Martin A. Gleason, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1974

215 N.L.R.B. 340 (N.L.R.B. 1974)

340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin A. Gleason , Inc. and Gutterman Funeral
Home, Inc. and Walter B. Cooke, Inc. and Local
100, Service Employees International Union,
AFL-CIO. Cases 29-CA-3602, 29-CA-3604, and
29-CA-3605
December 6, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On July 30, 1974, Administrative Law Judge Irving
M. Herman issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel, the Charging
Party, and Respondents Gleason and Gutterman filed
exceptions and supporting briefs, and Respondent
Cooke and the General Counsel filed cross-exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act by re-
questing its employees to provide it with copies of state-
ments given by them to a Board agent. Contrary to our
dissenting colleague, we find that the Respondent's
conduct in the circumstances of this case would natu-
rally inhibit its employees' desire to cooperate with the
Board's investigative efforts and deter others from so
cooperating. Backed by its economic power and in the
context of other serious unfair labor practices, as in this
case, an employer's request for statements given to the
Board may be interpreted by the affected employees as
an order with the consequent invasion of their Section
7 rights. Bayliner Marine Corporation, 215 NLRB No.
' As the record, exceptions , and briefs adequately present the issues and
the positions of the parties , the Respondents ' requests for oral argument are
hereby denied.
2 Chairman Miller would not adopt the Administrative Law Judge ' s find-
ing that Respondent Gleason violated Sec. 8 (a)(1) of the Act by requesting
employees to furnish copies of statements given in the course of the Board's
investigation of the charges against Gleason. Chairman Miller would find
the requests lawful inasmuch as they were made after the complaint had
issued as part of Gleason's pretrial preparation . In addition , the requests
were not accompanied by any coercive or threatening statements and com-
pliance with the requests was completely voluntary . Furthermore , the Re-
gional Office , which was aware of the purpose of the requests, did nothing
to discourage the employees from obtaining copies of their statements and
furnishing same to Gleason . The Chairman , therefore , would find that the
requests were lawful . Robertshaw Controls Company, Lux Time Division,
483 F.2d 762 (C.A. 4, 1972).
11, and cases cited therein. Our dissenting colleague's
reliance on the court's decision in Robertshaw Controls
Company, Lux Time Division, 483 F.2d 762 (C.A. 4,
1972), is misplaced. There the court carefully distin-
guished a long line of Board and court cases supporting
our position herein, pointing out that in Robertshawthe
request for statements was in the context of very minor
unfair practices, involving a small number of em-
ployees, and that there was no wholesale investigation
by the Board of antiunion activities on the part of the
company. The court concluded that the request in that
case did not violate Section 8(a)(1) because of its "par-
ticular and somewhat unusual facts." The instant case
squarely meets the court's criteria for finding that, in
cases, as here, where extensive unfair labor practices
are alleged, an employer's request that its employees
provide it with copies of statements given to the Board
violates Section 8(a)(1).
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondents Martin A. Gleason, Inc., and Gutterman
Funeral Home, Inc., Brooklyn, New York, their offic-
ers, agents, successors, and assigns, shall take the ac-
tion set forth in said recommended Order; and the
complaint against Respondent Walter B. Cooke, Inc.,
Brooklyn, New York, be, and it hereby is, dismissed in
its entirety.
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge : This con-
solidated case was tried before me on April 30 and May 1, 2,
and 6 , 1974, at Brooklyn , New York. The charges were filed
by Local 100, Service Employees International Union,
AFL-CIO (herein called the Union) on October 18,
1973,' and duly served upon Respondents . 2 The primary is-
sues are whether Respondents violated Section 8(a)(1) and (3)
of the National Labor Relations Act, as ameded (29 U.S.C.
Sec. 151 et seq.), herein called the Act , by locking out their
funeral directors ; conditioning the tatters' return to work
upon their resignation from the Union ; and, in Case
29-CA-3602, requesting employees to furnish copies of state-
ments given in the course of the investigation.'
I All dates herein are in 1973 unless otherwise specified.
2 The consolidation was pursuant to order of the Regional Director dated
January 25, 1974; Respondent's motions for severance were denied by the
Chief Administrative Law Judge whose ruling was sustained on appeal to
the Board on March 12, 1974.
3 The last issue was tendered by an amendment to the complaint at the
hearing pursuant to notice of motion served February 20, 1974. Respondent
objected on the ground that it had not been given an opportunity to address
itself to the allegation by way of a response to the facts obtained by General
215 NLRB No. 33
MARTIN A. GLEASON, INC. 341
Upon the entire record,' including my observation of the
witnesses, and after due consideration of the briefs filed on
beha;" of the General Counsel and Respondent,' I make the
following:
FINDINGS AND CONCLUSIONS
I RESPONDENT'S BUSINESS
The complaint alleges, the respective answers admit, and
I find that Respondents are New York corporations engaged
in New York, New York, in the retail sale of funeral services
and related products, that they each derived gross revenues
therefrom in the past year in excess of $500,000, and each
purchased and had delivered from other states to its places
of business in New York goods and materials valued in excess
of $50,000, and that each is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answers admit, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
bor Relations Division and Cooke each negotiated separately
with the Union but they were unable to reach agreement.
On October 12, the Union called a strike against three
members of the Labor Relations Division other than Re-
spondents Martin A. Gleason, Inc., and Gutterman Funeral
Home, Inc. (herein called Gleason and Gutterman, respec-
tively). Beginning in July a strike fund had been established
by the Union through a $15 per week assessment on each unit
employee as long as he remained at work during the negotia-
tions. The Labor Relations Division members agreed that
they did not want to support a strike against fellow members
but left to each member the decision whether to lock out its
employees as a countermeasure. Eighteen division members
(involving 45 establishments) locked out all their unit em-
ployees; 14 did not. Cooke also locked out all of its funeral
directors at its 10 branches.
The Union and the Labor Relations Division reached
agreement on December 12. The entire union membership,
including Cooke's employees, evidently participated in the
ratification vote and, as a result of such ratification, all the
locked-out employees, including Cooke's, returned to
work.'
We turn now to the facts relating to the lockouts by Glea-
son, Gutterman, and Cooke.
