United Sugar Workers Union, Local 9, Etc.

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nor their nonowner-drivers are employees of the Employer in this proceeding, it would follow, as the Regional Director concluded, that the petition should be dismissed. MEMBER JENBINS took no part in the consideration of the above Decision on Review and Direction of Election. United Sugar Workers Union, Local 9, affiliated with ' Inter- national Longshoremen's Association , AFL-CIO [American Sugar Company] and Melvin Lawrence United Sugar Workers Union, Local 9, affiliated with Inter- national Longshoremen's Association, AFL-CIO and Brother- hood of Sugar Workers. Case8 Nos. 2-CB-3700 and 2-CB- 3700-2. February .27, 1964 DECISION AND ORDER On November 6, 1963, Trial Examiner Eugene F. Frey issued his Trial Examiner's Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain un- fair labor practices, and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed excep- tions to the Trial Examiner's Decision and a supporting brief. 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]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions ,a and rec- ommendations of the Trial Examiner as modified below. 1 We agree with the Trial Examiner that the evidence amply supports a finding that Randazzo had knowledge of Lawrence's activities on behalf of the Brotherhood. ' while we agree with the Trial Examiner that the Respondent's President Randazzo threatened employees with physical violence because of their opposition to Respondent, in finding that such threats were made, we rely only on the words used and not on the Trial Examiner's conclusion that the "quiet fashion" in which the statements were made "was calculated to make them more ominous in their implications." 146 NLRB No. 14. UNITED SUGAR WORKERS UNION, LOCAL 9, ETC . 155 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' 8 The Recommended Order is hereby amended by substituting for the first paragraph therein, the following paragraph: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, United Sugar Workers Union, Local 9, affiliated with International Longshoremen 's Association, AFL-CIO, its officers, agents, and representatives, shall: The Appendix attached to the Trial Examiner 's Decision is hereby amended by adding the following immediately below the signature line at the bottom of the notice: NOTE.-We will notify the above -named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The issues in this case are whether the 'above Respondent ( 1) made threats of bodily and other 'injury to employees of American Sugar Company (herein called the Employer) to induce them to renounce adherence , assistance and support to Brotherhood of Sugar Workers (herein called Brotherhood ),' and (2 ) demanded that the Company discharge employees Vincent Balbi and Melvin Lawrence, and caused the Company to discharge Lawrence, for alleged delinquency in payment of dues to Sugar Workers Council (herein called the Council ), when said employees were not in fact delinquent in dues, and because they had joined and assisted the Brotherhood , all in violation of Section 8(b)(1)(A ) and 8(b)(2 ) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issues arise on a consolidated complaint issued June 25, 1963, by the General Counsel of the Board , through the Board's Regional Director for the Second Region,2 and answer of Respondent which admitted jurisdiction ' but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held on the issues before Trial Examiner Eugene F. Fry at New York, New York, on August 20, 21, 23 , and 27, 1963 , in which all parties participated fully through counsel or other representative . General Coun- sel and Respondent presented oral argument at the close of the testimony, and have also filed briefs with the Trial Examiner, which have been carefully considered. Upon the basis of the entire record herein, and from my observation of witnesses on the stand, I make the following: FjwDINOs OF FACT 1. THE BUSINESS OF THE EMPLOYER The Company is a New Jersey corporation , with its principal office and place of business in New York, New York, and a plant located in Brooklyn , New York, where it engages in the refining , sale, and distribution of sugar and related products. In the past year the Company in the course of its business has refined , sold, and distributed from its Brooklyn plant products valued in excess of $50 ,000 which were shipped directly from said plant to points outside the State of New York. I find that the Company is and has been engaged in commerce within the mean- ing of Section 2(6) and (7 ) of the Act. ' The caption and names of Respondent and the Company appear as amended at the hearing. 2 The consolidated complaint issued after Board investigation of charges filed by Lawrence on April IT, 1963, and the Brotherhood on May 8, 1963. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS INVOLVED The Respondent, Council, and Brotherhood are labor organizations within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Background During the times pertinent herein , the Company was operating under a collective- bargaining agreement executed by Respondent and countersigned by an officer of the Council 3 and effective to October 1, 1963. In the contract Respondent and the Council were designated as the Union. The contract had an apparent legitimate union-security clause requiring all existing and future employees covered by the agreement to be or become members of the Union within the requisite 30 days and "thereafter maintain their membership in the Union in good standing," and provided that "upon written advice from the Union that an employee has failed to comply with the provisions of this paragraph , the Company shall discharge such employee." The clause also provided for "voluntary wage assignments " by employees which authorized the Company to check off and pay to the Union directly such weekly or monthly dues as the Union might establish. The "assignment" listed the names of Respondent and Council at the top, and authorized the Company to deduct weekly dues from the weekly paycheck and remit same monthly to the Council, and deduct the monthly membership