G. & S. Electric Co.

G. &. S. ELECTRIC COMPANY 961 Sidney Seltzer and Ralph Seltzer d/b/a G. & S. Electric Com- pany and Industrial Workers of Allied Trades Local' 199, affiliated with Confederated Union of America.' Case No. 2-CA-7432. March 1, 1961, DECISION AND ORDER On November 8, 1960, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the,Intermediate Report attached hereto. Thereafter, the General Counsel and the Respondent each filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions. We agree with the Trial Examiner that the Respondent violated Section 8(a) (1) of the Act by: (a) Threatening picketing employee William Weller that it would "put a padlock on the place" before it would sign a collective-bargaining agreement with Local 199; and (b) warning employee Clarence John that strikers would lose their jobs, vacations, and bonuses if they did not return to work. We also agree with the Trial Examiner that the Respondent violated Section 8 (a) (5) of the- Act by refusing to bargain with Local 199, which rep- resented the majority of the employees in the appropriate unit. We further find, in agreement with the Trial Examiner, that the strike of the Respondent's employees which commenced on June 10, 1960, was caused and prolonged by the foregoing unfair labor practices. How- ever, the General Counsel contends in his exceptions that the Trial Examiner failed to include in his report provisions for the reinstate- ment of the strikers, upon application, and for making them whole for losses of pay. We find merit in this contention and shall therefore amend the remedy accordingly? 1 Herein called Local 199. 2 The Cross Company, 127 NLRB 691. 130 NLRB No. 73. 5972-54-61-vol. 130-62 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondent's striking employees are unfair labor practice strikers, and as the record does not establish that the strikers have abandoned the strike or are unavailable for reemploy- ment, we shall order that the Respondent, upon application, offer the strikers reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privi- leges, dismissing, if necessary, any employees hired after June 10, 1960, the day the strike started, to replace the striking employees. We shall also order that the Respondent make whole those strikers who are entitled to reinstatement for any loss of pay they may suffer by reason of the Respondent's refusal, if any, to reinstate them, upon request, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period beginning 5 days after the date of which. he applies for reinstatement and terminating on the date of the Respondent's offer of reinstate- ment, such loss to be computed in the manner set forth in F. W. Woolworth, Company, 90 NLRB 289.3 ORDERS 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 Respondent, Sidney Seltzer and Ralph Seltzer d/b/a G. & S. Electric Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Threatening its employees with reprisals if they become or remain members of Industrial Workers of Allied Trades Local 199, affiliated with Confederated Union of America. (b) Refusing to bargain collectively with Industrial Workers of Allied Trades Local 199, affiliated with Confederated Union of America, in the appropriate bargaining unit described in the Inter- mediate Report. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other' mutual aid or protection as guaranteed in Section 7 of the Act, 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 condi- tion of employment as authorized in Section 8(a) (3) of the Act, as 3 Tom Thumb Stores, Inc., 123 NLRB 833, 835. G. & S. ELECTRIC COMPANY 963 modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Industrial Workers of Allied Trades Local 199, affiliated with Confederated Union of America, as the exclusive representative of all employees in the ap- propriate unit and embody any understanding reached in a signed agreement. (b) Upon application, offer to the Respondent's striking employees reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due, if any, and the rights of employment under the terms of this Order. (d) Post at its shop in Brooklyn, New York, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an authorized representative of the Re- spondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive 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. (e) Notify the Regional Director for the Second Region, in. writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. ' 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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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 threaten our employees with reprisals if they become or remain members of Industrial Workers of Allied 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trades Local 199, affiliated with Confederated Union of America, or if they give any assistance or support to the said Union. WE WILL, upon request, bargain collectively. with Industrial Workers of Allied Trades Local 199, affiliated with Confederated Union of America, as the exclusive bargaining representative of all employees in the following bargaining unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, . if an understanding is reached,, embody such an understanding in a signed agreement. The bar- gaining unit is : All electricians, electricians helpers, and apprentices em- ployed at our shop in Brooklyn, New York, excluding office clericals, professional employees, and all supervisors as de- fined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organiaztions, to join or assist labor organizations, to bargain collectively through representatives of their own choosing, - and to engage in union or other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. WE WILL offer to all strikers, upon their application, reinstate- ment to their former or substantially equivalent positions without. prejudice to their seniority or other rights and privileges, dis- missing, if necessary, any employees hired after June 10, 1960, to replace these employees, and we will make each employee whole for any loss of pay suffered by him as a result of our failure to, reinstate him within 5 days after his application. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization, except to the extent that this right may be affected by an agreement in conform- ity with Section 8(a) (3) of the National Labor Relations Act, as. modified by the Labor-Management Reporting and Disclosure Act of 1959. SIDNEY SELTZER AND RALPH SELTZER D/B/A G. & S. ELECTRIC COMPANY, 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. G. & S. ELECTRIC COMPANY INTERMEDIATE REPORT AND RECOMMENDED ORDER 965 STATEMENT OF THE CASE This proceeding brought under Section 10(b) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act, was heard at New York, New York, on September 12, 1960, pursuant to due notice with all parties -represented. The complaint issued by the General Counsel dated August 8, 1960, .against Sidney Seltzer and Ralph Seltzer d/b/a G. & S. Electric Company, herein .called Respondent, alleged that Respondent had engaged in unfair labor practices .affecting commerce within the meaning of Section 8(a) (1) and (5) and Section 2(6) and (7) of the Act. More specifically the complaint alleged, inter alia, that Re- spondent through its partner Sidney Seltzer interrogated its employees concerning their membership in and activities on behalf of the Union, warned its employees to refrain from becoming or remaining members of the Union, threatened its employees with discharge, loss of vacations, loss of bonus, and other reprisals if they became or remained members of the Union, and promised its employees economic benefits if they refrained from becoming or remaining members of the Union; and on or about June 2, 1960, and at all times thereafter Respondent refused and continues to refuse to bargain collectively with the Union as the exclusive bargaining representa- tive of all the employees in an appropriate unit. In its answer the Respondent gen- erally denied the unfair labor practice allegations of the complaint and affirmatively averred that the Union was not qualified or designated by closed ballot. Upon the entire record, and from my observation of all witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Sidney Seltzer and Ralph Seltzer are copartners doing business under the trade name and style of G. & S. Electric Company. Their principal office and place of business is in the Borough of Brooklyn, city and State of New York, where at all• times material herein they have been engaged in furnishing and installing electrical wiring and providing and performing electrical wiring services and related servces. During the past year the Respondent in the course and conduct of its business opera- tions performed services valued at in excess of $100,000 of which services valued at in excess of $11,000, to wit, direct sales to Consolidated Felt Company, Inc., Kearny, New Jersey, in the amount of approximately $64,000, and Zenith Quilting Co., Kearny, New Jersey, in the amount of approximately $4,750, were performed in States other than the State of New York wherein Respondent is located. In addition services valued at in excess of $48,000 were furnished to and directly utilized in the products, services, and processes of various enterprises each of which enterprise annually produced goods valued at in excess of $50,000, and each of which enterprise shipped out of the State of New York, wherein each such enterprise is located, goods valued in excess of $50,000. 'I find that Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. Siemons Mailing Service, 122 NLRB 81. II. THE LABOR ORGANIZATION INVOLVED Industrial Workers of Allied Trades Local 199, affiliated with Confederated Union of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES i The complaint alleges, the answer does not deny, and I find that: All electricians, electrician helpers, and apprentices, employed by Respondent, excluding office clericals, professional employees, and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective. bargaining within the meaning of Section 9(b) of the Act. On June 1, 1960, 12 of Respondent's 14 employees in an attempt to organize at- tended a meeting at the union hall. The meeting was conducted by Union President Michael Gordon who explained to the employees present what the Union stood for, what its purposes were, and what the Union intended to do for them. Application 1 The findings herein are based on uncontradicted evidence or admissions by the Respond- ent or were established by stipulation. 