Pepper & Potter, Inc.

National Labor Relations Board - Board Decisions

May 13, 1953

104 N.L.R.B. 951 (N.L.R.B. 1953)

PEPPER & POTTER, INC. 951
All production and maintenance employees at the Em-
ployer's paint, varnish, and enamel plant at,Cliicago, Illinois,
excluding salesmen, office clerical employees, laboratory
employees, professional employees, and supervisors as de-
fined in the Act.
Because we have overruled the Union's exceptions, and
because the tally of ballots shows that the Union lost the
election, we shall issue a certification of results of election
to this effect.
CERTIFICATION OF RESULTS OF ELECTION
IT IS HEREBY CERTIFIED that a majority of the valid
ballots hes not been cast for Paint, Varnish, Lacquer &
Allied Products, Local 950, Brotherhood of Painters, Decora-
tors & Paperhangers and Miscellaneous Warehousemen, Local
781, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, and that the said
labor organization is not the exclusive representative of the
employees of the Employer, in the unit heretofore found
appropriate, within the meaning of Section 9 (a) of the Na-
tional Labor Relations Act.
PEPPER & POTTER, INC. and RALPH DIAMOND, COSMO
BARBIERI, ELIAS DEGESTN'OS, JOSEPH LINYEAR,
HAYNES O'NEIL, NATHAN SACHER, JOHN E. McCOVERY,
HARRY TIMMERMANN; AND MARGARET O'LEARY LAN-
DOLFI. Case No. 2-CA-1912. May 13, 1953
5
DECISION AND ORDER
On November 12, 1952, Trial Examiner Frederic B. Parkes
II issued his Intermediate Report in the above-entitled pro-
ceeding, finding that the Respondent had engaged in and was
engaging in certain unfair labor practices in violation of
Section 8 (a) (3) and (1) of the Act, and recommending that the
Respondent cease and desist therefrom and take certain
affirmative a tion, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in a certain other alleged un-
fair labor practice and recommended that the complaint be
dismissed with respect thereto.' Thereafter the Respondent
filed exceptions to the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner
at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions, and the entire
record in this case, andhereby adopts the findings, conclusions,
1 In the absence of exceptions to the Trial Examiner 's finding that the discharge of Margaret
O'Leary Landolfi did not constitute a violation of the Act, we shall dismiss the complaint
with respect thereto.
104 NLRB No. 126.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and recommendations of the Trial Examiner with the following
additions :
We agree with the Trial Examiner that the activities of the
Respondent's employees in connection with their change in
affiliation from Local 977 to Local 259, both locals of the
International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, UAW -CIO, and their
ensuing requests to, and negotiations with, the Respondent
were protected concerted activities within the meaning of the
Act. Accordingly, we find, as did the Trial Examiner, that such
activities cannot serve the Respondent as a basis for the
discharges.
The Respondent also urges byway of defense to the complaint
that it was justified in discharging these employees because of
an alleged repudiation by them of the existing contract by re-
fusing to work in accordance with its terms. In support of this
contention, the Respondent relies on the rule in the Sands case.'
Like the Trial Examiner, we find no merit in this contention.
In our opinion, the Sands case is entirely distinguishable. As
the Board has characterized the situation present in that case,
there was "such hardening in the attitudes of the negotiators
as is customarily recognized as a bargaining impasse . . .
which, under certain circumstances, may justify unilateral
action by an employer."' Moreover, the union in the Sands
case, after the parties had had "repeated meetings" to discuss
the terms of the existing contract, confronted the company with
an ultimatum of either adopting the union's position or closing
its plant, conduct which the Supreme Court characterized as a
strike in breach of contract.4
We have carefully analyzed the record here and find that it
clearly presents no such situation. Neither the employees nor
the representative of Local 259 took an adamant or unalter-
able position or engaged in a strike. Rather, it was the
Respondent who evinced a determination to force the issue.
The employees' position, based on their interpretation of the
existing contract's provision with respect to its termination
prior to its expiration date, was not so unreasonable as to
support a conclusion that they were determined to repudiate
the contract.' This position was advanced only at the first
actual meeting with the Respondent,° and not pressed there-
2N. L. R. B. v. Sands Manufacturing Co., 306 U. S. 332.
SBradley Washfountain Co., 89 NLRB 1662.
4Automobile Workers v. Wisconsin Board, 336 U. S. 245.
sin the Sands case, the Court found that the contract provision was devoid of any ambiguity,
and that "the record makes it clear that the committee which negotiated the contract on
behalf of the union fully understood its terms in the same sense as did the respondent." This
is not true here. On the contrary, as our dissenting colleague points out, "The employees ...
switched their membership to Local 259... in the mistaken belief that under section 40 of
the contract this action would be effective to work a legal termination of the contract."
6 The testimony of Respondent's counsel cited by our dissenting colleague to the effect that
this meeting ended with "strong assurances" from Local 259 and the shop steward "that the
contract was at an end and that the men would not work under it" is, of course, only counsel's
characterization of his own impression of the meeting. It is not, consequently, reliable
evidence upon which to base a conclusion that the employees terminated their contract.
G. 1
PEPPER & POTTER, INC. 953
after at the instance of the employees . Nevertheless, the
Respondent on the next day took the initiative in its own hands,
called the employees together , and demanded that each affirm
or disaffirm the requests made by their representative the
day before . When the employees affirmed, the Respondent took
the precipitate action of then and there discharging each of the
employees.
We cannot agree with our dissenting colleague that the em-
ployees "terminated" or "repudiated" their contract by their
conduct as evidenced by the conferences of April 17 and 18,
1951 . The record shows that there was a change of affiliation
by the employees from Local 977 to Local 259 which, so far
as can be determined from the testimony , Local 977--a local
of the same International --did not oppose; that Local 259,
because of dissatisfaction among the employees and because
it interpreted the terms of the existing contract to warrant
it, sought , through negotiation , to obtain a new contract; and
that during the course of the initial meeting between the Union
and the Respondent , Local 259' s representative emphasized
the dissatisfaction of the rank-and-file with the current con-
tract by stating that the men would not work under it. No
mention was made of a strike nor was there any amplification
of this remark . 7 To convert this factual situation into a strike
situation --as our dissenting colleague evidently does without
specifically saying so --is to reach a conclusion not only un-
supported by the facts but fraught with dangerous implications
as well . In the day-to-day course of labor-management rela-
tions it is by no means unusual for parties to a contract - -wheth-
er employer or union--to evince dissatisfaction with its terms
and to seek to enter into negotiations looking to changes. On
such occasions , it is likewise not unusual for one or more of
the parties to underscore its position with the kind of state-
ment that was made here . To seize only upon such statements
without regard to the entire discussion , to use them to taint
the conduct of the employees with illegality, and in that way
to remove the protection of the Act from what are clearly
concerted activities , would, in our judgment, imperil the very
rights which the Act guarantees employees , and which are
basic in the policies of the Act.
Under these circumstances , and on the basis of the entire
record, we find that the discharge of employees Diamond,
Barbieri , Degestinos , Linyear, O'Neil, Sacher, McCovery,
and Timmermann because they had engaged in protected con-
certed activities, constituted interference , restraint, and
coercion , within the meaning of Section 8 (a) (1), as well as
discrimination in regard to hire or tenure of employment,
within the meaning of Section 8 (a) (3). Whether the dis-
criminatory conduct is viewed as a violation of Section 8
7 The dissent relies heavily on the partial work stoppage of April 12 and 13 to buttress its
position that a strike was inevitable. Aside from the fact that action was waived by the Re-
spondent, as the Trial Examiner points out, the fact that the Local 259 representative did not
even know about the stoppage , and when he was informed , sent the men back to work, clearly
indicates that the stoppage was not part ofa union "plan, " was limited solely to the grievance
dispute, and was wholly unrelated to Local 259's request for contract negotiations.
9 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) (1) or 8 (a) (3) of the Act, we find that effectuation of the
policies of the Act requires that these complainants be
offered reinstatement with back pay, as recommended by the
Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, Pepper &
Potter, Inc., New York, New York, its agents, officers, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 259, International
Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, UAW-CIO, or any other labor
organization of its employees, by discriminating in regard to
the hire and tenure of their employment or any term or con-
dition of employment.
(b) Interrogating employees as to their union affiliation,
sympathies, desires, and activities, or in any other manner
interfering with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form labor
organizations, to join or assist Local 259, International Union,
United Automobile, Aircraft and Agricultural Implement Work-
ers of America, UAW-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any or all of such activities ex-
cept to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the
Act, as guaranteed in Section 7 thereof.
2. Take the following action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Ralph Diamond, Cosmo Barbieri, Elias De-
gestinos, Joseph Linyear, Haynes O'Neil, Nathan Sacher,
John E. McCovery, and Harry Timmerman immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make them whole, in the manner set forth
in the section of the Intermediate Report entitled "The
Remedy," for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them.
(b) Post at its service shop in New York, New York,
copies of the notice attached to the Intermediate Report
and marked "Appendix A."8 Copies of such notice, to be
8 This notice shall be 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."
PEPPER & POTTER, INC. 955
furnished by the Regional Director for the Second Region
(New York, New York), shall, after being duly signed by
the Respondent's duly authorized representative, be posted
by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of at least sixty (60) con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Second Region, in
writing, within ten (10) days from the date of this Order what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as
it alleges that the Respondent discriminatorily discharged
Mar aret O'Leary Landolfi in violation of Section 8 (a) (3)
and (1) of the Act, be, and it hereby is, dismissed.
Member Murdock, dissenting:
I find it impossible to concur in the conclusion of my
colleagues that the Respondent violated Section 8 (a) (3) of
the Act through the discharge of these employees. In my
opinion, the burden of observing the terms of a collective-
bargaining contract falls equally on the shoulders of both
labor and management, and the refusal of one party to per-
form its contractual obligations should not be both excused
and rewarded through a tenuous legal interpretation of the
facts.
The subsidiary facts, themselves, are uncontroverted. The
Respondent was committed by the statute to bargain with
Local 977 as the certified representative of its employees
under a certificate less than a year old. This duty it per-
formed and a valid contract was signed pledging both the
Respondent and Local 977, together with these employees,
to certain wages, hours, and conditions of employment for
a stated period. During the term of that contract, and but a
few short months after the certification of Local 977, it is
apparent that the employees became dissatisfied with the
collective bargain they had made through that representa-
tive. The employees thereafter switched their memberships
to Local 259 of the same International Union in the mis-
taken belief that under section 40 of the contract this action
would be effective to work a legal termination of the contract.