dues from the worker's first pay each month and remit same to the "Financial Secretary of the Union." Since October 1961, members of Respondent at the Brooklyn plant have been paying to the Council dues of 2 cents an hour for a 40-hour week, or a maximum of 80 cents a week . Most employees executed the "assignment," on the basis of which the Company deducted the 80-cent dues weekly and sent the total at the end of each month'to the Council with a formal list of all employees showing the paid work-hours of each in the prior month, and the,amounts deducted for each on voluntary checkoff. In the cases of a few em- ployees, including Lawrence, who never authorized the checkoff, the Council since 1961 has billed each employee monthly by a letter stating the amount of dues owed for a specified number of hours in a specified work period, and giving the employee 10 days from the date of the letter in which to pay; such employees mail checks or money orders directly to the Council, or pay in person at its office. The dues, hours, and work period in these billings are computed by the Council from the monthly list of work-hours received from the Company as noted above. B. Formation of Brotherhood; Respondent's reaction So far as the record shows, both Lawrence and Balbi have always been members of Respondent in good standing in respect of payment of their dues to it. However, Lawrence had been openly critical since 1961 of the requirement of payment of dues to the Council, paying those dues nearly always by money order on which he wrote "paid under protest." In addition, he had filed ' charges with the Board against Joseph Randazzo, president of Respondent in 1960, and had since been openly critical of the management of Respondent by that official and other officers. In January 1963 , Lawrence and Balbi joined , with a group of dissidents in Respondent, led by one Frank Swirski, in an effort to-draw' company employees away from Respondent into a labor organization under different leadership , to represent em- ployees in the Brooklyn plant. The dissidents formally organized the Brotherhood at a meeting on March 16, 1963, at which a constitution was adopted and the follow- ing employees were elected officers: Frank Swirski as president,4 James Romano s The Sugar Workers Council was an organization composed of delegates from each of three locals of ILA which represented workers In various plants of the Company. Joseph Randazzo, president of Respondent, was vice president of the Council In April 1963, and before, and the delegate of Respondent to the Council. The Council's overall function was to coordinate efforts of the various ILA locals in organizing workers in plants of the Company and in' companywide collective bargaining, to operate a fund for the benefit of sugar workers laid off due to automation or technological changes, and also to lobby for local and national legislation which would benefit sugar workers as a group. • Swirski had long been an outspoken' critic of the present officers of Respondent, par- ticularly President Joseph Randazzo, and In 1961, had spearheaded an unsuccessful attempt, while he was president of Local 1888, ILA, to prevent Respondent, headed by Randazzo and then affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, from becoming bargaining agent of the Brooklyn employees. Respondent thereafter affiliated with ILA. UNITED SUGAR WORKERS UNION; LOCAL 9, ETC. 157 as vice president, Frank Dziuba as secretary-treasurer, Nicholas Kasnuch as record- ing secretary, and Kenneth Zodkowic and Melvin Lawrence as trustees. These officers thereafter openly conducted an organizational campaign among employees at the Brooklyn plant by personal distribution of the Brotherhood constitution, other literature, and authorization cards to them at the plant, and mailing literature and cards to them at their homes, and holding meetings for employees. On April 6, 1963, the Brotherhood mailed to all employees a circular listing the names of its officers and trustees, including Lawrence, reciting earlier attempts of the ILA to organize the plant and criticizing its representation of the employees after it became their bargaining agent in 1961. After signing up about 100 workers, the Brother- hood on July 5, 1963, filed a representation petition with the Board in Case No. 2-RC-12845, in which Respondent intervened. A consent election was held on August 8, 1963, which Respondent won,.being certified in due course as the statutory bargaining agent. On March 18, 1963, President Randazzo learned from one of his shop stewards and other officials of Respondent at the Brooklyn plant about the March 16 Brother- hood meeting, including the names of its officers and other workers who attended the meeting.5 That day Romano and Dziuba openly distributed copies of the Brotherhood constitution among workers at the plant, and solicited membership in the organization. On the 19th, Randazzo acted promptly and vigorously to squelch the rival movement by talking to Romano, Dziuba and Zodkowic, and. another Brotherhood adherent, Severino Roderic; separately at the plant during working time in the presence of Anthony Graffino, an ILA organizer, and the shop steward, Louis Pantano. Randazzo knew that all of these men were close friends of Swirski. Randazzo asked each of the four if he was connected with the Brotherhood. When the worker admitted he was, Randazzo asked him why. Each complained, in sub- stance, that he disliked paying dues to the Council because it was not doing anything for the workers, he disliked the way the officers of Respondent were representing the employees, because although officers were well paid, they and the stewards were not available to handle problems and grievances when wanted, and grievances were not being processed or settled promptly, but usually sent to arbitration which did not seem conclusive. Randazzo reproached Romano and Dziuba for their Brotherhood activity, telling Romano he was surprised that he would become con- nected with a "troublemaker" and "meathead" like Swirski, that Swirski was not Romano's "kind," and that Romano was a "paison" of Randazzo, and Randazzo would never hurt his "paison." 