Fiore Brothers Oil Co., Inc.

FIORE BROTHERS OIL CO., INC. 191 Director for the Fourteenth Region, shall , after being duly signed by Respondent's representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for the Fourteenth Region , in writing, within 20 days from the date of receipt of this Intermediate Report, what steps Respondent had taken to comply herewith .4 Examiner" in the notice. In the further event that the Board ' s Order be enforced by a decree of a United States Court of Appeals , the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 4 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify the Regional Director for the Fourteenth Region, In writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL bargain collectively on request with International Brotherhood of Boilermakers, Iron Shipbuilders , Blacksmiths, Forgers and Helpers, Lodge 1012, AFL-CIO, as the exclusive representative of all our employees in the following appropriate collective-bargaining unit, and, if an understanding is reached, em- body such understanding in a signed agreement. The appropriate collective- bargaining unit is: All production and maintenance employees employed at our St. Louis establishment, exclusive of office clericals, professionals, guards, and super- visors as defined in the Act. All our employees are free to become or remain , or to refrain from becoming or remaining, members of the above-named or any other labor oganization. LEE-ROWAN 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. Employees may communicate directly with the Board 's Regional Office, 4459 Federal Building , 1520 Market Street, St. Louis, Missouri, Telephone Number, Main 1-8100, Extension 2142, if they have any question concerning this notice or com- pliance with its provisions. Fiore Brothers Oil Co., Inc. and United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO Amalgamated Union Local 355 and United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters Dis- trict, AFL-CIO. Cases Nos. 0-CA-8146 and 2-CB-3234. May 18, 1962 DECISION AND ORDER On February 15, 1962, Trial Examiner Thomas S. Wilson issued his Intermediate Report herein, finding that the Respondents engaged in 137 NLRB No.19. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices and recommending that they cease and desist therefrom and take affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondents and General Counsel, led exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its power in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Rodgers 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 this proceeding, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner with the additions and modifica- tions set forth below. We agree with the Trial Examiner, for the reasons set forth in the Intermediate Report, that the Respondents violated Section 8(a) (1), (2), and (3) and 8(b) (1) (A) and (2) of the Act. The correctness of these findings depends largely on whether or not Anthony Bartholdi acted as the agent of Respondent Company. The Trial Examiner found that he was such an agent. We agree, and rely upon the fol- lowing facts to establish his agency : the uncontradicted statement of Ferdinand Fiore, president of Respondent Company, that the with- drawal of the petition of a rival union gave the Respondent Company the opportunity to "bring in" Local 355; the authorization cards for Local 355 were solicited by Anthony Bartholdi, the son-in-law a of the president of Respondent Company, during working time, after Bartholdi had refused to sign an authorization card for a rival union because that union would tell his father-in-law how to run his busi- ness; the uncontradicted statement by Bartholdi to an employee that the "Company" is going union; the instructions given by Siegler, Respondent Company's credit manager, to employee Cochran to wait at an appointed place during working hours in order to afford Bartholdi, accompanied by a representative of Respondent Union, an opportunity to solicit Cochran for membership ; the benefits promised 'Though Respondents have not admitted that Respondent Fiore is engaged in commerce within the meaning of the Act, we find, in agreement with the Trial Examiner, that the admitted facts in paragraphs numbered 4 A and B of the complaint clearly establish that Respondent Fiore is engaged in interstate commerce and within the Board 's jurisdic- tion. See Siemens Mailing Service, 122 NLRB 81. n The Trial Examiner inadvertently referred to Bartholdi as the brother -in-law of the three officers of Respondent Fiore. The Trial Examiner also erred in finding that an authorization card for Walkerwitz was submitted in evidence ; in finding that employees Goode and Porzio cast ballots in the employee election of August 16, 19G1 , that Fred Fiore, Jr 's, vote at that election was cast in absentia ; and in failing to find that Harry Deisley was one of the hourly paid employees properly included in the appropriate unit. These errors are hereby corrected. FIORE BROTHERS OIL CO., INC. 193 by Bartholdi in soliciting authorization cards were essentially the same benefits which appeared in the contract; the precipitous manner with which the contract was executed after Bartholdi had signed up an apparent majority of the employees; and Bartholdi's reneging on his agreement with his fellow workers to sign an authorization card for the SIU and his failure to affirm his supposed allegiance to the SIU at the meeting of August 17,1961. In our opinion, the foregoing amply demonstrates that Bartholdi was chosen by Respondent Company to enlist the necessary employee support to enable it to "bring in" Respondent Local 355 as the em- ployees' representative. It strains credulity to accept Respondent's contentions that Bartholdi was acting solely in his capacity as an employee. No mere employee could predict with such remarkable ac- curacy his employer's willingness to accept the union and the benefits it would incorporate into a contract. As it is apparent that without Bartholdi's efforts Respondent Local 355 would not have signed up a "majority" of the employees and would not therefore have been entitled to recognition by Respondent Com- pany, we find, for the reasons set forth in the Intermediate Report, that Respondents violated the Act in the manner and to the extent found by the Trial Examiner 3 ORDER Upon the entire record in this proceeding, and pursuant to Section 10(c) of the Act, the National Labor Relations Board hereby orders that: A. The Respondent Company, Fiore Brothers Oil Co., Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Recognizing Respondent Local 355 as the representative of its employees in the unit heretofore found appropriate for the purpose of dealing with Respondent Company concerning grievances, wages, rates of pay, hours of employment, or other terms and conditions of employment or giving said organization any financial or other assist- ance or support. (b) Giving any force or effect to the collective-bargaining agree- ment with Local 355 dated August 14, 1961, or to any modification, extension, renewal, or supplement thereto, provided, however, that nothing in this Decision and Order shall require the Respondent Com- pany to vary or abandon any wage, hour, seniority, or other sub- 8 In so finding, we do not adopt the Trial Examiner's conclusion that Local 355 did not sign up a majority of employees in an appropriate unit It is not at all clear that the inclusion or exclusion of employees in the unit turns entirely on the considerations taken into account by the Trial Examiner. However that may be , it is clear that Respondent Local 355 did not have an uncoerced majority in the contractual unit. 649856-63-vol. 137-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantive feature of its relations with its employees which the Company has established in the performance of this agreement, or to prejudice the assertion by employees of any rights they may have thereunder. (c) Interfering with, restraining, or coercing its employees in any manner in order to encourage membership in Local 355 or discourage membership in SIU. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Amalgamated Union Local 355 as the representative of its employees for the purpose of dealing with Respondent Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until the Board shall certify said Local 355 as such representative. (b) Reimburse each of its present and former employees for all initiation fees, dues, and other moneys its employees have been re- quired to pay Amalgamated Union Local 355 since August 14, 1961, by reason of Respondent's maintenance and enforcement in favor of Amalgamated Union Local 355 of its agreement dated August 14,1961, being jointly and severally liable therefor with Amalgamated Union Local 355. (c) Post at its plant on Staten Island, New York, copies of the notice attached hereto marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, upon being duly signed by Respondent Company be posted by it im- mediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in A, (2), (c), above, as soon as forwarded by said Regional Director, copies of the notice hereto marked "Appendix B." 5 (e) Mail signed copies of the notice attached hereto marked "Ap- pendix A" to the Regional Director for the Second Region for posting by Respondent Union at its business offices and meeting halls in New York City, including those on Staten Island and Long Island, New York, in places where notices to members are customarily posted. Copies of said notices, to be furnished by the Regional Director for the Second Region as the agent of the Board, shall be returned forthwith * 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 " 5 See footnote 4, supra. FIORE BROTHERS OIL CO., INC. 195 to the Regional Director for the Second Region, after they have been signed by an official representative of Respondent Fiore Brothers Oil Co., Inc., for such postings. (f) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. B. The Respondent Union, Amalgamated Union Local 355, its of- ficers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Claiming to be the authorized bargaining representative of the employees of Respondent Company. (b) Causing or attempting to cause Respondent Company, its of- ficers, agents, successors, or assigns, to discriminate against employees or prospective employees in violation of Section 8(a) (3) of the Act, as amended. (c) Claiming to have, or attempting to enforce, an agreement with Respondent Company dated August 14, 1961, or any modification, ex- tension, renewal, or supplement thereto. (d) In any other manner restraining or coercing employees or pro- spective employees of Respondent Company 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 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) Reimburse each of the present and former employees of Fiore Brothers Oil Co., Inc., for any and all money unlawfully exacted from them for initiation fees, dues, and weekly assessments since August 14, 1961, being jointly and severally liable therefore with Respondent Fiore Brothers Oil Co., Inc. (b) Post at its business offices and meeting halls in New York City, New York, including those located on Staten Island and Long Island, copies of the notice attached hereto marked "Appendix B." 6 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the official representative of the Respondent Local 355, be posted by the Respondent Local 355 immediately upon their receipt, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Local 355 to insure that these notices are not altered, defaced, or covered by any other material. See footnote 4, supra. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at the same places and under the same conditions as set forth in B, 2, (b), above, as soon as forwarded by the Regional Director for the Second Region, copies of the notices attached hereto marked "Appendix A."' (d) Mail signed copies of the notice attached hereto marked "Appendix B" to the Regional Director for the Second Region for posting by Respondent Company at the place of business of Respond- ent Company on Staten Island, New York, New York, in places where notices to employees are customarily posted. Copies of said notices, to be furnished by the Regional Director for the Second Region as the agent of the Board, shall be returned forthwith to said Regional Director, after they have been signed by an official representative of Respondent Local 355, for such postings. (e) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. ° See footnote 4, 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, we hereby notify our employees that : WE WILL withdraw and withhold all recognition from Amalga- mated Union Local 355 as a collective-bargaining representative of our employees included in the following described appropriate unit : All drivers, servicemen, yardmen, helpers, mechanics, and maintenance employees, excluding all office clerical and pro- fessional employees, watchmen, guards, and supervisors as defined in the Act. WE WILL NOT recognize said labor organization as such repre- sentative unless and until so certified by the National Labor Re- lations Board. WE WILL NOT give any force or effect to that agreement signed with said Local 355, dated August 14, 1961, or to any modifica- tion, extension, renewal, or supplement thereto. WE WILL reimburse each of our employees for any and all money unlawfully exacted from them for initiation fees, dues, and assessments, being jointly and severally liable therefor with Amalgamated Union Local 355. WE WILL NOT discourage membership in United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters Dis- FIORE BROTHERS OIL CO., INC. 197 trict, AFL-CIO, or encourage membership in Amalgamated Union Local 355 by recognizing or entering into an agreement with said Local 355 or in any other manner. 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 organizations, to join or assist United Industrial Workers of North America of the Seafarers Inter- national Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership 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. All our employees are free to become, remain, or to refrain from becoming or remaining members in the above-named or in any other labor organization. FIORE BROTHERS OIL CO., INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York, New York, Telephone Number PLaza 1-5500, if they have any question concerning this notice or com- pliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS OF AMALGAMATED UNION LOCAL 355 AND TO THE EMPLOYEES OF FIORE BROTHERS OIL CO., INC. 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 act as the bargaining representative of any of the employees of Fiore Brothers Oil Co., Inc., for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until we have been certified by the Board as such representative. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE ' WILL NOT give any force or effect to that collective- bargaining agreement with Fiore Brothers Oil Co., Inc., dated August 14, 1961, or to any modification, extension, renewal, or supplement thereto. WE WILL NOT cause or attempt to cause Fiore Brothers Oil Co., Inc., to discriminate against its employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manlier restrain or coerce employees of Fiore Brothers Oil Co., Inc., in the exercise of the rights guar- anteed to them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship 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. WE WILL reimburse each of the employees of Fiore Brothers Oil Co., Inc., for any and all money unlawfully exacted from them,, for initiation fees, dues, and assessments, being jointly and sever- ally liable therefore with said Company. AMALGAMATED UNION LOCAL 355, Labor Organization. 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, 745 Fiftli Avenue, New York, New York, Telephone Number PLaza 1-5500, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed on September 7, 1961 , by United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO, herein called the Charging Party or S.I.U., in Case No. 2-CA-8146 against Fiore Brothers Oil Co., Inc., herein called' Respondent Company, and upon a charge duly filed the same day by the Charging Party against Amalgamated Union Local 355, herein called Respondent Union or Local 355, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel 1 and the Board, respectively , by the Regional Director for the Second Region , New York, New York, issued its complaint dated October 20, 1961, alleging that the Respondent Company had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1), (2), and ( 3) and that Respondent Union had engaged in and was engaging in viola- tions of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Labor Man- agement Relations Act, 1947, as amended, herein called the Act. Copies of the charges, order consolidating cases, complaint , and notice of hearing thereon were duly served upon the Respondents , and each of them, and the Charging Party. 