Fast Trucking, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1944

56 N.L.R.B. 1826 (N.L.R.B. 1944)

In the Matter of FAST TRUCKING, INC. and NEWARK DRIVERS
HELPERS INDEPENDENT UNION and MERCHANDISE DRIVERS LOCAL
UNION 641, AFL INTERNATIONAL, PARTY TO, THE CONTRACT
Case No. 12-C-5118.-Decided June 30,19141
DECISION
AND
ORDER
On April 22, 1944, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
affecting commerce, and recommending_that it cease and desist there-,
from and take certain affirmative action, as set forth in the copy of
,the Intermediate Report attached-here to. Thereafter, the respondent
and Local No. 641 filed exceptions to the Intermediate Report and
supporting briefs. Oral argument, in which only the respondent and
Local No. 641 participated, was had before the Board at Washington,
D. C., on-June 29, 1944. -
The Board has considered the rulings of the Trial Examiner, and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs of the parties, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Fast Trucking, Inc.,
Newark, New Jersey, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
^a) Discouraging membership in Newark Drivers & Helpers In-
dependent Union, or any other labor organization of its employees, or
encouraging membership in Merchandise Drivers Local No. 641,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
56 N. L . R. D, No. 324.
1826
FAST TRUCKING, INC. 1827
and Helpers of America, A. F. L., or any other labor organization of
its employees, by discharging, locking out, or refusing to reinstate
any of its employees or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of
their employment;
(b) Giving effect to any agreement with Merchandise Drivers
Local No. 641, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, A. F. L., in respect to rates of
pay, hours of employment, or other conditions of-employment, or rec-
ognizing said Merchandise Drivers Local No. 641, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, A. F. L., as the representative of any drivers, helpers,
and platform men employed by the respondent-at, its Newark, New,
Jersey, plant, unless and until that organization shall have been cer-
tified as such by the National' Labor Relations Board;
(c) Refusing to bargain collectively with Newark Drivers and
Helpers Independent Union as the exclusive representative of all its
drivers, helpers and platform men at its Newark, New Jersey, plant,-
but excluding office employees, and supervisory employees with au-
thority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action;
(d) In any other manner interfering with, restraining, or coercing
its employees in,the exercise of the right to self-organization, to form
labor organizations, to join or assist Newark Drivels & Helpers Inde-
pendent 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 bargaining or
other mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer to the employees named in Schedule A, attached hereto;
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to,their seniority and other rights and priv-
ileges, in accordance with the provisions for reinstatement set forth
in the Section of the Intermediate Report entitled "The Remedy";
(b) Make whole the employees named in Schedule A for any loss
of pay they may have suffered by reason of the respondent's discrim-
ination against them by payment to each of them of a sum of money
equal to the amount he would normally have earned as wages from the
date of the discrimination against him to the date of the offer of rein-
statement, less his net earnings during such period;
(c) Withhold recognition from Merchandise Drivers Local No 641,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen'
1828 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
and Helpers of America, A. F. L., as the representative of any of its
drivers, helpers or platform men, at its Newark, New Jersey, plant
for the purpose of negotiating with respect to grievances , labor dis-
putes, rates of pay, hours of employment , or other conditions of em-
ployment, unless and until that organization shall have been certified
as such representative by the National Labor Relations Board;
(d) Upon request bargain collectively with Newark Drivers &
Helpers Independent Union as the exclusive representative of all its
drivers, helpers and platform men employed at its Newark, New
Jersey, plant;
(e) Post immediately in conspicuous places at its Newark, New
Jersey, plant and maintain for a period of at . least sixty ( 60) consec-,,
utive days from the date of posting notices to its employees stating :
(1) that the respondent will not engage in the conduct from which it
is ordered to cease and desist in paragraphs 1 (a), (b), (c ), and (d)
of this Order; ( 2), that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), (c ), and (d ) of this Order,
and (3 ) that the respondent 's employees are free to become or remain
members of Newark Drivers & Helpers Independent Union, or any
other labor organization ,, and that the respondent will not discrim-
inate against any employee because of membership in such organ-
ization; '
(f) Notify the Regional Director for the Second Region in writing,
within ten (10 ) days from the date- of this Order, what steps the
respondent has taken to comply herewith.
Mx. GERARD D . REir.LY took no part in the consideration of the above
Decision and Order.
SCHEDULE A
Anthony Caprio
Al Falzo
Joseph Burger
Edward Munn
Victor Racioppi
Joseph Restaino
Michael Cicero
James Dell 'Ermo
Anthony Coccia
Anthony Maccioli
Chester Bukowinski
Albert Ferrara
James Wilkins
INTERMEDIATE REPORT
Mr. Cyril W O'Gorman, for the Board.
Mr. Saul J. Zucker. of Newark. N J., and Mr. Samuel M. Cole, of Jersey City,
N J., for the respondent.
Mr. Samuel L. Rothbard, and Mr. Clarence Talisman, of Newark, N. J., for the
Independent. ,
Mr. Harold Krieger, of Jersey City, N J, for Local 641.
FAST TRUCKING, INC. 1829
STATEMENT OF THE CASE
Upon an amended charge filed July 3, 1943,1 by Newark Drivers & Helpers In-
dependent Union, herein called the Independent, the National' Labor Relations
Board, herein called the Board, by the Regional Director for the Second Region
(New York, New York), issued its complaint dated August 20, 1943,, against Fast
Trucking, Inc, Newark, New Jersey, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the
National Labor Relations Act,'49 Stat. 449, herein called the Act. Copies of the
complaint accompanied by notice of hearing thereon were duly served upon the
respondent, the Independent and also upon Merchandise Drivers Local No. 641,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein called Local 641.2
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) From 1936 to date, urged, persuaded and warned its
employees to assist, become or remain members of, Local 641; (2) from about
February 8, 1943, to date, urged, persuaded and warned its employees to refrain
from assisting the Independent , or becoming or remaining members thereof ;
(3) threatened its °mployees with reprisals if they joined or assisted the Inde-
pendent or refused to join or assist Local 641; (4) on or about March 12, 1943,
entered into a collective bargaining agreement with Local 641 requiring its em-
ployees to become members of Local 641 as a condition of employment although
Local 641 was not at that time the representative of an uncoerced majority of
the employees as required by the Act, the said contract with Local 641 therefore
being invalid and in violation of the Act; (5) by the foregoing and other acts
sponsored, maintained and supported Local 641 in violation of the Act; (6) by
its unfair labor practices caused its employees on March 11, 1943, to cease work
concertedly and to go on strike; (7) on or about March 15, 1943, discharged and
thereafter refused to reinstate 15 named employees' for. the reason that they
had joined or, assisted the Independent or engaged in concerted activities for
the purpose of collective bargaining or other mutual aid or protection or because
they had refused to join or assist Local 641 or had participated in the strike;
(8) on and after March 12, 1943, refused to bargain collectively with the Inde-
pendent although the Independent has been at all tunes the duly designated bar-
gaining agent of a majority of the respondent's employees in an appropriate unit.
No answer was filed by the respondent.
Pursuant to notice, a hearing was held at Newark, New Jersey, on October 25,
26, and 27, 1943, before William Strong, ,the Trial Examiner duly designated by
the Chief Trial Examiner. The Board, the respondent and the Independent were
represented by counsel. On October 26, counsel for the respondent, Saul J.
