Jackson Maintenance Corp.

JACKSON MAINTENANCE CORPORATION 115 IV THE EFFECT OF THE UNFAIR LABOR PRACrICE UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes affecting commerce and the free flow of commerce V THE REMEDY Pursuant to the mandate of Section 10 of the Act, I shall recommend that Re- spondent cease and desist from the unfair labor practices found Notwithstanding that I have exonerated Respondent from the charge that he discrim,natorily dis- charged employee Causey, the unfair labor practices which I have found indicate that in order to effectuate the policies of the Act, Respondent should be additionally directed to cease and desist at the very least, from like or related unlawful inter- ference with the Section 7 `rights of its employees and I shall so recommend Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2- The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act, as found above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act 4 Respondent has not violated Section 8(a) (3) of the Act, as alleged in the complaint [Recommendations omitted from publication ] Jackson Maintenance Corporation and Automobile Mechanics and Helpers, Gasoline Station and Parking Attendants, Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case No f-CA-6389 January 18, 1960 DECISION AND ORDER On August 10, 1959, Trial Examiner W Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that said complaint be dismissed Thereafter, the General Counsel filed exceptions and a supporting brief. The Respondent subsequently filed a brief in reply to that of the Genial Counsel The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and finds merit in the exceptions of the General Counsel Accordingly, we adopt the findings, conclusions, and recommendations of the Trial Examiner only insofar as they are consistent with our decision herein 126 NLRB No 21 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Frank J. Biglione had been employed in the Respondent 's garage as a mechanic's helper from September 1958 to February 1959. On January 29 , 1959, he saw a picket line at the garage. On that date, he signed an application for membership in Local 917, and thereafter honored the picket line by staying away from work for the 10-day period during which the picketing continued . The complaint alleged, in substance, that following the end of picketing activity, the Respondent offered Biglione reemployment, but conditioned this upon Biglione's withdrawal from the Union, thereby violating Section 8 (a) (1) and (3) of the Act. At the hearing, only two witnesses gave testimony : Respondent's president, Katz, and Biglione. Katz stated that he had never offered to reemploy Biglione and that no conversation with respect thereto had ever taken place . He was subsequently impeached, however, through the use of a pretrial statement in which he had stated that he had conversed with Biglione on the subject of reemployment. The Trial Examiner completely discredited Katz ; and we adopt this finding. Biglione testified that he had returned to the shop seeking his tools and was met by Katz, who offered him reemployment if he would withdraw from the Union . At different points in his testimony, Biglione gave four accounts (three of which varied ) of the alleged conversation at that time . He originally testified on direct : "He [Katz] said he couldn't hire me unless I received a letter from the Union saying that I was a non-member." [Emphasis supplied.] He further testified on direct that Katz had said : I want you to write a letter to the Union saying that you don't want to be a union member no more." [Emphasis supplied.] Biglione then stated , on cross- examination, that Katz had said : "I can't put you back to work as long as you signed the union card , unless you can get a letter from the Union saying you want to leave the Union." [Emphasis sup- plied.] Biglione finally testified on cross : Q. Can you tell us whether Mr. Katz said to you, "You will have to get a letter from the union saying you are not a union member before you can go back to work," or whether he said, "You will have to send a letter to the union saying you don't want to be a union member before you can go back to work"? Which was it? A. I think it was the way I said it first. Q. That the union would have to send Mr. Katz a letter saying that you were not a member ? [Emphasis supplied.] A. That's right, because he asked me to tell them in a letter to get a double copy. Q. And he wanted the union to send a double copy , is that right? JACKSON MAINTENANCE CORPORATION 117 A. One for them and one for him, I imagine; a double copy, yes. Q. He wanted the union to send a letter, with a double copy, one for the union and one for Mr. Katz, is that it? A. Right. The Trial Examiner found that the sum of this testimony was conflicting and confusing; he thus concluded that Biglione was an unreliable witness. Accordingly, he found that the General Counsel had failed to prove the allegations of the complaint and recommended dismissal. Contrary to the Trial Examiner, we do not view Biglione's testi- mony to be so conflicting as to warrant finding Biglione an unreliable witness.' It is noted that Biglione was attempting to recall the exact wording of a conversation which occurred several months prior. While his testimony may not have been completely articulate, and while he may have become somewhat confused on cross-examination, the whole of Biglione's testimony clearly establishes that Biglione was required by the Respondent to disaffiliate from Local 917 as a condition precedent to reemployment. As Biglione's testimony thus shows that the Respondent engaged in the proscribed conduct alleged in the complaint, we find that the General Counsel has sustained his burden of