M. Eskin & Son

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] M. Eskin & Son and William R. Gerics Confectionery and Tobacco Drivers and Warehousemen 's Union, Local 805, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and William R. Gerics. Cases Nos. 22-C.11-555 and N2-CB-.46. ^Ianuary 30, 1962 DECISION AND ORDER On January 12, 1961, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the Inter- mediate Report attached hereto. The Trial Examiner found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondents and the Gen- eral Counsel filed exceptions to the Intermediate Report and support- ing briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following exceptions, ad- ditions, and modifications. As set forth in the Intermediate Report, the Respondent Employer and the Respondent Union were parties to a contract containing a no- strike clause when 21 of the Employer's 25 employees, on December 2, 1959, walked out in violation of this contract. On the following day, the Respondent Employer discharged the strikers. In the course of State court proceedings on the Respondent Employer's request for an injunction, settlement terms, including reinstatement of all strikers, were agreed upon but no settlement agreement was executed. Thereafter, the Employer refused to reinstate 9 strikers, referred to as the "out" group, but offered to reinstate the other 12, referred to as the "in" group, on condition that they obtain clearance from the Union. The General Counsel excepts, inter alia, to the Trial Exam- 135 NLRB No. 61. M. ESKIN & SON 667 iner's failure to find that the Respondent Employer condoned the unprotected activity of the "out" group and thereafter discrimina- torily denied them reinstatement. Both Respondents except, inter alia, to the Trial Examiner's findings of violations of the Act with respect to their clearance arrangement and its implementation. A. Condonation The Trial Examiner found that the "principal evidentiary support" for the contention that the Respondent Employer condoned the un- protected activity of the "out" group were (1) "the statement of Eskin's attorney at the December 11 court proceeding respecting the purported settlement of that action," and (2) "Manager Jacobs' con- sequent conversation with strikers that same day concerning ar- rangements for returning to work." The Trial Examiner concluded that condonation had not been established, noting that (1) the "out" group' 'had not actually returned to work ; (2) there ' was no "final meeting of minds on the subject of condonation"; and (3) there was no showing of "detrimental reliance." We do not agree with this conclusion nor with the standards on which it is based. Condonation indicates an employer's willingness to "wipe the slate clean" I and to continue the employer-employee relationship notwith- standing the fact that events occurred which would have justified its termination, and notwithstanding the fact that it was at one point terminated because of such events.2 Condonation is a question of fact,3 and a determination of whether an employer has forgiven un- protected activity of its employees requires an evaluation of all the relevant conduct. In the present case, such conduct includes the fol- lowing incidents, some of which are not adverted to in the Inter- mediate Report : 1. Following a prehearing conference with the strikers' attorney in the judge's chambers, in connection with the injunction hearing of December 11, 1959, the Respondent Employer's attorney, Villanueva, stated in court : "A settlement has been agreed upon by counsel and the parties who are all in court here today." Ile went on to state "the terms of this settlement," which included the return of all 21 strikers to work, cessation of all striking and picketing, withdrawal of unfair labor practice charges, payment of initiation fees by the two men whose refusal to join the Union precipitated the strike, and repay- ment of shortages "as previously to avoid grave hardship on the em- ployees by having said moneys taken out at one time." Immediately 1 Thayer, Inc. of Virginia, 125 NLRB 222, 223. 2 E.A. Laboratories, Inc., 86 NLRB 711, 713, modified on other grounds 188 F. 2d 885 (CA 2). 2 Bechtel Corporation, 127 NLRB 891. (668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .thereafter, Plant Manager Jacobs solicited the strikers outside the courtroom to return to work. 2. On December 12, Villanueva refused to proceed with the settle- ment agreement, but did not indicate that the strikers' unprotected activity was the reason. 3. On December 15 and 16, Villanueva offered to reinstate 15 of the strikers, and gave as the reason for the refusal to reinstate the other 6 not their unprotected activity but that they had excessive shortages.4 4. On December 16, subsequent to the dismissal of the State court action at the Respondent Employer's request, Jacobs asked all the strikers to call him with reference to their return to work ; he there- after denied reinstatement to the "out" group for the asserted reason that their jobs were filled. 5. In his conversations with the "in" group, Jacobs stated that .. he made mistakes and the inen made mistakes, but all was for- given...." 5 6. The Respondent Employer failed, at any time during the events here in question or at any point in this proceeding, to advert to the strikers' unprotected activity as a reason for denying them reinstatement. It is clear, from the entire record, particularly the conduct outlined' above, that there was no causal relationship between the "out" group's unprotected activity and the Respondent Employer's failure to rein- state them. We find, instead, that such conduct signified that the un- protected activity of the "out" group employees was not an obstacle to their continued employment and indicated condonation thereof ; that the Respondent Employer did condone the employees involved prior to their unconditional application for reinstatement on the afternoon of December 16, 1959, and, accordingly, that the status of the "out" group became that of economic strikers entitled to reinstatement upon application unless they had been permanently replaced prior to their application.6 The burden of establishing such permanent replacement rests upon the employer.' While the Respondent Employer presented extensive testimony with respect to its employee complement during the period from December 3 through 16, 1959, 'it failed to establish that any of 4In view of the Respondent Employer 's explicit acts on December 11, we find that it did not except the six strikers , who allegedly had excessive shortages , from its general condonation of all the strikers Nor does the Respondent Employer advert to this matter in its brief to the Board. 5 Although condonation of some unprotected strikers does not necessarily indicate con- donation of others in the same category ( Thayer, Inc of Virginia, 125 NLRB 222, 223), language used by an employer to one group may indicate condonation of another. In this case, Jacob's conversations with the "in" group indicated his forgiveness in general of the unprotected strike. 9 Fafnir Bearing Co , 73 NLRB 1008, 1014. 