2. Gleason
III THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
For the 3-year period ending October 9, 1973, Respondents
were parties to a collective-bargaining agreement with the
Union covering all licensed funeral directors in the multiem-
ployer unit comprising the Labor Relations Division of the
Metropolitan Funeral Directors Association, Inc. (herein
called the Association).6 In July 1973, and prior to the com-
mencement of bargaining for a new contract, Respondent
Walter B. Cooke, Inc. (herein called Cooke), withdrew from
the Labor Relations Division (while retaining membership in
the Association) and informed the Union of its intention to
negotiate separately for a new contract.' Thereafter the La-
Counsel through an ex parte investigation Quite apart from whether a
departure from the usual practice (pursuant to the Board's Rules) of afford-
ing such an opportunity ever forecloses proof of an allegation timely made
in a complaint , Respondent here was put on notice over 2 months before
the hearing that such amendment would be offered It thus had ample time
to attempt to convince General Counsel that the allegation lacked merit I
accordingly allowed the amendment
4 Sharing the view expressed in Respondents' brief (p. 12) that the tran-
script of testimony herein "is a travesty of court reporting," but noting, as
the parties evidently do, that complete reconstruction of the record is nei-
ther possible nor necessary, I nevertheless believe some correction to be
essential for sufficient understanding These errors have been noted and
corrected
5 All briefs were due in Washington by June 3, 1974 Charging Party's
brief was not received until June 7 Upon Respondent's protest, and absent
any explanation for such untimely filing, Charging Party's brief has not been
considered in arriving at my decision
6 The bargaining relationship long antedated that contract, the uncon-
tradicted testimony of one employee of Respondent Gleason indicating the
existence of a union shop as far back as 1961
a. The lockout
On October 13, John Gleason (herein sometimes called
Gleason), president of Gleason, informed Albert Philipps,
Robert Gallagher, and Frank Connelly, Sr., that the Union
had struck three members of the multiemployer unit as the
result of an impasse in the negotiations, that a strike against
one member of the group was a strike against all, that
solidarity required the other employers in the unit to counter
with a lockout of union members as a defensive, measure for
"the duration of the strike," and that as of the close of busi-
ness that day all of its employees who belonged to the Union
were suspended.' Gallagher said he did not wish to be out
of work and asked what his alternatives were, and whether
there was anything he could do to continue working. Con-
nelly testified that Gleason replied that since the contract had
expired the men were no longer under any obligation to the
Union and if they resigned they would be accepted back to
work, and that in order to resign they would have to notify
the Union by phone or telegram ;1° that Connelly asked
7 Other Association members also bargain directly with the Union rather
than through the Labor Relations Division
8 At least one Cooke employee who was on the Union's bargaining com-
mittee in the direct negotiations with Cooke also participated on the Union's
multiemployer bargaining committee
9 Gleason then employed four funeral directors, all of whom belonged to
the Union and were in the bargaining unit The fourth such employee, Frank
Connelly, Jr , was not working that day but got the message from his father
that evening , and John Gleason likewise informed him by telephone the
following day
10 Respondent's brief misreads this testimony as hearsay Although the
transcript says "they stated that Mr John Gleason stated," the word "they"
should read "he" and "he" refers to John Gleason, the witness simply having
reidentified the speaker by name in lieu of the pronoun A dash between
"that" and "Mr " would have reflected the testimony more accurately. Any
other reading of this makes no sense
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether they would be able to rejoin the Union if a contract
were subsequently reached, and Gleason said that the Union
would have to readmit them so that at most it would cost
them a new initiation fee and they could not be fined or
otherwise discriminated against;" and that Gleason told
them to think about it and let him know their decision, and
whichever way it went there would be no hard feelings.
According to Gleason, Gallagher, and Philipps, Gleason's
response in substance to Gallagher's question about alterna-
tives at the meeting was that he could not discuss that with
them." Gleason, on cross-examination by his own counsel
after being called as a witness under Section 43(b) of the
Federal Rules of Civil Procedure, categorically denied that he
had made any reference at the meeting to resignation from
the Union. He twice testified, however, that he "believe[d]
Gallagher had mentioned resignation and that he "continu-
ously" replied that it was not his province to tell the men
what to do. Gallagher, who followed Gleason to the stand,
testified in this connection as follows:
Q Did Mr. Gleason Make any comment at that meet-
ing with regard to the option employees had to resign
from the Union?
A: No. He refused to comment on anything relating
to that at all. Or relating to anything beyond what he had
on a prepared text-sheet of paper.
Philipps, the next witness, testified:
Q: At any time did Mr. Gleason mention the word
resigned or resignation from the union during that meet-
ing?
A: No, sir, he did not
Q: At any time during that meeting did the subject of
sending telegrams of resignation to the union come up?
A No, sir.
After a brief recess upon the conclusion of Philipps' tes-
timony, Gleason was recalled to the stand for direct examina-
tion by his counsel which began:
Q: (By Mr. Gallay) Mr. Gleason, since we don't have
a transcript of your earlier testimony I will try to avoid
repetition . With regard to that meeting of the 13th did
you or anybody else in that meeting raise the question
of resignations and/or sending of telegrams to the
union?
A: Absolutely not.
Further along in this examination Gleason was asked by his
attorney whether he had had " any motivation for locking out
[his] employees other than the one [he had] testified about
earlier."" and he answered:
11 Gallagher recalled that Connelly had asked questions but could not
recall their substance
12 General Counsel's brief gives too literal a reading to the testimony on
this point by urging a distinction between Gleason's version that he could
not tell the men what to do and Philipps' that Gleason gave "no responses
. He could not discuss it with us," and by attempting to distinguish both
versions from Gallagher's that Gleason said he could not comment beyond
his prepared text Essentially their testimony is consistent that Gleason
expressed an inhibition stemming from the Act
A: You know, come to think of it , my mind is a little
more refreshed in that regard , we were motivated to lock
out the employees first in support of our members. And
then also to bring an economic pressure upon the union
in that regard.
