
e1 The offer of temporary work to Caron and Cantin on September 10, 1951 , and rejected
by them, was not an offer of reinstatement and did not have the effect of tolling back pay
after that date . Electric City Dyeing Company, 182 F . 2d 980 (C. A. 3).
J. E. COTE 1515
thereof, the net earnings of each , if any, In other employment during that period.
Earnings in one particular quarter shall have no effect upon back -pay liability
for any other quarter . In order to Insure compliance with the foregoing and
reinstatement provisions , It Is recommended that said Respondents shall be re-
quired upon reasonable request to make all pertinent records available to the
Board and Its agents . ( See F. W. Woolworth Company , 90 NLRB 289.)
It having been found that on or about June 25, 1951, and September 4, 1951,
and at all times thereafter , said Respondents refused to bargain with the Union
as the exclusive representative of their employees in an appropriate unit, it will
be recommended that said Respondents , upon request, bargain collectively with
the Union , and if an understanding is reached , embody such understanding in a
signed agreement.
The violations of the Act which the Respondents have committed are in my
opinion persuasively related to other unfair labor practices proscribed by the
Act, and the danger of their commission in the future is to be anticipated from
the Respondents ' conduct in the past . The preventive purposes of the Act will
be thwarted unless the order is coextensive with the threat. In order, therefore,-
to make more effective the interdependent guarantees of Section 7, to prevent a
recurrence of unfair labor practices and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the Act, it
will be recommended that Respondents cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record I
make the following :
CONCLUSIONS OF LAW
1. The operations of Joseph E. Cote d/b/a J. E. Cote and Brook Farm Foods,
Inc., and each of them constitute trade, traffic, and commerce among the several
States, within the meaning of Section 2 (6) and (7) of the Act.
2. Bakery & Sales Drivers & Helpers Local Union No. 686, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, A. F.
of L., is a labor organization within the meaning of Section 2 (5) of the Act.
3. All driver-salesmen at the Manchester, New Hampshire, plant of Respond-
ents , excluding warehousemen , garage and maintenance employees , office and
clerical employees , professional employees, and all supervisors as defined in Sec-
tion 2 (11) of the Act, constitute a union appropriate for the purposes of collective
bargaining within the meaning of Section 9 (h) of the Act.
4. Bakery & Sales Drivers & Helpers Local Union No. 686, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
A. F. of L., was on April 2, 1951, and at all times since has been the exclusive
representative of all the employees In the aforesaid unit for the purposes of col-
lective bargaining within the meaning of Section 9 (a) of the Act.
5. By refusing on or about June 25, 1951, and September 4, 1951 , and at all
times thereafter, to bargain with Bakery & Sales Drivers & Helpers Local Union
No. 686, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, A. F. of L., as the exclusive representative of all employees
in the appropriate unit, Respondents Joseph E. Cote d/b/a J. E. Cote and
Brook Farm Foods, Inc., have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (5) of the Act.
6. By discriminating in regard to the hire and tenure of employment of John
Shea, George Thibodeau, Armand Caron, Donat Cantin, and William Martell,
thereby discouraging membership in Bakery & Sales Drivers & Helpers Local
Union No. 686, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America , A. F. of L ., said Respondents have engaged in and
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are engaging in unfair labor practices within the meaning of Section
8 (a) (1) (3) of the Act.
7. By interfering with , restraining , and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, said Respondents have
engaged in unfair labor practices within the meaning of Sections 8 (a) (1) of
the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
9. Edouard Cote has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1), (3), and (5) of the Act.
[Recommendations omitted from publication in this volume.]
VOLNEY FELT MILLS, INC. and UNITED PAPER WORKERS OF AMERICA,
CIO. Case No. 38-CA-1C6. December 30,1952
Decision and Order
On February 19, 1952, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other alleged
unfair labor practices and recommended dismissal of these allegations.
Thereafter, only the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as consistent herewith.'
The Board has now reviewed and reexamined all the evidence in this
case, and hereby reaffirms its determination of September 13, 1951,
that the Regional Director did not act arbitrarily or capriciously and
that therefore the Board would not and should not interfere, in view
of the consent election agreement signed by the Respondent 2 Accord-
ingly, we find, as did the Trial Examiner, that the Regional Director's
certification of the Union was valid, and that the Respondent has,
i Absent exceptions to the recommendations of the Trial Examiner dismissing the allega-
tions of the complaint that the Respondent had engaged in violation of Sections 8 (a) (3)
and 8 (a) (1) of the Act, we adopt them.
2 D d D Transportation Company, 100 NLRB 920 ; Merrimao Hat Corporation, 85
NLRB 329; McMullen Leavens Company, 83 NLRB 948; N. L. R. B. v. Capitol Greyhound
Lines et al., 140 F. 2d 754 ( C. A. 6), cert. den. 322 U. S. 763, enforcing 49 NLRB 156.
101 NLRB No. 240.