There can be no question that this action did not, in fact or in
law, terminate the contract they had made.9 Nevertheless,
despite the fact that Local 977 was their certified bargaining
representative, through Local 259 the employees notified the
Respondent of their action and demanded negotiation of a new
agreement . This demand was followed by a work stoppage
9Local 977 continued to exist . The conditions for termination of the contract provided in
section 40--Local 977's ceasing to be an accredited affiliate of the C. I. 0., or becoming
"merged , amalgamated , consolidated" or "absorbed" by another C. I. O. local,-- accordingly
did not arise.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apparently in connection with dissatisfaction over a grievance
disposed of in accordance with the existing contract. This
work stoppage, it may be observed, although of short dura-
tion, was clearly in violation of that contract.
Thereafter , at a meeting of the Respondent , a Local 259
representative , and the shop steward, the Respondent was
told that the contract with Local 977 "would not be lived up
to by the men" because of dissatisfaction with its tems and
that the Respondent must negotiate a new contract with Local
259. According to the testimony of the Respondent's counsel,
as credited by the Trial . Examiner, the meeting concluded with
"strong assurances " from Local 259 and the shop steward
"that the contract was at an end and that the men would not
work under it." My colleagues discount this statement as
being merely the "characterization" of the Respondent's
counsel, and therefore not reliable evidence. The Trial
Examiner, however, credited the account of Respondent's
attorney as being accurate , and the majority offers no reason
for reversing that credibility finding, if they, indeed, do so.
Moreover, this comment is amply buttressed by the other
credited statements of the same general tenor made at the
same meeting and unchallenged by the majority . The following
day, the Respondent's employees, with two exceptions, ex-
plicitly affirmed these demands for a new contract and their
determination not to work under the existing and valid col-
lective bargain that they had made. They were then dis-
charged.
The position of my colleagues is that the change of af-
filiation of these employees and "their ensuing requests
to, and neogtiations with, the Respondent were protected
concerted activities." The majority further finds that the
"alleged repudiation " of the existing contract by these em-
ployees did not justify their discharge . I submit that the
latter conclusion is patently untenable in the light of the
foregoing facts and the applicable law. It is true that em-
ployees are not eternally committed to representation by
any single union . Changes in affiliation are not uncommon
and the Board, indeed , has on occasion amended certifica-
tions during their initial year to reflect such action. To
this limited extent the disaffiliation and reaffiliation of em-
ployees herein may well have been in a protected area.
Likewise, as the discussion of the Trial Examiner indi-
cates, the Act does not prohibit requests for voluntary
renegotiation of terms of a contract during its effective
period . But the conduct with which the Board is confronted
in this case goes far beyond requests for voluntary renego-
tiation of a contract . The employees here terminated their
contract in complete disregard of its terms by flat and
unequivocal statements to the Respondent that they would
no longer work under the provisions of that agreement.
The Supreme Court has previously held that "The Act does
not prohibit an effective discharge for repudiation by the
PEPPER & POTTER, INC 957
employee of his agreement , any more than it prohibits
such discharge for a tort committed against the employer." 10
The majority opinion, however , contends that the rule of
the Sands case, authorizing discharge under such circum-
stances, does not apply here . This position is taken on the
ground that "Neither the employees nor the representative
of Local 259 took an adamant or unalterable position or
engaged in a strike. Rather, it was the Respondent who
evinced a determination to force the issue ." (Emphasis
supplied .) The conclusion thus reached seems more than
a little incongruous when matched with the undisputed facts
of this case as summarized above . On 2 successive days,
the Respondent is told without modification or reservation
that the employees would not live up to the contract and that
"the contract is at an end and the men would not work under
it." On query , the employees individually affirmed this
position . It is inconceivable to me that this can be considered
other than an " adamant " position in the ordinary meaning
of the word . It is certainly well within the Supreme Court's
description in the Sands case of a situation in which "Res-
pondent rightly understood that the men were irrevocably
committed not to work in accordance with their contract."
It is particularly important to recognize that these state-
ments were made against a background in which one strike
had already occurred . The majority admits that these em-
ployees ceased work, at that time, in violation of, and in
protest against , the terms of the same collective bargain
they shortly thereafter refused to observe . My colleagues,
however , would ignore the realities of the situation and the
significance thereof, on the ground that the Respondent waived
its rights to discharge the employees for that strike. (It
should be noted that this admitted forbearance of the Re-
spondent is in marked contrast to the " precipitate action"
with which the majority later charges the Respondent.) This
conclusion as to " waiver," of course, has nothing to do
with the point under discussion , i. e., the emphasis which
this prior strike gave to the announced intention of the
employees not to work under their contract . Moreover, to
hold further , as the majority does, that the strike was "wholly
unrelated to Local 259 ' s request for contract negotiations"
when both actions were part and parcel of the same open
refusal to work under the terms of the collective bargain,
is to not see the forest for the trees . In short , my colleagues
would require, in this situation , that the Respondent wait to
see if his employees would strike rather than observe the
contract when they had just finished doing precisely that.
I cannot believe, as my colleagues seem to, that the Re-
spondent was under a further duty, at the possible cost of
its business , to probe more deeply into the employees' minds
or endeavor to overcome their expressed intention, which
on its face was an "unalterable " position.
toN. L. R. B. v. Sands Manufacturing Co., supra.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The final conclusion of the majority that "the Respondent
evinced a determination to force the issue" must be measured
against the facts which clearly show the action of the em-
ployees and Local 259 to have been entirely initiated by
those employees and that Local and to have been pressed with
considerable vigor upon the Respondent with the additional
emphasis of the work stoppage. Under these circumstances,
I do not believe that this Board should force an employer to
wait patiently and supinely for an illegal strike to be called
at a time more convenient to his employees."
The majority opinion appears finally to argue that the
employees' interpretation of the existing contract's pro-
visions "was not so unreasonable as to support a conclusion
that they were determined to repudiate the contract." This
argument is patently a nonsequitur. If the employees not
unreasonably interpreted section 40 as giving them the right
to terminate the contract under the circumstances, this
would reenforce their expressed intent to repudiate the con-
tract. A reading of the contract, however, does not disclose
such ambiguities as might provide a "not unreasonable"
belief that the contract could be terminated by the switch to
Local 259. Indeed, my colleagues apparently agree that it
clearly could not be so terminated, and that any such ter-
mination was, in fact, unlawful. Even granting the existence
of some uncertainty, therefore, the most that can be said
for the employees is that they acted unlawfully in terminat-
ing the contract in the mistaken belief they were acting
lawfully. Whether or not we make this assumption, it seems
clear that the Respondent should not have substantial penal-
ties imposed upon it for defending itself against that unlawful
action.
If there is a lesson to be learned from collective bargaining,
it is that a negotiated contract is its desired goal. That such
a contract is a serious achievement and must be so treated by
both sides is indispensable to successful labor relations. To
allow a contract to be lightly cast aside because one party
decides that by so doing it may better its position can only
conduce to the destruction of the process. It is evident here
that the employees had little, if any, regard for their contract.
The unions involved had less. Nor did the employees or the
unions consider the certification issued by this Board as
anything more than a scrap of paper. If such an attitude is
condoned or encouraged, much less rewarded, the whole
theory and practice of collective bargaining becomes a farce.
Accordingly, I believe that the discharges of the employees
in this case did not constitute violations of Section 8 (a) (3)
of the Act. I would therefore dismiss the complaint.
"The position taken by the employees and Local 259 here, moreover, is on a parallel with
that assumed by the employees in the Sands case, where the Court observed. "It is evident
that the respondent realized that it had no alternative but to operate the plant in the way the
men dictated, in the teeth of the agreement , or keep it closed entirely, or have a strike."
PEPPER & POTTER, INC.
Intermediate Report
STATEMENT OF THE CASE
959
Upon charges duly filed by Boudin, Cohn & Glickstein, counsel for Ralph Diamond, Cosmo
Barbieri, Elias Degestinos, Joseph Linyear, Haynes O'Neil, Nathan Sacher, John E. McCovery,
Harry Timmerman, and Margaret O'Leary Landolfi,1 herein called the Complainants, the
General Counsel of the National Labor Relations Board,2 by the Regional Director for the
Second Region (New York, New York), issued a complaint dated February 15, 1952, against
Pepper & Potter, Inc., herein called the Respondent, alleging that the Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon
the Respondent and the Complainants.
With respect to the unfair labor practices, the complaint alleged in substance that the
Respondent: (1) On April 18, 1951, discriminatorily discharged Ralph Diamond, Cosmo
Barbieri, Elias Degestinos, Joseph Linyear, Haynes O'Neil, Nathan Sacher, John E. McCovery,
and Harry Timmerman and thereafter failed and refused to reinstate them because "they
disaffiliated themselves" from Local 977, International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America, UAW-CIO, herein called Local 977, and
affiliated themselves with Local 259, International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America, UAW-CIO, herein called Local 259, or "be-
cause of a labor dispute which arose between Respondent and Local 259 over the meaning
and continued existence of the collective bargaining agreement between Respondent and
Local 977, or because they engaged in concerted activities on behalf of Local 259 for the
purpose of collective bargaining or other mutual aid or protection"; (2) on April 19, 1951,
discriminatorily discharged Margaret O'Leary Landolfi and thereafter failed and refused
to reinstate her "because she sympathized with or assisted, or because Respondent be-
lieved she was sympathizing with or assisting ," the other Complainants "in their concerted
activities on behalf of Local 259 for the purpose of collective bargaining or other mutual aid
or protection"; and (3) from about April 1, 1951, to date interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, by (a)
questioning its employees in regard to their membership in, sympathy for, and activities
on behalf of Local 259 and/or Local 977, and (b) advising or informing employees that they
were being discharged "because they disaffiliated themselves from Local 977 and affiliated
themselves with Local 259, or because of a labor dispute which arose between Respondent
and Local 259 over the meaning and continued existence of the collective bargaining agree-
ment between Respondent and Local 977, or because they engaged in concerted activities
on behalf of Local 259 for the purpose of collective bargaining or other mutual aid or pro-
tection." The complaint further alleged that by the foregoing conduct the Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
Thereafter, the Respondent duly filed an answer, admitting certain allegations of the
complaint but denying that it had engaged in the alleged unfair labor practices and setting
forth certain affirmative defenses. Pursuant to notice, a hearing was opened on May 5, 1952,
at New York, New York, before Albert P. Wheatley, the Trial Examiner duly designated by
the Chief Trial Examiner, and was adjourned until June 16, 1952, with no evidence being
adduced by the parties, except for the introduction into evidence of the pleadings and other
formal papers . Meanwhile, due to the illness of Trial Examiner Wheatley and his inability
to resume the hearing, the undersigned was designated as Trial Examiner to conduct the
hearing , which resumed on June 16, 1952, at New York, New York, and ended on July 7, 1952.