However, Gleason talked with Gallagher and with Philipps
on the telephone later that day, according to the three of
them. Gallagher again said he wanted to continue working,
to which Gleason repeated that he could not talk about it at
that time. Gallagher then said that he disagreed with the
Union's stand and wanted to get out of the Union. Gleason
replied, according to his testimony, "you know, you can't tell
me that-I can 't tell you what to do. When-whatever you
do is within your own province. But I can't tell you what to
do," and only when Gallagher insisted that he "had made up
his mind" did Gleason discuss the details of resignation
which required Gallagher's sending a telegram to the Union
and furnishing a copy to Gleason as proof. Gallagher testified
that Gleason's immediate reply to his statement that he
would quit the Union was, "as long as you brought it up, I
can speak about it, if you don''t want to belong to the union,
he says, if you want to sever your membership in the union,
he says, you can report to work"; and that Gallagher would
have to bring a copy of the resignation he sent the Union as
proof thereof. Gallagher dispatched a telegram of resignation
to the Union on October 15 and gave a copy to Gleason who
placed it in Gallagher's personnel file. Gallagher returned to
work either the same day or the next day.
On the evening of October 13, Gleason and Philipps testi-
fied, Philipps telephoned Gleason." Gleason testified to that
call as follows:
• A. He said to me, he said I want to return to work.
And he said I want to resign from the union . I said I
can't tell you to do that.
Q. And what did he then say?
A. Well, he said I want to resign . He said and I want
to return to work . I said to him again , I said I can't tell
you to resign from the union . Whatever you do is within
your own province.
Q. And did he then make any proposals about resign-
ing from the union to you?
A. He said I am going to resign . He said my wife and
I have talked it over and I have decided to resign. I said
whatever you do , you do by yourself. That's within your
own province to do whatever you do.
Q. Do you recall when-whether he asked you what
would happen if he sent a telegram to the union resign-
ing his membership?
A. No. He would ask me what would happen if he sent
a telegram? Not in wording like that.
Q. Did you give a statement to an agent of the Na-
tional Labor Relations Board?
A. Yes, I did . Mr. Joel Hoffman , I believe it was.
i3 "[T]he one [he had] testified about earlier" was the defensive coun-
teraction , the only motive he had mentioned at the October 13 meeting,
according to the testimony of all witnesses
14 Philipps was then the Union's shop steward
MARTIN A. GLEASON, INC. 343
Q. I call your attention to page four of this affidavit.
With regard to the bottom paragraph, I ask you if you
would read that to yourself.
A. Yes. That's substantially correct.
Q. Does that refresh your recollection of whether Mr.
Philipps asked you-well, does that refresh your recol-
lection as to what Mr. Philipps asked you?
A. Yes.
Q. Will you tell us what did he ask you at that point?
A. Will you allow me to return to work?
Q. And what was your response?
A. I can't tell you what to do.
Q. And then as you now recall the conversation would
you tell us what was said?
A. What would happen if he sent a telegram to the
union resigning his membership. And I said you would
have to show me a copy of your resignation, whichever
way you handle it. He then said he would send a tele-
gram.
Q. This was the conversation-this was the context of
a conversation about him returning to work?
MR. GALLAY: Objection.
JUDGE HERMAN: Overruled.
A. The context of a conversation about his returning
to work.
Q. This was what the conversation was about, why he
called you?
A. He called me to tell me he was resigning from the
union.
Q. Wasn't the first thing he said-he asked you
whether he could return to work?
A. He asked me if he could return to work. I answered
to him, I said I can't tell you what to do. No, I can't tell
you to do that.
Q. I am a little confused. You said you can't tell him
what to do?
A. He said also in that statement , I will resign from
the union. I said I can't tell you to do that.
Q. But Mr. Gleason, you state now that-and you
stated in the affidavit-that you can't tell him what to
do. At this point did he have any alternatives as far as
you are concerned. Was he not locked out?
MR. GALLAY: Objection. Argumentative?
JUDGE HERMAN: Overruled. Answer the question.
A. He was locked out.
Q. So in effect he had no alternatives at that point, did
he?
MR. GALLAY: Objection.
JUDGE HERMAN: Overruled.
A. He had no alternatives to what?
Q. As far as returning to work?
A. He was locked out.
Q. After this conversation did Mr. Philipps then come
in to see you?
JUDGE HERMAN: Before you get to that, let't get a little
more on this telegram. So he was locked out, and how
did the discussion of the telegram get into the conversa-
tion?
A. I'll have to refresh my memory on that and look
in here again. He said what would happen if he sent a
telegram to the union resigning his membership.
JUDGE HERMAN: What was your reply?
A. I said you would have to show me a copy of your
resignation, whichever way you handle this,-
JUDGE HERMAN: He would have to show you a copy
for what purpose?
A. Well, he would have to show me a copy to establish
the fact that he did resign.
JUDGE HERMAN: For what purpose?
A. Because there was a lockout , and there was a strike
on unions party against the bargaining unit of the Met-
ropolitan Funeral Directors Associaton.
JUDGE HERMAN: What would his resignation from the
union accomplish?
A. Well, the telegram would be indicative of the fact
that if there was any reprisals and so forth he would be
protected against those reprisals or fines.
JUDGE HERMAN: What would you have to do with
that?
A. I wouldn't have to do anything with that.
JUDGE HERMAN: What did you have-I mean when
you say he would have to show you the telegram for
what purpose?
A. He would have to show me the telegram that he
resigned from the union.
JUDGE HERMAN: Why was it-why did you want to
know if he resigned?
A. Well, because why should I let him back to work.
JUDGE HERMAN: You mean the resignation had some-
thing to do with his coming back to work?
A. The resignation had something to do with his com-
ing back to work, no. I said-if he wanted to resign from
the union, that was within his own province. That was
not for me to influence him to do this . This was some-
thing that he wanted to do, but I wouldn't accept him
back unless he showed me a telegram.
Philipps described the conversation thus on direct examina-
tion:
And I called him up , and I asked him, I said I would
like to go back to work . He said well , do you know what
you have to do?
I said yes, I do. I believe I have to sever myself from
Local 100. I was scheduled to come in to work the
following morning , Sunday morning at nine o'clock.
And I told him that I would be in the next morning,
and when I got there I would send a telegram to th;,
Local 100 , and sever myself from the union in formal
manner.
On cross, he testified as.follows:
Q. You stated to him that you would like to go back
to work; is that correct?
A. I did.
Q. And you said that his response was do you know
what you. have to do?
A. No. He said you know what you have to do. Put
it in a question form, you know what you have to do?
And I said yes, I did.
* * *
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. So that when you-when Mr. Gleason said to you
do you know what you have to do or you know what you
have to do, question mark, was there any particular
backdoor statement that they gave you this knowledge
of what to do?
A. No. No. I just told him I believe I think I know
what I have to do.