6 He asked Romano to drop out of the Brotherhood and not work with Swirski, saying that "anybody who is connected with Swirski is looking for trouble and is going to get hurt." He also said that he had a "lot of connections which are very good; before, I did not have them because in the past I had, no experience, but now I have gained quite a bit through the organization," that now he did not "have to do anything, all I have to do is pick up the phone," and that Respondent, was now stronger because of its ILA affiliation. Randazzo told Dziuba he was "nuts" for gettingi "hooked up" with Swirski, reminding that he had warned him before about Swirski's background, that Swirski had been a "paid mercenary" working for the, ILA in the 1961 trouble, and added that "heads were not broken the last time Swirski ran against me because he had the backing of the ILA," but ' that "things could. be different now." Randazzo urged Romano and Dziuba to drop out of the Brotherhood and suggested that, if they were not satisfied with the way Respondent's affairs were being handled, they should bring up their complaints inside Respondent, they should "clean house from the inside, not from outside"; he suggested to Romano that if he did not, like the present officers of Respondent, he should run for -office in the coming election in November, but he strongly urged both men not to start trouble inside Respondent at a time when it was about to go 6 Randazzo admits be learned,the names of Balbi, Romano, Roderic, Dziuba, Zodkowic, and Swirski I do not credit his,tertimony that he knew nothing of Lawrence's connection with the Brotherhood until April 8, in view of (1) his vague, evasive, and self-contradictory testimony on other crucial facts and events, which will be noted hereafter, and (2) cred- ited and uncontradicted testimony of Lawrence that, prior to the meeting he had person- ally invited various employees, including John Lockhart, Respondent's shop steward in the shipping department, to attend, and (3 )'credible testimony of Steward Pantano that shop stewards customarily reported daily or every other day to Randazzo about events affecting Respondent, and that he had reported to Respondent as soon as he learned of 'the Brotherhood meeting. U Randazzo was referring to their common Italian origin . In Italian , "paisan" means "countryman," or more literally, "townsman." „ 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into contract negotiations with the Company.? Regarding their complaints about Respondent's and the Council's failure to represent the workers, Randazzo men- tioned pending arbitration proceedings started by the Union on behalf of Dziuba and others, and the efforts of the Council to organize the refineries of the Company and promote companywide bargaining, and its expenditure of money for expert help in contract negotiations and lobbying for legislation to help sugar workers as a group. In talking with Zodkowic, Randazzo asked the same questions, heard the 'same complaints, and made the same arguments and suggestions as in his talks with Romano and Dziuba. Randazzo said he would talk to Zodkowic a few days later to find out if he still wanted to stay in the Brotherhood. About March 26 or 27 when' he approached Zodkowic about it, the latter said he would stay with the Brotherhood, expressing the same dissatisfaction as previously with Respondent's officers, the Council, and payment of dues to the Council.a' C. The actions against Lawrence-and Balbi On March 28, 1963, the Company sent the Council-the usual monthly check covering Council dues checked off for the month of February, together with the usual list of all work-hours of all employees paid' for in that month. The Council received the check and list on March 29. On the basis of this letter, Council Man- ager Louis Pernice prepared a letter dated March 28 and sent it to Respondent, addressed to Randazzo, which advised that the following union members had not paid Council dues (listed after names) for January and February: - C. Miele ---------------------------------------- $4.96 A. Dimas --------------------------------------- 10.16 A. Balbi ---------------------------------------- 12.80 M. Lawrence ------------------------------------ 7.20 It also advised "Under the present contract, these members should not be permitted to work unless their dues is paid in full. • Please take the necessary action." Ran- dazzo got the letter at Respondent's office on Friday, March 29, or Monday, April 1, and immediately prepared and signed a letter to the Company, addressed to its personnel manager, John A. Taylor, Jr., demanding the immediate dismissal of Balbi and Lawrence for "nonpayment of Sugar Workers Council dues under Article 2.01 of the contract." On April 1, the Council sent both Balbi and Lawrence a formal billing letter stating that company records indicated they had worked 640 and 360 hours, respectively, in the period from December 2, 1962, to February 25, 1963, and requesting Balbi to send $12.80, and Lawrence $7.20, by check or money order, to the Council, saying "this amount is due within ten days of the mailing date." Balbi received .this letter in due course on April 2. Lawrence did not actually receive his until April 9, when he returned home from a trip outside the city; he went on vacation from the plant on March 29 and was not due to return until April 15, 1963. On April 1 or 2, Randazzo and Graffino approached Balbi in the plant during working hours, and Randazzo asked him the same question about his reasons for affiliating with the Brotherhood, heard the same complaints, and made the-same suggestions, as in his talks with Romano, Dziuba and Zodkowic. He also disparaged Swirski in the same way, and added "last time nobody got hurt, no heads were busted," as "we had the support of the ILA," but "now that we are independent ...." 