Pallette Stone Corp., Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1959

125 N.L.R.B. 42 (N.L.R.B. 1959)

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not agree with the contentions of the General Counsel and counsel for Texas
that the cumulative effect of such conduct considered in conjunction with the sec-
ondary picketing of Texas in the instant situation , distinguishes this case from the
Royal case
With due respect , however, for the opinion of the Second Circuit Court of Appeals
in the Royal case , as a Trial Examiner I must apply controlling Board precedents
even though they may be at variance with the opinion of the court of appeals
The Board has held with judicial approval that by picketing the entrances of
secondary employers (customers ) which are normally used by the customers' em-
ployees and employees of suppliers, for the purpose of forcing the customer to cease
doing business with the primary employer, the union induces and encourages such
employees to engage in a strike or a concerted refusal to work, and therefore violates
Section 8 (b) (4) (A) See N L.R B v Laundry Linen Supply & Dry Cleaning
Drivers, Local 928 (Southern Service Co ), 262 F 2d 617 (CA 9), enfg 118
NLRB 1435, N L R B v Dallas General Drivers, Warehousemen and Helpers, Local
No 745, AFL-CIO (Associated Wholesale Grocery of Dallas), 264 F 2d 642,
enfg 118 NLRB 1251, Brewery & Beverage Drivers, Local No 67, etc (Washington
Coca-Cola Bottling Works, Inc) v N.L R B, 220 F 2d 380 (C A, D C ), District
Distributors , Incorporated (supplemental decision ), 122 NLRB 1259 In reaching
its decision in Southern Service Co, the Board specifically noted "the fact that the
picketing might also have had as an object an appeal to members of the consuming
public cannot serve as a defense to conduct which also involved inducement of
employee action with a proscribed object "
Under all the circumstances set forth above, and upon the record as a whole, I
find that Respondent 459 has violated Section 8 (b) (4) (A) of the Act 12
THE REMEDY
Having found that Respondent 459 has engaged in unfair labor practices , it shall
be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following
CONCLUSIONS OF LAW
I The Texas Company and Dictaphone Corporation are, and have been at all
times material to this proceeding , employers within the meaning of the Act
2 Business Machine & Office Appliance Mechanics Conference Board, Local 459,
International Union of Electrical, Radio & Machine Workers, AFL-CIO, has been,
at all times material to this proceeding , a labor organization within the meaning of
the Act
3 Respondent 459 has induced or encouraged employees of Texas to engage in
a strike or concerted refusal in the course of their employment to perform services
with the object of forcing or requiring Texas to cease doing business with Dictaphone
and has thereby engaged in unfair labor practices within the meaning of Section
8(b)(4)(A) of the Act
4 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication
12 It should be noted that the object of Respondent 459's picketing of Texas, namely to
force Texas to cease doing business with Dictaphone was conceded and was never in issue
in this proceeding
Pallette Stone Corporation, Inc. and International Union of
Operating Engineers , Local 106, AFL-CIO. Case No s-GA-
6161 November 12, 1959
DECISION AND ORDER
On June 15, 1959, Trial Examiner Charles W Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
125 NLRB No 18
PALLETTE STONE CORPORATION, INC. 43
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent,
the General Counsel, and Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, filed
exceptions to the Intermediate Report.' The Respondent and the
General Counsel also filed briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Beau, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.
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 Respondent, Pallette Stone
Corporation, Inc., Saratoga Springs, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union of Operat-
ing Engineers, Local 106, AFL-CIO, or in any other labor organiza-
tion of its employees, by discharging, refusing to reinstate, or in any
other manner discriminating in regard to hire or tenure of employ-
ment or any term or condition of employment.
(b) Assisting, contributing support to, or in any other manner
interfering with the administration of Local 294, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or with the formation or administration of any other
labor organization of its employees.
(c) Threatening employees with reprisals or making them promises
of benefit to discourage membership in or activity on behalf of any
labor organization, or interrogating them as to their union affiliation
or adherence in a manner violative of Section 8 (a) (1) of the Act.
'Local 294 ' s motion for permission to file exceptions to the Intermediate Report is
hereby granted.
