C & D Coal Co.

National Labor Relations Board - Board Decisions

Mar 15, 1951

93 N.L.R.B. 799 (N.L.R.B. 1951)

C & D COAL COMPANY 799
policies , or that the secretary has access to any confidential informa-
tion pertaining thereto. Accordingly, we will include her in the
unit to
We shall direct an election by secret ballot to be held among the
employees in the chemical laboratory of the Employer's Carteret, New
Jersey, plant, including the gangleaders and the secretary, but ex-
cluding chief chemist," the research chemist,12 the head sampler,13 the
spectrograph gangleader, guards, professional employees, and super-
visors as defined in the Act. If the employees in the foregoing voting
group do not select the Intervenor, the Intervenor will be decertified
as to them; if on the other hand, they select the Intervenor, they will
be taken to have indicated their desire to continue to be included in
the production and maintenance unit now represented by the
Intervenor.14
[Text of Direction of Election omitted from publication in this
volume.]
10 Wise, Smith & Company, Inc ., 83 NLRB 1019.
11 This employee is in direct charge of the chemical laboratory . We shall exclude him
as a supervisor.
12 In agreement with the parties we shall exclude this employee as a professional empl-yee.
1aThis employee does little, if any, work in the laboratory . In any event we shall
exclude him as a supervisor inasmuch as he responsibly directs the activities of plant
foremen.
14 Mountain States Telephone and Telegraph Company, 83 NLRB 773.
C & D COAL COMPANY AND C & D TRUCKING COMPANY and INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, GENERAL TEAMSTERS' UNION No. 428,
AFL. Case No. 8-CA-360. March 15, 1951
Decision and Order
On November 22,1950, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting
brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
1 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 Houston , Reynolds, and Styles].
93 NLRB No. 137.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the Intermediate Report, the Respond-
ents' exceptions and brief , and the entire record in the case, and hereby
adopts the findings, conclusions , and recommendations of the Trial
Examiner with the following additions , exceptions , and modifications.
We agree with the Trial Examiner that the Respondents unlawfully
denied work to the employees listed in Appendix A attached hereto
during the period from March 22 to on or about April 19, 1950.
During the early part of March 1950, the business of the Coal Com-
pany suffered a serious decline. Although Schiappa , the president of
the Coal Company , was aware that the Coal Company had little or no
driving work for the truck drivers, he wished to retain their services.
Accordingly , on March 18, 1950, Schiappa offered the truck drivers a
weekly salary of $65 to do whatever work was available , including
common labor. The drivers , after considering the offer among them-
selves, accepted ; and, on the next workday, March 20, they performed
their usual driving duties.
On March 21, the Coal Company had no truck-driving work for the
truck drivers ; consequently , they were instructed in the morning by
their foreman to report to the tipple to do common labor. Fourteen
of the truck drivers, who are named in the complaint as subjects of
the Respondents ' discrimination , objected to the common labor detail,
and did not report to the tipple as directed . Instead, they went to the
Union's office , where they signed application blanks authorizing the
Union to act as their bargaining agent. Five other employees of the
Coal Company, tipple workers , who are also named in the complaint
as subjects of the Respondents ' discrimination , also signed such union
application blanks either on March 21 or 22 , and were absent
from work on one or both of -these dates.
During the afternoon of March 21 , the Union 's business agent and
three of the employees who had signed union application blanks visited
the Coal Company's offices. They informed the Coal Company's
superintendent and its bookkeeper that the truck drivers and tipple
employees had joined the Union and that the Union was claiming bar-
gaining rights on behalf of those employees . The Union 's representa-
tion claim was also set forth in a letter that was dispatched to the Coal
Company on the same day.
During the evening of March 21, the Coal Company's bookkeeper
instructed the truck foreman to tell any of the absent employees who
might inquire that there was no work for them. Thereafter , and until
on or about April 19, 1950, although many of the employees who had
joined the Union, individually , and their selected stewards on behalf
of all of them, repeatedly requested work, they were told by manage-
ment that none was available . On April 13 , 1950, in response to a let-
ter from the Union requesting the reinstatement of the truck drivers
C & D COAL COMPANY 801
and the tipple workers, Schiappa notified the Union that the Coal
Company had disposed of its trucks and tipple, and hence would
have no work for the employees in question. In fact, the Trucking
Company, with virtually identical principal officers and stock owner-
ship, was incorporated on March 29, 1950, to take over the Coal Com-
pany's trucking operations, and shortly thereafter the Trucking Coin-
pany engaged in what was formerly the Coal Company's trucking
operations.
On or about April 19, 1950, the Trucking Company reinstated the
19 employees. During the period from March 21 to on or about April
19, 1950, there was some work available for these employees, and the
Respondents hired replacements to do trucking work.
In their brief the Respondents assert, as a defense to the charge of
discrimination, that they did not bar the truck drivers from work, but
that the truck drivers voluntarily ceased work on March 21 and were
subject to discharge because they refused to perform common labor.
We-need not, however, determine whether the truck drivers embarked
on a strike on March 21, because they thereafter applied for work and
thus ended any alleged strike. Nor need we determine whether the
Respondents were free to discharge or otherwise discipline them for
refusing to perform a part of the duties to which they had been
assigned. For the Respondents, on the many occasions between March
21 and April 19 when they had the opportunity so to do, never referred
to the refusal of the truck drivers to perform common labor as the
reason for denying them or the tipple workers other work, and never
disciplined them for refusal to do common labor. Instead, although
the Respondents were repeatedly asked by these employees concerning
the availability of any work, they stated only that none was available.
Their complete silence in this respect indicates to us that the Respond-
ents in fact were concerned with something other than the refusal of
the truck drivers to perform common labor.
What the Respondents actually were concerned with, we believe,
was the fact that the employees had joined the Union. Immediately
before the truck drivers joined the Union, Schiappa, president of both
Respondents, chose to retain their services, even though he foresaw
that he would have little work for them to do. Immediately after
the truck drivers joined the Union, however, they were informed
by management that there was no work available for them-an as-
sertion which was untrue both with respect to truck-driving work
and the operation of the tipple. In the absence of any showing that
the Coal Company's business prospects in the interim had further
deteriorated, this misrepresentation, occurring so soon after the Union
had been brought into the Coal Company's employment picture, ap-
pears to us, as it did to the Trial Examiner, to have been motivated
943732-51-52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Schiappa's desire to rid himself of the employees who had joined
the Union. Supporting this conclusion is the credited testimony of
Foreman Londino that, about a week after March 21, he was told by
Superintendent Merenda that "if the men would be out long enough,
they would get other jobs." We attribute this abrupt change in the
attitude of the Respondents with respect to the desirability of retain-
ing the services of the truck drivers to the employees' adherence
to the Union.