The General Counsel, the Respondent, and the Complainants were represented by counsel.
Full opportunity to be heard, to examine and cross-examine the witnesses , and to introduce
evidence bearing on the issues was afforded all parties.
Upon the conclusion of the hearing, the undersigned granted a motion by the General
Counsel to conform the pleadings to the proof as to dates, spelling , and minor variances and
advised the parties that they might argue before and file briefs or proposed findings of fact
and conclusions of law, or both, with the Trial Examiner. The General Counsel and the
1 During the course of the hearing, the pleadings were amended to set forth the correct
name of Margaret O'Leary Landolfi.
2 The General Counsel and his representative at the hearing are referred to as the General
Counsel The National Labor Relations Board is herein called the Board.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent participated in oral argument . Thereafter , the Respondent filed a brief with
the undersigned.
Upon the entire record in the case and from his observation of the witnesses , the under-
signed makes the following
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
Pepper & Potter , Inc., a New York corporation with its principal office and place of
business in New York , New York, is engaged in the purchase , sale, and distribution of
new and used automobiles and automotive parts and accessories , and in the repair and
servicing of automotive vehicles . The Respondent ' s business is operated under a franchise
for the sale of Buick automobiles and automotive products , granted by the Buick Motor
Division of the General Motors Corporation , Detroit, Michigan. During 1951 the Respondent
purchased , transferred , and delivered to its plants automobiles, automotive parts and
accessories , and other materials valued in excess of $250,000 , of which approximately
90 percent was transported to its New York plants in interstate commerce from States of
the United States other than the State of New York . During the same period , the Respondent
sold and distributed automobiles , automotive parts, and accessories valued in excess of
$250,000, of which approximately 5 percent was transported from its New York plants in
interstate commerce to States of the United States other than the State of New York. The
complaint alleged, the Respondent 's answer admitted, and it is found that the Respondent
is engaged in commerce within the meaning of the Act.
IL THE ORGANIZATIONS INVOLVED
Local 259, International Union , United Automobile , Aircraft and Agricultural Implement
Workers of America, UAW-CIO, and Local 977, International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America. UAW-CIO, are labor organiza-
tions admitting employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Discriminatory discharge of Complainants Diamond,
Barbieri, Degestinos, Linyear, O'Neil, Sacher, McCovery,
and Timmermann; interference, restraint, and coercion
1. Sequence of events
On May 18, 1950 , the Respondent and Local 977 executed a collective -bargaining contract
covering the mechanics and porters of the Respondent's service shop . The effective date
and term of the contract were defined in the following provision:
Section 40 . Upon the execution of this agreement , the Union shall institute appropriate
proceedings before the National Labor Relations Board for the certification of the Union
as the sole and exchisive bargaining agency for the employees of the Company and
institute and thereafter diligently prosecute such proceedings as are authorized by law
to obtain the approval of the National Labor Relations Board of the execution by the
parties hereto of this agreement . Upon the grant of such certification and upon the grant
of such approval , this agreement shall become effective and binding upon the parties.
This agreement shall thereafter endure for a period of one year but shall renew itself
automatically from year to year unless either party shall give 10 days written notice by
registered mail of its intention to interrupt renewal hereof . Notwithstanding the fore-
going provision or any other provision hereof, this agreement shall terminate and cease
to exist upon any of the following events , namely:
(a) If the Local referred to herein as the Union shall disaffiliate itself from the
C. LO.
(b) If such Local shall cease to be duly accredited by the C.LO.
(c) If such Local shall be or become merged, amalgamated, consolidated with or
otherwise absorbs or is absorbed by any other Local of the C.LO.
The contract also contained the following union-shop provisions:
PEPPER & POTTER , INC. 961
Section 4 . Subject to the approval of the National Labor Relations Board and the
certification of the Union as the duly authorized representative of the Company's em-
ployees, and the grant of the requisite authority therefor under existing law, it shall be
a continuing condition of employment with the Company that all employees covered by
this agreement shall be and remain good - standing members of the Union. Present em-
ployees of the Company, excepting those who have not completed their trial period, who
are not members of the Union shall be required to become union members within 10
days from the date of this agreement. There shall be a probationary employment period
of two weeks for new employees, at the end of which, if the employee is retained by
the Company, he shall be required to become a union member. This shall apply to
present employees who have not completed their probationary period as well as to new
employees . The Union shall accept into membership all present employees covered by
this agreement, and all new employees who have passed their probationary period of
employment , provided any such new employees have not been expelled by any Local
Union of this International for cause.3
The agreement further provided that "all disputes , complaints or grievances shall be
settled expeditiously without strike, stoppage or lockout," required the Respondent to
"deduct from the first pay of each employee in each month, the requisite monthly dues and
initiation fees, during the life of this contract and pay the same over to the Union" with the
assurance that "the Union expressly represents that such deductions are authorized by
each employee," and contained the following provisions for contribution to a welfare fund
The Company shall pay the sum of $ 8 per month for each of its employees now em-
ployed and hereafter to be employed by the Company, who are covered by the terms
of this contract to a fund to be designated by the Union and known as Local 977, United
Auto Workers, C.LO., Welfare Fund, as of the first pay period ensuing after the ef-
fective date of this agreement, which sum shall be used for the establishment and
maintenance of a group insurance fund to provide the benefits set forth in Exhibit A
attached hereto and to pay such administrative expenses of the maintenance of said
fund as may be required or necessary... .
Following the conduct of a consent election in Case No. 2-RC-2378, won by the Union,
it was certified on August 8, 1950, as the statutory representative of the Respondent's
employees at its service department , excluding inventory -control employees , office and
clerical employees, manager of the parts department , guards, watchmen , and professional
and supervisory employees as defined in the Act. After the Union won another consent
election in Case No. 2-UA-5884, it received on September 20, 1950, a certification author-
izing it to negotiate a union-security provision in its contract with the Respondent, and at
this point it appears that the contract between the Respondent and Local 977 became fully
effective.
During the winter of 1950, the Respondent's employees became dissatisfied with their wage
rates , based upon an incentive plan, ,and with working conditions. In late January or early
February 1951, employee Ralph Diamond, who was the shop steward for the Respondent's
employees, and Samuel Meyers, a representative for Local 259, met at a membership
meeting of Local 977 and the following occurred, according to the credible testimony of
Meyers:
After the meeting was over, Mr. Ralph Diamond approached me, told me that he was the
shop steward of Pepper and Potter and wanted to know what chances there were in
having Pepper and Potter come into the union, our union [Local 259] . . . . I told hun
that the chances were very good that they could come into the union providing the men
wanted to come in. I told him to. go back and talk to the boys and let me know how the
fellows felt about it . . . he said there was a general dissatisfaction with 977, the
union that he was in, that they hadn't seen a contract, they didn't know some of the
things that they were entitled to get. They were being called upon to do things that
normally he heard people in other unions shops don't do and generally the wage structure
was much lower than the rest of the Buick shops in Brooklyn.
3 The General Counsel does not attack the legality of the contract between the Respondent
and Local 977, except to note that the above-quoted union-security provisions exceeded the
limits permitted by Section 8 (a) (3) of the Act and therefore could not be utilized to sustain
the legality of the discharge of employees for nonmembership in Local 977.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With the approval of officials of both Local 977 and Local 259, Meyers held three meetings
with the Respondent ' s employees in March 1951 . The first meeting was in early March and
was also attended by James Edwards , a representative of Local 977. At this meeting, ac-
cording to Meyers , they "had a general discussion with the fellows about conditions that
exist in Brooklyn shops of Buick and how joining 259 would definitely help them toward
getting some of the better things that the other Buick dealers were giving their people
through our union . We also discussed the constitutional procedure in which these people
would disaffiliate from Local 977 and affiliate with 259." In mid-March, at the second
meeting, they determined , in compliance with the constitution of the UAW-CIO, that at
the following meeting they would vote on changing their affiliation from Local 977 to Local
259. The third meeting was on March 21, 1951 , and was attended by all employees of the
Respondent covered by its contract with Local 977 and also by Meyers and Cosmo Grieco,
president of Local 977. Grieco addressed the employees as follows , as shown by Meyers'
credible testimony:
. .. he spoke shortly about the fact that he was new in Local 977, the old leadership
had been removed , that he had come to discuss the problem of affiliation with us,
with Local 259, he said that he took his hat off to no other union, that he felt proud of
the union and he knew he was going to do a good job in that union except , he said that
we represented that portion of the trade that Pepper and Potter was in, namely, the
service stations . . . He said his union was primarily a car wash and garage union and
therefore could not service people as well as 259 could nor understand their problems
as well.
The result of the poll of the Respondent ' s employees by secret ballot on the question
of changing their affiliation from Local 977 to Local 259 revealed that 8 were in favor and
1 was opposed to shifting from Local 977 to Local 259.
Although one of the employees informed the Respondent of the outcome of the foregoing
March meetings , the first official notice given the Respondent by Local 259 of the change in
the affiliation of the Respondent 's employees was on April 12, 1951, when Diamond and
Meyers met with Frank Pepper , who was president of the Respondent . Meyers informed
Pepper that Meyers " represented the employees , that they had switched affiliation from
977 to 259 and that we were interested in recognition ." Meyers also stated that he believed
that the Respondent ' s contract with Local 977 was terminated by reason of the change in
affiliation viewed in the light of the provisions of section 40 of the contract , set forth above,
and said that "he was there to talk about a new contract ." Pepper telephoned Hyman Fisch-
bach , counsel for the Respondent , and informed him of Meyers ' statements ; and arrange-
ments were made for a conference between representatives of the Respondent and Local 259
on April 17 , 1951 , at Fischbach ' s office.
Meyers and Diamond also presented to Pepper a grievance or claim of employee Nathan
Sacher in respect to " sick pay" due him as a result of his absence from work because of
illness . According to the undenied and credible testimony of President Pepper , he replied
that the Respondent "had been paying benefits to the union and that . . . this sick money
should come from there ," apparently referring to the provisions of the Respondent's con-
tract with Local 977 whereby the Respondent was required to pay monthly contributions to-a
welfare fund . Meyers and Diamond testified without contradiction that Pepper instructed
Diamond to discuss the matter with Joseph Youngman , manager of the service shop, when
Diamond returned to work . Later in the afternoon, Diamond conferred with Youngmah and
the latter rejected Sacher ' s claim for sick pay.
