Operating Engineers Local 295-295C (Weather Wise)

OPERATING ENGINEERS LOCAL 295-295C (WEATHER WISE) 273 Local 295-295C, International Union of Operating Engineers, AFL-CIO and Weather Wise Condi- tioning Corp. Weather Wise Conditioning Corp. and Local 295- 295C, International Union of Operating Engi- neers, AFL-CIO. Cases 29-CB-5941, 29-RM- 738, and 29-RC-6359 26 November 1986 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BA13SON On 4 August 1986 Administrative Law Judge El- eanor MacDonald issued the attached decision. The Charging Party filed exceptions and a support- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge"s rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Local 295- 295C, International Union of Operating Engineers, AFL-CIO, Brooklyn, New York, its officers, agents, and representatives, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the objections to the election held on 29 March 1985 are overruled. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have" been cast for Local 295-295C, Interna- tional Union of Operating Engineers, AFL-CIO, and that it is the exclusive collective-bargaining representative of the employees in the' following appropriate unit: All mechanics and helpers, including shop em- ployees, employed by the Employer at its Brooklyn, New York location, excluding all r The Charging Party has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule,an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Way Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings office clerical employees, guards and supervi- sors as defined in the Act. Beatrice Kornbluh, Esq., for the General Counsel. Harry Turk, Esq. (Epstein, Becker, Borsody & Green, P. C.), of New York, New York, for the Employer. Michael J. Comerford, Esq. (Driscoll & Delaney), of New York, New York, for the Union. DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. These consolidated cases were tried in Brooklyn, and New York, New York, on 30 September and 9 and 10 December 1985. The order consolidating the cases and referring the representation case to the Board issued on 6 June 1985. The complaint issued on 31 May 1985, alleges that the Union in violation of Section 8(b)(1)(A) threat- ened bodily injury and other harm to employees if they did not support the Union in a strike. In the representation case, the RM petition was filed on 12 March 1985 and an election (directed by the Re- gional Director) was conducted on 29 March 1985. The vote was nine for and eight against union representation. The objections in issue are that property of employees and of the employer was damaged shortly before the election, the Union threatened employees with harm if they did not vote for it in the election and the Union threatened employees with harm if they failed to support the Union. FINDINGS OF FACT 1. JURISDICTION The Company, a New York corporation with an office in Brooklyn, New York, is engaged in the fabrication and installation of air-conditioning equipment. The Com- pany annually installs air-conditioning' equipment for en- terprises in New York that purchase goods valued in excess of $50,000 directly in interstate commerce. I find that the Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The record shows that the .employees were on strike from 4 to 15 March 1985. Employee Ralston Cuffy was originally a supporter of the Union and was elected a union representative during the organizing drive. He participated in the strike. Cuffy attended a union meeting at Aldo's coffeeshop after the strike began. Most of the employees were there and three union agents were present, William Guarino, Charles Clemenza, and Peter Clemenza. The discusson centered around the Union's effort to get Bruce Kellman, Respondent's president, to sign a contract. A second meeting was held the next day at Aldo's. All the striking employees attended. Cuffy testified that he could not recall any details of specific meetings because there were 282 NLRB No. 44 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so many meetings. At one meeting, employee Ramon Acosta asked whether the striking employees were eligi- ble for unemployment compensation. The union agents said yes. Then Cuffy found out that the strikers were not eligible until after a waiting period and he mentioned this at one of the meetings. He was "argued down" by the other employees. Because the men needed money, Cuffy mentioned the possibility of going back to work. The union agents said the employees should be patient, that the boss would sign. In the evening after this meeting, Guarino called him at home and said, "It wasn't cool what you guys pulled today because you're breaking up the morale of the guys." Cuffy said no threats were made to him, but one day during a union meeting Guarino said if anyone went back to work he might fall off a ladder or something. When asked if he took this comment to mean anything, Cuffy answered "basically, no." Cuffy could not say when this occurred. The night before the election Cuffy went to a union dinner at Aldo's with employees Ronald Jones and Ramon Acosta. After the dinner, he went to a dinner given by the Company at a Chinese restaurant a few blocks away. Cuffy drove there in his car with Jones and Acosta; he remained about 1-1/2 or 2 hours. When he left, Cuffy found that he had a flat tire. He was later told by the repairman that his tire had been cut. There is no evidence, concerning who, if anyone, damaged Cuffy's tires. I credit Cuffy's testimony and I, therefore, find that Guarino said that if