Garod Radio Corp.

In the Matter of GAROD RADIO CORPORATION and LOCAL 430, UNrnw ELECTRICAL, RADIO AND MACHINE' WORKERS OF AMERICA , C. I. O. and LOCAL B 1010, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. OF L., PARTY TO TIIE CONTRACT Case No. C-1349.=Decided February 16, 1943 Jurisdiction : electrical equipment manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: closed-shop contract found to be invalid, without regard to the validity or invalidity of certification of rival union, when it was executed during pendency of representation proceedings in the interim between the election conducted by the Board and the issuance of the certifica- tion, and when the results of the election did not affirmatively disclose that the contracting union represented a majority of employees. Discrimination: discharge of employee pursuant to invalid closed-shop contract. Collective Bargaining: charges of refusal to bargain dismissed in view of insist- ence of union that employer post notices as condition precedent to the conduct of bargaining negotiations Remedial Orders : cease recognizingrcontracting union unless certified by the Board ; closed-shop contract abrogated ; discriminatorily discharged employee not desirous of reinstatement awarded back pay from date of discrimination to date he first obtained employment elsewhere DECISION AND ORDER STATEIIEN'1- OF THE CASE Upon complaint issued 'pursuant to charges'dulyfiled by Local 430, United Electrical, Radio and Machine Workers of America, affiliated with the Congress of Industrial Organizations, herein called Local 430, against Garod Radio Corporation, New York City, herein called the respondent, a hearing was held before'a Trial Examiner in New York City on August 24 and 25, 1942, in which the Board, the respond- ent, Local 430, and Local B 1010, International Brotherhood of Elec- trical Workers, affiliated with the American Federation of Labor, herein called Local B 1010, participated by their representatives. The Board has reviewed the rulings of the Trial Examiner made on motions and oh objections to the admission of evidence and finds that, no preju- dicial error was committed. The rulings are hereby affirmed. 47N L R B, No. 89 677 678 DEiC!TSIONS OF NATIONAL LABOR RELATION'S BOARD On September 25, 1942, the Trial Examiner issued his Intermediate Report, finding that the respondent h'ad engaged in, and was-engaging in, unfair labor,practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and dismissing the complaint 'insofar as it.alleged that-the respondent had refused to bargain col- Iectively within the meaning of Section 8 (5), of the Act: Exceptions to the Intermediate Report were thereafter filed by the respondent, Local 430, and Local B 1010. Local 430. and Local -B 1010 also filed briefs in support of their exceptions. Oral argument was held before the Board at Washington, D. C., on December 17, 1942. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, except insofar as they,are inconsistent with our decision hereinafter set forth. , The record is clear and we are convinced, as the Trial Examiner found, that the respondent engaged in the'unfair labor practices al- leged in the complaint except as to the allegation of refusal to bar- gain within the meaning of Section 8 (5) of the Act. In his Inter- -mediate Report, however, the Trial Examiner rejected, as without merit, contentions of the respondent and of Local B 1010 attacking the validity of proceedings under Section 9 (c) of the Act in which the Board had certified Local 430 as the exclusive representative of .the respondent's employees. The Trial Examiner concluded that a closed-shop contract, dated April 14, 1941, and entered into by the respondent and Local B 1010 in the interim between an election con- ducted by the Board in said proceedings and the issuance of the certifi- cation, was invalid in view of the certification. However, we find, without regard to the validity or invalidity of the certification, the closed-shop contract to be invalid, because it was made at a time when a question as to representation was pending before the Board and because the results of the Board's statutory investigation, the exclu- live-means then available for determination of the question, did not disclose that Local B 1010 had been designated by'a majority of the employees in an appropriate unit, as required by the proviso to Section -8 (3) of the Act.'- ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations -Board" hereby orders that the respondent, Garod Radio Corporation, ,New York City, its officers, agents, successors, and'assigns shall: Cf Matter of John Engel horn d Sons and Packinghouse Workers Organizing Committee, C. I. O.,'et al., 42^N. L. R. B. 866; Matter of Walgreen Company and Chicago Drug Workers Association, affiliated with The Warehouse and Distribution Workers Union, I. -L. W. U., 44 N. L. R. B. 1200. GAROD RADIO CORPORATION - 679• 1. Cease and desist from : - - (a) Encouraging membership in, Local B 1010, or any other labor 'organization, or'discouraging membership-in Local 430, or any labor organization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment; (b)' Recognizing, or in any manner dealing with, Local B 1010 as the exclusive collective bargaining representative • bf any of its em- ployees, unless and until such labor organization is certified as such exclusive representative