Other facts here present also support our belief that the Respond-
ents denied the truck drivers employment because of an intent to dis-
criminate against union adherents. As set forth above, Schiappa
wrote to the Union on April 13 that no more work would be available
for the truck drivers and tipple workers because of the disposition
of the Coal Company's trucks and tipple. Although it is true that
the Coal Company had disposed of the assets in question, as the Trial
Examiner states, Schiappa failed to mention the fact that the disposi-
tion involved no more than a transfer from one legal entity to
another, and that ultimate control of the assets and business remained
unchanged. Thus Schiappa sought to mislead the Union concerning
the availability of work. Finally, as is detailed in the Intermediate
Report, the Respondents' hostility toward the Union is amply shown
by the series of events which led the Trial Examiner to the conclu-
sion, with which we agree, that the Respondents demonstrated a lack
of good faith in their bargaining relations with the Union, and un-
lawfully refused to bargain collectively.
Under the circumstances we find that, by denying the 19 employees
involved here such trucking and tipple work as was available during
the.period from March 21 to on or about April 19, 1950, the Respond-
ents discriminated with respect to their hire and tenure of employ-
ment in order to discourage membership in the Union, in violation
of Section 8 (a) (3) of the Act, and thereby interfered with, re-
strained, and coerced their employees inothe exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1)
thereof.'
The Remedy
As the 19 employees were discriminatorily denied work, they should
be awarded back pay from March 21, 1950, the first date of discrimi-
nation against them, to on or about April 19, 1950, the date when
they were reinstated pursuant to the terms of a settlement agree-
ment. We agree with the Trial Examiner that the settlement agree-
ment is no bar to such a back-pay award, as the Respondents breached
x Unlike the Trial Examiner, we do not rely on the March 31 Incident in which Schiappa
ordered the truck drivers from the Coal Company's premises, to support our conclusion that
the Respondents violated the Act.
C & D COAL COMPANY 803
the settlement agreement and engaged in unfair labor practices sub-
sequent thereto.3 We do not, however, adopt the Trial Examiner's
recommendation that, in computing the back pay of the truck drivers,
effect should be given to the agreement of March 18 to pay them a
weekly wage of $65. As we have found, that agreement was based
on the understanding that the truck drivers would do whatever work
was available. In view of the truck drivers' refusal to perform com-
inon labor, we shall limit the back-pay award recommended by the
Trial Examiner, by requiring the Respondents to reimburse the 14
truck drivers only to the extent that they may have suffered loss
of wages resulting from the denial of such truck-driving work as was
available during the period of discrimination. The back pay for the
14 truck drivers shall be computed on the basis of the rate of pay
which the Respondents paid to the employees hired to replace these
truck drivers. The Respondents shall make whole the 5 tipple work-
ers discriminated against for loss of wages that they may have sus-
tained by reason of the Respondents' denial of work in connection
with the operation of the tipple during the period of discrimination.
Consistent with the Board's usual practice,4 loss of pay for the 19
employees shall be computed on the- basis of the portions of the separ-
ate calendar quarters, beginning on the first day of January and April
1950, during which the Respondents' discriminatory action existed.
Loss of pay shall be further determined by deducting from a sum
equal to that which each of the employees would have earned for the
applicable portion of each quarter, his net earnings,5 if any, during
such times in each quarter as the Respondents had truck driving or
tipple work available, as the case may be. Earnings in one particular
quarter shall have no effect upon the back-pay liability for the other
quarter.
In conformance with the Board's usual practice, we shall also order
the Respondents to make available to the Board, upon request, pay-
roll and other records to facilitate the checking of the amount of the,
back-pay award.'
We find that the Trucking Company is the Coal Company's succes-
sor insofar as its trucking operations are concerned because of the
common stock ownership, the similarity in principal officers, and in
view of all the circumstances under which the Trucking Company
3 The General Fireproofing Company, 59 NLRB 375.
' See F. W. Woolworth Company, 90 NLRB 289.
c By "net earnings" is meant earnings less expenses, such as for transportation, room, and
board, incuired by an employee in connection with obtaining work and working elsewhere,
which would not have been incurred but for the unlawful discrimination and the consequent
necessity of his seeking employment elsewhere. Crossett Lumber Company, 8 NLRB 440.
Monies received for work performed upon Federal, State, county, municipal, or other work-
relief projects shall be considered earnings . Republic Steel Corporation v. N L R. B ,
311 U. S. 7.
6 See F. W. Woolworth Company, .supra.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued the trucking operations formerly conducted by the Coal
Company. As we regard both corporate entities as identical and
inseparable for the purpose of safeguarding the statutory rights of
the truck drivers and tipple workers here involved, and in order to
effectuate the policies of the Act, we shall order both Respondents
to remedy the unfair labor practices that each committed.7
Order*
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, C & D Coal Company
and C & D Trucking Company, Steubenville, Ohio, their officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Gen-
eral Teamsters' Union No. 428, AFL, or in any other labor organiza-
tion of their employees, by discriminatorily refusing work to their
employees, or by discriminating in any other manner in regard to
their hire and tenure of employment or any term or condition of
employment ;
(b) Refusing to bargain with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, General
Teamsters' Union No. 428, AFL, as the exclusive bargaining repre-
sentative of all their truck drivers and tipple workers, excluding office
and clerical employees, guards, watchmen, professional employees,
and supervisors as defined in the Act;
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Brotherhood
,of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
General Teamsters' Union No. 428, AFL, or any other labor organiza-
tion, 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, and to refrain from
any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
' See National Garment Company , 69 NLRB 1208.
