Playbill, Inc.

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD My colleagues rely, for the result they reach, upon the fact that the Teamsters Union also frequently represents, in addition to mechanics, other employees. This reliance is misplaced. The representative ex- perience of the Teamsters in this respect is not unlike that of other unions that have been found by the Board to be traditional bargain- ing representatives of craft groups, notwithstanding their representa- tion of broader or industrial type units.10 On the basis of testimony which shows that the Employer's mechan- ics make repairs on the Employer's fleet of trucks and maintain them in a iseparate garage, and that the mechanics exercise the customary skills associated With automotive mechanic craftsmen, I would find that the requested employees constitute a true craft group and would direct a severance election for them in that unit. CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the consideration of the above Decision and Order. pany, Case No. 32-RC-1216 ( servicemen , mechanics, and recappers ) ; Mack Trucks, Inc, Case No 9-RC-3621 ( service department and maintenance employees , including garage mechanics and their helpers ) ; Central Motor Lines, Inc ., Case No 11-RC-1114 ( mechanics, helpers, stock room employees and janitors ) , Purity Bakeries Corporation, Case No 10-RC-4213 ( automotive mechanics and servicemen ) , Vincent Chevrolet, Inc, Case No 7-RC-4166 ( service and maintenance employees , including mechanics and garage em- ployees ) ; Evans Lincoln Mercury, Inc , Case No 7-RC-4006 ( garage and service em- ployees , including mechanics) ; Hartman White, Inc , Case No 26-RC-1397 ( mechanics, helpers , extra mechanic, parts men , and porters ) ; Vaughn Chevrolet, Case No 18-RC- 4338 ( service and maintenance employees , including mechanics ) ; and West Virginia-Ohio Motor Sales, Inc., Case No, G-RC-2551 (mechanics and service employees). In particular, see Acme Concrete Corporation, Case No 12-RC-684 ( not published In NLRB volumes ) : There, as a result of Board -directed election In a craft unit composed of automotive mechanics and their helpers, the Teamsters was certified on November 27, 1959, in the unit found appropriate by the Board and from which heavy duty mechanics, gasmen , greasemen , and stock clerks were excluded 10 Compare , for example, the breadth of the jurisdictional claims of the International Association of Machinists, set forth in its constitution ( 1957 ), and the United Brother- hood of Carpenters and Joiners of America, set forth in its constitution ( 1955 ), with the like claim of the Teamsters set forth in its constitution (1957) : ". . . jurisdiction over . . . automotive . . maintenance employees , garage workers .. . . Playbill, Incorporated and Truck Drivers Local Union No. 807, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Case No. 2-CA-7537. May 18, 1961 DECISION AND ORDER On January 30, 1961, Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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 131 NLRB No. 86. PLAYBILL, INCORPORATED 593 that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that the allega- tions of the complaint to such extent be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions to the Interme- diate Report and isupporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions, briefs, and the entire record in this case and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. 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 the Respondent Playbill, Incorpo- rated, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Inducing or attempting to induce its employees to refrain from or withdraw from union membership by promising and granting ben- efits or by threatening them with discontinuance of operations result- ing in loss of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its place of business in New York, New York, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Second Re- gion, shall, after being duly signed by Respondent's representatives, be posted for 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by other material. 'We do not, however, adopt or pass upon the Trial Examiner' s findings and conclu- sions regarding Salerno's Interrogation of Falcone as set forth in footnote 3 of the Intermediate Report ; nor do we adopt or pass upon the Trial Examiner's findings and conclusion regarding Kraft's interrogation of Falcone in the presence of Hammer, as in any event the Order herein would not be affected. 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." 599198-62-vol. 131-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for the Second Region, in writ- ing, within 10 days 'from the date of this Order, what steps Respond- ent has taken to comply therewith. IT Is FURTHER ORDERED that the complaint herein be dismissed insofar as it alleges that the Respondent has engaged in any unfair labor practices in violation of Section 8(a) (1) except as above specifically found, and that it be dismissed insofar as it alleges that the Respond- ent engaged in any unfair labor practices in violation of Section 8(a) (3) and (5) of the Act. 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 National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT induce or attempt to induce our employees to re- frain from or withdraw from membership in Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, by promising and granting benefits or by threaten- ing them with discontinuance of operations resulting in loss of employment. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights guar- anteed by Section 7 of the National Labor Relations Act, as amended. PLAYBILL, INCORPORATED, 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 AND RECOMMENDATIONS STATEMENT OF THE CASE This proceeding, with all parties represented , came on to be heard before the duly designated Trial Examiner on December 19, 1960, at New York, New York. The complaint alleged that Playbill , Incorporated, herein called Playbill or the Respond- ent, threatened its employees with discharge and other reprisals if they became or remained members of Truck Drivers Local Union No. 807 , herein called Local 807 or the Union, interrogated its employees concerning their union membership and promised its employees benefits to induce them not to become or remain members of Local 807. It alleged that Respondent discharged John Ronzino because he had joined Local 807. It further alleged that Respondent refused to bargain collectively with Local 807 as the representative of a majority of its employees in a unit appro- priate for the purpose of collective bargaining . The complaint alleged that by these acts Respondent violated Section 8(a) (1), (3 ), and (5 ) of the Act. PLAYBILL, INCORPORATED 595. The answer denied the aforesaid allegations. At the conclusion of the General Counsel's case counsel for the Respondent moved to dismiss the complaint. The Trial Examiner reserved decisions on this motion. It will be disposed of in accordance with the recommendations in this Intermediate Report. At the close of the hearing the General Counsel submitted oral argument. Counsel for the Respondent waived oral argument and submitted a brief on January 19. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a New York corporation having its office and principal place of business at 240 Madison Avenue, New York City, and it is engaged in the publi- cation and distribution of theater programs . During the past year Respondent per- formed advertising services valued in excess of $500,000 of which services in excess of $200,000 were furnished to various enterprises including Revlon , Inc., Chevrolet Motor Division , General Motors Corp., and Liggett & Myers Tobacco Co., each of which annually produces and ships in interstate commerce goods valued in excess of $50,000. Respondent concedes and I find that it is engaged in commerce within the meaning of the Act. H. LABOR ORGANIZATION INVOLVED Local 807 is a labor organization within the meaning of Section 2(5) of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts For delivering its programs to the theaters in the Times Square area Playbill uses its own truck, operated by a driver and helper. Although all of the plant employees are represented by labor organizations none represents the driver and his helper. That situation led to this case. John Falcone, called by the General Counsel, testified that he had been employed as a helper and driver on this truck for 5 years prior to the hearing. Prior to em- ployment with Playbill he had been a member of Local 807. In August of 1959 Otto Tummel, the driver of the truck, was incapacitated by a back injury and Falcone became the driver, the position he held at the time of hearing. According to Falcone, he had a conversation with Plant Supervisor D'Apolito (not called as a witness) at the time he took over the driving in which he asked D'Apolito about making the job a union job since he already had a card in Local 807. His testimony is that D'Apolito told him he would be fired if he demanded recog- nition. (This conversation is barred as evidence of violation by Section 10(b).) That appeared to be all Falcone remembered of this conversation. Sometime in late May or early June of 1960 John Ronzino was hired as Falcone's helper on the truck. At times and under circumstances which this record does not disclose, Falcone and Ronzino were approached by organizers of Local 807 and on July 27 they went to the Union's office and signed applications for membership.' Falcone, whose faculty of recollection was not clear, testified, after he had had his memory refreshed by his pretrial statement, that on the day they signed their appli- cations a telephone call was received at Playbill from John Strong, president of Local 807, who presumably identified himself? Robert Salerno, Falcon's foreman, testified that either President Kraft or his secretary spoke to him about the call and asked him what he knew about it. Falcone stated that on that day Salerno came to him, asked him about the call, and also asked him if he had joined the Union. Fal- cone denied that he had joined the Union but a discussion of the Union took place and Salerno told him he was a big boy and could use his own judgment but that Playbill did not want a union representing the drivers because, should there be a strike, the programs could not be delivered. Salerno admitted speaking to Falcone about the Union and also admitted, when confronted with his own pretrial statement, that he repeated this conversation to D'Apolito before he had any discussion with 1 General Counsel's Exhibits Nos. 2 and 4. 2 According to the subsequent testimony of Gilman Kraft, president of Playbill, the call was, received by his secretary. The conversation between the two was not disclosed since neither appeared as a witness., - 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kraft and D'Apolito regarding the termination of Ronzino. He did not reveal whether or not he told either Kraft or D'Apolito that Falcone had denied joining the Union. Salerno stated that he did tell them the men had been stopped by organizers and also told them (Kraft and D'Apolito) to ignore the call and let them (the organizers) come to the office. John Ronzino testified that he was hired as a helper on Falcone's truck in May or June of 1960, that he signed an application card with Local 807 on July 27, and that on the following day he was given 2 weeks' notice of termination. He testi- fied that he overheard a conversation between Salerno and Falcone in which Salerno told Falcone that he could join the Union but that he would be liable to being laid off if he did. (The date of this conversation was not fixed.) Ronzino himself had no conversations with any supervisor concerning unions. He was given his termi- nation notice by Salerno and was told that he was being replaced. His replace- ment was Dimari, who had been doing fileroom work and who was being replaced in ,turn by Otto Tummel. Later, on a date fixed as