Dilene Answering Service, Inc.

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dilene Answering Service, Inc. and United Telephone Answering & Communications Service Union, Local 780, AFL-CIO. Case 2-CA-13573 January 19, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On September 30, 1975, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Dilene Answering Ser- vice, Inc., Spring Valley, New York, its officers, agents,, successors, and assigns, shall take the action set forth in the said recommended Order. ' Member Penello concurs in the finding of a violation herein on the basis that the substantial contributing factor which led to Respondent's discharge of Nichols was her, union activities. Erie Sand Steamship Company, 189 NLRB 63 (1971). DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: United Tele- phone Answering and Communications Service Union, Local Union 780, AFL-CIO, herein called the Union or Chargmg Party, filed a charge on January 9, 1975,' alleging various violations of the Act and that Florence Nickels had been discharged by Dilene Answering Service, Inc., herein called Respondent or the Company, in violation of the Act on or about August 16. The Regional Director of Region 2 issued a complaint on April 9, 1975, alleging that Respondent had discharged i Unless otherwise stated all events herein occurred in 1974 Florence Nickels on or about July 12,- and failed and re- fused to reinstate her until on or about December 9, be- cause,_ of her union and concerted activities. Respondent's timely-answer denied that it had discharged Mrs. Nickels or violated the Act. Insofar as the jurisdictional allegations were concerned, Respondent admitted that the Board had asserted jurisdiction over,it in the Board's decision in Di- lene Answering Service, Inc., 216 NLRB No. 108 (1975). The answer did not deny any other allegations of the com- plaint, such as the status of the Union or the status of Kenneth H. Iscol as the president of Respondent. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing held in New York, New York, on August 6, 1975. The parties requested time within which to file briefs and briefs have been received from Respondent and the General Counsel. The principal issues in this case are what was said in a telephone conversation which took place on July 10 or 11, and whether Mrs. Nickels was discharged at least in part because of her union position and activities at that time and Respondent's animus toward the Union. I have con- cluded that where the testimony of Mrs. Nickels and of Mr. Iscol differs materially that I should credit the testimo- ny of Mrs. Nickels. Mr. Iscol appeared to try to picture himself in a most-favorable light and to try to place Mrs. Nickels in an unfavorable light by his testimony. I believe from an overall view of the testimony that Mr. Iscol tended to exaggerate where he thought such exaggeration would help his cause and I have discredited him where there are conflicts. I have concluded that the discharge of Mrs. Nickels took place on or about July 11, and that part of the reason for her discharge was Mr. Iscol's animus toward the Union and towards Mrs. Nickels' assistance to the Union by hav- ing a union meeting at her home. Based on those conclu- sions, I have further concluded that Respondent violated Section 8(a)(1) and (3) of the Act by its discharge and will recommend appropriate remedial action. On the entire record in this case, including my evalua- tion of the reliability of the witnesses, based on the evi- dence received, my observation of the demeanor of the witnesses, and the nature and manner in which they made responses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a New York corporation with its principal office and place of business located in Spring Valley, New York, maintaining other places of business in nearby New York cities and engaging in the operation of telephone an- swering services and radio paging and beeper devices. Respondent's businesses in it various locations are affiliat- ed business with common officers, ownership, directors, and operators and constitute a single integrated enterprise which, during the past year, derived gross revenues in ex- cess of $500,000. During the same period of time, Respon- dent purchased goods and materials which were delivered 222 NLRB No. 76 DILENE ANSWERING SERVICE directly to it from States outside the State of New York and were valued in excess of $50,000. The National Labor Relations Board determined in an advisory opinion dated February 21, 1975 (Case AO-163), that it would assert jurisdiction over the operations of Re- spondent with respect to labor disputes. I therefore conclude and find that Respondent is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Undisputed Facts Kenneth Iscol, the president of Respondent and its allied companies, has owned the Respondent operations for the last 6 years. At the present time he has some 24 or 25 employees operating 24 hours around the clock, 7 days a week, in the various locations in New York. One of the conditions of employment was that employees sign a con- tract agreeing that they would not engage in a similar occu- pation in that general territory for a period of 2 years after they left Respondent's employ. Respondent had a contract with the Union which ex- pired on June 30, 1974, and was not renewed. Respondent and the -Union engaged in negotiations thereafter and at the time of the hearing apparently had not agreed on a new contract. Respondent filed a representation petition with the New York State Labor Board prior to the expiration of the contract and the Union filed various charges with the New York State Labor Board, including a charge concern- ing the discharge of Mrs. Nickels. The parties stipulated that relations between Mr. Iscol and Union Representative Fischer were hostile. Although the union contract called for bulletin board space, for union notices, Respondent stated that it did not provide such space and the Union had not filed any griev- ance concerning lack of a .bulletin- board during the period of the contract. One of the employees testified that notices concerning union meetings were placed on Respondent's company bulletin board whenever a union meeting was to take place. Mr. Iscol stated that he did- not see such notices and would have taken them down if he had. Florence Nickels