Aqua-Air Systems, Corp.

AQUA-AIR SYSTEMS , CORP. 403 Aqua-Air Systems, Corp. and Shopmen's Local Un- ion No. 455, International Association of Bridge, Structural, and Ornamental Iron Workers, AFL-CIO. Cases 29-CA-3662, 29-CA-3745, and 29-CA-3728 December 9, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 17, 1974, Administrative Law Judge Her- bert Silberman issued the attached Decision in this proceeding. Thereafter, General Counsel 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 conclu- sions of the Administrative Law Judge and to adopt his recommended Order. tions between the Company and the Union covering an ap- propriate unit of, employees for which the Union is the statutory representative, and in the months of February and March 1974 subcontracting the work normally performed by the employees in said collective-bargaining unit without first notifying the Union or offering to bargain with the Union about the subject; (2) on various dates between November 23, 1973, and February 7, 1974, unlawfully discharging 10 em- ployees because they joined or assisted the Union; and (3) because of the foregoing and other conduct specified in the complaint, interfering with, coercing, and restraining its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent filed an answer to the amended com- plaint denying generally that it had engaged in the alleged unfair labor practices and asserting affirmatively that it di- vested itself of its manufacturing operations because of eco- nomic necessity. A hearing in these proceedings was held on May 14, 15, and 20, 1974, in Brooklyn, New York. The- reafter, a brief was filed with the Administrative Law Judge on behalf of General Counsel. Upon the entire record in the case, and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Aqua-Air Systems, Corp., Long Island City, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon a charge filed in each of the first two above-numbered cases and a charge and an amended charge filed in the third above- numbered case on December 5, 1973, January 30, February 19, and March 20, 1974, respectively, by Shopmen's Local Union No. 455, International Association of Bridge, Struc- tural, and Ornamental Iron Workers, AFL-CIO, herein called the Union, an order consolidating the above-numbered cases and a consolidated amended complaint therein was issued on March 29, 1974. The consolidated amended com- plaint, as further amended on April 30, 1974, and at the hearing, alleges that Aqua-Air Systems, Corp., herein re- ferred to as the Company or Respondent, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act by: (1) since February 4, 1974, refusing to sign a written contract reflecting an agree- ment reached as a result of the collective-bargaining negotia- Respondent, a New York corporation, which maintains its principal office and place of business in Queens, New York, during the times material hereto, has been engaged in the manufacture, sale, and distribution of trash compactors, anti- air pollution devices, and related products. During the calen- dar year 1973, the Company, pursuant to written agreements, sold to and installed for Empire Realty Company various products for which the Company charged and was paid in excess of $65,000. Empire Realty Company, which is engaged in the business of managing real estate, during the calendar year 1973 had a gross income in excess of $2.5 million. I find that the Company is an employer within the meaning of Section 2(5) and (6) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is an organization which is governed by a con- stitution and bylaws, holds regular meetings, and elects offic- ers to manage its affairs. It has a membership of about 4,000 employees and has collective-bargaining agreements with ap- proximately 200 business organizations. The Union deals with employers concerning wages, rates of pay, and other conditions of work. I find that the Union is a labor organiza- tion wits... the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On November 16, 1973, the Union sent a telegram to the Company, advising that it represented a majority of the Com- pany's production and maintenance employees and request- ing a meeting for the purpose of discussing the terms and conditions of their employment. The Union's claim was based 215 NLRB No. 76 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon eight authorization cards' which were signed on November 15, 1973, in the pres,:nce of company employee Lelis Alava. Alava advised a union representative on the night of November 15 that he had obtained eight signatures to authorization cards and on the night of November 16 he delivered the cards to the Union, but after the telegram had been sent to the Company. The Company then had fewer than 15 employees in the unit described below. The Union, thus was designated as collective-bargaining representative by a majority of the employees in the unit. The instigators of the organizational activity were company employees Lelis Alava and Luigi Nargentino They initially contacted re- presentatives of the Union, obtained