Nassau Glass Corp.

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nassau Glass Corporation and Glass Warehouse Workers and Paint Handlers Union, Local 206, In- ternational Brotherhood of Painters and Allied Trades, AFL-CIO. Cases 29-CA-4227-1 and 29-CA-4227-2 February 6, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On November 5, 1975, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions 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, Nassau Glass Corpora- tion, Hempstead, New York, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: Upon charges filed by Glass Warehouse Workers and Paint Han- dlers Union, Local 206, International Brotherhood of Painters and Allied Trades, AFL-CIO, referred to herein as the Union, the Regional Director issued a complaint and notice of hearing on May 6, 1975. The complaint al- leged that Nassau Glass Corporation, referred to herein as Respondent, violated Section 8(a)(1) and (5) of the Nation- al Labor Relations Act, as amended (herein the Act), by initiating, sponsoring, and preparing a petition to remove the Union as the collective-bargaining representative of Respondent's employees. Respondent filed a timely answer denying the commission of any unfair labor practices. This case was heard before me at Brooklyn, New York, on June 25, 1975. All parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evi- dence. Following the hearing, only the Respondent filed a brief, which I have fully considered in reaching my deci- sion in this case. Upon the entire record in this case, and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION Nassau Glass Corporation, a New York corporation, with its principal office and place of business at Hemp- stead, New York, is engaged in wholesale and retail glass installation and related services. During the 12 months pre- ceding issuance of the complaint, Respondent, in the course and conduct of its business, purchased and caused to be delivered directly to its Hempstead location, from points outside the State, goods and materials valued in ex- cess of $50,000. 1 find from these admitted facts that Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION Respondent admitted, and I find, that Glass Warehouse Workers and Paint Handlers Union, Local 206, Interna- tional Brotherhood of Painters and Allied Trades, AFL- CIO, is, and has been at all times material to this case, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 1 The Respondent has excepted to the Administrative Law Judge's find- ing that Shop Foreman Coulon, "on his own initiative," drafted a petition to decertify the Union Respondent contends that Coulon drafted the petition at the employees' request. The Administrative Law Judge specifically dis- credited Coulon's testimony in this regard. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950) enfd 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his find- ings. Moreover, even assuming, arguendo, that Coulon drafted the petition at the employees' request, a finding we do not make, we would nevertheless A. The Facts Respondent admits that on or about December 15, 1972, it entered into a collective-bargaining agreement in which it recognized the Union as the exclusive bargaining repre- find that his conduct in preparing the petition, soliciting employee signa- tures thereon, and filing the petition violated Sec. 8(a)(1) and (5) of the Act. Placke-Toyota, Inc., 215 NLRB No. 66 (1974). 222 NLRB No. 126 NASSAU GLASS CORPORATION sentative of Respondent's approximately 15 shop employ- ees, and that the agreement's expiration date was March 31, 1975.1 I also find from undisputed evidence that by letter of November 26, 1974, the Union's president, Ben Weiss, de- clared the Union's readiness to begin negotiations for a new contract "to become effective April 1, 1975." I also find from Weiss' undisputed testimony that in early De- cember 1974 Respondent's president, Norman Gold, invit- ed the Union's president to discuss a new contract; that the two met briefly in Norman Gold's office on or about De- cember 12; and that in this discussion Weiss warned that the Union expected Respondent "to give money because the cost of living is high." No further bargaining talks were held between Respondent and the Union. It is also undisputed, and I find, that on January 9, 1975, Norman Gold's son Barry, who is also employed by Re- spondent in the bargaining unit, drafted and filed with the Board's Region 29 a petition, to decertify the Union, in Case 29-RD-187. Barry Gold's petition, bearing his signa- ture and those of unit employees Joe Fontana and Phil Linder, read as follows: WE THE UNOIN (SIC) EMPLOYIES (SIC) OF NASSAU GLASS CORP. NO LONGER WISH TO BE REPRESENTED BY LOCAL 206 OR ANY OTHER UNION. Thirteen days