Service Employees Local 1-J (Shor Co)

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 929 (N.L.R.B. 1984)

SERVICE EMPLOYEES LOCAL' 1-J (SHOR CO) ' 929
Amalgamated Jewelry, Diamond and Watchcase
Workers Union, Local 1-J, SEIU, AFL-CIO
and The I. Shor Company, Inc.
Jewelry Manufacturers Association, Local 1-J, Wel-
fare Fund' and The I. Shor Company, Inc.
Amalgamated 'Jewelry, Diamond and Watchcase
- Workers Union; Local No. 1-J, SEIU, AFL-
CIO and Jewelry Manufacturers Association,
Local 1-J Welfare Fund and Joan Maffettone
The I. Shor Company, Inc. and Joan Maffettone,
Petitioner and Amalgamated Jewelry, Diamond
and Watchcase Workers Union, Local 1-J,
SEIU, AFL-CIO. Cases 2-CB-9557, 2-CB-
9557-2, 2-CB-9580, and 2-RD-1073
14 December 1984
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 6 June 1984 Administrative Law Judge
Thomas T. Truhkes issued the attached_ decision.
The Respondent filed exceptions and- a supporting
brief, and the General Counsel filed cross-excep-
tions and a supporting brief. the General Counsel
and the Employer filed answering briefs to the Re-
spondent's exceptions. -
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 exceptio'ns and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as modified 2 and to 'adopt the recom-
mended Order a modified. •
The judge found, and we that the Re-
spondent, Amalgamated Jewelry, .Dianiond and
Watchcase Workers Union, Local 1-J, SEIU,
AFL-CIO (the Union) violated Section 8(b)(1)(A)
by threatening to terminate . and Section 8(b)(1)(A)
and (2) by suspending .loan MaffettOne's health and
welfare benefits because she filed _a decertification
petition. Contrary to the judge, however, we find
the Respondent, Jewelry 'Manufacturers Associa-
We grant the General Counsel's motion to correct the caption for the
name of the Fund to read, "Jewelry Manufacturers Association, Local 1-
J, Welfare Fund" • - •
2 An election was held 10 March 1983 in Case 2-RD-1073 pursuant to
a Decision and Direction of Election The tally of ballots shows 14 for,
and 11 against, Amalgamated Jewelry, Diamond and Watchcase Workers
Union, Local 1-J, SEIU, AFL-CIO, with 1 nondeterminative challenged
ballot
Absent exceptions, we adopi tiro forma the judge's recommendations
that Employer's Objections 1(a), (c), (e), 2, 4(a), (b), (c), and 6 _to the
election be sustained, and that Employer's Objections 1(b), (d), 3, 4(d),
(e), and 5 be overruled, and that the election held 10 March 1983 be set
aside and a second election conducted
tion, Local 1-J, Welfare Fund (Fund), as agent of
the Union, also violated the Act.
In fall 1982, approximately 20 employees of I.
Shor Company, Inc. (Employer) met to discuss de-
certifying the Union. A decertification petition was
circulated among the employees and on 1 October
1982 3 bookkeeper Joan Maffettone filed the peti-
tion with the Regional Office.
On 25 October Maffettone received a letter at
work on Fund stationery dated 12 October from
Joseph Tarantola, union president and Fund admin-
istrator, stating, inter alia, that it had come to "[the
Fund's] attention 'through the Union that you may
not be a member 'of the bargaining unit" and that
"commencing November 14, 1982, you shall no
longer be covered under this plan."
Maffettone, who was being treated for cancer at
the time, testified she became extremely upset upon
receiving the letter and showed it to five or six
fellow employees. According to her credited testi-
mony, several employees voiced the fear they
would lose their medical benefits as they had also
signed the decertification petition.
Maffettone wrote to Tarantola on 28 October
objecting to the cancellation of her benefits and re-
questing a detailed explanation for the suspension.
She also retained an attorney, who wrote to Taran-
Iola on 4 November.
On 22 November union organizer 'Pedro Ortiz
spoke with Maffettone while visiting the Employ-
er's place of business. When she requested that he
not speak to her but with her attorney, Ortiz asked
her approximately five or six times whether she
was "throwing [him] out as an official of this com-
pany." Maffettone reported the matter to Supervi-
sor Pete Shor, who requested Ortiz to leave.
On 30 November, Tarantola, again in his capac-
ity as Fund administrator, wrote Maffettone and
Nat Shor, .president of the Employer, to invite
them to participate in the investigation of Maffet-
lone's status. In the meantime, the Employer's at-
torneys had protested Tarantola's threatened can-
cellation of Maffettone's benefits and assured Tar-
antola that she was a unit employee. Finally, on 20
December, Tarantola wrote Maffettone and ad-
vised her, without explanation, that the Fund was
reinstating her benefits.