by the Board ; (c) Giving effect to the contract of April 14, 1941, the extension of April 13, 1942, or any other extension, modification; or renewal thereof, or any 'other contract it may have entered into with Local B 1010; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to .form, join, or assist labor organizations,-to bargain collectively. through representatives- of their own choosing and to engage in- concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the - following affirmative action, which the Board finds will-effectuate the policies of the Act:, , . - , , - , ', (a) Withdraw all recognition from Local B 1010 as the exclusive collective bargaining representative of any of its employees unless'and until said labor organization is certified as such representative by the Board ; (b) Make whole John Trocchio for any loss of-.earnings he may ,have suffered by reason of the respondent's discrimination against him by payment of a sum of•money equal to the amount•he would normally have earned as wages during the period from the date of such dis- crimination to the date that he first obtained employment elsewhere; (c) Post immediately in conspicuous places at its plant in Brook- lyn, New York, and maintain for a period of at least sixty (60) -con- secutive days from the date of posting, notices to its employees stating : (1) that it will not engage in the conduct from which it isi ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to remain or become members of Local 430, United'Electrical, Radio and Machine Workers of Amer- ica, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; (d) 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 taker. to comply herewith. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent, by refusing to bargain collectively with Local 430, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act, be, and it hereby is, dismissed. MR. WM. M. LEISERSON took no-part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. John J. Cuneo, for the Board. Mr. Morris Weintraub, of New York City, for the respondent. Mr Emil Katz and Mr. Frank Sheiner, of New York City, for Local 430. - Ashe & Rif kin, by Mr. David I. AsIte, of New York City, for Local B 1010. STATEMENT OF THE CASE Upon, a second amended charge duly filed by Local 430, United Electrical, Radio and Machine Workers of America, affiliated with the Congress of Indus- trials Organizations, herein at times called Local 430, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued a complaint dated August'4, 1942, against Garod Radio Corporation, herein called the respondent, alleging that the respondent had engaged and was engaging in unfair labor practices within the meaning of Sec- tion 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. The complaint and notice of hear- ing were duly served upon the respondent and upon Local B 1010, International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, herein called Local B 1010, party to a contract with the respondent. The complaint alleged, in substance, with respect to the unfair labor practices that the respondent: (1) on or about April 28, 1941, discharged and has since .refused to reinstate John Trocchio because he refused to join, assist, or remain a member of, Local B 1010; (2) on or about July 25, 1941, and at all times there- after, refused to bargain with Local 430 as the exclusive representative of the employees in an appropriate unit; (3) since on or about April 14, 1941, has interrogated its employees concerning their union affiliations, has urged its em- -ployees at its Brooklyn plant to join Local B 1010, has threatened said employees with discharge if they did not become and remain members in good standing ,of Local B 1010, and has required membership in that labor organization as a condition of employment; (4) on or about April 14, 1941, recognized and entered into a contract with Local B 1010 requiring membership in that labor organization as a condition of employment, and modified, supplemented, renewed, or extended such contract although Local B 1010 was not the representative of the employees in the appropriate unit for which the contract granted Local B 1010 exclusive recognition ; that the contract and any modification, supplement, renewal, or extension of it are invalid and in violation of the Act ; that by means of the con- tract and the other acts mentioned in the complaint the respondent sponsored and assisted Local B 1010 and has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed,in the Act. 11 The respondent and Local B 1010 filed,answers to the complaint The respond- ent denied the commission of any unfair labor practices and set up certain af- GAROD RADIO - CORPORATION 681- firmative defenses.' Local B 1010 denied that Local 430 represented a majority of the employees in the appropriate unit, denied that the respondent had- ever- sponsored or assisted it or that it was not entitled to exclusive recognition as the representative of employees in the appropriate unit, and denied the invalidity of its contractual relation with the respondent ; denied for lack of knowledge the allegations that the respondent had discriminated against Trocchio, that the re- spondent had refused to bargain with Local 430, that it had interrogated its em- ployees about union affiliations, had urged them to join and threatened them with discharge if they did not