Zucker, moved to adjourn the hearing. The Trial Examiner denied this request.
Counsel for the respondent thereupon withdrew from the hearing On October
26, the Trial Examiner, upon motion of counsel for the Board, dismissed the
allegation of the complaint alleging that the respondent had discriminatorily
discharged or refused reinstatement to William Decker and William Turner.
1 The original charge was filed on March 26, 1943.
2 Local 641 was described in the complaint and notice of hearings as "Merchandise
Drivers Local Union 641, A. F. L. International." It appears that the complete designa-
tion is that given above.
3 Anthony Caprio, Al Falzo, Joseph Burger, Edward Munn, Victor Racioppi, Joseph
Restaino , Michael Cicero, James Dell 'Ermo , Anthony Coccia , Anthony Maccioli , Chester
Bukowinski, Albert Ferrara, James Wilkins, William Decker and William Turner.
1830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 27, 1943 , the hearing was adjourned , subject to reopening on 5
days' notice , in order to secure the enforcement of subpenas.
Pursuant to notice, further hearings were held from February 7, 1944, to
February 15, 1944, at Newark, New Jersey, before the undersigned Trial Ex-
aminer, Charles W. Schneider , duly designated by the Chief Trial Examiner.
The Board , the respondent , and Local 641 were represented by counsel. At the
opening of the reconvened hearing, counsel for the respondent , Samuel M. Cole,
moved to adjourn the hearing . Counsel for Local 641 , Harold Krieger, joined
in this motion . The undersigned denied the motion. Counsel for the respondent
thereupon left the hearing.` ' i
At the close of the Board 's case counsel for Local 641 moved to dismiss the
complaint . The motion was thereafter renewed. The undersigned reserved
ruling on this motion , which is hereby denied. At the close of the hearing
counsel for the Board , over objection by counsel for Local 641, moved to con-
form the pleadings to the proof with respect to dates, the spelling of names,
and similar minor matters. The , motion was granted. At the close of the
hearing, counsel for 'the Board argued orally before the Trial Examiner.
Counsel for Local 64 1 waived such oral argument . Although afforded oppor-
tunity to do so, none of the parties filed a brief.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes, in 'addition to the above , the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Fast Trucking, Inc., is a New Jersey corporation having its principal office and
place of business in the City of Newark, New Jersey, where it is engaged as a
common carrier in the business of collecting, carrying and delivering freight
under a certificate issued by the Interstate Commerce Commission. During 1943,
the respondent owned and operated approximately 20 trucks, from 4 to 5 of
which were engaged daily in the hauling of liquor, and 7 to 8 in the hauling
of general merchandise and 'freight, between the States of New Jersey and
New York. In addition, the respondent also delivered freight and merchandise
to railroad and other terminals for reshipment to points outside New Jersey and
New York. The liquor transported by the respondent averaged at least 50 cases
a day, varying in value from $2 to $100 per case. Approximately two-thirds of
the respondent's business during 1943 'consisted- of interstate hauling. The
respondent concedes that it is engaged in..interstate commerce.
II. THE ORGANIZATIONS INVOLVED
Merchandise Drivers Local No. 641, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers . of America , is a labor organization
,affiliated with the American Federation of Labor. It admits to membership
employees of the respondent.
Newark Drivers and Helpers Independent Union is an unaffiliated labor
organization composed of employees of the respondent.'
4 Although they did not enter appearances, Thomas Apicella, president of the respondent,
and Leonaid Rizzolo, its manager, were present at most of the'reconvened sessions.
i Local 641 contended at the hearing that the Independent is not a labor organization
within the.meaning of the Act. _ However, as is more fully discussed hereinafter, the
record discloses that the Independent was formed by the employees of the respondent for
the purpose of dealing with the respondent concerning the terms and conditions of-their
employment. The undersigned therefore finds that the Independent is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
FAST TRUCKING, INC. 1831
III THE UNFAIR LABOR PRACTICES
A Chi onological statement of the facts °
1. Background
The headquarters of Local 641 are in Jersey City, New Jersey, which is the
site of various freight terminal facilities which the respondent, in the course
of its business, has occasion to use. At various times during the period here
involved, trucks were not permitted to .enter docks and warehouses organized
by the International Brotherhood of Teamsters in the New York Harbor area,
including Jersey City,. unless manned by drivers carrying Teamsters' dues books.
In 1935 or 1936, the respondent's trucks were, stopped at the Lackawanna ware-
house in Jersey City, and the respondent was informed that it could,no longer
deliver or pick up freight at the warehouse unless the respondent was "signed
up" with Local 641. Thomas Apicella, the, respondent's president, thereupon
called on Walter J. Gibney, secretary-treasurer of Local 641, and effected an
arrangement permitting the respondent access to the terminal facilities in that
area'
At that time, not more than one or two of the respondent's employees were
members of Local 641 Although- the issue is disputed, the overwhelming weight
of the evidence also establishes that,. -R'ltli possibly two or three exceptions,
none of the respondent's approximately 25 employees thereafter joined Local
641, signed applications for membership, or designated Local 641 as their
bargaining representative.8,
At various times thereafter, the respondent's manager, Leonard Rizzolo, gave
employees who hauled into New York City and New Jersey City paid-up dues
books in Local 641. The employees did not request these books. From time to
time, Rizzolo would collect the books and return them later with paid-up dues
stamps affixed bringing them up to date. No dues payments were made by
these employees.s
9 The findings in this section are based on the undersigned's observation of the witnesses
and his consideration bf all the testimony and other evidence . Considerable testimony was
introduced by the Board and by Local 641 concerning the incidents here related. Some
of this testimony was contradicted ; some was _ uncontiadicted However, even where
there was no substantial dispute or contradiction concerning the gist of certain occurrences,
there were variations as to details, sometimes between witnesses for the same party Such
variances are understandable where numerous witnesses are examined concerning the same
incidents, especially after a substantial lapse of time. The undersigned has therefore
made no attempt to set out his reconciliation of all the testimony. The findings in this
section represent the facts as the undersigned believes , from a consideration of the whole
record, they occurred . Where there is substantial, conflict or doubt on material issues, the
report so indicates -
4 The word "arrangement '; is used by the undersigned at this point in a noninvidious
sense to indicate that an agreement of some kind was effected The respondent and Local
641 contended that Apicella signed a collective bargaining contract with Local 641, and
that contractual relationships have been maintained continuously since that time. . This
issue is resolved at a later point in the report
8 This finding is based on the testimony of the employees. While Gibney testified that
all the employees of the respondent signed application cards for membership in Local 641, -
counsel for Local 641 declined to produce the cards at the hearing.
9 The,above findings are based on the testimony of employees Falzo and Dell 'Ermo. At
one time Del'Ermo said to Rizzolo ; "Ain't you going to put no more stamps in the book?"
Rizzolo answered , "Forget about it " Rizzolo , who hired employees, assigned their duties,
and generally supervised their work , testified that he collected dues from the employees in
the capacity of shop steward for Local 641. The undersigned credits the testimony of
Dell 'Ermo and Falzo. There is no substantial ' evidence that up to March 1943 any other
employees of the respondent carried Local 641 dues books , with the possible exception
of Harry Dodge , and one Salvatore . Dodge's testimony was that he joined Local 641 in
1938 or 1939 and that in March or April 1943 , he paid $28 .10 in back dues.