started to work for Respondent in Feb- ruary 1970. In April 1974, she became disabled due to an accident and was still in that condition when her only son died on June 29. According to her testimony she was re- leased by her doctor as being able to go back to work on August 19 and on that day returned to Respondent's of- fices and spoke with Iscol concerning returning to work. Mrs. Nickels was a union shop steward at Respondent for a period of 2-1/2 years at the time of the hearing in this matter, an4 had been a shop steward during the time of her disablement. She testified that the Union regularly held its monthly meetings at a Holiday Inn. On either Wednesday, July 10, or Thursday, July 11, a union meeting was held at Mrs. Nickels' home since the Union had been unable to rent a room at the local Holiday Inn. This meeting was 463 attended by some 17 of Respondent's employees. Through June 1974, Lucille Kubisky was employed by Respondent. In the yellow pages (classified telephone di- rectory) for the area, which was dated July 1974, there was a listing for a new telephone answering service in one of the nearby towns. Iscol testified he had heard that Kubisky and Nickels were starting a -competing telephone answer- ing service and around July 9 or 10 he called the listed number and recognized Kubisky's voice. In June, Iscol and Respondent's manager, Joyce Latas- sa, attended a convention of telephone answering execu- tives in West Virginia. Iscol said this was some 2 or 3 weeks prior to July 10 and that Mrs. Nickels called Joyce Latassa several times attempting to get him and finally reached him at one of the convention meetings. He testified she asked him for a loan and he said he would think about it and contact her later. He acknowledged that he did not speak to her about a loan until July 10 or 11 when he called her, although he had been back from the convention some 2 weeks by that time. There was testimony that Mrs. Latassa's telephone number at the convention had been posted so that she could be reached,by employees if it was necessary. B. The July, August, and December Conversations Mrs. Nickels testified that either on the day of the union meeting at her house or the following day Iscol called her at her home, stating that he was very upset and would expect Lucille Kubisky to cut his throat but not her, and that she had no right to have a union meeting in her home. She replied that she was the shop steward and could have a meeting at her home when she wished. He said she should be on the Union's payroll, and to consider herself em- ployed by the Union from then on. Mrs. Nickels testified that the reference to Kubisky may have been a belief on Iscol's part that she was going to be working with Kubisky in setting up this competing service. She said she reached this conclusion after receiving a letter from Iscol's attorney dated July 18, addressed to both her and Kubisky, stating Respondent understood that they were starting a competing telephone service and reminding them of the 2-year term within which they could not do so. The letter said that legal proceedings would follow if they attempted to start such a business. Respondent's brief is mistaken when it states that Nick- els conceded that at the time of the July telephone conver- sation she understood that Iscol was referring to her being in business with Kubisky. Iscol testified that, after hearing about the competing telephone service and calking Kubisky, the next thing he thought of was to call Florence Nickels and find out the story. He said he told her he could understand Lucille Ku- bisky cutting his throat but could not see how she could do so. He testified that she got abusive, told him to go to hell, and when he mentioned that he could not give her a loan, she told him to keep his money, said she quit, and hung up. Mrs. Nickels denied becoming abusive or raising her voice or telling Iscol to go to hell and further denied saying that she quit. Originally Iscol's testimony conveyed the impression 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that during this conversation, Mrs. Nickels again asked about the loan, having first requested it over the phone while he was at the convention. His later testimony indi- cated that he did not recall whether she had asked about it again, but he told her that he could not give her such a loan. Iscol was not specifically asked and did not deny Mrs. Nickels' testimony concerning Iscol's statements about her holding a union meeting in her home or that she should from thereon be paid by the Union. After she was released by the doctor on August 19, she went to the company office to talk to Iscol, who escorted her out of the office and into the hallway and conversed with her for a moment. According to her testimony he told her she was guilty until proven innocent of working for someone else and that concluded the conversation. She said that two other girls Evelyn Ronney and Joyce Reyn- olds were in the hallway at the time and overheard the conversation. Neither of these two ladies was produced by either of the parties at the hearing. Iscol stated that when she came to the office on August 19 he had her step out into the hall and told her he was unhappy about the circumstances of the telephone conver- sation, that he felt that she had quit, and that he was con- ducting an investigation to determine whether or not she had in fact solicited the Company's customers for another telephone answering service. He denied saying anything about her being guilty until proven innocent. In his testi- mony he made no mention of anyone else being present during this conversation. On December 9, Company Manager Latassa called Mrs. Nickels and asked if she would talk to Mr. Iscol at her home. She agreed to do so and Iscol came to her home. He brought with him an agreement entitled "General Release" which provided that she released Respondent from any damages in any suit or arbitration against Respondent. It was stipulated that the Union had started an arbitration proceeding against Respondent on the basis of her dis- charge and that Respondent had resisted the arbitration on the basis that the contract had expired on June 30 and accordingly the impartial arbitrator had no jurisdiction. The impartial arbitrator agreed with Respondent's position and no arbitration proceeding was held in the matter. In