9 7 The record shows that the organizers of the Brotherhood timed its formation, member- ship campaign , and petition for an election deliberately in the period just before the expiration of the existing contract between Respondent and the Company, knowing that negotiations for a new contract would start in July or August. s These conversations are found from credible testimony of Romano, Dziuba, and Zodkowic, as corroborated in large part by admissions of Randazzo and Pantano . Testi- mony of the latter at variance with the findings is not credited, since I have concluded from close observation of Randazzo 's demeanor on the stand , and his vague, evasive, argumentative, and often self-contradictory testimony on crucial events that his testimony is generally untrustworthy and entitled to credit only when consistent wtih that of other credible witnesses. Pantano heard only portions of Randazzo's talks with the three em- ployees, and Graffino did not testify at all, although he was present in court during most of the hearing. U This talk is found from credible testimony of Balbi , and admissions of Randazzo. Testimony of the latter in conflict therewith Is not credited , as his testimony about the date is vague and evasive, and at one point he admits It could have been any time after March 19. UNITED SUGAR WORKERS UNION, LOCAL 9, ETC. 159 On April 3, 1963, about 3 p.m., Randazzo personally delivered the discharge letter to Charles DePaola, Jr., assistant personnel manager of the Company, at his office, saying he wanted Balbi and Lawrence discharged for nonpayment of dues. DePaola called Balbi to the office, showed him the letter, and told him in the presence of Randazzo he had to discharge him under the contract. Balbi protested that he was paying his dues to Respondent. Randazzo replied he had ignored the last monthly bill from the Council. Balbi said he did not get it, then admitted his mother had misplaced it, and asked Randazzo how much he owed, saying he would pay it to Randazzo then. Randazzo refused to take the money, but told Balbi that if he took it personally to the Council office that afternoon, after work, he would not be dis- charged. Balbi went home immediately, found the letter from the Council, secured a money order for the amount due and took it to the Council office, where Manager Pernice accepted it, saying he was surprised that Balbi had ignored the "third" letter, because he had usually paid his Council dues every 2 months. Balbi told Pernice that Randazzo had requested his discharge. Pernice said he was surprised at this, because other employees were usually late in paying Council dues. He called Ran-• dazzo at once and said Balbi had his dues.' Randazzo told him to accept them and advised DePaola to let Balbi work, the next day. Pernice called DePaola in the presence of Balbi , and the next morning Balbi went to work as usual without any loss of time or pay and has worked for the Company ever since. In the conference'of the third, DePaola told Randazzo that Lawrence was on second shift (which reported at 3:30 p.m.), but he- would tell him about the discharge when he came to work. After Randazzo left the office, DePaola learned from Law- rence's supervisor that he was on vacation and would not return, to work until the 15th. He at once called Respondent's office and left a message for Randazzo that Lawrence was on vacation until the 15th, but that he would pull his timecard from the rack and tell him about the discharge request when he came in on the 15th. On April 9, Randazzo called the personnel office and told DePaola to tell Personnel Manager Taylor to discharge Lawrence. On the 10th, Randazzo gave Taylor the same order personally. Lawrence discovered the Council letter of April 1 when he returned home on the evening of the 9th from•a trip out of the city. About 2 p.m. on the 10th, he secured a money order of $7.20 from his bank and had one Helen Evans send it by registered mail to the Council that day. He had Mrs. Evans put her return address on the envelope, so that she could get the return receipt, because he expected to be out of the city for a few more days. The Council received the letter on April 11, and Pernice at once mailed it back unopened to Lawrence at his home address by registered mail. On April 12, Lawrence received a special delivery letter from the Company, dated April 11, stating he had been discharged as of April 10 as requested by Respondent. When he returned to the plant on the 15th, he asked Taylor if he could work. Taylor told him the discharge was at the request of Respondent, and he could not let Lawrence return to work until he got further instructions from Respondent. Lawrence has not worked for the Company since that date. D. Contentions of the parties, and concluding findings It is clear that in his talks with Romano, Dziuba, and Zobkowic, Randazzo was legitimately trying to dissuade them from adhering to the Brotherhood by dis- paraging Swirski and his past efforts to oust Respondent as bargaining agent, by. praising Respondent, explaining its activities on behalf of the employees, and sug- gesting that dissatisfied employees should take more active part in Respondent's operations in order to remedy their grievances, rather than join the Brotherhood. At the same time, however, he made it clear that, while no harm had come to those who made common cause in 1961 with Swirski , his opponent during the contest that year, because he had the support of the powerful ILA, employees now connected with Swirski in organizing an independent labor organization were "looking for trouble and is going to get hurt," because Randazzo now had the "connections" and support of the strong ILA organization which he did not have in 1961, so that "while no heads were broken the last time" Swirski fought Randazzo, "things could be different now," "now that we are independent," as he told Balbi. Randazzo's testimony shows that he had an intense dislike for Swirski, the "paid mercenary" who fought him in 1961 , that he did not like such "mercenaries" who he felt were paid by "outside" groups to fight established unions, and that this hatred of Swirski continued unabated during his Brotherhood activities in 1963, and extended to all who assisted in that activity. Considering this animus and the fact that Respondent 744-670-65-vol. 146-12 160 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD was now affiliated with the ILA whose support it lacked in the 1961 struggle, I conclude that these remarks of Randazzo contained