authorization cards from the Union, and successfully solicited a majority of the em- ployees in the unit to sign the cards On November 21, 1973, the Union filed a petition for Certification of Representative. Thereafter, an election was held by the Board on January 11, 1974, at which nine ballots were cast, of which six votes were for the petitioner and three ballots were challenged Accordingly, on January 21, 1974, a Certification of Representative was issued certifying the Union as the statutory representative of the following unit: All production, maintenance, installation and servicing employees employed by the Employer at its premises located at 46-17 Vernon Boulevard, Long Island City, New York, excluding all other employees, including but not limited to all office clerical employees, engineers, salesmen, professional employees, guards and supervi- sors as defined in the Act. On or about November 19, Union President William Colavito received a telephone call from Seymour Rubin, gen- eral manager and executive vice president of the Company, who stated that "we should be able to get together," and a meeting was arranged for November 27, 1973 At the meet- ing, Rubin repeated that there should be "no problem work- ing out the situation." He asked Colavito to draft a proposed contract. Before the meeting concluded, Rubin introduced Colavito to Company President Irving Cohen and with Co- hen's permission Rubin gave Colavito a list of the employees in the unit together with their wage rates and job classifrca- t' Jns. On November 29, Colavito delivered to Rubin a draft of a proposed agreement. Rubin asked for time to review the in- strument. Although Colavito telephoned Rubin several times thereafter, he was unable to speak with him until they met at a National Labor Relations Board hearing in December 1973 in connection with the petition filed by the Union. Colavito asked Rubin what had happened to the contract and Rubin replied that the matter was out of his hands, that Mr. Cohen was handling it. Colavito next spoke with Rubin on January 11, 1974, after the election. Colavito r.sked when the Com- pany would take back the employees who had been laid off and Rubin replied that he did not believe they would return because business was bad. Colavito asked when they could begin negotiations for a contract and Rubin suggested that Colavito speak with Cohen. Colavito was able to schedule a meeting with Cohen for January 14. Rubin was asked by ' Each of the cards authorizes and designates the Union to act as the exclusive agent and representative of the person signing the same for all purposes of collective bargaining Cohen to join him and Colavito in the meeting, during which there was discussion of some of the terms in the Union's contract draft. The meeting concluded with the company representatives saying that they wanted more time to study the Union's proposals. Some days later, after making several telephone calls, Colavito spoke with Rubin, who informed Colavito that Rubin had been given full authority to negotiate a contract. They scheduled another meeting. At this meeting, Colavito and Rubin came to an understanding on a complete collective-bargaining agreement. Rubin asked Colavito to draft the agreement and another meeting was set for Febru- ary 4, 1974. On this date, Rubin raised some additional ques- tions, and the agreement which Colavito had drafted was modified in several respects. A copy of the instrument, as modified and initialed by Colavito, was left with Rubin, who said he would get Cohen to sign it. Thereafter, Colavito spoke with Rubin several times about the execution of the agree- ment by the Company. During one of their conversations, Rubin stated that Cohen had agreed to the contract, that it was okay, but because Cohen had been busy he had not had a chance to sign it. On February 25, 1974, Colavito wrote the following letter to the Company: On February 4, 1974, we worked out a complete col- lective bargaining agreement covering your production and maintenance employees. A few days later your Ex- ecutive Vice President, Si Rubin, assured me that the terms of the agreement had been approved by Mr. Co- hen, the President of your Company, and that I would now receive the executed copy. To date I have failed to hear from you. I would ap- preciate receiving, by return mail, the executed agree- ment, or advice as to the reason for your delay, so that I may act accordingly. The Union never received a reply to this letter nor did it receive a copy of the executed agreement from the Company. During the Company's fiscal year ended June 30, 1973, and until the date of the hearing, the Company sustained enor- mous financial losses. Irving Cohen, its president, testified that in March 1973 his partner who was in charge of produc- tion activities resigned and as a result the Company's manu- facturing operations deteriorated to a point where it became uneconomical to continue them. Cohen decided to discon- tinue plant production and to contract for the manufacture of the products which the Company required. In