Salmirs Oil Co.

SALMIRS OIL COMPANY 25 3. On May 17, 1961, the Union was, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining. 4. By refusing to bargain collectively with said Union, by discouraging member- ship in a labor organization through discriminatory discharge of employees , thereby interfering with, restraining, and coercing employees in the exercise of rights guar- anteed under the Act, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5), (3 ), and (1) and Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX B Date of receipt of Employee: reinstatement offer David Haefs------------------------------------------- July 22, 1961 John Vanden Heuvel------------------------------------ July 12, 1961 Robert L. Smith---------------------------------------- July 29, 1961 Kenneth Christensen ------------------------------------- July 26, 1961 Eugene Deeg- ------------------------------------------ July 29, 1961 Charles L. Derby--------------------------------------- July 29, 1961 William J . Godin---------------------------------------- July 18, 1961 James Haferbecker-------------------------------------- July 29, 1961 Mayford Kosmerchock ----------------------------------- July 25, 1961 Paul L . Melanson--------------------------------------- ------------ Richard Molenda--------------------------------------- July 29, 1961 Eugene Vercautern-------------------------------------- July 13, 1961 Clem Wallace------------------------------------------ July 12, 1961 Ronald Weigman--------------------------------------- July 18, 1961 Glen Wentzel------------------------------------------- ------------ Salmirs Oil Company and United Industrial Workers of North America of the Seafarers International Union of North Amer- ica, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO Amalgamated Local Union 355 (Salmirs Oil Company) and United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO. Cases Nos. 2-CA-8149 and 2-CB-3237. October 10, 1962 DECISION AND ORDER On March 22, 1962, Trial Examiner William J. Brown issued his Intermediate Report herein, finding that the Respondents engaged in unfair labor practices and recommending that they cease and desist therefrom and take affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondents and General Coun- sel filed 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 Members Rodgers and Leedom]. 139 NLRB No. 7. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 adopts the findings, conclusions,' and recom- mendations of the Trial Examiner with the following modifications and additions: We agree with the Trial Examiner's findings that the Company unlawfully assisted Local 355 to obtain its majority by introducing Local 355's representative to its employees, on the Company's time and premises, or on projects where the employees were working, thereby aiding that representative in obtaining their signatures on authorization cards. We also agree that when the Respondent Com- pany signed the agreement in issue, the Respondent Union had been designated by a coerced majority of Respondent's employees. It is also clear that additional assistance was rendered by the action of the Company in recognizing and executing a union-security agree- ment with Local 355, by maintaining that agreement in effect, by giving effect to checkoff authorizations in favor of Local 355, and by permitting Local 355 to hold a meeting and solicit members on the Company's time and premises on or about August 15, 1961. We find that the above actions of the Company violated Section 8(a) (1), (2), and (3) of the Act.' We find further that Local 355's business agent utilized the Com- pany's unlawful assistance in order to procure signatures on authori- zation cards and then obtain recognition and a union-security agree- ment, constituting a violation of Section 8(b) (1) (A) by Local 355 under the circumstances of this case.3 We also find that Local 355 violated Section 8(b) (2) by executing and giving effect to the union- security agreement. Because Local 355 has engaged in similar im- proper activities with respect to the employees of employers other than the Company here involved, we shall issue a broad order designed to protect all such employees 4 We shall also order the Respondents jointly and severally to reimburse the Company's employees for all initiation fees, dues, and other moneys unlawfully exacted from them.' 1 We find no merit in Respondents ' jurisdictional arguments, and conclude, in agreement with the Trial Examiner, that Respondent Salmirs Oil Company was engaged in commerce within the meaning of the Act , and within the Board's jurisdiction ( on the basis of the standards applicable to nonretail businesses ) because it derived a substantial amount of its gross revenue from sales which were nonretail in nature and made direct interstate purchases which exceeded $50,000 annually . Bussey-Wsllaams Tire Co., Inc., 122 NLRB 1146; Siemons Mailing Service, 122 NLRB 81. n Fiore Brothers Oil Co., Inc., 137 NLRB 191. 