1832 ' DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
In all, it appears clear that up to February or March, 1943, not more than
two or three of the respondent's employees had ever paid dues to Local 64110
About the middle-of 1942, a strike was called by Local 478, the Newark Local
of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. L. During the strike the respondent secured from
Local 641, and posted on some of its trucks, signs bearing the statement that
the respondent was under contract with Local 641. 1
As a result of the strike there was a general increase in the wage level of
'truckers in the Newark area. When the respondent's employees did not share
in the increase, several of them in August or September 1942, complained to
Apicella and Rizzolo. A conference was then held between the complaining
employees and Apicella. Gibney represented the employees at the conference,
which resulted in the respondent's employees being granted general wage in-
creases of from $2 to $4 per week. During the discussion at this conference
Gibney told Apicella to "go over to [Gibney's] office and sign a contract."
From the above-described conditions, the impression gained currency among
the employees that some kind of agreement existed between the respondent and
Local 641. However, none of the employees ever saw a copy of a contract. No
notice was'ever posted in the plant to the effect that there was one in existence.
,The employees were never aware that contract negotiations were in progress.
They attended no meetings of Local 641. Their impression as 'to the extent
of relations between. the respondent and Local 641 is best summed iip by Dell-
'Ermo's testimony that ""It, was always talked around that there was a con-
tract, but I never seen the contract; I never seen one posted, and as far as I
know, no employees ever seen one."
It is against this general background that the events of February and March
1943, which are the stibject of the complaint, occurred.
2. The events of February 1943
By February 1943 the prevailing union scale for truck drivers in the Newark
area was $42 to $56.50 per week, according to the size and type, of vehicle
operated. The respondent's wage scale for comparable work was for $40 to
$45 per week. Similarly, although the union work week was 44 hours, with
time and a half for overtime, and double time for Sundays and holidays, the
respondent had no standard work week. Its drivers at times were on duty
over 12 hours a day, worked Sundays, and averaged 72 or more hours per week,
without the payment of overtime or double time. These and other conditions
of employment resulted in dissatisfaction among the employees' It 'was this
dissatisfaction which gave rise to the events about to be related.
About February 7, 1943, as a result of their dissatisfaction, the respondent's
drivers and helpers met at the home of James Dell'Ermo, a, driver for the
respondent, and agreed upon certain demands for changes' in rates of pay,
hours, and other conditions of employment. These demands were then reduced
to writing and signed by the employes present.'
10 Although this issue is disputed , Gibney admitted at the hearing that up to February or
March 1943,, none of the respondent ' s employees had paid dues since March 1941 . All the
employees who testified on the point , with the exception of Dodge, denied that they had
ever paid dues to Local 641. Dodge 's testimony does not disclose whether or not he paid
dues other, than the $28 . 10 in 1943 , which - has been referred to above.
v It is not clear how extensive the demands were. The written list was not available at,
the hearing . Among them was a request to "make the place 100% union ." According to
,Dell'Ermo, this phrase meant that the men "wanted to form [their ] own union. . . .
wanted to belong to a regular union that everybody, can belong , and wanted it right
away . We was supposed to be in a union , but nobody knew about it . . . we wanted to
have books and pay dues and all that. That was'the kind of union we wanted ." It seems
FAST TRUCKING, INC. 1833
On the following clay, February 8, Dell'Ermo , as spokesman for the employees,
presented the document to Rizzolo and Apicella and informed them that the men
wished to "make this place 100% union." After Apicella had inspected the list
of demands he replied that "If I have to do this . . . we will close the doors."
With that statement Apieella pulled down the garage doors.
The employees then went to a nearby lunch wagon . After some 5 minutes
Rizzolo appeared and suggested that they discuss the situation . Accompanied
by Rizzolo , the men went to Dell'Ermo 's home, where Rizzolo informed them
that it was impossible to grant their demands. During . the discussion which
followed , the subject of union organization was broached . Some of the men
suggested affiliating with Local 478, the Newark Local of the International
Brotherhood of Teamsters . Rizzolo then stated that the respondent was under
contract with Local 641, and that if the employees had "any idea,of having any
other kind of union, to pick [their ] own union , there was nothing doing. Either
it had to be 641 or nothing ." The men then demanded to see the contract. Riz-
zolo answered that it was in the office file . He then asked the employees to re-
turn to work on his promise that he would try to do something for them. They
requested him to leave in order that they might discuss the situation among
themselves. Rizzolo then left.
After some further discussion , during the course of which opposition was ex-
pressed' to' affiliation with Local 641, the employees went to a neighboring store
for the purpose of telephoning Gibney, in order to ascertain whether a contract
actually existed . There is some confusion in the testimony as to whether they
succeeded in reaching Gibney. However, in the meantime, ' Rizzolo had had a
telephone conversation with Gibney in which it was arranged that Gibney should
come to the plant on the following night to talk,to the men. Rizzolo then re-
turned to the employees ; told them that Gibney would be at the plant the
following night and ` have a meeting and straighten this thing out" ; asked them
to return to work ; and stated that he (Rizzolo) would "take care" of them, and
that they would be paid the union wage scale until an agreement could be
reached. Although the men were not altogether satisfied with these assurances,
they nevertheless went back to work that day.
3. The meeting of February 9
During the day of February 9, 1943, a notice signed by Rizzolo was posted on
the bulletin board in the plant, ahnouncuig the meeting that night. At 8:30 that
evening the employees igathered in the plant for the meeting with Gibney. At
about 9: 45 Gibney appeared and went directly into Apicella ' s office. After some
time Gibney , Apicelln, and Rizzolo came out of the office onto the shipping plat-
form. Gibney asked what the trouble was. Dell'Ermo handed him a written
list of the men's, demands,' and asked to see the contract with Local 641. Gibney
asked Apicella to produce the contract. Apicella stated that he did not know
.where it was and in -turn asked Rizzolo for it. The latter answered that he
thought that it had been locked up in the file by Apicella's secretary, who had
gone home.ii Gibney thereupon produced a blank form of contract and read to
Apicella the union wage scale.
fairly clear that the essence of the men's demands was for a union wage scale and union
conditions of employment, and an effective organization
12 The precise extent of the demands is not fully evident from the testimony. The
wiitten list was not available at the hearing However , it is clear that the demands
included the union wage scale, premium pay for overtime , pay for holidays , a "100%,
union" shop, and certain provisions respecting hours.
13 The findings as to the demand for production of the contract at this meeting, are
based on the testimony of employees Dell'Ermo , Racioppi , Munn, and Falzo, and of
1834 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
Gibney, and Apicella then discussed the men's demands. Gibney told Apicella
that if the men' wanted the Union wage scale Apicella would have to give it to
them. Apicella stated that he-could not meet the demands, and particularly in-
sisted that he could not pay time and a half for overtime. Gibney then said that
the men should give Apicella 30 days' time within which to reorganize his business
and that Apicella should have the contract ready at the next meeting. With that,
the meeting broke up. '
Thereafter, during -February ,and early March, Dell'Ermo informed Rizzolo
several times that the employees-knew little about Local 641 and wanted "nothing
to do with" it. On each occasion Rizzolo replied that the respondent was under
contract with Local 641; that Dell'Ermo should "forget about it," and that- it was
"641 or nothing."
Sometime after the February meeting, employee Burger questioned Rizzolo about
the contract. Rizzolo told him that it had been lost in a fire.