Q. And then what was said at this point? What was
his-you then said, I believe you stated on direct, you
said I believe I have to sever myself from Local 100?
A. Yes.
Q. What was his response to that?
A. He said all right, you come in to work tomorrow
morning, nine o'clock and you can send the telegram
then.
Q. Had you suggested the telegram or was that
the-
A. No. I suggested the telegram.
Philipps sent his telegram of resignation to the Union the
following day (October 14). He then reported for work with
a receipt from Western Union. Gleason at first refused to
accept anything less than a copy of the wire as a condition
of his return to work but ultimately settled for a certification
by Philipps of its contents and a certification from Western
Union that the wire had been sent.
Frank Connelly', Jr., the unit employee who had not been
at the October 13 meeting but who had been advised of the
lockout by Gleason's phone call on October 14, talked with
Gleason again on the phone on the morning of October 15
and arranged a meeting for that afternoon with Benson, a
union official. In the course of that phone conversation, ac-
cording to Connelly's undenied testimony, he asked Gleason
what alternative he had to being locked out, and Gleason
replied that the only thing he could do would be to resign
from the Union, and to Connelly's questions to what would
happen to him if he resigned, Gleason answered that he
would not suffer because any contract thereafter concluded
would contain a no-recrimination clause.,
The two Connellys later went to Gleason's office where
they waited a considerable time until Benson arrived. Con-
nelly, Jr., initially testified that while they were waiting they
discussed the situation and he asked if they could resolve the
matter without resigning from the Union, but he soon admit-
ted that he could not recall whether he had raised that ques-
tion on that particular occasion, and his father made no
mention of that matter in his testimony concerning the period
prior to Benson 's arrival. After Benson joined them, accord-
ing to Connelly, Jr.:
Q., Do you recall what was said at that time, that
meeting?
A. Yes, let me think.
At that time we were discussing the possibilities of
going back to work other than resignation from the
union and Mr. Benson was trying to, you know, find
a solution as I am sure Mr. Gleason was at the time.
I asked Mr . Gleason if it would be possible
for-wait a minute now, I had told Mr . Benson
beforehand , he told us our only alternative was resig-
nation from the union.
I believe Mr. Benson told him that that would be
impossible for us to do.
Wait a minute, I'm sorry, I didn't say that Mr.
Benson-I'm getting very confused, I'm sorry.
The event are very vague to me, I'm trying my best
to recall exactly what happened.
After refreshing his recollection, still on direct examination,
by reading the affidavit he had given to the Board agent
during the investigation, he added that he did ask Gleason at
that time whether there were alternatives to resignation and
Gleason responded negatively, saying that if he did not resign
he could not work
On cross, his testimony of the conversation in Gleason's
office prior to Benson's appearance was as follows:
A. We discussed this, we discussed the whole negotia-
tions as a whole, you know, what problems were holding
the thing up.
This was the thing it was just a general discussion on
the negotiations and of course, you know, we were trying
to get ourselves back to work.
That was the, you know, the point to the, what the
point to the whole thing was.
Q. Now you were looking for alternatives to being
locked out?
A. Right.
Q. Was there anything else in that conversation
A. Not that I recall at the moment.
Q. You testified earlier that your wife was pregnant
and you were concerned about benefits, is that correct?
A. Yes.
Q. Did you express that concern to Mr. Gleason?
A. Yes.
I asked-yes, I believe now that you bring it up that
at that time this was part of the conversation also.
What if we were to resign, what in effect would hap-
pen to us, would we lose our benefits, our pension rights
or whatever?
Whatever fringe benefits were offered to us by the
union, that was all part of the conversation.
Q. You asked Mr. Gleason that question?
A. Yes.
Q. At anytime during that conversation did Mr. Glea-
son suggest to you that you resign?
A. Well, he during the conversation itself, yes, he said
well in effect what he said was if you resign I will protect
you, I will not sign a contract without a no-recrimination
clause.
Q. Did he ask you to resign or did he give you it as
an alternative after you raised it he then told you what
the facts of life were after you raised the question?
A. Yes.
Q. That's what you asked for the meeting for, wasn't
it?
A. Yes.
Q But he never advised you to resign?
A. It depends-I guess not.
Q. He never asked you to resign?
A. No, it was more an alternative.
MARTIN A GLEASON, INC.
Following Benson's arrival, according to Connelly, Jr., they
talked about the possibility of resigning, and Benson said the
Union would not accept their resignations during the negotia-
tions; that in the past people had been disciplined by the
Union therefor; and that Gleason repeated his positon that he
would not sign a contract without a no-recrimination
clause."
Connelly, Sr., was unable to recall, on direct examination,
any reference to the Union in his account of the October 15
meeting, recalling only that Benson asked that the lockout be
terminated and Gleason replied that it could not because a
strike against one employer was a strike against all: But on
cross he testified that after Connelly's assertion of the princi-
ple of solidarity "there was discussion about what could hap-
pen later on," including whether "there would be any penal-
ties assessed"; that Gleason said that the employees could
return to work only if they resigned from the Union, which,
he asserted, they were free to do because the contract had
expired; and that Benson took the position that they were still
bound to remain members and abide by the Union's rules,
and that fining returning workers was "a possibility." He
could not recall whether his son said anything during the
meeting. He also testified, after having denied the possibility
that any of the comments he had placed at the meeting of
October 13 had actually been made on October 15, that "I
could possibly transpose both meeting together. I am not that
positive on it."
Respondent offered no evidence regarding either Gleason's
phone conversation with Connelly, Jr., on October 15 or any
of Gleason's conversations that day with the Connellys or
Benson.