become and remain members'of Local B 1010, and had required, membership in Local B 1010'as a condition of employment. Pursuant to notice, a hearing was held at New York City on August 24 and 25, 1942, before William B. Barton, the Trial Examiner duly designated by the Acting. Chief Trial Examiner. The Board, the respondent, Local 430,' and Local B 1010 were represented by counsel and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence' bearing on the issues was afforded all parties. At the close of the hearing both the respondent and Local B 1010 renewed motions, denied without prejudice at the beginning of the hearing, to dismiss the complaint.' Ruling was reserved on these motions. They are hereby denied, except insofar as) consistent with the findings of fact, conclusions of law, and recommendations set forth below Near the close of the hearing counsel for the Board moved that the pleadings be amended to conform to the proof with respect to^such matters as dates and spelling of names. There was no objection and the motion was granted. Local B 1010 has filed a brief with the undersigned. Upon the entire record in the case and from his, observation of the witnesses,- the undersigned makes the following: FINDINGS OF F_\Cr 1. THE BUSINESS OF THE RESPONDENT R Garod Radio Corporation is a New York corporation with its principal office and place of business in Brooklyn, New York. The respondent is engaged in the manufacture and'sale,of electrical equipment, including distribution and switch boxes and supply panels for ships of the United States Navy. The principal ma- terials used by the respondent in its manufacturing processes are radio parts, raw copper, steel, bakelite, wire, and brass. During the six months prior to the hear- ing approximately 50 percent of the raw materials or other materials used by the respondent in its business, and valued at approximately $100,000, were shipped to it from places outside the State of New York. During the same period the respondent produced finished products valued at approximately 1 By way of affirmative defense the respondent alleged in substance that at all times mentioned in the complaint Local B 1010 represented a majority of the employees in the appropiiato unit and the contract with that labor organization was a•valid agreement exe- cuted in good faith ; that the election pursuant to which Local 430 claimed to represent a majority of said employees was invalid because all, employees in the unit were not per- mitted to vote ; that said election was invalid because at the time thereof and since there was and is a binding agreement between the respondent and Local B 1010 as the duly authorized, representative of employees in the appropriate unit; that the respondent is a defense manufacturing plant and these proceedings interfere with the respondept's produc- tion and war effoi t ; and that the complaint should be dismissed by reason of laches 2 An appearance was entered for Frank Sheiner as attorney for Local 430. He was not personally in attendance at the hearing, but Emil Katz, that labor organization's representative, was personally present and participated in the hearing. S The substance of the matters urged in support of these motions is set forth in footnote 7, infra 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $300,000, 25 percent of which, were shipped by; it to places outside the State of New, York.' H. THE ORGANIZATIONS INVOLVED Local 430, United Electrical, Radio and Machine Workers of America, affiliated with the Congress of Industrial Organizations, and Local B 1010, International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, are labor organizations. Both of these labor organizations admit to membership employees in the respondent's Brooklyn plant. III. THE UNFAIR LABOR PRACTICES A. The discrimination against John,Trocchio; inter ference, restraint, and coercion . The complaint alleges that on or about April 28, 1941, the respondent discharged and refused to reinstate John Trocchio because he refused to join, assist, or remain, a member of Local B 1010' 'On February 13, 1941, the Board conducted an election among employees in an appropriate unit in the respondent's plant ° Thereafter, on April 14, 1941, before the Board had issued a certification, the respondent recognized Local B 1010 and executed a written closed-shop contract with that labor organization with respect'to wages, hours, and working condi- tions of employees in the appropriate unit. This contract was to remain in effect from year to year thereafter unless modified before the expiration of any year in a manner set forth in the contract.' On July, 24, 1941, the Board certified Local 430 as the exclusive bargaining representative of employees in the appro- priate unit' It is therefore clear that at the time of the respondent's execution ' The respondent concedes that it is engaged in interstate commerce within the meaning of the Act. ' There is no dispute about the appropriateness, of the unit set forth in the complaint in connection with the allegations of a refusal to bargain as discussed below. The unit there alleged is the same as that found appropriate in the representation proceeding dis- cussed heiein. ° The, history of the contractual' relations between Local B 1010 and the respondent until early in 1941 are set :forth in Hatter of Garod Radio Corporation and Local 430 of the United Electrical, Radio & Machine Workers of America, C. 1. 