4. The March 9 meeting
On March 9 the employees ,met again in the , plant pursuant to the arrangement
made at the February meeting. Prior to the'meeting a notice signed by Rizzolo
was posted in the plant , announcing the time and place.
Gibney and Rizzolo were present at the meeting . Apicella was not. While they
were waiting for Gibney to arrive , Rizzolo passed out Local 641 dues books among
the employees . When employee Burger asked what the books were for, Rizzolo
told him, "Never mind, just take the book and hold on to it" As he handed a'
dues book to employee Cicero , Rizzolo said , "You" wanted a union, now put up
the $27 50 ..." 14 '
When Gibney arrived, Dell 'Ei-mo gave him a written list of the demands of the
men. In substance , the list contained the following provisions : "Closed shop
(that is, Drivers , Helpers & Platform men 100% union )"; a 40 hour week ; time-
and-a-half for all time over 8 hours , double time for holidays ; a week's vacation
with pay for employees having 1 year ' s service ; the allocation of work according
to seniority ; the election of a shop steward ; 4 hours pay for any employee who
reported to work; and 8 hours pay for work in excess of 4 hours but less than 8.
The employees again asked that the contract be produced. 'Rizzolo stated that it
was in the filing cabinet or lost or thrown in the waste basket or something Gib-
ney.then said that he had a duplicate copy at the office of Local 641 in Jersey City,
and that he would send it over.
Gibney then turned to Rizzolo and asked how things looked . A discussion
ensued between them as to the various demands. While the1testimcny is not in
complete agreement as to what Rizzolo would concede, the undersigned finds that
he expressed a willingness to grant the hourly rate required 'by the union scale,
and premium pay for certain holidays , but that he would not accede to' any of
the other demands'5
Apicella., Rizzolo denied that any such request was made at the meeting, or at any
other time The undersigned does not credit his denial v
14 The finding as to Rizzolo's statement to Cicero is based on Dell'Ermo's testimony.
Rizzolo denied making the declaration The undersigned' credits Dell'Ermo.
15 Rizzolo refused to grant paid vacations, overtime for work in excess of 8 hours,
allocation of work according to seniority, and would agree to premium pay for only a
limited number of holidays. In addition he would agree to pay only for time actually,
worked. While there is some testimony to the effect that Rizzolo was willing to pay
overtime for work in excess of 44 hours a week, the weight of the.testimony is to the
contrary. The undersigned finds that as to overtime over 44 hours, Rizzolo stated that
the resporidenf,was presently unable, to pay it, but that he would see what he could do
at some future time.
t7
FAST TRUCKING, INC. 1835
After this discussion Gibney suggested ' that the respondent be given an ad-
ditional 30 days' time . A number of the employees voiced . their dissatisfaction
with such an arrangement . Gibney told Rizzolo to "see what you can do for the
boys" and then left the meeting.10
After 'Gibney had left, Harry Dodge, a driver who was not present at the meet-
ing, was designated as shop steward The testimony concerning this occurrence
is confused . Rizzolo participated in the selection . Although- other candidates
were proposed among the men, Rizzolo insisted that Dodge was the senior em-
ployee and the most,reliable, and therefore entitled to the job. While no vote
was taken , the employees appear to have finally acquiesced to Rizzolo ' s proposal
that Dodge be selected . However, this incident heightened the dissatisfaction
generated by Gibney 's suggestion for a postponement . Some of the employees
expressed disgust and walked out of the meeting . The group finally broke up in
confusion after midnight
Except for Rizzolo 's expression of willingness to meet the union hourly rate,
and the designation of Dodge, the meeting had produced little in the way
of specific agreement , and the situation appeared to be in abeyance for an
additional 30 days' time.
5. The strike
The dissatisfaction engendered by the inconclusive results of the March 9
meeting was evident on March 10. Discussions were held among the employees
as to what course to pursue." Some did not report for work that day.
.Raeioppi reported at the plant that morning and waited to be assigned work.
After he had waited around until about'll : 30 a. in, Pellegrino, a clerical em-
ployee, came out on the platform and began to do work ordinarily done by
Racioppi. Raeioppi then left the plant. During the day he joined the discussions
with the other employees. A meeting was held on the night of March 10, and it
was decided to go on strike. As a consequence, on the morning of March 11 most
of'the employees remained away from work's
About 10: 30 that morning, Racioppi, acting on behalf of the striking employees
and upon their selection', called Gibney and informed him that the men were
on strike and would not return to work unless they were shown the contract
between the respondent and Local 641. if, one actually existed. Gibney promised
to meet Racioppi within an hour. However, Gibney did not appear.
Later in the day the employees decided to form an independent union, and
visited the offices of some governmental bureau," where they were advised to
secure the services of an attorney.
Sometime that afternoon Gibney received information that the 'strikers were
forming an independent union.
'1B Gibney testified that the men agreed at the meeting to postpone action fop another
month . This testimony was denied by Dell 'Ermo and Falzo . The undersigned credits
Dell'Ermo and Falzo.
"Typical of the expressions were those of Burger and Raeioppi : "We didn't gain
nothing; Gibney wants to postpone it for another month, and because of this postpone-
ment from month to month, we don't know where we are going to go getting a post-
ponement . . . We come in to work, we won 't gain nothing by it; they don't want to pay
us for the hours we are out. We are back where we were."
iN From this point to the end of subsection 6 portions of the testimony as to the
events are somewhat in conflict . The sequence of events found by the undersigned repre-
sents the probable occurrences as best they can be reconstructed from the varying
recollections of the witnesses.
19 It is not clear from the testimony whether this was a mediation board or the National
War Labor Board
1836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the following morning, March 12, Racioppi again called Gibney aid de-
manded the production of the contract. Gibney promised to bring the contract
to Newark and-display it to the men. At 12 • 30 that clay, Gibney not having
appeared, Racioppi called him again. Gibney informed 'Racioppi that the strike
was illegal and that the men should return to work A heated argument ensued,
during which Racioppi reiterated the demand that the contract be produced and
Gibney insisted that the men return to work The conversation was terminated
by either Gibney or Racioppi hanging up the receiver.
Shortly thereafter Rizzolo approached the group of striking employees as they
stood on the sidewalk some distance from the plant, and asked them to return
to work. The men again demanded to see the contract. Rizzolo then left, went
to the home of Dodge, and told him that the men wished to see him Shortly
before 2: 00 p. in , accompanied by Dodge, Rizzolo returned to the strikers. Dodge
asked the employees whether they wished to see him They answered that they
(lid not ; that they wanted to see the contract Rizzolo then brandished a folded
piece of paper and declared, "Here's the contract" Falzo demanded to see-it.
Rizzolo at first refused, but after some discussion gave it to Falzo The document
proved to be a blank contract form providing for a union wage scale. It bore no
signatures. Falzo told Rizzolo that it was "no good," that he wanted to see "the
one with 641." Rizzolo then stated that he and Dodge would go to Jersey City
to get it. With that, Rizzolo and Dodge left.
_ 6 The trip of Rizzolo and Dodge to Jersey City 2°
After leaving the group of strikers, Dodge and Rizzolo went to Jersey City to
the office of Local 641, where they saw Gibney. Dodge asked Gibney for the
contract. Gibney stated that the contract had expired and that a new one
would have to be drawn up A blank form of contract containing printed pro-
visions as to terms.and conditions of employment was then filled in on a type-
writer by Gibney's secretary and the dates, September 1942 to September •1944,
inserted 21 This contract provided for the union wage scale set out above While
Dodge and Rizzolo were in Gibney's office, someone else who was present, and
whom Dodge could not identify, made the remark that "they" would have to
sign the contract, "or to hell with it " Rizzolo and Dodge then took the contract
to Newark, and gave it to Apicella, who took it into his office. About 10 minutes
later Apicella came out and told Dodge that he had signed the contract.