1 New Orleans RooBevelt Corporation , 132 NLRB 248. M. ESKIN & SON 669 the "out" group had, in fact, been permanently replaced." We find, therefore, upon the entire record herein, that the Respondent Em- ployer's refusal to reinstate these employees upon their application was violative of Section 8(a) (3) and (1) of the Act.' B. Clearance, arrangement, understanding, or practice The Trial Examiner found,'and we agree, that the Respondents, Employer and Union, had an arrangement, understanding, or prac- tice to impose unlawful conditions on the "in" group's reinstatement. When the 12 men in the "in" group applied for reinstatement on December 16, Jacobs conditioned their return to work on their ob- taining union clearance, and told them to communicate with the Union that evening. Balajthy, a member of the "in" group, testified that when he said, "It is quite late in the evening and I don't think nobody will be at 805," Jacobs answered, "Yes, there would be some- body at 805, so make the phone." Thereafter, Jacobs called Roth, an officer and partial owner of the Respondent Employer, and advised him which men were in the "in" and "out" groups. Roth then called Ornstein, a union official, and gave him this information. After their meeting with Jacobs, some of the men called the Union and arranged a meeting for the following morning for both the "in" and "out" groups. On the morning of December 17, all these men ex- cept Williamson, who is discussed below, met at the union office. According to the credited testimony of Balajthy, when they said that Jacobs had conditioned their return to work on union clearance, the union officials replied that reinstatement was conditioned on their execution of certain documents, already prepared, which provided for affirmation of the Union as bargaining agent and of the existing con- tract; reauthorization of checkoff; withdrawal of the petition and charges filed by another union on their behalf ; and release of the Union from any claims whatsoever. Three of the men, Balajthy, Kupic, and Smith, refused to sign these documents and they, along with Williamson, never returned to work. The condonation of the "in" group is, of course, clear. The Re- spondent Employer maintained at the hearing and in its brief that 8 Jacobs testified that he hired about 25 "permanent" replacements during this period although not all 25 were still employed on December 16. In spite of this contention the Respondent Employer was ready to take back all 21 strikers on December 11 , and from December 15 until the second injunction proceeding on December 16, the Respondent Employer was ready to take back all except 6 who it claimed had excessive shoe tag" There were other contradictions in Jacobs ' testimony on this matter At some points in the hearing , he contended that the "out" group was denied reinstatement on December 16 because the Respondent Employer was operating at full capacity with permanent replace- ments , who were "better" than the "out" group, but, in this connection , lie mentioned only one member of the "out" group, Smalley , whose "attitude" he stated was the subject of many customer complaints . At another point in the hearing, Jacobs testified that the "out" group was denied reinstatement because the Respondent Employer was not operat- ing at full capacity , and had only 12 jobs open.' New Orleans Roosevelt Corporation, 132 NLRB 248. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these 12 individuals were offered reinstatement, and 8 of them did in fact return to work. Accordingly, as their unprotected activity, like that of the "out" group, had been condoned, their status was that of economic strikers entitled to reinstatement unless replaced prior to their application. There is no contention that any of the "in" group had been replaced. Rather, we find, as did the Trial Examiner, that the Employer and the Union, by their joint action, imposed unlawful conditions upon the "in" group's reinstatement 10 which culminated in the failure of Williamson, Kupic, Balajthy, and Smith to be rein- stated. We find further, as did the Trial Examiner, that they thereby respectively violated Section 8(a) (1), (2), (3), and (4), and Section 8(b) (1) (A) and (2 ) of theAct.il C. The Union's refusal to process grievances When those in the "out" group asked the Union to institute griev- ances on their behalf, in accord with the provisions of the Union's contract with the Respondent Employer, the Union conditioned its processing of the grievances on execution of the documents found above to contain discriminatory conditions. As the unprotected activ- ity of these individuals had been condoned by the Respondent Em- ployer, they were employees within the meaning of the Act, and the Union's imposition of discriminatory conditions upon its representa- tion of them was, therefore, as the Trial Examiner found, a violation of Section 8(b) (1) (A) of the Act.12 The Remedy As we have found that the Respondents have engaged in unfair labor practices, we shall adopt the Trial Examiner's remedy pro- visions with the following modifications. As we have found that the Respondent Employer condoned the un- protected strike activity of the nine employees listed in Appendix C,ls but thereafter unlawfully refused to reinstate them upon application, we shall order it to offer them immediate and full reinstatement to 10 Pacific American Fi8herse8, Inc., 124 NLRB 9, 22 11 When Jacobs told Williamson on the telephone that his reinstatement was conditioned on union clearance, Williamson made no further attempt to secure reinstatement The Respondents contend that Williamson is in a different category from that of Kupic. Balajthy, and Smith on the ground that he was one of the two men whose failure to comply with the union-security clause precipitated the strike We find no merit to this contention . As Williamson was discharged along with the other strikers for unprotected activity , and not for failure to comply with the union-security clause, and as his dis- charge was nullified by subsequent condonation , as was that of the other strikers, the failure to reinstate him was a violation of the Act. 13Feerle88 Toot and Engineering Co., 111 NLRB 853, 858, enfd. 231 F. 2d 298 (CA. 7). cert denied 352 U.S. 833. 18 Although Earl C. Bunting's name was apparently inadvertently omitted from the complaint, we shall include him in Appendix C as his inclusion in this group was fully litigated. M. ESKIN & SON 671 their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of pay they may have suffered by reason of the discrimination against them by paying each of them a sum of money equal to that which he would normally have earned during the period from (a) December 17, 1959, to the date of the Intermediate Report herein; 14 and (b) from the date of this Decision and Order to the date of the Respondent Employer's offer of reinstatement less the net earnings of each, to be computed on a quarterly basis in the manner established by the Board in F. TV. Woolworth Company, 90 NLRB 289. The Respondents except to the Trial Examiner's recommendations that the Employer withdraw and withhold recognition from the Union as bargaining representative of its employees until it is certi- fied by the Board as the exclusive bargaining representative, and that both Respondents cease performing, maintaining, or otherwise giving effect to the January 1959 or any other collective- bargaining agree- ment, or to any renewal, extension, modification, or supplement there- of. We find merit in these exceptions. As all the unfair labor prac- tices for which this remedy was recommended occurred during the term of the Respondents' collective-bargaining contract, the execution and maintenance of which are not under attack, we do not believe that an order requiring the parties to suspend their bargaining relation- ship pending an election is necessary to effectuate the policies of the Act.15 Accordingly, as there is no basis for a finding that the contract between the parties was a consequence of the unfair labor practices found, or that the contract thwarts any policy of the Act, we reject the Trial Examiner's recommendation for the issuance of a cease- recognition order.", The Respondents also except to the breadth of the Trial Examiner's recommended order. As the character and scope of the unfair