'The Trial Examiner used statements contained in the affidavits of Respondent's wit-
nesses Manz and Levandusky to support his findings that Respondent had violated Sec-
tion 8(a) (1), (2), and (3) of the Act, we find that, apart from the affidavits, the evi-
dence is sufficient to uphold the Trial Examiner's findings . We consider the affidavits only
in their aspect as evidence sustaining the Trial Examiner ' s finding discrediting witnesses
Manz and Levandusky.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Refusing to bargain with International Union of Operating
Engineers, Local 106, AFL-CIO, as the exclusive representative of
its employees in the following unit found appropriate herein, with
respect to rates of pay, wages, hours of employment, or other terms
and conditions of employment:
All employees at its Saratoga Springs, New York, plant, excluding
guards, watchmen, and supervisors as defined in the Act.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right of self-organization, to form
labor organizations, to join or assist International Union of Operat-
ing Engineers, Local 106, AFL-CIO, or any labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive 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 organiza-
tion 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 Ernest Johnson and Ernest Germaine immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of earnings they may have
suffered by reason of the discrimination against them, in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Preserve and, upon request, snake available to the National
Labor Relations Board, or its agents, for examination and copying,
all records necessary for the determination of the amount of backpay
due and the right of reinstatement under the terms of this Order.
(c) Upon request, bargain collectively with International Union
of Operating Engineers, Local 106, AFL-CIO, as the exclusive repre-
sentative of the Respondent's employees within the above-described
appropriate unit, and, if an understanding is reached, embody such
understanding in a signed agreement.
(d) Post at its Saratoga Springs, New York, plant, copies of the
notice attached to the Intermediate Report marked "Appendix." 3
Copies of said notice, to be furnished by the Regional Director for
the Second Region, shall, after being duly signed by the Respondent's
authorized representative, be posted immediately upon receipt thereof,
3 This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and Order ." 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."
PALLETTE STONE CORPORATION, INC.- 45
in conspicuous places, including all places where notices to employees
are customarily posted, and maintained by it for at least 60 con-
secutive days thereafter. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Second Region in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges in the above-entitled proceeding having been filed and duly served, a
complaint and notice of hearing thereon having been issued and served by the
General Counsel of the National Labor Relations Board, and an answer having
been filed by the above-named Respondent, a hearing involving allegations of unfair
labor practices in violation of Section 8(a)(1), (2), (3), and (5) of the National
Labor Relations Act, as amended, was held in Saratoga Springs, New York, on
April 13, 14, 15, and 16, 1959, before the duly designated Trial Examiner.
All parties were represented by counsel and participated in the hearing, and were
afforded full opportunity to be heard, to present pertinent evidence, and to examine
and cross-examine witnesses. Opportunity was also afforded for oral argument and
the filing of briefs. Briefs have been received from General Counsel and the
Respondent.
At the conclusion of the hearing ruling was reserved upon the Respondent's
motion to dismiss the complaint. Disposition of said motion is made by the follow-
ing findings, conclusions, and recommendations.
Upon the basis of the entire record in the proceedings, and from his observation
of the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Pallette Stone Corporation, Inc., is a New York corporation having its principal
office and place of business in Saratoga Springs, New York. It operates a plant at
Saratoga Springs and another at Corinth, New York. It is engaged in the quarrying,
crushing, sale, and distribution of crushed stone, sand, gravel, and related products.
During the year ending September 30, 1958, the Respondent produced, sold, and
distributed at said plants products valued at more than $600,000, of which total
products valued at more than $150,000 were furnished to Acme Construction Com-
pany, an enterprise which annually engages in construction work valued at more
than $50,000 outside the State in which said enterprise is located.
The Respondent concedes , and it is found , that it is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union of Operating Engineers , Local 106, AFL-CIO, and Local 294,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, are labor organizations , admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
From the following preliminary summary of events stem the major issues in
the case.
In mid-August 1958 , Ernest Johnson , an employee at the Saratoga Springs plant,
obtained signatures of his fellow -employees upon application cards for Local 106,
the Charging Union. On August 25 an official of that Union visited the plant and
demanded recognition and a contract from Pallette , the head of the concern.