The same afternoon , Diamond informed the other employees of the decision on Sacher's
grievance and they decided that in retaliation they would refuse to jockey cars , that is, to
move cars from storage space to the service line in the shop and from point to point on the
service line . All employees except James Blue and Haynes O'Neil refused to jockey cars the
remainder of the day and a portion of the following morning until they were instructed by
Representative Meyers to perform such tasks when he was informed , on April 13, of the
action they had taken .4 None of the employees was reprimanded or disciplined for refusing
to jockey cars.
4 Leo Pepper , who at the time in question was assistant service manager , testified that all
employees but Blue and possibly O'Neil , who worked a portion of the time at the salesroom,
refused to jockey cars . Joseph Linyear , a porter , denied that he engaged in the partial work
stoppage , and his testimony was in part corroborated by that of Diamond and Sacher. Upon the
entire record and the undersigned ' s impression of the witnesses , including the fact that
PEPPER& POTTER, INC. 963
On April 16, 1951 , the Respondent received the following letter from the president of
Local 259:
As you have already been informed , your employees have joined Amalgamated Local
259, UAW-CIO.
We are therefore requesting that we meet to negotiate an Agreement, at your earliest
possible convenience.
Pursuant to the arrangements made on April 12, 1951, representatives of Local 259 and the
Respondent met in the offices of the latter ' s counsel , Hyman Fischbach . Meyers and Diamond
were present in behalf of Local 259 and President Pepper , Secretary-Treasurer Lester
Potter, and Fischback represented the Respondent . It is found that the following occurred
at the conference , as shown by the credible testimony of Fischbach:
I asked Mr . Meyers who he represented and he advised me that he represented
Local 259 and when I asked him in what capacity he represented that labor organization,
he stated that he was their organizer.
I asked Mr . Diamond in what capacity he was present and he stated he was present
as the shop steward and the representative of the employees . The meeting proceeded
with a discussion of the contract which is in evidence here . Mr. Meyers stated that he
was in possession of the contract that Pepper and Potter had made with Local [977]
I asked him to produce the contract . He did.
I inspected it and handed it back to him. Mr . Meyers then stated that he was of the
view and that his organization had taken the position that the contract was at an end and
I asked him at that point on what basis he took that stand... .
Mr. Meyers pointed to the provisions of Section 40 of the contract which is General
Counsel' s Exhibit 3 which provided that the agreement should endure from year to year
unless either side gave written notice , but that notwithstanding , it should terminate if
either one of three conditions therein enumerated happened.
He said the basis upon which Local 259 contended that the contract was no longer in
effect was that Local 977 had become merged, amalgamated , consolidated with or was
otherwise absorbed with any other local . I pointed out to Mr . Meyers that I did not
agree with that view , that it was my understanding , from information which had been
transmitted to us, by one of our employees , Mr. Blue, that the men who worked for us
had with the exception of Mr . Blue , disafiliated themselves from Local 977 and had
joined Local 259, but that as far as we were concerned , the contract was effective
and would continue to be in effect.
At that point Mr . Meyers proceeded to say that he felt we should make a new contract
with Local 259 forthwith . I told him we would not make any new contract with Local 259
and that as far as I could see , all we had was Meyers assertion that the contract was at an
end, whereas we contended that the contract was not at an end but was in full effect.
I asked Meyers frankly to tell me whether Local 977 had gone out of business and he
said no, it hadn't gone out of business , but that the shift of Pepper and Potter from
Local 977 to Local 259 had been agreed upon by the International Union and that he was
there with the blessing of the International Union.
At that point Mr. Meyers proceeded to tellme that the contract with Local 977 wouldn't
be lived up to by the men and I asked them to state why.
He told me that the men were dissatisfied . I turned to Mr. Diamond and asked him
whether it was true that the men were dissatisfied . Meyers thereupon advised Mr.
Diamond not to answer my question . I took exception to that telling Mr. Meyers that I
thought as long as Diamond was the representative of the employees and the men were
under contract with us, if they had any grievance , it was his place and his obligation
to state it fully and frankly, right then and there.
Meyers then said to Diamond , well, you can tell him about the conditions in the shop.
So Diamond proceeded to tell me that the men were dissatisfied because they weren't
getting as much pay as were other shops In Brooklyn and he specifically mentioned the
fact - that the employees in Haber Brothers who worked just in the floor above in the
same building , where Pepper and Potter had their service station , were getting more
Sacher's testimony that all porters continued to jockey cars was in conflict with the contrary
admission of John McCovery and that Diamond and Linyear were not particularly impressive
witnesses , the undersigned credits the testimony of Pepper in this regard.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
money and he particularly mentioned the fact that the men were dissatisfied with having
to jockey cars about.
I asked him what he meant by that. He explained that car jockeying was a term that
was applied to moving the cars in and around the service station, the showroom, the
parking lot and the warehouse.
I asked Mr. Diamond if he had ever raised any of these grievances with anybody in
the shop, particularly asked him if he mentioned them to Mr. Youngman. He said he
hadn't.
Then the question of pay was discussed. And I asked Mr. Diamond whether the pay
was that much out of line with other shops as to warrant a refusal to continue to work
under the contract. He said well, Mr. Fischbach, we have never been able to find out
about the contract There has been some skullduggery going on in the union. He said
as a matter of fact all of the officers of the union were replaced and he said we want
to get out of that union and that is why we are here We want a new agreement.
I told Meyers at that point that I would appreciate it very much if he would advise
me, in detail, as to what he wanted in the way of a new agreement, what terms and
conditions he desired. He said in the first place, he wanted us to get into line, and
that is an expression that he used and I want the record to reflect that I am using it
mentally with quotes around it He pointed out that our contract with Local 977 was
sub-standard and the standard to which he pointed when I made inquiry was that standard
which had been established with such shops as Smith and McKiefer, McCarthy-Bern-
hardt, Midcounty, and Kaplan and Black, et cetera, those being names which he furnished
me. I asked Mr. Meyers what the relations were between Local 259 and these various
organizations. He gave me the name of an individual in each stating that I was free to
telephone that individual and make inquiry and he expressed the opinion that if I did,
I would learn that the relations with the organization were very good.
I asked Mr. Meyers to state who it was in the International who had given him the
green light that he mentioned with relation to the transfer of Pepper and Potter from
977 to 259 and he furnished that name, stating it was Charles Carrigan He gave me
his telephone number too. He stated Mr. Carrigan was the director of the United Auto-
mobile Workers in this area.
I asked Mr. Meyers to furnish me with the names of the individuals who were officers
of the local that he represented including the names of the individuals who were trustees
and he furnished those and I recorded them
We discussed the status of Local 259 and we also discussed the fact that Local 977
was then certificated under an election by the National Labor Relations Board as the
authorized union. I pointed out that the only thing that I had from my clients was this
document which was received in evidence here as General Counsel's Exhibit No. 4.
Mr. Meyers stated that there would be no difficulty about getting some affirmative
evidence as to the willingness of Local 977 to proceed with the complete transfer of
Pepper and Potter from that local to Local 259. I invited him to procure such a com-
munication and I subsequently received such a communication which is General Counsel's
Exhibit No. 5.
I dare say that the period of time spent in the discussion with Mr. Meyers and Mr.
Diamond, and my clients were present, was from three to shortly before six o'clock
that afternoon. My diary entry indicates that the meeting started at three o'clock and
ended at six. I base my testimony as to the duration of the meeting upon the practice
that I normally follow of indicating the period in my diary of the duration of such a
conference.
It is my testimony that when the meeting concluded Mr. Meyers left with the firmest
statement from me to the effect that my client, Pepper and Potter, would not agree to
a termination of our contract with Local 977 and I, on the other hand, had from both
Mr. Meyers and Mr. Diamond, equally strong assurances that the contract was at an
end and that the men would not work under it.5
5 Fischback's testimony was in nearly all material respects corroborated by that of Frank
Pepper and Lester Potter. Meyers' version of the conference, although not so detailed as
that of Fischback, was reconcilable with that of Fischback. Meyers denied that there was
any discussion of a strike or refusal to work at the meeting and testified that no decision
was reached but that the meeting ended "with the thing open. There was no closed doors or
anything. The thing was left open to the extent where I would get in touch with him or he would
get in touch with me about subsequent meetings." However, he testified that he had no doubt
when the meeting concluded that Fischback differed with Meyers' position that the contract
between the Respondent and Local 977 had terminated because of the employees' desertion
PEPPER& POTTER, INC, 965
In response to the Respondent 's request of Meyers that Local 977 furnish the Respondent
with an immediate expression of Local 977's views on the shift of the employees ' affiliation
to Local 259, the president of Local 977 sent the following letter to the Respondent by
special messenger on April 18, 195L
This letter is to inform you that LOCAL 977-UAW-CIO no longer represents the
members working in your plant.
They are now affiliated with LOCAL 259-UAW-CIO.
On April 18, 1951. Service Shop Manager Youngman asked employee Diamond whether
the latter had "a union card for 259 ." Diamond replied that he did not possess such a card.
On the same day, Youngman asked employees Sacher and O'Neil to show Youngman their
union cards and they produced their cards for Local 977.
About 4 45 p. in. on April 18, 1951 , all employees but Blue6 and Timmermann were
assembled in the office of the service station, where President Pepper , Secretary-Treasurer
Potter, and Fischbach were present. According to the credible testimony of Fischbach the
following occurred:
When the men entered, I asked them to each identify themselves by name and the
following names were given me and I recorded them on this sheet of yellow paper:
Ralph Diamond , shop steward , Cosmo Barbieri , Haynes O'Neil , Nathan Sacher , Joseph
Linyear , John Edward [ McCovery] , Elias Degestinos . I have recorded as missing
Mr. Timmermann.
At that point having noted the presence of all of the employees and noted the absence
of Mr . Timmermann , I addressed myself to the men and told them that there had been
a meeting at my office on the preceding day, that the meeting had been attended by
Mr. Meyers and had also been attended by Mr . Diamond . I told them that I wanted
personal verification from each of the men with respect to their knowledge and their
authority to Mr. Meyers and to Mr Diamond to make the demands which were made
the previous day. I told them briefly what the demands were.
