S. Fishman Co., Inc.

S. FISHMAN S. Fishman Co., Inc., and Local 27, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case 29-CA 4650 September 21. 1979 DECISION AND ORDER By CAIRMAN FANNIN(G AND MtIMBI RS PE NI I.() ANI) TRUIESDA t On June 14, 1979, Administrative Law Judge Mel- vin J. Welles issued the attached Decision in this pro- ceeding. Thereafter. Respondent filed an exception and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that Respondent. S. Fishman Co., Inc., Hicksville, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has requested oral argument. This request is hereby denied. as the record, the exception, and the brief adequately present the issues and the positions of the parties. DECISION STAIEMENT OF TilE CASE MELVIN J. WELL.ES, Administrative Law Judge: This case was heard before me in Brooklyn. New York, on November 8, 1978, based on charges filed October 22. 1975, and a complaint issued June 30, 1977. alleging that S. Fishman Co., Inc. (herein called the Company or Respondent), vio- lated Section 8(aX 1). (2), and (3). The General Counsel and Respondent have filed briefs. Upon the entire record in the case, including my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a New York corporation with its principal office and place of business at Hicksville. New York. where 179 it is engaged in the sale and distribution oft' housewares and other goods and materials. During the sear prior to the issuance of the instant complaint. Respondent received goods and materials valued in excess of $50()000 directly trom outside the State of New York. I find, as Respondent admits. that it is an emploNer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I.ocal 27. International Brotherhood of Teamsters. Chauftiurs. W'are- housemen and Helpers of America (herein called l.ocal 27 or the tlnion), as Respondent admits, is a labor organiza- tion within the meaning of Section 25) of the Act. II. tlt Al I1 (1) NAIR i ,\It()R PRAt( I I S A. T71 he /it and Ditlcsiiln The ('ompany and Local 27 have had contractual rela- tionships fl'r mans years. The contract of October . 1973. which is involved in this proceeding, provided that l.ocal 27 was the exclusive bargaining representative of all emplo\ees in certain listed classifications. which did not include "pack- out men," sometimes called display men. l.ocal 27 Business Agent Patrick Crapanzano testified. as did C'ompafnl Pres- ident Sidney Fishman. that the Union did not represent the pack-out men. Crapanzano also testified that beginning Januar) 2. 1977. the Company recognized the Union as collective-bargaining representative of the pack-out men, in a separate unit from the other employees. Joe Salerno and Joe Fazzini. longtime employees of Re- spondent. had been members of Local 27 and of the bar- gaining unit at a time when they were in a classification (assistant driver) covered bh the then-existing bargaining agreement. When they "were losing the jobs of assistant drivers." the Company reached agreement with both em- ployees. who were becoming pack-out men, that thes would continue at the salars set forth in the contract fOr their old classifications and also continue to receive all benefits pro- vided in the old contract, as well as any increases negoti- ated by the Union. Company records show that Fazzini has worked for the Company since 1932. There is no specific date in the record with respect to Salerno, but the testimony shows that he has been a pack-out man for 10 or more years and worked as a helper on a truck for a long time before becoming a pack-out man. Company records were introduced by the General Coun- sel with respect to a number of other employees to show. according to the General Counsel. that joining Local 27 was the key to receiving contractual benefits. For example. the payroll record of Alex Troyan shows that he was a warehousemen from August 5 to December 1977. that no union dues were deducted from his pay. and that no pen- sion and welfare contributions were made for him. Frank Orzechowski was employed as a warehouseman in the mid- dle of May 1975. He received a wage increase to almost "union scale" in September 1975. and then. on October I, 1975. union dues were deducted, contributions to the wel- fare and pension funds made, and his salary changed to the contract rate. Woodrow Hevman was hired as a pack-out man March 14. 1977. Three months ater that he began I This contract a, lenfied, huill never offered r reccled Incito Csl ence 245 NLRB No. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) paying union dues (by payroll deduction), pension and wel- fare contributions were made, and he was raised to the con- tract scale. Richard Newman, a pack-out man since early in 1977, did not have union dues deducted until July 1977. At that point contributions to the pension and welfare funds began to be made on his behalf, and he received a wage increase. David Corsi, hired August 1977 as a pack-out man, apparently worked only until the middle of November 1977. Dues were never deducted from his pay, nor were contributions made to the pension and welfare funds for him, and he did not receive contract scale. None of the aforementioned employees testified. In fact, other than the records that were introduced into evidence, and agreed upon by Respondent's counsel as being authen- tic, the only testimony concerning these employees was that of Sidney Fishman, who knew virtually nothing of the indi- viduals, but testified generally to the existence of a de acrto 90-day probationary period after which a man "joins the Union" and gets the wage increases, etc. The testimony conflicts sharply with respect to the dis- charge of Salvatore Esposito. alleged by the General Coun- sel to have been discriminatorily discharged. Esposito was a pack-out man after his rehire in 1974. He testified that Sid- ney Fishman told him, when he started to work, that he "had a job and that outside men were not allowed in the union and if I wanted to join I would not have a job." According to Esposito, he joined the Union sometime in August 1975, signing a union card at the time and giving it to Union Business Agent Crapanzano. He was discharged on September 12. He testified that he received a phone call from Sidney Fishman while working at a King Kullen Su- permarket, and Fishman told him he was sorry, things were slow, and he had to lay off Esposito. Esposito called back, and Fishman told him to call again at the end of the month.' He did so, and Fishman then said, "Why are you making trouble with the Union[?] There is no job here for you." Esposito also testified that work was not slow at the time and that he had been working overtime. Sidney Fishman testified that he saw Esposito, the day of the latter's discharge, "sleeping in the truck" at the super- market. He blew the horn to wake up Esposito and asked him why he was sleeping in the truck, and Esposito "could not give me an excuse." Fishman then went into the store. where Salerno was working, and said "Joe, where is Sal?" Salerno replied, "In the other corner, it is a big store." Fish- man said, "He is not in the corner, he is in the truck sleep- ing." Esposito then walked in, was asked by Salerno, "Where were you?" and replied, "I was in the truck, I fell asleep." Fishman then fired Esposito. He told Salerno, "Joe, you have no assistant anymore, you work for yourself ... ,"and told Esposito, "You will not work for us any- more, call it fired or what you want." Business Agent Crapanzano testified that one of the em- ployees at the Company called him to say that two employ- ees, Esposito and Frank Bravico, were not covered by the collective-bargaining agreement. He did not remember the date of this call. He then "took a ride to S. Fishman in Hicksville and I signed the men up." Crapanzano identified 21I agree with the General Counsel that the transcript incorrectly says "week" rather than "month." the membership application card that Esposito signed and gave it to him. He testified that he gave the card, along with the dues authorization card attached to the application card, to "the girl" at his office and that she then should have mailed "it to the employer." Esposito's membership application card is dated August 18. 1975. The dues autho- rization card, however, is dated October 17. 1975. The card of employee Frank Bravico in evidence was also identified by Crapanzano. This card is dated October 17. 1975. the same date as Esposito's dues deduction authorization card. but 2 months after his membership application card. It is clear from Crapanzano's testimony that he gave the two cards to his secretary at the same time. And the evidence also shows that the two dues deduction authorization cards were forwarded to the C'ompany on October 17. 1975. Considering all this evidence, including the fct that the dues deduction card and membership application card were attached to each other. I am satisfied that Esposito and Bravico signed all cards on the same day, October 17, 1975. It was not likely, as Crapanzano himself' testified, that he would walk around with a card for several months without turning it over to his secretary. As he said. "there would be no reason to hold it," he would take it in to her for process- ing so that notice would be given to the employer as soon as possible. It is also highly unlikely that Esposito would sign one half of the card in September and the other half in October. It is even more unlikely that he would sign the second half, the dues deduction part, a month after his dis- charge, having signed the first half a month before the dis- charge. It is not so unlikely, though, that he would join the Union after the discharge in order to help build a case against the Company or at least to enlist the Union's aid. That, I am convinced, is exactly what happened. I therefore discredit Esposito's testimony, finding. accordingly, that he could not have been discharged in September for joining the Union, as he did not join until October. Bravico testified that he began working for the Company in 1974 and worked part time (as a student) until August 1975. At that point, having been graduated from high school. Bravico told Company Vice President Allen Fish- man that he would like to work full time, and he began to do so. On October 17. 