8 See GEM International, Inc., et al., 137 NLRB 1343, and cases cited therein. * See Fiore Brothers Oil Co., Inc., supra ; Lundy Manufacturing Corporation, 136 NLRB 1230. e F{ore Brothers Oil Co., Inc., supra. SALMIRS OIL COMPANY 27 In accordance with the policy recently adopted by the Board 6 we shall include an allowance for interest on all initiation fees, dues and other moneys unlawfully exacted from employees.' Such interest is to be computed at the rate of 6 percent per annum on the basis of separate calendar quarters with the interest to begin running as of the last day of the calendar quarter for initiation fees, dues, and other moneys ex- acted or due in that calendar quarter, until compliance with the Order is achieved. 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. Respondent Salmirs Oil Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Recognizing Respondent Amalgamated Local Union 355 as the representative of any 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, or giving said organization any other assistance or support. (b) Giving effect to the collective-bargaining agreement with Local 355, dated August 10, 1961, or to any modification, extension, renewal, or supplement thereto, provided, however, that nothing in this Deci- sion and Order shall require the Respondent Company to vary or abandon any wage, hour, seniority, or other substantive 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) Giving effect to the checkoff provisions of authorization cards executed by its employees in favor of Local 355. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted sIsis Plumbing & Heating Co., 138 NLRB 716 ; Seafarers International Union of North America, Great Lakes District, AFL-CIO, 138 NLRB 1142; J. J. Hagerty, Inc, 139 NLRB 633. 7 For the reasons stated in their dissenting opinion in Isis Plumbing & Heating Co., 138 NLRB 716, Members Rodgers and Leedom are convinced that the award of interest on such exactions, like the attachment of interest to backpay , exceeds the Board's remedial authority. While adhering to such view , for the purposes of this decision they are acced- ing to the majority Board policy of granting interest on moneys due. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or 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) Withdraw and withhold all recognition from Respondent Amalgamated Local Union 355 as the collective-bargaining repre- sentative of any of its employees for the purpose of dealing with Re- spondent Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employ- ment, unless and until the Board shall certify Local 355 as such representative. (b) Reimburse each of its present and former employees for all initiation fees, dues, and other moneys they have been required to pay Local 355 by reason of Respondent Company's enforcement of its agreement, dated August 10, 1961, with Local 355, or the checkoff authorizations executed by its employees in favor of that Union, as provided herein, being jointly and severally liable therefor with Local 355. (c) Post at its plant on Staten Island, New York, copies of the notice attached hereto marked "Appendix A." 9 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 immediately 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 place 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 attached hereto marked "Appendix B." 9 (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 Local 355 at its business offices and meeting halls in conspicuous places, including all places where notices to members are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall be returned forthwith to said Regional Director, after they have been signed by an official representative of Respondent Company, for such posting. 8 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." See footnote 8, supra. SALMIRS OIL COMPANY 29 (6) Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. Respondent Amalgamated Local Union 355, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Acting as the collective-bargaining representative of any of the employees of Respondent Salmirs Oil Company, unless and until the Board shall certify it as such representative. (b) Giving effect to the collective-bargaining agreement with the Company, dated August 10, 1961, or any modification, extension, re- newal, or supplement thereto. (c) In any other manner restraining or coercing employees or prospective employees of Respondent Company or any other employer in the exercise of their rights to self-organization, to form labor organ- izations, to join or assist United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or 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 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 Salmirs Oil Company for all initiation fees, dues, and other moneys unlawfully exacted from them, pursuant to Local 355's agreement with that Com- pany, dated August 10, 1961, or the checkoff authorizations executed by them, as provided herein, being jointly and severally liable therefor with Respondent Salmirs Oil Company. (b) Post at its business offices and meeting halls copies of the notice attached hereto marked "Appendix B." 10 Copies of said notice, to be furnished by the Regional Director for the Second region, shall, upon being duly signed by an official representative of Respondent Local 355, be posted by Respondent Local 355 immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Local 355 to insure that these notices are not altered, defaced, or covered by any other material. 