Pallette referred him to Attorney Duval, counsel for the Respondent. Duval in-
formed the union official that before taking other action he wanted to talk to the
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees while the representative was not present, and the latter agreed. The
next day Duval had the plant superintendent, Andrew Manz, assemble all employees
at the Saratoga plant and the attorney then conducted a vote by secret ballot to
determine whether they wanted a union or not. Testimony agrees that of some
22 ballots cast all but 2 were "yes." Despite this employer-conducted poll, which
plainly demonstrated the majority-representative status of the only labor organization
then seeking recognition, the plant superintendent called another meeting of em-
ployees within a few days and, as found in detail below, threatened them with
economic reprisals if they continued to demand union representation. After such
remarks of their supervisor, the employees formed a committee of spokesmen to
interview Pallette. Duval then canceled a meeting he had agreed to hold with
representatives of the Union, and proceeded to draw up a contract to be signed by
employees individually. Employees were called into the plant office for signing.
Two employees, Ernest Johnson and Ernest Germaine, declined to sign and both
were summarily discharged a few days later. About a week after these discharges,
Superintendent Manz distributed for signatures among the employees cards for the
Teamsters, Local 294.
General Counsel claims as unfair labor practices, and the Respondent denies, the
refusal to bargain with the Charging Union, the dismissals of Johnson and Germaine,
unlawful assistance to Local 294, and other specific acts of interference, restraint,
and coercion.
B. Interference , restraint, and coercion
There being no real dispute as to the occurrence but only the nature and causal
motives of the two chief matters at issue-the discharges and the refusal to bar-
gain-it may be well first to turn for enlightenment and approval to the conduct and
oral statements by responsible agents of the Employer, or by Pallette himself.
At the outset, it was made clear at the hearing through the testimony of Superin-
tendent Manz and later in the Respondent's brief, that Pallette as an individual took
little overt part in events following the self-organization of his employees. He was
present at the hearing but not a witness. As counsel state in their brief: "Mr.
Pallette . . . is unable to read English and . . . is hard of hearing." Pallette ap-
pears to have left the actual dealing of management with the Union to his attorney
and his superintendent.
Upon repeating his demand for recognition and a contract to Duval, having been
referred to the attorney by Pallette, Union Representative McGraw was informed
that Duval first wished to talk to the employees while McGraw was not present.
McGraw agreed. A day or two later, according to his own testimony, Superintendent
Manz was told by Duval to assemble all the employees, and he did so. Duval pre-
sided at the assembly and told the employees to vote for or against a union, by
marking a "yes" or "no" upon slips of paper then distributed.,
The Trial Examiner concludes and finds that Duval conducted this poll for the
initial purpose of ascertaining whether or not there was merit to McGraw's claim-
that Local 106 represented a majority of the employees, and that the employees
generally understood in voting that Local 106, and only Local 106, was involved in
the ballot. There is no credible evidence that any other labor organization had at
the time raised the question of representation or, indeed, had made any effort to
organize Pallette's employees. Duval took away with him, it is undisputed, the
ballots which showed by a vote of about 20 to 2 that a clear majority wanted to be
represented by the Charging Union.
Despite this proof, obtained by himself, that McGraw's claim of majority was
well founded, as noted in a later section, Duval chose to avoid meeting with the
Union.
A few days after the ballot Manz again assembled the employees and in substance
told them that:
(1) They should have gone first for a raise to Pallette before voting for a union.
i The finding that Duval specifically called for a vote to determine whether or not the
employees wished to be represented by a union rests upon the credible testimony of several
employees and an admission by Manz in his sworn statement to a Board agent. The
Trial Examiner can credit neither Manz' testimony at the hearing to the effect that
Duval did not mention "union" but simply told the employees the vote was "just to get to
know who is who," nor Duval's flat denial that he used the word "union." Manz' version
of the question posed by Duval patently is meaningless, and the Trial Examiner acquired
during the hearing too great respect for Duval's legal capabilities to believe that he ex-
pected, asked for, or got a vote on the proposition of "getting to know who is who."
Indeed in his testimony Duval made no attempt to offer such an incredulous claim as to
what he did say-but merely denied that he had used the word "union."
PALLETTE STONE CORPORATION, INC. 47
(2) If they "didn 't go union" he believed that Pallette would give them a raise
of 25 cents an hour and a paid vacation.
(3) If the plant "went union" Pallette would or might:
a. reduce hours from 48 or 53 to 40 per week;
b. sell the business;
c. buy a big end-loader to replace the several smaller ones then in use and thus
eliminate existing jobs; and
d. contract out work then being performed by his employees?