a thinly veiled but clear threat of probable physical and other harm to employees who sided with Swirski or became officers in his independent Brotherhood, which were reasonably calculated to coerce and restrain employees in the exercise of their statutory right to join or assist the Brotherhood or any other labor organization; and the fact that his statements were made in quiet fashion in short, semiprivate discussions, rather than in long, noisy, or emotional harangues, does not detract from their force but rather was calculated to make them more ominous in their implications. I find that by these remarks of Randazzo to Romano, Dziuba and Balbi, Respondent coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, in violation of Sec- tion 8 (b)(1)(A) of the Act.10 Respondent contends it requested the discharge of Lawrence and Balbi, and procured the discharge of Lawrence, solely because they were delinquent in their Council dues, as permitted by the contract. I have found that Randazzo knew as early as March 19 that both employees were active in the Brotherhood. This knowledge, together with his prompt unlawful attempts to throttle the Brotherhood activity by threats against its officers which establishes Respondent's animus toward Brotherhood adherents, requires-close scrutiny of the circumstances surrounding the discharges, to determine whether the dues delinquencies existed in fact and, if so, whether that fact was merely the pretext for the discharges, as alleged by General Counsel. Respondent had a flexible practice in handling arrearages in Council dues. Credible testimony of Randazzo, Pernice, Taylor, and documentary evidence indi- cates that, aside from the monthly billing of members not on checkoff, the Council normally notified Respondent when a member was 1 month in arrears, following which Randazzo would usually advise the Company by a telephone call or at times by letter to warn the man to pay up. If an employee was habitually in arrears, Randazzo would usually write to the Company requesting his discharge under the contract, but would not press for discharge if he paid up when notified of the discharge request. In some respects Respondent followed this procedure in regard to Balbi. He had been in the habit of paying Council dues every 2 months prior to April 1963, and the Council had usually accepted that method of payment without question, except that at times Balbi had been listed as in arrears in prior letters from Respondent to the Company, but Respondent had never before sought his discharge for that, because he always paid up when the arrears were brought to his attention. The first time he was slated for discharge was on April 1, 1963, after he appeared to be at least 3 months in arrears, in the sum of $12.80, for 640 paid work-hours accrued since November 24, 1962. The Council had sent him periodic bills for portions of these dues as they accrued, on December 3, 1962, January 11 and February 25, 1963, which he apparently ignored. When Randazzo learned ,the amount of the arrears from the Council notice of March 28, he put him in the discharge letter, but did not press for discharge when Balbi paid up after being confronted with the discharge 10 See, for example, District 65, Retail, Wholesale and Department Store Union (I. Pos- ner, Inc ), 133 NLRB 1555 , 1561, and Local No. 3887, United Steelworkers ( Stephenson Brick & Tile Company ), 129 NLRB 6, 10. The coercive nature of Randazzo 's-remarks and his propensity for using any effective , even discriminatory, threats or reprisals to dissuade workers from engaging in the hated "dual unionism" involved in the Brotherhood activity Is further shown by ( 1) Randazzo 's admissions that when Zodkowic refused to withdraw from the Brotherhood, Randazzo filed charges against him , Romano, Dziuba, and Swirski under the ILA constitution for dual unionism , but not against Severino Roderic, another worker he spoke to on March 19, because Roderic promised that he would "drop" out of the Brotherhood , after listening to Randazzo 's arguments and personal appeal to remain loyal to Randazzo ; and (2 ) credible testimony of Nicholas Kasnuch and admissions of Randazzo showing that about mid -April, Randazzo received 'a complaint from a member of ;Respondent that Kasnuch had solicited him on company time to sign a Brotherhood card, whereupon Randazzo told Kasnuch to stop It ; warning that if he caught him handing out any more cards, he would "make sure you are out of a job," as it was "playing dirty pool,- that he would try to have the Company enforce its rule against solicitation on com- pany time against him by talking to Taylor and having him disciplined ; Randazzo ad- mitted' that he also asked Taylor to warn Kasnuch against continued solicitation under penalty of discipline. The latter, threat and attempt to implement if through company action contrasts with Randazzo 's open and discriminatory use of company time to make threats and other arguments to Brotherhood officials and others to persuade them to abandon the Brotherhood , in admitted violation of the company rule. , UNITED SUGAR WORKERS UNION, LOCAL 9, ETC. 161 letter. Considered alone, these actions appear to be a legitimate use of Respondent's right to insist upon compliance with its members ' obligations to pay dues. But other circumstances militate against this conclusion. 