1 This term specifically includes the attorney appearing for the General Counsel at the hearing FIORE BROTHERS OIL CO., INC. 199 Respondents each duly filed an answer admitting certain allegations of the com- plaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held at New York, New York, on November 27, 28, and 29 and December 1, 1961, before Thomas S. Wilson, the duly designated Trial Examiner . All parties appeared at the hearing, were repre- sented by counsel, and were afforded full opportunity to be heard , to produce, ex- amine, and cross-examine witnesses , to introduce evidence pertinent to the issues, and were advised of their right to argue orally upon the record and to file briefs and proposed findings and conclusions or both . Oral argument was heard at the conclusion of the hearing. Briefs have been received from Respondent Company and General Counsel on January 11, 1962.2 Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY Fiore Brothers Oil Co., Inc., is and has been at all times material herein a corpora- tion duly organized under, and existing by virtue of, the laws of the State of New York. At all times material herein, Respondent Company has maintained its princi- pal office and place of business at 40 LaSalle Street, Mariners Harbor, Staten Island, in the city and State of New York, herein called the Staten Island plant, where it is, and has been at all times material herein, engaged in the sale, installation, and service of heating equipment and the retail and wholesale sale and distribution of coal, oil, and related products. During the past year, which period is representative of its annual operations generally, Respondent Company, in the course and conduct of its business operations, performed services and made sales valued in excess of $50,000. During the past year, Respondent Company, in the course and conduct of its business, purchased and caused to be transported and delivered to its Staten Island plant, coal and oil and other goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported and delivered to its plant in interstate commerce directly from States of the United States other than the State of New York. The complaint alleges, the Respondents admit, and I find that Respondent Com- pany is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO, the Charging Party, and Amalgamated Union Local 355 are labor organizations ad- mitting to membership employees of Respondent Company. III. THE UNFAIR LABOR PRACTICES A. The facts 1. The Staten Island campaign As a result of an organizing campaign among the employees of various coal and fuel oil companies on Staten Island, S.I.U. filed individual representation petitions with the Board's Regional Office covering the employees of the following companies: Sipco________________________________ June 6, 1961 2-RC-11413 Richmond ---------------------------- June 8, 1961 2-RC-11418 Kiernan_____________________________ June 8, 1961 2-RC-11419 Salmirs______________________________ June 9, 1961 2-RC-11426 Fiore-------------------------------- June 9,1961 2-RC-11427 Quimlan_____________________________ June 12, 1961 2-RC-11430 On June 19 3 S.I.U., the above companies, and Board representatives held an in- formal conference on the last five petitions above mentioned? All five of the com- panies involved were represented by the same attorney as appeared for Respondent 2 Attached to Respondent Company's brief was a motion to correct certain typographical errors in the transcript There having been no objection made to this motion, it is hereby, ordered that said motion be marked as "Trial Examiner's Exhibit No 1," admitted in evi- dence and hereby granted. a All dates herein are in the year 1961 unless otherwise noted. 4 The Sipco petition was already headed for a formal hearing which was held June 23. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the instant hearing . At this conference he refused to agree to consent elections except on the Kiernan petition . Apparently as a result of this conference and for reasons not explained in the record , S.I.U. withdrew all five of these petitions at the end of the conference. It was stipulated that, at least until June 19, S.I .U. was the only union involved in any of these cases. On July 26, S .I.U. refiled its petition regarding the Richmond employees where- upon Local 355 intervened therein claiming an interest. When, on August 18, S.I.U. refiled petitions in the other four cases, Local 355 inter- vened in three of them claiming that a collective-bargaining agreement executed with each of the three companies was a contract bar. Subsequently three of these peti- tions filed by S.I.U. were dismissed by the Regional Director on the ground of a contract bar. By this time Local 355 was also in the picture at Fiore's as the facts will show. 2. Respondent Company and the unit The Respondent is a family owned and operated corporation . Three Fiore broth- ers, Ferdinand , Michael, and Anthony, are president, vice president, and secretary- treasurer, respectively, as well as the sole stockholders of the corporation. Two Louis Fiores work in the office . The son of Anthony Fiore, known in the Respondent plant as "L. F . No. 2," is Respondent's bookkeeper at a salary of $140 per week. The son of Ferdinand Fiore, known as "L. F. No. 3," is a salesman at a salary of $140 per week . Michael T. Fiore, son of Ferdinand , is a schoolteacher who does part-time work for Respondent as a salesman at a weekly salary of $125. Aaron Siegler, unrelated to the Fiores so far as the record shows, is Respondent's credit manager at a salary of $ 130 per week. This completes Respondent's office staff exclusive of clericals. It is admitted by all parties, and I agree, that none of the above can be included in the appropriate unit which the parties stipulated at the hearing and I find to be: "All drivers, servicemen, yardmen, helpers, mechanics, and maintenance employ- ees, ... excluding all office clerical and professional employees, watchmen , guards, and supervisors as defined in the Act." There are other Fiore relatives employed in the service and driving department which, as found above, constitutes the appropriate unit here. The admitted super- visor of this department is Alexander Walkerwitz , son-in-law of Anthony Fiore, who supervises the department from his own office and is paid a weekly salary of $145. Respondent Company's brief acknowledges Walkerwitz to be a supervisor. Frank Fiore, son of Anthony, is listed on the August 17 payroll as a salesman but he also on occasion drives an oil truck and on other occasions takes charge of the yard when Michael Fiore, vice president , is absent. Frank Fiore is paid a weekly salary of $140. Fred Fiore, Jr., son of Ferdinand , drives an oil truck or assists serviceman, Michael J . Cochran, when not engaged in sales work at a weekly salary of $118. The parties are in disagreement as to the inclusion of Frank and Fred, Junior, in the above-described appropriate unit. Both are salaried employees . Neither signed an authorization card for S .I.U. but both signed such cards for Local 355. Conse- quently Respondents urge their inclusion and General Counsel opposes. The con- tract dated August 14 between Respondent and Local 355. which granted the hourly rated employees a 25-cent-per -hour increase, did not affect the salaries of either Frank or Fred, Junior. It is quite obvious from the type of work each does, including sales work , their salaried positions , and their relationship to the Fiores, that neither has much, if any, community of interest with the other employees in the appropriate unit Consequently I believe, and find, that Frank Fiore and Fred Fiore, Jr., should be excluded from the appropriate unit. There are