That the superintendent's threats and promises at this meeting had a prompt and
coercive effect is established by the fact that upon their utterance a number of the
employees decided that direct approach to Pallette should be made, and themselves
chose a committee of spokesmen to see about the wage increase and vacation Manz
had, in effect, promised them if they dropped their adherence to the Union.3
The Trial Examiner concludes and finds that the above-described conduct of Duval
in conducting the poll and of Manz in uttering promises of benefit and threats of
reprisal not only made manifest the Respondent's hostility toward the Union but also
constituted acts of interference, restraint, and coercion of employees in the exercise
of rights guaranteed by the Act. Duval's polling of employees is tainted by illegality,
and may not be condoned as a mere effort to obtain information, because of the
immediately following illegal conduct by Manz in attempting to undermine the
Union as the employee's chosen representative, and his own illegal conduct in obtain-
ing signatures to the individual contract, as found below.
C. The discriminatory discharges of Johnson and Germaine
Ernest Johnson and Ernest Germaine, the only two employees who refused to
sign, as individuals, the contract drawn up and presented to them by Duval, were
within a few days after such refusal summarily dismissed by Manz. The contract
was signed by others on or shortly after September 5. Johnson and Germaine were
fired without previous warning on September 13.
As a witness Manz claimed that Johnson was terminated because Pallette had
decided to have welding done by outside contractors, and that Germaine was let go
because he had been hired as a temporary employee and there was no more work
for him.
Manz' claimed reasons for discharging Johnson fail to withstand the scrutiny of
reason in the light of the following facts:
(1) Johnson had been employed for a period of about 12 years; and for the past
10 years had performed some welding at the plant. That only a minor part of his
weekly hours was devoted to welding is admitted by Manz himself, who said that of
his weekly 6 days' work, welding occupied but 1 day.
(2) Johnson's major duties were many and varied, and no evidence was adduced
that he was not needed to perform such work on and after September 13.
(3) Manz' testimony as to when Johnson's termination was decided upon is
vague and unconvincing. As a witness he at first said he and Pallette had initially
2 The findings as to Manz' remarks at this meeting are based upon the credible testimony
of employees present and admissions in the superintendent 's affidavit, previously referred
to. His denials as a witness are not credited. His vacillating testimony when con-
fronted with his affidavit, as shown by the record, detracts from reliance to be placed upon
any of his unsupported testimony.
a During the hearing the Trial Examiner granted a motion by the Respondent to dis-
miss a specific allegation in the complaint to the effect that, through Duval and Manz,
the Respondent "caused the initiation and formation of an employee committee to meet
with and discuss . . . rates of pay," etc. The ruling was based upon the testimony of
General Counsel's chief witness, Johnson, himself a member of the committee, to the
effect that Manz had "no part" in the formation of the committee. There is no evidence
that either Manz or Duval even suggested such a committee. As noted above, the gist
of Manz' advice was that they could get a raise and other benefits if they went as em-
ployees, and not through a union, to Pallette. And as noted hereinafter the ultimate
result was that Duval obtained to a contract the signatures-not of a committee-but
of the employees individually. While it might be argued that because Manz promised
employees benefits if they dealt directly with Pallette the employees chose three spokes-
men to go to Pallette, the Trial Examiner considers such inference of Manz' accountability
for the actual initiation and formation as both tenuous and unnecessary. There exists,
so far as the record shows, no committee against which any remedy is sought. That
Pallette dealt with this committee, once formed, at a time when the Union was the
chosen representative of all employees, is of course another matter, and is included among
other unfair labor practices described later.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determined to dismiss Johnson "probably six months previous" to the actual action.
Then he said the decision was reached in August. In his affidavit of December 4,
1958, Manz declared that "Three or four days (before September 13).. . Pallette
told me that we were going to have our welding done outside the plant and that I was
to discharge Johnson."
When dismissing Germaine, Manz told him, according to the superintendent's
own testimony, that the "lime business was just about over with" and according to
the employee's testimony that "he wouldn't need me any more."
The following facts fail to support the validity of the reasons given by Manz for
Germaine's dismissal:
(1) Other testimony given by the superintendent establishes that the "lime busi-
ness"-at least that part of it which Germaine had been concerned with-did not
close in mid-September, but continued in full operation until the latter part of
October or early November.
(2) Germaine had been working on the night shift as helper to the two lime
mill operators, alternately serving as helper to Operators O'Dell and Kennedy.