0., 29 N. L. R. B. 184., On April 13, 1942, the agreement of April 14, 1941, was by written agreement extended indefinitely, subject to cancellation by either party on 48 hours' notice. About the same time, Local B 1010 and the respondent agreed on the terms of a new contract, except for seven disputed ^prOyislons -which the parties by agreement submitted to an arbitrator, appointed by the United States) Department of-Labor. The arbitrator's final award is still, pending:, '-The certification was made after a hearing on Objections to the Election Report' flied by both labor organizations. See Matter of Cared Radio Corporation and Local 430 of the, Unit ed .Electrical, Radio, d•,Machine Workers, of America, C., I. 0., 32 N. L. It. B. 1010 ibid, 33 N. L. It. B '782. At the instant hearing the respondent urged, that the election directed by the Board on January , 24„ 1941, ` was, invalid because there- was an unexpired contract in existence, between the respondent and_ Local B 1010, because the selection of the May 6 and December, 6, 1940, _payroll dates, as a basis for determining eligibility to vote in the election was improper and a large number of the respondents employees 'were disfranchised in the- . election as a resultiof,the use of these payroll dates Local B 1010 urged for similar reasons, that the election was invalid, also urging that Local B 1010 had a valid contract- with the, respondent, the negotiation of which had been specifically authorized in writing by the. employees. These matters were all before the Board in the representation proceedings. The under- signed therefore concludes that they, do. not, present any new matter as a basis for depart- ing from the determination by the Board in that proceeding. Local B 1010 also urged, and the respondent alleged in its answer, that the proceedings were barred by lathes. Even if it were conceded that such a defense can be availed of in a proceeding of this nature, the undersigned finds no such delay in the instant case as. to constitute grounds for dismissal. IGAROD RADIO CORPORATION 683 of the closed-shop contract with Local B 1010 that labor organization was not the, representative of the employees in the appropriate unit within the meaning-of- Section 9 (a) of the Act. For that reason the contract does not fall within the proviso of Section 8 (3) of the Act and cannot operate as a defense if the, respondent discharged Trocchio because he refused to join, assist , or remain a; member of Local B 1010.8 Trocchio began work for the respondent in 1934. He did assembling work until 1937 and after that, until his employment termination on April 28, 1941, did assembling, wiring,,and repairing work. On April 3, 1941, Trocchio walked off his job, at the respondent's Brooklyn plant, in support of a protest by him that Joe Pogano, foreman of his department, was placing on the bench for him more work than he could possibly do. Apparently the only conversation at the time between Trocchio and any of his superiors was a statement by Trocchio to Pogano that he was being given too much work and would not do it. On April 11, 1941, Trocchio, meanwhile having remained away from work, returned to the plant in order to receive his pay, and he had a conversation while in the plant with Paul C. Graff, the plant superintendent Graf informed Trocchio that the employees in-the plant had received a wage increase.' Trocchio replied that he would not return to work unless the respondent would pay him 60 cents an hour, whereupon Graf told Trocchio to return to work the following Monday and he would "see about it." On Monday, April 14, Trocchio resumed work. with pay at the rate of 60 cents an hour, and' continued through the working day of April 28. On April 29, 1941, as Trocchio was about to go to work, Pagano said to him, "Don't punch your card." Trocchio testified as follows regarding his ensuing conversation with Pagano: "The only thing Joe Pagano said to me, was that I was suspended by the Local . . He said he received notice from Local B 1010" As Trocchio's testimony regarding this conversa- tion is uncontroverted, the undersigned credits it 10 After this conversation, Pogano told Trocchib to see Graf at nine o'clock" Trocchio testified that at that time he spoke to Graf, and Graf said he had a notice that Trocchio was "suspended from the A. F. of L." Trocchio further testified as follows regarding this conversation : "Mr. Graf said to me, `Go up to the union office and get your- self straightened out.' . . . He said he can't hire me, unless I get myself straightened out." Graf did not specifically deny that this conversation took place as testified by Trocchio. Graf testified on direct examination that he told Trocchio on this occasion he could no longer work for the respondent on account of his behavior and, when asked by the respondent's counsel whether he told Trocchio at the time of the latter's employment termination that the respondent could not' employ Trocchio because he was not in good standing with Local B 1010, Graf replied, "No ; - I do not recall any such statement." On cross-examination by counsel for the Board, however, Graf testified that he could not remember definitely at what, time of the day he talked with Trocchio on April 29, or whether- he saw Trocchio at all on that date. Under the cir- 8 The proviso states. "that nothing in the Act . . . shall preclude an employer from making an agreement with a labor organization ( not established , maintained or assisted, by am action defined in thug Act as an unfair labor practice) to requne as a condition of employment membeiship therein if such labor organization is the representative of the employees as provided in Section 9 (a) in the appropriate bargaining unit covered by such agreement when made." BApparently Graf referred, to a general wage increase which had been made daring the week of this conversation. 