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for membership cards were distributed among the employees and nine cards were signed at the meeting. Two employees signed union membership cards subsequent to the meeting. On June 2, 1960, about 10:30 a.m. Joseph Bellantoni, secretary-treasurer of the Union, called on Sidney Seltzer at the Respondent's place of business. Bellantoni in- troduced himself, told Seltzer that he represented his men, and requested that they sit down and discuss a collective-bargaining contract. Seltzer advised Bellantoni that Respondent was a member of an employer association known as the Five Bor- ough Association, that.it was in the midst of moving its shop, and that he would like to discuss the Union's request with his partner. Upon Seltzer's request, Bellantoni left. a copy of the Union's electrical division standard contract with Seltzer, and the latter said he would contact the Union the following Thursday, June 9. About 4 p.m. on June 9 Gordon spoke to Sidney Seltzer on the telephone and inquired why he had not called the Union as promised. Seltzer said that he just returned to the shop. A discussion then ensued about the proposed contract which the Union had left with Respondent the previous week. Gordon inquired if Seltzer was ready to come to the office to discuss the contract. Seltzer told Gordon he was not ready because Local 3, IBEW, would not allow members of the Charging Union to perform new electrical work in the construction industry and in any event Seltzer stated that Respondent needed more time to investigate Local 199. .In response to telegrams sent by the Union, 10 Respondent employees attended a meeting in the union office on the morning of June 10. Gordon related the con- versation he had with Sidney Seltzer and advised the men that in his opinion the only way to handle the situation was to strike. A vote was then taken and the em- ployees decided to strike. Twelve of Respondent employees engaged in a strike commencing June 10, and a picket line was set up at the premises of the Respondent. Clarence John, a striking employee, testified that on Sunday, June 12, at 3 p.m., Sidney Seltzer called him on the telephone at his home and said he did not have time to talk to the employees on Friday because he was busy. Seltzer told John he thought the employees were getting a "rotten deal." When John asked what Seltzer meant, he replied that the Charging Union was not affiliated with the AFL- CIO, and that it did not have any financial background. Seltzer mentioned that within the next 3 to 6 months he was considering "going with Local 3" and this would enable Respondent to engage in electrical work on new construction jobs. Seltzer also told John that if the employees would reconsider, "you all might be in with me." The following Sunday, June 19, Seltzer again spoke with John. He said he had been instructed by his attorney to give the striking employees written notice that if they did not appear for work at 8 a.m. the following Monday they would lose their jobs and Respondent would employ new men. Seltzer told John he thought it best to speak to the striking employees rather than give them a written notice. Seltzer also told John he would lose his vacation and bonus.2 Milton Paper, a striking employee, who had worked for the Respondent on and off for 20 years, also received a telephone call from Sidney Seltzer on June 12. Seltzer told him the Charging Union was not an authorized union, that it did not have jurisdiction as far as new work was concerned, and that if the striking em- ployees were-patient and waited between 6 and 8 months he (Sidney Seltzer) would "take us into Local 3." Paper inquired how that could be done. Seltzer said he was acquainted with one Dobbins, an official of Local 3, through whom arrange- ments would be made for Respondent to "go into Local 3." Paper told Seltzer he also was a member of Local 3, IBEW, and if Seltzer really was interested in get- ting into Local 3, Paper would make every effort in this direction. Seltzer replied that he was not quite ready yet to go into Local 3 or any other union, that it would take a little time. Seltzer also said that if Gordon would give him a written guar- antee to the effect that Respondent would not have any interference from any other union so far as new construction work was concerned, the Respondent would be more than willing to go along with the Charging Union. William Funk, a striking employee who had worked for the Respondent since March 1959, was spoken to by Sidney Seltzer in front of the Respondent's place of business on June 13. Seltzer asked Funk if he had previously explained his plans about going with Local 3. Funk replied, "no." Seltzer went on to explain that he intended "going with Local 3" in about 6 or 8 months and that any employee who was with Respondent at that time would go into Local 3 with him. He told 2 John testified that when he began to work for Respondent in June 1959, Seltzer told him he would earn a week's vacation after 1 year, and would be paid a bonus of 1 percent of his earnings. John stated that at Christmas time 1959 he was given a 2-percent bonus. G. & S. ELECTRIC COMPANY 967 Funk the reason he wanted to go with Local 3 was because he would be permitted to do electrical work on new construction and that his father had some contacts to assist him. Seltzer also explained that he wanted a written guarantee from the Charging Union that Respondent would not be bothered by Local 3 on new con- struction. He told Funk Respondent would not mind signing a contract with- the Charging Union if such guarantee was forthcoming. William Weller, a striking employee who was picketing in front of Respondent's shop on June 10, was accosted by Sidney Seltzer while Respondent was in the process of moving from its old shop to the new shop and asked, "Why don't you fellows give us a hand instead of walking up and down. Weller replied that he was on strike. A short time later, in Wellers presence, Seltzer, addressing a police officer who was observing the pickets, said the Charging Union was not an