Savin Business Machines Corp.

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Savin Business Machines Corporation and Warehouse Union Local 860, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 20-CA-7270 March 16, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 27, 1972, Administrative Law Judge George H . O'Brien issued the attached Decision in this proceeding . Thereafter, the Respondent filed exceptions, a supporting brief, and a motion to reopen the record. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to deny the Respondent's motion to reopen the record 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent Savin Business Machines Corporation, Brisbane, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 We deny, as without merit, the Respondent's motion to reopen the record on the ground that its nonappearance at the hearing was due to the Charging Party's alleged fraudulent misrepresentations respecting continu- ances of the hearing Having carefully examined the record and the documents submitted to us by the parties to this proceeding, we find no evidence of the fraudulent misrepresentations alleged by the Respondent, and we conclude that the Respondent was afforded every opportunity to which it was legally entitled to participate in this proceeding DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Administrative Law Judge: On September 21, 1972, a hearing was held in the above- entitled matter in San Francisco, California. The complaint issued April 4, 1972, is based on a charge filed February 4, 1972, as amended March 9, 1972, by Warehouse Union Local 860, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, and alleges violations of Section 8(a)(1) and (5) of the National Labor Relations Act, Series 8, as amended, by Savin Business Machines Corporation, herein called Respondent. Upon the entire record in this proceeding, including my observation of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a New York corporation with an office and place of business located in Brisbane, California, where it is engaged in the sale and service of business machines. During the 12 months preceding April 4, 1972, Respondent purchased and received goods and materials valued in excess of $50,000 directly from outside the State of California. During the same 12-month period Respon- dent sold goods and services directly to customers located outside the State of California. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Procedure On April 4, 1972, "Barton Horowitz, Esq., 375 Sylvan Avenue, Englewood Cliff, New Jersey," was served by registered mail with a copy of "Complaint; Notice of Pre- Hearing Conference; and Notice of Hearing with Form NLRB-4668(A) attached." On April 17, 1972, the Regional Director for Region 20 of the National Labor Relations Board received in the mail the following document, bearing the signature of Burton R. Horowitz: Savin Business Machines Corporation, answering the complaint herein, by its attorney, Burton R. Horowitz, respectfully alleges as follows: 1.) Admits each of the allegations set forth in paragraphs Ia, lb, 2a, 2b, 2c, 3, 4, 5. 2.) Denies each of the allegations set forth in paragraphs 6a, 6b, 6c, 6d, 7, 8, 9, 10, 11, 12. Under date of June 17, 1972, the following commumca- tfon was mailed to the Regional Attorney for Region 20 of the National Labor Relations Board: Dear Mr. Letter: With reference to my telephone conversation with you in regards to the trial date scheduled in the above matter we hereby request postponement of the sched- uled July 12, 1972 trial to August 22, 1972. The August 22 date is agreeable to all parties concerned as well as that discussed with your offices. Thanking you for your courtesy in this matter, we remain, 202 NLRB No. 90 SAVIN BUSINESS MACHINES CORPORATION 453 Very truly yours, Burton R. Horowitz Associates (signed) Carl L. Ellman On June 30, 1972, the Regional Director sent the following telegram to all parties: RE SAVIN BUSINESS MACHINE CORP., CASE NO. 20-CA-7270. THE HEARING IN THE ABOVE MATTER IS HEREBY RESCHEDULED FROM JULY 12, 1972 TO AUGUST 22, 1972, SAME TIME, SAME PLACE ; AND THE PRE- HEARING CONFERENCE NOW SCHEDULED FOR JULY 5, 1972 IS HEREBY RESCHEDULED TO AUGUST 16, 1972 AT 10:30 A.M., SAME PLACE, AT THE REQUEST OF RESPONDENT EMPLOYER. No representative of Respondent appeared in the hearing room at 10 a.m. on August 22. The Honorable Allen Sinsheimer, Jr., Administrative Law Judge, after waiting for 20 minutes, suggested that the General Counsel's representative, Mr. Dvorin, call the office of Mr. Horowitz. In compliance with this request, Mr. Dvorin reported to Administrative Law Judge Sinsheimer: I spoke with Mr. Carl L. Ellman, who is an associate of Mr. Burton R. Horowitz with a firm located in Englewood Cliffs, New Jersey, and he is the representa- tive of the Respondent, Savin Business Machines. Mr. Ellman informed me that he had just returned from vacation . . . that a message was received in his office which he had seen, purportedly from a Mr. Suvaco who, as far as we know, is the same Herbert Suvaco who is the business agent for Teamsters Local 860, the Charging Party in the instant matter. Mr. Ellman informed me that the substance of this message was that Mr. Suvaco was requesting a postponement in the instant proceeding. Mr. Ellman informed me that acting pursuant to this request, he was in agreement with it . . . that that is his reason for not appearing at this hearing today, and there is no representative of the Respondent with any authority in the area today. Based on the foregoing statement, Administrative Law Judge Sinsheimer adjourned the hearing indefinitely, with instructions to Mr. Dvorin to communicate further with Respondent's counsel, to agree upon a date for the hearing, and to advise the Administrative Law Judge of the date agreed upon, Administrative Law Judge Sinsheimer's instructions were followed and on August 24, 1972, he issued the following order: On