I also asked them each to verify to me whether it was true that they had agreed not
to work under the Local 977 contract . I told them distinctly , and you can quote this
because these are the words that I did use . I said "I don 't care whether you are Masons
today, Elks tomorrow and Odd Fellows on the third . All we are interested in is your
continuing to work under the contract . We have a contract with 977. It was twice the
subject of proceedings before the National Labor Relations Board."
of Local 977 and affiliation with Local 259. Meyers and Diamond testified that Fischback
inquired whether the change in the employees ' affiliation had been "generated or spontaneous"
and stated that if it were not spontaneous , he would give them the "whammy " Diamond's
testimony as to the conference was somewhat vague , if not evasive , particularly on cross-
examination . He denied that Meyers stated the purpose of the meeting and did not "think
Mr. Meyers said anything about wanting a new contract ." Diamond was unable to remember
that Fischbach asked him the reason he never talked to Service Shop Manager Youngman
or officials of the Respondent about grievances or that Meyers said anything about an in-
crease in pay for the employees . Diamond denied that he told Fischbach that the employees
desired a higher wage scale and that either he or Meyers stated that the employees would
refuse to work if they failed to obtain a new contract . Upon the entire record and the under-
signed's observation of the demeanor of the witnesses as they testified , the undersigned
is convinced that Fischbach ' s testimonial version of the conference on April 17 is more
accurate and complete than that of Meyers or Diamond For this reason , as well as the fact
that Fischbach 's testimony was in large measure supported by that of Frank Pepper and
Lester Potter , that Fischbach appeared to be a reliable and sincere witness with a clear
recollection of the occurrences at the conference , that Diamond was not an impressive wit-
ness , and that Meyers ' evasiveness at times on cross-examination gave the impression that
he was not being completely candid, the undersigned credits Fischbach ' s testimony as to the
discussion on April 17 between representatives of the Respondent and Local 259 and rejects
the testimony of Diamond and Meyers to the extent that it was not in accord with the credited
testimony.
6 Blue was the employee , referred to above, who informed the Respondent of the outcome of
the March meetings of the employees and their decision to withdraw from Local 977 and
affiliate with Local 259. Blue was the only employee in the unit who opposed the shift to
Local 259.
283230 0 - 54 - 62
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said, "I want personal verification from each of you as to whether you authorized
Mr. Meyers and Mr. Diamond to make the demands which they did make;" and when they
indicated that they did, I said, "Under the circumstances, we have no alternative but
to discharge you right here and now."
I said what is the position of Mr. Timmermann& Did he vote with you to go along on
this deal?
Mr. Diamond specifically said that Timmermann had voted just like the rest of them
had. The only one who hadn't was Jimmy Blue, and so they were fired.
As one of the steps in preparation for that meeting, I had requested Miss Claire
Samuels, who is the bookkepper working for Pepper and Potter, to prepare the payroll
checks and they were there in the office and they were immediately distributed to each
of the men. . . . I made inquiry of the men as to what disposition should be made of
Mr. Timmermann's check, and it is my recollection that both Mr. Diamond and Mr.
Barbieri offered to see to it that the check would reach Mr. Timmerman? However,
that procedure was not adopted. It was kept for him at the office 8
7 Counsel stipulated that although Timmermann was not present on April 18 and was not
discharged until the following day, "the reason for his discharge was the same reason as
that for the other seven" or as stated in another form by the General Counsel, "Mr. Fischbach
and I agree that Mr. Timmermann is in the same legal boat or position as the other seven
alleged discrimmatees." Accordingly, the conclusions hereinafter reached as to the discharge
of Diamond, Barbieri, Degestinos, Linyear, O'Neil, Sacher, and McCovery are equally
applicable to the discharge of Timmermann.
8 Fischbach's testimony in respect to the discharge of the employees on April 18, 1951,
was in large measure corroborated by that of Frank Pepper and Lester Potter. Diamond
testified that Fischbach asked the names of the employees when they were assembled and
inquired whether they had cards for Local 259, that Diamond replied "it was in the process
of being taken care of,,, that Fischbach stated that he had a letter from Local 977 "saying
that you are no longer affiliated with them," and that the interview concluded by Fischbach's
saying, "You men have taken it upon yourselves to affiliate with one union and disaffiliate
from another union. This company has no further use for your services." Diamond denied
that the Respondent's contract with Local 977 was mentioned at this meeting, that Fischbach
referred to the conference held the day before in his office, and that the employees stated
that they would strike if they did not obtain a new contract or would refuse to work under
the contract between the Respondent ana Local 977. Diamond's testimony was corroborated
by employees Sacher, O'Neil, Linyear, and McCovery and also by Landolfi who was working
in the office at the time of the meeting. Sacher, Linyear, and Landolfi testified that the only
reference to Timmermann was a statement, when his name was called, that he was absent
because of illness. Landolfi recalled that Barbieri offered to take Timmerman his paycheck.
O'Neil did not recall that Fischbach asked the employees whether they had discussed working
conditions with Meyers and Diamond or whether the employees had authorized Diamond
to speak for them. McCovery denied that there was any discussion as to whether Diamond
was authorized to speak for the employees, Diamond had conferred with Fischbach the
preceding day, or Diamond was authorized to make demands for a new contract. Cosmo
Grieco, president of Local 977, testified that after the employees were discharged , he tele-
phoned Fischbach and the latter "said under the terms of the agreement ... there is a clause
which states when a union notified management that the employee is no longer in good standing
or we don ' t represent them or so on and so forth, for that reason , they are obligated to
discharge them." Although Fischbach did not testify as to this telephone conversation,
President Pepper testified that after the employees were discharged, "Mr. Fischbach called
Mr. Grieco on the phone as a matter of fact. We asked for a new man and he refused to send
us any. We told them the men were laid off. They refused to work under the contract. This
was the very night. He would have nothing to do with us. We asked for the new men the
following morning." It was Meyers' testimony that after the employees were discharged, he
telephoned Fischbach on April 18, asked Fischbach the reason for the discharges, and
Fischbach replied that the employees "were no longer members of 977, he had an agreement
with 977 and since they were no longer members of 977 in good standing he had a right to
discharge them and he did so." Fischbach did not testify as to this telephone conversation.
Upon the entire record and the undersigned's impression of the witnesses, the undersigned
credits the testimonial version of Fischbach as to the meeting on April 18 and of Pepper as
to the telephone conversation with Grieco and rejects the testimony of the General Counsel's
witnesses except to the extent that it was in accord with the credited testimony . In addition
to the evaluations heretofore made as to the reliability of Fischbach's testimonial version
PEPPER& POTTER, INC, 967
Fischbach further testified that the ultimate decision to discharge the employees was
made on April 18, "when they told me in the shop that the demands that Mr . Meyers and
Mr. Diamond had made had been authorized and that they would not work under 977." He
also testified that if the employees had answered his questions in the negative , they "would
not have been discharged , but Mr . Diamond would have been discharged."
2. Conclusions
The foregoing findings of fact give rise , and the contentions of counsel resolve, to two
principal issues- -namely , (a) whether the foregoing activities of the employees were pro-
tected concerted activities within the meaning ofSection 7 of the Act , affording the Respondent
no justification for the discharge of the employees , 9 and (b) whether the discharge of the
employees was warranted because they breached or effectively repudiated the contract
between Local 977 and the Respondent.
a. Whether the employees engaged in protected concerted activities
In respect to the issue of whether the employees ' activities set forth above were within
the protection of the Act , the Respondent points to the fact that the activities occurred well
before the end of the year of Local 977's certification , to the limitaton of 1 election each
12-month period contained in Section 9 (c) (3) of the Act, and to the principles established
by the Board and the courts , in cases involving allegations of refusal by an employer to
of the conference on April 17 , the basis for the foregoing resolution of the conflicts in testi-
mony is as follows : (1) As mentioned above , Diamond did not impress the undersigned as a
completely reliable witness and his demeanor on the stand, as well as that of corroborating
witnesses O'Neil and Linyear , gave the undersigned cause to be dubious as to the trust-
worthiness of their testimony . (2) Pepper and Potter appeared to be candid witnesses , freely
testifying even though called as adverse witnesses by the General Counsel under rule 43B of
the Federal Rules of Procedure . (3) Moreover , Fischbach was so sincere and impressive as
a witness that the undersigned has complete confidence in the integrity of Fischbach ' s testi-
mony . (4) Furthermore , in the opinion of the undersigned , the fact that the employees' dues
for Local 977 were deducted from their final pay, in accordance with the terms of the
contract , lends support , in the opinion of the undersigned , to the testimonial version of
Fischbach as to the discharge of the employees , since it appears unlikely that the Respondent
would continue to deduct the dues and to make its contributions to the welfare fund if the
reason for the discharge of the employees was based, as they testified , solely upon their
abandonment of their membership in Local 977. In reaching these conclusions as to the
resolutions of the conflicts in testimony , the undersigned has considered the fact, stressed
by the General Counsel , that subsequent to the conference in Fischbach ' s office on April 17
but prior to the discharge of the employees on April 18, President Pepper had conferred
with representatives of Local 71, International Jewelry Workers Union , AFL, to ascertain
whether that organization could supply the Respondent with replacements if necessary in the
future, and that on April 19, the Respondent employed replacements furnished by that organi-
zation. In the opinion of the undersigned , these circumstances do not in themselves establish
the accuracy of the testimony of the employees or that the Respondent had determined prior
to April 18 to discharge the employees because of their shift from Local 977 to Local 259.
President Pepper 's inquiries as to the possibilities of obtaining replacements were not
incompatible with the course of events on April 18 or with Fischbach ' s contemplated plan. In
this regard , he testified that had the employees answered his questions in the negative, they
would not have been discharged . Considering the course of events occurring prior to April 18,
it would not be unreasonable for the Respondent to consider the possibility that the employees
would make the affirmative responses they did to Fischbach ' s questions , thereby making
their replacement necessary from the Respondent ' s point of view under its contemplated
plan. Accordingly , considering the record as a whole , Pepper ' s inquiries as to replacements
prior to the discharge of the employees are not irreconcilable but are consonant with the
course of events which has been found to have occurred on April 18.
9 It is clear and counsel apparently agree that the employees ' shift from Local 977 to Local
259 midway during the first year of Local 977's certification did not, in view of the limitation
contained in Section 9 (c) (3) of 1 election in a bargaining unit each 12 months , give rise to a
question concerning representation under Section 9 ' of the Act . It is likewise clear that the
purpose of the employees ' change in affiliation was such as not to make the Board's schism
doctrine applicable . See Sagninaw Furniture Shops, 97 NLRB 1488.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain with the statutory representative of his employees or in suits for breach of a col-
lective-bargaining contract , to the effect that, absent unusual circumstances, an employer
is obliged to bargain solely with the statutory representative chosen by his employees
during the certification year despite any defection in the representative 's majority status
which may have ensued during the certification year . >;0 From these principles , the Re-
spondent argues that " both parties to this contract , [between the Respondent and Local
9771 were prohibited from taking any actions in derogation of the union' s certification
within that period ," that the employees " engaged in activities which were designed to
subvert the basic provisions and tenets of the National Labor Relations Act," and that
"the Board is estopped from claiming the discharge of such employees was an unfair labor
practice." In sum, the Respondent urges that the employees ' activities were not within the
protection of the Act. The General Counsel, on the other hand, contends that the employees
engaged in concerted activities protected by the Act.