later, the Regional Director granted Barry Gold's request to withdraw his decertification Petition. On the morning of January 24, 1975, in Respondent's stockroom, its shop foreman, Donald F. Coulon, on his own initiative drafted a petition to decertify the Union.2 At The unit as more fully described in the complaint was: All cutters, feeders, selectors, sandblasters, designers, carvers, acid etchers, chippers, plate and window glass handlers, cleaners, glass in- stallers, checkers, glass warehouse workers, packers, chauffeurs, order pickers, glass cleaners, glass fabrication, mirror painters, glass washers, paint handlers, silk screen workers, glass sign workers, pattern-taking maintenance men, embossing, bevelers, mitre cutters, silverers, polish- ers, grinders, pattern cutting and cutters and all other inside and out- side employees who handle glass and allied workers, including drivers, helpers in delivery operations to and from all sites and, in addition including also hoisting, loading and unloading of boxed and loose glass and all materials and incidental and related operations, employed by the Respondent at its Hempstead plant, excluding office clerical em- ployees, guards and all supervisors as defined in Section 2(11) of the Act. 2 My findings regarding Coulon's participation in the drafting and signing of the January 24 petition are based on admissions in his affidavit of March 24, 1975, given before a member of the Regional staff. At the hearing, Coulon contradicted his affidavit with respect to the extent of his participa- tion. However, he conceded that the events regarding the January 24 peti- tion were fresher in his mind on March 24, than on the day of the hearing; that he "happen[s] to have a bad memory to a lot of things", and that the paragraphs of his affidavit describing his participation in the drafting and signing of the January 24 petition are true In view of Coulon's concessions regarding his affidavit, and my impression that at the hearing Coulon, who has been employed by Respondent for about 21 years, was anxious' to assist Respondent's defense, I have rejected his testimony to the extent it was inconsistent with the admissions of his affidavit. Nor have I credited employees Barry Gold, Phillip Linder, and Joseph Fontana, to the extent that their testimony is inconsistent with Coulon's affidavit. All three resorted to evasive responses to General Counsel's ques- tions regarding the drafting of the January 24 petition. All three also exhib- ited a contemptuous attitude toward the proceeding, evidenced by flip re- sponses, gratuitous remarks showing hostility toward the Board's processes, and a general sullenness during examination The reliability of their testimony is further impaired by other infirmities 793 that point, Coulon knew that Barry Gold's petition had been withdrawn. Also, Coulon had heard employees Lin- der, Joe Fontana, and Carlo Russo complain about paying dues to the Union and not receiving "anything out of it." Coulon admitted that he wrote his petition knowing "that the contract was coming up for renewal ..." and "that this was a good time for the men to get rid of the Union if they wanted to get rid of it." Coulon's petition read as follows: WE, THE UNDERSIGNED EMPLOYEES OF NASSAU GLASS CORP. OF 389 PENINSULA BLVD. HEMPSTEAD, DO NOT DESIRE TO BE REPRESENTED BY LOCAL 206 GLASS WAREHOUSE WORKERS AND PAINT HANDLERS OR ANY OTHER UNION Foreman Coulon signed his name to the petition and then called the shop employees to the stockroom, one at a time, asked each to read the petition and sign it if the employee "wanted to sign it." Coulon assured each that if the em- ployee did not want to sign the petitition "that's OK too." Only employee Russo refused to sign Coulon's petition. On the afternoon of the same day, employee Linder filed Coulon's petition at the Board's Brooklyn Regional Office, along with his own formal decertification petition in Case 29-RD-189. Barry Gold and Foreman Coulon accompa- nied Linder to the Board's Regional Office. On February 24, 1975, the Regional Director issued a Decision and Direction of Election in Case 29-RD-189. However, no election has been held pending the disposi- tion of the complaint in the instant case. Finally, on May 7, 1975, in Case 29-RD-196, employee Linder filed his sec- ond petition to decertify the Union. On May 29, the Regional Director dismissed Linder's second petition because of the pending of the complaint in the instant case. B. Analysis and Conclusions It is well settled that an employer violates- Section 8(a)(1) of the Act when, through a supervisor, it prepares, spon- sors, and presents to its employees for their signatures a petition to decertify the union which represents those em- ployees for purposes of collective