anyone went back to work, he might fall off a ladder. Employee Dennis Burgess testified that he did not join the picketing but continued to work for the first 3 days of the strike. One day during the strike, his car was parked close to the shop; at the end of the workday, air had been let out of his tires. That night, Burgess spoke to employee Strudwick Taffe by telephone; Taffe was a strong supporter of the Union. The two men spoke about the Union. The next day, Burgess told Bruce Kellman's ,son, Howard Kellman, that the striking employees were not pleased that they were sacrificing on the picket line but that Burgess would then receive the benefits they had fought for. Burgess also, thought it was unusual for his tires to be flat. He told Howard Kellman he would stay out until the strike was over. Burgess testified that he joined the picket line so he could be part of the union negotiations. Burgess attended several union meetings but he never heard anything about falling off a ladder or his family being hurt. Burgess did not testify that he re- ceived any threats. There is no evidence that anyone connected with the instant matter let the air out of his tires. Employee Ronald Jones testified that he attended two or three union meetings at Aldo's before the strike began. Union benefits, such as medical coverage and the like, were discussed. At one of these meetings, Guarino said, "if we went back to work for the boss that we would fall off ladders. There would be accident[s] and we'd be a bunch of whores if we went back to work." At first, Jones testified that this comment was made "at one meeting" but then he changed his testimony to say it was made at other meetings. He also changed his testi- mony to say the threat was made after the strike began. Jones picketed during the first week of the strike; during the second week, Guarino got him a job at another shop. Jones stated that he heard rumors of threats to Burgess. I will not rely on Jones' testimony. On the witness stand, his testimony seemed given by rote and without reflec- tion; further Jones was easily led to change his testimo- ny. Mechanic Ramon Acosta testified that on the day the strike began, he was working on a job at 498 Seventh Avenue where he was insulating a condenser top. On his way out to lunch with his helper, Acosta saw Guarino in the building lobby. Guarino told him that there was a strike and that "we would have to go." Acosta called the shop and Howard Kellman told him to pack up his tools and return to the shop. According to Acosta, when he went upstairs .to gather his tools, he noticed that the in- sulating work he had just completed had been "slashed." There was much testimony about the nature and extent of the damage; there is no evidence to connect the damage to any participants in the instant matter. On the first day of the strike Acosta attended .a union meeting at Aldo's. Acosta testified that the employees discussed tactics and the ways the Union persuades people to vote. Acosta could not recall who was talking because, "I wasn't paying much mind." The employees discussed "cracking heads" and hitting them, beating guys." Peter Clemenza said "we would suffer or our family would suffer." Acosta felt this was an indirect threat. He also heard rumors about property damage to employee's property. At the union meetings, Acosta asked Guarino who would compensate the employees to the strike. Guarino said the "unemployment" would do it. After Acosta later found out there was a 49-day wait- ing period and told Guarino about this, Guarino denied he had ever said strikers would be compensated by un- employment insurance. Acosta had an argument with Guarino and some of the employees about this. It is clear that no union employee threatened Acosta with bodily harm, even by his own account. I do not credit Acosta's testimony that employees were discussing violence at the Union's first meeting after the strike began. First Acosta' could not recall who talked about "cracking heads" and "hitting" because, by his own ad- mission, "I wasn't paying much mind." It is not reasona- ble to suppose that someone hearing a threat of violence could not recall which of his fellow employees had made the threat. Further, Acosta linked Peter Clemenza to these threats by stating that Clemenza said "we would suffer." According to Acosta, the discussion centered not around the strike but around the election. This is not supported by the testimony of other witnesses and is not in accord with the credited testimony of Cuffy. Finally, Acosta's demeanor while testifying evidenced anger and bias toward the Union. Thus, I shall not rely on' Acosta's testimony. Three employees testified that they attended many of the union meetings both before and during the strike and that they heard no threats of violence. These witnesses OPERATING ENGINEERS LOCAL 295-295C (WEATHER WISE) were Wilfred Brathwaite, Rigoberto Benitez, and- Jorge Sandoval. I credit their testimony. William Guarino is the treasurer and field agent of Local 295. He testified that he never made any statement about falling off a ladder nor threatened anyone if he failed to participate in the strike. In the second week of the strike, Cuffy told him some men needed work; Guar- ino then found jobs for Acosta and Jones. I credit Guar- ino's testimony about fording jobs for Acos,.a and Jones. As discussed above, I find that a union agent said at a meeting that if anyone went back to work he might fall off a ladder. This is a violation of Section 8(b)(1)(A) of the Act. Teamsters Local 