As stated, -the judge found the Union violated
Section •8(b)(1)(A) by threatening to terminate and
Section 8(b)(1)(A) and (2) by suspending Maffet-
tone's Fund benefits between 14 November and 20
December for filing the decertification petition.4
3 All dates are in 1982 unless otherwise noted
4 The General Counsel alleges Tarantola "terminated" Maffettone's
Fund benefits, while the Union argues Tarantola merely "suspended" her
Continued
273 NLRB No. 120
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He found Maffettone had been an employee 'of the
Employer and a member in good standing of the
Union for more than 20 years, and that, prior to
October, there was no suspicion by the Union or
credible evidence that she was not included in the
bargaining unit. The judge further found Tarantola
harbored animosity toward Maffettone for instigat-
ing and filing the decertification petition. The
judge noted Tarantola admitted at the hearing that,
upon learning Maffettone had filed the petition, "he
became very angry."
The judge also found insufficient evidence exist-
ed to support sending the 12 October letter to Maf-
fettone. He noted the sole evidence presented to
Tarantola consisted of statements by Pedro Ortiz,
union organizer, and Oswald Gutierrez, union vice
president, that Maffettone was a supervisor. How-
.ever, the judge found Ortiz did not conduct his in-
vestigation in good faith. While Gutierrez testified
he had no problem speaking with employees at the
facility, Ortiz stated he was unable to verify Maf-
fettone's supervisory status because she constantly
followed him around the plant. The judge noted,
however, that Ortiz made no effort to contact em-
ployees at their home or somewhere outside the
Employer's premises.5
The judge found Tarantola at no time prior to
the 12 October letter attempted to obtain Maffet-
tone's position on the planned suspension of bene-
fits, and it was- not until 30 November that Taran-
tola wrote to either Maffettone or the Employer
requesting their assistance in investigating her al-
leged supervisory status. The judge also found the
Union chose not to participate in the hearing fol-
lowing the- filing of the decertification petition, al-
though Maffettone's eligibility to vote in the elec-
tion was at issue. Finally, the judge observed that
Tarantola offered no explanation for his "change of
heart" in reinstating Maffettone's coverage in the
20 December letter.
Based on his analysis of the above facts, the
judge concluded Maffettone's benefits were sus-
pended because of her filing of the decertification
petition. As stated above, we agree.
We next examine the relationship between the
Union and the Fund. The Union and the Fund are
located in the same office at 133 West 44th Street
in New York City. The Fund was established pur-
suant to a collective-bargaining agreement between
Fund benefits The Judge found that Maffettone's health and welfare ben-
efits were suspended between 14 November and 20 December 1982 We
agree The uncontradicted evidence indicates that a vote before the full
board of trustees is required to terminate a participant's benefits The
board took no such action concerning Maffettone
5 The judge further discounted the affidavit of union shop steward Jac-
quline Gross, asserting Maffettone's supervisory status, because it was ob-
tained subsequent to the 12 October letter
the Union and the Jewelry Manufacturers Associa-
tion, of which the Employer is a member. The
trust agreement, as amended, provides that the plan
be jointly administered; four trustees are designated
by the Union and four are designated by the Em-
ployer participants. The four union trustees of the
Fund, Joseph Tarantola, Oswald Gutierrez, Her-
bert Johnson Jr., and Pedro Ortiz, are, respective-
ly, president, vice president, secretary-treasurer,
and organizer of the Union. All four use their own
offices to conduct all union and Fund business. In
addition, Joseph Tarantola serves as president of
the Union, administrator of the Fund, and chair-
man of the board of trustees of the Fund.
In his capacity as Fund administrator, Tarantola
decides whether or not a participant of the welfare
plan is entitled to its benefits, and has authority
temporarily to suspend benefits while investigating
claims. Tarantola testified that, as union president,
he could. order an investigation by union agents
into participant eligibility, but that he acted as
Fund administrator in making decisions based on
the information supplied. We agree with the judge,
therefore, that it is "difficult to separate one func-
tion from the other."
The judge found Tarantola represented the
Union's "principal interests" in regard to Maffet-
tone and his actions as administrator were therefore
imputed to the ,Union. The judge found, however,
.that the Fund was not an agent of the Union be-
cause the boardof trustees of the Fund, including
the employer-appointed trustees, "never was af-
forded an opportunity to either confirm or refute
,TarantOla's actions with respect to Maffettone."