C & D OCOAL COMPANY 805
ica, General Teamsters' Union No. 428, AFL, as the exclusive repre-
sentative of all truck drivers and tipple workers in the above-
described appropriate unit, with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment, and
if an understanding is reached, embody such understanding in a
signed agreement;
(b) Make whole the employees whose names are listed in Appen-
dix A, attached hereto, in the manner set forth in the section of this
Decision entitled The Remedy, for any loss of pay each may have
suffered as a result of the Respondents' discrimination against them;
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
amounts of back pay due under the terms of this Order;
(d) Post at their garage, their tipples, and at other appropriate
and conspicuous places where notices are customarily posted, copies
of the notice attached hereto and marked Appendix B.8 Copies of
such notice, to be furnished by the Regional Director for the Eighth
Region, shall, after having been signed by the Respondents' respective
representatives, be posted immediately by the Respondents upon
receipt thereof, and maintained by them for sixty (60) consecutive
days thereafter. Reasonable steps shall be taken by the Respond-
ents to insure that said notices are not altered, defaced, or covered
by any other material;
(e) Notify the Regional Director for the Eighth Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
Appendix A
Paul R. Ralston
Norman M. Gatten
Mark M. Hufford
Donald C. Taylor
Vernon Schwertfeger
Harold E. Meneely
Jerry S. Greenwood
Samuel J. Bryan
George W. Greenwood
Ralph O. Wood
Howard E. Morris
Edward Kollar
Walter J. Potts
Arliss D. Parks
Cecil Van Dine
Lawrence Van Dine
Richard J . Spencer
John Engstrom, Jr.
Harry Marangoni-
In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," the words , "A Decree of
the United States Court of Appeals Enforcing."
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, GENERAL TEAMSTERS' UNION No. 428, AFL,
or in any other labor organization of our employees, by discrimi-
natorily refusing work to our employees, or by discriminating in
any other manner in regard to their hire and tenure of employ-
ment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist the aforesaid
labor union, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from any
or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8
(a) (3) -of the Act.
WE WILL make whole in the manner provided in the Decision
and Order, the employees named below for any loss of pay suffered
as a result of our discrimination against them :
Paul R. Ralston Howard E. Morris
Norman M. Gatten Edward Kollar
Mark M. Hufford Walter J. Potts
Donald C. Taylor Arliss D. Parks
Vernon Schwertfeger Cecil Van Dine
Harold E. Meneely Lawrence Van Dine
Jerry S. Greenwood Richard J. Spencer
Samuel J. Bryan John Engstrom, Jr.
George W. Greenwood Harry Marangoni
Ralph O. Wood
WE WILL bargain collectively, upon request, with the aforesaid
labor union as the exclusive representative of our truck drivers
and tipple workers in the bargaining unit described below with
respect to rates of pay, wages, hours of employment, or other
terms or conditions of employment, and, if an understanding is
C &-D COAL COMPANY 807
reached, we will embody such understanding in a signed agree-
ment. The bargaining unit is :
All truck drivers and tipple workers, excluding office and cleri-
cal employees, guards, watchmen, professional employees, and all
supervisors as defined in the Act.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of the aforesaid union, or any other
labor organization. We will not discriminate in regard to hire or
tenure of employment, or any term or condition of employment,
against any employee because of membership in, or activity on behalf
of, any labor organization.
C & D COAL COMPANY,
By --=------------------------
(Representative ) (Title)
C & D TRUCKING COMPANY,
---------------------------
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Mr. John Garver, for the General Counsel.
Mr. Clifford A. Weisel of Paul, Laun•ence & Rook, of Pittsburgh , Pa., for the
Respondent.
Mr. G. C. Soisson , of Weirton, W. Va., for the Union.
STATEMENT OF THE CASE
Upon a charge filed on April 11, 1950 , by International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Teams-
ters Union No. 428, AFL, herein called the Union , against C & D Coal Company
and C & D Trucking Company, herein jointly called the Respondents , and in-
dividually called the Coal Company and the Trucking Company, respectively, the
General Counsel for the National Labor Relations Board, the latter hereinafter
called the Board , by the Regional Director for the Eighth Region ( Cleveland,
Ohio ), on August 11, 1950, issued his complaint , alleging that the Respondents
had engaged in and were engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1), (3 ), and (5 ) and Section 2 (6) and ( 7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
With respect to unfair labor practices , the complaint alleged in substance that
from about March 21, 1950, to the date of the complaint , the Respondents had
(a) threatened and warned their employees to refrain from assisting , supporting,
becoming members of , or remaining members of , the Union ; ( b) bargained in-
dividually and unilaterally with their employees ; ( c) attempted to induce and
induced employees to execute documents repudiating the Union ; ( d) threatened
and committed physical violence and bodily harm on employees engaging in
union and other concerted activities ; ( e) granted wage increases and other
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic benefits to their employees unilaterally although the Union was en-
gaged in representing said employees; further, that Respondents had on about
March 22, 1950, terminated the employment of 19 named employees, and there-
after until April 18 refused to reinstate 5 of them ; had on about May 31, 1950,
terminated the employment of another named employee' and thereafter refused
to reinstate him ; and that such terminations and denial of reinstatement was
to discourage membership in the Union and was for the reason that they had
joined or assisted the Union or engaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protection ; and finally, that on about
March 22, 1950, and at all times thereafter, the Respondent refused to bargain
with the Union although the Union represented a majority of the employees in
an appropriate unit and had requested the Respondents to bargain with it.
The Respondents on August 22, 1950, filed a joint answer dated August 17,
1950, in which they denied the appropriateness of the unit alleged, denied that
the Union was the exclusive representative of employees of either Respondent ;
the Coal Company denied that it had been requested to bargain or that it had
refused to bargain ; the Trucking Company admitted that the Union had on
about March 21 and at various other times requested it to bargain, but denied
that it had refused to bargain, averring that it had in fact bargained in good
faith with the Union.
Pursuant to notice, a hearing was held at Steubenville, Ohio, on October 3
to 6 both inclusive, 1950, before me, the duly designated Trial Examiner. The
General Counsel and the Respondents were represented by counsel and the
Union by the president of the local. Full opportunity was afforded all parties
to be heard, to introduce evidence, and to examine and cross-examine witnesses.
At the opening of the hearing, counsel for the General Counsel, hereinafter
called G. C. counsel, moved to amend the pleadings and exhibits to show the
Respondents' names as prefaced by the word "The." The motion was granted.
