419 F.2d 97 (2nd Cir. 1969), 111, N. L. R. B. v. Gallaro

Docket Nº:111, 33512.
Citation:419 F.2d 97
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Frank GALLARO and Joseph Gallaro d/b/a Gallaro Bros., and G & G Foods Co., Respondents.
Case Date:December 08, 1969
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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419 F.2d 97 (2nd Cir. 1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

Frank GALLARO and Joseph Gallaro d/b/a Gallaro Bros., and G & G Foods Co., Respondents.

No. 111, 33512.

United States Court of Appeals, Second Circuit.

December 8, 1969

Argued Oct. 17, 1969.

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Baruch A. Fellner, N.L.R.B., Washington, D.C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, N.L.R.B., Washington, D.C., on the brief), for petitioner.

Harold M. Weston, New York City (Eli Mellan, Bronstein, Miller & Mellan, Mineola, N.Y., on the brief), for respondents.

Before FRIENDLY, HAYS and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Frank and Joseph Gallaro are partners in a retail food store, doing business under the name G & G Foods Co., in Brooklyn, New York. The Retail Food Clerks Union, Local 1500, Retail Clerks International Association, AFL-CIO, was certified as the exclusive bargaining agent for the Gallaro employees on November for the Gallaro employees on November held on October 25 which the Union had won by an eight to seven vote. A collective bargaining agreement, effective as of February 1, 1966, was subsequently entered into by the Gallaros and the Union. The contract, which contained no reopening or automatic renewal clause, was to terminate by its own terms on January 31, 1967.

On January 24, 1967, Arthur Wolfson, the Union vice president, called Carmine Gallaro 1 by telephone to arrange for negotiations for a new agreement. Carmine

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responded that he had not realized that the existing contract expired so soon, but that he would, in any event, need to discuss the matter with his brothers. When Wolfson called again on January 26 or 27, Carmine stated that he had not, as yet, had an opportunity to discuss the matter with them.

Meanwhile, one of the employees, Michael Ferrara, had been circulating among the employees a petition indicating that they no longer desired union representation. 2 On January 27, when he showed the petition to Carmine Gallaro, Ferrara had obtained four signatures. Carmine expressed neither approval nor disapproval of the petition, but did state, '* * * if you people want to be represented among yourselves, or whatever you are trying to do, you have to have a majority of the employees.'

By January 30th Ferrara had secured the signatures of seven of the ten employees in the bargaining unit and, after dating the petition, delivered it to Carmine. Later that day Wolfson again contacted Carmine relative to a date for negotiations but Carmine once more demurred, and indicated that he was not sure that the Union still had the support of the employees.

That same evening 3 the employees held a meeting 4 at the store after working hours. They asked to meet with the Gallaros and requested a 25-cent an hour pay increase. It had been the longstanding practice at the store to give an annual wage increase, and the employees were concerned that none had been granted since the previous February when the Union contract was executed. The request was rejected by Carmine, who indicated that even though he was willing to listen, he could not promise anything because the meeting might not be legal. The employees then stated that they would settle for a 15-cent an hour increase for the first year with an additional ten cents for the second year. Carmine again expressed doubts as to the legality of the meeting, but stated that the increases would be granted 'if it is perfectly legal.' No date was set for the determination of the question of the increases. Although the trial examiner found that Ferrara at one point threatened to 'stick with the union' if the requests were not granted, this was not the primary emphasis of the meeting.

The following day, January 31, Wolfson again contacted Carmine and asked if the Gallaros were ready to negotiate. Carmine told him that the employees had decided to reject the Union; and, therefore, no negotiations were commenced. The employees' petition had been given to the company's attorney and on February 3, 1967, an RM-representation petition was filed by him with the N.L.R.B. on behalf of the Gallaros. On February 7, the Union filed the unfair labor practice charges upon which the petition in this case is based. The RM-representation petition was then dismissed by the Board because of the pendency of the unfair labor practice charges.

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On February 25th the Gallaros granted the employees a 15-cent an hour wage increase, retroactive to January 30, 1967. They also continued the health benefits which had been in effect prior to the Union contract.

On this evidence Trial Examiner Lightner found that the Gallaros had violated§§ 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5), based upon Carmine's conduct when contacted by Wolfson on January 24th, the January 20th meeting between the Gallaros and the employees, and the February 25th wage increase. The Board, without discussion, adopted the Trial Examiner's findings, conclusions and recommendations, 5 and issued a cease and desist order together with orders to post the standard notice for sixty days, to bargain with Local 1500, and to make certain back payments to the Union's welfare fund.

The Board's contention that Carmine's response to Wolfson's January 24th...

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