still two other relatives in the driving and service department . Anthony Bartholdi known at the plant as "A. B." and who will be referred to hereinafter the same way, son-in-law of Ferdinand, was on August 12, 1961 , an oil driver paid at an hourly rate . Frank Sforza is also an hourly paid driver in the department as well as being the brother-in-law of Anthony. As of the week ending August 17, 1961, the following are conceded to have been regularly hourly paid employees and properly included within the appropriate unit: Michael J . Cochran, Charles Diker, Anthony Eannucci , Frank Paliseno, William Rippstein, and Louis Gyulai. In addition during the busy season in the winter Respondent regularly employs several part-time drivers . Bennie Goode has worked regularly each winter from December through March since 1958 , being laid off sometime in March when he does odd lobs for third persons or, as in the past year, becomes a greenskeeper at a nearby country club . Tom Porzio has also worked regularly each winter from December through March since 1957, being laid off to take his regular job as a greenskeeper FIORE BROTHERS OIL CO., INC. 201 at the country club. George Diker also has been regularly recalled by Respondent during the busy season doing regular driving work at times when it will not inter- fere with his regular job as a guard for Nassau Smelting Co. While Diker apparently does not work as many hours during the busy season as do Goode and Porzio, Re- spondent has been recalling him to work as needed during these seasons for the past 14 or 15 years. These three appeared to be the only regular part-time drivers em- ployed by Respondent during its busy seasons. Sometime apparently in early June,5 Charles Diker, who had been elected S.I.U. shop steward at Respondent's place of business, asked A. B. if he wanted to sign an S.I.U. authorization card as all the other employees had done except Walkerwitz. A. B. refused, although he did attend one meeting of the S.I.U. When, about this same time, Diker asked Walkerwitz to sign an S.I.U. card, Walkerwitz answered, "Charles, I can't sign that. I am a boss, a salaried man." 3. The Local 355 blitzkrieg This record shows that Local 355 suddenly burst onto the Fiore scene about 10:30 a.m. on August 12, Saturday, when A. B. appeared at the home of employee Eannucci accompanied by one Henry (Hank) Stert, whom A. B. introduced as a business representative of Local 355. With A. B. doing most of the talking, Eannucci was told that by signing an authorization card for Local 355 he would receive a weekly raise of $18, Blue Cross, sick leave, vacations, and a $4,000 insurance policy. A. B. told Eannucci that "the rest of the fellows" had signed. When Eannucci demurred on the ground that he had signed an S.I.U. card, Stert assured him that he could sign any number of such union authorization cards. Eannucci then signed without check- ing to see that "the rest of the fellows" had signed because, as he put it, he "trusted" A. B. About 2 p.m. that same Saturday, A. B. and Stert drove up to the home of employee Rippstein where, after introducing Stert, A. B told Rippstein that he had "something good for him . better than the SIU" and assured Rippstein that as he had known Rippstein a long time, he would not "steer him wrong." A. B. and Stert then told Rippstein of the benefits Local 355 was offering: A $4,000 insurance policy, 25-cent per hour wage increase, hospitalization, and a pension plan. Ripp- stein also demurred about signing a card for Local 355 but actually executed one when Stert insisted and assured Rippstein that it made no difference that he had previously signed an S.I U card. The next port of call for A. B. and Stert apparently was to part-time employee Bennie Goode whom they found repairing a house Goode had recently purchased. On this occasion A. B. told him that "the Company was going into the Union" and asked Goode if he wanted to join. Goode signed a card for Local 355. At the hearing Local 355 authorization cards dated "8/12/61" and signed by Fiore relations Walkerwitz, Frank Fiore, Fred Fiore, Jr., and Frank Sforza were received without any information as to the date or manner of their execution. In addition to the relatives, A. B. and Stert also secured a signed Local 355 card from part-time em- ployee Porzio under circumstances not related herein. Before suppertime on August 12, A. B. and Stert appeared at the home of employee Paliseno where A. B. introduced Stert and told Paliseno that he "had a good deal" for Paliseno. Stert stated that he had the other employees signed up already and allowed Paliseno to see the cards signed by Goode, Porzio, Eannucci, Walkerwitz, and Bartholdi himself. Stert and A B. told Paliseno that "we can get you" vacations, a 25-cent per hour increase. hospitalization, and insurance. Paliseno refused to sign saying that he already had all those things without a contract. Stert argued that these were just pledge cards but Paliseno still refused. Paliseno remarked that they had two men signed, Goode and Porzio, who had quit Fiore but did not have Charlie Diker. He was assured that Diker would be their next stop. As they were leaving, Paliseno asked if A. B. was not supposed to be working. A. B. admitted that he was but that "it was slow." When Paliseno asked why A. B. was so interested in Local 355 when he would have nothing to do with S.I.U., A. B. answered, "This is a good d' il." A. B. and Stert left, apparently ending their working day for they did not appear at Diker's home thereafter or at any other time. On Monday, August 14, Walkerwitz was in the hospital and A. B. had taken his place as supervisor of the service and driving department. While employee Gyulai was making out timecards that morning, A. B. spoke to him about the "good deal" which Local 355 had for the men but Gyulai refused to sign a Local 355 card Also during that Monday morning as A. B. was looking over the service tickets for Cochran, A. B. told Cochran "about this friend that had this union that they 5 AlI dates are In the year 1961 unless otherwise noted. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were bringing over," "that his uncle knew nothing about it . . . as I sit across the dinner table at night, I know it is a sin, in my heart, and I am sinning against this man doing this to him," "that SIU were made up of a bunch of crooks and that they were . going to come in and tell his uncle how to run the business, after he has been running it 35 or 40 years by himself." Sometime shortly after 3 p.m., on either Monday, August 14, or Tuesday, August 15,6 Cochran telephoned the Fiore office for further orders as was cus- tomary. Siegler answered the telephone and ordered Cochran to wait for L. F. No. 3 at a certain location. After vainly waiting for sometime at that location, Cochran telephoned Siegler again for further instructions and was told to continue to await L. F. No. 3 who had something to tell him. Cochran asked what L. F. No. 3 wanted to tell him but all Siegler would say was that while he had an idea, he would prefer to have L. F. No. 3 tell Cochran himself. As Cochran continued to wait as directed, he saw L. F. No. 3 drive past without stopping. Shortly thereafter Stert and A. B. drove up in an automobile. A. B. invited Cochran into the automobile telling him that it was "OK" not to wait any longer for L. F. No. 3 and thereupon introduced Cochran to his "old friend" Hank Stert who thereupon commenced his usual spiel about the benefits Local 355 would get the employees. These benefits were the same as with the other employees except that, instead of a 25-cent per hour increase, Stert said he would get Cochran a wage increase from $96 a week to $110. A. B. insisted that this was "a good deal" for he could not see the S.I.U. telling his relatives how to run their business. A. B. and Stert also told Cochran that they had signed up all the employees except himself and Diker and that, after Cochran signed, they would get Diker to sign. Cochran argued that he had already signed a card for the S.I.U. but Stert assured him that it made no difference how many cards he signed, that he could vote as he pleased when the election was held. Thereupon Cochran signed a card for Local 355 and thereafter went about