He also moved to amend certain paragraphs of the complaint by changing
the date when the Trucking Company was alleged to have started.in business
from March 22 to March 29. At the close of the hearing G. C. counsel moved to
amend the complaint further by changing the date to which the Respondent
was alleged to have refused to reinstate the 19 employees, from April 18 to
April 19 as to all and moved to dismiss the allegations as to Potts altogether.
The motions were granted. The parties waived oral argument and the Respond-
ents' counsel requested time in which to file a brief and proposed findings of
fact and conclusions of law. Time was fixed and later was extended, but no
briefs or proposed findings of fact and conclusions of law were received.
Upon the entire record and from my observation of the witnesses, I make the
following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The Coal Company, an Ohio corporation' with its principal office and place
of business in Steubenville, Ohio, is engaged in the business of the mining, sale,
and distribution of coal and, until about March 29, 1950, in the trucking of
coal and the operation of a coal tipple. During the year 1949 it mined and
sold coal in and about Steubenville, Ohio, to (a) Glen Brook Coal Company
valued in 1949 at about $170,000, which was delivered to the Pennsylvania
Railroad yards at Mingo Junction, Ohio, for sale to and use by the Ohio Power
1 Walter J. Potts.
2It was incorporated in January 1949 . It had formerly done business as the Home
Coal Company.
C & D COAL COMPANY 809
Company, Tid Plant, at Brilliant, Ohio; (b) to the New York Central Railroad
in Amsterdam, Ohio, for customary railroad purposes through the brokerage
of P & 0 Coal Company valued at between $60,000 and $70,000; and (c) during
November and December 1949 mined and sold coal valued at $25,000 to McQuown
Fuel Company of Pittsburgh, Pennsylvania, making delivery thereof to the
railroad at Mingo Junction, Ohio. During 1949 the Coal Company purchased
and received from the Dodge Motor Car Company, 3 trucks valued at approx-
imately $12,000. During 1950 it purchased and received delivery of 11 Dodge
trucks valued at $33,000, and 4 International trucks valued at $7,000. It
leases from its president, Dan Schiappa, equipment and tools such as are used
in mining operations. During 1948 Schiappa bought mining equipment valued
at $280,000, consisting principally of shovels, machinery, physical supplies, and
tools used in mining from the Marion Power and Shovel Company at Marion,
Ohio. During 1949 Schiappa bought a bulldozer valued at $18,000 for use of
the Coal Company from the Beckwith Machinery Company. The bulldozer was
shipped to Steubenville, Ohio, from Pittsburgh, Pennsylvania.
The Trucking Company was incorporated as an Ohio corporation on about
March 29, 1950. It maintains its principal office and place of business in
Steubenville, Ohio. It took over the operation of the trucks that haul coal for
the Coal Company. From all the evidence, I find that practically no operational
changes were effected by the Trucking Company. As a result of the interlocking
ownership and management, the trucking operations of the Trucking Company
were carried on as an adjunct to the operations of the Coal Company just as
before the incorporation.
The Respondents admit that they are engaged in commerce within the meaning
of the Act and I so find.
U. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, General Teamsters' Union No. 428, affiliated with the
American Federation of Labor, is a labor organization admitting to member-
ship employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. The Respondents' ownership, supervision, and operations
The stock in the Coal Company is owned by Dan Schiappa and his wife, Mary,
and by Emma Bowman, Mary Tatonetti, Ed. Dittrich, and Carmen Muni. Schi-
appa is president, his wife is secretary and treasurer, and Carmen Muni is vice
president. The field operations are under the supervision of Superintendent
Frank Merenda. In the early part of 1950, Loncy Londino was foreman of the
truck drivers. The Coal Company is and has been at all times material herein
engaged in strip mining in various locations within a radius of 16 miles of
Steubenville. The dirt is stripped off the surface and the coal is exposed.
Trucks enter the pits, where they are loaded with coal by power shovels.
They then carry it either to a tipple, one of which is a mile north of Steuben-
ville,8 or direct to customers.` Before March 1950 the Coal Company had 18
8 There is evidence that there is another tipple 15 or 16 miles from Steubenville, which
supplies coal going to the New York Central Railroad It does not appear whether or not
this tipple was owned or operated in March, April, and May, 1950, when the events here
involved transpired.
* Some customers were permitted to have their own trucks loaded at the pit. The
Trucking Company's trucks carried coal direct from the pits to the power plant of the
Ohio Edison Power Company at Toronto, Ohio, after May 1, 1950.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trucks. The Trucking Company was organized in the latter part of March of
this year, the stockholders being Schiappa, his wife, and Muni, who are respec-
tively president, vice president, and secretary-treasurer. Since its organiza-
tion, the Trucking Company has done all the trucking formerly done by the
Coal Company.
B. The events in March 1950
The Coal Company, which had done'a flourishing business during the general
coal strike and up to the middle of March 1950, was faced at that time with a
cancellation of orders and with no new orders. On March 17, President Schiappa
told Foreman Londino to assemble the truck-drivers the next day at the tipple.
At 11: 00 a. m. on Saturday, March 18, which was not a working day, Schiappa
told the truck drivers that be had no work for them but that he would give them
$65 for 6 days a week if they wanted to stay around.5 Up to this time the truck
drivers had been paid on an hourly basis of $1.20 for straight time with time and
a half for overtime. For the $65 a week each man was to report 6 mornings
a week.
On Monday, March 20, the truck drivers reported for work, and 14 of them were
used for hauling coal. There were 3 extra drivers who were not used because no
trucks were available. That night Superintendent Merenda told Foreman
Londino that there would be no coal to haul the next day and that the men
should report to the tipple to do laboring work on a ramp that was being built.
Early Tuesday morning the men reported for work at the garage. Foreman
Londino was not yet there. After receiving a telephone call, one of the drivers
told the others that they were all to go to the Lighthouse, a restaurant about a
mile from the tipple, for coffee. From the Lighthouse, Walter Potts telephoned
Londino at his home and made arrangements to pick him up in his car. Potts
brought Londino to the Lighthouse, where they all had coffee. While they were
there, Schiappa came in for a cup of coffee. Before leaving, Schiappa asked
Londino when they were going to work, but he testified that he did not question
them too much because "there wasn't too much to do." Schiappa at that time
was on his way to Cleveland. Londino told the men that they should go to the
tipple and do laboring work on the ramp. The drivers expressed disgust that they
should be asked to do laboring work when they were hired as truck drivers, some
saying that they were not dressed for that. Londino told them that if they
did not want to do that work they might as well go home because there was
nothing else to do.
