Swing Staging Inc.

SSA'ING STAGING INC 56h Swing Staging Inc. and United Brotherhood of Car- penters and Joiners of America, Local 2946, AFL-CIO. Cases 2-CA-16500 and 2-CA- 16740 August 26, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENEI.I O, AND TRUESDALE On May 30, 1980, Administrative Law Judge Howard Edelman issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions 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 conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Swing Staging Inc., Bronx, New York, its officers, agents, succes- sors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Substitute the following for paragraph 2(b): "(b) Make Steve Vario, Sam Alvino, Neville Minott, Philip Boeckle, and Henry DeRuiter vhole for any loss of wages or other benefits that they may have suffered as a result of the discrimination practiced against them by paying each of them a sum equal to what they would have earned, less any net interim earnings, plus interest." 2. Delete from paragraph 2(f) the words "the re- ceipt of this Decision" and substitute therefor the words "this Order." 3. Substitute the attached notice for that of the Administrative Law Judge. i We halve modified the Administrative Law Judge's recommended Order to more fully conform to his findings We also modify the pro- posed notice to conform with the pro' isions of the recommended Order 251 NLRB No. 90 APPENDIX NoTICE To EMPLOYES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE Wl. I. NOT refuse to recognize and bar- gain collectively and in good faith, upon re- quest, with United Brotherhood of Carpenters and Joiners of America, Local 2946, AFL- CIO, herein called the Union, as the exclusive bargaining representative of all full-time and regular part-time production and maintenance employees employed by us, with respect to rates of pay, hours, and other terms and condi- tions of employment. WE WILL. NOT discharge or otherwise dis- criminate against employees because of their activities on behalf of the Union or any other labor organization. WE WILL NOT interrogate employees con- cerning their activities on behalf of the Union or any other labor organization. WE WIt.L NOT threaten employees with a cessation of operations and other reprisals in order to discourage them from joining the Union or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL offer Steve Vairo immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equiva- lent position without prejudice to his seniority or other rights and privileges. WE WILL make Steve Vairo, Sam Alvino, Neville Minott, Philip Boeckle, and Henry DeRuiter whole for any loss of wages or other benefits that they may have suffered as a result of our discrimination against them by paying each of them a sum equal to what they would have earned, less any net interim earnings, plus interest. WE WILL, upon request, recognize and bar- gain collectively and in good faith with the Union as the exclusive bargaining representa- tive of the employees in the appropriate unit with respect to rates of pay, hours, and other terms and conditions of employment, and, if an agreement is reached, embody same in a signed contract. SWING STAGING INC. SWING STAING IN 563 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMI NI OF1 HI CASE HOWARD EI)ILMAN, Administrative Law Judge: This case came to hearing before me on December 17 and 18, 1979, and January 28, 1980, in New York, New York. The complaint in Case 2-CA-16500 issued on July 20, 1979, upon a charge filed on June 7, 1979, by United Brotherhood of Carpenters and Joiners of America, Local 2947, AFL-CIO, herein called the Union. The complaint and order ammending complaint in Case 2- CA-16740 issued on October 22 and December 11, 1979, respectively, upon a charge filed by the Union on Sep- tember 14, 1979.' The consolidated complaint alleged inter alia that Re- spondent Swing Staging Inc., herein called Respondent, violated Section 8(a)(5) of the Act by refusing to recog- nize and bargain with the Union following its certifica- tion on August 17, 1979, as the collective-bargaining rep- resentative in a unit of all full-time and regular part-time production and maintenance employees employed by Re- spondent. The complaint also alleged that Respondent violated Section 8(a)(3) of the Act by discriminatorily laying off five unit employees during the months of Jan- uary, February, and March 1979, and violated Section 8(a)(1) of the Act by unlawfully interrogating and threat- ening its employees. Answers were filed by Respondent denying jurisdic- tion of Respondent by the Board and denying all allega- tions of the complaints which alleged the commission of unfair labor practices by Respondent. On January 28, 1980, during the course of the hearing, counsel for Respondent "for the limited purpose of these proceedings" moved to amend the answer to the above complaint by admitting all allegations of the complaint, except those allegations alleging conclusions that by the acts and conduct alleged therein Respondent violated Section 8(a)(1), (3), and (5) of the Act, which were denied. Respondent counsel's motion to amend its answer was granted. All parties to this proceeding were advised by me that in view of Respondent's admissions there would appear to be no factual issues to litigate. Counsel for the Gener- al Counsel rested. Counsel for the Union and for Re- spondent submitted no evidence. 2 The hearing which commenced on December 17. 