his business. Thus did A. B. and Stert sign up the Fiore employees on August 12 and 14 or 15 for Local 355. By the end of August 14 or 15, A. B. had secured the signatures to Local 355 authorization cards from the following members of the Fiore family: Frank; Fred, Junior; Walkerwitz; Anthony Bartholdi (A. B.); and Frank Sforza. They also had the signed Local 355 authorization cards from the following non- relative full-time and part-time employees: Cochran, Eannucci, Rippstein, Goode, and Porzio. All of these cards had apparently been executed prior to 11 a.m. on Monday, August 14, except the card of Cochran which was not signed until about 4 p.m. August 14 at the earliest 7 4. Recognition and negotiations If the testimony of Siegler is correct, Stert must have been a very busy man on Monday, August 14. According to this evidence, Stert appeared at the Fiore office around 10 a in. and conferred with the Fiores. After Stert had departed, Anthony Fiore informed Siegler that Siegler was to go with them to the office of Respond- ent's attorney, Widdecomb, where they would negotiate a contract with Local 355, as it represented the majority. These negotiations at the attorney's office between the Fiores with Siegler and Stert with another unnamed Local 355 representative lasted, according to Siegler, from about 11 a.m. to 4 p.m., Monday, August 14, with no lunch break and ended with the execution of two copies of the contract by the Mores and by Stert. This was a mimeographed form contract with certain blanks which had to be filled in. The contract, dated August 14, 1961, as introduced in evidence, provided for exactly what Stert and A. B. had told the employees "we can get"; a 25-cent per hour increase, $4,000 insurance policy, hospitalization, vacations, and pensions- plus a union-security clause and, in addition, the following: Article III-Real Party in Interest. It is agreed that this contract shall not vest or create in any employee or group of employees covered hereby, any rights or remedies, which they or any of them can enforce either at law. equity, or otherwise, and whether as principal or third party beneficiary or otherwise, e The date on which Cochran signed the Local 355 card is in dispute The card itself is dated August 14 Cochran maintains, however, that he signed it on Tuesday whereas Siegler, Respondent's credit manager, testified that he "saw" Cochran's signed Local 355 card as early as 11 a in Monday, August 14. 7 Cochran's testimony regarding the execution of his card is uncontradicted upon the record. In addition Cochran, although suffering from a blood infection at the time he testified, was a most sincere, straightforward, and honest-appearing witness whose testi- mony I credit despite the obvious pain under which he was suffering at the time of testifying FIORE BROTHERS OIL CO., INC. 203 it being understood and agreed on the contrary that all of the rights and privileges created or implied from this contract shall be enforcable only by the parties hereto and only in the manner established by this contract.8 Siegler also testified that at the beginning of these negotiations he checked seven -signed authorization cards which Local 355 presented and noted one signed by `Cochran. But the undenied testimony regarding the execution of the Cochran card is that it was signed at a location other than the negotiation meeting at or about 3:45 p.m., in the presence of Stert and A. B., neither of whom refuted Cochran's testimony-nor did Siegler regarding the telephone conversations. As Stert was at the negotiations and executed the contract on behalf of Local 355, it is obvious that, if Siegler's testimony regarding the negotiations is true, Cochran's card had to be executed after Local 355 had been recognized and the contract executed. 5. The employees vote At the suggestion of Diker on behalf of S LU and Frank Sforza on behalf of Local 355 the regular employees decided to hold a secret election between S LU. and Local 355 after work on August 16 to determine which of these unions the employees actually wanted The employees decided that all of them would join whichever union secured the greater number of votes that evening. The election was held in Sforza's garage under self-imposed conditions assuring the secrecy of the ballot. Fred Fiore, Jr., protested the absence of Frank Fiore and Walkerwitz so the group agreed that those two were to be counted as for Local 355. Each of the 10 regular .employees voted by secret ballot in the garage one at a time .9 When the votes were counted, including those cast in absentia by Frank Fiore and Fred, Junior, the result was seven for S.I.U. and five for Local 355. Diker and Bartholdi shook hands and A. B. agreed to inform Local 355 that the employees were no longer interested in that Union and to sign an S.I.U. card in the morning. The meeting then broke up with the issue apparently settled favorably to S.I.U. 6. Announcement of the Local 355 contract The following day, August 17, Anthony Fiore called all the employees to a meeting in the company office at quitting time-5 p.m. After the group of men had gathered in the office, Anthony Fiore took a sheaf of yellow papers 10 prepared by Michael T. Fiore, the schoolteacher, and read: "Men, by a majority of applications received from you by the Amalgamated Union, Local 355, address 74-09, 37th Avenue, Jack- son Heights 72, New York. Telephone No. OL 1-3757, for membership in the above- mentioned Union, a contract was negotiated and signed August 14, 1961. Henry Stirk [sic]-delegate. .. ... Anthony Fiore then proceeded to read from these yellow sheet its version of the general terms of the alleged contract regarding the 25-cent per hour pay increase, hospitalization, the $4,000 life insurance policy, the security or pension plan, holidays and vacations, sick leave, and ending with the following: "The Union has informed us that there will be no initiation fees for present em- ployees. The contract also contains job-security provision." li The benefits were exactly those which A. B. and Stert had advised the employees that they "could get" for them when soliciting their signatures to Local 355 authorization and dues checkoffs cards. When Anthony Fiore ended the reading of these yellow pages, Diker informed him of the vote of the previous evening and requested A. B. to confirm his statement. A. B. remained silent. Diker told Anthony Fiore that he was speaking for all the men and that they did not accept the Fiore-Local 355 contract. All Fiore would say was see the delegate. The employees thereupon walked out of the meeting. 8 This "Real Party in Interest" clause is unique in the experience of this Trial Examiner. It would appear to be contrary to at least the spirit of the Act and particularly of the Taft-Hartley amendments thereto. The only really definite articles in this contract are those providing for the payment of $18 50 per month per employee to the "United Welfare Fund" and the payment of $8 per month per employee which were to be made by Respondent Company to the "355 Security Plan " The checkoff of dues of $1 per week per employee is also definite 8In order to make up the 10, Goode and Porzio must have cast ballots that evening. 10 At no time during this meeting was the form contract, allegedly negotiated and signed on August 14 and retained by Respondent thereafter, ever in evidence at this meeting. "A reading of the contract indicates that Anthony Fiore actually meant "union-. security" provisions rather than "job-security" provisions Among other provisions Anthony Fiore forgot to mention was the dues checkoff provision. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following morning Diker again informed Siegler that the men did not accept the contract and asked him to relay this information to the Flores. 