b. Gleason 's requests for the investigative statements
Shortly after the issuance of the complaint herein , Gleason
asked his employees if they would mind supplying copies of
the statements they had given the Board agent during the
investigation . He indicated he was not requiring them to do
so. Each readily complied after obtaining a copy from the
Regional Office.16
3. Gutterman
At about 12:30-1 a.m. on the morning of October 14,
shortly after returning to Gutterman's Manhattan location
after completing the removal of a corpse, Frank Marinaro
and August Tolomie" were informed by Michael Gutter-
man (herein sometimes called Gutterman), secretary of Gut-
terman, that "no members of the local can continue to work,"
or that "no members of local 100 would be allowed to
15 Connelly, Jr , conceded that he had falsely stated in .a prior affidavit he
gave the Company that Gleason had not commented at that time on Ben-
son's statement
16 The sole indication of hesitancy on the part of any employee in this
connection was the following statement by Connelly, Sr , in his request to
the Regional Office
I am doing this at the request of my employer I would like to ask you
if this will jeopardize my position in this matter I don't believe that it
will but I want to be sure If you consider this hazardous please advise
me
17 Marinaro was senior shop steward and a picket captain as well as on
the Union's negotiating team, he and Tolomie were "the most conscientious
picketers during the lockout "
345
work."'a He told them that this was at the direction of the
Labor Relations Division's negotiating committee, and was
akin to the strike action taken 3 years previously by all the
employees. Gutterman expressed the hope that there would
be no hard feelings and accepted Mannaro's offer to notify
Gutterman's other unit employees. Gutterman denied that
there was any mention by anyone of resignation from the
Union. Mannaro and Tolomie testified, however, that Gut-
terman did tell them that on advice of counsel, if they wanted
to return to work they would have to notify the Union of their
resignation in writing," and that they "would rejoin the
union" after the settlement of the dispute; that Marinaro
asked if Gutterman would compensate them for any fine
imposed by the Union and Gutterman replied that there
would be no fine. Tolomie testified he reported this con-
versation to the Union the next day but Marinaro testi-
fied he (Marinaro) did not report it until about a week
later. None of the employees resigned.
4. Cooke
Carlo Bonura, who was a member of the Union's bargain-
ing committee, was officially informed of the lockout on Sun-
day, October 14, by Manager Adams and Assistant Manager
Montimurro20 of the Parkchester branch where he worked.
On direct examination he testified that they said that "the
employees belonging to [the] Union" were not to report to
work and that they regretted this decision but could do noth-
ing about it and hoped that there would be no hard feelings
On cross, he did not mention the Union in describing this
conversation but said he was told that "none of the licensed
men" would be working from then on.
Bonura was a picket captain and may have started picket-
ing that day, but his first full tour of picket duty ran from
midnight of October 14 to 8 a.m. on October 15. At around
8 a.m. of that day, according to his direct testimony, in front
of the entrance, Montimurro told him that if he quit the
Union he could come back to work. On cross, after having
brought to his attention the affidavit he gave during the inves-
tigation, he placed the incident in the afternoon of October
15. Bonura also testified that Montimurro made a similar
statement to him at the same location on October 26 while
another very active picket, Roger Davis, was only a foot or
two away. Davis corroborated this testimony. According to
both of them, Montimurro initiated the statements, although
Bonura admitted, in answering a specific question on cross,
that he (Bonura) might first have mentioned that there had
been resignations at other funeral establishments Mon-
timurro testified that the subject arose on just one occasion,
within a week or two after the lockout, when employee Car-
' Gutterman denied using the word "lockout," insisting he said "defen-
sive counteraction " Marinaro could recall no term other than "lockout"
and specifically could not recall "defensive counteraction " Tolomie testi-
fied Gutterman said they were "put out on the street" or "put out
of the building", he could recall the use of no other term, and specifically
"defensive counteraction," denied the term "lockout" was used, and testi-
fied that Gutterman either shrugged his shoulders when Marinaro asked if
it was a lockout or specifically denied that it was a lockout
19 By letter, according to Marinaro Tolomie said Gutterman had speci-
fied letter or telegram and required notification to the Association as well
20 Cooke employs about 30 assistant managers overall In the negotiations
the Union took the position that none of them were supervisors.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dinale- asked' him whether he had heard that some men had
returned to work at another establishment after telegraphing
their resignations from the Union; and he replied in the pre-
sence of Bonura and Davis that' "I guess you guys can do the
same thing . I'm not telling you to do this. You can come back
any time you want to. You must let your conscience be your
guide." Montimurro, however, denied the statements as at-
tributed 'to `him by Boriura and Davis, specifically denying
that he "mentioned `quit the union' per se," and testified that
he had received no instructions from his superiors as to what
to say about the lockout. None of the employees resigned.
Bonura admitted that his attempts to uncover similar state-
ments by Montimurro to other employees proved unsuccess-
ful. Pickets entered the Company's premises at times during
the lockout to use the toilet facilities and for other reasons,
and engaged in conversations with many assistant managers
and other corporate officials.
B. Concluding Findings
1. Factual conclusions
a. Gleason
The foregoing recital shows that at the very least, Gleason
conditioned a return to work during the strike upon its em-
ployees' resignation from the Union," albeit upon the
suggestion of the employees themselves and with the under-
standing that the employees would rejoin the Union there-
after. As I indicate below, it therefore becomes unneces-
sary to resolve the testimonial conflicts between General
Counsel 's and Gleason ' s witnesses.
b. Cooke
Nor is there a need to resolve any testimonial differences
between Montimurro and General Counsel's witnesses in
view of Montimurro's admission that in response to an em-
ployee's question, in the presence of other employees, as to
whether he had heard of locked-out employees at another
company returning to work after telegraphing their resigna-
tions from the Union, he stated, " I guess you guys can do the
same thing. I'm not telling you to do this. You can come back
any time you want to. You must let your conscience be your
guide." This meant the employees could return any time they
resigned from the Union-and not until then.22
c. Gutterman
Although Michael Gutterman denied making any state-
ment concerning the employees' return to work, he did testify
to having told his employees, in announcing the lockout, that
"no members of the local" could continue to work. While
perhaps more subtle than a direct invitation to quit the
21 That resignation was indeed a condition of return , even on Gleason's
evidence , is demonstrated by its firm insistence on proof thereof , especially
in Philipps' case
22 I do not credit Bonura 's testimony on direct examination that when the
lockout was announced he was told that it applied to "the employees belong-
ing to [the] Union," in view of his failure to mention the Union on cross and
restating the announcement so as to confine its application to "the licensed
men "
Union, the statement's plain import was that nonmem-
bers of the Union could work. Hence the Company's con-
tention that the reference to members is not significant
because all unit employees were union members is less
than compelling. If non-members could work, resignation
was the remedy. In view of this message , no credibility
determinations are needed here either.