'Randazzo, as an officer of the Council , was well aware of its practice of monthly billing of members not on checkoff which gave them a grace period of 10 days in which to pay up, and while he and Pernice are very vague about whether they talked about the Council letter of March 28, or the arrearages of Balbi and Lawrence, I am satisfied that Randazzo must have known that the usual bill with the grace period for payment would go out to both on April 1, as it did . Pernice admitted that under this letter and past practices , neither man was delinquent in his dues until April 11 , 1963,11 and Randazzo, himself, in effect, recognized this when he tried to explain the rejection of Lawrence 's dues on April 11 , but not on earlier occasions, by saying "because he got it in to us on the end of that business day when we requested him, this was his last opportunity to pay." In addition, since members' obligations to pay dues to both Respondent and the Council as the Union were recognized by the contract and the Company, I must conclude that any period fixed by Council action for payment of dues in arrears was equally binding on Respondent. Hence, Respondent's claim that Balbi was chosen for discharge on April 1 or before merely for failure to pay dues, even before the usual April 1 bill went to him, must be rejected , especially since Randazzo does not try to explain why he thus deprived Balbi of the normal grace period given members in arrears. His obvious truncation of that period surprised even Pernice who com- mented to Balbi when he paid up that other members were usually late in paying Council dues. Lacking any reasonable explanation for this radical departure from the usual practice , I can only conclude that the reason for this precipitate action against Balbi was occasioned by his known Brotherhood activity and association with Swirski therein. This conclusion is also supported by the fact that , in his talk with Balbi on April 1 or 2, Randazzo did not mention his dues arrears, but con- centrated .on arguments, legal and illegal, to persuade him to abandon the Brother- hood. As he must have known at the time that Balbi would shortly receive the bill from the Council, his prompt attempt on the third to have him discharged before the grace period had expired could only have been motivated by Randazzo 's failure in the prior talk to wean Balbi away from the rival organization .12 Another cir- cumstance supporting this conclusion is that the Council letter to Respondent on which Randazzo relied in preparing the discharge letter was obviously prepared in haste on March 29 as soon as Pernice received the hours list for February from the Company, and was apparently backdated to the 28th, all before the transmission of the usual monthly bill on April 1, which strongly impels the inference that this document and the ensuing discharge request were prepared hastily as paper evidence of a legal reason for discharge to support a preconceived decision to cause the dis- charge of Balbi and Lawrence . 13 Another indication of the spurious nature of the -discharge letter is Randazzo's admission that it was "put in to have two people discharged." He also added "So any time for other people to come off, it must have meant that they had to give assurances that they were going to pay "; this statement was part of his explanation that be did not request the discharge of Dimas and Miele, n He also admitted at another point that the stated arrears were not due until "ten days after receipt of the letter." As Balbi did not get his bill until April 2, and pre- sumably that sent to Lawrence did not reach his home until that date , ' the last day of the grace period would have been April 11 (if not 12 ), as Pernice 'had-admitted earlier. Hence, I do not credit his change of the last date to the' 10th, in answer to questions of the Trial Examiner seeking clarification of his method of computation . In any event, since failure to comply with the grace period in the bill Involved forfeiture of good standing in Respondent and resultant loss of employment, I am satisfied that the wording of the bill gave Balbi and Lawrence up to the end of the business day of the 11th, in which to tender the dues. It is well settled under the law of New York and most other jurisdictions that when an act is to be performed within a specified period from or after a day named, the rule is to exclude the first day and to Include the last day of the specified period See 52 Am . Jur title "Time ." page 342 , section 17 , and cases cited in footnotes 16 and 20; Pomeranz v. More, 187 Misc. 383, 63 N.Y:S. 2d 111. 12I do not consider Marathon, a Division of American Can Company, 134 NLRB, 16; ccited by Respondent to support its request for discharge on the third , as controlling be- cause the facts there were far different - 13 It is also inferrable that the April 1 bill was part of the same scheme because Council records show that it is the first bill out of 14 sent to Lawrence since the beginning of 1962 that was sent out promptly on the 1st; all previous bills were mailed anywhere from the 2d to as late as the 29th of the month. 162 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD also named in the Council letter, because he says they gave prior assurances that they would pay up. However, I am satisfied that this explanation is also spurious, and that the treatment of the latter employees further shows the discrimination against Balbi and Lawrence. So far as the record shows, neither Dimas nor Miele had any connection with the Brotherhood, so they appeared to be loyal members of Respondent. Although Balbi was usually 2 months in arrears in dues, and in April 1963 only 3 months behind, Dimas was 3 months behind in December 1962, almost 4 months behind on April 1, 1963, and never fully paid up since September 1962, a worse record in arrears than Balbi. Further Pernice, admitted that on March 28, the date of his letter to Respondent, Dimas was not delinquent in the amount of $10.16 as stated therein, which indicates his name, was entered and discharge requested for reasons other than dues arrears. Randazzo testified that he did not ask for his discharge because Respondent's secretary, Peter Korcynski, told him on March 29 or April 1, that Dimas had assured him he would send,in his dues. However, Korcynski was never called by Respondent to support Randazzo on this point, and Dimas flatly denied be ever talked to Korcynski about his dues before May 23, 1963, testifying that about that date Steward Michael Sessa warned him he was behind in Council dues and if he did not pay up, he would be "in trouble," to which Dimas replied that he had a money order for payment; and about the same time Korcynski reminded him of the arrears, and he promised to take care of it. Council records show that Dimas did not pay the $10.16 he owed on April 1, but his total arrears had increased to $16.56 by May 14 when the Council sent him a bill, yet he did not finally pay that amount until about May 23 after reminders