During the following week the respondent's employees were given wage in-
creases in conformance with the terms of the contract which Gibney had given
to Dodge and Rizzolo.22
7. The formation of the Independent
In the meantime, following their conversation with Rizzolo and Dodge, on
the afternoon of March 12, the striking employees, had gone A o A he office of
Samuel L. Rothbard, an attorney in Newark, and asked his advice Rothbard
20 The findings in this section are based on the testimony of Dodge. Dodge 's testimony
as uncontroverted , except as hereinafter indicated . „Dodge did not go on strike For
some time prior to Dlaich 12 he had been confined ;to his home because of injuries He has
remained continuously in the employ of, respondent since the events. recounted herein.
21 Both Rizzolo and Gibney testified that Rizzolo and Dodge secured merely a blank form
of contract from Gibney They denied that any typing was done on the form. The
undersigned credits the testimony of Dodge.
, 22 Apicella denied that , lie signed the document He testified that after inspection he
decided that the terms were too rigorous , However, he did not deny telling Dodge that
he had signed it.
f
FAST TRUCKING, INC. 1837
advised them to form an independent union, and to return to the plant and offer
to return to work "under protest," and, if necessary, to offer to move any govern-
ment material without pay , and to request recognition of the Independent.
Under • Rothbard 's supervision the men , 15 in number ," then held an election
in' his office and chose Racioppi as president and Falzo as' secretary of an inde-
pendent union. At the same time they signed the following document
MARCH 12, 1943.
We, the undersigned, have agreed to operate as the Newark Drivers &
Helpers Independent Union and have 'authorized the following to represent
us, at all conferences, to wit :
Victor A. Racioppi-president
Al Falzo-secretary
8. The requests for reinstatement and the refusals
After leaving Rothbard's office on March 12, the employees returned to the
plant where, at about 5: 00 p. in, they saw Dodge and Rizzolo. Rizzolo told
them that he had been to Jersey City and had got the contract.
Racioppi and Dell 'Ermo informed Rizzolo that the strikers had formed their
own union, and had "put the matter in the hands of [their] lawyer," and that
they were offering to return to work "under protest." 24 Rizzolo protested that
he had just got the contract, but after some discussion he agreed that the men
should return to work on the following Monday morning, March 15. Falzo,
however, was put to work that night. The employees then began to give back
to Rizzolo the Local 641 dues books he had given them at the March 9 meeting.
At that point Rizzolo, apparently grasping for the first time that the'employees
were refusing to accept Local 641, stated, "Nothing doing * * * 'yoil can't
come to work unless it is 641."'5
On Monday morning, March 15, 1943, at about 8: 00 some of the strikers pre-
sented themselves to Rizzolo at the garage to begin work. Apicella pushed aside
Rizzolo and stated to the employees, "I am the boss here from now on and this
barn is a 641 barn. If you have no 641 book, you cannot come back to work." za
Dell 'Ermo asked "Can't we explain to you?" Apicella answered, "No. I don't
want to hear nothing else." The men' then turned around and walked away. As
they did so, they met the other employees 24 and told them what Apicella's terms
were. Later in the day some of the employees also informed Falzo of Apicella's
action. He therefore did not return to work.
23 All the'employees named in the complaint as having been discriminatorily discharged.
1 24 The witnesses were vague and uncertain as to what they meant by this phrase. How-
ever, it appears clear from all the testimony, and the undersigned finds, that the employees
were requesting reinstatement under the existing terms of employment , except that they
were unwilling to be represented by Local 641.
23 While this remark would appear to constitute a refusal 'to take the men back, they
apparently did not so construe it. This conclusion is based on the fact that Falzo went
to work that night, and on the further fact that the men 'presented themselves for work
the following Monday morning
2e The finding as to Apicella's statement is based on the testimony of Edward Munn,
which was corroborated by other withesses. Apicella's testimony was that he told the
men, "I am very , very sorry. I don 't need any one of you " The undersigned credits
Munn Apicella also testified that he refused to take the men back "because they came
back to work, they worked one day and they went on strike again, and I would not take
them back any more ;" and also because Local 641 had advised him that 'the men had
gone on strike unlawfully and that he should "let them stay out." '
2T With the exception of Falzo, who was not scheduled to report again until Monday
night.
587784-45-vol 56-117
1838 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
On March 16,'1943, a conference was held in the offices of the Board in New,
York City. Among those present were Attorney Saul J Zucker and Rizzolo,
representing the respondent, Gibney for Local 641, and Attorney Rothbard,
Falzo, Racioppi, and Dell'Ermo for the Independent. At this conference Roth-
bard requested Zucker and Rizzolo to reinstate the' employees named in the
complaint and to recognize the Independent as the bargaining agent of the
employees These requests were refused No reason was assigned."
On March 25, 1943. Rothbard, by letter addressed to the respondent, renewed
the request for reinstatement of the employees and for recognition of the In-
dependent. On March 31, Zucker, on behalf of the respondent, refused both
requests
B Conclusions as to the unfair labor practices
1. The alleged contracts
The respondent and Local 641 contended, at the hearing that the respondent
has been under contract with Local 641 since 1936, and that at the time of the
events herein there was in existence a contract dated September 1, 1042, and
effective to September 1, 1944, covering the respondent's drivers and helpers
and requiring membership in Local 641 as a condition of employment. An in-
strument purporting to be such an agreement was introduced into the record
It was further contended that the strike of March 11 and the refusal of the
employees to maintain membership in Local 641 were in violation of the agree-
ment, that the employees had thereby quit their jobs, and that they were
therefore properly refused reinstatement. Apicella, Gibney and Rizzolo testi-
fied in support of this position.
The validity of the refusals to reinstate therefore turns upon whether'or not
on March 15, 16, and -31, 1943, there was in existence a valid contract requiring
membership in Local 641 as a condition of employment. If there was such an
agreement, the refusals to reinstate were protected by the proviso to Section 8
(3) of the Act. If there was not, they were discriminatory.
Local 641 introduced into evidence two alleged written contracts between
the respondent and Local 641 covering the respondent's drivers and helpers.
The first of these contracts was dated September 1, 1040, effective to September
1, 1942. The second was dated September 1, 1942, effective to September 1,
1944. Both agreements contain the following provision : "Members of the In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
with paid-up books 'to be employed, and if not available then those who are
wiling to become members at the next meeting." The terms of both contracts'
are below the union scale. The 1942 agreement, for example, provides for a
wage scale of from $40 to $45 per week," and a 54 hour work week. They fur-
ther provide premium pay for certain holidays In addition there is provision
in the 1942 agreement for 1 week's vacation with pay.
It is evident from the testimony that some kind of arrangethent, understanding
or agreement existed between the respondent and the Local as far back as 1935
or 1936 The circumstances under which this relationship came into existence
are significant
As has been indicated heretofore, the respondent's trucks in 1935 or 1936
were denied access to the Lackawanna Warehouse in Jersey City, unless the
respondent was "signed up" with Local 641. Apicella's testimony is that at
that time no more than one or two of the respondent's employees were members
These findings are based on the testimony of Rothbard
The wage scale in the 1940 agreement is fiom $33 to $38.
