Northwind Maintenance And Painting Co., Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1986

281 N.L.R.B. 317 (N.L.R.B. 1986)

NORTHWIND MAINTENANCE CO.
Northwind Maintenance and Painting Co., Inc. and
Service Employees International Union, Local
32E, AFL-CIO. Case 29-CA-11681
8 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 24 April 1986 Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief
and a motion for reconsideration, rehearing, and/or
reopening of the record. The General Counsel filed
a brief in opposition to the Respondent's motion.'
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 briefs and has
decided to affirm the judge's rulings,2 findings, and
conclusions3 and to adopt the recommended Order
as modified.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
1 In its motion, the Respondent requests that the record be reopened to
receive the testimony of its officer , Harold Frischman , concerning factual
matters relevant to the unfair labor practices found by the judge. In his
affidavit appended to the motion , Frischman asserts that he was unavail-
able to testify at the hearing because of the serious illness of his mother-
in- law In denying the Respondent's motion, we note that the Respond-
ent first raised the matter of Frischman 's availability some 5 months after
the hearing and following the issuance of the judge 's decision . In these
circumstances, we find the Respondent 's motion to be untimely, and it is
denied . Hospital Employees District 1199E (Johns Hopkins), 273 NLRB 319
(1984).
a The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cit. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
We agree with the judge's finding that the Respondent 's payroll
records support a reasonable factual inference that the Respondent en-
gaged newly hired employees to replace those laid off earlier in violation
of Sec . 8(a)(3). In so doing , we find it unnecessary to rely on the judge's
discussion of rebuttable presumptions in sec . II,C of his decision.
In finding that the Respondent failed to rebut the General Counsel's
prima facie case of unlawful discrimination, we note that the judge im-
plicitly concluded that the Respondent failed to establish that it would
have taken this action absent the employees ' union activities. NLRB v.
Transportation Management Corp., 462 U.S 393 (1983).
4 The judge included in his recommended Order a visitatorial clause
authorizing the Board, for compliance purposes , to obtain discovery from
the Respondent under the Federal Rules of Civil Procedure subject to
the supervision of the United States court of appeals enforcing this
Order. In the circumstances of this case , we find it unnecessary to in-
clude such a clause, and we shall modify the judge 's recommended Order
in this respect . We shall also modify the recommended Order to require
the Respondent to remove from its files any reference to the unlawful
layoffs. Sterling Sugars, 261 NLRB 472 ( 1982).
317
spondent, Northwind Maintenance and Painting
Co., Inc., New York, New York, its officers,
agents, successors , and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Remove from its files any reference to the
unlawful layoffs and notify the employees in writ-
ing that this has been done and that the layoffs will
not be used against them in any way."
2. Substitute the following for new paragraph
2(e).
"(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
3. Substitute the attached notice for that of the
administrative law judge.
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 ordered 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT lay off any of our employees in
order to discourage support for , or membership in,
Service Employees International Union, Local
32E, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Maurice Ellis and Willie Milton
their jobs back without prejudice to any of their
rights and privileges and WE WILL make them
whole , with interest , along with Jose Martinez,
Jorge Gomez, Salvador Choto, Danny Lopez,
Gustavo Valiente, Enrique Espinoza , and Enrique
Rivas for any loss of earnings they suffered as a
result of our having unlawfully laid them off.
WE WILL notify each of them that we have re-
moved from our files any reference to his layoff
281 NLRB No. 48
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the layoff will not be used against him in
any way.
NORTHWIND MAINTENANCE AND
PAINTING CO., INC.
Aggie Kapelman, Esq. and Lynn Neugebauer, Esq., for the
General Counsel.
Jerry Mond, Esq. (Mond & Schwartz), of Great Neck,
New York, for Respondent.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
complaint alleges that Northwind Maintenance and
Painting Co., Inc. (Respondent) violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act) by
having laid off nine named employees on 14 January
1985 in order to discourage support for Service Employ-
ees International Union, Local 32E, AFL-CIO (the
Union). Respondent's answer places in issue the alleged
discriminatory reason for this layoff.
On the entire record, t including my observation of the
witnesses, and after due consideration of the briefs filed
by the General Counsel and by the Respondent, I make
the following
FINDINGS OF FACT
1. JURISDICTION-LABOR ORGANIZATION STATUS
The pleadings, as amended, establish and I find that
Respondent's annual operations meet the Board's indirect
outflow jurisdictional standard for nonretail businesses.