labor 14 when, as here, the Board, contrary to the Trial Examiner , orders reinstatement of employees, backpay is normally abated from the date of the Intermediate Report to the date of the Board's Decision and Order . The Jackson Press, Inc , 96 NLRB 897. "See Alaska Salmon Industry, Inc., and its Member Employers, 122 NLRB 1552 Ie N L R B. v. Scullin Steel Company, 161 F. 2d 143, 147 ( CA. 8) Contrary to his colleagues, Member Fanning would adopt the Trial Examiner's recommendation that a cease-recognition order be issued. In his view , the Scullin Steel case , cited by the majority, is inapposite In that case, the Eighth Circuit declined to order withdrawal of recogni- tion, noting that "there does not seem to be even a suspicion that the Independent did not remain the choice of the majority of the employees " The record in the present case, in Member Fanning's view, evinces considerably more than a "suspicion ": 21 of 25 em- ployees In the unit expressly informed the Union and the Employer they did not want the Union to represent them, and went so far as to select a new committee , attempt to replace the shop steward, and engage In a strike to protest continued application of the union-security agreement. Under these circumstances , and in view of the extensive find- ings of assistance made herein-as well as pre-10 ( b) evidence of employer solicitation, which Member Fanning would consider as background for purposes of fashioning a remedy-Member Fanning would order Respondent Eskin to cease recognizing the Union, pending its certification in a valid Board election. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices found to have been engaged in by the Respondents go to the very heart of the Act, we find without merit the Respondents' excep- tions to the provisions of the recommended order that they cease and desist from in any manner interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed by Section 7 of the Act," and that the Respondent Employer cease and desist from in any manner supporting and assisting the Respondent Union. We find merit, however, in the exceptions, inter alia, to the recommended provisions requiring the Respondent Employer to cease and desist from supporting and assisting "any other labor organization," and the Union to cease and desist from maintaining unlawful agreements with "aliy other employer." Accordingly, we shall limit the applicability of these provisions to the Respondent Employer and the Respondent -Union.la ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent, M. Eskin & Son, East Brunswick, New Jersey, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Maintaining, performing, or otherwise giving effect to any agreement, arrangement, understanding, or practice which imposes unlawful requirements of clearance by Confectionery and Tobacco Drivers and Warehousemen's Union, Local 805, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as a condition of employment, or in any other manner supporting and assisting said Union. (b) Requiring as a condition of employment that its employees re- voke designations of any labor organization, execute checkoff author- izations in behalf of the above-named Union, request withdrawal of 17 Aurora City Lines, Inc, 130 NLRB 1137 - 11 The Union also excepts to the Trial Examiner's conclusion that its letter of Decem- ber 18, 1959, to Balajthy, Kupic, and Smith was insufficient to toll its backpay liability respecting these men based on his finding that there was no showing that the Respondent Employer had received a copy of the letter or had been informed that, so far as the Union was concerned , union clearance was not necessary for their further employment The Union claims that it introduced this letter for the sole purpose of establishing that it was not opposed to reinstatement of these men , not in connection with the issue of tolling backpay, which was not raised at the hearing, moreover , the Union states in its brief that a copy of the letter was given to the Respondent Employer, and contends that the matter should be left to a later stage in the proceedings . We find that this matter can best be resolved at the compliance stage of this proceeding. The General Counsel excepts to the Trial Examiner 's failure to make a finding with respect to Shortledge 's alleged supervisory status, and to his failure to conclude that the Respondents violated Section 8(a)(2) and ( 1) and 8 (b)(1)('A) of the, Act as a result of Shortledge's dual agency as a supervisor and shop steward We find, however, that the record does not establish Shortledge's statutory supervisory status. M. ESKIN & SON 673 representation petitions and unfair labor practice charges, and hold said Union harmless and release it from any and all claims. _ (c) Discharging, refusing to hire or to reinstate, or discriminating in any other manner against its employees, including the employees named in Appendixes C and D, attached hereto, in regard to their hire and tenure of employment or any term or condition of employment to encourage membership in the above-named Union, or to discourage membership in any other labor organization, except to the extent per- mitted by Section. 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (d) 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 Union, or any other labor organization,. to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection; or to refrain from any and all such activities, except to the extent that such rights 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, as 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) Offer to the employees named in Appendix C attached hereto 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 Remedy" section hereof, for any loss of earnings resulting from the discrimination against them. (b) Offer to the employees- named in Appendix D attached hereto immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and, jointly and severally with Respondent .Union, make them whole, in-the manner set forth in "The Remedy" section of the Intermediate Report, for any loss of earnings resulting ,from the discrimination against them. . (c) Preserve and, upon request, make available to the Board or its .agents, for examination and copying; all.payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the rights of 'reinstatement under the terms of this Decision and Order. (d) Post at its plant in East Brunswick, New Jersey, copies of the 'notice attached hereto marked "Appendix A." 19 Copies of said notice, 19 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 " 634449-62-vol. 135--44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be furnished by the Regional Director for the Twenty-second Re- gion, shall, after being duly signed by Respondent Eskin, be posted immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Respondent Eskin shall take reasonable steps to insure that such notices are not altered, defaced, or covered by zany other material. (e) Deliver forthwith to said Regional Director signed copies of the aforesaid notice for posting by Respondent Union. (f) Post at the same places and under the same conditions as set forth in (d) above, and as soon as they are forwarded by the Regional Director, copies of Respondent Union's notice, herein marked "Ap- pendix B." (g) Notify the Regional Director for the Twenty-second Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. B. The Respondent, Confectionery and Tobacco Drivers and Ware- housemen's Union, Local 805, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining, performing, or otherwise giving effect to any agreement, arrangement, understanding, or practice with Respondent Eskin which imposes unlawful requirements of clearance by Respond- ent Union as a