10 See footnote 8, supra 30 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 said Regional Di- rector, copies of the notice attached hereto marked "Appendix A." 11 (d) Mail signed copies of the notice attached hereto marked "Ap- pendix B" to the Regional Director for the Second Region for post- ing by Respondent Salmirs Oil Company at its place of business on Staten Island, New York, in conspicuous places, including all places where notices to employees are customarily posted. Copies of said notices, to be furnished by the Regional Director for the Second Region, shall be returned forthwith to said Regional Director, after they have been signed by an official representative of Respondent Local 355, for such posting. (5) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps Respondent Local 355 has taken to comply herewith. IT Is FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges, in paragraph numbered 8 (a), a violation of Section 8(a) (1) of the Act by the Respondent Company in promising and granting various benefits to its employees to induce them to become or remain members of Respondent Local 355. " See footnote 8, supra. APPENDIX A NOTICE TO ALL EMPLOYEES AND TO ALL MEMBERS OF AMALGAMATED LOCAL UNION 355 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 withdraw and withhold all recognition from Amal- gamated Local Union 355 as collective-bargaining representative of any of our employees, unless and until so certified by the Na- tional Labor Relations Board. WE WILL NOT give effect to the collective-bargaining agreement signed with Local 355, dated August 10, 1961, or to any modifica- tion, extension, renewal, or supplement thereto, or to any checkoff in favor of Local 355. WE WILL NOT give any assistance or support to Local 355. WE WILL reimburse each of our present and former employees for all initiation fees, dues, and other moneys unlawfully exacted from them pursuant to the aforementioned agreement with Local 355 or the checkoff authorization they have executed in favor of Local 355, with interest thereon at 6 percent, being jointly and severally liable therefor with Local 355. SALMIRS OIL COMPANY 31 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 Interna- tional Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities, except to the extent that such right 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. All our employees are free to become, remain, or refrain from be- coming or remaining members in the above-named or in any other labor organizations. SALMIRS OIL 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, 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 LOCAL UNION 355 AND TO THE EMPLOYEES OF SALMIRS OIL COMPANY 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 act as the collective-bargaining representative of any of the employees of Salmirs Oil Company unless and until we have been certified by the Board as such representative. WE WILL NOT give effect to our collective-bargaining agreement with Salmirs Oil Company, dated August 10, 1961, or any modi- fication, extension, renewal, or supplement thereto. WE WILL NOT in any other manner restrain or coerce employees of Salmirs Oil Company or any other employer in the exercise of their rights to self-organization, to form labor organizations, 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to join or assist United Industrial Workers of North America of the Seafares International Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted ac- tivities, except to the extent that such right 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. WE WILL reimburse each of the present and former employees of Salmirs Oil Company for all initiation fees, dues, and other moneys unlawfully exacted from them pursuant to the aforemen- tioned agreement with that Company or the checkoff authoriza- tions they have executed in our favor, with interest thereon at 6 percent, being jointly and severally liable therefor with Salmirs Oil Company. AMALGAMATED LOCAL UNION 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 Fifth Avenue, New York, New York, Telephone Number, Plaza 1-5500, if they have any questions concerning this notice or com- pliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The charges herein were filed under Section 10(b) of the National Labor Relations Act on September 7, 1961, by the above-indicated Charging Party, hereinafter some- times referred to as the Seafarers. Thereafter, on October 20, 1961, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region, issued the complaint herein alleging the commission of unfair labor practices on the part of the above-indicated Respondent Employer, hereinafter some- times called Salmirs, and the above-indicated Respondent labor organization, herein- after sometimes called Local 355.1 The duly filed answers of both Respondents denied the commission of the unfair labor practices alleged. The hearing herein was held at New York, New York, January 8, 10, and 11, 1962, before Trial Examiner William J. Brown. All parties appeared and partici- pated in the hearing and were accorded full opportunity to present evidence and argument on the issues. At the close of the evidence the Respondent Employer and the General Counsel argued orally on the record. Subsequent to the hearing briefs have been received from the Respondent Employer and the General Counsel; they have been fully considered. Upon the entire record in this case, and from my observation of the witnesses, I make the following: 1 The