Potts gave his car to Londino to drive to the garage. He and the other drivers
went to a tavern, where they discussed joining a union. They got in touch
with James Joyce, business agent of the Union, and he went to the tavern to
tell them about it. Fourteen truck drivers and 2 of the laborers who did work
around the tipple went to the union office and signed application cards for the
union and dues deduction authorizations.
Early that afternoon, Joyce and three of the drivers, Walter Potts, George
Greenwood, and Paul Ralston, went to Schiappa's office for the purpose of
claiming recognition of the Union, but Schiappa was still in Cleveland. During
the day, Schiappa telephoned in to the tipple and was then informed that the
drivers had all joined the Union and were not around to do any work on the
3 Emma Bowman , bookkeeper for the Respondents and stockholder in the Coal Company,
testified that this was done in order to keep the best truck drivers.
C & D COAL COMPANY 811
ramp construction. On the same day, G. C. Soisson, president of the Local, wrote
a letter to Schiappa informing him that the Union would represent the employees
of his coal company in negotiating an agreement covering wages and working
conditions and stating that within a few days, the Union would present him
with a copy of its proposed agreement. The next day three more tipple workers
signed up with the Union.
Later that week, Joyce and the same three drivers went to Schiappa's office.
Joyce handed Schiappa a copy of the Union's proposed contract and asked
whether he was ready to negotiate. Schiappa said that he did not think he
would be in the trucking business much longer, that with the way the coal
business was, he could not stay in business much longer. Joyce asked Schiappa
to think it over and that he would call later. The proposed contract tendered
by the Union was headed Coal Hauling and Tipple Work and purported to cover
truck drivers, loaders, and packers. The Respondent had no employees that it
classified as loaders and packers, dividing its employees only into truck drivers
and laborers It is obvious. however, that the employees sought to be represented
by the Union included only the truck drivers and workers around the tipple, and
did not include any of the men engaged in actual mining operations.
On the day that the men joined the Union, Schiappa gave instructions to the
truck foremen to tell the men that there was no work for them. That evening
and numerous days thereafter when the truck drivers came to the garage or
telephoned the foremen about work, he carried out Schiappa's instructions and
told them there was no work for them. None was given further work until
April 19. In fact, although there was not as much work in the latter part of
March and the first part of April as there had been before March 15, there was
work for some of the truck drivers both in hauling dirt for building of roads
and for hauling occasional loads of coal. To drive the trucks for such coal as
was hauled, the trucking company rehired a couple of men who had previously
been separated from the payroll and used one or two men who usually did all-
round work for driving trucks. The truck foremen also drove a truck. There
is evidence that at least one customer was begging the Trucking Company to
haul coal for it "for some time" before April 19. A large order from another
customer appeared assured by April 12, and the Trucking Company began to
"try out" new drivers about that time. The testimony of former Foreman
Londino that, about-a week after the men signed with the Union, Superintendent
Merenda told him that "if the men would be out long enough, they would get
other jobs," summarizes what is clearly deducible from the foregoing evidence-
that the Respondent hoped to keep the drivers out of work so long that they
would get other work and not attempt to return.
At a meeting between the Union and Schiappa on March 27, Schiappa said that
he would not sign the Union's tendered contract, but be would not then say
what objection he had to it. On about March 29, 1950, the Trucking Company
was incorporated, and the trucking operations and equipment were transferred
to it. At a meeting the same day between Joyce, Soisson, and Schiappa, the
latter informed the Union that he had a deal pending to dispose of the trucks
and that "that lets you fellows out," meaning that the Union had no further
claim to bargaining rights, I deduce.
On March 31, some of the regular truck drivers, having learned that what
appeared to be the Coal Company's trucks were actually hauling coal from that
company's Mine 30 , went there in an effort to get the drivers of those trucks
not to operate in their place. Schiappa learned of this and raced out to Mine
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
30 in his car, almost colliding with the group of drivers as he came in. He
shouted to the group of men : "Get off the property. What the hell is the
matter with you God damn fools. I'll kill every damn one of you." 6 At this
time, Schiappa had a revolver in his car with him. He also told them that
they would not drive his trucks again for 10 cents a day. Superintendent Frank
Merenda calmed Schiappa down, telling him everything had been straightened
out and that the men had agreed to let the trucks through. Schiappa got out
of the car and, addressing the truck drivers who had not already run off when
Schiappa threatened to kill them, he said : "What the hell more do you guys
want, I gave you everything you want. You have practically everything I -
own now." When Schiappa asked them what they wanted, one or two of them
said that they wanted an understanding. Merenda calmed Schiappa down by
telling him that everything had been straightened out and that the trucks were
going to. haul; so Schiappa got back in his car and left without further word.
Schiappa testified that there was so little work to do between March 21 and
April 19 that one truck could have hauled in 2 hours a day all the coal they
moved in that period. According to the Respondent's records, 87 loads of coal
were hauled on March 24, 28 of them in the Respondent's own trucks ; 48 loads of
coal were hauled on March 30, 19 of them in the Respondent's trucks and the rest
in trucks of other companies. On March 31, 71 loads of coal were hauled, 16 of
them in the Respondent's own trucks. ' Some coal was hauled on other days
but in smaller quantities up to April 17. As previously stated, there is evidence
that the demand for coal was not fully met by the Respondents during this
period.
C. The settlement agreement and further efforts of the Union to bargain
collectively
On April 11, 1950, the Union filed its charge, and on April 12 it wrote to
Schiappa as president of the Coal Company, commenting on the fact that'his
company was operating some of the trucks formerly driven by members of the
Union, and continuing:
- It was noted in the Steubenville Municipal Court 7 on Monday April 10,
that your attorney, Mr. Hugo Alexander, told the court that your company
had not discharged its employees but that they were unemployed for lack
of work.
