Silver Bakery Inc. of Newton

SILVER BAKERY INC. OF NEWTON 421 tered into an agreement including that local as a "Signatory Local Union" in the 1961 contract, as specifically anticipated and provided for in the contract itself." (2) On September 8 after the agreement including Local 217 as a "Signatory Local Union" in the 1961 con- tract, the Employer and the "Signatory Local Unions of the Inter- national Brotherhood of Electrical Workers (AFL-CIO)" entered into an agreement amending the 1961 contract by including therein a pension plan for the benefit of employees of the Employer, includ- ing, among others, those in the Ogden plant. (3) Beginning in December 1962 the Employer and the Council as the "authorized bargaining agents for all the locals listed in the contract," including Local 217, entered into negotiations for a new agreement. (4) This agreement, signed on October 9, 1963, is in all essential respects the same as the 1961 agreement which the Board has already found estab- lished a multiplant unit. In view of the foregoing, we find that the Ogden plant employees' unit has been effectively merged into the multiplant unit. We shall therefore grant the motion to dismiss the instant petition, which requests an election among employees in a single-plant unit.10 [The Board dismissed the petition.] 6 See footnote 5, above. SU Gould-National Batteries , Inc, 146 NLRB 1142, relied on by the Employer, in which the Board found appropriate a single-plant unit at the Employer's Houston, Texas, plant, is distinguishable from the instant case . In that case, unlike the situation here, the Houston plant apparently had a single-plant bargaining history for some 7 years prior to the certification , and, moreover, the parties there stipulated that a single-plant unit was appropriate. Foil the reasons stated in Gould-National Batteries, 146 NLRB 1138, we also find no merit in the Employer 's reliance on the General Counsel's ruling in refusing to issue a complaint in Gould-National Batteries, Inc., Case No. 18-CA-1542. As we dismiss the petition for the reasons indicated, we find it unnecessary to consider other contentions raised by Local 217. Silver Bakery Inc. of Newton and Charles T. O'Brien Local 45, American Bakery and Confectionery Workers Inter- national Union (AFL-CIO) and Kenneth McLellan, Special Trustee ; Local 45, American Bakery and Confectionery Work- ers International Union (AFL-CIO) and Bakers Union Local No. 45 affiliated with Bakery and Confectionery Workers International Union of America and Charles T. O'Brien. Cases Nos. 1-CA-3739 and 1-CB-753. - December 16, 1964 DECISION AND ORDER On January 13; 1964, prior to taking evidence on the merits, Trial Examiner W. Gerard Ryan granted Respondents' motion and dis- 150 NLRB No. 45. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD missed the complaint herein on the ground that the issuance thereof was barred by Section 10(b) of the Act. The General Counsel and the Charging Party petitioned for review of the Trial Examiner's ruling, and on April 2, 1964, the Board issued its Order which pro- vided, inter alit, that the case be remanded "for further hearing on all issues and for the preparation and issuance of an appropriate Decision" by the Trial Examiner. Thereafter, on August 12, 1964, Trial Examiner Ryan issued his Decision finding that, while the conduct of the Respondent Employer and Respondent Union was such as would upon a proper complaint constitute violations of Sec- tion 8(a) (3) and (1) and 8(b) (2) and (1) (A), respectively, the complaint herein was barred by Section 10(b) of the Act. Accord- ingly, the Trial Examiner again recommended that the, complaint be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's recommended dismissal of the complaint and the Respondents filed exceptions to the Trial Examiner's findings and conclusions that their conduct could constitute violations of Section 8(a) (3) and (1) and Section 8(b) (2) and (1) (A) of the Act. The General Counsel and Respondents also filed briefs in sup- port of their respective exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations 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 briefs, and the entire record in this case and finds merit in the General Counsel's exceptions. Ac- cordingly, the Board adopts the Trial Examiner's findings, conclu- sions, and recommendations only to the extent consistent with our Decision and Order. We agree with the Trial Examiner that the conduct of the Re- spondent Employer and Respondent Union was such as would con- stitute violations of Section 8(a) (3) and (1) and Section 8(b) (2) and (1) (A) of the Act. However, we are of the opinion, for the reasons here set forth, that the Trial Examiner erred in recommend- ing the dismissal of the complaint. The relevant facts upon which the Trial Examiner predicated his recommendations for the dismissal of the complaint may be sum- marized as follows : Respondent Employer is engaged in the business of preparation and retail sale of bakery products. At all times material herein Respondent Employer was a member of an association of bakery SILVER BAKERY INC. OF NEWTON 423 operators known as the Greater Boston Hebrew Master Bakers Association, Inc., and under contract with the Respondent Union. By reason of events fully set forth in the Trial Examiner's Decision, George Newman, business agent of Respondent Union, demanded that the Respondent Employer discharge Charles T. O'Brien, the Charging Party herein, and on February 5, 1962, Respondent Em- ployer complied with Newman's request. On March 8, 1962, O'Brien filed timely charges herein alleging that he had been discriminatorily discharged in violation of Section 8 (a) (3) and (1) of the Act, and that Respondent Union had unlaw- fully caused or attempted to cause such discharge, thereby violating Section 8(b) (2) and (1) (A) of the Act. On March 13, 1962, an agent of the Board interviewed Phillip Dares, Respondent Employ- er's principal stockholder and general manager, concerning the case. During the interview the Board agent inquired of the Re- spondent Employer as to its gross volume of business. On the basis of Dores' replies which showed that Respondent Employer's gross volume of business was less than $500,000 per annum, the Board agent concluded that Respondent Employer did not meet the Board's juris- dictional standards for retail businesses. The Board agent did not inquire as to Respondent's affiliation with any employer association, nor did Dores volunteer such information. Had it been made known that Respondent Employer was a member of the Greater Boston Master Hebrew