Panelrama Centers, Inc.

PANELRAMA CENTERS Panelrama Centers, Inc. and Local 456, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO. Case 2-CA-22972 September 22, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On May 22, 1989, Administrative Law Judge D. Barry Morris issued the attached decision. The Charging Party filed exceptions and a supporting 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, I 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, Panelrama Centers, Inc., Peekskill, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Charging Party has excepted to certain credibility findings made by the administrative law judge It is well settled that the Board will not displace an administrative law judge's credibility resolutions that are based on his observation of demeanor unless a clear preponderance of all the relevant evidence convinces us that they are correct Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F.2d 362 (3d Cir. 1951). Likewise, the Board has held consistently that when "credibility resolu- tions are not based primarily upon demeanor . . . the Board itself may proceed to an independent evaluation of credibility" J. N. Ceazan Co, 246 NLRB 637, 638 fn 6 (1979), and cases cited therein When the de- meanor factor is diminished , the choice between conflicting testimony rests not only with demeanor, but also on the weight of the evidence, established or admitted facts, inherent probabilities, and reasonable infer- ences drawn from the record as a whole El Rancho Market, 235 NLRB 468, 470 (1978), enfd 603 F 2d 223 (9th Cir 1979) We have examined the record carefully and find no basis under either standard for reversing the judge's credibility resolutions. See Garrett Railroad Car & Equipment, 244 NLRB 842 fn 1 (1979). Burt Pearlstone, Esq., for the General Counsel. Joseph P. Carey, Esq. (McCarthy, Fingar, Donovan, Drazen & Smith), of White Plains, New York, for the Re- spondent. Wendell Shepherd, Esq. (Roy Barnes, P.C.), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE D. BARRY MORRIS, Administrative Law Judge. This case was heard before me in New York City on January 711 18 and 19, 1989. Upon a charge filed on August 8, 1988,' a complaint was issued on September 22, alleging that Panelrama Centers, Inc. (Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). Respondent filed an answer denying the commis- sion of the alleged unfair labor practices. The parties were given full opportunity to participate, produce evidence, examine and cross-examine witnesses, argue orally, and file briefs. Briefs were filed by all the parties on March 24, 1989. Upon the entire record of the case, including my ob- servation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Respondent , a New York corporation, with an office and place of business in Peekskill, New York, is engaged in the business of selling home improvement merchan- dise. It annually purchases and receives at its New York facility goods valued in excess of $50,000 from firms lo- cated outside the State of New York. Respondent admits that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and I so find. In addition, Respondent admits, and I so find, that Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues are: 1. Were Denise Enea, the wife of Respondent's owner, and Salvatore Enea, the owner's father, supervisors or agents within the meaning of the Act? 2. Did Respondent verbally abuse its employees for demonstrating support for the Union? 3. Did Respondent unlawfully discharge its employee, Joseph Policastro, and unlawfully refuse to reinstate him? B. The Facts 1. Events of July 12 In 1986 the Union filed a representation petition to represent Respondent's drivers, yardmen, and counter- men. An election was held on November 22, 1986, and the Union was certified on May 14, 1987. The parties ne- gotiated for a collective-bargaining agreement but no agreement was reached. Pursuant to a petition for decer- tification, on July 12, 1988, an election was held. Joseph Policastro served as the observer on behalf of the Union. Prior to that day Respondent's president, Edward Enea, was not aware of Policastro's support for the Union. Of the five votes cast, one vote was for the Union, two ' All dates refer to 1988 unless otherwise specified 296 NLRB No. 91 712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were opposed to the Union, and two votes were chal- lenged by Policastro. Policastro testified that immediately after the election, he walked into the sales office at which time Denise Enea, Edward's wife, screamed obscenities at Policastro and told him that he had "ruined their lives." Policastro testified that Salvatore Enea, Edward's father, also screamed obscenities at him . Policastro further testified that he then told Edward that "I was going to leave, that I didn't have to listen to this." Edward then suggest- ed to Policastro that they both go to an adjacent room, away from the commotion . Policastro testified that Edward told him how upset he was that he supported the Union and that Edward said to him that "I suppose [the Union is] taking care of you." Policastro replied, "Maybe, maybe not." Policastro testified that he then told Edward "I was leaving and that I would be in touch with him." Policastro testified that he then gave Vincent Bejgrowicz, another employee, his keys and said, "you'd better hold these because I don't know what's going on," after which Policastro went to the timeclock and punched out at approximately 12:30 p.m. Policastro conceded that on all other occasions when he took time off he did not turn in his keys. Policastro testified that he called Edward that evening and asked "if he wanted me to come in the following day." Policastro stated that Edward answered him that he did not want him to come in and that "he had already worked out replacing me and that he didn't