1975. Bravico signed a union card, as set forth above. The day before. Company Supervisor Joe Farrell, Bravico's foreman, told him that the Union was going to have a meeting that evening and that Al Fishman would like Bravico to leave at 4 p.m. so that he would ot be there when the union official came to conduct the meet- ing. Bravico did leave at 4 as requested, although paid until 6. The next day. as Bravico was about to leave, supervisor Farrell told him that "as of Monday you will be working part time again." Farrell added that Allen Fishman made the decision. Several days later Bravico asked Farrell why he was cut down to part time again. Farrell asked Bravico whether he would like the real reason or the reason "Al Fishman would give .... " He then said that the real reason was that "they' fbund out I signed a union card..l. TIhe reason Allen would give ... was that we were slow on work and they only need me part time." From that point on. according to Bravico. he worked part time even though there was as much work to do as there had been previously and even though some new employees were hired. 180 S. FISHMAN CO., INC. Neither Farrell nor Allen Fishman was called to testify. so Bravico's testimony stands uncontradicted. Respondent, in its brief, argues that the records do not support the Gen- eral Counsel's contention that Bravico's hours were in fact reduced. Respondent also claims that "at best, General Counsel has demonstrated that Mr. Bravico did not receive the full wages that he was entitled to. However, the failure to pay wages is not a violation of the Act, and if there is any claim for such non-payment of wages that would be a civil proceeding which is not the subject matter of this hearing." To the extent that any loss of hours was suffered by Bravico, his uncontradicted testimony establishes Respon- dent's unlawful motivation, and, contrary to Respondent's contention, a loss of wages that stems from an employee's union activity is a violation of the National Labor Rela- tions Act, even if it might also be a breach of the employ- ment contract subject to a "civil proceeding." There is no need to determine at this stage the extent of any losses Bravico may have suffered; that determination can be made at the compliance stage, if any is necessary, of this proceeding. The final question raised by the pleadings and evidence herein concerns whether Respondent unlawfully assisted Local 27 by making payments to the Union's welfare and pension funds on behalf of members of Local 27, and re- fraining from making such payments on behalf of employ- ees who were not Local 27 members, and by not paying employees who were not members the wage rates provided for in the contract. With respect to the period before Janu- ary 2, 1977, when a contract covering pack-out men was executed, the basis for a violation asserted by the General Counsel is the payment of contractual wage rates to, and contribution to the welfare and pension funds for, Salerno and Fazzino while denying such payments to other pack- out men. After the new agreement became effective the vio- lation, asserts the General Counsel, lay in the fact that em- ployees did not receive the full contractual wage rates, nor did they have payments made to the welfare and pension funds until they joined the Union and dues began to be deducted from their pay. In the full circumstances of this case, I do not discern any violation of Section 8(aX2 ) of the Act. Interestingly, the charge that initiated this proceeding was filed by Local 27 and alleged only that Respondent discharged Esposito and reduced Bravico's hours because of their membership in Local 27. The Union did not allege that it was "assisted" by the Company. Essentially, Sidney Fishman's explanation that he continued paying the wage scales and contributions to the Union pension and welfare funds on behalf of long- time employees Esposito and Fazzini even after they be- came pack-out men does not demonstrate any motive to assist the Union. True, the benefits were paid to union members, but this is not because they were union members. There was nothing wrong in keying the wages of these men, no longer in the unit represented by Local 27, to the wages in the contract. Nor was there anything wrong in continu- ing to deduct dues from their pay and remitting such dues to the Union based on their continuing voluntary dues- checkoff authorizations. No evidence was offered to show that the payments in all other respects were conditioned on Salerno and Fazzini remaining union members. Indeed, the situation