August 1973, Cohen began negotiations with Eugene Oktan and Sol Lefkowitz, who are the principals of Apex Fabricators, Inc. On November 7, 1973, the Company and the principals of Apex Fabricators reached an agreement whereby the Com- pany leased a substantial amount of its space and its equip- ment to Apex. The rent which Apex agreed to pay to the Company was related to the amount of work which the Com- pany would give to Apex, but the agreement contains no provision requiring the Company to give any work to Apex. The instrument reflecting the contract between the Company and Apex was not executed until February 1974 and the lease term began on February 1, 1974. Beginning December 31, 1973, according to Cohen, the Company began to phase out its manufacturing operations. As of the date of the hearing, the Company's entire comple- ment of employees had been reduced to four, which included AQUA-AIR SYSTEMS , CORP. 405 its president. It no longer is selling and installing its products, and it no longer is engaged in manufacturing. I find that General Counsel has failed to prove that the Company di- vested itself of its manufacturing operations for unlawful rea- sons and that the employees who were discharged after December 31, 1973, were unlawfully terminated. Although I credit the uncontradicted testimony of Irving Cohen regarding the Company's financial position,' I find that as a witness Cohen was evasive, argumentative, too gen- eral in his response to questions asked him, particularly on cross-examination, and unable or unwilling to give meaning- ful details where appropriately called for by the questions which were asked him. I consider that Cohen was an unrelia- ble witness. A. The Refusal To Bargain Collectively Respondent's defense appears to be that Rubin did not have authority to negotiate a final agreement with the Union and that any understanding reached by Rubin with the Union required the approval of Cohen before the Company would become party to a collective-bargaining agreement. Thus, Seymour Rubin testified that he reached an agreement with Colavito on all the terms of a contract, that he presented the contract to Cohen, and that it was up to Cohen to accept or reject the contract or advise as to any changes he wished to make. On the other hand, Colavito testified that in late Janu- ary 1974 Rubin had informed him that Rubin had been given full authority to negotiate an agreement . I credit Colavito. Accordingly, I find that on February 4, 1974, Seymour Ru- bin, general manager and executive vice president of the Company, had either actual or apparent authority to enter into a collective-bargaining agreement with the Union and that on that day he reached an understanding with Union President Colavito on all the terms and conditions of a collec- tive-bargaining agreement. I further find that the Company has breached its statutory duty to execute a written contract incorporating the agreement reached between the Union and the Company, as requested by the Union, and thereby vi- olated Section 8(a)(5) of the Act. I find that by November 7, 1973, the Company had reached a decision to subcontract its manufacturing opera- tions. However, as of November 27, 1973, when negotiations between the Company and the Union commenced, the Com- pany had not yet then effectuated its decision. It therefore was under an obligation to notify the Union of its decision and to give the Union an opportunity to bargain with the Company about the effects of the decision on the employees in the unit represented by the Union. The Company's failure to fulfill this obligation constitutes a further violation of Sec- tion 8(a)(5) of the Act. B. The Discharges ganizational drive and for the solicitation of authorization cards from a majority of the employees in the unit later certified by the Board. Alava was hired on October 16, 1970, as a welder and at the time of his discharge he was the most senior of all em- ployees in the Company's shop. Alava testified without con- tradiction that he had never been reprimanded with respect to his work. Furthermore, in July 1973, only 4 months before his termination, he received an increase in his wages. Com- pany President Cohen, when questioned as to whether he gave Alava a raise in July 1973, testified, "Yes, I sure did. The best man I had, in my opinion." Alava was notified of his termination by Joseph Perretti, the Company's plant superintendent.' Perretti informed Alava that he (Perretti) was sorry, that it was not his doing, but that of the bosses. On the same day, Luigi Nargentino was discharged. Nar- gentino testified that Perretti notified him of his discharge and, when he asked Perretti why he was being fired, the latter said that "possibly we were being fired because we had gone to the union." Roy L. Smith testified that on the day Alava and Nargen- tino were discharged his supervisor, Irving Weiss, told him that one man had been fired for joining the Union and it would be best for Smith not to be seen with him-he was then across the street talking to other fellows. Weiss further cau- tioned