We reverse the judge and find that, because Taran-
tola had actual authority to suspend and to threaten
to terminate fund benefits, the Fund is responsible
for his conduct.
Tarantola has served as Fund administrator for
nearly 15 years. His duties include, intei alia, di-
recting 'the work of claims processors, correspond-
ing with individual participants, doctors, hospital
administrators, and attorneys, and, finally, investi-
gating and 'suspending participants ineligible to re-
ceive benefits. He testified his power to perform
these duties is derived from past practice, direc-
tions of the board of trustees of the Fund, and the
agreement and declaration of trust, as amended.
While Tarantola had the power to suspend partici-
pant benefits, only the board of trustees could ter-
minate participation. Thus, acCording to Tarantola,
the procedure in a typical case involved suspending
coverage either before or during an investigation
into a participant's eligibility, and, if appropriate,
recommending to the board of trustees to terminate
participation. Tarantola testified over the last 2
SERVICE EMPLOYEES LOCAL 1—J (SHOR CO) -

931
years a "number of participants" suspected Of su-
pervisory status had been terminated under this
procedure. In the instant -case, Tarantola testified -
Maffettone's Coverage was merely suspended not
terminated. These facts clearly indicate the Fund
vested Tarantola with actual authority to suspend
participant eligibility, as well as to threaten termi-
nation based on his responsibility to make such rec-
ommendations to the Board.8
We now turn to the question of whether Taran-
tola's actions as Fund administrator made the Fund
a union agent. The language of Section 8(b) specifi-
cally limits our jurisdiction to unfair labor practices
committed by a "labor organization or its agents."
In determining whether fund actions, can be attrib-
uted to a union, the courts 7 have identified at least
three factual situations:8
1. Where provisions of a collective-bargaining
agreement remove the discretion to administer
the funds solely for the benefit of,the employ-
ees.
2. Where , the trustees' actions were in fact di-
rected by union officials..
3. Where the trustees' acts were undertaken in
their capacities as union officials rather than as
trustees.
Here, 'the facts demonstrate that, on learning
Maffettone might be a supervisor, Tarantola imme-
diately notified her that her coverage would no
longer be in effect. The judge found that Taran-
tola, as Fund administrator, would have no reason
"for his hastiness in writing the letter without fur-
ther evidence." Moreover, Tarantola testified that,-
under normal circumstances, a benefit claim took 6
to 12 months to process: Here, however, it is undis-
puted that Maffettone's benefit coverage was sus-
pended only 2 weeks after the decertification peti-
tion was filed. As the judge correctly found, there-
fore, the Fund had no interest in such unusually ex-
peditious action.
In this case, the trustees delegated certain au-
thority to Tarantola, which he 'exercised_ to further
the interests of the Union in his capacity as union
president, thus bringing the facts within 'the third
set of circumstances under which a fund may be
deemed a union agent. -Tarantola's action constitut-
ed a transparently pretextual retaliation against an
6 Restatement 2d, Agency § 212, 215, 229 (1958) See Longshoremen
ILWU Local 61 (Sunset Line), 79 NLRB 1487, 1509 (1948) (Board has
clear statutory mandate to apply ordinary law of agency)
See NLRB v Teamsters Local 449, 728 F 2d 80, 89 (2d Or 1984),
Griffin Corp v NLRB, 660 F 2d 406, 410 (9th Cir 1981) See also NLRB
v Laborers Local 1140, 577 F 2d 16, 21, (8th Or 1978), cert denied 439
US /070 (/ 979)
8 Teamsters Local 449, above, 728 F 2d at 89
employee for filing a decertification petition, not a
good-faith effort to preserve Fund assets.8
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
3 and 4.
"3. By threatening to terminate the health and
welfare benefits of Joan Maffettone through its
agent, Jewelry Manufacturers Association, Local
1-J, Welfare Fund, because she- filed • a decertifica-
tion petition with the Board, the Union has en-
gaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(b)(1)(A) of the
Act.
"4. By suspending the health and welfare benefits
of Joan Maffettone 'between 14 November and 20
December' 1982 through its agent, 'Jewelry Manu-
factiirers Association, LOeal 14, Welfare 'Fund, the
Union has engaged in, and is engaging in, unfair
labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act."
ORDER
The National' Labor . Relations Board adOpts the
recommended Order of the administrative law
judge and orders .that the Respondents, Amalga-
mated Jewelry, Diamond and Watchcase Workers
Union,- Local 1-J, SEIU, AFL-CIO, New York,
New York, and Jewelry Manufacturers Associa-
tion, Local 1-J, Welfare Fund, New York, New
York, their officers, agents, - and representatives,
shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the election con-
ducted 10 March 1983 in Case 2-RD-1073 is set
aside and that a new election be held as directed
below.