bargaining. E.g., Subur- ban Homes Corp., 173 NLRB 497 (1968). And that is exact- ly what happened in the instant case. Respondent, through Shop Foreman Coulon, drafted, sponsored, and presented to its shop employees for their signatures a petition to de- certify the Union which represented them for purposes of collective bargaining with Respondent. I therefore find that by Coulon's conduct, in this regard, Respondent vio- lated Section 8(a)(1) of the Act. Suburban Homes Corp., supra. Linder's testimony is laced with the excuse of bad memory regarding the genesis of the January 24 petition. Barry Gold's positive testimony regard- mg that same topic is cast in serious doubt by his admission at the hearing that the portion of his prehearing affidavit, in which he declared that he did not know how the petition got started, was true. Finally, Fontana's testimo- ny contains serious contradictions Thus, for example, after testifying that Coulon did not approach him about signing the petition , Fontana, seven pages later, admitted that Coulon asked him to read it and sign it if he wanted to. At another point, Fontana admitted, then denied , and again admitted seeing Coulon solicit signatures In short, Fontana, Barry Gold, and Phillip Linder impressed me as unreliable witnesses. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I also find from the timing of the unlawful petition with- in a few - weeks after Respondent learned of the Union's -intent to seek a wage increase in the forthcoming contract negotiations, and from Coulon's expressed design to oust the Union as the employees' bargaining representative, that the January 24 petition, which remains unrepudiated by Respondent, also violated Section 8(a)(5) of the Act. Sub- urban Homes Corp., supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's op- erations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in, and is engag- ing in, unfair labor practices, I shall recommend that Re- spondent cease and desist from engaging in or continuing such or similar unlawful conduct and that Respondent take certain affirmative action, including the posting of an ap- propriate notice to its employees. Having found that Respondent interfered with, re- strained, and coerced its employees in violation of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and notify its employees accordingly. Having found that Respondent has unlawfully refused to bargain with the Union, the designated representative of its employees in an appropriate unit, I shall recommend that Respondent bargain with the Union and, if agreement is reached, embody such agreement in a signed contract. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Glass Warehouse Workers and Paint Handlers Union, Local 206, International Brotherhood of Painters and Allied Trades, AFL-CIO, is a labor organization with- in the meaning of Section 2(5) of the Act. 3. All cutters, feeders, selectors, sandblasters, designers, carvers, acid etchers, chippers, plate and window glass han- dlers, cleaners,. glass installers, checkers, glass warehouse workers, packers, chauffeurs, order pickers, glass cleaners, glass fabrication, mirror painters, glass washers, paint han- dlers, silk screen workers, glass sign workers, pattern-tak- ing maintenance men, embossing, bevelers, mitre cutters, silverers, polishers, grinders, pattern cutting and cutters and all other inside and outside employees who handle glass and allied workers, including drivers, helpers in deliv- ery operations to and from all sites and, in addition, in- cluding also hoisting, loading and unloading of boxed and loose glass and all materials and incidental and related op- erations, employed by the Respondent at its Hempstead plant, excluding office clerical employees, guards, and all supervisors as defined in Section 2(11) of the Act, consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been the exclusive bargaining representative of Respondent's em- ployees in the unit described above, for the purpose of collective bargaining with respect to wages, hours, and other terms and conditions of employment. 