August 9, Falcone was called to D'Apolito's office by Kraft. Kraft, Salerno, and Arthur Hammer, trustee and organizer for Local 807, were in the office and Falcone was introduced to Hammer by Kraft. Falcone was asked by Kraft if he wanted to be represented by Local 807 and he said he did. The conversation then took the form of a general discussion of the advantages and disadvantages of union representation, with Kraft frankly expressing his opposition to representation for the drivers. According to Hammer, Kraft stated he could sell the truck and hire a trucker, to which Hammer replied that he would have to keep the two men and that they would slug it out. Hammer then left. After Hammer left Falcone went back into the office and the discussion was con- tinued between Falcone, Kraft, and Salerno. Falcone told them he wanted the union benefits and security and also that he wanted to keep Ronzino as his helper. Kraft promised to see if he could get Blue Cross coverage for him, told him they were working on a pension plan for nonunion employees and also told him he would look into the union wages and see if he could compensate him. He promised Falcone a $10 raise and the meeting ended with an understanding, at least by Falcone, that Kraft would study all the problems raised during the meeting. A few days later Kraft, in the presence of Salerno, did give Falcone the $10 increase, an increase which Falcone "presumed" was for not joining the Union and which he also "pre- sumed was part of a package deal for accepting Dimari as his helper." At ,this time Kraft told him, with respect to joining the Union, to "think it over and let me know what you decide." This, in sum, is the General Counsel's prima facie case. Respondent's defense was supplied by Kraft, a frank and forthright witness. As to Ronzino, Kraft testified that he had never seen him until the hearing and had never spoken to him. He made the decision to terminate Ronzino in order to find a more suitable place for Tummel, who had been with Playbill for 38 years but who could no longer drive. When Tununel was able to return to work after his injury Kraft made him night watchman at Playbill's new quarters at 636 11th Avenue pending the move from Worster Street. When this move was completed, Tummel was given work in the bindery where he was not actually needed. Kraft testified that he was not wholly satisfied with Dimari's work in the fileroom so he determined to put Dimari, who was physically capable of the work and who had substituted as helper during vacations, on the truck with Falcone, move Tummel to the fileroom, and release Ronzino. He discussed these moves with D'Apolito and Salerno before announcing his decision and stated the decision was made at least 1 week prior to the giving of notice to Ronzino. Kraft had two reasons for hesitation in making the changes: one was the anticipated problem of getting Falcone to accept Dimari and the other was getting Dimari to leave the fileroom to work on the truck. The August 9 meeting at which Kraft, Salerno, Hammer, and Falcone were pres- ent, resulted from a telephone conversation on August 4 between Kraft and Ham- mer in which Hammer said the employees wanted representation and Kraft replied that his information was to the contrary. They agreed to meet at Playbill to discuss the situation. When Falcone was called in by Kraft he was asked if he wanted Local 807 to represent him and he said he did. The conversation, as has been previously stated, then revolved about union benefits, union working conditions, and security at Playbill. Falcone returned to the office and the discussion continued with respect to Blue Cross (Falcone resented the fact he had not been invited to enroll); compensa- tion (Kraft indicated he could do as well for Falcone as the Union); the leasing of trucks (Kraft said this could be done), and topics related to Falcone's employment. It was left to Falcone to decide whether he wanted union representation. PLAYBILL, INCORPORATED 597 A week later Kraft again met with Falcone and it was at this meeting that Fal- cone was given the $10 increase which, according to Kraft, represented compensa- tion for accepting Dimari as his helper. At the end of the meeting Kraft concluded Falcone no longer, desired representation by Local 807. Such, in brief, is the relevant testimony in this case. B. Conclusions 1. Violation of Section 8(a)(1) A grave infirmity of the General Counsel's case lies with his two chief witnesses, Falcone and Ronzino, who were hesitant and uncertain in testifying and who obvi- ously suffered from faulty recollections. The task of staking the fine line which separates the protection of Section 8(c) from exposure to Section 8(a)(1) is not helped by testimony which is vague and ambiguous and on which reliance as to precise language cannot be placed. The precise language used by the employer is necessary to distinguish between a threat and a prediction, between a promise of benefit and a recital of contemplated benefits. I cannot, for that reason, make any finding of a violation with respect to conversations between Falcone and Salerno and I likewise reject Ronzino's testimony that he overheard Salerno tell Falcone that he might be laid off if he joined the Union. I am unwilling to sustain a charge of violation on testimony which I do not trust as to accuracy. Coming to the meeting of August 9 and the conversation between Kraft and Fal- cone after Hammer left, I reach a different conclusion, chiefly on the testimony of Kraft himself. When this conversation took place Falcone had not only signed an application with Local 807 but he had told Kraft that he desired representation by Local 807. When its representative left the premises Kraft proceeded to a discus- sion with Falcone which encompassed all the dissatisfactions which led him to join Local 807. The plain intent was to persuade Falcone to withdraw from or repudiate his designation of Local 807 by offering the inducement of benefits. Specifically, I find unlawful the promise to do as well for Falcone as the Union could do, if not better; the implied promise of a welfare and pension plan which would cover non- union employees; the implied promise and the later grant of a $10 wage increase; and the threat to sell the truck and lease deliveries to an independent trucker, thereby terminating Falcon's job. I do not find the interrogation of Falcone by Kraft in the presence of Hammer in violation of Section 8(a)I(1). Hammer had already notified Kraft that the men wanted representation by the Union and I believe that Kraft was entitled to ask that question both to verify the claim and to determine what his position should be with respect to any union demands. Nor can I find that such interrogation in the presence of the union representative occurred in a context of interference, restraint, and coercion 3 I find that Respondent violated Section 8 (a) (1) of the Act only as set forth above. 2. Section 8(a)(3 There is no direct evidence to support the allegation that Respondent discharged Ronzino because he joined or assisted Local 807. There is no evidence that Respond- ent either knew or suspected that Ronzino had signed an application with Local 807. Since it is a matter of record that Ronzino made his application on July 27 some suspicion may attach to a termination notice received the very next day, but suspicion is not proof, to employ a judicial cliche. In his oral argument counsel for the General Counsel slurred this crucial factor with the bland statement that Respondent had prior knowledge of Ronzino's union activity. If counsel meant knowledge prior to the date notice of termination was given, July 28, I am at a loss to know when and how such prior knowledge was acquired for the circumstances of acquisition are not disclosed in this record. I agree that Respondent had good reason to believe Ronzino'had designated Local 807 when his termination became effective, which was August 12, but I doubt if the General Counsel would contend that knowledge at that time imposed an obligation 8 With respect to the alleged interrogation of Falcone by Salerno on July 27 the testi- mony relating that conversation has already been found insufficiently clear for the making of any finding The record is equally ambiguous and insufficient with respect to the interrogation (even„crediting Falcone) so that it is impossible to determine whether or not it was protected under Blee Flush Express, Inc, 109 NLRB 591 598 .DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon the Respondent to revoke the termination, revise its plans, and continue Ronzino's employment. Perhaps I am asked to draw an inference of company knowledge from the telephone call received by Kraft's secretary from Strong on July 27. But neither Strong nor'the secretary was called to testify to .their conversation and I do not assume that Strong told the secretary that Falcone and Ronzino had joined Local 807. (Divulgence of the identity of employee-members to an employer prior to recognition is not a common practice among union organizers.) If I am asked to infer knowledge or even suspicion from the conversation between Salerno and Falcone later that day I have similar difficulty. Falcone denied he had joined the Union although he admitted that he and Ronzino had been approached by union :organizers. Granted that Salerno repeated this conversation with Falcone to Kraft and D'Apofito, Salerno testified that he only told them to ignore them (the organ- izers ) and let them come to the office. I cannot infer from this that Kraft concluded that either Falcone or Ronzino had joined Local 807. Nor can I make the further and necessary inference that Kraft then decided to terminate Ronzino (but not Falcone) to discourage union membership. So tenuous a thread of circumstance will not sustain such a sequence of inferences. On the other hand, I credit the testimony of Kraft that the decision to terminate Ronzino was made prior to July 27 although not communicated to him until July 28. I also credit his testimony that it was made without knowledge of or reference to union activity and to enable Playbill to put Tummel in Dimari's job by putting Dimari on the truck. A reduction in the payroll, if only by one, is a desideratum common to employers. I shall recommend that the complaint, insofar as it alleges Respondent violated Section 8(a)(3) and (1) by the discharge of Ronzino, be dismissed. Section 8(a)(5) In view of my finding that Respondent's notice of termination to Ronzino on July 28 was lawful, I necessarily find that he had no reasonable expectancy of con- tinued employment and could not be computed in the appropriate unit. No evi- dence was submitted that Dimari, his prospective replacement, had designated Local 807. On July 28, therefore, the unit consisted of either one permanent employee, which the Board would not find appropriate, or two employees, only one of whom had designated Local 807. Since the first communication from Local 807 to Playbill was not mailed until 1 o'clock on the afternoon of July 28 no demand could have been received at a time when the Union had a maiority in an appropriate unit. I shall recommend that the complaint, insofar as it alleges violation of Section 8(a) (5) and (1) of the Act by refusal to bargain with Local 807, be dismissed. IV. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take cer- tain affirmative action which I find will effectuate the purpose of the Act. In compliance with the constant enjoiner of the courts to keep the scope of the order within the limitations of the Board's authority, I shall limit the recommended order to the violations found. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7). 2 Truck Drivers Local Union No. 807 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 the rights guaranteed by Section 7 of the Act, as above found, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Respondent- has not engaged in unfair labor practices within the meaning of -Section 8(a)(3) or (5) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.]