correct name of the Respondent labor organization was explained by its attorney at the hearing. SALMIRS OIL COMPANY 33 FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT EMPLOYER It appears from the pleadings and evidence herein that the Respondent Employer, a New York corporation having its principal office and place of business in Totten- ville, Staten Island, New York, is engaged in the sale and distribution of fuel oil and heating equipment and related products and the installation and servicing of heating equipment. During the year preceding the issuance of the complaint, which is repre- sentative of annual operations generally, it derived gross revenue from its operations in the amount of $223,585. Respondent contends that it is not engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that its selling operations are entirely in the nature of retail sales. It asserts that under the Board's promulgated jurisdictional standards the dollar volume of its sales are such that the Board should decline jurisdiction. The General Counsel on the other hand asserts that a substantial amount of Respondent's gross revenue, well in excess of any de minimis figure, is derived from sales which are not to be considered retail in character, that the retail jurisdictional limitation is not applicable, and that legal and discretionary jurisdiction attaches by virtue of the volume of purchases in interstate commerce. With respect to the direct interstate purchases it appears from a stipulation of the parties that for the year ending June 30, 1961, Salmirs purchased directly from points outside New York State goods in the amount of $142,000, including approxi- mately $5,000 purchased through Salmir's wholly owned subsidiary, Salmirs Petro- leum Corporation. Of Respondent's gross sales of $223,585 it appears from the evidence herein that sales to single-family and two-family homeowners where the owners live in the houses in question amounted to $148,446; General Counsel concedes that these sales are retail in character. The remaining sales amounting to $75,139 are in dispute as to their character. In oral argument counsel for the Respondent Salmirs conceded that if a part of Respondent's sales, more than such amount as would be de minimis, may be con- sidered nonretail then the Board's discretionary standards applicable to nonretail businesses apply. At the same time the Respondent asserts that, on the authority of the Second Circuit's decision in N.L.R.B. v. Reliance Fuel Oil Corp., 297 F. 2d 94, and the First Circuit's decision in N.L.R.B. V. Michael Benevento, et al., d/b/a Benevento Sand & Gravel Company, 297 F. 2d 873, the law requires a showing of interstate movement which is not satisfied merely by a showing of a dollar volume of purchases or sales. It appears quite plainly however that legal jurisdiction attaches in the instant case by virtue of the substantial volume of direct interstate purchases and the only substantial question is as to whether the $75,000 sales set forth in General Counsel's Exhibit No. 6, stipulated into evidence and concededly correctly extracted from Respondent's own ledgers, are to be regarded as nonretail sales so as to make inapplicable here the Board's established principle that jurisdiction will be asserted over a retail enterprise only where its annual dollar volume of sales exceeds $500,000. The General Counsel has cited Bussey-Williams Tire Co., Inc., 122 NLRB 1146, as authority for the proposition that the Board has determined that the criteria applicable in distinguishing between retail and wholesale operations are those alluded to by the Supreme Court in Roland Electric Company v. Walling, 326 U.S. 657, 674- 675, and that those criteria require the conclusion in the instant case that the sales recapitulated in General Counsel's Exhibit No. 6 are not retail in character. I agree with the General Counsel's position that the sales set forth in General Counsel's Ex- hibit No 6 are not of a type designed to satisfy the personal wants of the purchaser or those of his family or friends but rather constitute sales to trading establishments and to industrial and commercial users. They are nonretail within the scope of the Bussey-Williams doctrine for they clearly are shown to be sales to property owners for heating property devoted to industrial, institutional, or commercial uses. Respondent's reliance on N.L.R.B. V. Reliance Fuel Oil Corp., 297 F. 2d 94 (C.A. 2), rehearing denied 49 LRRM 2311, and N.L.R.B. v. Michael Benevento, et al., d/b/a Benevento Sand & Gravel Company, 297 F. 2d 873 (C.A. 1), is misplaced. In Reliance the court refused enforcement of the Board's order and remanded the case for further evidence as to the actual or potential effect on commerce of the Employer's unfair labor practices. In so doing the court pointed out that the record was completely barren as to the dollar amount of precedent interstate movement of the fuel oil sold by Reliance to homeowners. On petition for rehearing the court again indicated that its refusal of enforcement was based on its holding that the 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board's jurisdiction cannot be made to rest on a mere showing that the Employer purchased an indeterminate amount of goods which, at one time, had moved in interstate commerce. Benevento, too is distinguishable. There the