condition of employment. (b) Causing or attempting to cause Respondent Eskin to require as a condition of employment that employees revoke designations of any other labor organization, execute checkoff authorizations in Re- spondent Union's behalf, request withdrawal of rival representation petitions and unfair labor practice charges, and hold Respondent Union harmless and release Respondent Union from any and all claims. (c) Causing or attempting to cause Respondent Eskin to discharge, refuse to hire or reinstate, or to discriminate in any other manner against employees, including the employees named in Appendix D attached hereto, in regard to their hire and tenure of employment or any term or condition of employment to encourage membership in Respondent Union or to discourage membership in any other labor organization, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. (d) -Requiring Respondent -Eskin's employees to waive 'any rights under Section 7 of the Act as a condition for instituting and main- M. ESKIN & SON 675 taining grievance and arbitration proceedings or for otherwise repre- senting such employees. (e) In any other manner restraining or coercing employees of M. Eskin & Son in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as 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) Notify, in writing, Respondent Eskin and the employees named in Appendix D, attached hereto, that Respondent Union does not object to their immediate and full reinstatement. (b) Jointly and severally with Respondent Eskin make whole the employees named in Appendix D, attached hereto, in the manner set forth in "The Remedy" section of the Intermediate Report, for any loss of earnings resulting from the discrimination against them. (c) Post immediately in its business office, copies of the notice attached hereto marked "Appendix B." 20 Copies of said notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being duly signed by Respondent Union, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Deliver forthwith to said Regional Director signed copies of the aforesaid notice for posting by Respondent Eskin. (e) Post at the same places and under the same conditions as set forth in (c) above, and as soon as they are received from the Regional Director, copies of Respondent Eskin's notice, herein marked "Ap- pendix A." (f) Notify the Regional Director for the Twenty-second Region, in writing, Within 10 days from the date of this Order, what steps it has taken to comply herewith. MEMBER BROWN took no part in the consideration of the above Decision and Order. 20 See footnote 19, supra. APPENDIX A 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, as amended, we hereby notify our employees that: 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT maintain or perform or otherwise give effect to any agreement, arrangement, understanding, or practice which imposes unlawful requirements of clearance by Confectionery and Tobacco Drivers and Warehousemen's Union, Local 805, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as a condition of employment, or in any other manner support and assist said Union. WE WILL NOT require as a condition of employment that our employees revoke designations of any labor organization, execute checkoff authorizations in behalf of Confectionery and Tobacco Drivers and Warehousemen's Union, Local 805, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, request withdrawal of representation petitions and unfair labor practice charges, and hold said Union harmless and release it from any and all claims. WE WILL NOT discharge, refuse to hire or to reinstate, or dis- criminate in any other manner against employees in regard to their hire and tenure of employment or any term or condition of employment to encourage membership in Confectionery and To- bacco Drivers and Warehousemen's Union, Local 805, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or to discourage membership in any other labor organization, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Confectionery and Tobacco Drivers and Warehousemen's Union, Local 805, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights 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, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL reinstate and make whole the following employees : Victor Balajthy Gary Kupic Donald Smith Kenneth `Williamson Nat Bagen Edward Boley Samuel L. Christopher William R. Gerics Vincent Murray Frank Palczenski Ronald Reese Gus Smalley Earl C. Bunting. M. ESKIN & SON 677 All employees of M. Eskin & Son are free to become and remain or refrain from becoming or remaining members of Confectionery and 'Tobacco Drivers and Warehousemen's Union, Local 805, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and to join any other labor organization, except to the ,extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959, and they are free to file unfair labor practice charges and rival representation petitions. CONFECTIONERY AND TOBACCO RIVERS AND WARE- HOUSEMEN'S UNION, LOCAL 805, INTERNATIONAL BROTHERHOOD OI' TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, Union. 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. Employees may communicate directly with the Board's Regional 'Office (614 National Newark Building, 744 Broad Street, Newark, New Jersey; Telephone Number, Market 4-6151) if - they have any question concerning this.notice or compliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS OF CONFECTIONERY AND TOBACCO DRIVERS AND WAREHOUSEMEN'S UNION, LOCAL 805, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AND TO ALL EMPLOYEES OF M. ESKIN & SON 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 you that: WE WILL NOT maintain, perform, or otherwise give effect to any agreement, arrangement, understanding, or practice with M. Eskin & Son which imposes unlawful requirements of clearance by Confectionery and Tobacco Drivers and Warehousemen's Union, Local 805, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as a condi- tion of employment. WE WILL NOT cause or attempt to cause M. Eskin & Son to require as a condition of employment that employees revoke 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD designations of any other labor organization, execute checkoff authorization in behalf of Confectionery and Tobacco Drivers and Warehousemen's Union, Local 805, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, request withdrawal of representation petitions and unfair labor practice charges, and hold said Union harmless and release it from any and all claims. WE WILL NOT cause or attempt to cause M. Eskin & Son to dis- charge, refuse to hire or reinstate, or to discriminate in any other manner against employees in regard to their hire and tenure of employment or any term or condition of employment, to en- courage membership in Confectionery and Tobacco Drivers and Warehousemen's Union, Local 805, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or to discourage membership in any other labor organization, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT require employees of M. Eskin & Son to waive any rights under the Act as a condition of instituting and maintaining grievance and arbitration proceedings. WE WILL NOT in any other manner restrain or coerce employees of M. Eskin & Son in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL notify, in writing, M. Eskin & Son and the following named employees that we have no objection to the immediate and full reinstatement of Victor Balajthy, Gary Kupic, Donald Smith,. and Kenneth Williamson, and we will make these employees whole for the discrimination against them. All our employees are free to become and remain, or refrain from becoming or remaining, members