with respect to Bravico shows that becoming a union member was not the open sesame to higher wages and greater fringe benefits. There is also, by the same token. nothing to show that the other pack-out men were denied benefits because they were not members of the Union. Their joining the Union, indeed, would not have entitled them to any benefits, for they were not in the unit. In short. there is a coincidence, rather than a nexus, between the union memberships of Salerno and Fazzini and their con- tinuing to receive the wages and other benefits that employ- ees covered by the contract received. The situation after the new contract was executed cover- ing pack-out men is somewhat different. As shown above, the documentary evidence does seem to indicate a direct connection between employees' dues being deducted from their pay and their reaching contract wage rates and receiv- ing other contractual benefits. These records, however, were introduced with no explanation whatsoever by any of the General Counsel's witnesses. Sidney Fishman, however, provided at least a partial explanation by testifying that there was a 90-day probationary period for new employees. Fishman also testified that even after the 90 days, '1I]t de- pends on the man. If he is doing his work and not getting caught laying off and doing something like getting drunk in the middle of work," he is kept on and joins the Union. That time apparently comes, according to Fishman. "when he learns the business" and is "fit for the job." As the Janu- ary 2, 1977, contract covering the pack-out men is not in evidence, there is nothing to show that the practice does not, at least generally, accord with the contract's terms. But even if it does not, and even though the records referred to above show minor variations, there is insufficient evidence to show that it was the acquisition of union membership that triggered wage increases and other benefits for the pack-out men after January 2, 1977. Rather, it would ap- pear that the increases, the benefits, and union membership were all keyed to the employee passing muster as a regular employee. Although this latter is somewhat speculative, so is the General Counsel's case in this respect. For all these reasons, I find that the General Counsel has not established a violation of Section 8(a)(2) of the Act by a preponderance of the evidence. Upon the bases of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent, by discriminatorily reducing the working hours of employee Frank Bravico because of his member- ship in the Union, has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent has not violated the Act in any other re- spect. THE REMEDY Having found that Respondent violated the Act by re- ducing Bravico's hours of employment, I shall recommend that it be ordered to cease and desist therefrom and take 181 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain affirmative action designed to effectuate the policies of the Act. Included in this affirmative action will be the restoration of Bravico to full-time status and payment to him, for any loss of earnings he may have suffered as a result of the discrimination against him, of the amount he normally would have earned from the date of the discrimi- nation to the date Respondent restores him to full-time sta- tus, with interest as provided in Florida Steel Corporation, 231 NLRB 651 (1977). Upon the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Sec- tion 10(c) of the Act, I hereby issue the following recom- mended: ORDER' The Respondent, S. Fishman Co., Inc., Hicksville, New York, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discriminating against employees in regard to terms or conditions of employment because they have engaged in union activities. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act, except to the extent that such rights are affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action, which is neces- sary to effectuate the policies of the Act: (a) Restore Frank Bravico to full-time employee status, without prejudice to his seniority or other rights and privi- leges, and make him whole for any loss of earnings he may have suffered, in the manner set forth in the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. roll records, social security payment records. timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Hicksville, New York. plant copies of the attached notice marked "Appendix."4 Copies of said notice. on forms provided by the Regional Director for Region 29. after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations not herein found. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT reduce employees' hours for engaging in union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them under Section 7 of the Act. WE WILL restore Frank Bravico to full-time em- ployee status and pay him for losses he suffered as a result of our reducing his hours of employment. S. FISHMAN Co., INC. 182