proof. Accordingly, we find that the Respondent violated Section 8(a) (3) and (1) of the Act. THE REMEDY Having found that the Respondent has engaged in conduct violative of Section 8 (a) (3) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. It has been found that the Respondent unlawfully refused to em- ploy Frank J. Biglione on February 13, 1959. It will therefore be ordered that the Respondent offer to Biglione immediate and full employment in the position in which he would have been employed but for the unlawful conduct of the Respondent found herein, or in a substantially equivalent position, without prejudice to his seniority or other rights and privileges. It will further be ordered that the Respondent make Biglione whole for any loss of pay suffered by reason of the discrimination against him. Loss of pay, based upon earnings which he normally would have earned from February 13, 1959, the date of the discrimination against him, to the date of offer of employment, less net earnings, shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth I Inasmuch as the Trial Examiner did not specifically discredit Biglione as a witness but merely found him to be unreliable, in contrast to the explicit discrediting of Katz, we do not find any conflict with the Board's usual policy as to the finality of credibility resolutions of a Trial Examiner. See Standard Dry Wall Products , Inc., 91 NLRB 544, enfd 188 F. 2d 362 (CA 1). 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, 90 NLRB 289. In accordance with our customary practice where a Trial Examiner has recommended dismissal of a complaint, we shall exclude from the computation of backpay the period between issuance of the Intermediate Report in the instant case and issuance of this Decision and Order. Because the unlawful conduct found to have been committed by the Respondent infringes fundamental rights guaranteed by the Act, the commission of other unfair labor practices may reasonably be anticipated. It will therefore be recommended that the Respondent cease and desist from in any manner infringing upon the rights guaranteed its employees and prospective employees by Section 7 of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Jackson Mainte- nance Corporation, New York, New York, its officers, agents, ^succes- sors and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Automobile Mechanics and Helpers, Gasoline Station and Parking Attendants, Local 917, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organizations, by making nonmembership in a labor organization a condition of employment, or in any other manner discriminating against its employees in regard to hire or tenure or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form labor organizations, to join or assist Automobile Mechanics and Help- ers, Gasoline Station and Parking Attendants, Local 917, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain col- lectively through representatives of their own choosing and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Frank J. Biglione immediate and full employment in the position in which he would have been employed but for the dis- JACKSON MAINTENANCE CORPORATION 119 crimination against him, or in a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, as provided in the section of this Decision and Order entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to determine the rights of employment, and to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in New York, New York, the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by a duly authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. CHAIRMAN LEEDOM took no part in the consideration of the above Decision and Order. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Act, as amended, we hereby notify our employees and prospective employees that : WE WILL NOT discourage membership in Automobile Mechanics and Helpers, Gasoline -Station and Parking Attendants, Local 917, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or in any other labor organi- zation, by making nonmembership in a labor organization a condition of employment, or by discriminating in any other manner in regard to hire or tenure or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization, to form labor organizations, to join or assist Auto- mobile Mechanics and Helpers, Gasoline Station and Parking Attendants, Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activi- ties, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. WE WILL offer to Frank J. Biglione immediate and full employ- ment in the position in which he would have been employed but for the discrimination against him, or in a substantially equiva- lent position, without prejudice to any seniority or other rights and privileges and make him whole for any loss of pay suffered as a result of the discrimination against him. All of our employees are free to become, remain, or refrain from becoming or remaining members of Automobile Mechanics and Help- ers, Gasoline Station and Parking Attendants, Local 917, Interna- tional Brotherhood of 'Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any' other labor organization. JACKSON MAINTENANCE CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding was heard before W. Gerard Ryan, the duly designated Trial Examiner, in New York, New York, on June 23, 1959, in which the issues presented were whether Jackson Maintenance Corporation, herein referred to as the Re- spondent, violated Section 8(a)(1) and (3) of the Act, by insisting, as a condition for reinstating Frank Biglione to his former or substantially equivalent position or employment , that he resign from the Union and upon his refusal to resign from the Union by thereafter refusing to reinstate him. The parties waived the filing of briefs but participated in oral argument. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is and at all times herein mentioned has been a New York corporation with its principal office and place of business at 127-01 Metropolitan Ave, Richmond Hill, in the city of New York, herein called the Richmond Hill JACKSON MAINTENANCE CORPORATION 121 garage, where it is and has been engaged in the business of providing and perform- ing automobile and taxicab maintenance services and related services. During the past year the Respondent performed services and furnished materials at said Rich- mond Hill garage valued at more than $50,000 of which services and materials valued at more than $50,000 were furnished to taxicab companies who admittedly are engaged in commerce within the meaning of the Act. The complaint alleged, and the answer admitted, that the Respondent is and at all times material herein has been engaged in commerce within the meaning of the Act. I find that the Respond- ent is engaged in commerce within the meaning of the Act and that assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED Automobile Mechanics and Helpers , Gasoline Station and Parking Attendants, Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as the Union, is a labor organization within the meaning of the Act. ° III. THE ALLEGED UNFAIR LABOR PRACTICES Frank J. Biglione testified that he had been employed as a mechanic's helper by the Respondent from September 1958 to February 1959. He worked on the night shift from 7 p.m. to 7 am. On the morning of January 29, 1959, he saw a picket line at the garage. He was asked if he wanted to join the Union and he signed an application card on January 29 for membership in Local 917. The strike and picket line continued for about 10 days during which time Biglione, not wanting to cross the picket line, stayed away from work. He did not picket. On February 13, he testified that he returned to the garage and had a conversation with his boss, Morris Katz (the president of the Respondent), sometime between 6:45 and 8 p.m.' Concerning his conversation with Katz, Biglione testified: He asked me if I wanted to go back to work. I said yes. He asked me if I had signed a union card, which I did. He said he couldn't hire me unless I received a letter from the union saying that I was a non-union member. He wanted me not to be a union member in order to put me back to work. At that point in order to clarify whether Katz lad said he wanted him not to be a union member or whether that was the witness" conclusion, I inquired if that was what Katz had said and Biglione replied, `'That's what he said." TRIAL EXAMINER. That he wanted you to be non-union. Did he use the word "want"? The WITNESS: He said, "I want you to write a letter to the union saying that you don't want to be union member no more," and then he will put me back to work. That is when I took my tools out, that same night On cross-examination, Biglione testified that about 2 weeks after he signed the union card he came back to go to work. He then admitted that in a prehearing affidavit given to the General Counsel he had stated, "About two weeks later I went back to get my tools." He continued his testimony on that point as follows: Q. Well, did you go back for the purpose of getting your tools, or did you go back to ask for your job, which9 A. I went to get my tools I figured- Q. You went to get your tools? A. That's right. Q. You did not go back to get your job, did you? A. 1 wanted my job, yes, sir. Q. Well, when a person goes back to get his tools, it is for the purpose of taking his tools away from the garage, is that right? A. That's right. Biglione testified that on February 13 he arrived at the garage between 6:45 and 7 p m. and the conversation with Katz was at 7:30 or 8 p.m He testified that Katz asked him if he was ready to go back to work and when Biglione replied that he was ready, Katz inquired if he had signed a union card, and Biglione testified: I told him I did. Then he says, "I don't want to fire you, but I can't put you back to work as long as you signed the union card, unless you can get a letter from the union saying that you want to leave the union." 1 At first Biglione testified the conversation took place about 6.45 or 7 o'clock in the evening and then testified it was around 7 30 or 8 p in. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Biglione testified that he said nothing further to Katz except to ask permission to take his tools which was granted. Questioned further with respect to the conversation with Katz, Biglione answered that Katz told him he could come back to work if he (Biglione) got a letter from the Union saying he had left the Union. Biglione was then asked: Q. Didn't you testify on direct examination that Mr. Katz said to you that if you sent a letter to the union that you didnt want to be a union member, he would then take you back to work? A. I don't think so. It didn't sound that way that night; no, sir. Q. Can you tell us whether Mr. Katz said to you, "You will have to get a letter from the union saying you are not a union member before you can go back to work," or whether he said, "You will have to send a letter to the union saying you don't want to be a union member before you can go back to work"? Which was it? A. I think it was the way I said it first. Q. That the union would have to send Mr. Katz a letter saying that you were not a member? A. That's right, because he asked me to tell them in a letter to get a double copy. Q. And he wanted the union to send a double copy, is that right? A. One for them and one for him, I imagine; a double copy, yes. Q. He wanted the union to send a letter, with a double copy, one for the union and one for Mr. Katz, is that