feel he could trust me anymore." During Policastro's testimony concerning Salvatore swearing at him , Policastro was asked whether he thought he was fired . Policastro emphatically stated that he did not think that he was being fired . He further testi- fied that he knew that the only'one that could have fired him was Edward, and that as of 12:30 p.m. he knew that he had not been discharged. Salvatore Enea is semiretired and works part-time at Respondent's facility, earning $5000 per year. He testi- fied that on those occasions when his son is not at the store, if necessary, he passes on Edward's instructions to the other employees. He testified that on the day of the election he did not say anything to Policastro prior to Policastro's leaving. Denise Enea does not work for Respondent and has no ownership interest in the Company. She comes to the store frequently to bring lunch for her husband or her son. She testified that after the election she heard Poli- castro tell her husband that "I'm leaving." She stated that she then said to Policastro "how could you do this" and that "you ruined our lives." She conceded that she was yelling at Policastro "horribly." Vincent Bejgrowicz testified that on the occasions when Edward is not at the store that he is in charge. He testified that after the election, Policastro told Edward "I guess I'll be going now." When Edward asked him why, Policastro answered "you won your battle." Bejgrowicz testified that at that point Denise had been crying and she yelled at Policastro, "how could you do this to us?" Bejgrowicz further testified that several min- utes later Policastro gave him his keys and soon thereaf- ter he heard the timeclock being punched. Paul Bienenstock testified that after the election he saw Policastro throw his keys on the counter where Bejgrowicz was working and Policastro told Bejgrowicz "I guess I'm not going to need these anymore ." He then saw Policastro go to the timeclock and punch out. Edward testified that he is the sole shareholder of Re- spondent. He testified that on those occasions when he is absent from the store he leaves instructions as to what the employees are to do. He testified that prior to the preelection conference on July 12, he was not aware that Policastro had any relationship with the Union. Edward testified that after the election, Policastro told him "I guess I'll be going." After asking where he was going, Edward told him "we had deliveries to make that afternoon." At that point Denise said, "how could you do this to a friend" and "you ruined our life." Edward testified that Denise also "fired some obscenities" at Poli- castro. Edward and Policastro then went to an adjoining room at which time Edward again told Policastro that there were deliveries which had to be made that after- noon. Policastro merely replied that "he would be leav- ing." Edward testified that since Policastro had left he was required to make three deliveries himself that after- noon. Edward further testified that that evening Policastro called him and asked for his job back. Edward refused. Edward testified that he told Policastro that "he quit his job with me, surrendered his keys." Edward also testi- fied, "I told him I didn't hire people back that walk out on me." 2. Concluding findings as to supervisory or agency status of Denise and Salvatore Enea The testimony was uncontradicted that Denise was not an employee of Respondent nor did she have an owner- ship interest. She came to the store frequently to bring lunch for her husband or son and during those times would stay for 20 to 30 minutes and chat on a social basis. With respect to Salvatore , he was a part-time em- ployee and was not a supervisor . On occasions when Edward was absent Salvatore would pass on instructions left by Edward to other employees. 3. Concluding findings with respect to the events of July 12 While the testimony concerning the events of July 12 differs in some respects, in many respects the witnesses corroborate each other. Based upon all of the testimony, I find as follows: Edward first became aware that Poli- castro supported the Union at the preelection conference on July 12. Immediately after the election, Policastro and Edward entered the room where Denise was present. Denise screamed obscenities at Policastro and said such things as "how could you do this to us," and "you ruined our lives." While Policastro testified that Salva- tore also screamed at him, Salvatore denied saying any- thing to Policastro and Policastro 's testimony was not corroborated. I therefore find that General Counsel has not shown by a preponderance of the evidence that Sal- vatore made the alleged statements. PANELRAMA CENTERS Policastro then told Edward that he was leaving. Edward said that deliveries still had to be made that afternoon but Policastro again told Edward that he was leaving. At that point Policastro turned in his keys to Bejgrowicz and punched out the timeclock at approxi- mately 12:30 p.m. Policastro had never previously turned in his keys when he took time off. That afternoon Edward himself made three deliveries. That evening Policastro telephoned Edward and asked for his job back. Edward refused and told Policastro that he does not rehire people who walk out on him. The fol- lowing day Edward sent Policastro a letter detailing the events of July 12 and pointing out that "you knew that we had a full day of deliveries to make, and you were the only person available to make these deliveries." The letter further stated that Edward had the right to "refuse to rehire an employee who quits his/her job without giving any notice and in the middle of the work shift. I have never rehired a former employee under those cir- cumstances." C. Discussion and Conclusions 1. Supervisory and agency status The complaint alleges that Salvatore Enea was a statu- tory supervisor and agent of Respondent. I find that Sal- vatore performed no supervisory function. I have found however, that on occasions when Edward was absent, Salvatore passed on instructions which had been left by Edward. The question of Salvatore's supervisory or agency status comes up only in connection with his al- leged remarks to Policastro on July 12. I have already found that the General Counsel has not shown by a pre- ponderance of the evidence that Salvatore made those remarks. Accordingly, it is not necessary for me to decide whether or not Salvatore constituted a statutory supervisor or agent of Respondent. 