(3) The same day that Germaine was dismissed a new employee, Roberson,
was hired at the same pay. According to the uncontradicted testimony of both
O'Dell and Kennedy, Roberson took over and proceeded to perform the same work
as helper as had been performed by Germaine.
(4) The claim that his new employee, Roberson, was called a "night watchman"
and, apparently, given some added duties described by Manz "to go around the
plant and see that everything was all right" fails to establish, in the opinion of the
Trial Examiner, either that a wholly new job was created, or that any part of it
entailed functions Germaine was not fully capable of performing. As noted, the pay
of the two was the same. And Manz admitted that at least for the preceding 2 years
there had been no one employed called a "night watchman."
There being no merit in the reasons advanced by the Respondent for the two
discharges, and the Respondent's hositility toward the Union having been established
in the preceding section, the Trial Examiner is convinced and finds that both Johnson
and Germaine were actually discharged because they refused to sign the contract
presented on or about September 5 by Duval, and to discourage further efforts on
the part of employees to bargain collectively through the Union as their chosen
representative. Manz' testimony shows that he was aware of Johnson's leadership
in union activity from its beginning. And Germaine's testimony is uncontroverted
that when he declined to sign the contract which Duval asked him to sign, the act-
ing secretary of the Respondent Corporation, Levandusky, chided him as being.
"odd" because he would not sign as had the others.
By discriminatorily discharging Johnson and Germaine for the purpose of dis-
couraging union membership and activity, the Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed by the Act.
D. The refusal to bargain
1. The unit
There is no real dispute that the Respondent did, in fact, refuse to recognize and
bargain with the Charging Union as the exclusive representative of employees at
Pallette's Saratoga Springs plant. The answer states:
Respondent admits that it has refused to recognize International Union of
Operating Engineers, Local 106, AFL-CIO, and alleges that it has always
bargained directly and individually with its employees concerning rates of
pay . . . etc.
And during the course of the hearing, counsel for the Respondent conceded:
. we admit a refusal to recognize. . .
At the hearing and in their brief, counsel for the Respondent appear to suspend
their defense for thus refusing to recognize the Union between two stools: (1) that
no real demand was madeby the Union, and (2) that the unit claimed by General
Counsel or the Union is inappropriate. Both of these defenses patently are after-
throughts: neither is alleged as an affirmative defense in the answer-where the sole
affirmative allegation on this point is as quoted above-and neither was claimed by
Duval, in his testimony, as a reason for refusing to deal with Local 106.
First, however, as to the unit alleged as appropriate in the complaint. That
allegation is as follows:
All employees of Respondent Company at its Saratoga Springs, plant, exclusive
of pit drivers, on-the-road drivers, guards , watchmen, and supervisors as de-
PALLETTE STONE CORPORATION, INC. 49
fined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
This allegation is an obvious and unexplained refinement of the group which the
Union claimed to l'epresent in its original charge or which McGraw, as a witness,
said that he made claim of representing when first demanding recognition of Pallette.
The charge refers to "a majority of the employees" at the Saratoga Springs plant.
And the testimony of McGraw is clear and unambiguous that at the first meeting
with Pallette, on August 25, he told him "we had a majority of the . employees
or men working at the Pallette Stone Plant there signed up." While there is a good
deal of testimony in the record concerning "truckdrivers" at this plant, no valid
reason for excluding them is apparent either in such evidence, in the charge, or in
the actual demand made by McGraw. Furthermore, documentary evidence shows
that before August 25, when the demand was made, of the 21 employees at this
plant (including 4 classified either as "pit drivers" or "truckdrivers") 13 of them
had signed cards designating Local 106 as their bargaining agent.
At the time of the demand for recognition, therefore, Local 106 represented a
majority of all employees at the Saratoga plant, whether drivers be included in the
unit or not.
Turning now to the Respondent's claim which is, in effect, that the only appropri-
ate unit must include the employees at Pallette's other plant, in Corinth. This
connection may quickly be disposed of as without merit for the following reasons:
(1) The two operations are not adjacent or nearby, but 12 miles apart.
(2) There is no interchange of employees between the two operations.
(3) The payroll records of the two operations are "segregated for the purposes
of convenience." 4
(4) While Pallette as owner has control over policies at both plants, it appears
clear that Superintendent Manz is in charge of employees only at Saratoga Springs
and that to him only are the Saratoga Springs employees directly responsible in gen-
eral matters of employer-employee relations.
In view of the above findings, the Trial Examiner perceives no merit either in the
restricted unit alleged by General Counsel or the expanded unit claimed by the
Respondent. It is concluded and found that the unit claimed by the Union, and so
understood to be claimed by the Respondent, is an appropriate unit for the purpose
of collective bargaining within the meaning of the Act. That unit is:
All employees of the Respondent at its Saratoga Springs plant, exclusive of
guards, watchmen, and supervisors as defined in the Act.5
2. The majority
As found in the preceding section on August 25, 1958, 13 of a total of 21 em-
ployees on the Saratoga Springs payroll had designated the Charging Union as their
bargaining agent. And Duval's poll of the employees a day or so after the demand
had been made for recognition plainly revealed to the Respondent that an even
greater majority wished the Union to represent them.
The Trial Examiner therefore concludes and finds that on August 25, 1958, and
at all times since then, the Charging Union has been and is now the exclusive repre-
sentative of all employees in the above-described appropriate unit for the purposes
of collective bargaining.
3. The refusal to recognize and bargain
The Respondent's refusal to recognize the Union as the bargaining agent of its
Saratoga Springs employees is conceded.
That it likewise refused to bargain, contrary to the Respondent's claim in the
brief, is made clear by the following facts:
(1) Upon receiving on August 25 the Union's claim of majority representation
and its demand that a proposed contract be considered, Pallette referred the union
representative to Duval.
(2) Upon receiving a similar demand Duval deferred answer until he had talked
with the employees.
(3) Duval, as previously found, polled the employees and the result confirmed
the Union's claim of majority.
* The quotation is from the Respondent's offer of proof in the record.
.6
The exclusions noted are, of course, required by the Act.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) McGraw, for the Union , again called Duval regarding the contract , and the
attorney agreed to see him and his attorney later, pointing out that there were some
provisions in the contract submitted that he did not like. McGraw said he would
be away for a few days , but another union representative would : meet with Duval,
(5) The meeting proposed by Duval was , according to his own testimony, can-
celed by him.
(6) The reason advanced by Duval for canceling the meeting is without support
elsewhere in the record . He said:
The reason why I cancelled it, was that there were two unions involved, both
claiming all the men , and there was also some talk of another union, the Hod
Carriers union.
The other of the "two" unions, his testimony implies, was the Teamsters , Local 294.
Duval 's cancellation of the meeting with the Union was on September 2. As found
in more detail below, however , there was no Teamster cards signed until late in
September, after a charge had been filed by Local 106, and then only upon the
solicitation of Superintendent Manz.
(7) Despite the clear demonstration of majority by Local 106, Acting Secretary
Levandusky 's testimony establishes that on or about August 30 Pallette dealt with
the employee committee and granted them paid holidays, vacation pay, and promised
them word about a pay raise after Labor Day.
(8) On September 1, after the Charging Union had made its demand for recogni-
tion , the Respondent unilaterally granted a general wage increase of 45 cents an hour.
(9) On September 5, 3 days after he had canceled a meeting with the Charging
Union , Duval appeared at the plant and obtained signatures of all employees except
Johnson and Germaine to a contract which was drawn by himself.
The Trial Examiner concludes and finds that by refusing , on August 30, 1958,
and thereafter as above found to bargain collectively with Local 106 as the exclu-
sive representative of its employees in an appropriate unit, the Respondent inter-
fered with , restrained , and coerced employees in the exercise of rights guaranteed
by the Act.
E. Assistance to the Teamsters
The complaint alleges and the answer denies that the Respondent has rendered
unlawful assistance and support to Local 294, Teamsters.
The allegations of the complaint in this respect are fully sustained by the following
facts:
(1) On September 15, 1958 , the Charging Union filed with the Board its original
charge , specifying among other claimed unfair labor practices that the Respondent
had solicited signatures to the contract of September 5, described above. On
September 19 that charge was served upon the Respondent.
(2) Shortly after the filing of this charge ( Manz' affidavit fixes the time as "the
last part of September" while that of Levandusky states "about a week after Johnson
and Germaine were terminated" which would have been about September 20) a
representative of the Teamsters, Local 294, appeared at the plant and left a number
of application cards with Levandusky.
(3) According to Manz' sworn affidavit, "Levandusky gave them [ the cards] to
me and told me to hand them out to the men. I passed them out to 14 men at
Saratoga and to 2 men at Corinth. . They signed and more than half of them
returned them to me with their initiation fees of about ten dollars . The others
turned their signed cards and money in to Levandusky."