from Sessa and Korcynski. I credit Dimas' story because of his straight- forward testimony on it which is corroborated by the Council records, and discredit Randazzo's explanation of the assurance given before April 3. The marked leniency shown a member of Respondent, who was not a dissident but had a far greater dues delinquency than the dissident Balbi, warrants the inference that his name was placed on the Council request for discharge but not in the letter to the Company, not because of his substantial dues arrears but only to disguise the fact that the latter letter was really aimed only at the dissidents Balbi and Lawrence. A like inference arises from the testimony of Randazzo about Miele. On direct and cross-examination, he says that before 3:30 p.m. on April 1, Miele told him at the plant that he had received a notice of arrears from the Council, and would pay up, but he had a "home problem," and that he did not seek his discharge on that assurance. When reminded on cross-examination that Miele was then working the midnight shift, between 12 midnight and 7 a.m., he changed his story quickly to say that Steward Sessa telephoned him to say that Miele had promised him to pay up. His quick change of testimony on this point tends to discredit him. Also, neither Sessa nor Miele were called to testify in support of his story, which warrants the inference that they could not support it if called. As in the case of Dimas, Respondent was far more lenient with a loyal member, though delinquent. Miele was apparently not involved in the Brotherhood, but according to Council records had never been paid up in his dues since June 1962, and he made no payment on the $4.96 he owed on April 1, 1963, until the arrears had grown to $10.76 on May 14, at which time he paid $7 on account. The same considerations showing discrimination against Balbi apply to Lawrence. Randazzo's insistence upon his discharge, whether it be on April 3, 9, or 10, denied him the full extent of the grace period which the Council had given him and by which Respondent was bound.14 Moreover, although Randazzo had not tried to persuade him to drop the Brotherhood, Lawrence's long expressed dislike of the Council dues as well as open affiliation with Swirski in formation of the Brotherhood marked him far more plainly than Balbi as a dissident within Respondent and out- spoken opponent of Randazzo and the officers of Respondent. The record shows that Lawrence was a "habitual" delinquent in payment of, Council dues, due prob- ably to his long dissatisfaction with that organization and obvious reluctance to pay any moneys to it, and that Respondent had been compelled to request his dis- charge on two or three occasions in 1962 in order to prod him into paying those 14 In August 1962, the Council had advised Lawrence that it would thereafter bill him monthly, so thereafter he waited for such bills before paying. Hence, in paying such dues, he was clearly entitled to rely on the official bill of April 1 from the Council and the grace period stated in it and, by its affiliation with the Council and reliance on its records and billing procedures, Respondent in effect waived any rights it might otherwise have had to request discharge of Lawrence prior to the end of the grace period. F. J. Bums Draying, Inc. 129 NLRB 252, 256. UNITED SUGAR WORKERS UNION, LOCAL 9, ETC. 163 4ues.15 On each occasion the demand for discharge was effective, for Lawrence paid up and was not discharged, after actual confrontation with the demand by the Company and warnings from union officials. In light of this experience, when Randazzo sought his discharge on April 3, 1963, he might well have expected that similar warning would have had a like result; and I note that when Respondent learned he was on vacation, it apparently did not press for the discharge until April 9 and 10, thus recognizing the validity of the grace period given by the Council. However, since Randazzo's final request for the discharge came on the 10th, and Taylor's discharge letter to Lawrence was dated and apparently prepared on April 11, and Randazzo admits he knew. the Council rejected the tender of dues received on the last day of, grace, it is clear that Respondent denied Lawrence the benefit of his full grace period, even though his offer of payment in full was timely, and since no other credible explanation is offered by Respondent for this denial, I must con- clude on all the circumstances cited above that Respondent sought Lawrence's -discharge on April 3 and 9, and procured it on April 10, 1963, for reasons other than failure of timely tender of Council dues, i.e., because of his open and notorious participation in "dual unionism" by joining and assisting the Brotherhood, a right given him by Section 7 of the Act, and that Respondent thereby attempted to cause, and caused, his Employer to discriminate against him for reasons other than his -failure to pay periodic dues, in violation of Section 8(b)(2) and (1) (A) of the Act.16 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth, in; section III, above, -occurring in connec- tion with.the.operations'of°the Company set forth in section- I, above; have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall rec- ommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully caused the Company to discriminate against Melvin Lawrence by discharging him for a reason other than failure to tender the periodic dues uniformly required as a condition of retaining membership in Respondent, I shall recommend that Respondent forthwith notify the Company, in writing, furnishing a copy thereof to Lawrence, that it withdraws its objection to the employment of Lawrence and requests the Company to offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges previously enjoyed. I shall also recommend that Respondent be ordered to make Lawrence whole for any loss of pay he may have suffered by reason of the discrimination against him caused by Respondent, by payment to him of a sum of money equal to that which he normally would have earned as wages from April 15, 1963, to a date 5 days after Respondent serves on the Company the written notice and request for his reinstatement aforesaid, less his net earnings during said period. Such backpay shall be computed in accord- ance with the formula established in F. W. Woolworth Company, 90 NLRB` 289, and shall include interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716.17 As Respondent's unfair labor practices involve deprivation of employment of employees and thereby go to the heart of the Act, I will recommend a broad in- junction against any form of restraint or coercion by Respondent. CONCLUSIONS OF LAw . 