[Direction of Second Election omitted from pub-
lication.]
9 In finding the Fund to be the Union's agent when Tarantola threat-
ened to terminate and suspended Maffettone's benefits, emphasize our
holding does not subject trustees to "conflicting duties imposed by the
National Labor Relations Act and ERISA " NLRB v Amax Coal Go,
453 U S 322, 337 fn 21 (1981) In Amax, the Supreme Court held em-
ployer-selected trustees of a jointly administered trust fund, such as the
one Involved in this proceeding, are not agents of the employer but fidu-
ciaries "whose duty to the trust beneficiaries must overcome any loyalty
to the Interest of the party that appointed [them] " The Court found
ERISA vested exclusive authority to manage and control fund assets in
the trustees alone, and not the employer or the union By contrast, Tar-
antola, as Fund administrator, had actual authonty from the trustees to
take the actions he did and did so on the Union's behalf
932 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
THOMAS T TRUNKES, Administrative Law Judge.
This proceeding,' under Section 10(b) and Section 9 of
the National Labor Relations Act, was heard pursuant to
due notice on September 29 and 30, 1983, and January
11 and 12, 1984, in New York, New York, based on an
order consolidating cases, consolidated complaint, and
notice of hearing, dated April 15, 1983, issued in Cases
2-CB-9557, 2-CB-9557-2, and 2-CB-9580, and an order
consolidating the above-captioned cases with a notice of
hearing on objections in Case 2-RD-1073, dated April
28, 1983.
The issues presented at the hearing were as follows
1. Whether Joseph Tarantola, for the purposes of the
instant case, should be considered an agent of Respond-
ent/Union, Respondent Fund, or both?
2. Whether Respondent Union, Respondent Fund, or
both, through Tarantola, violated Section 8(b)(1)(A) and
(2) of the Act by threatening to suspend Joan S Maffet-
tone from her -participation in Respondent Fund and by
suspending her participation in said fund because of her
protected concerted activity, namely, the filing of a de-
certification petition?
3. Whether or not the conduct of agents of the Union,
including, inter aim, the acts of Tarantola as described in
paragraph 2, constitute objectionable conduct sufficient
to overturn the results of a Board-conducted election?
All parties Were afforded a full opportunity to partici-
pate- at the hearing. Briefs were filed by the General
Counsel and the Charging Party/Employer A joint brief
was filed by Respondent Union and Respondent Fund.
On the entire record, including my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
The I. Shor Company, Inc. (the Employer), a New
York corporation, with an office and place of business
located in New York, New York (the Employer's facili-
ty) is engaged in the business of selling and servicing ma-
chines and factory supplies for the manufacture of jewel-
ry. Annually, the Employer, in the course and conduct
of its business operation, derives gross revenues in excess
of $500,000 and purchases and receives at its facility
goods and supplies valued in excess of $50,000 directly
from suppliers located outside the State of New York.
Respondents admit, and I find, that the Employer is, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATIONS
Amalgamated Jewelry, Diamond and Watchcase
Workers Union, Local 1-J, SEIU, AFL-CIO (Respond-
ent Union or Local 1-J) is, and has been' at all times ma-
1 Andrew J Schaffran replaced Respondent's onginal attorney after 2
days of heanng
terial herein, a labor organization within the meaning of
Section 2(5) of the Act, as admitted by Respondent
Union and Respondent Fund
Jewelry Manufacturers Association, Local 1-J Welfare'
Fund (Respondent Fund), a jointly administered welfare
plan, exists for the purpose of administering various
health and welfare plans maintained under one or more
collective-bargaining agreements that Respondent Union
has with various employers, as admitted by Respondents.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A Operations of the Employer and Its Relationship
with Respondent Union
As stated above, the Employer is engaged in the busi-
ness Of selling and servicing machines and factory sup-
plies used for the manufacture of jewelry, with its princi-
pal place of business located in New -York, New York. It
employs approximately 30 employees who are supervised
by Nat and Peter Shor. Nat is president of the Employ-
er. The record does not indicate Peter's title, if any.
For many years, Respondent Union has been the ex-
clusive collective-bargaining representative of the em-
ployees of the Employer in the following unit:
All full-time and regular part-time employees of the
Employer, including office clerical employees, sales
persons, repairmen, and shipping and receiving em-
ployees, excluding all outside sales help, guards, and
supervisors as defined in the Act.'