2. Legal analysis23
The principal precise question posed here is whether em-
ployers who are part of a multiemployer bargaining unit may
lock out their employees to avoid being whipsawed during
contract negotiations and condition their return to work for
the duration of the strike upon their resignation from the
labor organization representing them in the bargaining. The
General Counsel never quite faces up to this issue but rather
treats the case in a more or less perfunctory manner befitting
the usual situation where employees suffer coercion related to
union activity. Thus he tersely urges the statement that the
employees could return to their jobs if they resign from the
Union as boilerplate 8(a)(1) violations wholly independent of
the nature and legal posture of the employees' status at the
time, and fails to consider the relation between such state-
ments and the possibility that he may not prevail on his major
contention as to the illegality of the lockouts.24 Indeed the
conclusion that there has been an 8(a)(1) violation becomes
a bootstrap for the alleged 8(a)(3). This is putting the cart
before the horse because it fails to meet Respondent's conten-
tion that their25 conduct here, even on the General Coun-
sel's facts, constitutes only another privileged consequence of
Buffalo Linen.26 It is necessary to keep in mind that unlike
the ordinary situation where an employer is not free to base
hiring or layoff on union activity, the employer here would
have been free to lock out their union employees (all their
employees in the unit) and replace them with nonunion per-
sonnel for the duration of the strike. N.L.R.B. v. John Brown,
et al., 380 U.S. 278, 286, 288, 297, (1965).27 The narrow le-
gal issue , as I view it, is whether conditioning the employees'
return on their resignation from the Union is a valid alterna-
tive to the Brown power of replacement. As a matter of pure
logic, it might appear so. If an employer may properly refuse
to retain his employees and use "temporary nonunion
[strangers] in preference to the locked out union members"
(Brown at 288), he might logically-perhaps a fortiori-be
able to recall the locked-out employees when they satisfy the
same nonunion condition. Or, stated differently, since the
employees' union status would warrant their continued exclu-
sion from their jobs for the duration of the strike, logic would
seem to permit the employer to condition their return, while
the strike lasts, on their shedding that status.
Resolution of the issue, however, involves further
23 Crystallization of the issues at the hearing, and as reflected in the briefs,
has mooted Respondent 's motions to dismiss certain allegations of the com-
plaint on which I had reserved decision
24 The General Counsel sees no violation in any of the lockouts per se.
25 The applicability of this to Cooke is discussed infra.
26 NL.R.B. v. Truck Drivers Local Union, No. 449, 353 U S 87 (1957)
27 The case in respect to the statements may thus more closely resemble
a threat of discharge under a valid union -security clause although the
analogy is of course not entirely apt since the latter involved a duty as well
as a power and since the separation of the employee there is permanent.
MARTIN A. GLEASON, INC. 347
considerations.28 "The ultimate problem is the balancing of
the conflicting legitimate interests. The function of striking
that balance to effectuate national labor policy is often a
difficult and delicate responsibility. . .." Truckdrivers Local
449 at 96 The propriety of preferring nonunion personnel as
replacements was justified in Brown not becaue it was not
discriminatory-the Court held it was-but only because
"any resulting tendency to discourage union membership
[was] comparatively remote,29 and that this use of tempo-
rary personnel constitute[d] a measure reasonably adapted to
the effectuation of a legitimate business end." Brown, at 288.
The instant cases are distinguishable, in my opinion. The
tendency to discourage union membership is certainly less
"remote" where resignation from the Union, even just for the
duration of the strike, becomes the price for keeping one's job
during that period. In addition to the direct and immediate
effect of such resignations, other natural and foreseeable
consequences thereof may reasonable be expected to survive
the end of the strike. Whereas the temporary hiring of stran-
gers might well tend to solidify the Union's ranks both during
and after the strike, the employees who resign are likely to
return to the Union at the conclusion of the strike30 with a
diminished loyalty to the Union and with the stage set for
internal dissension." That the employees were in fact quite
concerned about possible recriminations is manifested gener-
ally by the references to fines in a prior strike and specifically
as to Gleason. "Both Mr. Gallagher and Mr. Philipps were
well aware that they would have eventually to reestablish
t:iemselves with Local 100 and bear the ire of that organiza-
tion for resigning and working during the lockout; particu-
larly Mr Philipps who had been the Shop Steward." Of at
!east equal importance is the fact that John Gleason, like the
other Association members, was aware of this concern and its
background.
If these circumstances do not render the conduct "so inher-
ently destructive of employee interests [that it] could not be
saved from illegality by an asserted overriding business pur-
pose pursued in good faith" (Brown at 287), they at least
undermine any contention that the conduct was "reasonably
adapted" to the effectuation of such a purpose (id. at 288).
Employers should not be allowed to rely on the principle of
solidarity to destroy or seriously weaken the solidarity of the
union and jeopardize its future stability.32 As the dissenting
Board members in John Brown, et al. d/b/a Brown Food
Store, 137 NLRB 73, 77 (1962), (who ultimately prevailed in
28 See Holmes, The Path of the Law, in Collected Legal Papers (Harcourt,
Brace, 1920), 167, 180-181, expanding on his "the life of the law has not
been logic , it has been experience," from The Common Law
29 Respondent's reliance on the employees' Section 7 right to refrain from
supporting the Union, including the right to resign, contributes nothing
analytically That right is present in every case under the Act But it does
not normally enable an employer to induce or encourage defection from a
union, still less by conditioning job eligibility on withdrawal from the union
30 Assuming, as here, the existence of a union-security clause. '
3i The 8(a)(3) proscription of discouragement of membership encom-
passes discriminatory conduct designed to discourage "good" union mem-
bership "as well as adhesion to union membership " Radio Officers' Union
v NL.R B, 347 U S 17, 39-40
32 For this reason it is of slight moment that Respondents continued to
bargain with the Union. A debilitated union becomes subject to decertifica-
tion proceedings at an appropriate time and in any event a poor prospect
for future bargaining if indeed it manages to remain a viable organization
at all
the Supreme Court) were careful to observe , the temporary
replacement of the employees did not affect their "union
adherence ." And if the Court's observation there .that " a
union member'would have nothing to gain , and much to lose,
by quitting the Union" (380 U.S. at 289) is equally applicable
here as to loss, it is somewhat less applicable as to gain in view
of the continuing earnings specifically offered.