1. The Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 16 In this respect, his record was far worse than any other employee during 1962. 16 These conclusions make it unnecessary to consider or decide General Counsel's con- tention that the amount of dues charged against Lawrence at the time of discharge was not "periodic" dues within the meaning of the Act, to the extent that they were computed on vacations accrued prior to the institution of Council dues in October 1961. Other arguments made by Respondent have been carefully considered and found without merit. 17 No similar order is required for Balbi who lost neither worktime nor pay because of Respondent's actions toward him. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent, the Council, and the-Brotherhood are labor organizations within the meaning of Section 2(5) of the Act. 3. By threatening employees of the Company with bodily and other injury or reprisal if they assisted or remained members of the Brotherhood , a rival labor organization , thereby coercing and restraining employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. By attempting to cause the Company to discriminate against Vincent Balbi and Melvin Lawrence , and actually causing the Company to discriminate against Lawrence, because the membership of said employees in Respondent had been ter- minated on some ground other than their failure to tender the periodic dues uni- formly required as a condition of retaining such membership , Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and8 (b)(l)(A) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law , and the entire record in ' the case, I recommend that United Sugar Workers Union , Local ' 9, affiliated with International Longshoremen's Association, AFL-CIO, its agents, offi- cers, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause American Sugar Company to discriminate against Vincent Balbi , Melvin Lawrence, or any other employee whose membership in Respondent has been terminated on some -ground other than failure to tender the periodic dues uniformly required as a condition of retaining such membership. (b) Threatening employees of the Company with bodily or other injury or re- prisal if they assist or remain members of the Brotherhood or any labor organiza- tion other than Respondent , or in any other manner restraining or coercing em- ployees. in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Make Melvin Lawrence whole for any loss of pay he may have suffered by reason of the discrimination against him caused by Respondent, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify American Sugar Company immediately , in writing, that Respondent has no objection to the employment of Melvin Lawrence by said Employer, and that it requests his immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges previously enjoyed, and simultaneously serve a copy of such notice upon Lawrence. (c) Post at Respondent's office and meeting hall in Brooklyn, New York, copies of the attached notice marked "Appendix." 18 Copies of such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent's authorized representative , be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in con- spicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced , or covered by any other material. (d) Promptly mail to said Regional Director signed copies of the above notice for posting, if the Company is willing, at its plant ins Brooklyn, New York. (e) Notify said Regional Director for the Second Region, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.19 l8 If this Recommended Order is adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order " 19 If this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 165 APPENDIX NOTICE TO ALL MEMBERS OF UNITED SUGAR WORKERS UNION, LOCAL 9, AFFILIATED WITH INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor: Relations Act, as amended, we hereby notify our members that: WE WILL NOT cause or attempt to cause American Sugar Company to dis- criminate against Vincent Balbi, Melvin Lawrence, or any other employee of said Employer, because the membership of said employees, or any of them, in our labor organization has been terminated on some ground other than failure to tender the periodic dues uniformly required as a condition of retain- ing such membership. WE WILL NOT threaten any of the employees of the above-named Employer with bodily or other injury or reprisal if any of them assist or remain members of the Brotherhood of Sugar Workers, or any other labor organization other than our organization , or in any other manner restrain or coerce said employees, in the exercise of rights guaranteed to them by Section 7 of the Act. WE WILL make Melvin Lawrence whole for any loss of pay he may have suffered as a result of the discrimination against him caused by our labor organization. WE WILL notify American Sugar Company that we withdraw our objection to its employment of Melvin Lawrence, and that we request said Employer to, offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights ands privileges previously enjoyed. UNITED SUGAR WORKERS UNION, LOCAL 9, AFFILIATED WITH INTERNATIONAL LONG- SHOREMEN'S ASSOCIATION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------ (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any questions concerning this notice or compliance with i6, provisions. Tennessee Packers, Inc., Frosty Morn Division and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local 405. Case No. 26-CA-1545. February 07, 19641 DECISION AND ORDER On October 18, 1963, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor- Relations Act, the Board has delegated its powers in connection with 146 NLRB No. 15.