The issues posed by the instant proceeding are novel and an examination of decisions of
the Board since the 1947 amendments to the Act has elicited no indication as to the deter-
mination of the policymaking questions posed by the circumstances of this case . Although
the matter is not free from doubt , the undersigned is not persuaded the "basic provisions
and tenets" of the Act relied upon by the Respondent are conrolling upon the determina
tion of whether the employees engaged in concerted activities protected by the Act. These
principles urged by the Respondent are pertinent in situations involving a refusal to bargain
with the statutory representative or suits for violation of a collective-bargaining contract
but do not , in themselves , determine whether the action of the employees herein constituted
unprotected concerted activities . That is, such principles established that the Respondent
was under no obligation to grant Local 259 recognition or bargain with it in view of the
outstanding certification of Local 977 and the unexpired contract between Local 977 and the
Respondent , but the undersigned is unable to conclude that by these same tenets the em-
ployees ' activities in affiliating with Local 259 and requesting that the Respondent recognize
Local 259 and bargain with that organization were unprotected activities justifying their
discharge by the Respondent , in view of the legislative history of the Act.
Thus, the bill as reported in the Senate contained in Section 8 (a) (3) the following proviso:
"Provided further , That no employer shall justify any discrimination against an employee
for nonmembership in a labor organization . . . (C) if he has reasonable grounds for be-
lieving that membership was denied or terminated because of activity designed to secure
a determination pursuant to section 9 (c) (1) (A), at a time when a question concerning
representation may appropriately be raised." Section 8 (b) (2) of the same bill made it an
unfair labor practice for a labor organization " to persuade or attempt to persuade an
employer to discriminate against an employee with respect to whom membership in such
organization has been denied or terminated . . . because he engaged in activity designed
to secure a determination pursuant to section 9 (c) (1) (A) at a time when a question con-
cerning representation may appropriately be raised ." 11 These provisions were embraced
in the bill passed by the Senate, 12
The report of the Joint Study Committee on Labor Relations 13 stated that the purpose of
the foregoing provisions was as follows:
Discrimination is permitted only if [an employee] has failed to tender dues and in-
itiation fees or has engaged in "dual union" activity or activity designed to oust the
incumbent union as exclusive representative , at an inappropriate time . The purpose
of this latter provision is to insure greater stability to the contractual relations be-
tween unions and employers and to prevent dissident groups of employees from under-
mining the contractual relations between the employer and the union , but at the same
time to insure freedom of choice to employees . The clause "at a time when a question
concerning representation may appropriately be raised ," is intended to describe that
period , normally near the end of the contract term, during which the employees are
free to exercise the right to change representatives . It would not encourage stability
in labor relations if employees could engage with impunity in rival -union activities
10 In this regard , the Respondent cites Pepper and Potter . Inc. v . Local 977, United Auto
Workers, CIO, et al., 103 F. Supp . 684 (S . D. N. Y., 1952); N. L. R. B. v. Century Oxford
Manufacturing Corporation , 140 F. 2d 541 (C. A. 2); Medo Photo Supply Corporation v.
N. L. R. B., 321 U. S. 678.
u S. 1126, 80th Congress 1st Session.
iY H. R. 3020 , 80th Congress 1st Session.
13 Senate Report No . 105 on S . 1126, p. 21.
PEPPER & RITTER, INC. 969
from the very inception of the contract . The Board 's present policy, an enunciated
in the Rutland Court case (44 N. L. R. B. 587. 46 N. L. R. B. 1040) and other cases
applying that principle , is thus enacted into law. Moreover , this principle is extended
to protect activity designed to oust the incumbent union and restore a condition of
individual bargaining , in conformity with the right granted employees in Section 9
(c) (1) to petition for a determination that "the bargaining representative is no longer
a representative as defined in Section 9 (a)," i.e., has lost its exclusive representative
status.
Had the above provisos been retained in the Act as ultimately enacted by the Congress, the
Respondent 's argument that the employees ' activities were not within the protection of the
Act would have been considerably enhanced. However , the above-quoted provisos to Section
8 (a) (3) and 8 (b) (2) were deleted from the Act . In respect to such deletion , the House
Conference Report a stated:
A provision which was contained in the Senate amendment in section 8 (b) (2), designed
to prevent an employer from discriminating against an employee covered by a union
shop agreement, who had been expelled from the union for activities in behalf of another
representative , is omitted as unnecessary since there is nothing in the conference
agreement which permits an employer to discriminate against an employee who has
been expelled for this reason.
Regarding this deletion , Senator Murray made the following observation in debate ; "Under
subsection (C) formerly in the bill, dual union activity was confined to the period at the
close of the contract period; it is now protected at all times." 15
The foregoing summary of the legislative history pertaining to the elimination of the
proviso relating to dual union activities from Section 8 (a) (3) of the Act leads to the con-
clusion that the employees ' change in affiliation from Local 977 to Local 259 several months
prior to the end of the certification year of Local 977--a time which would have been "in-
appropriate" under the Rutland Court doctrine --and their attempts to secure from the
Respondent recognition of Local 259 as their statutory representative, including the request
that the Respondent negotiate a new contract with Local 259 despite the fact that the term
of the contract between the Respondent and Local 977 had several months to run, were
protected concetted activities under the Act.
This conclusion is further supported by the congressional intent evidenced in debate as
to the following provision contained in Section 8 (d) of the Act, wherein the duty to bargain
collectively is defined: " ...and the duties so imposed shall not be construed as requiring
either party to discuss or agree to any modification of the terms and conditions contained
in a contract for a fixed period , if such modification is to become effective before such
terms' and conditions can be reopened under the provisions of the contract ." In respect to
this portion of the section, Senator Taft made the following observations in an analysis of
the Act printed in the Congressional Record:16
Section 8 (d): The amendment to this subsection providing that the duty to bargain)
collectively should not be construed as requiring either party to discuss or agree to
any modification of the terms of a contract if such modification is to become effective
before the contract may be reopened has been construed on the floor to mean "parties
will be bound by contract without an opportunity for further collective bargaining."
The provision has no such effect. It merely provides that either party to a contract
may refuse to change its terms or discuss such a change to take effect during the
life thereof without being guilty of an unfair labor practice . Parties may meet and
discuss the meaning of the terms of their contract and may agree to modifications
on change of circumstances , but it is not mandatory that they do so . [ Emphasis sup-
plied.]
In the opinion of the undersigned , the above-quoted section of the Act and Senator Taft's
observation thereon are directly applicable to the circumstances of the instant case and
further demonstrate that the employees ' actions were within the protection of the Act. The
employees herein, being dissatisfied with Local 977 and its contract with the Respondent,
l4House Conference Report No . 510, on H. R 3020, p. 44.
1693 Cong. Rec. 6657.
1693 Cong. Rec. 7002.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changed their affiliation to Local 259 , and believing that such change in affiliation met
one of the requiremens for the termination of Local 977's contract as set forth therein,
they so advised the Respondent of their interpretation of the contract and requested that
the Respondent recognize Local 259 as the collective- bargaining representative of its
employees and negotiate a new agreement with that organization . It is clear that such re-
quests were not unlawful , even though the employees may have misinterpreted the pro-
visions of Local 977's contract as to its term, so as to make the mere request for the
Respondent's recognition of and negotiation with Local 259 unprotected doncerted activity.
The congressional intent as revealed by Senator Taft's statement indicates that requests
for modification of contracts in midterm are protected activities, inasmuch as "parties
may meet and discuss the meaning of the terms of their contract and may agree to modi-
fications on change of circumstances, but it is not mandatory that they do so." It is ac-
cordingly found that the employees' shift in affiliation to Local 259 and attempts to secure
recognition by the Respondent of that organization as their statutory representative and
the negotiation of a contract between the Respondent and Local 259, despite the outstanding
certification of Local 977 and the latter's unexpired contract, were not activities beyond
the protection of the Act. The employees were privileged to take such action and make such
requests, although the Respondent was under no duty to accede to their requests but could
lawfully, as it did , insist upon the continuation of the contract of Local 977 for its term and
refuse to recognize Local 259 or to bargain for a new contract with that organization
These conclusions negate the Respondent's further contention, in connection with its
argument as to the unprotected nature of the employees ' activities , that the Board, "having
certified Local 977 as the bargaining representative of the Employees," is now estopped
from "accusing Respondent of unfair labor practices because Respondent is carrying out
the mandate of the Board " Again, the issue is the distinction between principles governing
refusal-to -bargain situations or suits for contract violation and those concerned with dis-
crimination in regard to hire and tenure of employment because of employee participation
in protected concerted activities. The finding that the Respondent violated the Act by dis-
charging the Complainants because of their protected concerted activities would not vitiate
the contract between the Respondent and Local 977 if the agreement were still in effect.
The principles relied upon by the Respondent without question support the action taken by
the Respondent in refusing the employees ' requests that it recognize and bargain with
Local 259 as their statutory representative and in insisting that Local 977's contract be
continued for its term, but they do not, as stated above, establish in themselves that the
Respondent was privileged lawfully to discharge its employees beacuse of these activities
which have been found to be protected concerted activities under the Act or that the Board
is estopped from pursuing the present proceeding. 17
In view of the foregoing and the entire record , the undersigned concludes that the activities
of the Respondent ' s employees in respect to their change in affiliation from Local 977 to
Local 259 and their ensuing requests and negotiations with the Respondent were protected
concerted activities within the meaning of the Act and accordingly afforded the Respondent
no justification to discharge them on April 18, 1951
b. Whether the employees breached or repudiated the contract between the
Respondent and Local 977
In its brief, the Respondent contends that the employees breached the contract between
Local 977 and the Respondent in several ways. Initially, the Respondent argues that the
employees' withdrawal from Local 977 and affiliation with Local 259 was in contravention
of the union-security provision of the contract, requiring "as a continuing condition of
employment with the Company that all employees covered by this agreement shall be and
remain good-standing members of" Local 977. However, as noted above, the union-security
provisions of the contract were illegal , since they required new employees to become
members of Local 977 at the conclusion of their 2- week period of probation and thereby
exceeded the limited form of union security permitted by Section 8 (a) (3) of the Act. Ac-
17 It might be noted that in comparable situations where there has been a shift in the mem-
bership of employees from the certified local to another local within the same international
union , the Board had, upon request , amended the certification so as to set forth the name of
the latter local as the statutory representative. See Loblaw , Inc., 99 NLRB No. 149 ; United
States Plywood Corporation (South Carolina), 98 NLRB 1330; Bushnell Steel Company, 96 NLRB
218, Cadillac Automobile Company of Boston , 90 NLRB 460 ; Missouri Service Company,