10 Pogano was not called by the respondent to testify 11 Apparently about eight-thirty or nine o'clock was the time Graf usually went to work. J 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cumstances, the undersigned credits Trocchio's testimony regarding the con- versation as stated above. After talking with Graf, Trocchio, on the same clay, went to the headquarters of Local B 1010 According to his nncontradicted testimony, which the under signed credits, he talked there with one Katy, an organizer, for the Interila tional Brotherhood of Electrical Workers, Katv telling Trocchio, after Ti ocehro had mentioned his conversation with Graf, that Trocchio was suspended from ,Local B 1010 for being in arrears>in dues and Katy could do nothing about the matter " On May 1 Trocchio received from Local B 1010 a letter written on April 28, which notified him he was suspended for financial arrears, for violations of rules, and for violation of his former reinstatement on probation. The letter informed Trocchio that.his.case. would be-heard at the,next meeting of the Local Execu- tive Board. After Trocchio received this letter lie went to the plant and saw Graf, who sand, "Did you get yourself straightened out?" Trocchio replied in -the negative and Graf said lie could not allow 'l'rocchio to return to work iinles'i he would "get reinstatement from the union " " At its meeting on May 7 the Executive Board discussed Trocchio's financial arrears and the fact that he had previously been placed on probation for the same reason. The Executive Board voted unanimously to suspend Trocchio from "the union and all privileges" for a minimum of one year Trocchro has not been reinstated in his position with the respondent _ Herbert Barnett-financial secretary of Local B 1010, and William Beedie, International Representative of the International Brotherhood of Electrical Workers, testified that Local B 1010 never requested the respondent to terminate Trocchio's employment because of his arrearage in dues Both Graf and Max Weintraub, president of the respondent corporation, testified that the respondent never received any such communication from Local B 1010 Graf testified, appar- ently in explanation of why lie discharged Trocchio, that Trocchio was a "dis-- turbing factor" The respondent introduced in evidence, in corroboration of Graf's testimony, a personnel card wlucli Graf testified he kept regarding Trocchio on which there appeared under the date of "4-20-41" the words "irre- sponsible do not rehire" Graf testified lie personally made this entry on or about that date He was asked by the undersigned what he himself' had observed in Trocchio's conduct that, was unsatisfactory . Graf related, the incident' of- April 3 detailed above He was then asked to state any other instances lie had observed personally that would cause limn to say Trocchio was an unsatisfactory employee. Graf expressed an inability to remember other specific instances, but testified he had spoken to Trocchio quite often about doing his share of work without being "fussy or squabbly" and about taking orders from the superin- tendent. Graf testified on cross-examination that Pogano would know more than he about Trocchio's conduct on the job. , "Local B 1010 did not call Katy to testify William Beedie, International Representa- tive of the International Biotherhood of Electrical Workers, and Herbert Barnett, financial secretary of Local B 1010, testified that Trocchio came to the offices of Local B 1010 the last part of April 1941 . said he had quit working for the respondent, and asked Barnett for the addiess of a certain foreman in another plant. , They further testified that Trocchio, at Barnettr's request,.wrote a•statement of his grievance against the respondent, the statement reciting-that Trocchio had quit his job. The written statement; which was placed in evi- dence, so recites, but it is undated and Trocchio testified he wrote it right after he had quit work on April 3 The recitals contained in the document and Trocchio 's testimony convince the undersigned that Trocchio wrote this statement , reciting that lie had quit his job with the respondent , soon after the incident of Apiil 3 detailed above, and the undersigned so finds Since Katy did not testify in denial of Trocchio's testimony regarding the conver- sation between Trocchio and Katy on April 20 , the undersigned has also credited Tioccliio's testimony as to that conversation , 11 Graf did not deny that this conversation took place as testified to by Trocchio J GAROD RADIO CORPORATION 685 Under the' circumstances, the undersigned views as significant the fact,,that the respondent did not call Pogano to testify as to the conversation with Trocchio on the morning of April 29, 1941, and as to the respondent's claimed "instances of misbehavior by Trocchio " Since Trocchio was placed back at work at increased pay after the incident of April 3, the undersigned is convinced that some subsequent event was the cause of Trocchio's employment termination The respondent failed to show any subsequent incident or event in lieu of the version stated by Trocchio's testimony that would constitute a reasonable ex- planation for having discharged this employee. Moreover, Trocchio's conver- sation with Katy on,April 29, the letter sent to Trocchio by Local B 1010'5 about the time of-his employment termination and the subsequent action taken by that labor' or'ganization's Executive -Board on, May 7, are consistent with Troceliio's rather than the respondent's-and Local B 1010's version as to Trocchio's employ- ment termination.