Even crediting Gleason 's evidence that the offer followed
Gallagher 's and Philipps ' announcements to John Gleason
that they had decided to quit the Union provides small com-
fort to that Company . If, as indicated above and as John
Gleason believed , the Company could not itself have sought
the resignations by conditioning return thereon , it could not
have accepted their tender by the employees as the price of
return just as it could not have withheld a wage increase until
its employees "volunteered" to forgo their support for a
union , or just as it could not have discharged its employees
forjoining a union and rehired them when they "voluntarily"
shredded their membership cards. Whether the price is de-
manded by the employer or offered by the employee who is
being deprived of the particular benefit at stake , the effect is
the same : The employer is using his control over the employ-
ment relationship as the lever for influencing the employee's
exercise of his statutory right . The crucial question is whether
the case fits Brown . If it does, the Employer may use his
control as he pleases ; but if, as I believe , the requirement of
resignation distinguishes the case from Brown, it does not
matter whether the Employer expressly and affirmatively sol-
icits the resignation or merely grasps the opportunity ex-
tended by the employee, who, knowing resignation to be the
only possible way of returning to work , 33 himself proposes
it. 34
The foregoing , except for the specific facts relating to Glea-
son, also applies to Gutterman , and applies as well to Mon-
timurro 's conceded statement in Cooke so as to render that
statement coercive , even according Cooke the full Buffalo
Linen privilege despite its withdrawal from the multiem-
ployer unit . 3S And if Montimurro 's conduct cannot find jus-
tification in Brown, which recognized a privilege to continue
operation of a plant with temporary replacements during a
defensive lockout in a multiemployer unit , even less can it
33 Philipps , whom I credit over Gleason, certainly "kn[e]w what [he
had] to do," and said so when Gleason asked him There was no evidence
that he possessed ESP, but it would not have mattered if he had
34 I am not impressed by Gleason 's argument that the statements and
events relating to the return to work were (on its evidence) "after the fact"
and cannot "create retroactively any improper motivation with regard to the
decision to lock out " All the events occurred on the same day, and the
entire matter had to be in John Gleason's mind at the earlier meeting when
he announced the lockout and (again on Gleason's evidence) refused to
answer questions about "alternatives," saying he could not discuss that Cf
Wire Products Mfg Corps, 198 NLRB 652
35 See Evening News Association , 166 NLRB 219, 222 ( 1967), cited by
Cooke, holding a lockout valid on the basis of the Supreme Court's decision
in American Ship Building Co. v N.L.R B, 380 U S 300 (1965), superim-
posed on Buffalo Linen, where the respondent employer, although not
technically engaged in multiemployer bargaining with the only other daily
newspaper in Detroit (which had been struck), was in direct competition
with the latter, was bargaining with the same union, was faced with virtually
identical bargaining demands concerning renewal of contracts that had ex-
pired on the same date , and had itself been threatened with a strike when
the union suspended negotiations It is noteworthy , however, that the Board
upheld the lockout on the ground that "The interest of the News in using
economic pressure to implement its own bargaining *as thus grounded upon
a very real, direct, and immediate bargaining monvatiorAon its own behalf "
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find support in American Ship36 where, on the same day
that the Court decided Brown, it not only specifically reserved
the question of the legality of operating with replacements
during an offensive lockout (380 U.S. at 308, fn. 8),31 but
also noted, "There is no claim that the employer locked out
only union members, or locked out any employee simply
because he was a union member; nor is it alleged that the
employer conditioned rehiring upon resignation from the
union." (id. at 312). I find that the imposition of the con-
dition here, if attributable to Cooke, would supply the
ingredient lacking in American Ship, i.e., "an intention to
discourage union membership" (id. at 313).31
However, I am unable to conclude that either the statement
admitted by Montimurro or the statements attributed to him
by the General Counsel suffice to establish an unlawful mo-
tive on the part of Cooke Even though that company is liable
for the coercive tendency of the statement or statements, the
validity of its lockout must turn on its motive." And while
Montimurro's statements constitute some evidence of that
motive they are not sufficient, standing alone, to warrant
such a finding. He was but 1 out of 30 assistant managers
(whose supervisory status was challenged by the Union in the
negotiations), serving at a single branch out of ten operated
by the company. If the statements in question reflected com-
pany policy, it would be reasonable to expect that similar
urgings would have emerged elsewhere, and possibly from a
higher level of authority. Indeed I do not believe any order
at all to be warranted against Cooke on the basis of the single
statement or two made in these circumstances
I accordingly conclude that Gleason and Gutterman vi-
olated Section 8(a)(1) and (3), but that despite Cooke's viola-
tion of Section 8(a)(1) through Montimurro's statement or
statements, the complaint against Cooke should be dismissed.
36 Also urged as applicable to Cooke
31 See Inland Trucking Co ei al., d/b/a/ Oshkosh Ready-Mix Co, 179
NLRB 350 (1969), enfd 440 F 2d 562 (C A 7), cert denied 404 U S 858
(1971), but see Inter-Collegiate Press, 199 NLRB 177 (1972), affd sub nom
Bookbinders Local No. 60v N.LR.B, 486 F 2d 837 (C A 8, 1974), Ottawa
Silica Company, 197 NLRB 449, affd , 482 F 2d 945 (C A 6 (1973)), cert
denied, 85 LRRM 2465 (1974)
38 I would reach the same conclusion in respect to Gleason and Gutter-
man if certain ambiguous remarks of Respondent's counsel required passing
on an American Ship defense as to those companies If such a contention
is intended, however, despite the failure to advance it clearly, as it was
advanced in the case of Cooke, I would reject it as not grounded on the
record Both Gleason and Gutterman repeatedly testified to their having
informed their employees that the lockouts were only defensive counterac-
tions And Gleason's testimony in this respect was corroborated by his
witnesses, Gallagher and Philipps The sole variance was Gleason's tes-
timony when recalled to the stand after ample opportunity to consult with
counsel about his earlier testimony, and in answer to the question whether
he had had any other motive "than the one you have testified about earlier,"
he stated
A You know, come to think of it, my mind is a little more refreshed
in that regard, we were motivated to lock out the employees first in
support of our members And then also to bring an economic pressure
upon the union in that regard.