87 NLRB 1142.
PEPPER & POTTER, INC. 971
cordingly, the illegal union-security provisions of the contract and the employees' alleged
breach thereof cannot serve the Respondent as a justificaton for its discharge of the em-
ployees. to
Secondly, the Respondent points to the partial work stoppage which occurred during the
afternoon of April 12 and the morning of April 13, when some of the employees refused to
jockey cars. as a breach of the contract's provisions forbidding strikes and setting forth
procedures to be followed in the handling of grievances. Although the refusal of some of
the employees to perform their customary duties was violative of these provisions of the
contract and subjected them to the possibility of discharge, the Respondent failed to take
action against them or even reprimand them at the time in question and must be held to
have waived or condoned such conduct. Hence, the Respondent cannot rely upon the partial
work stoppage of the employees on April 12 and 13 as a justification for their subsequent
discharge some 5 days later-19
The Respondent finally contends that the employees renounced their contract as shown
by the statements of their representatives at the conference with the Respondent on April 17
and their statements when they were interviewed by the Respondent's counsel on April 18,
considered in the light of their change in affiliation from Local 977 to Local 259 and the work
stoppage occurring on April 12 and 13. In other words, the question posed by this contention
of the Respondent is whether the discharges of the employees were within the scope of the
doctrine of the Sands case, 20 i.e., whether the employees were "so irrevocably committed
not to work in accordance with" the contract between Local 977 and the Respondent that they
fell within the rule of the Sands decision that "the Act does not prohibit an effective discharge
for repudiation by the employee of his agreement."
To recapitulate the facts, upon the certification of Local 977 authorizing it to negotiate
a union-security provision in its contract with the Respondent on September 20, 1950, the
contract between Local 977 and the Respondent became fully effective for the term of a year.
In late 1950 and early 1951, the employees became dissatisfied with their wages and working
conditions, as well as with Local 977, and in March 1951, by a vote of 8 to 1, determined to
change their affiliation from Local 977 to Local 259, admittedly in the hope of bettering their
wage rate and working conditions. Their action in this regard was taken with the knowledge
and approval of both Local 977 and Local 259. On April 12, 1951, Shop Steward Diamond and
Meyers, a representative of Local 259, conferred with President Pepper, informed him of
the change in affiliation of the employees, requested that Local 259 be accorded recognition,
and stated that they were "there to talk about a new contract." Arrangements were made to
10 As set forth above , the contract between the Respondent and Local 977 was executed on
May 18 , 1950, and the union-security provisions of the contract were drafted so as to read
that they were - subject to the approval of the National Labor Relations Board and the certi-
fication of the Union as the duly authorized representative of the Company ' s employees, and
the grant of the requisite authority therefor under existing law." These provisions effectively
deferred the application of the union -shop provisions of the contract until the conduct of the
election in Case No . 2-UA-5884. Thereafter, they became effective, and although they con-
tained illegal provisions , it cannot be argued that the provision contained therein, "subject
to the approval of the National Labor Relations Board ," excused their illegality or amended
the plain language of the contract showing that the provisions exceeded the limits permitted
by Section 8 (a) (3) of the Act. Cf . Aluminum Company of America , 93 NLRB 1190 ; Asplundh
Tree Expert Company , 92 NLRB 1013 . Moreover , even if the union-security provisions of
the contract had been lawful and if it may be assumed that an employer , in pursuance of a
union-shop contract , may on his own initiative lawfully take action affecting the employment
of employees who are not members of the contracting labor organization , it would appear
that the discharge of these Complainants was nevertheless illegal , since the reasons for the
discharge exceeded the limits of the following proviso to Section 8 (a) (3): "Provided further,
That no employer shall justify any discrimination against an employee for nonmembership
in a labor organization ... (B) if he has reasonable grounds for believing that membership
was denied or terminated for reasons other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly required as a condition of acquiring or retain-
ing membership." Here , the employees informed the Respondent that they were voluntarily
changing their affiliation from Local 977 to Local 259, yet they were not in default in the
payment of their current dues in Local 977 at the time of their discharge because of the
checkoff provisions in Local 977's contract and the Respondent's adherence to such provisions
and deduction of the dues for Local 977 from the terminal pay given the employees when they
were discharged.
19 Alabama Marble Company, 83 NLRB 1047.
19N. L. R. B. v,The Sands Manufacturing Company, 306 U. S. 332.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consider their requests at a later date with the Respondent ' s counsel . The meeting con-
cluded with a discussion of an employee 's grievance.
On the afternoon of April 12 and the morning of April 13 , seven employees engaged in a
partial work stoppage by refusing to jockey cars in retaliation for the denial of the em-
ployee' s grievance . On April 16 , 1951 , the Respondent received a letter from the president
of Local 259, who stated that the employees "have joined" Local 259 and requested "that
we meet to negotiate an Agreement, at your earliest possible convenience."
At the conference on April 17, 1951, Meyers stated that he was in possession of the
Respondent ' s contract with Local 977 and was of the opinion that by its provisions the
contract had terminated and requested that a new contract be negotiated with Local 259.
The Respondent took the position that its contract with Local 977 was in full force and effect
and stated that it would not "make any new contract with Local 259." Meyers said that
"the "ontract with Local 977 wouldn't be lived up to by the men" because they "were dis-
satisfied ." When questioned as to the matters causing dissatisfaction , Shop Steward Diamond
replied that the employees desired a higher wage rate and a change in certain working con-
ditions . Some discussion as to these matters ensued and Meyers stated that he desired the
Respondent " to get into line" with the standard contract of Local 259. Among other matters
mentioned were the steps involved in the transfer of employees from Local 977 to Local 259
and the certified status of Local 977. In response to the Respondent's request , Meyers
promised to furnish it with a statement of Local 977's approval of the change in the em-
ployees ' affiliation.
The next day the Respondent received a letter from the president of Local 977, stating that
that organization "no longer represents the members working in your plant They are now
affiliated with" Local 259. The same afternoon, the Respondent assembled the employees
and its counsel interviewed them. He summarized the demands made by Diamond and Meyers
at the conference the previous day and then , according to the credited testimony of Fisch-
bach , counsel for the Respondent , the following occurred.
I also asked them each to verify to me whether it was true that they had agreed not to
work under the Local 977 contract . I told them distinctly, and you can quote this be-
cause these are the words that I did use. I said " I don' t care whether you are Masons
today, Elks tomorrow and Odd Fellows on the third. All we are interested in is your
continuing to work under the contract. We have a contract with 977. It was twice the
subject of proceedings before the National Labor Relations Board."
I said , " I want personal verification from each of you as to whether you authorized
Mr Meyers and Mr . Diamond to make the demands which they did make ;" and when
they indicated that they did, I said , "Under the circumstances , we have no alternative
but to discharge you right here and now."
It was Fischback 's further testimony that he made the decision to discharge the employees
at the time they told him onApril18 that "the demands that Mr . Meyers and Mr . Diamond had
made had been authorized and that they would not work under 977."
In the opinion of the undersigned , the facts of the instant proceeding , summarized above,
are patently distinguishable from the circumstances in the Sands case and render the doctrine
of that decision inapplicable. 4 As found above, a substantial portion of the Respondent's
motivation for the employees ' discharge--that is, that they had authorized the requests made
by Meyers and Diamond for the Respondent's recognition of Local 259 and negotiation of a
contract with that organization - -were protected concerted activities within the meaning of
the Act and gave the Respondent no justification for the discharge of the employees. The
remaining reason for the discharges and for the invocation of the Sands doctrine was the
employees' statement when interrogated by the Respondent 's counsel that "they would not
work under 977." In the absence of circumstances comparable to those in the Sands case,
the foregoing statement is insufficient--either standing alone or considered in conjunction
with the partial work stoppage on April 12 and 13 and with the position advanced by the
employees ' representatives on April 17--in the undersigned's opinion to establish that the
employees were " so irrevocably committed not to work in accordance with" the contract
n In the Sands case, a dispute arose between the parties during which the contracting union
insisted that the employer operate its plant in a manner different from that set forth in their
contract . The union advised the employer to cease operations unless it accepted the union's
conditions . On the other hand, if the employer would attempt to operate without acceding to
the union 's position , a strike inevitably confronted the employer . The latter thereupon shut
down the plant temporarily , and upon resuming operations it hired new employees in the
place of the employees represented by the union.
PEPPER& POTTER, INC. 973
between Local 977 and the Respondent that they were subject to discharge by the Respondent
"for repudiation by the employee of his agreement ." It is accordingly found that the cir-
cumstances of the case do not establish such an effective repudiation by the employees of
the agreement between the Respondent and Local 977 as to justify the Respondent in dis-
charging them.
Having found no merit in the Respondent ' s defense to the discharge of these Complainants,
the undersigned concludes that by discharging Ralph Diamond , Cosmo Barbieri, Elias
Degestinos, Joseph Linyear, Haynes O'Neil, Nathan Sacher, and John E. McCovery on
April 18, 1951 , and Harry Timmermann on April 19, 1951 , because they engaged in protected
concerted activities on behalf of Local 259 for the purpose of collective bargaining or other
mutual aid or protection , the Respondent discouraged membership in Local 259 and engaged
in violations of Section 8 (a) (3) and ( 1) of the Act.
Inasmuch as the interrogation of the employees by Fischbach and Service Shop Manager
Youngman as to their affiliation , sympathies , desires, and activities concerning Local 259
and Local 977 were directly related to the immediately ensuing discriminatory discharge
of the foregoing Complainants , it follows that by such interrogation, as well as by the state-
ments of Fischbach in effectuating the discharge of the Complainants because of their
protected concerted activities on behalf of Local 259 , the Respondent interfered with, re-
strained , and coerced its employees in the exercise of the rights guaranteed them in Section
7 of the Act.
B. Alleged discriminatory discharge of
Margaret O'Leary Landolfi
Margaret O'Leary Landolfi entered the Respondent ' s employ about May 15, 1950, and
was employed in the office of the Respondent 's service station . She answered the telephone,
took orders , kept records , settled customers ' accounts , and "made up the boys' time tickets."
She was not a member of Local 977 or Local 259 and did not participate in the activities of
either organization . Her position was excluded from the unit covered by Local 977's con-
tract with the Respondent . In December 1950 she started dating Cosmo Barbieri , a mechanic
employed in the service shop and one of the Complainants herein, and continued to do so in
1951. Barbieri frequently came to Landolfi' s office at lunch hour and sometimes ate his
lunch there or had tea with her.