August 22, 1972, hearing in the above matter was opened and adjourned, without taking testimony, to afford Respondent an opportunity to appear and defend. The General Counsel's representative has advised that he has contacted counsel for Respondent and also counsel for the Charging Party and that all counsel are agreeable to resetting the hearing for September 21, 1972. You are accordingly hereby notified that hearing in the above matter will be resumed and conducted ab initio at 10:00 a.m., Thursday, September 21, 1972, in Room 13434, Federal Building, U.S. Court House, 450 Golden Gate Avenue, San Francisco, California 94102. On the date, and at the time and place described in Administrative Law Judge Sinsheimer's order, I called the hearing to order. There was no appearance for the Respondent. The General Counsel's representative tele- phoned the office of Respondent's counsel and was answered by a recorded voice announcing that the office was closed for the day. I adjourned the hearing until 11 a.m. with instructions to Mr. Dvorin to attempt to communicate with some representative of Respondent. At 11 a.m. on Thursday, September 21, Mr. Dvorin reported: I attempted to contact Respondent again in his New Jersey office and again I was only successful in being answered at its office by an automatic telephone answering device. I left a message with my name and number to call. I informed them that it would be taking place at 11:00 o'clock Pacific Daylight Saving Time. I also attempted to contact representatives of the company here in the Bay Area location. I was again informed that Mr. Schuster was in Santa Rosa and could not be reached, however, he was in the company of a salesman who had an answering service and a message was to be left with this answering service, should he call in, to contact me. Mr. Marcoux's whereabouts were not known except that he was supposedly on his way to Marin County and he was not going to be at any number which they were aware of. I also spoke with Mrs. K. T. Larson at the company and she informed me that she was not aware that there was going to be a proceeding today, since she was contacted this past Monday by Mr. Horowitz' secretary, who informed her that the Union had called Mr. Horowitz and requested a postponement and that he was in agreement with it, and therefore his secretary was informing Mrs. Larson that there would be no trial on this date, September 21st. I have taken the opportunity also of talking with Mr. Suvaco . . . . and he informs me that there has been no such call made . . . . nor has any contact been made in this matter with the General Counsel. Respondent's answer admits that James J. Schuster is Respondent's branch manager, that Rod Marcoux is Respondent's western regional manager, that Katherine Larson is Respondent's administrator, and that all are agents of Respondent, acting on its behalf within the meaning of Section 2(13) of the Act, and are supervisors within the meaning of Section 2(11) of the Act. I thereupon directed the General Counsel to present the formal papers and to call his witnesses. When I closed the hearing at 12 noon, there had been no word from any representative of Respondent. B. The Issues The issues posed by the complaint and answer are (1) appropriate unit for bargaining (2) majority representation (3) demand for recognition (4) refusal of recognition (5) whether Larson and Marcoux made unlawful statements and (6) whether Respondent's conduct "made the holding of a fair election unlikely". 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Sequence of Events John Michael Rossi was hired as a warehouseman September 21, 1970. Between July 1971 and January 1972 Rossi and Clyde Pelton were the only warehousemen employed by Respondent at its Brisbane facility. Both performed identical functions. Neither possessed any of the statutory indicia of supervisory authority. Both took their orders from Mrs. K. T. Larson, Respondent's resident admimstrator. Their duties consisted solely of loading and unloading trucks and preparing documents related to the shipping, receiving, and storage operations. No truckdriver was employed at the Brisbane facility. Shipments were made by contract carriers designated by Larson. Early in January 1972, Rossi and Pelton called at the office of the Umon and signed cards which were both an application for membership and an authorization to the Union to represent the signer in collective bargaining with his employer. On January 11, 1972, Umon Representatives Herbert Suvaco and Patterson called at Respondent's Brisbane office, where they were received by Branch Manager James J. Schuster. Suvaco announced that he represented the warehousemen and asked Schuster to set a date for negotiating a contract. Schuster, after examining the cards which Rossi and Pelton had signed, stated that he did not have that authority, and that the umon representatives would have to talk to Respondent Western Regional Manager Rod Marcoux. Following several unsuccessful attempts to communicate with Marcoux, Suvaco filed, on January 18, a petition for certification of representatives which was docketed as Case 20-RC-10439. When Larson received a copy of this petition in the mail she entered the warehouse and, waving the petition, asked Rossi and Pelton who they had been seeing at the Umon and why. Rossi replied that they had seen a union representative because they needed more money for what they were doing, and this seemed the only way to get it. Larson remonstrated that they should have come to her first, and added, "You can hurt my position, you can hurt this whole company . . . now you are putting me on the spot, now you are involving me, and I don't like you doing this." A few days later Rossi was called to Marcoux' office for a private discussion. Marcoux asked why Rossi had joined the Union, and Rossi answered that he "had asked for more pay and didn't get it." Marcoux showed Rossi a copy of a letter dated December 