of Confectionery and Tobacco Drivers and Warehousemen's Union, Local 805, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, except to the extent that such rights 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, as modified by the Labor-Management M. ESKIN & SON 679 Reporting and Disclosure Act of 1959, and they are also free to file unfair labor practice charges and rival representation petitions. M. ESKIN & SON7 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. Employees may communicate directly with the Board's Regional Office (614 National Newark Building, 744 Broad Street, Newark, New Jersey; Telephone Number, Market 4-6151) if they have any question concerning this notice or compliance with its provisions. APPENDIX C Nat Bagen Edward Boley Samuel L. Christopher William It. Gerics Vincent Murray Victor Balajthy Donald Smith Frank Palczenski Ronald Reese Gus Smalley Earl C. Bunting APPENDIX D Gary Kupic Kenneth Williamson INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges and amended charges filed by William R. Gerics, an individual, the General Counsel of the National Labor Relations Board issued an amended consoli- dated complaint dated May 26, 1960, against Respondents M. Eskin & Son (herein called Eskin ) and Confectionery and Tobacco Drivers and Warehousemen's Union, Local 805, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (herein called the Union ), alleging that Eskin has engaged in unfair labor practices within the meaning of Section 8(a) (1), (2 ), (3), and (4) and that the Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A ) and (2) of the Labor Management Relations Act, 1947, 61 Stat. 136, 73 Stat. 519, herein called the Act. Respondents filed answers denying the alleged violations. A hearing thereon was held in June and July 1960, in Newark, New Jersey, before Ralph Winkler, the duly designated Trial Examiner . Briefs were received.' Upon the entire record, and from my observation of all witnesses , I hereby make the following: 'The General Counsel's motion to delete the first paragraph of footnote 5 of his brief (p 13) is granted , and it is hereby also ordered that the second paragraph of footnote 5 be stricken insofar as it predicates any argument on matters contained in the first para- graph. The parties are further advised that , in resolving this case, I have ignored all such matters deleted from the brief as well as all other matters to which I sustained an objection and otherwise struck from the record at the hearing. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT ESKIN Eskin is a New Jersey corporation with its principal office and place of business in East Brunswick, New Jersey, where it is engaged in the manufacture , sale, and distribution of vending machines and related products. Eskin's direct interstate pur- chases exceeded a value of $50,000 during the past year . I find that Eskin is engaged in commerce within Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Union is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Union was recognized by Eskin as exclusive bargaining representative of Eskin's employees at all material times here, and they had a collective-bargaining contract whose effective period ran from January 1959 until December 30, 1960. This contract contained, among other items, ,a no-strike clause, a 30-day union-shop requirement, and a dues checkoff provision. No contention is made -that the union- security provisions of the contract are unlawful. There were approximately 25 employees in the contract unit. Although Eskin's operations are based in New Jersey, the Union's offices are located in New York City. The employees had selected William Shortledge as shop steward at a union meet- ing in 1957 and he was still the shop steward in October 1959. (Unless otherwise stated, all events recounted here occurred in 1959.) Most, if not all, of the em- ployees meanwhile became disenchanted with the Union and with Union Steward Shortledge, and about 21 employees met in 'October at employee Gus Smalley's home to discuss changing their union affiliation. These meetings were not held under auspices of the Union The employees selected a committee 2 and they also purportedly designated employee William Gerics to replace Shortledge as shop steward. The 21 employees thereupon notified Eskin and the Union by mail on or about October 24 that they no longer desired the Union to represent them, that they had replaced Shortledge with Gerics as shop steward, and that Eskin should discon- tinue checking off their union dues. A week or so later, Union Business Agents Dan Ornstein and Sam Swilling advised Gerics that the employees were without authority to select another union steward in the circumstances of the aforementioned meeting and that Gerics was therefore not properly authorized to act as union steward. Kenneth Williamson and Gene Barham had been in Eskin's employ more than 30 days when Shortledge, as union steward, in effect told both men on December 1 to join the Union or be discharged. This was in accordance with aforementioned union- shop requirement of the operative contract; and the record further shows that, except for situations inapplicable here, the employee body complied with this re- quirement.3 The next morning (December 2) Gerics questioned Shortledge's right to perform the steward's function of policing the contract in this regard, Gerics telling Shortledge that Gerics, not Shortledge, was the steward; Shortledge in turn told Gerics that Shortledge alone was the legally elected shop steward. Gerics and the other committee members then asked 'Eskin Manager Paul Jacobs that same morning not to enforce the union-shop conditions against Williamson and Barham 4 Jacobs replied that the two men were fired unless they joined the Union, whereupon the committee replied that ,the other employees would be obliged "to stick" by Williamson and Barham. A walkout began about 9:30 that morning and 21 employ- ees, including Barham and Williamson, had left their work by the day's end. The walkout was in protest against applying the union-shop provisions to Williamson and Barham, and all parties agree that this work stoppage was a strike in breach of the contract's no-strike clause. David Roth is an officer and part owner of Eskin. Roth and Union Agents Ornstein and Swilling came to the struck premises during working hours on Decem- ber 2, shortly after the walkout began. The strikers were congregated across the street from the plant. Roth refused requests of the committee and individual strikers that he recognize and discuss the dispute with the committee and he, in effect, told 2 Consisting of employees Gus Smalley, Samuel Christopher, Vincent Murray. Nicholas Sokoloff, and William Gerics Employee Gary Kupic also served on the committee. 