` The undersigned finds that by terminating the employment of Trocchio on April 29, 1941, the respondent has discriminated in regard to his hire and tenure of employment, thereby discouraging membership in Local 430 and encour- aging membership in Local B 1010 It has been explained above that the respondent recognized and entered into the closed-shop contract of April 14, 1941, with Local B 1010 as the exclusive representative of employees in an appropriate unit at a time when that labor ,organization did pint represent a majority of the employees On April 13, 1942, the respondent agreed in-writing with Local 13 1010 upon an indefinite extension of that contract, subject to cancellation by either party on 48 hours notice. By the terms of these agreements, employees of the respondent were required to become or remain members of Local B 1010 The undersigned finds that the respondent, by imposing such requirement, encouraged membership in Laical B 1010 and discouraged membership in any other labor organization. including Local 430. The undersigned further finds that time respondent. by so discrim- inating in regard-to the hire and tenure and conditions of employment of its employees, has interfered with, rest rained.'^and -coerced 'its • employees in the ,exercise of the rights guaranteed by Section 7 of the Act B. 'l'1te alleged 2eflesai to bargain On July 25, 1941, Emil Katz, business manager of Local 430, wrote a letter to the respondent mentioning the fact stated above that the Board had certified Local 430 and asking when there could be it meeting for the purpose of negotiating a collective bargaining contract. There is a conflict in the evidence with respect to the events immediately after the sending of this letter Max W. Weintraub, president of the respondent corporation, testified that lie ieferred the letter to Morris Weintraub, the respondent's attorney. Attorney Weintraub and his stenographer testified that on July 29, 1941, Attorney Weintraub wrote a letter to Katz recognizing Katz's letter to the respondent and specifying that a repre- sentative of Local 430 could call at Weintraub's office on July 31, 1941, at 3 p. in. " Giaf testified that the speed and quality of Tiocchio's work were satisfactory. "Barnett testified that the letter to Trocchio was merely a foiin sent out by the office girl in case members became in ariearage as to dues and that lie never authorized the letter. It is!clear, however, that the letter was an official communication from Local li 1010 and the subsequent action of the Executive Board shows that Local B 1010 dewed the recital in the letter as correct "The minutes of the Executive Boaid meeting of May 7 iefer to `Trocchio (as) having quit Garod April 1941." The undersigned has considered this statement'in the minutes, but is convinced either that it advertently refers to the event of Aiii1 3, 1941, of that it it refers to the events at the close of the month, it is an ei 1 oneous statement 686 DECISIONS OF' NATIONAL 'LABOR ' RELATIONS BOARD Both attorney. Weintraub and, his Nterlographer testified that Katz called at 'Weintraub's office on that occasion, and that he and Katz at that time held a discussion. In corroboration of this testimony the respondent introduced in evi- dence a copy of the'lletter which, Weintraub and his secretary testified, was mailed -to Katz on July 29 and a sheet dated July 31, 1941, from Weintraub's 1941 memo- randum book bearing a pencil entry for 3 o'clock that date regarding a meeting with the representative of -Local 430.17 The respondent also introduced in evi- dence a sheet of pencil notations which Weintraub testified he made at that time -as, a memorandum .of - the matters discussed between him and Katz . According .to-Weintraub, Katz on this occasion asked that the'respondent agree not to dis- miss employees for failure to pay dues to Local B 1010, not to recognize Local .B 1010 as the representative of its employees, to post notices that it would comply -with these demands and also a notice that it recognized Local 430 as the em- ployees' sole bargaining agent Weintraub testified that Katz stated that all these demands made by him must be complied with as a prerequisite to entering into negotiations for a contract. Weintraub testified that he expressed a willingness on behalf of the respondent to comply with the demands except those which called for posting notices. Weintraub also testified that on August 5, 1941, he tele- phoned Katz that the respondent agreed with him that it would comply with Katz' demands except the demand for posting notices. ^ According to Weintraub he