Smith, "[Y]ou have a wife and kids and if you want to work, stay away from him." The individual Weiss was referring to was Alava. I credit Smith's testimony despite Weiss' denial. James Sweeney testified that towards the end of November 1973 Pettetti asked him how he felt about the Union and whether he was going to vote for the Union in the forthcom- ing election. Sweeney further testified that Perretti also said that Rubin was annoyed because the men had brought in the Union without first speaking with him and that Rubin would have discussed it with a shop committee and in the latter circumstance the employees would not have to pay dues to the Union. I find that the questioning of Sweeney as to Swee- ney's attitude towards the Union and his voting intentions, in context of Perretti's statement that Rubin was annoyed be- cause the men had brought in the Union and the discharges on November 23 of the two employees who initiated the organizational activities, constitutes unlawful interrogation in violation of Section 8(a)(1). I do not agree with General Counsel that Perretti's remark that Rubin would have en- tered into discussions with an employee-sponsored commit- tee constitutes a separate violation of Section 8(a)(1). Respondent's defense to the discharges, as expressed by its president, Irving Cohen, was that because of the financial setbacks the Company had suffered in 1973, which continued to the date of the hearing, it was necessary for the Company drastically to curtail its personnel complement and to discon- tinue its production operations. The Company began to phase On November 23, 1973, exactly 1 week after the Union sent the Company its telegram demanding recognition, the Com- pany discharged Lelis Alava and Luigi Nargentino, the two employees who were responsible for the initiation of the or- 2 In regard to the Company's financial position, Cohen's testimony was corroborated by the testimony of the Company's auditor, Marvin Rosen- baum. 3 Respondent denied in its answer that Plant Superintendent Joseph Per- retti and Field Service Manager Irving Weiss were supervisors within the meaning of the Act. Testimony was offered concerning their duties and authority over other employees which points to the fact that they had authority that meets the definition of supervisor. In addition, Company President Irving Cohen testified, "On occasion they were authorized that if a man didn't measure up for any reason . . . they had the right to dis- charge him, yes." Accordingly, I find that Perretti and Weiss during the times material hereto were supervisors within the meaning of the Act. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out its manufacturing operations on or about December 31, 1973. However, Alava and Nargentino were discharged on November 23 , 1973, more than a month earlier. , Although there is no , evidence in the record that Cohen, Rubin, Weiss, or Perretti,ever spoke to Alava or Nargentino about alleged poor production on their part , according to Cohen they were selected to be laid off because they were suspected of having done poor work. Cohen explained that in the summer of 1973 a machine which had been manufactured by the Company was returned because it was ripped apart at the welds. When he inquired what had happened , Cohen was informed that the trouble was due to defective welding and at the time the only welders were Alava and Nargentino. Then, according to Cohen, "[He] said, 'if we don't have any work left, those are the two to go."' Cohen further testified that he also had to send out crews to reweld other pieces of equipment which had been installed and that it had been reported to him that "Alava and Nargentino had something to do with it." Cohen explained , "Well, quite frankly, I did not conduct an investigation because I was so fed up with the production problems, I was having , with quality controls, I just decided I'm closing it down, these two-the first blame is here, these two go now." According to Cohen , as he was planning to eliminate the production operations in any event, he did not "care about investigating" whether his decision to terminate Alava and Nargentino was justified. Cohen added, "Personally, I think he's [Alava] a great guy. I'd give him a reference-I'd give both of them a reference." Cohen also explained that he had complaints about 60 to 70 percent of the equipment on which Alava and Nargentino had worked. I have found that General Counsel has failed to prove that the Company's decision to discontinue its manufacturing op- erations and to reduce its work force was discriminatorily motivated However, according to Company President Co- hen, it was not until on or about December 31, 1973, that the Company began cutting back on its production operations, more than a month after Alava and Nargentino were dis- charged. Also, Cohen offered no satisfactory reason for the selection of Alava and Nargentino as the first employees to be terminated. Alava was the most senior employee and Co- hen specifically testified that he was "the best man I had, in my opinion." Cohen