3 The complaint Itself alleges that Eskin and the Union have at all times maintained and enforced the union-security contract 4 The committee erroneously believed that the contract would expire on December 31 In 1959, rather than in 1960. M. ESKIN & SON 681 the individual strikers to return to work or be fired. The union agents also advised the men that their strike was in violation of the contract and told them to return to work No one return to work that day. The strikers appeared at the premises the next morning (December 3), and, in behalf of the entire group, Gerics told Plant Manager Jacobs before normal working hours that the men were reporting for work. Jacobs replied, in effect, that all strikers were fired. Eskin had already begun hiring replacements. Alleged Condonation The General Counsel agrees that the strike in breach of contract was not protected under the Act and that Eskin was accordingly entitled to discharge the strikers for such action. The unfair labor practices alleged here arose after the December 3 discharges and involve among other things, claims of condonation and of unlawful requirements purportedly imposed by the Respondents as a condition to the further employment of strikers. The strikers began picketing Eskin after their December 3 discharge and Eskin thereupon filed a civil action in the New Jersey Superior Court against the 21 strikers, seeking to enjoin the picketing as well as seeking punitive and compensatory damages. Superior Court Judge Frank Kingfield issued a temporary restraining order in that proceeding on December 4 with an order to show cause why the restraint against picketing should not be continued. The 21 striker-defendants meanwhile engaged John Wysoker as legal counsel to represent them. On December 11, Wysoker and Charles E. Villanueva (Eskin's attorney) appeared before Judge Kingfield on the return day of the order to show cause. Villanueva announced in open court that "a settlement has been agreed upon by counsel and the parties who are all in court here today," and Villanueva further explained to the court that the settlement pro- vided, in part, that all employees would cease picketing and return to work and withdraw an unfair labor practice charge which had been filed with the National Labor Relations Board concerning the discharges; 5 that Eskin would take back all strikers (including Williamson and Barham) without discrimination because of strike activities; and that Eskin would not refuse to recognize Gerics as shop steward "should he be the duly appointed agent of the Union." The court thereupon sug- gested that Attorneys Wysoker and Villanueva get together and submit an appro- priate order in accordance with the stated agreement. Wysoker and Villanueva informally agreed later that day that Wysoker would draft such order and send it to Villanueva for agreement "as to form." Immediately after the court hearing on December 11, Plant Manager Jacobs dis- cussed arrangements with the strikers regarding their then expected return to work on Monday, December 14. Jacobs also told the men to call him for instructions when to report for work. The men accordingly called later that day, only to have Jacobs tell them that there had been a change in plans and that they should contact their lawyer (Wysoker). Villanueva advised Wysoker the next day (December 12) that, for reasons he (Villanueva) was not at liberty to disclose, Eskin "could not go along with the settlement agreement and that the deal was off." Wysoker had not yet drafted the proposed settlement order mentioned above. At a further hearing in the same matter before Judge Kingfield on December 16, Villanueva stated that Eskin would not go along with the aforementioned settlement unless it were amended to provide that six named strikers 6 not be reemployed. Wysoker would not accept this modification whereupon Villanueva stated that his only alternative was to request dismissal of Eskin's court action. Such motion was made and granted without opposition on December 16. Immediately after the December 16 court proceeding, Plant Manager Jacobs advised the 21 strikers to call him if they desired employment. All men called, and Jacobs told nine of them that their jobs had been filled; 7 these nine are herein referred to as the "but" group. Jacobs told the remaining 12 men,8 herein called the "in" group, that their jobs were open. g This was a charge filed on December 4, 1959. by Local Union No 22, United Metal and Paint Workers and Allied Trades, stating that Eakin unlawfully discharged 19 named as well as other unnamed employees on December 2 (Case No 22-CA-545, not published in NLRB volumes). 9 Smalley, Bunting, Murray, Bagen, Reese, and Palczenski. ' These nine were Boley , Christopher, Gerics, and the six individuals listed in footnote 6 above, concerning whom Eskin desired to amend the purported settlement 8 Balajthy, Barham, Caruso, Dayton, Herzog, Judson , Kupic, Majewski , Smith, Sokoloff, Williamson , and Yawger. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions as to Condonation , All parties agree, as already stated , that Eskin could lawfully discharge all em- ployees for participating in the strike. The General Counsel contends , however, that Eskin condoned and therefore is estopped from urging such strike conduct as a basis for refusing further employment to the strikers . This alleged condonation particularly affects the aforementioned "out" group. The principal evidentiary support for the condonation contention is the statement of Eskin's attorney at the December 11 court proceeding respecting the purported settlement of that action as well as Manager Jacobs' consequent conversation with strikers that same day concerning arrangements for returning to work. Viewing Eskin's aforestated court position and Jacobs ' aforementioned discussion with strikers in the context of that litigation and further considering the circum- stances under which that action was dismissed , I cannot find that the "out" group of strikers had actually returned to work or that there was a final meeting of minds on the subject of condonation. The condonation concept being founded on equitable considerations, I might view this situation differently, even absent entry of an order based on a settlement of the court action, had the strikers acted in reliance on Eskin's court statements before being advised that "the deal was off." But no showing of detrimental reliance appears here. I conclude that the condonation contention has not been established 9 and I accordingly also conclude that Eskin did not unlawfully deny further employment to the so-called "out" group of nine strikers Alleged Unlawful Conditions for Further Employment When Jacobs informed the "in" group of 12 strikers on December 16 that their jobs were still open, he also told them individually to see him at his office that same day. Balajthy, Kupic, Smith, and Sokoloff were among the "in" group who testified concerning their consequent visits to Jacobs on December 16. Jacobs told Smith, according to Smith's credible testimony, that Smith could return to work if Smith were first "cleared" by the Union, and Jacobs then gave the Union's telephone number to Smith. Jacobs also gave Kupic the Union 's telephone number, accord- ing to Kupic's credible testimony , and he told Kupic to get union clearance before returning to work. Balajthy and Sokoloff together visited Jacobs and Jacobs told them, according to Balajthy's credible testimony , that union clearance was necessary before returning to work and Jacobs also offered them the Union's telephone num- ber. Sokoloff testified that Jacobs told him and Balajthy that before they were hired they should ascertain from the Union whether they were members "in full standing." Union Agent Ornstein meanwhile spoke with either Eskin Officer Roth or Plant Manager Jacobs on December 16, and either Roth or Jacobs in effect informed Ornstein that Eskin was only taking back some of the 21 strikers Kupic, after visiting Jacobs on December 16, complied with Jacobs' aforementioned instruction and he called Ornstein that same evening concerning clearance ; Ornstein told Kupic to come to the union office and that "there would be certain papers to clear up and everything will be settled." Sokoloff also called Ornstein on December 16 after seeing Jacobs and he told Ornstein that the men wanted to return to work. Ornstein had spoken with either Roth or Jacobs at the time of Sokoloff's call, and Ornstein told Sokoloff to notify both the "in" and "out" groups to attend a meeting at the union office the next day. Sokoloff thereupon informed Jacobs that the "in" group would attend a union meeting on December 17 and would not be reporting for work until December 18. Jacobs testified that he had told the "in" group at his office on December 16 that they should "contact their union to see if they were in good standing with their union, dues paid and everything else." He also testified that he had no "idea" why these men were attending the meeting at the union office on December 17. Most of the 21 involved individuals attended- the meeting 10 at the union offices on the morning of December 17. Union Agents Swilling, and Ornstein were present, as was Union Secretary Irving Dworet. The credible testimony concerning 9 "Condonation is a factual matter which the General Counsel, must establish by a pre- ponderance of the evidence in any given situation " Bechtel Corporation, 127 NLRB 891 ; Union Twist Drill Co., 124 NLRB 1143, 1154. Moreover, an employer is entitled to pick and choose among unprotected strikers those whose unprotected activity he desires to condone See N L R B v Fansteel Metallurgical Corporation, 308 U S 240, 259; NLRB. v Clearfield Cheese Co., Inc, 213 F .2d 70, 75 (CA 3). 10 Williamson, a member of the "in" group , did not attend upon being told by Jacobs on December 16, as others were, that union clearance was necessary for his reinstatement M. ESKIN & SON 683 .this meeting establishes, and I find, that Dworet told the "in" group that they could not return to work unless they executed a certain prepared statement, copies of which were available at the meeting; Dworet also told the "out" group that the Union "would take up their discharge cases under the grievance and arbitration .clauses of the Eskin-union contract if they signed the statement," but that it would not proceed unless they did sign. These statements read as follows: I, ____________________, state for myself, under oath as follows: Local 805, I.B. of T. was and is my Bargaining Agent. It has always properly handled for me all disputes and grievances. I do hereby, reaffirm, ratify and adopt the Union Contract between Local 805, I.B. of T. and M. Eskin & Son, Inc., which contract is dated January 15th, 1959 and which does not expire until December 31st 1960. I hereby revoke and declare null and void any bargaining representation I have signed for Local Union No. 22, United Metal and Paint Workers and Allied Trades, or any other Union except Local 805, I.B. of T. I hereby revoke and declare null and void any revocation of withdrawal of our check-off authorization and I reaffirm and re-institute my check-off authorization. I further request the withdrawal of any petition for an election filed by Local Union No. 22, United Metal and Paint Workers and Allied Trades, and the withdrawal of any charges of unfair labor practices. I agree to hold harmless Local 805, I.B. of T. from any claim of damages whatsoever which we may have and we release Local 805, I.B. of T. from any claims whatsoever. After some discussion all but about eight individuals left the union meeting. These eight were members of the "in" group and they returned to work the next day (December 18); six of these eight executed the aforementioned statement.12 Four of the "in" group did not return to work on December 18; Williamson was one of these four 13 and the remaining three (Balajthy, Kupic, and Smith) were among those who had refused to sign the mentioned statement. Balajthy, Kupic, and Smith sent a joint telegram to Union Agent Ornstein on December 18 stating their readiness to return to work and requesting to see the Eskin-union contract and asking when Ornstein can "come down and see us." Ornstein replied by letter the same day as follows: Received your joint telegram. Whether or not you ego back to work is a matter within the sole discretion of M. Eskin & Sons. The Union is not standing in the way of your being employed. If you desire the Union to file a grievance on your behalf, please come to our offices so we can expeditiously handle such grievance for you. You are at liberty at any time to come up to the Union Offices and look at the contract. As we understand it, the Company has refused to rehire you because of your walking out in violation of your contract. Whether or not the Company will forgive such conduct is a matter which the Company itself must decide. The Union is not standing in the way of the Company putting you back to work. There is no credible showing that the Union gave Eskin a copy of Ornstein's letter or that it advised Eskin of the letter's substance or that it otherwise informed Eskin that, so far as the Union was concerned, union clearance was not necessary for further employment of Balajthy, Kupic, or Smith. None of the "in" group who did not return to work on December 18 and none of the "out" group thereafter contacted either Eskin or the Union in regard to further employment or the filing of grievances. 11 Only Eskin and the Union, and not individual employees, were given rights under the contract to institute action under the pertinent grievance and arbitration provisions "The two members of the "in" group who returned to work but apparently did not sign the statement were Judson and Barham. Barham was not a union member on October 24 and he did not sign the October 24 letters to Eskin or the Union respecting a change in representation and revoking authorization for dues checkoff. - 13 See footnote 10, supra. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further Findings and Conclusions The record establishes that Eskin advised the "in" group that they needed union clearance before returning to work, and it also appears that the Union knew of such condition and that the Union also advised the "in" group that they could not re- turn to work without signing the mentioned statement. I conclude, upon the entire record in this case, that Eskin and the Union (the recognized bargaining representa- tive) had an arrangement, understanding, and practice whereby the "in" group was required as a condition of employment or reinstatement to (a) revoke designa- tions of any labor organization except the Union,14 (b) revoke withdrawals of checkoff authorizations and reinstitute such authorizations,15 (c) request withdrawal of representation petitions filed by another labor organization, (d) request with- drawal of unfair labor practice charges,16 and (e) hold the Union harmless and release the Union from any claims whatsoever. As the employees were, I find, thereby coerced into signing the aforementioned statements, I also find that all such executed statements and all subsequent checkoff authorizations are null and void. The imposition of each aforementioned item of the statement as a condition of employment of the "in" group is unlawful under Section 8(a)(1) and (3) as to Eskin and Section 8(b) (1) (A) and (2) as to the Union, whether such employment be considered as new or continued; and I also find that, by imposing aforementioned item (d) as a condition of employment, Eskin further violated Section 8(a) (4) of the Act.17 Employees or prospective employees are not required to submit to such unlawful conditions of employment as described above; I accordingly further find that, by op- eration of their unlawful arrangement, understanding, and practice, the Union caused Eskm to deny, and Eskin did deny, further employment to Williamson, Smith, Kupic, and Balajthy because these individuals did not satisfy the clearance and other afore- mentioned conditions of employment imposed upon them. Eskin has thereby vio- lated Section 8(a)(1), (3), and (4) of the Act, and the Union has thereby violated Section 8(b)(1)(A) and (2) of the Act. By requiring union clearance, Eskm is guilty of these same 8(a)(1), (3), and (4) violations irrespective of the Union's joint liability. The General Counsel also contends, and I find, that Eskin unlawfully supported and assisted the Union by requiring clearance by the Union as a condition of em- ployment or reinstatement and by otherwise imposing the aforementioned items as conditions of employment or reinstatement Eskin has thereby violated Section 8(a)(2) and (1) of the Act respecting the Union.18 The Union acted and Eskin recognized the Union as exclusive bargaining repre- sentative under their aforementioned contract. The Union, by virtue of Section 9 of the Act, accordingly had "the responsibility to act as a genuine representative of all the employees in the bargaining unit" and had "the duty impartially and without discrimination to accept and process all grievances on which its aid is re- quested by the employees it represents." 19 Even though Eskin was entitled to dis- charge the "out" group and while Eskin did not condone this group's strike activity, the Union itself recognized the employee status of the "out" group for the purpose of instituting and maintaining grievance and/or arbitration proceedings concerning their employment. Thus the Union advised this "out" group that it would pursue such contract remedies if they signed the aforementioned statement, but that it would not do so if the "out" group would not sign. By conditioning the prosecution of grievances upon compliance with the specified items of the mentioned statement, the 14 A representation petition filed by Local Union No. 22, United Metal and Paint Workers and Allied Trades in Case No. 22-RC-670 was then pending respecting Eskin employees. 16 There is no showing that any of the "in" group was delinquent under the union- security provision of the contract except Barham and Williamson 16 See footnote 5, supra, as to a then pending charge against Eskin in behalf of the individuals involved here. 17A. Cestone Company, 118 NLRB 669, enfd. 254 F. 2d 958 (C.A 2), Adams Dairy, Inc., 120 NLRB 177 ; American Screw Company, 122 NLRB 485, 488; Seabright Constric- tion Company, 108 NLRB 8. 1s Broderick Wood Products Company, 118 NLRB 38, enfd. 261 F. 2d 548 (CA. 10). '- Peerless Tool and Engineering Co., 111 NLRB 853, 858, enfd . 231 F. 2d 298 (C.A. 7), cert. denied 352 U.S. 833. M. ESKIN & SON 685 Union coerced and restrained the "out" group in violation of Section 8(b) (1) (A) of the Act. Peerless Tool and Engineering Co., supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The respective activities of Respondents Eskin and Union set forth in section III, above, occurring in connection with the operations of Eskin set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and, such of them as have been found to be unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents respectively engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Having found both Respondents responsible for the discrimination against William- son, Smith, Kupic, and Balajthy, I shall recommend that Eskin offer immediate, full, and unconditional reinstatement to these four men without prejudice to their seniority and other rights and privileges and that Eskin and the Union, jointly and severally, make them whole for any loss of pay suffered by reason of the discrimination, by paying them a sum of money equal to what they would normally have earned from December 17, 1959, until tender of employment, less net earnings during said period. The Union's backpay liability shall be tolled, however, 5 days after it serves written notice on both Eskin and the four men that it does not require these men to execute the aforementioned statement or to take similar action as a condition of employment and that it does not otherwise object to the immediate employment of these four men 20 Backpay shall be computed in accordance with F. W. Woolworth Company, 90 NLRB 289. I shall recommend, among other things, that Eskin withdraw and withhold recog- nition from the Union as bargaining representative of any of its employees until duly certified by the Board as exclusive bargaining representative and that both Respond- ents cease performing, maintaining, or otherwise giving effect to any agreement or arrangement or understanding of employment practice. I shall also recommend that Eskin give no further effect to any dues checkoff authorizations in the Union's behalf. If Eskin does make deductions pursuant to union checkoff authorizations after re- ceiving this Intermediate Report, I shall recommend that Eskin be required to restore all such deductions to the employees. I shall further recommend that the Board retain jurisdiction of this matter until such time as it is satisfied that Respondents have fully complied, herewith. CONCLUSIONS OF LAW 1. Eskin is engaged in commerce within Section 2(6) and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. 3. By requiring union clearance as a condition of employment or reinstatement; by otherwise being party to an understanding, arrangement, and practice with the Union whereby, as a condition of employment or reinstatement, employees were required to revoke designations of rival labor organizations, to reinstate checkoff authorizations in favor of the Union, to request withdrawal of rival representation petitions and unfair labor practice charges, and to hold harmless and to release the Union from any and all claims; by discharging or refusing to reinstate Balajthy, Kupic, Smith, and Williamson for not satisfying the aforementioned "clearance" conditions; by each and all of these actions Eskin has violated Section 8 (a) (1) and (3) of the Act. 4. By requiring, as a condition of employment or reinstatement, that employees request withdrawal of unfair labor practice charges, Eskin has violated Section 8(a) (4) of the Act. .5. By supporting and assisting the Union in the respects set forth in conclusion number 3, Eskin has violated Section 8(a)(2) and (1) of the Act. 6. By being party to the understanding, arrangement, and practice set forth in conclusion number 3- and causing Eskin to discriminate against employees (including the mentioned four individuals) in all respects enumerated therein; the Union has violated Section 8(b).(1)(A) and (2) of the Act. The Union's letter of December 18 to Balajthy, Kupic, and Smith does'not' satisfy these requirements and is , therefore insufficient 'to toll the Union's backpay liability re- specting these three men. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. By conditioning the prosecution of grievances upon compliance with the "Clear- ance" conditions set forth in conclusion number 3, the Union has violated -Section 8(b)(1)(A) of the Act. 8. The unfair labor practices found herein affect commerce within Section 2(6) and (7) of the Act 9. Except as stated herein, the record does not preponderantly establish that Respondents engaged in other alleged violations. [Recommendations omitted from publication.] Mayer B. Cohen, Bernard Cohen and Peary Cohen d/b/a River- side Wholesale Distributors and Local 597, Chauffeurs, Team- sters, Warehousemen & Helpers, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 1-CA-3521. January 30, 1962 DECISION AND ORDER On October 18, 1961, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions and a supporting brief. The Board 1 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 sand brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Mayer B. Cohen, Bernard Cohen and Peary Cohen d/b/a Riverside Wholesale Dis- tributors, Burlington, Vermont, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local 597, Chauffeurs, Teamsters, Warehousemen & Helpers, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, or in any other labor organization of, their employees, by discriminatorily dis- i 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 , Fanning, and Brown]. 135 NLRB No. 74.