About the middle of March 1951, Lester Potter , secretary - treasurer of the Respondent,
told Service Shop Manager Joseph Youngman that Potter had heard some rumors that Landolfi
was dating one of the mechanics and inquired as to " what her behavior was " Youngman
replied , according to his undenied testimony, that he had heard and knew nothing about such
rumors , because " at that time I didn' t want to mention it."
On April 18, 1951 , after Barbieri and the other Complainants were discharged , Barbieri
and Landolfi left the Respondent 's shop together and Barbieri told Landolfi to pack her
belongings in the shop , but she refused to do so.
According to the uncontroverted and credible testimony of Service Shop Manager Youngman,
he had the following telephone conversation with Barbieri ' s wife on the morning of April 19,
1951, the morning after the discharge of the Complainants heretofore discussed:
She said that she wanted to know if I knew what was going on between her husband and
the girl that worked in our office . . . I said I didn' t know whether there was. anything
going on , as far as I know, they spend a little time together . She says well, she says,
he hasn't been home and I understand he spent the night with her. That is what she told
me.
Youngman informed one of the Respondent' s officials of his telephone conversation with
Mrs. Barbieri. Later in the morning President Pepper asked Landolfi whether she intended
to remain in the Respondent 's employ and she replied that she did. Not long thereafter,
Secretary -Treasurer Potter and Fischbach, the Respondent ' s counsel, conferred with
Landolfi, at which time the following occurred according to the credible testimony of Fisch-
bach:
On the following morning, [April 19] I personally sat down with Miss O'Leary
[ Landolfi ] in the office there, and asked her if the report that I had received that she
had received an invitation to leave Pepper and Potter was correct.
She told me that she had been asked by Mr. Barbieri to leave . I asked her if she was
satisfied with the work , her job, and she said she was.
I asked her if it was true that she had been associating with him and other employees.
She said it was, but she also stated that she was of the view that what she did after
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours was no concern of Pepper and Potter's. I told her that they had a different idea
about that and I also told her that they were quite dissatisfied with her associations
with the shop employees in view of the fact that she was handling money and in view
of the fact that her associations extended into the customers' waiting room. tt
At the end of the workday on April 19, 1951, Service Shop Manager Youngman informed
Landolfi that she was discharged. Landolfi testified that immediately thereafter she had
the following telephone conversation with Michael Pepper, sales manager of the Respondent:
I asked Mike Pepper why I was being discharged and he said I was too friendly with
the boys. I told him that was no reason for letting me go. He said well, let us say it is
for the good of our campaign, Mr. Pepper and Mr. Potter and 50 of the union men talked
it over and decided I shouldn't stay. . . . I said I didn't think it was a fair reason to
let me go. I said I would fight him than go to the Labor Board if necessary. . He
said perhaps I would be reinstated but he didn't think I would care to work for the
company that didn't want me there.
Michael Pepper was not available as a witness but Secretary-Treasurer Potter denied
that he and President Pepper had discussed the discharge of Landolfi with any "union
men" and testified that "a few days or say a week before these problems came out, for
some reason or other , reports started to come to us about her associations with the men
in the place which we knew nothing about up to that time . Whatever did take place , somehow
or other our key men kept that to themselves , I don't know why. They finally brought it
out. It wasn ' t the kind of thing we like to take place in our establishment . We think we
should keep all personalities out of it . She was a good worker , we liked the way she worked,
but once she entered into relations with the men in our place, we felt it was time we had to
discharge her." President Pepper testified that although he considered Landolfi's work
satisfactory , he gave the order to sever her employment with the Respondent after being
told by Secretary -Treasurer Potter of her " relations with the employees of the shop and
after he told me what he told me, I said well , in that event , we will have to let her go."
Pepper further testified that although Barbieri had been discharged the preceding day,
Pepper nevertheless determined to discharge Landolfi because " I lost my confidence in
her as an employee , I didn ' t feel that a girl that was handling the records down at the shop
and the money and so forth and so on should have any contact with any of the employees of
the shop, even though they were no longer there " After Landolfi' s dismissal , the Respondent
hired male employees in her stead.
Although Landolfi ' s testimony as to her conversation with Michael Pepper , as set forth
above , was not denied by Michael Pepper , the undersigned is persuaded upon the entire
record and his observation of the witnesses that despite this circumstance , Landolfi's
testimony is not entitled to credence . As mentioned in the margin above, her testimonial
version of a conversation with Fischbach has been rejected and she did not impress the
undersigned as a wholly reliable witness . Moreover , a portion of the testimony of Secretary-
Treasurer Pepper, who appeared to be a trustworthy witness, rebutted statements attri-
buted to Michael Pepper by Landolfi . Furthermore , the testimony of Youngman , President
Pepper , and Fischbach was mutually corroborative as to the reasons for Landolfi's dis-
charge. Such testimony , coupled with the findings of fact made in respect to the discharge
of the other Complainants on April 18, and the other observations made above, lead the
undersigned to reject the testimony of Landolfi in respect to statements made by Michael
Pepper as unworthy of credence.
The undersigned concludes that the record fails to sustain by a preponderance of credible
evidence the complaint 's allegations that Landolfi was discriminatorily discharged "because
she sympathized with or assisted, or because Respondent believed she was sympathizing
with or assisting ," the other Complainants " in their concerted activities on behalf of Local
259 for the purpose of collective bargaining or other mutual aid or protection ." It is accord-
ingly found that the Respondent has not discriminated in respect to the hire or tenure of
employment of Margaret O'Leary Landolfi within the meaning of Section 8 (a) (3) of the Act.
fLandolfi's testimonial versionofthis interview varied considerably from that of Fischbach.
In contradistinction to Landolfi , Fischbach appeared to be an especially reliable witness, as
heretofore mentioned. His version of the interview with Landolfi is accordingly credited and
Landolfi 's testimony in regard thereto is rejected as unworthy of credence.
PEPPER & POTTER, INC. 975
IV. THE EFFECT OF THE UNFAIR LABDR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in connection
with the operations of the Respondent described in section I, 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 commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices , the under-
signed will recommend that the Respondent cease and desist therefrom and take certain
affirmative action which the undersigned finds necessary to effectuate the policies of the Act.
Having found that the Respondent discriminatorily discharged Ralph Diamond, Cosmo
Barbieri , Elias Degestinos , Joseph Linyear, Haynes O'Neil , Nathan Sacher , and John E.
McCovery on April 18 , 1951 , and Harry Timmermann on April 19 , 1951, because of their
concerted activities on behalf of Local 259, the undersigned will accordingly recommend
that the Respondent offer them immediate and full reinstatement to their former or sub-
stantially equivalent positions tt without prejudice to their seniority and other rights and
privileges and make them whole , in conformity with the Woolworth formula , u for any
loss of pay they may have suffered by reason of the Respondent ' s discrimination against
them by payment to each of them of a sum of money equal to the amount he normally would
have earned as wages from Fhe date of the Respondent ' s discrimination against him to the
date of the offer of reinstatement , less his net earnings during said period . * It is recom-
mended further that the Respondent make available to the Board upon request payroll and
other records in order to facilitate the checking of the amount of back pay due. ffi
It will be recommended that the Respondent cease and desist from interfering with,
restraining , or coercing its employees in violation of Section 8 (a) (1) of the Act by in-
terrogating employees as to their union affiliation , sympathies , desires , and activities.
Because of the Respondent ' s unlawful conduct and its underlying purpose and tendency,
the undersigned finds that the unfair labor practices found are persuasively related to
other unfair labor practices proscribed and that danger of their commission in the future
is to be anticipated from the course of the Respondent' s conduct in the past . n The pre-
ventive purpose of the Act will be thwarted unless the order is coextensive with the threat.
In order , therefore , to make effective the interdependent guarantees of Section 7, to prevent
a recurrence of unfair labor practices , and thereby to minimize industrial strife which bur-
dens and obstructs commerce , and thus effectuate the policies of the Act , the undersigned
will recommend that the Respondent cease and desist from in any manner infringing upon
the rights guaranteed in Section 7 of the Act.
It will also be recommended that the complaint be dismissed insofar as it alleges that
the Respondent discriminated in regard t0 the hire and tenure of employment of Margaret
O'Leary Landolfi.
Upon the basis of the above findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Local 259, International Union, United Automobile , Aircraft and Agricultural Im-
plement Workers of America , UAW-CIO, and Local 977, International Union, United Auto-
mobile , Aircraft and Agricultural Implement Workers of America, UAW-CIO, 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 Ralph Diamond,
Cosmo Barbieri , Elias Degestinos , Joseph Linyear , Haynes O ' Neil, Nathan Sacher , John E.
McCovery, and Harry Timmerman , thereby discouraging membership In Local 259, the
See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
MF. W. Woolworth Company, 90 NLRB 289.
26Crossett Lumber Co., 8 NLRB 440 ; Republic Steel Corporation v. N. L. R . B., 311 U. S. 7.
F. W. Woolworth Company, 90 NLRB 289.
27 N. L. R. B . v. Express Publishing Co., 312 U . S. 426.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of the
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.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not discriminated in regard to the hire and tenure of employment
of Margaret O'Leary Landolfi within the meaning of Section 8 (a) (3) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
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 Relations Act, we hereby
notify our employees that:
WE WILL NOT interrogate our employees in respect to their affiliation , sympathies,
desires, and activities concerning Local 259 or Local 977, International Union, United
Automobile , Aircraft and Agricultural Implement Workers of America, UAW -CIO, or
any other labor organization.
WE WILL NOT discourage membership in Local 259, International Union, United
Automobile , Aircraft and Agricultural Implement Workers of America, UAW -CIO, or
any other labor organization , by discharging any of our employees or in any other
manner discriminating in regard to their hire or tenure of employment or any term
or condition of employment.
WE WILL NOT in any other manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor organizations,
to join or assist Local 259, international Union, United Automobile , Aircraft and Agri-
cultural Implement Workers of America . UAW-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing , and to engage in con-
certed activities for the purposes 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 to the employees named below immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed, and make them whole for any loss
of pay suffered as the result of the discrimination against them.
Ralph Diamond
Cosmo Barbieri
Elias Degestinos
Joseph Linyear
Haynes O'Neil
Nathan Sacher
John E. McCovery
Harry Timmermann
All our employees are free to become or remain members of Local 259, International
Union, United Automobile , Aircraft and Agricultural Implement Workers of America, UAW-
CIO, or any other labor organization , or to refrain from becoming or remaining members of
such organizations except to the extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the Act
PEPPER AND POTTER, 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.