5. By its conduct set forth in section III, above, Respon- dent has engaged in and is continuing to engage in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 6. The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the entire record in this case, and pursuant to Sec- tion 10(c) of the Act, I hereby issue the following recom- mended: ORDER3 Nassau Glass Corporation, Hempstead, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Attempting to avoid its bargaining obligation by sol- iciting or urging employees in its glass installation plant to resign from membership in Glass Warehouse Workers and Paint Handlers Union, Local 206, International Brother- hood of Painters and Allied Trades, AFL-CIO, or to with- draw their authorization of Glass Warehouse Workers and Paint Handlers Union, Local 206, International Brother- hood of Painters and Allied Trades, AFL-CIO, to repre- sent them for purposes of collective bargaining. (b) Failing or refusing to bargain collectively with Glass Warehouse Workers and Paint Handlers Union, Local 206, International Brotherhood of Painter and Allied Trades, AFL-CIO, as the representative of its employees in the following appropriate bargaining unit: All cutters, feeders, selectors, sandblasters, designers, carvers, acid etchers, chippers, plate and window glass handlers, cleaners, glass installers, checkers, glass warehouse' workers, packers, chauffeurs, order pickers, glass cleaners, glass fabrication, mirror painters, glass washers, paint handlers, silk screen workers, glass sign workers, pattern-taking maintenance men, embossing, bevelers, mitre cutters, silverers, polishers, grinders, pattern cutting and cutters and all other inside and outside employees who handle glass and allied work- ers, including drivers, helpers in delivery operations to and from all sites ' and, in addition, including also hoisting, loading, and unloading of boxed and loose glass and all materials and incidental and related op- erations, employed by the Respondent at its Hemp- stead plant, excluding office clerical employees, 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. NASSAU GLASS CORPORATION guards, and all supervisors as defined in Section 2(11) of the Act. (c) In any like or related manner interfering with, re- straining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with the above-named union as the exclusive representative of the employees in the unit described above in paragraph 1(b) of this Recommended Order, with respect to wages, hours, and other terms and conditions of employment, and, if an agreement is reached, embody the same in a written contract. (b) Post at its place of business in Hempstead, New York, copies of the attached notice marked "Appendix. " 4 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. _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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to be heard, it has been decided that we, Nassau Glass Corpora- tion, violated the National Labor Relations Act. We have therefore been ordered to post this notice to carry out its terms. 795 The National Labor Relations Act guarantees to em- ployees the right to join and help unions, to bargain collec- tively through representatives of their own choice,, to act collectively with other employees in bargaining with em- ployers, and to be free from interference, restraint, coer- cion, or threat because of the exercise of any of those rights or any other rights under the Act. The Act also guarantees employees the right to refrain from exercising those rights, if they so choose. It is up to the employees themselves, without interference from their employer or anybody else. Accordingly, we assure you that from now on: WE WILL NOT violate any of your rights listed above. WE WILL, so long as Glass Warehouse Workers and Paint Handlers Union, Local, 206, International Brotherhood of Painters and Allied Trades, AFL- CIO, is your duly authorized bargaining representa- tive, continue to recognize that Union, and meet and bargain with it in good faith concerning your wages and other terms and conditions of employment and embody in a signed agreement any understanding reached. WE WILL NOT seek to avoid our bargaining obligation with Local 206 by soliciting or urging our glass 'instal- lation employees to resign from membership in that union, or to withdraw their authorization of Local 206 to represent them for purposes of collective bargaining in the following unit: All cutters, feeders, selectors, sandblasters, design- ers, carvers, acid etchers, chippers, plate and win- dow glass handlers, cleaners, glass installers, check- ers, glass warehouse workers, packers, chauffeurs, order pickers, glass cleaners, glass fabrication, mir- ror painters, glass washers, paint handlers, silk screen workers, glass sign workers, pattern-taking maintenance men, embossing, bevelers, mitre cut- ters, silverers, polishers, grinders, pattern cutting & cutters and all other inside and outside employees - who handle glass and allied workers, including driv- ers, helpers in delivery operations to and from all sites and, in addition, including also hoisting, load- ing and unloading of boxed and loose glass and all materials and incidental and related operations, em- ployed by the Respondent at its Hempstead plant, excluding office clerical employees, guards and all supervisors as defined in Section 2(l1) of the Act. NASSAU GLASS CORPORATION