Respondent's answer denies that the Union is a labor
organization as defined in the Act. Based on prior Board
determinations, of which I have taken official notice, and
the evidence in this case of organizing efforts, I find that
the Union is a labor organization as defined in Section
2(5) of the Act. See Graphic Communications Local 51
(Format Printing Co.), 266 NLRB 7 fn. 3 (1983).
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the business of painting the
interiors of large apartment building complexes in the
boroughs of New York City and vicinity. It employs
three painting crews, each comprised of about four paint-
ers under a crew leader.
The Union, in the underlying unfair labor practice
charge it filed in this case, stated, inter alia, that one of
the crew leaders, Marcus Tesone, was an employee pro-
tected by the Act. The General Counsel, however, has
made a determination that he was a supervisor as defined
in Section 2(11) of the Act. As noted below, he was laid
off on 14 January 1985, but his layoff is not alleged to be
unlawful.
As background evidence of union animus, the General
Counsel offered the following testimony given by
Tesone. In January 1984, he asked one of Respondent's
vice presidents, Anthony Kalman, in the presence of one
of the painters in Tesone's crew, why Respondent had
no union. Kalman told him not to even think about the
matter because "we would get laid off."
Respondent would have me discredit Tesone's ac-
count, although it did not call Kalman to rebut it. Re-
spondent's counsel placed in evidence four prehearing af-
fidavits signed by Tesone and noted that the only refer-
ence in those affidavits to the incident described above
was made in the fourth, dated 4 days before the hearing
began. The first three affidavits relate principally to mat-
ters bearing on whether Tesone, as a crew leader, was a
supervisor as defined in the Act.
I am not disposed to put controlling weight on the fact
that Tesone did not include a reference to the conversa-
tion with Kalman until his last affidavit inasmuch as
"[w]hat a prospective witness will tell a pre-hearing in-
vestigator will often depend upon how searching the
questions of the investigator are." Genwal Coal Co., 275
NLRB 528 (1985). As Tesone's testimony was plausible
and as no contrary evidence was proffered by Respond-
ent, I credit Tesone's account.
B. The Organizing Effort; the Events in January 1985
Prior to the Layoff
Tesone gave the following uncontroverted account.
Shortly after Christmas 1984, he and the members of his
painting crew decided that they wanted to be represent-
ed by a union. In early January 1985 Tesone obtained
union authorization cards from a union member who
worked in one of the buildings being painted . Tesone
met that day with four members of his crew-Maurice
Ellis, Willie Milton, Jose Martinez, and Salvador Choto
and all signed union cards then. The fifth member,
Danny Lopez, signed his card later that same day.
Tesone then approached the members of Tony Kal-
man's crew. Only one of them, Enrique Rivas, signed a
union card. The other two, Gustavo Valiente and Enri-
que Espinoza, refused to sign . Tesone was unsuccessful
in his effort to enlist support for the Union among any
members of the third painting crew.
On Friday, 11 January 1985, about 9:30 a.m., Tesone
telephoned Respondent's vice president, Harold Frisch-
man. Tesone usually called him each workday between 8
and 10 a.m. to discuss the progress of each job. Frisch-
man asked how the crew was doing . Tesone reported
that they were painting doors and that there were over
100 to be done. Frischman then asked Tesone, "[W]hat's
that about the union. Is anything happening?" Tesone re-
plied that he did not know. The conversation ended
when they said they would see each other on Monday,
the next workday.
Respondent did not call Frischman to controvert Te-
sone 's testimony about the discussion on 11 January. I
credit Tesone.
' Certain errors made in the transcript are noted and corrected
NORTHWIND MAINTENANCE CO.
C. The Layoffs on 14 January
On Monday, 14 January 1985, Tesone and his crew re-
ported for work at the employee parking lot. Also
present were the employees in the second crew, they
worked under Vice President Kalman . The members of
the third crew regularly worked at a large apartment
complex in Brooklyn and were not present. Frischman
told Tesone, the members of Tesone's crew, and the
members of Kalman's crew that he had to lay them off
because Respondent's contract had just been canceled.