it? A. Right. Biglione concluded his testimony that he then got his tools, left the garage, never returned, and never had further conversations with Katz or anyone else connected with the Respondent. Morris W. Katz, called by the Respondent, testified that he is the president of the Respondent and that after the strike started he hired replacements on the day shift and replaced Biglione by recalling to work a former employee named Oscar Scheddin.2 Katz testified that Bighone had worked on the night shift from 7 p in. to 7 a.m but that Katz's normal working hours were from 9 a.m. to 6 p.m. at the latest. Katz testified that he was hot in the garage during the evening of February 13 and had no conversation with Biglione on that day or evening. On cross-examination, Katz testified that when Biglione did not work on January 30, 1959, he recalled Oscar Scheddin to work on January 31. Katz testified that the only conversation he had with Biglione was on either February 26, 27, or 28, when Biglione came into the garage about 10:30 a.m. and all that was said in the conversation was that Biglione asked if it was all right to take his tools and Katz replied, "Sure " Katz testified there was no conversation about Biglione's job and that Biglione did not then, or ever, ask for his job. Katz admitted on cross-examination that he signed and gave a statement dated March 26 to the General Counsel which said, "When the picketing was over he came down and tried to get his job back " Katz was then asked how he explained the difference between his present testimony that Biglione never asked for his job and the written statement that when the picket- ing was over he came down and tried to get his job back, and he answered: That was my way of explaining to you that he didn't come until the end of February, and the picketing had been over a month ago and everything was running smoothly. That is the only way I can explain it. Katz denied that he told Biglione that he would reinstate him if he gave up his membership in the Union. Conclusions There are only two witnesses in this proceeding, Biglione called by the General Counsel and Katz called by the Respondent. Their testimony is squarely conflicting. Katz denied there was any meeting or conversation between him and Biglione on February 13, 1959. The entire case of the General Counsel rests on whether Biglione had a conversation with Katz on February 13 during which Katz told Biglione that he could have his job back on condition that he withdraw from the a The transcript refers to December 13, 1959, as the date before which Scheddin re- placed Biglione. Obviously the month December is erroneous and should read February. LOCAL 761, INT'L UNION OF ELECTRICAL, RADIO, ETC. 123 Union. The General Counsel impeached the testimony of Katz who testified that Biglione had never asked for his job by having Katz admit that on March 26 he had stated in a prehearing written statement , "When the picketing was over he came down and tried to get his job back." When Katz was asked to explain that state- ment with his testimony, he answered that that was his way of explaining that Biglione did not come until the end of February, and the picketing had been over a month ago and everything was running smoothly. Such explanation is, of course, no explanation . Accordingly, I do not credit the testimony of Katz on the issue of whether Biglione asked for his job and having discredited him on that point I discredit him on the other material matters to which he testified. Having discredited the testimony of Katz, I now turn to the testimony of Biglione to ascertain if it is sufficient to prove the allegations of the complaint. His testimony to say the least is confusing on what it was that Katz said to him, assuming for the moment that he had a conversation with Katz on February 13, 1959. Because Biglione testified on direct examination that Katz said, "I want you to write a letter to the Union saying that you don't want to be union member no more" and then later within a matter of a few minutes, on cross-examination , testified that he did not so testify, grave doubts as to Biglione's reliability are had as to what actually was said in the conversation. He then testified that Katz told him he was to write to the Union and have the Union write to Biglione saying he had left the Union; and later testified that Katz told him to have the Union write the letter to Katz. In my opinion, such conflicting testimony on Biglione 's part presents most serious doubts as to what if anything was said about Biglione's continued membership in the Union. Upon appraisal of the entire testimony of Bighone, I have arrived at the conclusion that Biglione was not a reliable witness, and , accordingly, the General Counsel has failed to prove the allegations of the complaint by the required pre- ponderance of reliable evidence. I shall therefore recommend that the complaint be dismissed. Upon the basis of the foregoing findings of fact, and on the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Jackson Maintenance Corporation, is engaged in commerce within the meaning of the Act. 2. The Respondent, Jackson Maintenance Corporation, has not engaged in any unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. [Recommendations omitted from publication.] Local 761, International Union of Electrical , Radio and Machine Workers, AFL-CIO and General Electric Company. Case No. 9-CB-502. January 13, 1960 DECISION AND ORDER On June 12, 1959, Trial Examiner Thomas A. Ricci issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices and recommended dismissal of the complaint with respect thereto. Thereafter, the Charging Party and the Respondent filed exceptions to the Intermediate Report and supporting briefs. 126 NLRB No. 25.