7. Dues checkoff On Friday, August 18, the employees received their paychecks for the week end- ing on that day. These checks for the hourly rated employees reflected the 25-cent per hour increase for the entire week's work. The salaries of Frank Fiore, Fred Fiore, Jr., and Walkerwitz remained unchanged. The payroll records also proved that a $1 dues deduction was made against each of Respondent's hourly paid em- ployees, including Diker, Deisley, Gyulai, and Paliseno, as well as against the afore- mentioned salaried employees. When Diker objected strenuously to this dues deduction, he was told by L. F. No. 2, the bookkeeper, that nothing could be done about that. Diker angrily shouted that somebody was going to get hurt if that dollar was not returned. Apparently the following day the Fiores discovered that Diker, Deisley, Gyulai, and Paliseno had not signed the Local 355 authorization card which included thereon also the dues deduction authority and returned the dollar by mail to each of them together with a letter of apology. When Cochran objected to the deduction made against him for $1 dues, he was shown the Local 355 authorization and dues deduction card which he had signed on either August 14 or August 15. His $1 was not returned. 8. The company president talks At some indefinite time in this period Diker and Ferdinand Fiore were in Fiore's office discussing the union situation. When Diker expressed disbelief of Fiore's state- ment that on June 19, 1961, S.I U. had withdrawn its petition regarding the Fiore employees, Ferdinand Fiore went to the company files, pulled out the withdrawal notice from the Board, showed it to Diker, and said: "This is when we went ahead, this opened the door for us to bring in the other union. We would have never done it unless we did not get this notification from the Labor Board." 12 9. Further enforcement of the agreement The contracts' "job-security" provision appeared when Respondent Company re- ceived the following letter from Local 355 dated September 18, 1961, over the signa- ture of Henry Stert: Pursuant to the union security provision of our agreement, the following employees are not in good standing: Charles Diker Louis Gyulai Harry Deisley Frank Polisino [sic] Unless this matter is corrected within ten (10) business days, you are directed to discharge said employees. All four employees wrote identical letters to Respondent Company enclosing money orders for such dues to Local 355 in which they said they were paying under protest. They received Local 355 cards containing both the authorization and dues deductions from Frank Sforza who had been appointed shop steward by Stert. The employees signed these Local 355 cards before a notary but wrote on the face thereof the words "under protest." This proved unsatisfactory to Local 355 so that Sforza told the men that they could not write "under protest" on the cards but would be permitted to attach a letter to that effect to the signed cards. The employees then executed Local 355 cards with attached protest letters but without the offending words upon the authorization cards. 10. The affidavits On September 7, 1961, S.T.U filed its charge alleging Respondent's violations of Section 8(a)(1), (2), and (3) of the Act. On or about September 16, 1961, L. F. No. 2, the bookkeeper, went to the homes of employees Rippstein. Eannucci, and Cochran where he requested them to execute prepared affidavits to the effect that they had executed Local 355 authorization cards "voluntarily," or, as L. F. No. 2 explained to Cochran, that he "had not been hit over the head" to force him to execute the authorization card. Each of the men refused to sign. 12 There is no dental of this statement in the record FIORE BROTHERS OIL CO., INC. 205 On October 25, 1961, Cochran, Eannucci, and Rippstein were asked by Respond- ent to sign prepared affidavits reading as follows: -------------------- being duly sworn, deposes and says: I am employed by Fiore Brothers, Inc. and make this affidavit of my own free will and without any compulsion whatsoever. When I signed a union bargaining representation card for Amalgamated Local Union 355, 1 did so of my own free will and without any interference, restraint or coercion by anyone. When the Seafarers' Union originally withdrew its election petition, I was under the impression that they were no longer interested in representing the employees of my employer. I joined Amalgamated Local Union 355 because I desired them to represent me for the purposes of collective bargaining. This was done wholly of my own accord. Each of these employees executed such an affidavit before Aaron Siegler as a notary public on October 25, 1961. On November 15, 1961, Diker, Deisley, Gyulai, and Paliseno were called into the Respondent Company's office where they were requested to sign an affidavit reading as follows: I have seen the Labor Board complaint in Case No. 2-CA-8146 and the following statement by me is true. Mr. Aaron Siegler who is mentioned in the complaint never spoke to me for or against the Seafarers' Union, Local 355, or any other union. He never talked to me about any union matters, and any statements in the complaint about Mr. Siegler are not true. Neither Mr. Siegler nor Mr. Tony Bartholdi ever offered, promised and granted to the employees wage increases, vacations, and other improvements in their working conditions to become or remain members of Local 355. Mr. Siegler never urged and solicited Fiore employees to sign cards desig- nating Local 355 as their representative for collective bargaining purposes. He never permitted Local 355 to conduct union business during working hours among the employees and to solicit membership among the employees. Concerning Tony Bartholdi, at all times he was nothing more than a fellow employee. He never enjoyed any greater privileges than other employees. He never was a supervisor or part of management, and I never considered him part of management. He never had the right to hire or fire, or specifically to make recommendations about hiring or firing. Whenever he and I talked about any matters, I considered I was talking to a fellow employee, and that Tony Bartholdi was not speaking for my employer, Fiore Brothers, Inc. Each of the above-named employees executed such affidavit before either Louis Fiore or Aaron Siegler as notaries public. On this last occasion Ferdinand Fiore did tell the employees that they did not have to execute these statements. B. Conclusions 1. Respondent's theory In oral argument and again in its brief, Respondent Company has relied heavily on the technical aspects of the law involved here, whereas General Counsel, on the other hand, has dealt much more closely with the factual in the remarkably able briefs they have filed herein. For instance Respondent Company argued that the only real point at issue herein was the allegation of a "coerced majority" in favor of Local 355 on August 14 when the contract was executed. Respondent's theory of the case is simplicity itself: (1) As of August 14, Local 355 was the voluntary choice of the majority of Respondent Company's employees in the appropriate unit. (2) Based upon this majority representation Respondent Company recognized Respondent Local 355 and entered into a collective-bargaining agreement with it on August 14. (3) Therefore, neither Respondent committed any unfair labor practice. In this Respondent Company oversimplifies the case. The complaint also con- tains an allegation of illegal company assistance to Respondent Union. If Respond- ent Company did illegally assist Local 355, then the question of majority, coerced or otherwise, becomes academic and immaterial to the decision in this case. The real question at issue here actually is whether Respondent Union was illegally assisted by Respondent Company. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further Respondent Company assumes that the crucial date for the proof of majority is August 14, 1961, probably because that is the date appearing on the contract executed by the parties. August 14, of course, is the date on which this contract was negotiated and executed according to the testimony of Credit Manager Siegler of Respondent Company. But Siegler's testimony in this regard carried its own death knell because he testified that at 11 a.m. on August 14, as the negoti- ations allegedly commenced, he "saw" a Local 355 authorization card signed by employee Cochran, an authorization necessary to prove Local 355's majority representation justifying Respondent's prompt recognition of Local 355. But the undenied and uncontradicted testimony of Cochran proved beyond a peradventure of a doubt that he executed this card on the afternoon of either August 14 or August 15 about 4 p.m., a time subsequent to the time of Respondent Company's recogni- tion of Local 355 and execution of the agreement according to Siegler's testimony. Furthermore, Respondent Company's own payroll record for that week contained the annotations: "New_rates--effective 8/17/61-union scale" and "No further deductions by employees as of 8/17/61"-despite the date of August 14, 1961, appearing on the contract and despite the fact that the checks issued that week to hourly paid employees reflected the 25-cent per hour' increase from August 14. Furthermore the execution of this contract was first announced to the employees at the end of the workday on August 17, 24 hours after the employees themselves had demonstrated at the meeting in Sforza's garage that the majority of them actually favored S.I.U. Consequently, in order for this contract to constitute a contract bar and keep S.I.U. out of the Fiore plant-as similar such contracts with Local 355 were to do in at least three of the companies above mentioned-this disclosure made it necessary for this contract to have been negotiated and executed prior to August 16, the date of the meeting in the Sforza garage Because of the above facts, I cannot make a finding that the contract between Respondent Company and Respond- ent Local 355 was, in fact, negotiated or executed by those parties on August 14. Respondent Company next argued that, as of August 14, Local 355 had signed authorization cards from "9 of the 13 employees" in the agreed appropriate unit and, therefore, a majority. This argument rests on the assumption that Fred Fiore, Jr., and Frank Fiore were properly included in the unit. I have already found that these two are not to be included in the appropriate unit because of their close family rela- tionship to the owners of the business, the fact that each of them performed sales duties distinct and different from the work done by the other employees in the appropriate unit, that each was a salaried employee whose salary, incidentally, was unaffected by the contract between Respondent Company and Local 355, all of which proved that neither had any real community of interest with the other em- ployees properly included within the appropriate unit. As noted heretofore, I have found that Cochran's card was not executed or in existence at the time of the recognition and bargaining and, therefore, cannot be counted in the majority as of August 14. Furthermore, the undenied evidence as to the representations made by Stert and A. B. to the effect that the employees could sign any number of union authorization cards and still be free to vote for the union of their choice in an election in inducing employees Cochran and Eannucci at least, to execute cards for Local 355 while knowing of their own intent to use those same cards to prevent the holding of just such an election amounts to willful misrepresentation invalidating those authorization cards. Such a holding would, of course, leave Local 355 far short of the claimed majority. Even without such a holding, moreover, the retention of that claim of majority for Local 355 has now become dependent upon the inclusion or exclusion of part-time employees. There are three such regular part-time employees who work for Respondent Com- pany during the busy winter season: Goode and Porzio who have worked during the winter seasons since approximately 1957 and George Diker who has done the same thing for approximately 15 years albeit probably fewer hours per week than the other two. Respondent argues that the first two, each of whom had signed a card for Local 355, should be included whereas Diker, who signed no such card, should be excluded. If any regular part-time employees are to be included in the appropriate unit, then all should be. Disregarding the question of signatures obtained through misrepresentations, Local 355 now shows 6 signed cards 18 in an appropriate unit composed of 12 employees 14 as of August 14 and, of course, no majority. The evidence, therefore, convinces me 13 Bartholdt, Eannucci, Rlppsteln, Sforza, Porzlo, and Goode. 14 Those in the footnote above plus Cochran, C. Diker, Delsley, Gyulai, Pallseno, and George Diker. FIORE BROTHERS OIL CO., INC. 207 that Local 355 was never the voluntary choice of a majority of the employees in the appropriate unit so as to be the authorized bargaining representative. Thus, Respondent's theory collapses. But that still does not prove the com- mission of any unfair labor practices. 2. Concluding findings The question of whether Respondent Company committed any unfair labor prac- tices here depends, in large measure, upon whether Anthony Bartholdi was just an ordinary hourly paid employee or was acting as Respondent Company's agent while he assisted Stert and Local 355. Respondents deny the existence of any proof of such agency. There is, of course, no direct testimony here that any of Respondent Company's officers directed A. B. to bring Local 355' into the plant and secure a majority of signed authorization cards for it. It is highly unlikely that such evidence would become available to General Counsel. The evidence does show that A. B. is the brother-in-law of the three officers and sole stockholders of Respondent Company and that, at least until August 14, he was an ordinary hourly paid driver whose work for Respondent was the same as that of the other employees in the appropriate unit. However, on the afternoon of August 14 or 15, whichever it was that Cochran was approached to sign the card for Local 355 by Stert and A. B. during working hours, A. B. was the acting super- visor of the employees in the appropriate unit having been placed in that position due to the hospitalization of Supervisor Walkerwitz. The key to this whole agency and illegal assistance problem occurred during the month of August when Ferdinand Fiore, Respondent Company's president, pulled from the file the June 19 letter from the Regional Office notifying Respondent Com- pany of the withdrawal of the S.I.U. petition for Respondent's employees and handed it to employee Charles Diker, the elected S.I.U. delegate, in order to convince Diker that S.I.U. had, in fact, withdrawn said petition and then stated: "This [the notice of withdrawal of SIU's petition] is when we [Respondent Company] went ahead, this opened the door for us to bring in the other Union [Local 355]. We would have never done it unless [if] we did not get this notification from the Labor Board." is This undenied statement by the president of Respondent Company constitutes an admission against interest. In addition the admission is corroborated by other facts in the record. When approached to join S.I U. in June, A. B. refused to have anything to do with that Union because it might try to tell his relatives how to run their business. Yet on August 12 the evidence proves that A. B. not only willingly signed an applica- tion card for Local 355 but also spent most of his working day assisting Stert and Local 355 search out and sign up Respondent's employees on authorization cards for Local 355. Regardless of whether A. B who was on duty for Respondent Company while so busily engaged assisting Stert on August 12,i6 there can be no question but that A. B. was on duty as the acting supervisor for Respondent Company on Au- gust 14 or 15 when he and Stert secured Cochran's signature to a Local 355 card during working hours. The fact, as proved by the evidence, that Respondent Company's Credit Manager Siegler arranged the rendezvous during working hours with Cochran at which A. B. and Stert were able to secure his signature to a Local 355' card proves that Respondent Company not only knew of A. B.'s activity on behalf of Local 355 during working hours but also approved and was abetting that activity.17 15 There was no denial of this testimony. 