1979, originally in- volved only the complaint in Case 2-CA-16500. However, during the course Of the hearing Respondent Swing Staging Inc. moved to stay this hearing pending a determination of Respondent's motion to consolidate Case 2-CA-16500 with Case 2-CA 16740 This motion was opposed by counsel for the General Counsel and counsel for the Union. Respondent's motion was denied on December 17. 1979, by me. Subsequently. on Janu- ary 8 1980. counsel for the General Counsel moved to consolidate Case 2-CA-16500 with Case 2-CA-16740. Counsel for the General Counsel alleged in his motion that both cases raised common issues of fact and law and that consolidation would avoid unnecessary cost and delay All parties joined in this motion On January 24. 1980. by mailgram I granted the above motion by counsel for the General Counsel and ordered that said cases be consolidated. I On December 17 and 18. Charles Claytor. a witness called by coun- sel fir the General Counsel gave testimony. In view of the amended answer by counsel for Respondent described above, the estimony of Claytor was not considered by me in making findings of fact and conclu- sions oif law. Accordingly, there being no disputed issues of fact, this case is submitted for decision on the admissions by Respondent to the allegations of the consolidated com- plaint, upon which I make the following: FINI)IN(;S OF FACI AND CONCI.USIONS OF LA\w: t I. JURISDICTION 1. At all times material herein, Respondent has been a New York corporation with an office and place of busi- ness in Bronx, New York, where it has been at all times material herein engaged in the servicing and supply of scaffolds. Respondent, during the past year, in the course and conduct of its operations, which period is representative of its operations generally, purchased and received at its Bronx, New York, facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of New York. 2. Respondent is now, and has been at all times materi- al herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE I ABOR ORG;ANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, Local 2947, AFL-CIO, herein called the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act. IIll. IHE A.LEGED UNFAIR LABOR PRACTICES A. Supervisory Status At all times material herein, John Pantanelli was the president of Respondent, and is now, and has been, at all times material herein a supervisor of Respondent acting on its behalf. B. The Unit All full-time and regular part-time production and maintenance employees employed by Respondent at its facility located at 775 Tiffany Street, Bronx, New York, excluding office clerical employees, salesmen, guards, and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. C. The 9(a) Status 1. On March 2, 1979, the employees of Respondent, in the unit described above in section B, participated in a secret-ballot election conducted under the supervision of the Regional Director for Region 2 wherein a majority of the valid votes counted plus challenged ballots were cast for the Union, thereby designating and selecting said Union as their representative for the purposes of collec- tive bargaining with Respondent. On August 17, 1979, ' Counsel fior the General Counsel submitted a brief in support of the consolidated complaint. Counsel fir he Union and counsel for Respond- ent did not file briefs. SWING STAGING INC 565 the Union was certified as the exclusive collective-bar- gaining representative of the employees in said unit. 2. At all times since August 17, 1979, the Union, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in the unit described herein for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employ- ment. D. The Request To Bargain On or about September 12 and October 23, 1979, the Union requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of Respondent's employees, in the unit described above in section B, with respect to their rates of pay, wages, hours of employment, and other terms and conditions of employment. E. The Unlawful Conduct 1. Since on or about September 12, 1979, Respondent failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representa- tive of its employees in the unit described above. 2. (a) On January 26, 1979, Respondent laid off em- ployee Steve Vairo and since that date and until March 5, 1979, has failed and refused to reinstate or offer to re- instate Vairo to his former position of employment. (b) On February 2, 1979, Respondent laid off employ- ee Sam Alvino and since that date and until March 5, 1979, has failed and refused to reinstate or offer to rein- state Alvino to his former position of employment. (c) On February 2, 1979, Respondent laid off employ- ees Neville Minott and Philip Boeckle and since that date and until on or about February 6, 1979, has failed and refused to reinstate or offer to reinstate Minott and Boeckle to their former positions of employment. (d) On February 2, 1979, Respondent laid off employ- ee Henry DeRuiter and since that date and until on or about February 7, 1979, has failed and refused to rein- state DeRuiter to his former position of employment. (e) On March 8, 1979, Respondent laid off employee Steve Vairo and since that date has failed and refused and continues to fail and refuse to reinstate or offer to reinstate Vairo to his former position of employment. (f) Respondent engaged in the conduct described above in subparagraphs (a) through (e) because the em- ployees named therein joined, supported, and assisted the Union, and engaged in concerted activities for the pur- pose of collective bargaining or other mutual aid or pro- tection, and in order to discourage employees from en- gaging in such activities or other concerted activities for the purpose of collective bargaining or other mutual aid and protection. 