107' (Virginia-Carolina Freight Lines), 123 NLRB 551 (1959), enfd. 273 F.2d 815 (D.C. Cir. 1959); Teamsters Local 810 (Kate's Art Supply), 268 NLRB 1378 (1984). CONCLUSIONS OF LAW 1. By threatening employees with physical harm if they did not support the Union during the strike, the Union violated Section 8(b)(1)(A) of the Act. 2. The General Counsel has not proved that any other violations of the Act were committed. REMEDY Having found that the Union has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. REPRESENTATION PROCEEDING The company's objections before me are: Objection 2: Property of employees whom the Union believed were planning to or would vote against Local 295, was damaged by representatives and/or agents of Local 295, acting on their behalf, shortly before the elec- tion in an effort to intimidate those employees and other employees to vote for the Union. Objection 3: Property of the employer was damaged by representatives and/or agents of Local 295, acting on their behalf, prior to the election in a manner designed to intimidate employees to vote for the Union. Objection 5: Representatives and/or agents of Local 295 acting on their behalf threatened employees of Weather Wise Conditioning Corp. and members of their families with harm if they failed to support Local 295. Objection 6: Representatives and/or agents of Local 295 acting on their behalf threatened employees of Weather Wise Conditioning Corp. and members of their families with harm if they failed to support Local 295. Discussion and Conclusions As discussed above, there is no evidence that any property damage either to the employees' or the employ- er's property was caused by employees or union agents. Further, I have not found that any threats of physical harm were made to employees concerning their vote for the Union. I have found above, based on Cuffy's testimony, that Guarino said that if anyone went back to work he might 275 fall off a ladder or something. This finding comports with the substance of the Company's Objection 6. The Company has the burden of proving that the threat by Guarino was made during the critical period after the election petition was filed on 12 March 1985. 1 There is no such proof in the record because Cuffy was unable to say when this statement was made. Further the totality of Cuffy's testimony shows that at first he sup- ported the strike and fulfilled whatever duties were re- quired of him as an elected employee representative. He was one of a delegation that met with Bruce Kellman to persuade him to sign a contract with the Union. This meeting occurred in the first week of the strike. He then became disenchanted with the Union because it had no strike fund and because the men could not begin collect- ing unemployment insurance benefits immediately. At that point, he told the men he was no longer their repre- sentative. The strike did not hurt Cuffy too much be- cause he had a second income.' However, other employ- ees were in great need of money; the record shows that these employees were referred to jobs by Guarino at the beginning of the second week of the strike. From all these facts, I infer that the discussions about going back to work took place early in the strike when Guarino was still hopeful Kellman would sign a contract and could counsel patience to those employees who complained that they needed to work. There would be no reason to talk about the consequences of returning to work once Guarino had referred the needy employees to interim employment. Thus, I conclude that Guarino's statement about falling off a ladder was made in the first week of the strike between 4 and 11 March 1985. This was before the election petition was filed. To sum up, the Company has not met its burden of proving when Guarino made his statement about falling off a ladder. In the alternative, ,l find that the statement was made before 12 March 1985 when the petition was filed. Thus, there is no basis for setting aside the election. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Local 295-295C, International Union of Operating Engineers, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining or coercing any employee in the exer- cise of rights guaranteed by Section 7 of the Act by threatening employees with physical harm if they do not support the Union during a strike. (b) Restraining or coercing any employees' in any like or related manner. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 1 Ideal Electric & Mfg., 134 NLRB 1275, 1278 (1961). 2 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at business offices and meeting halls copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional- Director for Region 29, after being signed by the - Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in-conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Director for Region 29, signed copies of said notice for posting by Weather Wise Corp., if it be willing, `at places where notice to employ- ees of Weather Wise are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. IT IS FURTHER RECOMMENDED that the Board issue the appropriate certification results. ' 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 Nation- al 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 AND MEMBERS 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 protect- ed concerted activities. WE WILL NOT threaten, employees with physical 'harm if they do not support a strike. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. LOCAL 295-295C, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO