Manhattan Store Interiors, Inc.

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manhattan Store Interiors, Inc. and Jan Gmernicki. Case 29-CA-4593 December 14, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On July 27, 1976, Administrative Law Judge Samuel Ross issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and the Respon- dent filed an answering brief. 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 affirm the rulings, findings,1 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 the complaint be, and it hereby is, dismissed in its entirety. 1 The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to' overrule an Administrative Law Judge's resolutions with respect to credibili- ty 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 findings. DECISION STATEMENT OF THE CASE SAMUEL Ross, Administrative Law Judge: This case was heard before me in Brooklyn, New York, on April 21 and 22, and May 10, 1976, on a charge filed on September 23, 1975, by Jan Gmernicki, an individual, and on a complaint which issued on December 23, 1975, which as amended at the hearing alleges that Manhattan Store Interiors, Inc., herein the Respondent, engaged in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act, by threatening the Charging Party with reprisals if he sought to enforce his rights under the collective-bargaining agreement between the Respondent and The District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and its constituent Local 2632, herein the Union, by transferring the Charging Party from one department to another to the detriment of his seniority rights under the said contract, and by thereafter laying him off and failing and refusing to recall him because he assisted the Union and sought to enforce his rights under the union agreement. The Respondent filed an answer which denies the substantive allegations of the complaint and the commission of unfair labor practices. Upon the entire record, including my observation of the witnesses and their demeanor, and after due consideration of the brief filed on behalf of the Respondent,' I hereby make the following: FINDINGS OF FACT I. COMMERCE The Respondent is a New York corporation whose plant and principal place of business is located in Brooklyn, New York, where it is engaged in the manufacture, sale, installation, and distribution of store fixtures and related products and services. During the past year, a representa- tive period, the Respondent purchased and caused to be delivered to its place of business in Brooklyn, New York, wood, hardware, tools, and other goods and materials valued in excess of $50,000 from points and places located outside the State of New York. Based on the foregoing, the Respondent admits and I find that it is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent also admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Respondent is a privately owned corporation whose stock is owned in equal shares by Albert Winters, its president, Solomon Katz, its secretary-treasurer, Alvin Katz and Sophie Stoloff, a sister of the Katz'. As noted above, the Respondent is engaged in the business of making and selling store fixtures such as counters, display cases, shelves, and similar items. It also designs, fabricates, and installs fixtures for post exchanges for the United States Army and Air Force. The Respondent utilizes Military Equipment Corporation, herein called MEC, a wholly- owned subsidiary, for the installation of its products at United States Government post exchanges and military installations. MEC's offices and bookkeepers are the same as that of the Respondent, and employees of the Respon- dent are transferred from its payroll to that of MEC and back as required.2 I No brief was filed by either the General Counsel or the Charging Party's attorney. 227 NLRB No. 55 2 The name of MEC has recently been changed to Store Interior Installations. MANHATTAN STORE INTERIORS, INC. 263 The Respondent makes its products at a plant located at 17 Moultrie Street, Brooklyn, New York, which consists of four contiguous buildings, each roughly 25 by 100 feet. At the times material herein, the Respondent there employed between 35 to 40 employees, including carpenters, carpen- ter's helpers, glaziers, machine men, gluers, paint sprayers, hi-lo drivers, truck loaders, and craters. These employees worked in four departments, known respectively as Assem- bly, Formica, Spraying, and Finishing and Shipping. The employees in these departments have been represented by the Union since about 1962 pursuant to successive collec- tive-bargaining agreements between the Respondent and the Union. The last, such agreement in effect at the times material herein was entered into on July 1, 1973, and expired on June 30, 1976.3 The said agreement and its predecessors provided, inter alia, as follows: The Union and the Employer recognize departmental seniority regarding lay-offs, rehiring and changes. Seniority shall be determined by the ability, qualifica- tions and skills to perform the remaining work. Under the said agreement and its forerunners, the Respon- dent also has been continuously required to make contribu- tions on behalf of its unit employees "within the geographi- cal area" of the Union to the latter's welfare and pension funds. The Respondent's agreements with the Union did not cover the employees whom it carried on its MEC payroll, and the Respondent had no agreement with any union for such employees. However, in order to provide coverage for union benefits to the employees whom it transferred from its payroll to MEC's, the Respondent also listed them on its books as employees of the Respondent, and it contributed to the funds for them. Periodic audits of the Respondent's books and records are conducted by the Union's Fringe Benefit Funds to insure that the contribu- tions made by Respondent conformed with the terms of the collective-bargaining agreements then in effect. However, because of disagreements between the funds and the Respondent over whether certain of the employees covered by the funds worked within the geographical area of the Union, these audits generally disclosed arrearages by the Respondent in its contributions to the funds. B. The Allegedly Unlawful Conduct of the Respondent Gmernicki was hired by the Respondent on September 24, 1962. He worked initially as a carpenter's helper in the assembly department, and after a couple of years, he was transferred to the finishing department as a journeyman carpenter. He also did glazing, sheeting, electrical and plumbing work, and building maintenance. Gmernicki was a member of the Union. About 1966, the Respondent transferred Gmernicki to its MEC payroll, and he thereaf- ter worked both at outside installation of the Respondent's products and in the finishing department in the Respon- 3 See Resp Eah. 2. 4 I base my' finding above on Gmernicki's uncontroverted testimony which I credit in this respect. 5 The funds' audit of the Respondent's books for that period was not conducted as a result of any complaint by Gmermcki, but was one which the funds make periodically every 2 or 3 years when the Respondent's name is dent's shop. When Gmernicki was transferred to the MEC payroll, he was assured by Solomon Katz that his benefits under the Respondent's union contract would not be affected, and he was told not to worry about it .4 Thereafter, although Gmernicki was paid for his services by MEC, he and other employees who were transferred from the Respondent's to MEC's payroll were also carried on the Respondent's books as part-time, 20 hours a week, employ- ees. According to the uncontroverted and credited testimo- ny of President Winters, this bookkeeping procedure was based on an arrangement he had entered into with William Sutherland, the union funds' chief auditor, in order to provide the employees who worked on the MEC payroll with the welfare and pension benefits of the Respondent's contract with the Union. In the spring of 1972, while still- on MEC's payroll, Gmernicki had occasion to present a claim for medical expenses he had incurred to the Union's Fringe Benefit Funds, and he was informed that he was not fully covered for the Union's benefits, and that he was not eligible for a pension. Gmernicki also then learned from the funds that the Respondent had been contributing to the funds on his behalf as a part-time, 20 hours a week, employee. In addition, in July 1972, Gmernicki received a letter from the funds which apprised him of the amount of his earnings which the Respondent had reported to the funds for the years 1963-71. Upon receipt of the said information, and again when he received the funds' letter, Gmernicki spoke to Solomon Katz, reminded him of the assurances which he had been given when he transferred to the MEC payroll- that he would not lose any union benefits-and complained that he now found that he was not fully covered. Katz reassured Gmernicki and said, "Jan, don'tworry, whatever it takes, I am going to straighten [it] out." Following Gmernicki's conversation with Katz, Respondent's presi- dent, Winters, conferred with Robert Cartledge, the funds' new chief auditor who had replaced Sutherland. Cartledge was not aware of the arrangement between the Respondent and his predecessor to maintain union benefits for MEC employees on the basis of contributions to the funds for such employees for 20 hours of work per week, and Cartledge insisted that, as a minimum for maintaining such benefits, the Respondent had to contribute to the funds for such employees on the-basis of 40 hours of work per week for 52 weeks each year at the skilled rate. Based on this formula, the Respondent was found to be $2,300 in arrears in contributions to the funds on Gmernicki's behalf for the period between January 1, 1969, and August 31, 1972, the Respondent paid that sum to the funds, and Gmernicki's claim against the funds for medical expenses was adjusted to his apparent satisfaction.5 On September 26, 1972, after working 6 years on MEC's payroll, Gmernicki was trans- ferred back to the Respondent's payroll and he was reassigned to the-finishing department. In the summer of 1974, the Respondent began purchasing prefabricated, prefinished, and precut parts which it had reached on their alphabetical list of union contractors. The total arrearage found by the funds for that period was $39,120.38. After negotiation this was settled by the Respondent's payment of a total of $35,000, which included the $2,300 which it had paid to provide Gmernicki with full coverage for union benefits. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously fabricated, cut, and finished in its own plant. As a consequence of this new method of operation, the Respondent needed fewer employees and between August and December 1974 the Respondent laid off about nine carpenter's helpers.6 This reduction in personnel apparently made additional space available in the Respondent's plant, and Felix Baez, the Respondent's foreman, suggested to Winters and Katz that the finishing department employees be physically moved out of the shipping department area and thereby make that space available for storage. That suggestion was adopted by the Respondent , and it was put in effect early in 1975 by moving the three carpenter's helpers who had worked under Gmernicki's leadership to the spraying department area , and by transferring Gmer- nicki in late February 1975 to the assembly department. According to Gmernicki, following his transfer to the assembly department, Solomon Katz, who previously had been friendly, began to show hostility to him. In this respect, Gmernicki testified that, early in March, Katz accused him of taking too many coffeebreaks and told him that he was there to work and not to be continually walking around with a cup of coffee in his hand. Gmernicki further testified that on another occasion in early March 1975, when he was about ready to leave the plant at 4:30 p.m. after having changed his clothes, he was told by Katz to get on a hi-lo and move some crates of glass, and that when he protested that he had not been notified ,in advance that he would be required to work overtime , Katz said that if Gmemicki didn't stay, "he don't need me any longer." Gmemicki admittedly did not stay on and move the crates, and notwithstanding the ultimatum which he allegedly had received,, he was not then terminated. Katz categorically denied _ talking .to Gmernicki about coffeebreaks in March 1975, and he also denied that he told Gmemicki to stay overtime to operate a hi-lo to move crates of glass and that if he didn't stay, he didn't need Gmernicki anymore. These conflicts in the testimony will be considered and resolved infra in the section III, C, this Decision. According to Gmernicki, on or about March 18, 1975, he asked Marcos Rios, the Union's shop steward, whether his transfer from the finishing to the assembly department had affected his seniority, and Rios responded that he did not know, but that he would find out. Gmernicki testified that, on the very next day, Solomon Katz angrily and in a loud voice asked him what he wanted to know about his seniority, and that he then asked Katz the same question which he had asked Rios the previous day. Gmernicki testified that Katz then told him, "You are here to work, not [to] raise questions. You cost the Company already $40,000. Who are you to raise the question ? If you don't like it, too bad. Don't start with me, otherwise you will have no chance." Katz assertedly further said that Gmernicki "had no chance with -him and he going to finish me," and that Katz finally said, "That's it, you're through." Gmernicki admitted, however, that he was not terminated at that time. Katz denied that he had any discussion in March 1975 with Gmernicki regarding seniority , he denied telling Gmernicki that he had cost the Company $40,000, and he denied that he said to Gmernicki either that he was going to finish him, or that he was through . This conflict likewise will be considered and determined , infra. About a week later on March 26, 1975, Gmernicki was given his pay and vacation checks by Shop Steward Rios and a slip which stated that he was being laid off for lack of work . He has not been recalled to work by the Respondent since that date. C. Contentions and Concluding Findings The Respondent contends that the Board should defer consideration of the complaint in this case and should require Gmernicki to process his grievance against the Respondent to arbitration in accordance with the provi- sions of the collective-bargaining agreement between the Respondent and the Union, pursuant to the Board's policy expressed in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). The record in this respect discloses as follows:, After his layoff, Gmemicki requested the Union to process a grievance against the Respondent on his behalf, and on August 29, 1975 , the Union sent a letter to the Respondent in which it stated, inter alia, "that if Manhattan Store Interiors, Inc., will submit a report as to why this member was laid off, we might be able to process the grievance in this matter." 7 The Respondent replied by letter on September 8, 1975, that "Mr. Gmermcki was laid off on March 26, 1975, because of lack of work. That condition still exists . He has not been replaced nor do we anticipate the need to replace him in the immediate future." 8 About a week later, at the request of the Union, President Winters visited the Union's office and was advised orally that no further action would be taken by the Union because Gmernicki's. grievance was "not warrant- ed." It thus appears that both the Respondent and the Union perceive no merit in Gmernicki's grievance. The Respondent nevertheless urges that since under the con- tract, section 11, paragraph 6, "the employee may appeal for arbitration of such grievance," Gmernicki should be required under Collyer, supra, to pursue his contractual remedy. I do not agree for the following reasons: Since the Union regards Gmernicki's grievance as with- out merit, this would require him to undergo the expense of hiring private counsel to process it. Moreover, under the contract, the board of arbitrators would be composed of one member appointed by the Respondent, another ap- pointed by the Union, and a third appointed by the two arbitrators thus designated. In the light of the unanimity of the views of the Respondent and the Union regarding the lack of merit of Gmernicki's grievance, a panel of arbitra- tors so appointed could hardly be expected to render a decision contrary to the views of at least two of the appointing powers . Under these circumstances, I am of the opinion that it would not effectuate the policies of the Act to defer the disposition of this case to the arbitration procedures of the collective -bargaining agreement between the Union and the Respondent, and I will therefore consider the merit or lack of merit of the allegations of the complaint herein. 6 See Resp Exh 3 , See Resp. Exh. 7. s See Resp. Exh. 8. MANHATTAN STORE INTERIORS, INC. 265 The General Counsel contends that the Respondent violated Section 8(a)(1) of the Act "when Solomon Katz threatened Jan Gmernicki with the reprisal of discharge because Gmernicki had inquired about his seniority." As previously noted, Katz denied having any such conversa- tion with Gmernicki and denied making any such threats. This conflict in the testimony presents purely a question of credibility. According to Gmernicki's version of this incident which allegedly occurred on March 18, Katz told him, inter alia, "That's it, you're through." The plain import of these words was that Gmernicki was being told that he was fired. However, it is undisputed that Gmernicki was not fired when Katz allegedly made this statement to him. According to Gmernicki, several weeks earlier Katz had also told him that if he didn't stay on and work overtime to move some crates of glass, "he didn't need me any longer." This alleged statement, denied by Katz, clearly constituted a threat of immediate discharge unless Katz' instruction was complied with. However, although Gmernicki admit- tedly did not comply with Katz' order and did not work overtime, he undisputedly was not then fired or otherwise disciplined for disregarding Katz' alleged direction. I conclude from the foregoing, as well as by demeanor, that as Katz testified, no such threats were made. I will therefore recommend dismissal of the complaint insofar as it is based on this alleged threat by Katz. Sections 10 and 12 of the complaint allege that the Respondent violated Section 8(a)(3) and (1) of the Act by transferring Gmernicki on February 26, 1975, from the finishing to the assembly department "to the detriment of his seniority rights," and by thereafter laying him off on March 26, 1975, because he had "sought his rights under the collective-bargaining agreement between the Respon- dent and the Union." The General Counsel contends that Gmernicki's transfer from a department where he asserted- ly "was the most senior or nearly the most senior employee" to another "where he was the least senior employee in his category," and his subsequent layoff were both motivated by the Respondent's contemporary acquisition of knowl- edge of the results of the union funds' latest 1975 audit which had disclosed that it again was in substantial arrears in its contributions to the funds. In this respect, the record undisputedly discloses that on February 20, 1975, after completing an audit of the Respondent's books for the period between October 1, 1972, and December 31, 1974, the funds notified the Respondent that it was in arrears in its contribution to the funds for that period in the sum of $48,000.9 1 nevertheless regard the allegation and conten- tion that Gmernicki was thereafter either transferred or laid off because of this audit, or because of his pursuance of rights under the union contract as without merit. I base this conclusion on the following considerations. The Respondent had no reason for regarding Gmernicki to be responsible for the arrearages disclosed by any of the funds' audits of its books. None of these audits was made because of Gmernicki's claim for benefits under the funds and, to the contrary, they were periodically performed when the funds reached the Respondent's name on its alphabetical list of union contractors. The amount of the arrearage disclosed by the 1969 to 1972 audit clearly indicated that it was attributable to under reporting of wages, not only of Gmernicki's, but also' of all of the Respondent's employees. There were always disagreements between the funds and the Respondent about the amount due to the funds, and prior audits by the funds had similarly disclosed substantial amounts owed by the Respondent to it. The Respondent had no contract with the Union governing its MEC employees, and it therefore was under no legal compulsion to make contributions to the funds for such employees. It thus is quite evident that the Respon- dent's contributions to the funds for the MEC employees were made by it voluntarily to provide them with union benefits under its collective-bargaining agreement-with the Union. Moreover, it also is quite apparent from the undisputed record that the $2,300 which the Respondent paid to the funds in 1972 for Gmernicki was paid in order to carry out its prior assurance to him when he was transferred