Soisson's letter then requested reinstatement of the truck drivers, replacing
if necessary, truck drivers employed since March 21. Schiappa replied to this -
letter on April 13, stating:
In reply to your letter of April 12th relative to replacing furloughed em-
ployees with new help, the C & D Coal Company has disposed of all its
coal hauling trucks and tipple, and therefore we will have no work what-
soever for the former truck drivers and tipple laborers.
Regarding remarks made by Mr. Hugo Alexander, please be advised Mr.
Alexander was retained by Mr. Schiappa personally, and not the C & D
Coal Company.
6 This finding -is based on the testimony of Ralston ,%foreman of the truck drivers at the
time of the hearing. Schiappa admitted that he had told the men he would shoot them
if they did not get off the property.
7 This referred to a proceeding initiated by the truck drivers in which they charged
Schiappa with pointing a firearm in violation of the Ohio code. Schiappa pleaded guilty
and paid a fine.
C & D COAL COMPANY 813
Schiappa, with his attorney, Hugh Alexander, and representatives of the
Union, on April 17 attended a conference at the Board's Regional Office in
Cleveland, conducted by a field examiner. As a result of the conference, the
field examiner prepared a settlement agreement, which the Union signed. Alex-
ander wanted further time to talk to Schiappa, and a meeting was set for the
next day in Alexander's office, at which time and place Schiappa signed the
agreement for the Respondent. In the settlement agreement the Respondents
agreed to post a notice and to comply with the terms and provisions of the
notice. The notice stated in substance that the Respondents would not inter-
fere with, restrain, or coerce its employees in the exercise of the rights guaran-
teed them, that they would offer to 19 employees immediate reinstatement by
the Trucking Company to positions substantially equivalent to those that were
formerly occupied by them with the Coal Company, and that the Trucking
Company would bargain collectively upon request with the Union as the exclusive
representative of all drivers and tipple employees of the Trucking Company,
exclusive of clerical employees and supervisors.
On April 19, or within a few days thereafter as work was available, the
employees who had been excluded from work since March 21 were reinstated,
and there was a substantial amount of work for them from then on. Alexander,
Schiappa's lawyer, later telephoned and asked the Union if it would hold off
further negotiations until after the date of the next,primary election on May 2,
and the Union agreed.
On April 21, after all the union employees had been reinstated, Superintendent
Merenda of the Coal Company, at Schiappa's instructions, asked Ralston, one
of the truck drivers who had joined the Union, if he would like to be foreman
of the Trucking Company's drivers. Merenda also spoke to Loney Londino,
then foreman, and told him that Ralston would be made trucking foreman and
would try to get the men to drop the Union, and that if Ralston succeeded,
Londino would be put back on as truck foreman 8
The next day, Ralston became the truck foreman and Londino became a truck
driver. Ralston talked to the men, asking them what they wanted in the way
of wages. Having learned this, he met with Schiappa late Saturday morning,
April 22, to discuss wages. Schiappa said that he would pay $135 per hour.
This appeared to be the amount the men expected. Thereafter, on a typewriter
borrowed from Emma Bowman, the Respondent's bookkeeper, Ralston prepared
an agreement which stated that the employees agreed to work at a rate of
$1.35 per hour, with overtime at the rate of one and one-half times the hourly
rate for work in excess of 40 hours. The agreement also contained, among other
things, a provision, copied from the settlement agreement, that the Company
would not in any manner interfere with, restrain, or coerce the employees in the
exercise of their right to self-organization, to form labor organizations, to join
or assist the Union, etc. The agreement stated that it was to remain in full
force and effect for 1 year from May 1, 1950, to April 30, 1951. At about the
same time that he prepared this agreement, Ralston prepared a letter dated
April 29, 1950, and addressed to the Union, with blank lines for signatures of
union members. This letter stated :
As of this date, we have entered into an agreement with the officials
of the Trucking Company, and are very well satisfied with the working con-
ditions and wage scales of the company.
8 This finding is based on Londino 's credited testimony.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of this agreement , we wish to with -draw [ sic] from the General
Teamsters' Union No. 428, local branch of the International Brotherhood
of Teamsters , Chaffeurs , Warehousemen and Helpers.
We trust this will clear up all misunderstandings between the C & IY
Coal Company, the C & D Trucking Company and the General Teamsters'
Union No. 428.
Five of the employees came to Ralston 's home and signed this letter there.
It does not appear. what prompted the visit. Ralston then took the letter to
the scale house where 8 more union members signed it. Twenty employees also,
signed the agreement which Ralston had prepared. He then took the agreement
to Schiappa, who, with his wife, signed it for the Trucking Company 0 The
letter was then sent to the Union.
On May 9, 1950, Soisson wrote to Schiappa, requesting a resumption of nego-
tiations Following receipt of a registered letter from the Board's Regional
Office calling for a meeting in Cleveland on May 15, Schiappa brought Ralston
there and they met with the field examiner, Joyce, and Soisson. At this meeting,
the field examiner sought to get Schiappa to sign another settlement, but he
refused to do so and he refused to bargain with the Union unless it proved
its majority in an election. However, after talking with the field examiner for
several hours , he apparently agreed to resume negotiations , because a meeting
was thereafter held on May 19 in Attorney Alexander's office No progress was
made at this meeting, and another meeting was scheduled for May 22, but the
meeting was not held on that date because Schiappa did not show up and Alex-
ander explained that he was out of the city on business. Another meeting
was set for May 24. Alexander telephoned Joyce, however, and told him
that Schiappa was unable to be present at this meeting. Joyce said that Soisson
also was away so the meeting was canceled . Another meeting was scheduled
for May 26.
At this time, Schiappa tendered a proposed contract with an optional pay
scale of $1.10 per hour or a certain rate per ton for coal hauled. The Union
made it known that the offer was considered ridiculous, as Schiappa had already
started paying $135 an hour under the agreement which he signed with his
drivers.10 Schiappa then told the Union to prepare one of its own saying that
he would not sign the first one that they gave him.
Another meeting was scheduled for the evening of June 1 That evening
Joyce and Soisson went to Alexander 's office and found it empty. They tele-
phoned Alexander at his home, and he said that he would be right there When
he came, he told them that he was no longer legal counsel for the Respondents.