employer made neither interstate purchases nor interstate sales and the court expressly pointed out that Benevento's case was one where, so far as the record indicated, the product involved never left the State of its origin, but was created and consumed within the Commonwealth of Massachusetts. The record in the instant case clearly shows annual purchases by Salmirs of $137,000 of goods coming directly from points outside New York. Additional evidence of an impact on interstate commerce is unnecessary. Southern Dolomite, 129 NLRB 1342. I find that Salmirs' operations affect commerce within the meaning of the Act and that assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATIONS INVOLVED In accordance with the pleadings, as amended at the hearing, and the evidence, I find that 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 Local Union 355 are labor organizations within the meaning of 2(s) of the Act. III. THE UNFAIR LABOR PRACTICES A. The introduction to the issues As indicated above Salmirs is engaged in the purchase and resale of fuel oil and related products. Its operations are conducted in the Staten Island area. It is a closely held family-type corporation, stockownership being divided between Jacob Salmirs, Respondent's president and his daughter, Jeanette, the treasurer of the cor- poration who occasionally works in the office. Leo Glazer, husband of Jeanette, is vice president and secretary of the Company and works full time on its behalf in the office and regularly on installation and repair jobs. Respondent denies that he is a supervisor within the meaning of the Act and his status in this regard is crucial to.the issues herein. During the first 2 weeks of August 1961, within which period the unfair practices allegedly were committed, Salmirs employed three full-time servicemen: Patrizio, Merrill, and Siersema, and three regular full-time drivers: Maggio, Gilmore, and Reilly. Also in full-time employment during the period in question as a helper on the trucks was Walter Kaner, employed for the summertime only and for also other periods of vacation from college.2 During the period in question Respondent also employed, for a period of 1 or 2 days, employees Bausch and Armitage who appear to be regularly employed by Salmirs during the wintertime but who work only occasionally during the summer months. Sometime in June 1961 the Seafarers commenced organizational efforts among Salmirs' employees and filed a petition June 9, 1961. This petition was withdrawn on June 19 following Salmirs' refusal to consent to an election. On August 10, 1961, Salmirs execpted an agreement with Local Union 355. The agreement recognized Local 355 as the bargaining representative in a unit consisting of drivers, servicemen, yardmen, helpers, mechanics, and maintenance employees excluding office clericals. It runs for a 2-year term and contains union-security and checkoff clauses. The General Counsel contends and offered evidence tending to establish that the agree- ment of August 10 was executed at a time when Local Union 355 did not represent an uncoerced majority of Salmirs' employees. The main issues in the case, the jurisdictional problem being resolved as above indicated, related to the status of Leo Glazer and, if it be established that he is a supervisor, whether he on behalf of Salmirs induced employees to sign cards desig- nating Local 355 as the bargaining agent and authorizing the checkoff of union dues in favor of that organization. B. The supervisory status of Leo Glazer Leo Glazer is the vice president of Salmirs and in full charge of its affairs in the absence of President Jacob Salmirs. He receives a salary of $150 per week and received a bonus of $4,000 for Salmirs' fiscal year ending February 28, 1961. While s gager is a grandson of Salmirs' president. SALMIRS OIL COMPANY 35 he occasionally performs manual work in connection with installations and repairs (a function incidentally, also performed occasionally by President Salmirs) his principal function is plainly shown to be the direction of the working force of drivers and servicemen. Evidence of the plenary character of his authority in this regard in his assignment of employees in the slack summer season to perform repair and construction jobs about the residences of the Respondent's officers. The evi- dence also plainly indicates that he informed a group of employees that anyone of them failing to turn off a hose at the outlet rather than the nozzle would be fired by him on the spot. It is clearly shown that Leo Glazer possesses and exercises authority sufficient to constitute him a supervisor under Section 2(11) of the Act. This authority requires the use of independent judgment and is far from being merely clerical or routine, as abundantly appears from the evidence herein as to Glazer's laying out and directing difficult installations and his issuing instructions on the basis of his superior knowledge of the equipment and the customers. The evidence requires the con- clusion that Glazer is a supervisor under the Act. See Ohio Power Company v. N.L.R.B., 176 F. 2d 385 (C.A. 6), cert. denied 338 U.S. 899; The Eavey Company, 115 NLRB 1779, 1781, footnote 4. C. The employer unfair labor practices 1. Promises and grants of benefits The complaint alleges, in paragraph numbered 8(a), promises and grants of wage increases, vacations, and other benefits and improvements in working condi- tions on the part of Salmirs acting through Leo Glazer and others, for the purpose of inducing employees to become and remain members of Respondent Union. While, as found below, Glazer is clearly shown to have been instrumental in obtain- ing signatures on authorization cards for Local Union 355, a preponderance of the evidence does not establish that he independently promised and granted benefits of the type referred to, to induce employees to become members of local 355. It is accordingly recommended that insofar as unfair labor practices are alleged on the part of Salmirs within the scope of 8(a) of the complaint, those allegations be dismissed. 