testified that he selected Alava and Nar- gentino for discharge in November because their welding was "alleged" to have been defective . First, it is noted that Cohen did not testify that he had personal knowledge of any defec- tive work produced by them . Second, Cohen's testimony indi- cates that he began to receive complaints about their defective welding in the summer of 1973 , nevertheless in July 1973, despite the Company's adverse economic situation, Alava was given a raise. I do not credit Cohen's uncorroborated testimony concerning the alleged complaints he received about the work of Alava and Nargentino. While the uncontradicted testimony of Nargentino that Plant Superintendent Perretti had informed him that he and Alava possibly were being fired because they had gone to the Union does not necessarily prove that that was the reason for their discharges , it does establish that the Company was aware that Alava and Nargentino were responsible for the Union having successfully organized the Company's produc- tion and maintenance employees .' Based on the facts that the Company advanced no credible explanation as to why Alava and Nargentino were selected for termination on November 23, 1973, that the Company acquired timely knowledge that they were responsible for the organization of its employees, that they were considered good employees and Alava, in particular, was considered by Cohen to be "the best man I had," and that Alava was the most senior employee in the shop, I conclude that Alava and Nargentino were selected for discharge on November 23, 1973, because of their union activities. I further find that the Company discriminated against them to discourage membership in the Union, and thereby violated Section 8(a)(3) of the Act, and by such con- duct also interfered with , restrained, and coerced its em- ployees in the exercise of their organizational rights guaran- teed by Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. I also find that Weiss' warning to Smith to stay away from Alava, who had been fired for joining the Union , if Smith wanted to continue to work for the Company constitutes further infringement on employees' statutory rights and thereby also violated Section 8(a)(1) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the se- veral States and tend to lead tolabor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Company has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged its employees, Lelis Alava and Luigi Nargentino, on November 23, 1973 , I shall recommend that Respondent offer to each of them immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his termination to the date of Respondent's offer of reinstate- ment, less his net earnings during such period . The backpay provided for herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F W Woolworth Company, 90 NLRB 289 (1950). Interest at the rate of 6 percent per annum shall be added to such net back- pay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Perretti's knowledge is imputed to the Company Furthermore, it is noted that neither Cohen, Ruben, nor Weiss , who were witnesses for the Respondent, denied that he had acquired timely knowledge of the union activities of Alava and Nargentino AQUA-AIR SYSTEMS , CORP. 407 I have found that the Company has failed to bargain collec- tively in good faith with the Union as the representative, duly certified by the Board, of the appropriate collective-bargain- ing unit of employees herein defined in that the Company subcontracted work normally done by the employees in the said appropriate collective-bargaining unit without giving the Union an opportunity to negotiate with the Company regard- ing the effects of such subcontracting upon the employees it represented, and on February 4, 1974, the Company and the Union reached an agreement with respect to the terms and conditions of employment for the employees in the unit repre- sented by the Union and the Company thereafter has failed and refused to execute the written contract incorporating the terms of the agreement. Respondent's failure to implement the agreement it reached with the Union by its unlawful refusal to execute the contract prevented the achievement of any measure of practical success in its bargaining relationship with the Union. Accordingly, it is necessary, in order to effectuate the purposes of the Act, to recommend an order requiring the Company to take such appropriate remedial action as will promote the accomplishment of the objective. The copy of the contract in evidence in this case as General Counsel's Exhibit 8 correctly reflects the agreement between the Company and the Union. Consistent with Board prece- dent, I shall recommend that, upon request of the Union, the Respondent sign the contract and deliver an executed copy thereof to the Union, and that, in accordance with its terms, said contract shall be retroactively effective from December 1, 1973. Due to the lapse of time and changes in circum- stances, the Union may desire to bargain for a new agreement immediately rather than be bound by the terms