FAST TRUCKING, INC. 1839
of Local 641, and that he signed a contract with Local 641 "ill order to avoid
trouble." At no time, either then or thereafter, did Apicella request, or Gibney
offer, proof that Local 641 represented a majority of the respondent's employees.
The practice of providing the employees with dues books from time to time
in order to assure access to the terminal facilities in the New York harbor area,
the carrying of signs during the 1942 strike stating that the respondent was
under contract with Local 641, and the circumstances under which the 1942
wage increase was effected, all indicate that thioughout this period some kind
of intermittent relationship was maintained between the respondent and Local
641 That such relationship, however formalized, was not with the consent of
the employees, is evident from the facts. With the exception of Dodge every
employee witness testified that he had never joined Local 641 or designated it
as his bargaining representative Although Gibney testified that all had signed
application cards, counsel for Local 641 declined to produce those cards. Dues
had admittedly not been collected since March 1941 Membership in Local 641
was not required as a condition of employment Whatever the agreements
were which may have been consummated. no meetings of the employees were
called to consider them. It is thus evident that the relationship between Local
641 and the respondent was solely the creation of Local 641 and the respondent,
and was established without reference to the desires of the employees
When, in February 1943, the employees decided to secure the union wage scale,
union working conditions, and the benefits of organization, they were informed1 1
that a contract required that their demands be channeled through Local, 641.
In the context of facts as the employees knew them, such an assertion was not
implausible Their acceptance of the services of Gibney, at the February and
March, 1943, meetings was therefore understandably based upon Rizzolo's as-
sertion that the contract existed. Thereafter they made continual but fruitless
demands that the document be produced., It was never produced.
When Dodge asked Gibney for the contract on Jlarch 12 he.was told that it
had expired and that a new one would have to be drawn up Other factors,
also, suggest that no such contract existed The terms of the contract pro-
duced at the hearing were below the union scale haven those terms, however,
were not obseived Thus, none of the employees ever received premium pay
for Sunday or holidays, or vacations with pay, although the 1942 document
makes provision therefor.30
Dodge's testimony establishes that a document containing union wage scales,
dated retroactively to September 1942 and effective to September 1944, was
secured from Gibney on March 12, 1943. and given to Apicella, who thereafter
told Dodge that he had signed it. Those wage scales were put into effect the
following week As has been related heretofore, Apicella, Gibney and Rizzolo
testified that the document given to Riz-v010 and Dodge was a blank form of
contract. Apicella denied that he had signed it. The explanation given for the
securing of the form was, in substance, that it was for the purpose of executing
a proposed supplemental agreement in accordance with the employees' de-
mands Apicella's testimony was that after consideration of the terms he con-
eluded that they were too rigorous, and that he therefore did, not execute the
supplement.31 The undersgined has credited the testimony of Dodge
'O Rizzolo 's refusal , at the March meeting , to agreee to granting a week ' s vacation with
pay, is thus utteily inconsistent with the teams of the contract supposedly in effect at that
time. '
31 This document was not produced at the hearing. Although the wage increases gianted
during the following week would indicate ' that this agreement had been signed by Apicelli,
the undersigned finds it unnecessary to determine whether or not he in fact executed it
The recommended order will be framed to provide for the contingency in the eN ent the
agreement became effective.
1840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, the undersigned does not credit the testimony of Gibney and Apicella
as to the execution i,f the 1940 and 1942 contracts. ' Both those documents are
on letterheads of Local 641, and bear the signatures of Apicella and Gibney.
According to their testimony, the agreements were executed on or about the'
time of their respective dates. However, the testimony of the printer who
supplied these letterheads to Local 641 establishes that they were not printed
until December 19, 1941.
Upon the entire record the undersigned therefore finds that the agreement
dated September 1, 1942, and effective to September 1, 1944, between the respond-
ent and Local 641, was not executed until some time after March 12, 1943, and
that Local 641 did not at the time of its execution represent a majority of the
respondent's employees. It is further found that there was not, in existence on
March 12, 15, 16, or 31, 1943, any written contract between, Local 641 and the
respondent requiring membership in Local 641 as a condition of employment 32
and made at a time when Local 641 represented a majority of the respondent's
employees.
It is further found that the agreement-between Local 641 and the respondent
dated September 1, 1942, and effective to September 1, 1944, is invalid, and that
by executing the said agreement, and by the activities of Leonard Rizzolo,"lin
seeking to compel the employees, by assertion that a contract existed, to accept
Local 641 as their bargaining representative, and by his other conduct in 'fur-
therance of that design, the respondent gave illegal assistance to Local 641,
discouraged membership in the Independent and encouraged membership in
Local 641, and thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 'of the Act.
2. The cause of the strike
There remains for discussion,the question whether the strike was economic in
character or whether it was caused by the respondent's unfair labor practices.
There is testimony by a number of the employees that their participation in the
strike was caused by the respondent's refusal to accede to their wage demands.
It may be assumed that such refusal was a factor. It was not, however, neces-
sarily the cause of'the strike. Throughout the period of February and March,
1943, the respondent, by false representations, persistently sought to, compel
the employees to accept representation by Local 641 when that organization was
not their freely chosen bargain ang agent. It was dissatisfaction with the efforts
,of that agent which actually precipitated the strike. Had the employees been
represented- by a freely chosen representative the strike might never have
occurred. Thus, the strike was the natural and proximate result of, the
respondent's attempts to force the employees to accept Local 641. The refusal
to agree to the wage demands was merely a condition accompanying the cause.
as In this connection , it is to be noted that the purported 1942 contract does not require
membership in Local 641, but in "International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers." The distinction is significant in view of Apicella's statement
to the employees on March 15 when they presented themselves for work, and Rizzolo's
ultimatum on February 8, when affiliation with the Newark Local of the Teamsters was
suggested by some of the men, that "it had to be 641 or nothing." -
as Rizzolo and Gibney testified that Rizzolo was the shop steward for Local 6 41. Rizzolo
was not elected to such position ; he testified that "it normally fell on me as senior man"
Rizzolo hired employees , assigned them work and generally directed their activities. While
he denied that he discharged employees , Rizzolo testified that "I have told men to go hone
and rest up a while." It is to be noted that at the March meeting Rizzolo spoke for the
respondent , The undersigned therefore finds thatrlizzolo is a supervisory employee and
that his activities are attilbutable to the respondent ,
FAST TRUCKING, INC. 1841
The undersigned therefore finds that the strike of March 11, 1943, was caused
by the respondent's unfair labor practices.
'3. The discharges and the refusals to reinstate
On March 12, the men requested 'reinstatement, and on March 15 they
presented themselves for work. In so doing they abandoned the strike and
became entitled to resume their former positions However, when they reported
for 'work on March 15, Apicella told them that, "If you have no 641 book, you
cannot come back to work." 'Since there was not in existence on that date any
valid contract between the respondent and Local 641, requiring membership in
Local 641 as a condition of employment, Apicella's requirement that the employees
affiliate with Local 641 as a condition of being returned to their jobs was without
the protection of the proviso to Section 8 (3) of the Act The condition was
therefore illegal, and one to which the employees were not required to submit.