6, 1971, addressed to Respon- dent's head office in New York State, requesting authority to raise Rossi's pay from $125 to $150 per week. Marcoux told Rossi that when he showed the Union's petition to the New York office he was sure he could obtain authority to get Rossi at least $25 and possibly $50 more per week. Marcoux then asked Rossi whether, if he could obtain such a raise, Rossi would not join the Union but would dust "pull back" and "forget about the whole mess." Rossi then asked what Respondent was prepared to do for Pelton. Marcoux replied by asking Rossi what he thought Pelton should be earning. When Rossi replied, "He should be making the same as me," Marcoux, after a pause, concluded the interview with the statement: Well, I think you guys better join the Union then ... . I guess I can't talk you out of this . . . maybe when you go out to the voting booth we will have a little brass band out there playing for you . . . thank you. As of the date of the foregoing conversation, Rossi and Pelton were the only warehousemen employed. Shortly thereafter Respondent hired, as warehousemen, James Wilson and Ken Larson, the son of K. T. Larson. Wilson worked for less than 2 weeks. Ken Larson was discharged by Schuster in March 1972 and was replaced by Tom Shissler. As of the date of this hearing, September 21, 1972, the only warehousemen employed by Respondent were Rossi, Pelton, and Shissler. None possessed any of the statutory indicia of supervisory authority. All were directly supervised by K. T. Larson. On the day when Ken Larson started to work in the warehouse, he told Rossi: You know, I am working here now . . . . I don't want you to tell my mother this but the only reason I am hired, she told me, is so I would vote "no" for the Union in the union election. Ken Larson also told Pelton that his mother had exacted a promise to vote "no" in the umon election as a precondition to his hire. About February 3, during the brief period when four warehousemen were employed, Rossi was called to Larson's office, and: I walked in and her and Jim Schuster were sitting there. They closed the door behind me and we sat down and they asked me, "Why are you joining the Union?" I told them because it is something that I want. It means more money, it means maybe I can start buying a little extra things that I couldn't before. They said, "Well, you know we've been trying to get you money like Rod told you the other day. We have put in this letter for you to get more money. We are trying for you, John, and we are a team, we all work together. We all work for Savin Business Machines, Savin Business Machines pays your check. This company can't get along without everybody being a team and all working on the same side, and I wish you would reconsider your decision about the Umon." I told them, "No, it is too late for that." Then they said, "Well, how come you are not signing your name and title as John Rossi, Warehouse Manager?" I said, "Because I am not." She said, "You mean you are not signing because the Union told you not to sign it, they are forcing you not to sign it." I said, "No, that is not correct. I don't sign because it is not true, you know I am not a warehouse supervi- sor." He said, "You know you have been a warehouse supervisor for a long time now." I said, "Well I was never told, and I am just not. I don't do anything different than any of the other guys. s : s s s I said, "Now can I please leave? I am on my lunch." He said, "No, you cannot." And we went through SAVIN BUSINESS MACHINES CORPORATION the same routine for about 45 minutes. I asked to leave about four or five times, he told me to sit back down, he pays my paycheck, Savin pays my paycheck, they want me to sit there sit there. Eventually he just kind of gave up, and I asked him, "I'm going, that's it?" He said, "Fine, go, get out." So I walked out. I didn't get very far out the door and K.T. came after me with a little slip of paper and she said, "I want you to come back in my office." So, I went back in and she closed the door. She said, "Jim and I want you to sign this", and she put it in my hand. ... So, I read this thing and it was a statement saying that the Union was forcing me not to sign my name as Warehouse Manager on documents . . . . I told her I couldn't sign that. She said, "Well, why not?" I said, "Because it is not true." She said, "Wait right here." I sat there, she went out and got Jim Schuster. ... Jim started in with saying, "Why won't you sign this?", and I said, "Because it is not true." He said, "You know damn well that you sat right here and you just told K.T. Larson and myself that the Union was forcing you not to sign your documents, `John Rossi, Warehouse Supervisor.' " I told them I didn't say that ... "and I am not going to sign anything that is not true" ... and I asked to leave again, and he told me to sit down again. I sat down again and we went through the same routine about another three times. On February 4, 1972, the Union filed the charge giving rise to the instant proceeding. D. Concluding Findings 1. All warehousemen employed by Respondent at its Brisbane, California, place of business, excluding all other employees, inventor control clerks, office clerical employ- ees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.' 2. At the present time, and at all times since early January 1972 (except for the brief period when James Wilson was employed) the Union has represented an uncoerced majority of the employees in the above-de- scribed unit. 3. On January 11, 1972, when the Union represented all of the employees in the above-described unit, the Union presented proof of representation to the Respondent and demanded recognition and bargaining. 4. From and after January 11, 1972, Respondent has refused to recognize the Union as the exclusive collective- bargaining representative of all of the employees in the above-described unit, and has refused to bargain collec- tively with the Union. 