3. On various occasions between January 26, 1979, and February 2, 1979, and between March 5, 1979, and April 30, 1979, Respondent, acting through John Pantanelli, its president and an agent of Respondent acting on its behalf, did the following: (a) Interrogated its employees at Respondent's facility concerning their union activities. (b) Threatened its employees at Respondent's facility that Respondent would go to any lengths to keep the Union out and would cease operations if the employees selected the Union to represent them. 4. By the acts and conduct described above in section E, paragraphs 1, 2, and 3, and by each of said acts, Re- spondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act, and Respondent thereby has been engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 5. By the acts and conduct described above in section E, paragraph 2, and by each of the said acts, Respondent has discriminated, and is discriminating, in regard to the hire, tenure, or terms and conditions of employment of its employees, thereby discouraging membership in a labor organization, and Respondent therebv has been en- gaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. By the acts and conduct described above in section E, paragraph , and by each of the said acts, Respondent has failed and refused and is failing and refusing to bar- gain collectively and in good faith with the Union, which is the bargaining representative of the employees described above, and Respondent thereby has been en- gaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent violated Section 8(a)(1), (3), and (5) of the Act, it is recommended that they cease and desist therefrom and take certain affirma- tive action necessary to effectuate the policies of the Act. It is recommended that Respondent be directed to recognize upon request and bargain collectively and in good faith upon request with the Union as the exclusive bargaining agent of the employees in the appropriate unit, about terms and conditions of their employment and, if an agreement is reached, embody the agreement in a signed contract. To remedy Respondent's discriminatory layoffs it will be recommended that Respondent be directed to offer reinstatement to Steve Vairo and to make whole Steve Vairo, Sam Alvino, Neville Minott, Philip Boeckle, and Henry DeRuiter for any loss of wages or benefits they may have sustained from the date of their layoff to the date of Respondent's offer of reinstatement. Loss of earnings shall be computed as prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), plus inter- est as set forth in Isis Plumbing & Heuating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). On the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: SWING STAGING INC 565 566 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD ORDER 4 The Respondent Swing Staging Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively and in good faith upon request with United Brotherhood of Carpenters and Joiners of America, Local 2947, AFL- CIO, herein called the Union, as the exclusive bargaining representative of all full-time and regular part-time pro- duction and maintenance employees employed by Re- spondent, with respect to rates of pay, hours, and other terms and conditions of employment. (b) Discharging or otherwise discriminating against employees because of any activities on behalf of the Union or any other labor organization. (c) Interrogating employees concerning their activities on behalf of the Union or any other labor organization. (d) Threatening employees with a cessation of oper- ations and other reprisals in order to discourage them from joining the Union or any other labor organization. (e) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer to Steve Vairo immediate and full reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges. 4 In the event no exceptions are filed as provided in Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, 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 waived for all purposes. (b) Make whole Steve Vairo, Sam Alvino, Neville Minott, Philip Boeckle, and Henry DeRuitel, for any loss of wages or other benefits that they may have sus- tained as a result of Respondent's discrimination against them. (c) Upon request, recognize and bargain collectively and in good faith with the Union as the exclusive bar- gaining representative of the employees in the appropri- ate unit with respect to rates of pay, hours, and other terms and conditions of employment and, if an agreement is reached, embody same in a signed contract. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying all pay- roll records, social security reports, bank records, finan- cial statements, work orders, sales records, cash receipt and disbursement records, and all other records neces- sary to analyze and determine the amount of backpay due, rights of employment, and compliance with the bar- gaining obligations under the terms of this Order. (e) Post at its premises in Bronx, New York, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (f) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 7 In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."