1e Respondent argues that Respondent's payroll proved that A. B. was not working on August 12 despite A B 's own undenied statement to employee Paliseno tha the, A B, was supposed to be on duty that Saturday but that business "was slow " Respondent's argu- ment is based upon the fact that A. B. was only paid for 48.6 hours' work during that week, the same approximate number of hours for which other employees, admittedly not work- ing that Saturday, were paid Therefore, argues Respondent, A. B was not working that Saturday either The payroll does not prove this contention by Respondent for there is no indication on said payroll as to the days on which any of the employees worked in order to accumulate their 48 hours. Respondent failed to introduce A. B 's daily tnnecard 17 In arranging this rendezvous it is true that Siegler used the pretext that L F No 3- not A B and Stert-wanted to see Cochran. That Siegler's use of the name L F No 3 was in fact a pretext was proved when L F. No 3 actually drove past Cochran at the actual spot of the rendezvous without bothering to stop and by the further fact that A B and Stert almost immediately thereafter drove up, stopped, and solicited Cochran with assurances to Cochran that L. F. No. 3 did not want to speak to him. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The fact that Supervisor Walkerwitz, as well as the other Fiore relatives , promptly executed application and dues deduction cards for Local 355 which were used to influence other employees to sign such cards tends also to indicate Respondent Com- pany's intent to assist Local 355. The undemed admission of Respondent Company's president , referred to above, plus the other corroborating evidence leaves me no alternative but to find , as I hereby do, that Respondent Company through Anthony Bartholdi, its agent , illegally "brought in" and rendered illegal assistance to Local 355 in violation of Section 8(a)(1) and (2) of the Act. The evidence makes it clear, and I find , that at no time material herein has Local 355 been the representative of the employees' own choosing of the majority of the employees in the appropriate unit and that Respondents well knew that any paper proof of any such claim of majority representation by Local 355 resulted from illegal support and assistance rendered to Local 355 by Respondent Company and its agents, Anthony Bartholdi and Aaron Siegler.'8 I further find that the full course of conduct by Respondent Company in assisting personally and through agents in securing signed authorization cards from its employ- ees for Local 355, in recognizing Local 355 as the majority representative for collec- tive bargaining of its employees and in entering into a collective-bargaining agreement with Local 355 although knowing full well that said Local 355 was not the representa- tive of its employees' own choosing, and thereafter in enforcing said illegal agreement with Local 355, particularly in deducting dues payments to Local 355 from its employees and in requiring four of its employees to join said Local 355 in order to retain their employment under the terms of such illegal contract, constituted inter- ference, restraint, and coercion of its employees within the meaning of Section 8(a) (1) of the Act, illegal financial and other assistance and support to a labor organization within the meaning of Section 8(a)(2) of the Act, and discrimination in regard to the hire and terms and conditions of employment intended to encourage membership in Local 355 and to discourage membership in S.I.U. in violation of Section 8 (a) (3) of the Act. I also find that by securing recognition as the collective-bargaining agent from Respondent Company without being the representative of their own choosing of the majority of the Respondent Company's employees in the appropriate unit, by there- after entering into and attempting to enforce the terms of said illegal collective- bargaining agreement with Respondent Company, Respondent Union has coerced and intimidated the employees of Respondent Company and has caused Respondent Company to discriminate against said employees in violation of Section 8(a)(3) of the Act in violation of Section 8(b)(1) (A) and (2) of the Act.19 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondent Company described in section I, above, have a close, intimate , and substantial relation to trade , traffic, and commerce among the several States . and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents . and each of them, have engaged in unfair labor practices, I will recommend that each of them cease and desist therefrom and that each take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent Company has rendered illegal financial and other assistance to Respondent Local 355 and that said Respondents , at a time when each knew that Local 355 was not the collective-bargaining representative of the employees' own choosing of the majority of Respondents ' employees, entered into , maintained, and have given effect to said illegal agreement which imposed unlawful discriminatory conditions of employment upon said employees , I will recommend that Respondent Company withdraw and withhold recognition from Local 355 unless and until Local 355 is certified by the Board and that each of said Respondents cease and desist from giving any force or effect to said illegal collective-bargaining agreement executed by and between them dated August 14, 1961, or any other such agreement between said parties affecting said employees. 18 Siegler Is included herein as an agent of Respondent Company solely because of his activity as a managerial employee of Respondent Company in arranging the rendezvous with employee Cochran for Bartholdi and Local 355 Representative Stert 19 N L R R. v. International Union, United Automobile . Aircraft, Agricultural Implement Workers Local 899 (John I. Paulding, Inc.), 297 F. 2d 272 (C.A. 1). GRANITE CITY STEEL COMPANY 209 Having further found that Respondents, and each of them, unlawfully coerced the employees of the Respondents into paying initiation fees, dues, and assessments to Local 355 through a check-off provision contained in said illegal contract in order to retain his employment, I will further recommend that said illegally exacted moneys be returned to each of said employees forthwith, each of said Respondents being jointly and severally liable for such moneys.20 Because of the variety and extent of the unfair labor practices engaged in by the Respondents, I sense an attitude of opposition to the purposes of the Act in general, and hence, deem it necessary to order that Respondents, and each of them, cease and desist from in any manner infringing upon the rights guaranteed the employees in Section 7 of the Act. Upon the basis of the above findings of the fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW ,1. United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO, and Amalgamated Union Local 355 are labor organizations within the meaning of Section 2(5) of the Act. 2. By rendering illegal financial and other assistance to Local 355 and by recogniz- ing, entering into, maintaining, and giving affect to an agreement with Local 355 which imposed unlawful discriminatory conditions of employment at a time when said Local 355 was known not to be the representative of the majority of Respondent Company's employees' own choosing, Respondent Company has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1), (2), and (3) and Section 2(6) and (7) of the Act. 3. By securing recognition and a collective-bargaining agreement containing illegal conditions of employment from Respondent Company at a time when Respondent Local 355 was known not to be the collective-bargaining representative of their own choosing of a majority of Respondent Company's employees, and by thereafter en- forcing the terms of such illegal agreement, Respondent Union has coerced and intimidated the employees and has caused Respondent Company to discriminate against employees in violation of Section 8(a)(3) of the Act in violation of Section 8(b)(1)(A) and (2) of the Act and Section 2(6) and (7) thereof. 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.] 20 See Teamsters and Allied Workers, Hawaii Local 996, et at. ( Twentieth Century-Fox Film Corporation), 134 NLRB 1556. Granite City Steel Company and International Union of Operat- ing Engineers, Local Union No. 148, AFL-CIO, Petitioner. Case No. 14-RC-4089. May 21, 1962 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Thomas W. Seeler, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Leedom, Fanning, and Brown]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of llie Act. 137 NLRB No. 24. 649856-63-vol. 137-15