5. The interrogations of Rossi by Larson and Marcoux had no legitimate purpose and were not accompanied by any assurance against reprisal. This interrogation re- strained and coerced an employee in the exercise of rights guaranteed by Section 7 of the Act. , 6. By offering an increase in wages conditioned upon 1 AMFAC, Inc, 173 NLRB 850 No truckdriver is employed at Respondent's Brisbane facility 2 Unobjected-to hearsay is admissible and of probative value. N LR B 455 abandonment of the Union, Respondent interfered with rights guaranteed to employees by Section 7 of the Act. 7. By conditioning the employment of Ken Larson on his promise to vote against the Union in a then-contem- plated Board election, Respondent interfered with, re- strained, and coerced an employee in the exercise of rights guaranteed by Section 7 of the Act.2 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth above, occurring in connection with the operations of Respondent described above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It has been found that Respondent has engaged in certain unfair labor practices. It will therefore be recom- mended that it cease and desist therefrom and take certain affirmative action, as set forth in the recommended Order below, designed to effectuate the policies of the Act. The Supreme Court of the United States, in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, states at p. 614: If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. I have found that Respondent, confronted with a demand for bargaining, and with the knowledge that the Union represented all of its employees in an appropriate unit, sought to destroy the Union's majority by promises of benefit, by coercive interrogation, by an attempt to force an employee to regard himself as a supervisor, by exacting from another employee a promise to vote against the Union, and by hiring a superfluous employee (James Wilson). In these circumstances a bargaining order is necessary and proper. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and engaged in commerce and in a business affecting 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 in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By refusing, upon request, to bargain in good faith with the Union as the representative of its employees in the v International Union of Operating Engineers, Local Union No 12, 413 F 2d 705, 707 (1969). 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit found above to be appropriate, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 3 ORDER Respondent, Savin Business Machines Corporation, its officers, agents, successors and assigns, shall: 1. Cease and desist from. (a) Coercively interrogating employees concerning their union membership, activities, or sympathies. (b) Promising benefits to employees to induce them to refrain from union or other lawful concerted activities. (c) Requiring employees to refrain from union activities as a condition of employment. (d) Refusing to bargain with the Union as the exclusive representative of Respondent's warehouse employees in Brisbane, California. (e) In any like or related manner interfering with, restraining, or coercing employees in the right to self- organization, to form labor organizations, to join or assist the Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Warehouse Union Local 860, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the unit herein found appropriate and embody in a signed agreement any understanding reached. The appropriate unit is, All warehousemen employed by Savin Business Machines Corporation at its Brisbane, California, place of business, excluding all other employees, inventory control clerks, office clerical employees, guards and supervisors as defined in the National Labor Relations Act. (b) Post in its warehouse in Brisbane, California, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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. 3 In the event no exceptions are filed as provided by Sec 102 46 of the (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.5 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 4 In the event that the Board's 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 " 5 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 20, in wnting, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by questioning employ- ees about their union activities, by promising benefits to induce employees to refrain from union activities, and by refusing to bargain with a union: WE WILL NOT unlawfully interrogate our employees or promise benefits to them for the purpose of influencing their union activities or sympathies. WE WILL NOT refuse to bargain collectively with Warehouse Union Local 860, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all the employees in the appropriate bargaining unit. The appropriate unit is: All warehousemen employed by Savin Business Machines Corporation at its Brisbane, California, place of business, excluding all other employees, inventory control clerks, office clerical employ- ees, guards and supervisors, as defined by the National Labor Relations Act. WE WILL bargain upon request with the above- named Union as the exclusive representative of all the employees in the unit described above with respect to wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL NOT in any like or related manner interfere with the union activities of our employees. SAVIN BUSINESS MACHINES CORPORATION (Employer) SAVIN BUSINESS MACHINES CORPORATION 457 Dated By from the date of posting and must not be altered, defaced, (Representative) (Title) or covered by any other material. Any questions concern- mg this notice or compliance with its provisions may be This is an official notice and must not be defaced by directed to the Board's Office, 13018 Federal Building, Box anyone. 36047, 450 Golden Gate Avenue, San Francisco , California This notice must remain posted for 60 consecutive days 94102, Telephone 415-556-0335.