It was incumbent on the respondent to reinstate the employees to their former
positions, without discrimination because of their union and concerted activities,
and without the imposition of any condition with respect to their union affiliation.
In imposing a condition as to their affiliation. Apicella in effect discharged and
lucked them out. On March 16 and 25 unconditional requests for reinstatement
of the men were made by Rothbard. Both requests were refused. It is therefore
found that on March 15, 1943, and thereafter, the respondent discharged, locked
out, and refused to reinstate the employees named in Appendix A, attached
hereto, because of their concerted activities, because of their activities on behalf
of the Independent, and because they refused to affiliate with Local 641, and that
the respondent thereby' discriminated with respect to'the terms, and conditions
,of their employment, discouraged membership in the Independent and encouraged
membership in Local 641, and interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.94
4. The, refusal tqbargain
a. The appropriate unit
The complaint alleged that all drivers, helpers and platform men employed by
the respondent at its Newark, New Jersey. plant, exclusive of office and super-
visory employees, constitute a unit appropriate for the purposes of collective
bargaining The appropriateness of such a unit is not disputed. The undersigned
finds that all drivers, helpers and platform men employed by the respondent at
its Newark, New Jersey, plant, exclusive of office employees, and supervisory
employees with authority to hire, promote, discharge, discipline or otherwise effect
9 i As has been indicated heretofore, Racioppi walked out of the plant on the morning
of March 10. He testified that when he , left he was dissatisfied and intended , to quit
permanently . However, later in the day he talked with the other employees and joined
the strike His intention to quit was not conveyed to the respondent . His prominence
in the strike activity has been related heretofore . He was among the group who requested
reinstatement on March 12 He was present at the conference on March 16, in which
reinstatement was requested His name appears in the group requested to be reinstated
in Rotlibard's letter of March 25 Tlie respondent contends that he quit This contention
was not advanced until near the close of the hearing , and after Racioppi had testified. The
undersigned finds, in view of all the surrounding circumstances , including the respondent's
unfair labor practices , and the general dissatisfaction arising therefrom , that Racioppi's
uncommunicated intention did not sever his employment relationship . See Pacific Mills,
51 N. L. R B. 168. In any event , however, the undersigned finds that the respondent
refused to rehire Racioppi for the same discriminatory reasons that it, discharged and
refused reinstatement to the other strikers.
1842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes in the status of employees, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
b. The Independent's majority
During the pay-roll period ending March 12, 1943, the respondent employed
27 drivers, helpers, and platform nmen" However, of the 17 drivers, 2, Mulvihill
and Hines, were hired on March 11 through Local 641 as replacements for striking
employees. Mulvihill was employed but 1 day. During the pay-roll period ending
March 19, 1943, the respondent employed, exclusive of the 15 strikers, 12 drivers,
helpers and platform men 3a However, 3 of these 12, Petrillo, Santora, and Hines,
were also hired as replacements. Petrillo worked but 1 day, March 15; Santora
2 days, March 18 and 19. The undersigned has found that the strike of March 11,
1943, was caused by the respondent's unfair labor practices. The replacement
employees are therefore not to be counted in determining whether the Independ-
ent represented a majority. There were thus 25 persons in the appropriate unit
during the pay-roll period ending March 12, 1943, and 24 in the unit during the
pay-roll period ending March 19, 1943.
On March 12, 1943, all the 15 strikers signed the declaration designating the
Independent as their bargaining agent. All were employed by the respondent
during the pay-roll period of March 12, 1943.
The undersigned therefore finds that on March 12, 1943, and at all times since,
the Independent has been, and is now, the bargaining representative of the
majority of the employees in the aforesaid appropriate unit, and by virtue of
Section 9 (a) of the Act, the exclusive representative of all employees in the
aforesaid unit for the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other conditions of employment.
C. The refusal to bargain ,
On March 16, 1943, at a confeienee at which the respondent was represented
by Rizzolo and Attorney Zucker, Rothbard requested that the respondent i eci gnize
the, Independent. The request was refused.
On March 25, 1943, Rothbard, by letter addressed'to the respondent, renewed
his request for recognition Zucker, on behalf of the respondent, replied on
March 31, refusing the request
The undersigned finds that on March 16 and at all times thereafter the re-
spondent'has refused to bargain collectively with the Independent as the exclusive
representative of its employees in the appropriate unit and has thereby interfered
35 A pay-i oil list for the week ending March 12, 194;, identified by Rizzolo, contained the
following names Drivers * Dodge, Salatore, Di Nardo, Falzo, R Nascenti, Coccia,
Dell Eimo, Burger, Maccioli, Cicero, Restaino. Racioppi, 0 Nascenti, Caprio. Mulvihill,
Hines, and Petrillo : helpers Munn, Williams. Bukowinski, Feriara, Riotti, platform men
Rassiter, Burden, Serchia The presence of Petrillo's name on this list is an ei for The
names of William Decker, a diver, and William Turner and James Wilkins, helpers, appear
on the declaration of March 12, 1943, in which the striking employees formed the Inde-
pendent They were, employed by the respondent dining the week ending March 12,
joined the strike, applied for reinstatement on March 12, and their names appear in the
group whose reinstatement Rothbai d i equested in his letter of March 25 While there
is no explanation for their onussion from the list identified by Rizzolo, the undei signed
concludes that the omission was inadvertent
ae A pav-roll list for the week ending March 19, 1943; provided by Rizzolo, contained the
following names Drivers Dodge, Salvatore, DiNardo, R Nascent!, Maccioli, O. Nascenti,
Pettillo, Muh ihill , Hines, Santora , helpers. Riotti : platform men : Rassiter , Burden,
Serchia The presence of Mull dill's name on this list is an error . Maccioli was a striker.
The appearance of his name on the list is not explained.
t,
FAST TRUCKING, INC. , 1843
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in con-
nection with the operations of the respondent described in Section I above, have
a close, intimate, and substantial relation to trade, traffic, acid commerce among
the several States, and have led and tend to lead to labor disputes burdening and
obstructing commerce and the'free flow of commerce
V. THE REMEDY
Having found that'the respondent has engaged in untair labor practices, the
undersigned will recornmend'that it cease and desist therefrom and taken certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent has discriminated in regard to the
hire and tenure of employment of the employees named in Appendix A, attached
hereto.
Apicella testified that since March 11, 1943, the respondent has curtailed its
operations and no longer has any need for the number of drivers previously em-
ployed On the other hand, Gibney testified that during the strike lie furnished
the respondent with 10 to 12 men. No other evidence of a reduction in operations
was introduced by, the respondent. The undersigned is .unable to credit Apicel-
la's uncorroborated testimony on this point However, the remedy which the
undersigned will recommend will provide for the contingency of a bona-fide and
legitimate reduction in operations The undei signed will recommend that the
respondent offer the employees in Appendix A full reinstatement to their former
or substantially 'equivalent positions, without prejudice to their seniority and
other rights and privileges. This reinstatement shall be affected in the tollowing
manner: All employees hired since, and including. March 11, 1943, shall be
dismissed if such action is necessary to provide employment for those to be
offered reinstatement. If, thereupon, by reason of a reduction in force, there
is not sufficient employment immediately available for those to be offered
reinstatement, all the available positions shall be distributed among the remain-
ing employees in accordance with the respondent's usual method of reducing its
force, without discrimination against any employee because of his union affilia-
tion or activities, following a system of seniority to such extent as has hereto-
fore been applied in the conduct of the respondent's business. The employees re-
maining after such distribution, for whom no employment is immediately avail-
able, shall be placed upon a preferential list prepared in accordance with the
principles above set forth, and shall thereafter, in accordance with such list, be
offered employment as employment becomes available and before other persons
are hired for such work.