author- ized union and was one of Hoffa's unions. Seltzer then told Weller that before he would sign a collective-bargaining contract with Local 199, he would put a padlock on his shop. On or about June 18, Gordon again spoke with Sidney Seltzer on the telephone and inquired if he.would reconsider the question of negotiation of a contract with the Union. Seltzer stated he was not ready and that he would not be able to do his work under a contract with the Charging Union. On or about June 20, Bellantoni visited the picket line in front of the Respondent's new shop. He also talked with Sidney Seltzer in the latter's office regarding the strike and asked if he would consider signing a contract with the Charging Union. Seltzer told Bellantoni that if the Charging Union could give Respondent a written guarantee that Local 3 would not interfere with its work, he would be willing to sign a contract right then. Bellantoni -stated. he was not in any position to give anybody a written guarantee. Seltzer mentioned that Dobbins of Local 3, IBEW, would give him a written contract which would include a guarantee that nobody would bother Respondent if he signed such a contract. Bellantoni told Seltzer he could do whatever he wanted to do and left. Upon the foregoing and the entire record, I conclude and find that Respondent violated Section 8(a)(1) of the Act by the following conduct: (a) Seltzer's threats of reprisal to employee Clarence John that the employees would lose their jobs, vacations, and bonuses if they did not report for work on the morning of June 20; and (b) Seltzer's 'remark to employee Weller that before he would sign a collective- bargaining agreement with the Union he would put a padlock on the shop. I fur- ther conclude and find that the Union represented the majority of the employees in the heretofore described appropriate unit, and that on June 2, 9, and 20, 1960, Respondent refused to bargain with the Union upon request thus violating its statu- tory obligation imposed by Section 8(a) (5) of the Act. The fact that Respondent was motivated by economic considerations and indicated that the future welfare of its employees was in jeopardy as members of Local 199 does not excuse conduct which had the necessary effect of interfering with its employees' statutory rights. Finally I conclude and find that the strike of Respondent's employees which com- menced on June 10, 1960, was caused and prolonged by the unfair labor practices of Respondent found above. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations set forth 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 Respondent has engaged in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that on June 2, 1960, and at all times thereafter, the Union was the authorized and exclusive representative of the Respondent's employees in an appropriate unit for the purposes of collective bargaining and that on and after that date the Respondent refused to bargain with said representative in violation of the Act. Accordingly, I shall recommend that the Respondent be ordered to bargain upon request with the Union as the authorized and exclusive representative of its employees in the appropriate unit described herein and in the event an understanding is reached embody such understanding in a signed agreement. :968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . In view of the nature of the unfair labor practices found to have been com- mitted, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Sidney Seltzer . and Ralph Seltzer d/b/a G. & S. Electric Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Industrial . Workers of Allied Trades Local 199, affiliated with Confederated Union of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All electricians, electricians helpers, and apprentices employed by Respondent, excluding office clericals, professional employees, and all supervisors as defined in Section 2(11) of the Act, constitute and have at all times material to this pro- ceeding constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. On June 1 , 1960, and at all times since that date , the above-named labor organi- zation has been and now is the exclusive bargaining representative of all employees in the above-described unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment by virtue of Section 9(a) of the Act. 5. By refusing on June 2, 1960, and at all times thereafter to bargain collectively with the aforesaid labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By threatening its employees with reprisals thereby interfering with, restrain- ing, and coercing them in the exercise of their rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Amalgamated Lithographers of America and Local 78, Amal- gamated Lithographers of America and Employing Lithog- raphers of Greater Miami, Florida and Miami Post Company. Cases Nos., 12-CC-87, 192-CB-376, 12-CC-89, and 12-CB-376-2. March 1, 1961 DECISION AND ORDER Upon unfair labor practice charges filed on March 10, 1960, by Em- ploying Lithographers of Greater Miami, Florida, herein called the- Employing-Lithographers, and on April 6, 1960, by Miami Post Com- pany, herein called Miami Post, against Amalgamated Lithographers of America and Local 78, Amalgamated Lithographers of America, herein variously called the Respondents, Local 78, or the International, the General Counsel of the National Labor Relations Board, by the Regional Director for the Twelfth Region, issued a complaint and amended complaints alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within 130 NLRB No. 107.