had no further dealings with Katz. Katz denied that the conference of July 31 took place, testified that he never at any time was in Attorney Weintraub's office, that he never received a reply to his letter of July 25 and recalled no telephone conversation with Weintraub on August 5. Katz testified that after receiving no reply to his letter of July 25 he telephoned Max Weintraub about the middle of August regarding what the respondent intended to do with reference to the letter. According to Katz, Max Weintraub referred him to Attorney Morris Weintraub and he on the same day telephoned Attorney Weintraub. Katz testified that in this telephone conversation he made the demands Weintraub testified were made on July 31; that' he also "specifically requested Mr. Morris Weintraub, on behalf of the Garod Radio Corpo- ration, to arrange a conference with representatives of Local 430 . .s 18 Katz testified further about this telephone conversation as follows : Mr. Morris Weintraub stated to me that he was not clear as to the legality of the question, in, view of the fact that there was a contract in existence at that time with the IBEW, he stated, and he was concerned whether or not that might,not create difficulty for his client, his entering into negotiations with our local union. He stated that he would have to discuss that further with his client, Mr. Max Weintraub and he-would advise me as to the outcome of such discussion: Katz testified that Attorney Weintraub never advised him as to the outcome of any discussions with his client." Concluding findings, regarding the alleged refusal to bargain The undersigned credits the testimony of Weintraub and his stenographer that Weintraub sent the letter of July 29, 1941, as described above. , In view of the importanceiof the issues'involvedlthe undersigned deems it unlikely that Katz'wo'uld merely have telephoned to Weintraub the demands the former admits he made on Weintraub about that time, but deems more plausible, the testimony 17 The entire entry stated, "Re Garod-Local 430-Meeting at this office." is Katz testified that he made all demands by telephone, making this demand also-at the same time as the others. . GAROD RADIO CORPORATION 687 ,of Weintraub and his stenographer that Katz called at Weintraub's office on July 31, 1941. The undersigned finds that .Katz called at Weintraub's office on that- date and made the demands as testified by Weintraub. Moreover; even if Katz about that time by telephone or otherwise asked for an immediate bargain- ing conference, as he testified, and Weintraub mentioned the closed-shop contract with Local B 1010 as an obstacle to entering into negotiations, Katz''own testi- mony also indicates that he had imposed as a prerequisite to negotiations the posting by the respondent of the notices described above. Katz made no con- tention in. his testimony and there is no evidence to indicate that he at any time withdrew from this position. The undersigned finds that Katz imposed 'and at no time withdrew from his position by which he demanded that the notices be posted. It is, therefore, unnecessary to consider whether Weintraub said he was "not clear as to the legality of the question", stating that he would have'to dis- cuss the matter further with his client and would advise Katz of the result. Even if Weintraub made these statements and did not communicate with Katz thereafter, Katz, by imposing and failing to withdraw the condition that notices be posted, thereby obviated any duty on the part of the respondent to com- municate further with him or to fix a time for opening negotiations. _ The undersigned finds that the respondent has not refused to bargain collec- tively within the meaning of the Act and will recommend dismissal,of those .allegations of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The undersigned finds that the activities of the respondent set forth in 'Section III above, occurring in connection with the operations described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and com- merce 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 unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take affirma- tive action to effectuate the purposes of the Act. Having found that the respondent has discriminated as to the hire and tenure of employment of John Trocchio, the undersigned will recommend that the respond- ent cease and desist from such discrimination Trocchio does not desire reinstate- ment, and presently has other employment. The undersigned will therefore rec- ommend that the respondent make him whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him'by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of the discrimination against him to the date of the beginning of his present employment, less his net earnings," during such period. The undersigned has found that the respondent encouraged and assisted Local B 1010 by 'its unfair labor practices. The recognition by the respondent of this labor organization, not representing a majority of the employees in the appro- is By `,'net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local £599; 8 N. L R. B. 440. Monies -received for work performed upon Federal , State, county, municipal , or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 688 DECISION'S OF NATIONAL LABOR RELATIONS BOARD ,priate unit, constitutes an obstacle to the'exercise by the employees