Bakers Association there would have been a clear basis for the Board's assertion of jurisdiction herein. As a result of the commerce facts gathered, and on a representation that the Board would not assert jurisdiction herein, the Board agent on the same day procured O'Brien's agreement to withdraw the charges. Thus, on March 15, 1962, the Regional Director notified all parties that he had approved the withdrawal of the charges "without prejudice." On June 7, 1962, O'Brien filed charges with the Massachusetts State Labor Relations Commission, alleging in substance the some acts which had formed the basis for his charges filed with the Board. On April 22, 1963, Respondent Employer, through its counsel, for the first time presented evidence that Respondent was affiliated with the Greater Boston Master Hebrew Bakers Association, an employer association whose activities in commerce met the Board's jurisdic- tional standards, and that in fact, the Board has previously asserted jurisdiction over said association. In view of such evidence Re- spondent Employer moved to dismiss the proceedings before the Commission on the ground that the Commission lacked jurisdiction over the case. The following day the Commission granted Respon- dent Employer's motion, finding that Respondent Employer was subject to the jurisdiction of the Board. 424 DECISIONS -OF ;NATIONAL LABOR RELATIONS BOARD Thereafter, on June-1, 1963, O'Brien requested the Regional Direc- tor to reinstate the charges and to reopen Cases Nos: 1-CA-3739 and 1-CB-753. On July 22, 1963, the Acting Regional Director ad- vised all parties by mail that he was withdrawing his consent to the withdrawal of the charges and reopening the cases for investigation of their merits, and, on November 12, 1963, pursuant to the direction of the General Counsel, the Regional Director issued the complaint herein. As indicated, the Trial Examiner recommended that the complaint herein be dismissed, being of the opinion that a charge when with- drawn may not be reinstated when more than 6 months have elapsed merely by the Regional Director's revocation of his earlier approval of its withdrawal. We do not agree with -the Trial Examiner that Section 10(b) requires the dismissal of the complaint herein. That section, in rele- vant.part, provides "[t]hat no, complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of a charge. . . ." It is undisputed that O'Brien complied with this statutory requirement by filing charges against both Respondents during the statutory period and that the- complaint herein issued on the basis of these charges. However, Respondents in effect contend that 10(b) imposes a 6-month limit not only upon the filing of charges, but also upon the reopening of cases where charges have been filed but withdrawn. In our opinion, Section 10(b) relates only to the actual filing of charges. As the Supreme Court has stated, 10(b) constitutes "a pro- vision for a 6-month period of limitations upon the fling of charges." 1 [Emphasis supplied.] A charge "sets in motion the ma- chinery of an inquiry."2 Under Section 3(d) of the Act, exclusive control or disposition of the charge once filed is vested in the General Counsel who "shall have final authority, on behalf of the Board, in respect to the investigation of charges and the' issuance of com- plaints before the Board...' ." It is clear for example, that a Charg- ing Party cannot maintain an action to compel the General Counsel to dismiss a charge or issue a complaint.3 Nor can it Charging Party withdraw a charge without the consent of the Regional Director acting in behalf of the General Counsel.4 Thus, it is clear that the General Counsel acting in the public interest to,effectuate the policies of the Act has virtually unlimited discretion to proceed on- charges 1 Local Lodge No 1424, International Association of Machinists ( Bryan Manufacturing Co.) v. N L.R.B., 362 U.S 411, 427 2 N.L.R.B v. Tex-O-Kan Flour Mills Company, 122 F. 2d 433, 437 (C.A. 5). 3 Maurice D. Dunn, et at. v. Retail Clerks International Association , Local 1529, et al , 307 F. 2d 285 (C A. 0) 4 National Labor Relations Board , Rules and , Regulations , Series 8, as amended, Section 102 9 - SILVER BAKERY INC. OF NEWTON 425 as he deems fit in the exercise of his offices And there is nothing in the Act limiting his authority to issue a complaint once a charge is filed .6 As the charge herein was filed within the 6-month limitation the only question before us, therefore, is whether the equities in the case compel 'a dismissal of the complaint and charges in view of the time that elapsed between the withdrawal of the charge and the Regional Director's notice to the parties of his decision to reopen the case. As the charge herein was filed within the 6-month limitation the only question before us, therefore,- is whether the equities in the case compel a dismissal of the complaint and charges in view of the time that elapsed between the, withdrawal of the charge and the Regional Director's notice to the parties of his decision to reopen the case. As the Supreme Court explained,, the "policies [of the 6-month limitation of Section 10(b)] are to bar litigation over the past events `after. records: have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and con- fused."' 7 Here,,however, there can be no doubt that because of the pending State proceeding documents were preserved, witnesses were available, and recollections kept fresh. At all times the Charging Party acted promptly, filing his charge about 1 month after his discharge; filing his complaint with the Massachusetts State Labor Relations Commission about 11 weeks after he was advised that the Board lacked jurisdiction; and'requesting that the Regional Director reopen the case about 6 weeks after Respondent Employer had ob- tained a dismissal of the State proceeding on jurisdictional grounds. Respondents do not claim that they have suffered' any detriment as a result of their reliance upon the withdrawal of the charge. More- over, since Respondent Employer took the position before the Com- mission that the Board and not the Commission had jurisdiction over the alleged unfair labor practices, we fail to see wherein Re- spondent Employer may now claim that it is prejudiced because the Board asserts its jurisdiction. The Trial Examiner, in recommending that the complaint be dis- missed on Section 10(b) grounds relied on the absence of evidence that Dores fraudulently misinformed the Board investigator with respect to his membership. Assuming Dores' lack of fraudulent in- tent, the information was nevertheless peculiarly within his knowl- edge and control. Under our view of the controlling legal principles herein it is of no significance that Dores may not have deliberately e See Dunn v. Retail Clerks, footnote 3, supra 9 See, e g., J. A . Bentley Lumber Company, 83 NLRB 803, enfd. 180 F. 2d ' 641 (C.A. 5) ; Courier Post Publishing Company, d/b/a Radio Station KHMO, 102 NLRB 26. 