Sherry & Gordon Co., Inc.

SHERRY & GORDON COMPANY, INC. 113 Having found that the Respondent did not engage in unfair labor practices by reason of its refusal to bargain with the Union and by the remarks made by Zapruder to the cutters, I find that the strikewhich began onJanuary 14, 1953, was not an unfair labor practice strike. The testimony shows that the three cutters who went on strike have been replaced. Accord- ingly, I find that the Respondent has not committed any unfair labor practice by failing to reinstate the strikers on or after May 29, 1953, when the Union made such request on their behalf. CONCLUSIONS OF LAW 1. Chalet, Inc., is, and at all times relevant herein was, engaged in commerce within the the meaning of Section 2 (6) and (7) of the Act 2. International Ladies' Garment Workers' Union, AFL, Cutters Local No. 387, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in any unfair labor practices within the meaning of the Act. 4 The strike, begun on or about January 14, 1953, by employees of Respondent at its Dallas plant was not caused by unfair labor practices of the Respondent. [Recommendations omitted from publication ] SHERRY & GORDON COMPANY, INC. and WILLIAM F. DEALEY LOCAL 282, BUILDING MATERIAL DRIVERS & CHAUF- FEURS, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER- ICA, AFL and WILLIAM F. DEALEY. Cases Nos. 2-CA- 2506 and 2-CB-798. November 20, 1953 DECISION AND ORDER On June 30, 1953, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in certain unfair labor practices in violation of the Act and recommending that the Board dismiss the complaint agaist them, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, exceptions and a brief were filed by the General Counsel, and a reply brief was filed by the Respondent Union. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, recommendations of the Trial Examiner. We agree with the Trial Examiner that the complaint in this case must be dismissed because of the improper proce- dure involved in its issuance. Here charges were filed in May 1952. Shortly thereafter the charging party requested that they be withdrawn. At that time the Board's field examiner informed the Respondent Union's counsel that the Regional Director had approved the withdrawal of charges, which, had it been so, would have closed the case. In fact, the Regional 107 NLRB No. 50 1 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director's consent to the withdrawal was never signified in writing. Nevertheless, acting upon the field examiner's assur- ance, the Respondent Union paid to the charging party a sum of money to compensate him for his lost wages and granted him union membership, in consideration of the withdrawal action . On March 18, 1953, this complaint issued. At the hearing the General Counsel argued that the com- plaint was properly issued because the Regional Director had not signed the withdrawal-of-charges form. In view of the foregoing, we agree with the Trial Examiner thatthe Respond- ent Union was justified in relying upon the word of a responsible agent of the Board that the Regional Director had approved the withdrawal of the charges. In addition to the May incident related in the charges, the complaint alleges that the Respondents further violated the Act in September 1952. In his exceptions to the Intermediate Report, the General Counsel argues for the first time that a settlement was effected and that the alleged September viola- tion constitutes a breach of that agreement. We do not believe that the Board's doctrine, that if a settlement agreement is breached a complaint may issue,' should be invoked in this case. For here not all of the interested parties were included, and, moreover, unlike a conventional, written settlement agreement , this arrangement did not require the Regional Director to police it's performance. Accordingly, we will dismiss the complaint. [The Board dismissed the complaint.] 1Cf. Wallace Corp. v. N. L. R. B., 50 NLRB 138, 141 F. 2d 87 (C. A. 4) 323 U. S. 248, 254, 255. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon separate charges duly filed by William F. Dealey on May 19, 1952, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York, New York), issued an order onMarch 18, 1953, consolidating the above-captioned cases, and simultaneously issued his complaint, alleging that Sherry & Gordon, Inc., had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, and that the above-named Respondent Union had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and(2)oftheAct. Copies of the complaint, the order of consolidation, the charges, and notice of hearing were duly served upon the Respondents. With respect to the unfair labor practices, the complaint alleged, in substance, that the Respondent Company, since May 2, 1952, has discriminated in regard to the hire, tenure, and conditions of employment of William F. Dealey, thereby encouraging membership in the Re- spondent Union, and discouraging membership inLoca1455, Bridge. Structural and Ornamental Iron Workers, AFL, by discharging Dealey on May 2 and again discharging him on September 2, 1952, because the continued employment of Dealey was not approved of by the Respondent Union. The complaint also alleges that the Respondent Union caused the Respondent Company to discharge Dealey on May 2, 1952, and again on September 2, 1952, and that the conduct of the Company and the Union restrained and coerced employees in the exercise of rights guaran- SHERRY & GORDON COMPANY, INC. 115 teed by Section 7 of the Act in violation of Section 8 (a) (1) and 8 (b) (1) (A) of the Act, respectively. Pursuant to notice, a hearing was held in New York, New York, on June 1 and 2 , 1953, be- fore the undersigned Trial Examiner . The Company , Union, and General Counsel were repre- sented by counsel. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence pertinent to the issues . The Company, the Union , and General Counsel argued orally upon the record , upon conclusion of presenting evidence. A brief has been received from the Union. Upon the entire record in the case and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT 1. Jurisdiction In its answer , during the hearing, and in its brief, the Union (the Company joining therein) urges that the complaint in both cases should be dismissed because the charges upon which it was issued were withdrawn, and the withdrawal approved by responsible agents of the Board before issuance of the complaint. The claim raises an issue of sufficient importance , it appears to the Trial Examiner, to warrant examination of its merits before considering matters set out in the complaint. In summary , the facts are as follows , and are based upon documents in the record and the undisputed testimony of counsel for the Union. On May 19, 1952, William F. Dealey filed with the Regional Office two charges , one against the Company , the other against the Union, alleging in substance that the Union had caused the Company to discharge him, and that the Company had discharged him, in violation of the Act. After filing of these charges, Field Examiner Julius Altman telephoned to Henry Weiss, counsel for the Union, seeking a con- ference. Weiss went to the Regional Office. There Altman told Weiss that he had consulted with Dealey and believed a settlement possible. Weiss replied that he had advised his client that it had not violated the Act and that he could see no basis for settlement. Altman later communicated with Weiss and suggested twoor three alternative plans for settlement. Finally, Weiss agreed to one of the alternatives --payment of a sum of money and acceptance of Dealey's membership in the Union. Weiss inquired from Altman as to whether there would be any problem in obtaining Regional Director Douds' approval of Dealey 's withdrawal of the charges, such withdrawal being an element of the settlement. Altman said he anticipated no problem. Weiss told Altman thatbefore Dealey was accepted into the Union he must be assured that the withdrawal of the charge had been approved. Thereafter Altman, by telephone, in- formed Weiss that Dealey had signed withdrawal of the charges, and further told him' that Douds had approved the withdrawal. Payment was made to Dealey in accordance with the settle- ment agreement, and he was admitted tounion membership . In September, some months later, Altman called Weiss, and told him that Dealey had been in the office and said he was again out of a job at Sherry & Gordon's. Thereafter Altman informed Weiss that issuance of a com- plaint was contemplated , based upon the charge filed in May . When Weiss protested that that charge had been withdrawn , Altman said that Dealey 's withdrawal-request blank had actually not been signed by Douds . When Weiss further protested that he had acted in good faith in arranging the settlement upon Altman 's assurance that the withdrawal had been approved, Altman admitted that he had voiced such assurance but said that Douds ' actual signing of the approval blanks had been held up "to see what happened at Sherry & Gordon." Neither Douds nor Altman appeared as a witness .z Undated3 but signed withdrawal-of- charge requests , both as to Case No . 2-CB-798 and Case No. 2-CA-2506 , are in evidence. General Counsel offered no evidence to refute Weiss' testimony. In fact , General Counsel voiced no position on the matter , except to object to Weiss' testimony and to claim , in effect, that according to the Board 's Rules and Regulations, Regional Director Douds alone was au- thorized to state to Weiss that withdrawal of the charges was approved. The Union urges that the complaint in these cases was improperly issued. iTold him "definitely and unequivocally," according to Weiss. 2 The record shows that Altman was present in the hearing room on at least one occasion. 3Dealey said that he signed them on June 27, 1952. 1 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Conclusions The Trial Examiner finds merit in the Union's position. Whether Douds actually approved or "consented" to Dealey's withdrawal requests or not4 and whether charges actually remained technically in effect or not 5 , are not the only points for consideration. Having officially been informed by a responsible agent of the Board that Douds had approved the withdrawal, and having made settlement in accordance with that information, the Union was justified in relying upon it as a fact. Any other conclusion, it appears to the Trial Examiner, must diminish public confidence in the administration of the Act. It is therefore concluded that the complaint in these consolidated cases was improperly issued, and that consideration of the merits of its allegations would not effectuate the purposes of the Act. [Recommendations omitted from publication.] 4The Board's Rules and Regulations are silent as to any requirement of "signing," by the Regional Director, of the request-for-withdrawal form. Sec. 102.9 says, on the point: "Any. . . charge may be withdrawn . . . only with consent of the regional director ...." In this case the Trial Examiner considers that Altman used the word "approval" and Weiss reasonably so accepted it, as synonymous with "consent." 5 The Trial Examiner is convinced, from the probabilities inherent in the situation as described by Weiss, that Douds consented to the withdrawal of the charges, that Altman correctly informed Weiss of such consent, that the charges were effectively withdrawn within the meaning of the Board's Rules and Regulations, but that the Regional Director mistakenly believed that later events warranted reinstatement of the May 19 charges. (See Square D Company, 105 NLRB 253.) THE BUDD COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, & AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA, UAW-CIO, Petitioner. Case No. 4-RC-2006. November 20, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Bernard Samoff, hearing officer. The hearing officer's rulings made at the hear- Ing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: On September 28, 1951, the Intervenor, the Budd Field Plant Employees Union, herein called the Independent, was certified as the collective-bargaining representative of the Employer's production and maintenance employee s.1 Thereafter, on May 29, 1The Budd Company, 91 NLRB No. 105 (not reported in printed volumes of Board's decisions). 107 NLRB No. 48.