Tesone and his crew (consisting of Salvador Choto,
Maurice Ellis, Danny Lopez, Jose Martinez, and Willie
Milton) were laid off, as were the members of Kalman's
crew (Enrique Espinoza, Enrique Rivas, and Gustavo
Valiente). The complaint in this case alleged that a ninth
painter, Jorge Gomez, was also laid off on 14 January;
Respondent's answer did not deny that allegation and I
thus find that he too was laid off then. Kalman was not
laid off. Tesone asked Frischman to explain how the 80
building complex they were working on would be main-
tained. Frischman replied that all work was stopped.
Kalman's crew was recalled to work 2 days later, 16 Jan-
uary.
On 20 January, Tesone telephoned Frischman and
asked if he could "hire back some people." Frischman
told him that he would talk to "Mr. Penson." Tesone in
his testimony before me referred to Penson as the
"owner" of Respondent. In a prehearing affidavit, placed
in evidence by Respondent, as noted above, Tesone iden-
tified Penson "as the owner of over 80 apartment build-
ings."
Payroll records of Respondent, placed in evidence by
the General Counsel, list the following names and re-
spective dates of hire in 1985:
Brian Grant-4 March
Melbourne Smith-4 March
Kenneth F. Gustave-10 April
Dalbert A. Weir-15 April
David N. McDonald-20 May
Hermon G. Johnson-5 June
Jorge Gomez-19 June
Gustave Lopez-19 June
Jose P. Martinez-19 June
Salvador Choto-24 June
Dean Schultz-2 July
Oscar Alvarez-17 July
Denis R. Aquino-17 July
Ricardo Nasser-17 July
Roberto Ramos-25 July
Juan C. Segura-25 July
Winston Keise-29 July
Stanley Wall-29 July
Thomas Hartley-6 November
Earl F. Thompson-23 November
Gustave Lopez testified that he returned to work for
Respondent about July 1985. Respondent's payroll
records indicate, as noted above, that "his hire" date was
319
19 June 1985.2 Tesone was not called back to work by
Respondent, nor were Maurice Ellis and Willie Milton.
Respondent asserts that its payroll records are irrele-
vant and immaterial in the absence of any independent
evidence that the employees listed above with "hire
dates" after 14 January 1985 were hired as replacements
for the laid- off painters. The General Counsel contends
that as the record testimony in this case discloses that
Respondent employs painters, as there is no evidence
that it employs any other classification of employees, as
the payroll records reflect that all the employees therein
are hourly paid as the painters had been as of the 14 Jan-
uary layoffs, a prima facie inference is to be drawn that
the newly hired employees were hired as replacements. I
note that Respondent's payroll records indicate that all
the employees thereon, including those laid off on 14
January, were in the same department. I note also that
Respondent did not assert, let alone offer, evidence that
the newly hired employees were not hired as painters.
Finally, I observe that certain of the employees with hire
dates listed as subsequent to 14 January were in fact four
of the alleged discriminatees, namely, Choto, Gomez,
Lopez, and Martinez.
Rebuttable presumptions are useful when they are con-
sistent with concepts of fairness and regularity, when
they promote judicial economy, or when they are
weighted towards reasonable probabilities. See Presbyteri-
an St. Luke's Medical Center v. NLRB, 653 F.2d 450, 455
(10th Cir. 1981). These considerations, when applied to
the facts before me, strongly support the utilization of a
rebuttable presumption , or stated another way, the draw-
ing of a reasonable factual inference that the newly hired
employees had replaced the laid-off painters.
I find then that the General Counsel has made a clear
prima facie showing that Respondent has hired many
new employees as replacements for the laid-off painters.
As Respondent offered no evidence thereon, I conclude
that these newly hired employees were in fact replace-
ments for the employees laid off on 14 January 1985.
D. Analysis
The credited testimony discloses that (1) one of Re-
spondent's vice presidents, Kalman, had made it clear a
year before the layoff that there would be one if anyone
even thought of joining a union, (2) Tesone, his crew,
and a member of the second crew signed union cards in
early January 1985, (3) Respondent's other vice presi-
dent, Frischman, asked Tesone on 11 January 1985 about
the union activities of his crew, (4) on the next workday
Tesone, his crew, and the members of the second crew
were laid off after being informed the contract under
which they worked was canceled, (5) the second crew
was put back to work 2 days later, (6) many new em-
ployees were hired as replacements whereas Tesone,
clearly one of Respondent's key employees, and two of
2 The names of three other alleged discrimmatees appear on Respond-
ent's payroll records with hire dates in June 1985. They are Jorge
Gomez, Jose Martinez , and Salvador Choto and from other data in those
records, including social security numbers , I infer that those alleged dis.
criminatees also returned to work for Respondent in June 1985
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his crew have not been recalled and the remainder were
called back well afterwards.
