Panelrama Centers, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1989

296 N.L.R.B. 711 (N.L.R.B. 1989)

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."