the interim an arbitration proceeding against Lucille Kubisky for starting a competitive answering service had proceeded and Respondent had received an award and was going into the New York courts to enforce the award against Kubisky. Iscol testified that they received the award against Kubi- sky and that there had been no proof in his investigation that Florence Nickels had worked for Kubisky or had so- licited customers for Kubisky. He said that when he spoke to Nickels on the telephone in July she had been upset and aggravated and that he did not want to hold a grudge and since he had an opening he asked her to come back to work. He did testify that a condition of her coming back to work was her signing the "General Release." At the time of the hearing Mrs. Nickels had been em- ployed at Respondent since December 10. C. Analysis and Conclusions The crux of this case is what was said in the telephone conversation between Mrs. Nickels and Mr. Iscol. Mrs. Nickels' testimony is specific concerning Iscol's statements to her about the union and the union meeting in her home and that she should consider herself employed by the union from then on. She specifically denied becoming abusive or telling Iscol to go to hell or that she quit. Her testimony was aimed at the facts. In contrast Iscol's testimony rambled and seemed to be an effort to depict himself in an excessively favorable light. He stated that during the conversation Mrs. Nickels asked him about the loan and then during cross-examination said that he did not remember whether she asked him but that he dust told her he could not give her a loan. Although he said he knew nothing about a union meeting, he did not deny Mrs. Nickels' testimony that he had said she had no right to have a union meeting in her home, and that she should be on the Union's payroll or consider herself em- ployed by the Union from then on. On balance Mrs. Nickels' testimony appears more credi- ble and I credit her version of the conversation and her denials of Iscol's statements. In their conversation, two things were apparently trou- bling Iscol: (1) that a competing operation was being estab- lished in which Mrs. Nickels might be involved, and (2) that she had a union meeting in her home at a time when he was involved in a contentious relationship with Union Representative Fischer. Mrs. Nickels had worked for Iscol for a number of years and these two matters very evidently angered him. I conclude and find that Iscol made the remarks about the Union and her employment to which Mrs. Nickels tes- tified. Since one of the motivating factors in his statements was her involvement with and support of the Union, then such was a part of her separation from Respondent and for the later refusal to return her to work. Accordingly, I find and conclude that by such action Respondent violated Sec- tion 8(a)(3) and (1) of the Act. Respondent's brief seeks to blame Mrs. Nickels for not providing Iscol with evidence of her innocence and nonin- volvement with Kubisky as though she were entrapping Iscol. This line of thinking conforms to Iscol's "guilty until proven innocent" statement, which I find he made, but is not a rationalization followed by the Board. III. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in section III, and therein found to constitute unfair labor practices in viola- tion of Section 8(a)(1) and (3) of the Act, occurring in con- nection with Respondent's business operations as set forth above in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. DILENE ANSWERING SERVICE 465 IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act as follows: Having found that Respondent discharged Florence Nickels on July 11, 1974, and refused to reinstate her on August 19, 1974, and did not thereafter offer her full rein- statement, but did reemploy her on December 10, 1974, I recommend that Respondent offer her immediate and full reinstatement to her former position, and that Respondent make her whole for any loss of pay she may have suffered by reason of Respondent's discriminatory termination of her, by payment'to her of a sum equal to that which she would have normally received as wages from July 11, 1974, the date of her termination until Respondent offers her full reinstatement, less any net earnings for the interim. Back- pay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I further recommend that Respondent make available to the Board, upon request, payroll and other records in order to facili- tate checking the amounts of backpay due her and any other rights she might be entitled to receive. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent violated Section 8(a)(1) and (3) of the Act by its discriminatory termination of Florence Nickels because she engaged in union and concerted activities with other employees for the purpose of mutual aid and protec- tion. Upon the basis of the foregoing findings of fact and con- clusions of law and the entire record in this case, I issue the following recommended: ORDER2 Dilene Answering Service, Inc., Spring Valley, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminatorily terminating employees because they engaged in union and concerted activities with other employees for their mutual aid and protection. (b) In any other manner interfering with , restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make Florence Nickels whole for the loss of pay she suffered by reason of Respondent's discrimination against her in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (b) Post at its Spring Valley and other New York offices copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms furnished by the Regional Director for Region 2, after being duly signed by an authorized rep- resentative of Respondent, shall be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 2 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 herem 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. 3 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fire employees for engaging in union and concerted activities with other employees for their mutual aid and protection. WE WILL offer Florence Nickels immediate and full reinstatement to her former job and reimburse her for the pay she lost as a result of our action. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed under Section 7 of the act. DILENE ANSWERING SERVICE, INC.