It will also be recommended that the respondent make whole each of the em-
ployees named in Appendix A for any loss of pay lie may have suffered by reason
of the discrimination against him, by payment to him of a sum of money equal
to`tlie amount which he normally would have earned as wages from the date of
the discrimination to the (late of the offer of reinstatement, less his net earnings,"
if any, during that period.
0
37 By "net eai nings" is meant earnings less expenses, such as for transportation, room,
and board, incur red by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
1844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the respondent has refused to bargain collectively with the Independent
as the exclusive representative of its employees in an appropriate unit, it will
also be recommended that the respondent ,upon request bargain collectively with
the Independent.
It has been found that the contract between the respondent and Local 641
bearing the date of September 1, 1942, and effective to September 1, 1944, was
not in fact entered into until after March 12, 1943, and was therefore executed
at a time when Local 641 did not in fact represent a majority of the respondent's
employees, and was entered into for the purpose of requiring the respondent's
employees to affiliate with Local 641. Since the contract thus represents the
fruit of the respondent's unfair labor practices, the undersigned will recommend
that the respondent cease giving effect to it or to any other agreement with Local
641 respecting its employees in the appropriate unit, or to any modification,
renewal, extension, or amendment thereof. Nothing in these recommendations,
however; shall be'construed as requiring the respondent 'to vary any wage, hour,
or other substantive features'of its relations with its employees which the re-
spondent may have established in conformity with such contracts as extended,
renewed, modified, supplemented, or superseded.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Newark Drivers & Helpers Independent Union,, and, Merchandise, Drivers
Local No. 641, International -Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, A. F. L., are labor organizations within the mean-
ing
-
of Section 2 (5) of the Act.
2. By discriminating in regard to the We,-and' tenure of employment of the
employees enumerated in Appendix A; attached hereto, and thereby discourag-
ing membership in Newark Driver's & Helpers Independent Union and encourag-
ing membership in Merchandise, Drivers Local No. 641, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L.,
the respondent has engaged in and is engaging iii unfair labor practices within
the meaning of Section 8 (3) of the Act.
0 3. All drivers, helpers and platform men employed by the respondent at its
Newark, New Jersey plant, exclusive of office employees,, and supervisory em-
ployees with authority to hire, promote, discharge, discipline, or otherwise effect-
changes in the status of employees, or effectively recommend such action,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
4. Newark Drivers & Helpers Independent Union was on March 12, 1943, and
at all times thereafter has been the exclusive representative of all the employees.
in the aforesaid appropriate unit for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act. ,
5. By refusing on March 16, 1943, and at all times thereafter, to bargain collec-
tively with Newark Drivers and Helpers Independent Union as the exclusive
representative of its employees in the aforesaid appropriate unit, the respondent
has engaged in and is engaging in unfair labor practices, within the meaning
of Section 8 (5) of the Act.
of Crossett Lumber Company and United'Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B. 440. Monies received for
work performed upon Federal, State, county, municipal, or other work-relief projects shall
be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S 7.
FAST TRUCKING, INC. 1845
6 By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(1) of the Act. -
7. The aforesaid unfair labor practices- are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon;the basis,of the above findings of fact and conclusions'of law, the under-
signed recommends that the respondent, Fast Trucking, Inc., Newark, New Jer-
,sey, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Newark Drivers & Helpers Independent
.Union, or any other labor organization of its employees, 'or encouraging member-
ship in Merchandise Drivers Local No. 641, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., or any other
labor organization of its employees, by discharging, locking out, or refusing to rein-
state any of its employees or in any other manner discriminating in regard' to
their hire or tenure of employment or any'term or condition of their employment;
(b) Giving effect to any agreement with Merchandise Drivers Local Nd. 641,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, A. F. LL in respect to rates of pay, hours of employment, or other
conditions of, employment, or recognizing said Merchandise Drivers -Local No.
641, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A F L, as the representative of any drivers, helpers, and
platform men employed by the respondent at its Newark, New Jersey, plant;
(c) Refusing to bargain collectively with Newark Drivers and Helpers Inde-
pendent Union as the exclusive representative of • all its drivers, helpers and
.-platform men at its Newark, New Jersey, plant, but excluding office employees,
and supervisory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in -the status of employees, or effectively recommend
such action;' ,
(d) Interfering with, restraining, or coercing its employees in the exercise
of the rights to self-organization, to form, join; or assist labor organizations, to
.bargain' collectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other mutual
,aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act :
(a) Offer to the employees named in Appendix A, attached hereto, full rein-
statement to their former or substantially equivalent positions without preju-
dice to their seniority and other rights and privileges, in accordance with the
provisions for reinstatement set forth 'in the Section enitled "The Remedy"
above;
(b) Make whole the employees named in Appendix A for any loss of pay they
may have suffered. by reason of the respondent's discrimination- against them
by payment to each of them of a sum of money equal to the amount, he would
normally have earned as wages from the date of the discrimination against him
to the date of the offer of reinstatement, less his net earnings, if any, during
that period ;
(c) Withhold recognition from Merchandise Drivers Local No. 641, National
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
A. F. L, as the representative- of any of its drivers, helpers or platform men,
1846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at its Newark, New Jersey, plant for the purpose of negotiating with respect to
grievances, labor disputes, rates of pay, hours of employment, or other condi-
tions of employment ;
(d) Upon request bargain collectively with Newark Drivers & Helpers Inde-
pendent Union as the exclusive representative of all its drivers, helpers and
platform men employed at its Newark, New Jersey, plant; i
(e) Post immediately in conspicuous places at its Newark, New Jersey, plant
and maintain for a period of at least sixty (60) consecutive days from the date
of posting notices to its employees stating: (1) that the respondent will not
engage in the conduct from which it is recommended that it cease and desist
in paragraph 1 (a), (b), (c), and (d) of these recommendations; (2) that the
respondent will take the affirmative action set forth in paragraph 2 (a), (b), (c),
and (d) of these recommendations; and (3) that the respondent's employees
are free to become or remain members of Newark Drivers & Helpers Independent
Union, and that the respondent will not discriminate' against any employee
because of membership in that organization;
(f) Notify the Regional Director, for the Second Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (1,0) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
rn writing that he has complied with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any party
or counsel for the Board may within fifteen (15) days from the date of the
entry of the order transferring the case to the Board, pursuant to Section 32 of
Article II of said Rules and Regulations, file with the Board, Rochambeau Build-
ing, Washington, D. C., an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part of
the record or proceeding (including rulings upon all motions or objections)
as he relies upon, together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or
brief, the party or counsel for the Board filing the same shall serve a copy thereof
upon each•of the other parties and shall file a copy with the Regional Director.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing within
ten (10) days from the date of the order transferring the case to the Board.
i CHARLES W. SCHNEIDER,
Trial Examiner.
Dated April 22, 1944.
APPENDIX A
Anthony Caprio Joseph- Restaino Chester Bukowinski
Al Falzo Michael Cicero • Albert Ferrara
Joseph Burger James De11'Ermo James Wilkins
Edward Munn Anthony Coccia
Victor Racioppi Anthony Maccioli