2. Recognition of Local 355 The remaining allegations of sections 8 and 9 of the complaint concern charges that Glazer urged and solicited employees to sign authorization and checkoff 3 cards in favor of Respondent Union, Local 355, that Respondent improperly executed the agreement of August 10 recognizing Local Union 355 and thereafter deducted from employees' pay dues, initiation fees, and other charges 4 in favor of Respondent Union, and permitted Respondent Local to conduct union business on Salmirs' premises during working hours. The fundamental issue in the case is the determination of the facts as to the events of August 8, 1961. Maggio, a Salmirs' driver, testified that on the morning of August 8, on his reporting for work, Glazer told him that he was sending Maggio, Patrizio, and Kaner to a service job on Grand Avenue and that he was going to bring a union agent down there to meet Maggio and the others, that if a union had to come in, this union was the one that Salmirs thought right.5 According to Maggio, about 11 o'clock Glazer came to the Grand Avenue job and this time identified the union he had in mind-Local Union 355-and stated that it had not had a strike in 8 years and that if there were any difficulty Maggio and Patrizio should not have any worry because Salmirs would subcontract cleaning work to them. In the course of this talk, according to Maggio, he, Patrizio, and Kaner informed Glazer that they would sign cards in Local 355. Thereafter, sometime after lunch, according to Maggio, Glazer returned to the Grand Avenue job, this time accompanied by Stirt, who was introduced as the representative of Local 355 and who repeated the items 3 The authorization cards in question contain checkoff authorization clauses The first deduction from pay occurred on August 22, 1961. 4 There- is no evidence of the deduction of any amounts other than Local 355 dues. 5 The evidence reveals, although there is some inexactness as to the time involved, that Glazer had previously discussed the Seafarers and unions generally with Maggio. 672010-63-vol. 139-4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously referred to by Glazer as recommending his union. At that time, Glazer being present, Maggio, Patrizio, and Kaner signed cards in Local 355. Glazer's version is that on ,the morning of August 8 he talked to Patrizio, Maggio, and Kaner in a group and directed them to the Grand Avenue job. He denied re- ferring to a union at that time and testified that he was at the Grand Avenue job only once on that date, shortly after 1 o'clock, that he arrived alone and did not see Stirt on the Grand Avenue premises and, in fact, met Stirt for the first time 2 days later on August 10 when Stirt came to Salmirs' office. The parties recognize, and I agree, that there is here a basic issue of credibility. In resolving this issue I cannot ignore testimony that Maggio came to the stand with a background of general hostility to labor organizations arising out of an unfortunate experience in his prior employment as a bricklayer which engendered his refusal to sign with the Seafarers at the time their campaign was active. He must be appraised as a witness who is at least not partisan in favor of the Charging Seafarers. Respondent has attempted to detract from the credibility of Maggio pointing to some discrepancies in his testimony, some instances of failure to include matters testi- fied to at the hearing in his pretrial written statement and some alleged improbabili- ties. Thus Respondent has pointed out that on his direct examination Maggio referred to the fact that he always got his paycheck from Glazer whereas on his cross- examination he testified that he was always paid weekly in cash. This minor dis- crepancy may be explained by the fact that the initial inquiry in this matter was not as to the nature or form of the payment but as to the source of his payment for time spent working on residences of Respondent's officials as distinguished from driving the truck. There is also a discrepancy, which appears to be minor in char- acter, in Maggio's testimony relating to a conversation in the garage lot with Glazer in the course of which Glazer inquired as to Maggio's interest in the union campaign and Maggio replied that he would be the last one to sign for a union. This con- versation, according to Maggio's direct examination, occurred in July. But the Re- spondent points out that the Seafarers had withdrawn their petition June 19 and there was no union activity throughout the entire month of July. Union campaigns do not terminate, however, with such definiteness of timing as to make this of