On June 2, Soisson wrote to Schiappa stating that it was not until the night
before that the Union learned that he had dismissed Alexander and•:replaced
him with other attorneys, that in the Union's opinion Schiappa was not making
a serious attempt to bargain in good faith, and that he felt that negotiations
should be resumed and concluded not later than June 7. He closed requesting
a reply as to the time and place for the next meeting . Schiappa did not answer
this letter.
Over the signature of Schiappa and his wife appears the corporate seal of the Coal
Company . The notarized acknoisledgment of the corporation identifies the signers as
president and secretary of the Coal Company, rather than as officers of the Trucking
Company.
10 About 2 months before the hearing the rate had been reduced to $1.15 notwithstanding
the agreement to pay $1 . 35 for one year.
C & D COAL COMPANY 815
D. Conclusions respecting discrimination
Although there was not enough work for all the truck drivers after March 18,
Schiappa agreed to keep his best drivers, including those named in the complaint,
on his payroll on a salary basis, realizing that the men would not earn enough
on an hourly basis and that this, was the only way he could retain them in his
company's employ. He intended that they should receive the $65 a week whether
they worked or not. But from the date that Schiappa learned of their joining
the Union, Schiappa and the Respondents treated the employees who joined the
Union as no longer in their employ. They not only told the men there was no
work for them when there was, but the payroll records disclose that in the last
2 weeks in March 1950 the men were not paid the agreed $65 a week. The
Respondents' intent is further evidenced by Superintendent Merenda's remark
that if the men would be out long enough they would get other jobs. While the
regular truck drivers were denied work and pay, the Respondent (whichever
one currently carried the drivers on its payroll) rehired two drivers whose em-
ployment had been terminated before March 18, used as drivers men who did
not customarily drive trucks, and even took on new drivers. On March 31, when
Schiappa, with violent language and attitude, ordered the unemployed drivers
off the premises, he left no doubt that his purpose was to exclude them despite
the existence of work they might have done. The Respondents took the position
that the drivers were on strike when they did not go to the tipple to do laboring
work. Londino testified that it was not customary for truck drivers to work
apart from their trucks, and he apparently gave them the option on March 21 of
not working at all or of doing only laboring work. I am satisfied and find that,
but for Schiappa's displeasure at the news of the drivers' joining the Union, he
would not have considered the truck drivers as having done anything amiss in
failing to do laboring work that day. All the evidence indicates, and I find,
that the employees who joined the Union were not on strike between March 22
and April 18, both inclusive, that their exclusion was a discrimination in viola-
tion of Section 8 (a) (3) of the Act, and that, by the conduct summarized above,
and by engineering a withdrawal from the Union, the Respondents, to the extent
that each participated, interfered with, restrained, and coerced its employees in
violation of Section 8 (a) (1) of the Act.
E. Conclusions respecting the refusal to bargain
1. The appropriate unit
The complaint alleges that the appropriate unit consists of all drivers and
tipple employees of the Respondents, except for office and clerical employees,
guards and watchmen, professional employees, and all supervisory employees
as defined in Section 2 (11) of the Act. Such a unit is a natural one. The
answer denied that this was an appropriate unit. The Respondents offered no
evidence, however, to show why such a unit was inappropriate. The field, or
strip-mining, employees are now represented by an independent union which does
not embrace the tipple workers and drivers who, exclusive of officials, supervisors,
and office workers, appear to be the only other employees of either Respondent.
The drivers and tipple workers are curientlyy both carried on the payroll of the
Trucking Company, whereas the field employees are on the payroll of the Coal
Company. Before the date of the Respondents' answer, the Respondents did not
at any time object 'to this unit which the Union sought to represent. I find
that the above-described unit is appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union's majority in the appropriate unit
The 'payroll of the Coal Company (the Trucking Company did not yet exist)
for March shows that it had 16 truck drivers and 10 tipple workers. Of these,
14 drivers and 5 tipple workers signed applications and authorizations for the
Union on March 21 and 22. Thus 19 of 26 employees in the appropriate unit
chose the Union to represent them. Accordingly, I find that on March 22, 1950,
and at all times material thereafter the Union was, and now is, the exclusive
bargaining representative of all the employees in said unit for the purpose of
collective bargaining in respect to rates of pay, wages, hours of employment, and
ether conditions of employment, within the meaning of Section 9 (a) of the
Act.
3. The refusal to bargain
Although the Union made its claim to representation known to the Coal Com-
pany on March 21, its first definite request that the Coal Company bargain with
it was made with the tender of a proposed contract on about March 24, 1950.
Although Schiappa did not at that time expressly refuse on behalf of the Coal
Company to bargain, he sought to discourage bargaining by saying that he would
soon be out of business and by later saying that he was disposing of the truck-,
ing business. He did not indicate that such disposal was merely a transfer of
title from one fictional legal entity to another, both of which he managed. On
the contrary, he stated on March 29 that such transfer would let the Union
out." I deduce from this that although Schiappa knew that the management
and control of the trucking business, its employees, and its operations would
remain substantially the same under the Trucking Company as it was under the
Coal Company, he intended not to deal with the Union and intended to deceive
the Union with regard to ownership and operation of the trucking business in
order to avoid bargaining with it. That this was so is obvious from Schiappa's
prompt direction on March 21 that the union employees be told there was no work
for them. I do not doubt that Schiappa intended at all times after March 21
that neither Respondent should bargain with the Union. His subsequent conduct
so indicates.
After the settlement agreement of April 18, in which it was agreed that the
Trucking Company would bargain with the Union, the former stalled off any
meeting until it had engineered a deal whereby the employees would resign from
the Union and receive, without union bargaining, an increase in pay of 15 cents
an hour. An increase in pay at a time when the Trucking Company was legally
obligated to bargain with the Union would in itself constitute a violation of the
Act. Here the intent to induce resignation from the Union was even clearer,
as the Trucking Company's newly appointed foreman prepared concurrently the
agreement for the increase and the letter of resignation. I find that the Trucking
Company, by all such conduct, demonstrated its refusal to bargain Y2 and inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Even after the second conference with the field examiner in Cleveland, after
which the Trucking Company agreed to resume negotiations, it demonstrated no
good-faith bargaining. True, it made a counterproposal, but in this it offered a
wage rate lower than it was then paying, lower even than it had before paid at
" The General Counsel stated that it was not contended that the incorporation, itself,
of the Trucking Company was for the purpose of evading the duty to bargain, but fortuitous
advantage was assuredly taken thereof by Schiappa.
12 Long -Lewis Hardware Company, 90 NLRB 1403.
C & D COAL COMPANY 817
any time during the period covered by the complaint, and lower than the reduced
rate it was paying at the time of the hearing. The conclusion is inescapable that
the Trucking Company was willing to pay well to avoid contracting with the
Union and that it would offer the Union only what it could be sure the Union
would reject's Finally, Schiappa's failure to reply to Soisson's letter of June
2 requesting Schiappa to fix a time and place for the next meeting must be inter-
preted as not only an independent refusal to bargain but also as characterizing
the Trucking Company's lack of good faith throughout.
On all the evidence, I conclude and find that the Respondents at all times
exhibited a lack of good faith and a failure and refusal to bargain as required
under the Act. The Coal Company's management, if it had acted in good faith,
could have commenced negotiations with the Union despite the imminence of
the incorporation of the Trucking Company. As Schiappa would be speaking
for, each, and as the employees and operations were to continue as before, the
name of the employer and the change of legal title to trucks or equipment were
no obstacle to collective bargaining. Under the circumstances of this case,
the Coal Company was, on March 24 or 29, no more justified in refusing to
bargain than was the Trucking Company after its incorporation. I therefore
find that the Coal Company refused to bargain from March 24, 1950, to March
29, 1950, when it became the duty of the Trucking Company to continue with
the bargaining. The Union, being uninformed as to the incorporation of the
Trucking Company, and noting that the trucks were operating during the period
of the exclusion of its members, on April 12 made its demand for bargaining
on the Coal Company. Schiappa's reply for the Coal Company, stating merely
that the Coal Company had disposed of its trucks, left the Union ignorant of
the existence of the Trucking Company. It was not until the conferences in
the Board's Regional Office on April 17, so far as the record shows, that the
Trucking Company's existence was made known to the Union. If a formal
request to bargain were required of the Trucking Company, I find that it was
made on April 17 and numerous dates thereafter." I am of the opinion, however,
that, where a union serves its request to bargain upon the man who is president
of two corporations which jointly conduct operations of the business, and where
the second corporation has only just come into existence and is as yet unknown
to such union, an affirmative duty exists on the part of the president to disclose
the true corporate setup, and that if he fails to do so he may not, for the second
corporation, advance the argument that the second corporation did not refuse
to bargain because no formal request was made of it Under all the circum-
stances of the case I find that the Trucking Company failed and refused to
bargain in good faith on and after March 29, 1950. But even if a specific request
were necessary, it was made on April 17, and I find that thereafter the Trucking
Company did not in good faith bargain with the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
18 See Crompton-Highland Mills, Inc., 70 NLRB 206.
14 After reinstatement of the union members , the payroll was substantially the same as
on March 21 and the Union 's majority continued to exist.
943732-51-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
As it has been found that the Respondents have engaged in and are engaging
in unfair labor practices, it will be recommended that they cease and desist
therefrom and take certain affirmative action necessary to effectuate the policies
of the Act.
The settlement agreement, under which the Trucking Company agreed to
reinstate the 19 employees who had been excluded from employment between
March 22 and April 19, made no provision for back pay to these employees.
Performance of the settlement agreement by reinstatement of the employees
named therein is conceded by the General Counsel. If this were all that was
involved in the settlement agreement, the policies of the Act would require no
further remedy as to these employees. However, in view of the fact that the
settlement also provided for bargaining between the Trucking Company and the
Union thereafter, and in view of the fact that the Trucking Company failed in
good faith to bargain, the settlement agreement was not complied with in full
by the Trucking Company. The good faith of the Trucking Company cannot
be demonstrated piecemeal The settlement agreement is an entire arrangement.
But for the inclusion of the agreement to continue negotiations in good faith, it
may well be that the settlement agreement would have included a provision for
back pay for the employees reinstated. As the settlement agreement was not
fully complied with by the Trucking Company, I believe that it will best ef-
fectuate the policies of the Act to require that the Trucking Company make
whole, for any loss of pay that they may have suffered during the period from
March 22 to April 19 inclusive, 1950, the employees whose names are listed in the
notice attached hereto and marked Appendix A 15
It will be further recommended that the Trucking Company upon request
bargain with the Union as the exclusive representative of all the employees in
the appropriate unit hereinabove found.
On the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAw
1. The Respondents C & D Coal Company and the C & D Trucking Company
are engaged in commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, General Teamsters' Union No 428, affiliated with the Ameri-
can Federation of Labor is a labor organization within the meaning of Section 2
(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of their
employees, thereby discouraging membership in a labor organization, the Re-
spondents engaged in, and the Trucking Company is engaging in, unfair labor
practices within the meaning of Section S (a) (3) of the Act
4. All drivers and tipple employees of the Respondents, except for office and
clerical employees, guards and watchmen, professional employees, and all super-
visory employees as defined in Section 2 (11) of the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
15 See The General Fneproofing Company, 59 NLRB 375 In computing the back pay
of the truck drivers, effect should be given to the agreement to pay them $65 per week
since they would have been paid this sum but for the discilmination For the Board's
new method of computing back pay see F IV. lVoolwoi th Company, 90 NLRB 289
DECCA RECORDS, INC. 819
5. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, General Teamsters' Union No. 428, AFL, was on March
22, 1950, and at all times thereafter has been, the exclusive representative of
all the employees in the appropriate unit described in paragraph 4 of these
Conclusions for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
6. By refusing to bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Team-
sters' Union No. 428, AFL, the Coal Company from March 24, 1950, to March
29, 1950, engaged in, and the Trucking Company from March 29, 1950, to date
has engaged in and is engaging in, unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
7. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
DECCA RECORDS, INC. (BRUNSWICK RADIO CORPORATION ) and INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS , AFL, PETITIONER.
Case No. 35-RC-443. March 15, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William D. McGowan,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. The question concerning representation :
The Petitioner seeks a unit of all production and maintenance
employees employed at the Richmond, Indiana, phonograph manu-
facturing plant of the Employer. An Intervenor, United Electrical,
Radio and Machine Workers of America, herein referred to as the
UE, alleges that its current collective bargaining contract, discussed
93 NLRB No. 131. _