of the agree- ment reached on February 4, 1974. Accordingly, I shall recommend that, if no request to sign the contract is made by the Union, the Respondent, upon request of the Union, shall bargain collectively with it as the exclusive representative of the employees in the appropriate unit and, if an understand- ing is reached, embody such understanding in a signed agree- ment. In order to fully remedy the violations of the Act arising from Respondent's refusal to execute and implement the agreement reached on February 4, 1974, I shall also recom- mend that, if Respondent is requested by the Union to exe- cute the contract, Respondent shall make the employees whole for any losses they may have suffered by reason of Respondent's unlawful refusal to execute the contract. A failure to provide for the foregoing, retroactive to December 1, 1973, would enable the Respondent to benefit from its unfair labor practices. Any backpay which shall be due to employees pursuant hereto shall be computed in accordance with the formula set forth in F W. Woolworth Company, supra, and shall bear interest as prescribed in Isis Plumbing & Heating Co., supra. Furthermore, to insure that the employees in the appropri- ate collective-bargaining unit will have the opportunity to enjoy the full benefits that may be derived from their selection of a bargaining agent as contemplated by the Act, I recom- mend that the initial year of certification be deemed to begin on the date that the Company commences to bargain in good faith with the Union as the recognized bargaining representa- tive for the employees in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964). Respondent's unlawful discharge of Lelis Alava and Luigi Nargentino and Respondent's other unfair labor practices go to the very heart of the Act and reflect a failure and refusal to accept the procedures of collective bargaining contem- plated by the Act and a purpose to defeat self-organization of employees. The unfair labor practices committed by Re- spondent are potentially related to other unfair labor prac- tices proscribed by the Act, and the danger of their commis- sion in the future is to be anticipated from Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the recommended Order therein is coex- tensive with the threat. Accordingly, in order to make effec- tive the interdependent guarantees of Section 7 and thus ef- fectuate the policies of the Act, an order requiring Respondent to cease and desist from in any manner infringing upon the rights of employees guaranteed in the Act is deemed necessary. N.L.R.B. v. Express Publishing Company, 312 U.S. 426 (1941); N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By failing and refusing, since February 4, 1974, to exe- cute the written contract embodying the terms of the agree- ment reached by the Respondent and the Union with respect to wages, hours of employment, and other conditions of em- ployment for the employees in the appropriate bargaining unit described below, and since February and March 1974 by failing to give the Union an opportunity to bargain about, and with respect to the effects of, the Company's decision to subcontract work formerly done by the employees in the appropriate bargaining unit, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. The appropriate collective-bar- gaining unit is composed of all production, maintenance, installation and servicing employees of Respondent, em- ployed at its Long Island City, New York, plant, exclusive of all other employees, including but not limited to all office clerical employees, engineers, salesmen, professional em- ployees, guards, and all supervisors as defined in Section 2(11) of the Act. 2. By discriminatorily discharging Lelis Alava and Luigi Nargentino on November 23, 1973, thereby discouraging membership in the Union, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By reason of the foregoing conduct and by reason of Respondent's threat to an employee that he might be dis- charged should he associate with another employee who was known to the Company to be active in the Union and by coercively interrogating an employee concerning his sympa- thies for the Union and his voting intentions in a Board election, Respondent has interfered with, restrained, and co- erced employees in the exercise of the rights guaranteed them in Section 7 of the Act and thereby has engaged in, and is 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in these proceedings and pursuant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDERS Respondent, Aqua-Air Systems, Corp., Long Island City, New York, its officers, agents, successors, and assigns, shall: 1 Cease and desist from: (a) Refusing, if requested to do so by the Union, to sign the contract reached with the Union on February 4, 1974. (b) Failing and refusing to bargain collectively with the Union about the effects of any decision the Company has made or may make to subcontract work normally performed by the employees in the above-described collective- bargaining unit. (c) Discharging or otherwise discriminating against em- ployees in regard to their hire, tenure of employment, or other terms or conditions of their employment in order to discour- age membership in Shopmen's Local Union No. 455, Interna- tional Association of Bridge, Structural, and Ornamental Iron Workers, AFL-CIO, or any other labor organization. (d) Threatening employees with discharge or other repris- als for associating with persons who are known to be mem- bers of, to support, or to favor the Union, or any other labor organization. (e) Coercively interrogating employees about their union membership or sympathies, or their voting intentions in any Board-conducted election. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act (a) Upon request of the Union, forthwith execute the con- tract described in the section of this Decision entitled "The Remedy" and deliver an executed copy thereof to the Union; however, if no request to execute the contract is made, upon request of the Union, bargain collectively with it as the exclu- sive representative of employees in the unit described above and, if an agreement is reached, execute a written contract incorporating the terms of'the agreement. (b) Upon request of the Union that the aforesaid contract be executed, give effect, retroactive to December 1, 1973, to the terms of said contract, including but not limited to the provisions relating to wages and other benefits, and make whole the employees, in the manner set forth in the section of this Decision entitled "The Remedy," for any losses suf- 5 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 fered by them by reason of Respondent's refusal to execute the contract. (c) Offer to Lelis Alava and Luigi Nargentino immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privi- leges and make each of them whole for any loss of earnings he may have suffered by reason of Respondent's unlawful discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order (e) Post at its place of business in Long Island City, New York, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respon- dent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasona- ble steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (t) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the complaint of violations of Section 8(a)(1) and (3) be dismissed except insofar as specific findings of violations of those sections have been made above. 6 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, if requested by Shopmen's Local Union No. 455, International Association of Bridge, Structural, and Ornamental Iron Workers, AFL-CIO, sign the agree- ment we reached with said Union on February 4, 1974, effective from December 1, 1973, and WE WILL give re- troactive effect to all the terms of said contract, includ- ing but not limited to the provisions relating to wages and other benefits, and WE WILL make whole employees for any losses suffered by reason of our refusal to execute said contract. If no such request is made, WE WILL, upon request, bargain collectively with the Union as the exclu- sive bargaining representative of the employees in the following unit: AQUA- AIR SYSTEMS, CORP. All production, maintenance, installation and servic- ing employees employed at our Long Island City, New York, plant, excluding all other employees , including but not limited to all office clerical employees, engi- neers, salesmen, professional employees , guards and all supervisors as defined in Section 2(11) of the Act. WE WILL NOT fail or refuse to bargain collectively with the above- named Union about the effects of any decision we have made or may make to subcontract work normally performed by the employees in the above- described unit. WE WILL NOT discharge or otherwise discriminate against any employees in regard to their hire , tenure of employment, or any term of condition of their employ- ment in order to discourage membership in the above- named Union, or any other labor organization. WE WILL NOT threaten employees with discharge or other reprisals for associating with any persons known to be members , or supporters, of the above- named Union, or any other labor organization. 409 WE WILL NOT coercively question employees con- cerning their membership in or sympathies for the above- named Union, or any other labor organization, or their voting intentions in any election conducted by the National Labor Relations Board. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization , to form, join, or assist labor organizations, to bargain collectively through represen- tatives of their own choosing , and to engage in any other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection , or to refrain from any or all such activities. WE WILL offer Lelis Alava and Luigi Nargention im- mediate and full reinstatement to their former jobs or, if such jobs, no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges and WE WILL make them whole for any loss of earnings they may have suffered by reason of our unlawful discrimination against them. AQUA- AIR SYSTEMS, CORP. 6 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."