7 Local Lodge No. 14 24, International Association of Machinists v. 'N.L.R B ., supra, at 419. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intended to misinform the Board investigator at the time he was interviewed. Moreover, even if the Board agent were to be charged with the sole responsibility for the failure of the investigation to disclose the pertinent information, in the circumstances herein that factor would not militate against the Regional Director's action in reopening the case. As has been held : 8 An administrative agency, charged with the protection of the public interest, is certainly not precluded from taking appro- priate action to that end because of mistaken action on its part in the past.... Nor can the principles of equitable estoppel be applied to deprive the public of the protection of a statute be- cause of mistaken action or lack of action on the part of public officials. Under all of the circumstances, therefore, we do not believe that the complaint herein should be dismissed because of the lapse of time between the period when the charge was withdrawn without prejudice and the case was reopened by the Acting Regional Direc- tor. Accordingly, as we agreed with the Trial Examiner with re- spect to the merits of the case, we shall issue an appropriate 'remedial order as to both Respondents. THE REMEDY Having found that Respondents have engaged in unfair labor prac- tices, we shall require them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that Respondent Employer violated the Act by dis- criminatorily discharging Charles T. O'Brien on February 5, 1962, and refusing to reemploy him. The record shows that Respondent Employer went out of business sometime in March or April 1964. Accordingly we shall not order that Charles T. O'Brien be reinstated. However, as we have also found that both Respondent Employer and Respondent Union 9 are responsible for the discrimination suffered by O'Brien, we shall order them jointly and severally to make Charles T. O'Brien whole for any loss of pay which he may have suffered by rea- son of the discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination, February 5, 1962, to the date on which Respondent Employer went out of business, less his net earn- 8 N.L.R.B. v. Baltimore Transit Company et al. , 140 F. 2d 51, 55 (C.A. 4). 6 As recommended by the Trial Examiner , we shall defer until the compliance stage of this proceeding the determination whether Respondent Bakers Union Local No. 45 affiliated with Bakery and Confectionery Workers International Union of America, is liable as a successor to remedy the unfair labor practices of Respondent Local 45, Ameri- can Bakery and Confectionery Workers International Union (AFL-CIO). SILVER BAKERY INC. OF NEWTON 427 ings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company,"' and Isis Plumbing cC Heating Co." We shall also order Respondents to cease and desist from in any like or related manner infringing upon employees' rights guaranteed by Section 7 of the Act. CONCLUSIONS OF LAW 1. Silver Bakery Inc. of Newton, a Massachusetts corporation, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 45, American Bakery and Confectionery Workers Interna- tional Union (AFL-CIO), and Bakers Union Local No. 45 affiliated with Bakery, and Confectionery Workers International Union of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. By discriminating against Charles T. O'Brien to encourage membership in Respondent Union, Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (3) and (1) of the Act. 4. By causing and attempting to cause Respondent Employer to discriminate against employees in violation of Section 8(a) (3) of the Act, Respondent Union has violated Section 8(b) (2) and (1) (A) of the Act. . 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. The Respondent, Silver Bakery Inc. of Newton , Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in Local' 45, American Bakery and Confectionery Workers International Union (AFL-CIO), or any other labor organization , by discriminatorily discharging employees or, in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self -organization, to form, join , or assist ,the above-named or any other labor organiza- 10 90 NLRB 289 11138 NLRB 716. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right is affected by the provisos in Section 8(a) (3) of the Act. 2.' Take the following affirmative action which the Board finds will effectuate the purposes of the Act: (a) Preserve and, upon' request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount due as backpay. (b) Post at any offices or places of business maintained by it in Newton, Massachusetts, copies of the attached notice marked "Appen- dix A." 12 Copies of said notice, to be furnished by the Regional Direc- tor of Region 1, shall, after being duly signed by authorized repre- sentatives of the Respondent, be posted by Respondent Silver Bakery Inc. of Newton immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or' covered by any other material. (c) At the same places and under the same conditions as set forth above, as soon as forwarded by the Regional Director, post copies of the attached notice marked "Appendix B." (d) Notify the said Regional Director, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent Employer has taken to comply herewith. B. Respondent, Local 45, American Bakery and Confectionery Workers International Union (AFL-CIO), its officers, agents, and representatives, shall: 1. Cease and desist from : (a) Causing or attempting to cause Respondent Silver Bakery Inc. of Newton, its officers, agents, successors, and assigns, to discriminate against employees in violation of Section 8(a) (3) of the Act. ` (b) In any like or related manner restraining or coercing employees of Respondent Employer, in the exercise of rights guaranteed in Sec- tion 7 of the Act, except to the extent authorized in Section 8(a) (3) of the Act. 12 In the 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". SILVER BAKERY INC. OF NEWTON 429 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business office in Boston, Massachusetts, copies of the attached notice marked "Appendix B." 13 Copies of said notice, to be furnished by the Regional Director of Region 1, shall, after being duly signed by a representative of Respondent Union, be posted im- mediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. (b) Post at the same places and under the same conditions, as soon as they are forwarded by the Regional Director, copies of the attached notice marked "Appendix A." (c) Mail to the Regional Director for Region 1 signed copies of the attached notice marked "Appendix B" for posting by Respondent Employer. (d) Notify said Regional Director for Region 1, in writing, within 10 days from the date of receipt of this Decision, what steps have been taken in compliance. C. Respondent, Silver Bakery Inc. of Newton, its officers, agents, successors, and assigns, and Respondent Local 45, American Bakery and Confectionery Workers International Union (AFL-CIO), its officers, agents, and representatives, shall jointly and severally make Charles T. O'Brien whole for any loss of earnings which he may have suffered as a result of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." See footnote 12, supra. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT encourage membership in Local 45, American Bakery and Confectionery Workers International Union (AFL- CIO), or any other labor organization, by discriminatorily dis- charging, or in any other manner discriminating against employ- eesin regard to their hire,or tenure of employment or any terms and conditions of employment. - WE wILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the. exercise of their right to self-organization, to form, join, or assist labor organizations to bargain collectively through representatives of their own choosing, 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and to engage in concerted 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 or- ganization as a condition of employment as authorized in Section 8(a) (3) of the Act. WE WILL make whole Charles T. O'Brien for any loss of earn- ings which he may have suffered because of the discrimination against him. All our employees are free to become, remain, or refrain from be- coming members of the above-named Union, of in any other labor organization. SmvER BAKERY INC. OF NEWTON, Employer. 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, 24 School Street, Boston, Massachusetts, Telephone No. 523- 8100, if they have any questions concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 45, AMERICAN BAKERY AND CON- FECTIONERY WORKERS INTERNATIONAL UNION (AFL-CIO) AND TO ALL EMPLOYEES OF SILVER BAKERY INC. OF NEWTON Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Silver Bakery Inc. of Newton to discriminate against employees in violation of Section 8(a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of Silver Bakery Inc. of Newton in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent authorized in Section 8(a) (3) of the Act. WE WILL notify Silver Bakery Inc. of Newton, in writing, and furnish copies of such notification to Charles T. O'Brien that we have no objection to his employment by said Company. SILVER BAKERY INC. OF NEWTON 431 WE WILL make whole Charles T. O'Brien for any loss of pay he may have suffered because of the discrimination against him. LOCAL 45, AMERICAN BAKERY AND CONI ECTIONERY WORKERS INTERNATIONAL UNION (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, 24 School Street, Boston, Massachusetts, Telephone No. 523- 8100, if they have any questions concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was held before Trial Examiner W. Gerald Ryan at a hearing in Boston, Massachusetts, on January 13 and May 25 and 26, 1964, on the consolidated complaint of General Counsel and the answer of Silver Bakery Inc. of Newton, herein called Respondent Employer; the answer of Local 45, American Bakery and Confectionery Workers International Union, herein called Respondent Local 45, ABC; and the answer of Bakers Union Local No. 45, affiliated with Bakery and Con- fectionery Workers International Union of America,' herein called Respondent Local 45, B & C. At the hearing held on January 13, 1964, motions were heard to dismiss the con- solidated complaint in both cases under Section 10(b) of the Act. At the conclusion of the argument participated in by all the parties, I granted the motions and dismissed the consolidated complaint on the ground that following the knowledgeable with- drawal of the charges, the charges were extinguished and cannot support the consoli- dated complaint. Thereafter the General Counsel petitioned the Board for review of my ruling. On April 2, 1964, the Board issued an order which stated , inter alia: The Board has duly considered the request for review , the motions in opposi- tion thereto, and the entire record in the cases to date. In the opinion of the Board, the issues herein are such that a full and complete hearing on the facts and circumstances is warranted. Accordingly, we shall grant the General Coun- sel's petition for review and shall remand this proceeding for further hearing on all issues and for the preparation and issuance of an appropriate Decision by Trial Examiner W. Gerard Ryan. It is further Order[ed] that, upon conclusion of the hearing, the Trial Exam- iner shall prepare and serve upon the parties a Trial Examiner's Decision con- taining findings, conclusions and recommendations based upon the evidence received pursuant to the provisions of this order, and that following service of such Decision upon the parties , the provisions of Section 102.46 of the Board's Rules and Regulations , Series 8, as amended , shall be applicable. Pursuant to the Board 's Order, hearings were held in Boston, Massachusetts, on May 25 and 26, 1964, in which all parties participated . The issues presented were 1 The name of this Respondent Union conforms to the amendment of complaint at the hearing. 775-692-65-vol . 150-29 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether the consolidated complaint should be dismissed; whether Respondent Local No. 45, B & C, is the successor, alter ego, and continuance of Local 45, ABC; whether Local 45, ABC, continues to be a labor organization within the meaning of the Act; whether Respondent Employer in Case No. 1-CA-3739 violated Section 8(a) (3) and (1) of the Act; and whether Respondent Union Local 45, ABC, in Case No. 1-CB- 753 violated Section 8(b) (2) and (1) (A) of the Act. Counsel for Respondent Employer and counsel for Respondent Union Local No. 45, B & C, participated in oral argument. All the parties except Local 45, ABC, have filed briefs which have been considered. After the close of the hearing the General Counsel filed a motion to strike section IV of the Respondent Employer's brief on the ground that there is no evidence that Respondent Employer reinstated the Charg- ing Party on April 23, 1963, and discharged him 8 days later for cause. The Respond- ent Employer has filed a memorandum in opposition thereto. The question whether O'Brien was reinstated in April 1963 was not litigated at the hearing. There was no testimonial evidence on the point. The only evidence bearing on it is contained in O'Brien's affidavit which was not offered in evidence on that point. The question whether the reinstatement was in good faith may be gone into in the compliance stage of the proceeding if such stage is reached. General Counsel's motion to strike part IV of Respondent Employer's brief is therefore denied. No purpose is to be served by striking the brief in that respect. Instead the matter objected to has been con- sidered and disposed of as above set forth. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT EMPLOYER At all times material herein, the Respondent Employer is and has been a Massa- chusetts corporation maintaining its principal office and place of business at 1136 Beacon Street in the city of Newton, County of Norfolk, and Commonwealth of Massachusetts, where it is now and has been continuously engaged in the processing and retail sale of a variety of bakery products. At all times material herein, the Respondent Employer has been a member of the Greater Boston Hebrew Master Bakers Association, Inc. (herein called the Association), and has authorized the Association to negotiate and sign collective-bargaining agreements on its behalf. The Association and its members, in the course and conduct of their business, cause and continuously have caused at all times herein mentioned, large quantities of foodstuffs, mechanical equipment, and other materials used by them in the processing of bakery products to be purchased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts, and cause and continuously have caused at all times herein mentioned, substantial quantities of bakery products to be sold and transported from said plant in interstate commerce to States of the United States other than the Commonwealth of Massa- chusetts. Annually, the Association and its members, including Respondent Employer, in the course and conduct of their business operations, sell and distribute products, the gross value of which exceeds $500,000. In addition, the Association and its members, including Respondent Employer, receive at their places of business within the Commonwealth of Massachusetts directly from points located outside the Com- monwealth of Massachusetts, materials having a value in excess of $50,000 annually. The complaint alleged, the answers admitted, and I find that the Association is and has been engaged in commerce within the meaning of the Act. The complaint alleged, the answers admitted, and I find that the Respondent Employer, as a member of the Association, is and has been engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondent Local 45, ABC, is a labor organization within the meaning of Section 2(5) of the Act, and has had its principal office and place of business at 1165 Bluehill Avenue, Boston, Massachusetts Respondent Local 45, B & C, is a labor organization within the meaning of Section 2(5) of the Act, and has its principal place of business at 1165 Bluehill Avenue, Boston, Massachusetts. SILVER BAKERY INC. OF NEWTON 433 III. THE PROCEDURAL QUESTION The Section 10(b) Issue The parties stipulated the following facts: 1. On March 8, 1962, O'Brien filed a charge in Case No. 1-CA-3739 against Respondent Employer and in Case No. 1-CB-753 against Respondent Local 45, ABC. 2. On March 13, 1962, an agent of the Board interviewed Philip Dores, Respondent Employer's principal stockholder and general manager. The Board agent made inquiries respecting Respondent Employer's gross volume of business. This phase of the investigation revealed that Respondent Employer's operations did not inde- pendently meet the Board's standards for assertion of jurisdiction over retail enter- prises. The Board agent made no inquiries respecting Respondent Employer's pos- sible affiliation with any employer association and Dores, who was not represented by counsel at that time, volunteered no information in that regard. The Board agent made no inquiry of Respondent Local 45, ABC, respecting the question of jurisdiction. 3. On March 13, 1962, the Board agent successfully solicited withdrawal of both charges. 4. On March 15, 1962, the Regional Director notified all parties that the charges had, with his approval, been withdrawn without prejudice. 5. On June 7, 1962, O'Brien instituted proceedings before the Massachusetts State Labor Relations Commission, alleging as violations of State labor legislation, the same acts which had formed the basis of his charges previously filed with the Board. 6. On April 22, 1963, Respondent Employer, through its counsel, raised the ques- tion of jurisdiction before the Massachusetts State Labor Relations Commission, presenting evidence to the effect that Respondent Employer was, and at all times material had been, a member of the Greater Boston Master Hebrew Bakers Associa- tion, an employer association which clearly met National Labor Relations Board standards for assertion of jurisdiction and over which the Board had asserted juris- diction in Case No. 1-RM-450, in which case the Regional Director had issued a Decision and Direction of Election on April 12, 1963. 7. On or about April 23, 1963, the Massachusetts State Labor Relations Commis- sion dismissed O'Brien's charge on jurisdictional grounds, noting that Respondent Employer clearly was subject to the jurisdiction of the Board. 8. On June 1, 1963, O'Brien, through his attorney, requested the Regional Director to reopen Cases Nos. 1-CA-3739 and 1-CB-753. 9. On July 22, 1963, the Acting Regional Director sent a letter to all parties advis- ing them that the approval of the withdrawal requests in Cases Nos. 1-CA-3739 and 1-CB-753 was revoked and that the cases were being reopened for further investiga- tion into the merits of the allegations. 10. On August 20, 1963, the Acting Regional Director advised the parties that he was refusing to issue a complaint in Cases Nos. 1-CA-3739 and 1-CB-753 on the ground that the investigation had disclosed insufficient evidence of violations. 11. On August 30, 1963, O'Brien, through his attorney, requested review of the action of the Acting Regional Director. 12. On November 12, 1963, the Acting Regional Director issued a consolidated complaint and notice of hearing in Cases Nos. 1-CA-3739 and 1-CB-753. 13. On November 22, 1963, Respondent Local 45, Independent,2 filed a motion to dismiss the complaint on the ground that issuance of a complaint was barred by Section 10(b) of the Act. On November 25, 1963, Respondent Employer filed a similar motion. On the above facts the sole question of law presented is whether the Regional Director may rescind his approval of the withdrawal of the charges, reinstate the charges, and issue a consolidated complaint when more than 6 months have elapsed after charges were withdrawn. - The-withdrawal of the charges and approval thereof were based on a mistaken belief that the Respondent Employer did not meet the Board's standards for the assertion of jurisdiction. The mistake was occasioned by the fact that the Board agent in investigating the charges failed to ask Philip Dores, who at that time was the president and treasurer of Respondent Employer, if the Respondent Employer belonged to an association. If he had asked that question, the answer would have supplied the information that the Respondent Employer was a member of the Greater 2 Now referred to as Respondent Local 45, B & C, pursuant to amendment of complaint. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boston Master Hebrew Bakers Association, an association over whom the Board has asserted jurisdiction. The General Counsel stresses that Philip Dores withheld this information from the Board agent. I find that Dores did not "withhold" such infor- mation in any derogatory sense that he knew it was material and deliberately con- cealed and failed to disclose it. Dores is not a lawyer and was not represented by counsel when the Board agent interrogated him. In my opinion, since it never dawned on the Board agent to ask the pertinent question, it equally never dawned on Dores to volunteer an answer to an unasked question. Approximately 13 months later, on April 12, 1963, the Board'asserted jurisdiction over the Association and on April 22, 1963, the Employer's counsel raised the ques- tion of the State's jurisdiction, presenting evidence that the Association met the Board's standards for jurisdiction. On or about April 23, 1963, the State labor relations commission dismissed O'Brien's charge on jurisdictional grounds, noting that the Respondent Employer was subject to the jurisdiction of the Board. Then followed the revocation of the withdrawal of the charges and the issuance of the consolidated complaint. I recognize that if the consolidated complaint be finally dismissed, O'Brien will be left without relief and deprived of his statutory remedies, because, infra, I have found that on the merits considered apart from this procedural question, the Respondent Union violated Section 8(b) (2) and (1) (A) of the Act and the Respond- ent Employer violated Section 8(a) (3) and (1) of the Act. Conclusion as to the Procedural Matter For the reasons stated at the hearing, and on the record when I dismissed the consolidated complaint, I now confirm such dismissal. IV. FURTHER FINDINGS Since the Board may reverse the dismissal of the consolidated complaint and hold that the consolidated complaint is supported by adequate charges, I make the follow- ing further findings. The consolidated complaint alleged in Case No. l-CA-3739 that in violation of Section 8(a)(3) and (1) of the Act on or about February 4, 1962, the Respondent Employer through its agent Philip Dores, discharged its employee Charles T. O'Brien and at all times since has refused and/or failed to reinstate him to his former or sub- stantially equivalent position of employment. The answer of Respondent Employer denied such allegations and for a further answer averred that O'Brien was discharged on February 5, 1962, because of his failure to provide for a replacement during his absence on February 4, 1962, in accordance with established procedure, his conten- tious deportment and his use of vulgarity; and that O'Brien was rehired on April 24, 1963, and discharged again on or about May 1, 1963, because of coming in 3 hours late, which conduct resulted in hundreds of dollars of merchandise being spoiled. The consolidated complaint alleged in Case No. 1-CB-753 that in violation of Section 8(b)(2) and (1) (A) of the Act, Respondent Local 45, ABC, through its agent George Newman, caused and attempted to cause Respondent Employer to dis- charge Charles T. O'Brien .3 The answer of Respondent Local 45, ABC, denied that George Newman was authorized or acted as an agent of Local 45, ABC, in causing the discharge of O'Brien. The answer of Respondent Local 45, B & C (formerly Bakers Union Local 45 of Boston), denied that the charges referred to in the com- plaint are still pending and denied that there is now any such entity as Local 45, ABC, and further denied that on or about February 4, 1962, Local 45, ABC, through its agent George Newman, caused and attempted to cause Respondent Employer to discharge O'Brien. The Facts Charles T. O'Brien, the Charging Party, worked as a baker for the Respondent Employer for approximately 41/2 years until his discharge on or about February 4, 1963. He was a member of Respondent Local 45, ABC. Itwwas,a practice-that if a baker wanted time off and received permission from his employer to be away from work then the employer or the employee would notify the Union so that a.replace- ment could be sent by the Union. A few days prior to February 4, 1962, O'Brien requested and obtained permission from Philip Dores to be away from work from midnight Sunday, February 4, until 8 a.m. Monday. O'Brien did not notify the Union at any time that he had obtained 3 George Newman at all times during 1962 was business agent for Local 45, ABC, and in February 1963 became business agent foi Local 45, B & C. SILVER BAKERY INC. OF NEWTON 435 permission to be away from work, although he attempted to telephone George New- man, the business agent , on Friday, February 2, without success. Newman did not know of the need for a replacement until Philip Dores telephoned to him on Sunday, February 4, to ask who was the replacement to be sent that night. Newman then tried unsuccessfully to reach O'Brien by telephone but O'Brien was not at home and upon his return O 'Brien was told of the call and telephoned Newman. Newman asked O'Brien "what the hell are you trying to do," and informed O'Brien that Dores had called him to ask who was replacing O'Brien. When O'Brien said he had permission from Dores to be away from work, Newman replied, "You son-of-a-bitch. You are going to work tonight or you will never work at all." O'Brien.did not work from midnight Sunday, February 4, through 87a:nf..,- Monday, February 5. The Union supplied his replacement. On Monday, February 5, during O'Brien's absence from home, Dores called O'Brien's mother, Mrs. Boehler (formerly Mrs. O'Brien ), and when she told him O'Brien was not at home, he said he wanted her to tell O'Brien not to report for work that night; that Newman had telephoned him (Dores ) and told Dores to tell O'Brien not to go in to work that night because if he did Newman would pull out every man working there. When she asked Dores how "you people could do a thing like this" after all the years O'Brien had worked faithfully for him, Dores replied, "Don't blame me Mrs. O'Brien because I am in the middle. Mr. Newman has ordered me to do this. There isn't a thing I can do. I have been put in the middle by Mr. Newman." When O'Brien returned home in the afternoon of Monday, February 5, he tried to telephone Dores but was unable to reach him. He did not go to work at mid- night Monday as expected because of Dores' message to him relayed by his mother. On Monday, February 5, Leo O'Brien (Charles O'Brien's brother) telephoned Dores and asked what had happened. Dores told him that Newman was on the war- path and would not let his brother work . Dores asked Leo O'Brien to speak to Newman to see if he could straighten out the situation . Leo O'Brien telephoned to Newman on that same day or the day following and Newman (referring to Charles O'Brien ) in the conversation said "that little bastard will never work again as long as I am here." The credited testimony of Leo O'Brien on which the foregoing is found stands uncontradicted. About 10 a.m. Tuesday, February 6, Charles O'Brien telephoned Newman and said he understood Newman had told Dores that if O'Brien went to work Newman would pull -all the union men out of the shop. New _ man denied he said that to Dores and said that Dores had fired him . O'Brien then telephoned Dores and asked if he had fired him. Dores replied, "Charlie, don't put me in the middle. I didn't fire you ... George Newman fired you and George said if you came into work he would pull all the union men out of the shop one by one." O'Brien did not work Tuesday night. On Wednesday, February 7, O'Brien, accompanied by his friend Richard Keogh, went to the bakery and asked Dores to put him back to work. Dores replied he would like to but was afraid of Newman who said he would pull all the men out of the shop. Dores asked O'Brien to see Newman and O'Brien agreed . Again O'Brien asked Dores to be put back to work and he received, the same reply from Dores. Keogh corroborated O'Brien's testimony .4 Later that day O'Brien went to see New- man. He asked if he had any work for him and Newman said no. 'On cross -examination an attempt was made to establish an inconsistency in O'Brien's testimony . On the witness stand O'Brien had testified that Dores had not suggested he apologize to Newman It was pointed out to O 'Brien that in his affidavit he had said that Dores had told him he should apologize to Newman . However, O'Brien's testimony on the witness stand respecting the matter of an apology was given not in the broad con- text of the statement in his affidavit but in a much narrower context which had been established by the preceding questions of Respondent's attorney . Thus, Respondent's at- torney had inquired whether O 'Brien had called Dores and/or Newman a "Jew bastard" O'Brien denied having used such language Respondent Employer's attorney having thus limited the scope of the inquiry, then asked O'Brien whether Dores had suggested an apology. In this limited context which was entirely different from the context set forth in his written affidavit, O'Brien gave a negative answer. Keogh also testified in answer to a question by Respondent Employer 's attorney , that Dores had not asked O'Brien to apologize. The entire context of his testimony however, shows that he simply could not remember the use of that exact word but that he would not dispute the fact that Dores had in some way suggested that O'Brien work out his difficulties with Newman. In these circumstances I do not consider there was 'any material inconsistency between O'Brien's affidavit and the testimony of either O'Brien or Keogh. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Wednesday, February 14, O'Brien went to the bakery again accompanied by Keogh. O'Brien asked Dores to accompany him to the union hall and tell Newman he had not fired O'Brien. Dores said he would like to but was afraid Newman would pull all the men out of the shop. After February 14, O'Brien telephoned Newman 10 or 12 times and asked for work, but Newman said he had no work for him. ' About 10 days after February 14, O'Brien again asked Dores to put him back to work but Dores said he could not, that Newman was the boss; and if he did put O'Brien back to work he would not get any more men. The foregoing findings are based on the testimony, which I credit, of Charles T. O'Brien, Leo E. O'Brien, Richard P. Keogh, and Mrs. Margaret Boehler. I discredit the testimony of George S. Newman and Philip Dores wherein such testimony contra- dicts the foregoing findings.5 Other evidence in the record establishes beyond question that Newman had sought and caused the discharge of Charles, O'Brien. Newman's testimony to the contrary 'isdiscredited. Both Newman and Dores testified to a telephone conversation between them prior to the conversation between Newman and O'Brien. On cross-examination General Counsel asked Dores whether or not in a telephone conversation, Newman had told Dores that as far as he (Newman) was concerned, O'Brien was through. Dores denied that Newman ever made that statement. Dores was then confronted with his prehearing affidavit in which he had stated that Newman told him O'Brien was through. After examining the affidavit, Dores then testified from present recol- lection that Newman had in fact told him that O'Brien was-through. Such an admis- sion constituting as it does an admission against interest, establishes that Newman had demanded the discharge of O'Brien, and from that it is a reasonable inference that any subsequent action by Dores was taken directly as a result of Newman's statement. At another part of his testimony Dores further admitted telling O'Brien that he had not fired O'Brien. Such a damaging admission, since it goes to the very heart of the case, directly contradicts the Respondent Employer's defense that it was the employer who decided to discharge O'Brien. After eliciting that admission, General Counsel asked Dores whether he had ever told O'Brien that Newman had said he (O'Brien) was fired. Dores did not deny having made such a statement but answered by saying he could not recall. When the General Counsel asked Dores whether Newman had said he did not want O'Brien working, Dores again failed to answer in the negative but simply replied he could not recall. When General Counsel asked Dores whether Newman had stated that he would pull all of the men out of the shop in the event that O'Brien went to work, Dores failed to deny that Newman had made such a statement and testified that he could not remember. Newman's threats to pull the men out of the shop would be extremely credible and serious in the eyes of Dores because of the past history in the shop. Thus, O'Brien testified that Newman had pulled the men out of the shop on a previous occasion in 1960, and that Newman himself had told O 'Brien on that occasion not to go to work. Both Newman and Dores admitted that Newman had pulled the men out on that prior occasion. When the General Counsel inquired whether Dores had discussed with O'Brien the subject of not getting his men, Dores replied, "If there was any subject discussed, it was just shortly. I cut it short. I didn't want to make any long discussions of anything of that sort." [Emphasis supplied.] Such a damaging admission again corroborates the testimony of O'Brien. About 5 or 6 weeks after the discharges of Charles O'Brien, Dores called Leo O'Brien, and asked him to come into the shop. When Leo arrived at the shop, Dores offered to give both Leo and Charles jobs in the shop which would then be operated as a nonunion shop. The General Counsel in his brief points out, and I agree, that 5 The demeanor of Dores and Newman, in my opinion, fits the description that the demeanor of a witness ". . . may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating , and that, if he is, there is no al- ternative but to assume the truth of what he denies." Dyer v, MacDougall, 201 F. 2d 265, 269. That comment, in my opinion, applies to the testimony of Dores and Newman on crucial issues, apart from their admissions. 0 SILVER BAKERY INC. OF NEWTON 437 this testimony simply shows that Dores had no animosity toward Charles O'Brien and that such an offer to Charles O'Brien is hardly in keeping with the Employer's defense that Dores himself decided to discharge O'Brien. It is in accord with the testimony of O'Brien to the effect that Dores on several occasions said that he would like to take O'Brien back but was afraid of George Newman. When Newman was questioned by his attorney inquiring whether Newman had told O'Brien he would fire O'Brien, Newman replied, "I don't have the power to hire or fire, I did not." When he was asked whether he had told Dores he would pull the men out of the shop, Newman replied, "I never did, it would be a violation." The record shows that Newman never referred O'Brien'for work after the events of early February 1962. Newman testified that O'Brien was later referred to work by the Union. On cross-examination, however, General Counsel elicited the admis- sion that O'Brien was referred for only 3 days of work and that such referral was made by Union Agent Norman at a time when Newman was out of town and that O'Brien was never again referred for work. It is reasonable to infer that this one referral of O'Brien occurred without the knowledge or sanction of Newman. Respondent Employer contends that it was Dores on his own initiative who dis- charged O'Brien. A document stating that O'Brien was being discharged by Dores was admitted into evidence which on its fact indicates that Dores had written to the Union to advise Newman that he (Dores) was discharging O'Brien., Cross-examina- tion of Newman and Dores, however, showed the fact to be quite the contrary. New- man admitted that the letter in question was typed in the union hall by Union Agent Norman on the Union's typewriter. Newman testified that when Dores arrived at the union hall he had no document in his possession,but that he sat down in the union hall and wrote out the letter in longhand while Newman watched. Newman testified that he then read the handwritten statement, Norman typed it, and Dores then signed it . Dores made similar admissions but there is one major inconsistency between the testimony of Newman and Dores. Newman testified that Dores arrived at the union hall without any document and sat down in the union hall and wrote the letter. Dores testified that his accountant wrote the handwritten statement for him in his own office at the bakery and that he had the handwritten statement with him when he arrived at the union office. It is clear to me however, that Dores did not discharge O'Brien and then notify the Union. The facts to me indicate that, on the contrary, Dores went to the union hall, that Newman dictated the discharge of O'Brien, and then instructed Dores to perform the ministerial function of signing the discharge letter which Union Agent Norman and Newman had conceived, composed, and then typed. Thus, it is clear that Dores performed the ministerial act of dis- charging O'Brien by way of affixing his signature to a letter at the specific direction and demand of the union agent. The rule requiring an employee to notify the Union of an intended absence was an informal rule. It does not appear in the_contragt which is in evidence. In addi- tion,'Newman admitted that the rule does not appear in-the-bylaws-of the Union and has never been distributed in writing t6-the eployees but appears only in the-min- utes of 'a-union meeting-- Thus-,if-is clear that`the rule is not part of the contractual arrangement or the hiring hall agreement between the Union and the Employer but is simply an internal rule of the Union. The Respondent Employer has moved to dismiss the complaint on the ground that the allegations contained therein do not make out a cause of action. That motion is denied on the ground that the complaint clearly states a "cause of action" under the Act. The aforementioned acts of the Respondents are such as would upon a proper com- plaint constitute unfair labor practices within the meaning of Section 8(a)(3) and (1) and Section 8 (b) (2) and (1) (A) of the Act and require appropriate remedial action. I find it unnecessary to determine whether Local 45, B & C, is the successor, alter ego, and continuance of Local 45, ABC, which is still in existence for any remedial order may be directed to Local 45, ABC, its officers, representatives, agents, suc- cessors, and assigns. Such determination can be disposed of in the compliance stage, if reached, in these proceedings. RECOMMENDED ORDER The dismissal of the consolidated complaint should be affirmed.