I discredit this testimony as completely fabricated and entirely at odds with
all the earlier testimony And since there is no credible evidence that either
Gleason or Gutterman entertained any motive other than the defensive
counteration, as explained to ther employees, they may not rely on any such
motive now Cf NLR B v. Great Dane T r a i l e r s , Inc, 388 U S 26,
34-35 (1967)
39 As indicated supra, General Counsel does not attack the lockout except
on the basis of Montimurro 's alleged statements
Gleason's Requests for the Employees' Statements
Notwithstanding the voluntary character of Gleason's re-
quests for the copies of the employees' statements and the
willingness of the latters' compliance therewith, applicable
Board law, supported by respectable judicial authority, re-
quires a finding that Gleason's conduct in this respect vi-
olated Section 8(a)(l) E g ., Robertshaw Controls Co., 196
NLRB 449, 455-456 (1972), enforcement denied in this re-
spect, 483 F.2d 762, 766-770 (C.A. 4, 1973); Braswell Motor
Freight Lines, 156 NLRB 671, 672, fn. 1, 675 (1966); Texas
Industries, Inc. v. N.L.R.B., 336 F.2d 128, 133-134 (C.A. 5,
1964); Surprenant Manufacturing Co. v N.L.R.B., 341 F.2d
756, 762-763 (C.A. 6, 1965); Retail Clerks Internation As-
sociation v. N.L.R.B., 373 F.2d 655 (C.A. D C., 1967).
CONCLUSIONS OF LAW
1 Respondents are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Gleason has violated Section 8(a)(1) and (3) of the Act
by locking out its licensed funeral directors and conditioning
their return to work upon their resignation from the Union.
4. Gleason has violated Section 8(a)(1) of the Act by re-
questing its employees for copies of statements they furnished
the Board in the course of the investigation of the charge
herein.
5. Gutterman has violated Section 8(a)(1) and (3) of the
Act by locking out its licensed funeral directors and condi-
tioning their return to work upon their resignation from the
Union.
6. Cooke has violated Section 8(a)(1) by Montimurro's
informing its locked-out employees that the only way they
could return to work was by resigning from the Union.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Cooke did not violate the Act by its lockout of its lic-
ensed funeral directors.
REMEDY
In order to remedy the unfair labor practices found herein,
my recommended Order will require Respondents Gleason
and Gutterman to cease and desist therefrom and from any
like or related conduct. In order to effectuate the policies of
the Act, my recommended Order will also require said Re-
spondents to make their locked-out employees whole for any
loss of earnings they may have suffered by reason of the
discrimination against them by payment to each of them of
a sum of money equal to that which he would have earned
during the period of his lockout, less net earnings during such
period, to be computed in the manner prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also
recommend the usual posting of notices by both of said Re-
spondents.
Upon the foregoing findings of fact and conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the Act, I hereby recommend the following:
11
MARTIN A. GLEASON, INC
ORDER40
A. Respondent Martin A. Gleason, Inc., its officers,
agents, successors , and assigns , shall-
1. Cease and desist from:
(a) Informing any employee during a bargaining lockout
that they will not be permitted to return to work for the
duration of the bargaining dispute unless they resign from
Local 100, Service Employees International Union,
AFL-CIO.
(b) Locking out its employees with the intention of barring
their return to work for the duration of a bargaining dispute
unless they resign from Local 100, Service Employees Inter-
national Union, AFL-CIO.
(c) Asking its employees for copies of statements they fur-
nished the Board in the course of the investigation of a
charge.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Make whole its locked-out employees for any loss of
earnings they may have suffered by reason of the discrimina-
tion against them during the lockout period in the manner set
forth in the section of this Decision entitled "Remedy."
(b) Post at its principal place of business at New York, New
York, and at such other establishments as it may operate,
copies of the attached notice marked "Appendix A."41 Co-
pies of said notice, on forms provided by the Regional Direc-
tor for Region 29, after being duly signed by an authorized
representative of Respondent Martin A. Gleason, Inc, shall
be posted by said Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by said Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director in writing, within 20 days
from the date of this Order, what steps said Respondent has
taken to comply herewith
B. Respondent Gutterman Funeral Home Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Informing any employee during a bargaining lockout
that they will not be permitted to return to work for the
duration of the bargaining dispute unless they resign from
Local 100, Service Employees International Union,
AFL-CIO.
(b) Locking out its employees with the intention of barring
their return to work for the duration of a bargaining dispute
40 In the event no exceptions are filled as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board , the find-
ings, conclusions , and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes
41 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States,Court of Appeals Enforcing an
Order of the National Labor Relations Board "
349
unless they resign from Local 100, Service Employees Inter-
national Union, AFL-CIO.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Make whole its locked-out employees for any loss of
earnings they may have suffered by reason of the discrimina-
tion against them during the lockout period in the manner set
forth in the section of this Decision entitled "Remedy."
(b) Post at its principal place of business at New York, New
York, and at such other establishments as it may operate,
copies of the attached notice marked "Appendix B."42 Co-
pies of said notice on forms provided by the Regional Direc-
tor for Region 29, after being duly signed by an authorized
representative of Respondent Gutterman Funeral Home,
Inc., shall be posted by said Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasona-
ble steps shall be taken by said Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing, within 20 days
from the date of this Order, what steps said Respondent has
taken to comply herewith.
C. The complaint against Walter B. Cooke, Inc.
(29-CA-3605) is dismissed.
42 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT inform any of our employees during a
bargaining lockout that they will not be permitted to
return to work for the duration of the bargaining dispute
unless they resign from Local 100, Service Employees
International Union, AFL-CIO.
WE WILL NOT lock out our employees with the inten-
tion of barring their return to work for the duration of
a bargaining dispute unless they resign from Local 100,
Service Employees International Union, AFL-CIO.
WE WILL NOT ask our employees for copies of state-
ments they furnished the Board during the investigation
of a charge
WE WILL NOT interfere in any similar manner with our
employees' rights under Section 7 of the National Labor
Relations Act.
WE WILL make whole our locked-out employees for
any loss of earnings they may have suffered during the
lockout period by reason of the discrimination against
them.
MARTIN A. GLEASON, INC.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT infrom any of our employees during a
bargaining lockout that they will not ber permitted to
return to work for the duration of the bargaining dispute
unless they resign from Local 100 , Service Employees
International Union , AFL-CIO.
WE WILL NOT lock out our employees with the inten-
tion of barring their return to work for the duration of
a bargaining dispute unless they resign from Local 100,
Service Employees International Union , AFL-CIO.
WE WILL NOT interfere in any similar manner with our
employees ' rights under Section 7 of the National Labor
Relations Act.
WE WILL make whole our locked-out employees for
any loss of earnings they may have suffered during the
lockout period by reason of the discrimination against
them.
GUTTERMAN FUNERAL HOME, INC.