Cassis Management

324 324 NLRB No. 55 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 323 NLRB 456 (Chairman Gould and Member Fox; Member Higgins dissenting). 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 On May 12, 1997, the Respondent filed a motion for reconsider- ation and to reopen the record, and the General Counsel subse- quently filed a reply. In its motion for reconsideration, the Respond- ent contends, among other things, that in reaching its conclusion that Hoy was not a statutory supervisor, the Board erroneously found on p. 2 of its decision that ‘‘Hoy and the other unit employees met with [Property Manager] Shea daily in the office at 8 a.m. and discussed the work that needed to be done.’’ The Respondent asserts that the Board’s finding is inconsistent with Shea’s testimony that she did not report to work until 9 a.m. Even assuming arguendo that Shea was not present for the 8 a.m. meetings, the Board would still reach the same result. The question whether Shea was present at the morning meetings is immaterial be- cause the Board found that Hoy’s role at those meetings was not in- dicative of supervisory status. Thus, the Board found that at the daily meetings Hoy merely informed ‘‘his coworkers if something had occurred during the night that they were required to deal with before they returned to their normal routine,’’ that ‘‘no independent judgment was required to determine what problems constituted emer- gencies,’’ and that ‘‘Hoy’s announcements of emergency repairs can- not be considered evidence of supervisory authority.’’ Cassis, supra. In all other respects, the Respondent’s motion for reconsideration is denied as raising nothing not previously considered and as lacking in merit. In its motion to reopen the record, the Respondent asserts that Donald Hoy is deceased, and therefore a reinstatement order as to Hoy is not appropriate. The General Counsel acknowledges that Hoy is deceased, and therefore submits that there is no need to reopen the record on this matter. Accordingly, we shall modify the Order by deleting Hoy’s name from the list of employees to be reinstated and by providing that his estate shall be made whole. The Respondent also asserts that the record must be reopened to demonstrate changed circumstances affecting the reinstatement of the discriminatees. First, the Respondent contends that it should be per- mitted to offer evidence that certain of the discriminatees are not en- titled to reinstatement, because they were unable to perform their work in a satisfactory manner. We find that this issue either was, or should have been, litigated by the Respondent during the underly- ing unfair labor practice hearing. In addition, we find that the Re- spondent has failed to demonstrate that the evidence it seeks to ad- duce on this matter is either newly discovered since the close of the hearing or was previously unavailable. See sec. 102.48(a)(1) of the Board’s Rules. Second, the Respondent submits that it should be given the opportunity to introduce evidence that since the April 1996 discharges of the discriminatees, it changed the nature of its business operation by contracting out to another company the maintenance work that the discriminatees performed. The mere fact that the Re- spondent may have subcontracted out this work does not relieve the Respondent of its obligation to reinstate unlawfully discharged em- ployees. See Stalwart Assn., 310 NLRB 1046, 1055 (1993); Central Air Corp., 216 NLRB 204, 214 (1975). Rather, the Respondent must prove that it would have subcontracted the work in question even if the discriminatees had not been terminated, and during the compli- ance stage of this proceeding the Respondent will have an oppor- tunity to present evidence bearing on that issue. See Ellis & Watts Products, 143 NLRB 1269, 1271 (1963), enfd. 344 F.2d 67 (6th Cir. 1965). Accordingly, we deny the Respondent’s motion to reopen the record. Cassis Management Corporation and Service Em- ployees International Union, Local 32E, AFL– CIO. Case 2–CA–29311 August 29, 1997 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS On September 30, 1996, Administrative Law Judge Raymond P. Green issued a decision in this case find- ing that the Respondent discharged the entire bargain- ing unit, including Charles W. Morrow, in violation of Section 8(a)(3) and (1) of the Act, that Donald Hoy was a supervisor within the meaning of Section 2(11) of the Act, that the authorization cards Hoy solicited were invalid, and that there was no basis for a bargain- ing order under the principles enunciated in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). On April 14, 1997, the National Labor Relations Board issued a de- cision adopting the judge’s findings concerning the un- lawful discharge of the bargaining unit employees, but the Board reversed the judge’s findings concerning Hoy’s supervisory status, the validity of the authoriza- tion cards, and the appropriateness of a bargaining order.1 Thus, the Board found that Hoy was not a stat- utory supervisor, that he should be offered reinstate- ment and backpay along with the rest of the bargaining unit, that the authorization cards he solicited were valid, and that the cards demonstrated that a majority of the employees in the unit wished to be represented by the Union. The Board further found that, because of the Respondent’s egregious unfair labor practices, a bargaining order was presumptively appropriate. The Board, however, did not order the Respondent to bargain with the Union because of the need to re- solve a conflict in the hearing testimony as to facts concerning the Respondent’s allegation that union offi- cials had engaged in picket line misconduct. The Re- spondent claims that the alleged misconduct precludes the issuance of a bargaining order under the doctrine set forth by the Board in Laura Modes Co., 144 NLRB 1592 (1963). The Board remanded the matter to the judge for the purpose of making credibility resolutions concerning the conflicting testimony, and findings of fact and conclusions of law concerning the Respond- ent’s defense based on Laura Modes Co. On May 7, 1997, the judge issued his supplemental decision. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an answer- ing brief. The Board has considered the supplemental decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions set forth in the supplemental decision, and to issue the Order set forth below,3 which super- sedes the order previously entered in this proceeding.4 VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00324 Fmt 0610 Sfmt 0610 D:\NLRB\324.039 APPS10 PsN: APPS10 325 CASSIS MANAGEMENT CORP. 4 Member Higgins joins the majority in affirming the judge’s find- ing that there is no credible evidence of any picket line misconduct, and in denying the Respondent’s motion for reconsideration and to reopen the record. However, he continues to adhere to his earlier dis- senting view of this case. Thus Member Higgins finds that Donald Hoy was a supervisor and that union authorization cards cannot be used to support a bargaining order. See Cassis Management Corp., supra, Member Higgins dissenting. 5 The Respondent excepts to the judge’s failure to find that Union Official Formisano threatened to suspend employee Reyes’ pension checks and that thereafter Reyes’ pension payments were, in fact, suspended. We find no merit in this exception. Any such alleged threats are beyond the scope of the Board’s remand, which was for the express purpose of consideration of alleged death threats directed at Reyes or other employees. In any event, the record indicates that any cessation of Reyes’ pension payments that may have occurred were in accord with the terms of the Union’s pension plan. 6 If this 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.’’ In Laura Modes, the Board held that where a union evidences total disinterest in enforcing its rights through the peaceful legal process provided by the Act and instead resorts to violence, the Board will refuse to issue a bargaining order, even though the employer has violated the Act. Here, the judge found, based on his credibility findings, that no agent of the Union or prounion employee engaged in any picket line mis- conduct. Specifically, the judge discredited the testi- mony of the Respondent’s witnesses and found that no threats were made by union officials or agents to kill or physically harm employees Reyes and Jusino, who had crossed the Union’s picket line in order to perform work for the Respondent. As stated in footnote 2, supra, there is no basis for reversing the judge’s credi- bility resolutions. Therefore, we find that there is noth- ing to preclude a bargaining order under the doctrine set forth in Laura Modes, supra.5 Accordingly, based on the judge’s credibility find- ings in his supplemental decision and our own findings in our prior decision summarized above, we conclude that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union on April 4, 1996, and we shall order the Re- spondent to bargain with the Union as the exclusive representative of the employees in the bargaining unit. ORDER The National Labor Relations Board orders that the Respondent, Cassis Management Corporation, Dobbs Ferry, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting Service Employees Inter- national Union, Local 32E, AFL–CIO or any other union. (b) Refusing to recognize and bargain with the Union as the exclusive collective-bargaining represent- ative of its employees in the following appropriate unit: All full-time and regular part-time cleaning, paint- ing, and maintenance workers employed by the Employer at its facility located at 200 Beacon Hill Road, Dobbs Ferry, New York, excluding all managers and supervisors as defined in the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Charles Allien, Louis Cioffi, Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow, full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Charles Allien, Louis Cioffi, Nicholas Michel, Joe Elias Moody Jr., Charles W. Morrow, and the estate of Donald Hoy, whole for any loss of earn- ings and other benefits suffered as a result of the dis- crimination against them in the manner set forth in the remedy section of the judge’s decision. (c) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful dis- charges of Charles Allien, Louis Cioffi, Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow, and within 3 days thereafter notify them in writing that this has been done and that the discharges will not be used against them in any way. (d) On request, recognize and bargain with the Union as the exclusive collective-bargaining represent- ative of its employees in the appropriate unit concern- ing wages, hours, and other terms and conditions of employment and, if an understanding is reached, em- body the understanding in a signed agreement. (e) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its Dobbs Ferry, New York facility copies of the at- tached notice marked ‘‘Appendix.’’6 Copies of the no- tice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00325 Fmt 0610 Sfmt 0610 D:\NLRB\324.039 APPS10 PsN: APPS10 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since April 11, 1996. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps the Respondent has taken to com- ply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT discharge or otherwise discriminate against any employee for supporting Service Employ- ees International Union, Local 32E, AFL–CIO or any other union. WE WILL NOT refuse to recognize and bargain with Service Employees International Union, Local 32E, AFL–CIO as the exclusive collective-bargaining rep- resentative of employees in the following appropriate unit: All full-time and regular part-time cleaning paint- ing, and maintenance workers employed at our fa- cility at 200 Beacon Hill Road, Dobbs Ferry, New York, excluding all managers and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Charles Allien, Louis Cioffi, Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow, full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Charles Allien, Louis Cioffi, Nich- olas Michel, Joe Elias Moody Jr., Charles W. Morrow, and the estate of Donald Hoy, whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, with interest. WE WILL, on request, recognize and bargain with Service Employees International Union, Local 32E, AFL–CIO as the exclusive collective-bargaining rep- resentative of our employees in the appropriate unit concerning wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, WE WILL embody the understanding in a signed agreement. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharges of Charles Allien, Louis Cioffi, Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow and WE WILL, within 3 days there- after, notify them in writing that this has been done and that the discharges will not be used against them in any way. CASSIS MANAGEMENT CORPORATION Ian Penny, Esq. and Lauri Kaplan, Esq., for the General Counsel. Robert Ziskin, Esq. and Stacey Ziskin, Esq., for the Respond- ent. Mathew N. Persanis, Esq., for the Charging Party. SUPPLEMENTAL DECISION RAYMOND P. GREEN, Administrative Law Judge. On April 14, 1997, the National Labor Relations Board (the Board) issued its decision in this case wherein it found that the Em- ployer had violated the Act in certain respects. As part of that decision, the Board remanded a portion of the case to me for further determination. In this regard, the Board noted that two employees, Carlos Reyes and Israel Jusino, were told by a union official at the picket line that he wanted to kill them. This was denied by the Union’s witnesses and the Board remanded this question for a credibility finding. I have reviewed again the relevant portions of the tran- script and have considered the briefs previously filed by the parties. I have also considered the demeanor of the witnesses in making the following conclusions. (In conjunction with the transcript and my own notes taken at the hearing, I recall these witnesses, notwithstanding that their testimony was taken on July 31 and August 1, 1996.) As the previously filed briefs dealt with this contention, there is no need for further briefing on this issue. Therefore, based on the record as a whole, the briefs filed by the parties and my observation of the demeanor of the witnesses, I make the following find- ings. VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00326 Fmt 0610 Sfmt 0610 D:\NLRB\324.039 APPS10 PsN: APPS10 327 CASSIS MANAGEMENT CORP. Both of the witnesses presented by the Respondent were hired as replacements for the illegally discharged employees. One of them, Carlos Reyes, had previously worked for the employer and indicated that he had received lots of favors from George Cassis in the past. The testimony of George Cassis also indicated that there was some animosity between Hoy and Reyes. Reyes testified that he was threatened every day with statements by the pickets and by union officials to the effect that they wanted to kill him. He pointed specifically to An- thony Formisano, a business representative, as being one of the people who made this threat. Reyes also testified that Formisano made a threat to kill him, when handing him a piece of paper which was a charge by the Union. (R. Exh. 13.) In the latter regard, Reyes testified that a policeman was present when he got this paper. Jusino testified that that one or more of the people on the picket line said, ‘‘he was going to kill one of—he want to poke us.’’ He went on to testify that the pickets called Reyes and old man and said that he was going to lose his check. According to Jusino, statements were made to himself and Reyes almost every day for about 2 weeks after the picketing started. When asked if he recognized Formisano in the court- room, Jusino said that he did. However, when asked if Formisano made the threats, Jusino said that he did not. When asked who made the threats to kill or the comment about poking, Jusino said that it ‘‘was a colored guy who was saying every day that he wanted to kill one of you. He wanted to poke us.’’ Formisano and Union Business Agent Angel Figueroa tes- tified that they supervised the picketing and were there al- most every day. Both credibly denied making any threats to kill either Reyes or Jusino. Both credibly testified that no such threats were made in their presence by any of the other people on the picket line. With respect to the charge noted above, Formisano testified that when he tried to hand it to Reyes, the latter became very agitated and a policeman came over to explain to Reyes that all he (Formisano) wanted was to hand him the piece of paper. The General Counsel called police officers Curt Giacobbe and Gregory Vince to testify in this matter. Both testified that as far as they observed, the picketing was peaceful and without any incidents of threats or violence. Officer Giacobbe testified to the incident when Formisano gave the paper to Reyes and his testimony was that Formisano made no threats during that incident. Officer Vince testified that he was dispatched to the picket line on three occasions, once when it was reported that the pickets were on the property and the other two times when it was reported that there was some blockage of entrances. In describing what he saw when he arrived, Officer Vince testified that he saw ‘‘a peaceful demonstration of numerous picketers standing on the street area.’’ There was no indica- tion in his testimony, or in any other testimony, that Reyes and Jusino had ever complained to the police about alleged threats of physical harm or alleged threats to kill them. In conclusion, I do not credit the testimony of Reyes and Jusino about the alleged threats. VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00327 Fmt 0610 Sfmt 0610 D:\NLRB\324.039 APPS10 PsN: APPS10