2. Alleged violations of Section 8(a)(1) The complaint alleges that on July 12 Salvatore and Denise Enea verbally abused and remonstrated Respond- ent's employees for demonstrating support for the Union.2 I have already found that General Counsel has not shown by a preponderance of the evidence that Sal- vatore made the statements attributed to him. With re- spect to Denise, however, I have found that she made statements to Policastro such as "how can you do this to us" and "you ruined our lives." These statements imply that Policastro's support of the Union constituted an act of disloyalty to Denise and Edward Enea. The Board has held that such statements tend to coerce employees in the exercise of their Section 7 rights, and consequently violate Section 8(a)(1) of the Act. Paul Distributing Co., 264 NLRB 1378, 1382 (1982); Oscar Enterprises, 214 NLRB 823 (1974). Respondent is a small company with Edward the sole shareholder. Denise made the state- ments in Edward's presence and Edward did not repudi- 2 While the complaint also alleges that Edward Enea engaged in the same violation, the record does not support the allegation with respect to Edward Indeed, General Counsel's brief only specified that Salvatore and Denise were engaged in this alleged violation. 713 ate them. While Denise held no ownership interest in Respondent, nor was she an employee, the Board has held under similar circumstances that such statements are attributable to a respondent. See Superior Casting Co., 230 NLRB 1179, 1184 (1977); Berger Transfer & Storage, 253 NLRB 5, 12 (1980), enfd. 678 F.2d 679 (7th Cir. 1982); Hillside Ave. Pharmacy, 265 NLRB 1613, 1621 (1982). Accordingly, I find that Denise's statements to Policastro constitute a violation of Section 8(a)(1) of the Act. 3. Alleged violations of Section 8(a)(3) The complaint alleges that on July 12 Edward Enea discharged Policastro. The evidence is uncontroverted that shortly after the election on July 12 Policastro told Edward that he was leaving. Edward asked Policastro to stay, telling him that there were afternoon deliveries that had to be made. Policastro again told Edward he was leaving and he turned in his keys, something which he had never previously done when he wished to take time off. He then punched out the timeclock at approximately 12:30 p.m. When asked whether he felt he had been dis- charged, he stated several times that when he punched out he knew that he had not been discharged. Accord- ingly, I find that at approximately 12:30 p.m. when Poli- castro punched out, he had not been discharged. To the contrary, he left even though he had been asked to stay by Edward, and even though he knew that afternoon de- liveries had to be made. Accordingly, the allegation is dismissed. The complaint also alleges that Respondent refused to reinstate Policastro. At approximately 8:30 p.m. on July 12 Policastro telephoned Edward and asked for his job back. Edward refused, telling Policastro that he does not rehire people who walk out on the job. The following day Edward sent a letter to Policastro which stated, in part, that "you knew that we had a full day of deliveries to make, and you were the only person available to make these deliveries." I find that Edward did not refuse to rehire Policastro because of his support for the Union. On the contrary, I find that Edward refused to rehire Policastro because he walked out in the middle of the day with deliveries still to be made. Edward then had to make three deliveries himself the afternoon of July 12.3 Accordingly, the allegation is dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By making remarks which implied that an employ- ee's support for the Union was disloyal to Respondent, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. a The record shows that an employee by the name of Brenner quit before the end of the day and was not rehired The record also shows that Frank Eichler had been the observer for the Union at a prior elec- tion and he was not discharged by the Respondent for his union activity. 714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practice constitutes an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate the Act in any other manner alleged in the complaint. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Panelrama Centers, Inc., Peekskill, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively accusing employees of disloyalty be- cause they engage in union activities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its facility in Peekskill, New York, copies of the attached notice marked "Appendix."5 Copies of the notice on forms provided by the Regional Director for Region 2, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees 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) 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 ORDERED that those allegations of the complaint in which no violations have been found are dismissed. 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. WE WILL NOT coercively accuse employees of disloy- alty for engaging in union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. PANELRAMA CENTERS, INC. 4 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. S 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."