of the -rights ,guaranteed in the Act. The undersigned will, therefore, recommend that the respondent cease and desist from recognizing or in any manner dealing with Local .B 1010 as the exclusive collective bargaining representative of the employees unless and until Local B 1010 is certified as-such exclusive representative Since the contract of April 14, 1941, and the extension thereof on April 13, 1942, were in themselves acts which constituted unfair labor practices the undersigned will recommend that the respondent cease giving effect to these or any other ,agreements which it may have entered into with Local B 1010 or to,any_ modifica- tion- or extension thereof. Nothing in these recommendations, however, shall be taken to require the respondent to vary those wage, hour , and other substantive features of its relations with the employees themselves , which the respondent may, have established in performance of these agreements , as extended , renewed, modified, supplemented, or superseded. CONCLUSIONS OF LAW 1. Local 430, United Electrical, Radio and Machine Workers of America, affili- ated with the Congress of Industrial Organizations, and Local B 1010, Interna- tional Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, are labor organizations within the meaning,of Section 2 (5) of the Act 2. By discriminating in regard to they,liire and,itenure of employment of"John Trocchio thereby encouraging membership in Local B 1010 and discouraging mem- bership in Local 430 ,the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (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 (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 committed any unfair labor practices within the meaning of Section 8 (5) of the Act RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law the under- signed recommends that the respondent, its officers, agents, successors, and assigns, -shall: 1 Cease and desist from : (a) Encouraging membership in Local B 1010, or any other labor organiza- tion. or discouraging membership in Local 430 or any labor organization of its -Employees by discriminating in'regard to hire or tenure of employment or any time or condition of employment; (b) Recognizing or in any manner dealing with Local B 1010 as the exclusive collective bargaining representative of any of its employees, unless and until such labor organization is certified as such exclusive representative by the Board: (c)- Giving effect to the contract of April 14, 1941, the extension of April 13, 1942, or any other extension. modification, or renewal thereof, or any other contract it may have entered into with Local,B 1010; (d) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their right-to•self-organization,-to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective GAROD RADIO CORPORATION 689 l bargaining or other- mutual aid or protection , as-guaranteed in ,Section 7 of the Act. 2 Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Withdraw all recognition from Local B.1010 as the exclusive - collective, bargaining representative of any of its employees unless and until said labor organization is certified as such representative by the Board : (b) Make whole John Trocchio for any loss of earnings he may have suffered by reason of- the 'respondent's discrimination against him by payment to him of a', sum =of'money equal to the --amount he would normally have earned as wages during -the period from the date of such discrimination to the date of the begin- ning of his present employment less his net earnings," during said period ; (c) Post immediately in conspicuous places at its plant in Brooklyn , New York, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees : (1) that it will not engage in the conduct from which it is recommended that it cease and desist in paragraphs 1 (a), (b), - (c), and ( d) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a),and ( b) of these recommendations; and (3 ) that the respondent's employees are free to remain or become members, of Local 430, United Electrical Radio and Machine Workers of America, affiliated with the ,Congress of : Industrial ,Organizations, and that the .respondent will not discriminate against any employee because -of his membership in or his activities on behalf of that organization ; (e) Notify the Regional Director for the Second Region in writing within twenty (20) days from the receipt of this Intermediate Report -what steps -the respondent has taken to comply therewith. And it is further recommended that the complaint , insofar as it alleges that the respondent, by refusing to bargain collectively with Local 430, has engaged in and is 'engaging in unfair labor practices within the meaning of Section 8 ( 1) and ( 5) of the Act, be dismissed. As provided in, Section 33 of„Article II of the -Rules and „Regulations,of ,the National 'Labor Relations Board, Series 2-as amended , any party may within thirty days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board , Shoreham Building , Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to,any other part of the record or proceedings ( including rulings upon all' motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within twenty (20) days after the - date of the order transferring the case to the Board. Dated September 25, 1942 00 See footnote 19, supra. ' WILLIAM` B. BARTON, Trial'' Examiner. J 513024-43-vol 47--44