In assessing the legality of the January 1985 layoffs,
using a Wright Line analysis,3 I find that the General
Counsel has shown, by reason of the six factors set out
above, that the union activity of the employees involved
was "a motivating factor" in Respondent 's decision to
lay them off and the General Counsel has thereby sus-
tained the burden of making out a prima facie case of un-
lawful discrimination. That showing is buttressed by case
law, which holds that the hiring of new employees as re-
placements, as Respondent has done, is patent evidence
that Frischman's attributing the layoff on 14 January to a
contract cancellation was pretextual, designed to conceal
Respondent's unlawful motivation. See Fedco Freight-
lines, 273 NLRB 399 (1984).
As Respondent has offered no evidence to overcome
that prima facie showing, I find that Respondent, on 14
January 1985, laid off the nine employees named in the
complaint in order to discourage support for the Union.
Fedco Freightlines, supra . See also Artcraft Ornamental
Iron Co., 271 NLRB 829, 835 (1984).
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 as defined in Sec-
tion 2(5) of the Act.
3. By laying off, on 14 January 1985, Jose Martinez,
Danny Lopez, Jorge Gomez, Maurice Ellis, Salvador
Choto, Willie Milton, Gustavo Valiente, Enrique Espin-
oza, and Enrique Rivas in order to discourage its em-
ployees from becoming members of the Union, Respond-
ent has engaged in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act.
4. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies of
the Act. As I have found that Respondent has unlawful-
ly laid off the nine employees named above on 14 Janu-
ary 1985 and as two of them have not been recalled to
work, I shall order Respondent to offer those two imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
jobs, without prejudice to their seniority or other rights
and privileges and to make all nine employees whole,
with interest, for any loss of earnings they may have suf-
fered as a result of Respondent's discrimination against
them and Ellis and Milton, until such time as Respondent
makes each a valid offer of reinstatement. See F. W.
8 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert.
denied 455 U S 989 (1982), approved in NLRB v. Transportation Manage-
ment Corp., 462 U S 393 (1983)
Woolworth Co., 90 NLRB 289 (1950); Florida Steel Corp.,
231 NLRB 651 (1977).
To ensure that the employees are fully apprised of the
remedy being provided , Respondent should be ordered
to sign and post notices and should mail copies thereof
to each of the laid-off employees.
Further, the visitatorial order sought by the General
Counsel is warranted in this case as it will enable the
Board to effectuate full compliance without unduly inter-
fering with any of Respondent 's operations.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed4
ORDER
The Respondent, Northwind Maintenance and Paint-
ing Co., Inc., New York, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Laying off employees in order to discourage mem-
bership in or activities on behalf of Service Employees
International Union, Local 32E, AFL-CIO.
(b) In any like or related manner interfering with, re-
straining , 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) Offer Maurice Ellis and Willie Milton full and im-
mediate reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights and
privileges and make them (and also , Jose Martinez, Jorge
Gomez, Salvador Choto, Danny Lopez, Gustavo Va-
liente, Enrique Espinoza, and Enrique Rivas) whole for
any loss of earnings , with interest , they may have suf-
fered as a result of their having been unlawfully laid off
on 14 January 1985.
(b) Post at its facilities in New York City, New York,
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 Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Mail to each of the nine unlawfully laid-off em-
ployees a signed copy of this notice, addressed to their
last known address or to addresses furnished by Region
29.
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
° 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 "
NORTHWIND MAINTENANCE CO.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply therewith . For the pur-
pose of determining or securing compliance with this
Order, the Board, or any of its duly authorized repre-
sentatives, may obtain discovery from the Respondent,
its officers , agents, successors, or assigns, or any other
321
person having knowledge concerning any compliance
matter, in the manner provided by the Federal Rules of
Civil Procedure. Such discovery shall be conducted
under the supervision of the United States Court of Ap-
peals enforcing this Order and may be had on any matter
reasonably related to compliance with this Order, as en-
forced by the court.