to the MEC payroll that he would `not lose his union benefits by that transfer. Furthermore, the funds' last -audit of -the Respondent covered a period when Gmernicki was back on the Respondent's payroll and no longer on MEC's. The large arrearage disclosed by that last audit clearly was not attributable to under reporting of Gmernicki 's wages alone, but to such under reporting of the wages of its unit employees generally. All of the foregoing persuades me that since the Respondent could not rationally have regarded Gmernicki to be responsible for the arrearages disclosed by either the 1969 to 1972 or the 1972 to 1974 audit, it was not angry with him for what the audits required it to pay. I therefore place no credence in the testimony of Gmernicki, denied by Katz, that Katz told him that he had cost the Company $40,000. Furthermore, contrary to the contention of the General Counsel, Gmernicki's transfer from the finishing to the assembly department did not adversely affect his seniority. According to the seniority list in evidence and the testimo- ny of Marcos Rios, the Union's shop steward, seniority is based on the date of employment. Gmernicki was hired on September 24, 1962. However, he was the only carpenter employed by the Respondent in the finishing department.10 Thus, if a layoff of a carpenter was required in the finishing department, according to the departmental job seniority in the Respondent's contract with the Union, Gmernicki would be the one to be laid off. When Gmernicki was transferred to the assembly department, he became one of three carpenters in that department, but the other two had been employed by the Respondent longer than Gmernicki and thus had greater seniority than he. Thus in the event of a layoff of a carpenter in that department, Gmernicki again would be the one to be laid off. In the light of these circumstances, there is no merit to the contention of the General Counsel that Gmernicki's transfer from finishing to assembly adversely affected his retention rights. As noted above, in the summer of 1974, the Respondent changed its method of operation and started to buy prefabricated, prefinished, and precut parts which it had 9 This sum was subsequently reduced by the funds to $28,948.21 and was settled by the Respondent's payment of $27,000. Only $1,466.75 of this arrearage was attributable to under reporting by the Respondent of Gmerncki's wages 50 The only other employees in the finishing department were a glazier and three carpenter's helpers. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formerly made from "scratch" in its own plant. As a consequence of this new method of operation, the Respon- dent needed fewer employees and as found above, between August and December 1974,- it laid off nine carpenter's helpers. This in turn made space available for the Respon- dent to consolidate its finishing department employees into other areas of its plant and to thereby make the space previously occupied by the finishing department available for use as storage space. The change in its manufacture of products also made it unnecessary for the Respondent to employ as many carpenters as it carried on its payroll. The recommendations to effect these changes were made by the Respondent's foreman, Felix Baez, as he credibly testified without contradiction. The selection of Gmernicki for layoff was made by Shop Steward Rios based on his lowest seniority of the carpenters in the assembly department, as Rios credibly testified without contradiction. Moreover, since Gmernicki's layoff, the Respondent has not hired any carpenters or carpenter's helpers. In the light of all the foregoing, although I regard it suspicious that the Respondent laid off an admittedly qualified carpenter and retained less qualified carpenter's helpers, I nevertheless am impelled to the,conclusion that the General Counsel has failed to establish by the requisite preponderance of the testimony that Ginernicki's transfer to the assembly department or his subsequent layoff was motivated either by his complaint 3 years earlier about the Respondent's failure to cover him for union benefits, by the more recent funds' audit of the Respondent's books, or by Gmernicki's inquiry about his seniority status, and I will therefore recommend dismissal of the complaint in these respects. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Manhattan Store Interiors, Inc., is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and its constituent Local 2632, are labor organizations within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by the requisite preponderance of the evidence that the Respon- dent has engaged in any unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act as alleged in the complaint in this case. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I hereby issue the following recommended: ORDER 11 It is hereby ordered that the complaint be, and it hereby is, dismissed in its entirety. 11 In the event no exceptions are filed as provided in Sec. 102.46 of the of the Rules and Regulations, be adopted by the Board and become its Rules and Regulations of the National Labor Relations Board, the findings, findings, conclusions, and Order, and all objections thereto shall be deemed conclusions, and recommended Order herein shall; as provided in Sec 102.48 waived for all purposes.