significance. Respondent also points to a discrepancy between Maggio's testimony on direct examination and on cross-examination as to whether on ,the morning of August 8, Glazer's first conversation with Maggio was with Maggio alone or whether Maggio was with his fellow workers, Patrizio and Kaner. There is alleged to be a similar discrepancy between Maggio's testimony that at the Grand Avenue job on August 8 Stirt first appeared on the jobsite in the company of Glazer and his pretrial statement which refers to the fact that "a man (Stirt) did come around." I cannot find in these two occasions substantial ground for discrediting Maggio .6 There is also an alleged discrepancy in Maggio's testimony that on the morning of August 8, Glazer told him that he and Stirt were going to see Bausch and Armitage to bearing the date of August 4. There is, however, no necessary inconsistency here "sign them up too." This is allegedly inconsistent with Bausch's card in evidence and inasmuch as the cards could well have previously been left with Bausch and Armitage and signed and held for the return of Stirt to pick them up. General Counsel has similarly alluded to a number of items which he contends "seriously cast doubt as to the credibility" of Glazer's testimony. I do not find in these items referred to by General Counsel necessary reason for discrediting Glazer. I resolve the credibility issue on the basis of my appraisal of the two on the stand in the course of their testifying. In so doing, I am, however, taking into account the inherent probability of bias which I find absent in the case of Maggio in view of his established lack of sympathy for unions or the Seafarers particularly whereas I find that Glazer as an officer of the Company and by his own predilection has a natural, innate interest in the outcome. Also in appraising Glazer's testimony, essentially consisting of a denial of the facts as testified to by Maggio, I am not unmindful of the fact that neither Glazer nor Salmirs has come forward with an explanation as to the circumstances surround- ing the execution of the contract with Local Union 355, on August 10, only 2 days after the events testified to by Maggio. This is not a matter of putting the burden 0I find that no significance attaches to the fact that Maggio was scheduled to be shop steward of Local 355 since that appears to have been the dubious distinction accorded the junior employee. SALMIRS OIL COMPANY 37 of proof on Respondent; but the testimony of Maggio clearly sufficed to transfer to Respondent the burden of going forward with the evidence as to the issues relating to the events of August 8, 1961. Balancing all considerations and relying on my ob- servations of the witnesses and the circumstantial probabilities of truth inherent in their accounts I resolve the credibility issue in favor of the version given by Maggio. It thus clearly appears tome that the cards designating Local Union 355 and signed by Maggio, Patrizio, and Kaner on August 8 as well as those signed by Bausch and Armitage, the former on August 4 and the latter on August 8, were procured with the direct intervention of Glazer.? Furthermore, by August 10, the date of execution of the contract, Gilmore and Merrill had not signed authorization cards as clearly appears from the facts undisputed in the evidence, that they signed on August 14. There was some dispute in the testimony of Siersema as to the date on which his card was executed but in either view of the testimony it must be resolved against the con- tentions of Respondent, for it either was signed on August 8 pursuant to Glazer's intro- duction of Stirt and was a coerced authorization on August 10 or was signed sub- sequently on August 14, which date it bears, and thus could not be counted as a valid designation on August 10. In short, the preponderance of the evidence indicates that when, on August 10, 1961, Salmirs signed its agreement with Local Union 355, that labor organization had been designated by a coerced majority of employees of Salmirs. In the circumstances the act of executing an agreement for exclusive recognition and establishing the terms and conditions of employment amounted to an unfair labor practice within the scope of Section 8(a)(2) on the part of Salmirs. Inasmuch as the agreement required mem- bership in Local Union 355 as a condition of employment it constituted discrimina- tion within the scope of Section 8(a)(3) of the Act. 3. Meeting on company premises The complaint alleges that Salmirs engaged in an unfair labor practice within the scope of Section 8(a)(1) and (2) of the Act by permitting representatives of Re- spondent Local Union 355 to conduct union business on Salmirs' premises during working hours. The evidence is undisputed that about August 15 Respondent Union's business representative, Henry Stirt, conducted a union meeting on Salmis' premises during working hours and with the knowledge of Leo Glazer. Although at that time Respondent Union was recognized by Salmirs pursuant to the terms of the August 10 agreement, that factor is immaterial in view of the circumstances outlined above surrounding the recognition on that date. In the course of this meeting on Re- spondent's premises, Stirt took the occasion to sign up additional employees. The uncontradicted testimony of serviceman Merrill is to the effect that when he arrived at the shop on .the morning of Tuesday, August 15, he was told by truckdriver Gilmore that Stirt would be in soon to sign him up. Shortly thereafter Stirt did arrive and conducted a meeting in the course of which Merrill and Reilly signed the authoriza- tion cards for Local 355. Reilly generally confirmed Stirt's presence and the con- duct of union business on the morning of August 15 and the fact that he signed the card on that date. Under the circumstances surrounding the assistance and recognition given the favored Respondent Union, Salmirs' actions in permitting the conduct of union business and solicitation of employees on its permises amounted to unfair labor practices within the scope of Section 8(a)(1) and (2). D. The union unfair labor practices Respondent Local Union 355 was represented at the hearing by its attorney, Eltman, and by its business representative, Henry Stirt. It offered no evidence at the hearing and has not filed a brief. The role of Local Union 355 appears to have been a relatively passive one. On the record herein it does not appear to have engaged in any organizational efforts among employees of Respondent other than through the presence of Business Representative Stirt at the Grand Avenue job (to which he was either conducted or directed by Glazer) and at another job where Stirt, accompanied by Glazer, signed up Gilmore. The only instance in the record wherein Stirt appears to have functioned independently is in the course of the discussion on the morning of August 15 at Salmirs' premises when he informed Reilly that he 7 This solicitation by Glazer requires a finding that the allegations of paragraph num- bered 8(b) of the complaint have been fully established 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should not get too involved in questions of majority but rather join the Union as a friend. At that time Stirt also induced Merrill to sign an authorization card. It is, however, impossible to appraise the Union as completely innocent of wrong- doing; in fact the record indicates connivance with Salmirs to foist the agreement of August 10 upon the employees here involved when they had not designated Local 355 of their own free chosing. Local 355 is not the mere innocent beneficiary of Salmirs' illegal acts but is particeps criminis, even though it does not appear to have originated the scheme for recognition. The question remains as to whether the combination of Local 355's availability for recognition and its cooperation with Glazer's acts amount to unfair labor practices . In view of the plain provisions of the Act, making it an unfair labor practice for a labor organization "to restrain or coerce employees in the exercise of the rights guaranteed in Section 7" and "to cause or attempt to cause an employer to discriminate against an employee... .," I find and conclude that by cooperating with Salmirs in forcing recognition and union- security arrangements upon the employees , Respondent Union engaged in unfair labor practices within the scope of Section 8(b)(1) and (2). See New York State Em- ployers Association, Inc. and Red Star Express Lines of Auburn, Inc., 93 NLRB 127; Bayly Manufacturing Company, 103 NLRB 1337. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in con- nection with the operations of Respondent Employer 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in certain of the unfair labor practices alleged in the complaint , I shall recommend that they be required to cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Since the agreement of August 10, 1961, is found to have been entered into and subsequently maintained under conditions and at a time when Respondent Union did not represent the free choice of a majority of employees in the unit covered thereby, I shall recommend that the Respondents be required to set aside the agreement and that Respondent Employer be required to withdraw recognition from the Respondent Union and continue to withhold recognition unless and until such time as Respondent Union is certified in accordance with the terms of the Act. Inasmuch as the evidence plainly indicates that the union-security and checkoff provisions and the authorization cards executed in accordance with the terms of the agreement are inseparable parts of the unlawful course of conduct of the Respond- ents, it will be ordered that Respondent Employer and Union jointly and severally reimburse employees for amounts deducted pursuant to these authorizations. Finally, it will be ordered that appropriate notices be posted. Upon the basis of the foregoing findings of facts, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent Employer is engaged in commerce within the meaning of Sec- tion 2 (6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act, 3. By soliciting employee authorization for Respondent Union, by according ex- clusive representation rights to Respondent Union at a time when it did not represent an uncoerced majority of employees and by providing for union-security pro- visions in such agreement, Respondent Employer has engaged in unfair labor prac- tices within the meaning of Section 8(a) (1), (2), and (3 ) of the Act nand Respondent labor organization has engaged in unfair labor practices within the scope of Section 8(b)(1)(A) and (2 ) of-the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.]