(4) When Manz gave a card to employee Kennedy, according to the latter's un -
disputed testimony , the superintendent said: "Here is a card. You can sign it if
you want to . If you sign this, this will keep you from getting kicked off your job,
run off your job."
The Trial Examiner concludes and finds that such organizational assistance ren-
dered by Levandusky and Manz to the Teamsters , Local 294, was violative of the
Act, and constituted interference , restraint , and coercion of employees in the exercise
of rights guaranteed by the Act.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section 1, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
PALLETTE STONE CORPORATION, INC. 51
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It will be recommended that the Respondent, upon request, bargain collectively
with International Union of Operating Engineers, Local 106, AFL-CIO, as the
exclusive representative of employees in the appropriate unit described herein and,
in the event an understanding is reached embody such understanding in a signed
agreement.
It will, also be recommended that the Respondent offer Johnson and Germaine
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without loss of seniority or other rights and privileges, and make them whole
for any loss of pay they may have suffered by payment to each of then of a sum
of money equal to that which he would normally have earned as wages, absent the
discrimination against him, from the date of discrimination to the date of the
Respondent's offer of full reinstatement, less their net earnings during said period,
and in a manner consistent with Board policy set out in F. W. Woolworth Company,
90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440. It will be recom-
mended that the Respondent, upon request, make available to the Board and its
agents all payroll and other records pertinent to the analysis of the amounts of
backpay due.
Since the violations of the Act which the Respondent committed are related to
other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is reasonably to be anticipated from its past conduct, the pre-
ventive purposes of the Act may be thwarted unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act, therefore, it will
be recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Local 106, AFL-CIO, and Local
294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, are labor organizations within the meaning of Section 2(5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of em-
ployees Ernest Johnson and Ernest Germaine, thereby discouraging membership in
a labor organization, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (3) of the Act.
3. By assisting and contributing support to the administration of Local 294,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(2) of the Act.
4. All employees of the Respondent at its Saratoga Springs plant , exclusive of
guards, watchmen, and supervisors as defined in the Act, constitute a unit of the
Respondent 's employees appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
5. International Union of Operating Engineers, Local 106, AFL-CIO, was on
August 25, 1958 , and at all times since then has been , the exclusive representative of
all employees in the aforesaid unit for the purpose of collective bargaining within
the meaning of Section 9 (a) of the Act.
6. By refusing , on or about August 30 , 1958, and thereafter , to recognize and
bargain collectively with International Union of Operating Engineers , Local 106,
AFL-CIO, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
7. By interfering with , restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union of Operating
Engineers, Local 106, AFL-CIO, or in any other labor organization of our
employees, by discharging, refusing to reinstate, or in any other manner dis-
criminating in regard to their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT assist, contribute support to, or in any other manner interfere
with the administration of Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or with the formation and
administration of any other labor organization.
WE WILL NOT threaten employees with reprisals or make them promises of
benefit to discourage membership in or activity on behalf of any labor organi-
zation, or interrogate them as to their union affiliation or adherence in a manner
violative of Section 8 (a)( I) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of the right of self-organization, to form labor organiza-
tions, to join or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, 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
organization as a condition of employment, as authorized in Section 8(a)(3) of
the Act.
WE WILL offer Ernest Johnson and Ernest Germaine immediate and full re-
instatement to their former or substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges, and make them whole
for any loss of earnings they may have suffered by reason of the discrimination
against them.
WE WILL, upon request, bargain collectively with International Union of
Operating Engineers, Local 106, AFL-CIO, as the exclusive representative of
our employees in the appropriate unit described herein, and, if an understand-
ing is reached, embody such understanding in a signed agreement. The said
appropriate unit is:
All employees at our Saratoga Springs, New York, plant, exclusive of
guards, watchmen, and supervisors as defined in the Act.
PALLETTE STONE CORPORATION, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Nebraska, Illinois, Colorado Express, Inc., d/b/a Nates Truck
Line, Inc. and Clealon Bray. Case No. 30-CA-697. Novem-
ber 12, 1959
DECISION AND ORDER
On June 30, 1959, Trial Examiner Wallace Royster 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 therefrom
-and take certain affirmative action, as set forth in the copy of the
125 NLRB No. 17.