The Employer has recognized the Union and has ne-
gotiated successive collective-bargaining agreements
with' it, the most recent of which was effective for the
period September 12, 1981, to September 12, 1982. Pur-
suant to 'article XIV of this agreement, the 'Employer
maintained and provided group insurance for the benefit
of its employees covered by the agreement by making
contributions on their behalf to Respondent Fund. The
payment and receipt of the contributions continued for
all unit employees, including Maffettone, subsequent to
the expiration of the agreement.
Pursuant to article VII of the agreement, the Employ-
er withheld 'ninon dues from unit employees, including
Maffettone, and forwarded these dues to Respondent
Union On a Monthly basis. This practice also continued
subsequent to the expiration of the most recent collec-
tive-bargaining agreement.
The undisputed evidence established that the Employ-
er has permitted union representatives to enter the work-
ing area of its facility , and to speak to various unit , em-
ployees during working hours.
B. Statu:i of Maffettone
- -In his Decision and Direction of Election, dated Feb-
ruary 10, 1983, in Case 2-RD- 1073, one of the consoli-
dated ,cases in the present proceeding, the Regional Di-
rector for Region 2 of the National Labor Relations
Board made the following finding:
The evidence presented at the hearing reveals
that Maffettone has worked for the Employer for
SERVICE EMPLOYEES LOCAL 1-J (SHOR CO)

933
21 years and has been a member of the Union
throughout her employment. As of the -date of the
filing of the petition, on October 1, 1982, Maffet-
tone occupied the position of bookkeeper. The evi-
dence reveals that the Employer employs approxi-
mately 25 bargaining unit employees including five
employees in the bookkeeping department. Maffet-
tone's job duties include making deposits, making
cash disbursements, calling, customers concerning
overdue bills, filing, preparing the payroll, and an-
swering the telephone. The record reveals that the
other employees in the bookkeeping department
perform similar functions, and that on occasion,
these employees assist each other. The evidence
presented at the hearing further revealed that Maf-
fettone does not have the authority to hire, fire, dis-
cipline, promote, transfer, lay off, recall, reward,
reprimand, or grant overtime to employes, nor does
she have the authority to effectively recommend
such actions. She is paid on an hourly rate, as are
the other unit employees,. receives no sick, leave,
and receives vacation time and hospital benefits pur-
suant to the collective-bargaining agreement be-
tween the Union and the Employer. The superviso-
ry personnel of the Employer are paid a weekly
salary and receive paid sick leave. The bookkeepers
are supervised by, Nathan Shor, the sales, manager,
who interviews all job applicants. If the applicant is
acceptable to Shor, he will then have the applicant
meet the employees who perform the office work,
to assure that these employees will be able to work
together There was no evidence presented at the
hearing that Maffettone or anyone else in the book-
keeping department has the authority to recommend
the hire of any job applicant, but Shor will solicit
the opinions of these employees and take these opin-
ions into account as well as his view of the ãpppli-
cant's abilities in - making his determination of
whether to hire an applicant
Section 2(11) of the Act defines a supervisor as
an "individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or disci:
pline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to
recommend such action . . ." While Maffettone
may participate, along with other employees, in dis-
cussions with job applicants, I find that the evi-
dence presented reveals that these discussions are
for the purpose of describing the job duties and as-
suring that there will be a harmonious working rela-
tionship among the office staff, and thus does not
rise to the level of recommending the hire of em-
ployees. See Willis Shaw Frozen Food Express, 173
NLRB 487, 488 (1968).
As there is no evidence that Maffettone possesses
any of the indicia of supervisory authority enumer-
ated in Section' 2(11) of the Act, I find that she is
not a supervisor and thus shall be included in the
unit. In view of my finding that Maffettone, the Pe-
titioner, is not a supervisor , within the meaning of
the Act, I shall direct an election in a bargaining
unit coextensive with the contractual unit.
During the hearing in which the evidence was present-
ed on which the Regional Director made his decision, a
representative of Respondent Union made an appearance
but did not take part in the hearing. Respondent Fund,
not being a party to that proceeding in any respect, did
not participate at the hearing. The Regional Director's
decision was not appealed by anyone to higher authority.
Accordingly, I shall accept this finding that Maffettone
was not a supervisor of the Employer on October 1,
1982.
C. Filing of the Decertification Petition
Maffettone testified, without contradiction, , that during
the summer or fall of 1982, 2 approximately 20 employes
held a mee'ting at the facility of the Employer to discuss
the decertification of Respondent Union. Subsequent to
the meeting, Maffettone was informed by agents of
Region 2 of the Board what steps were to be taken in
order to effectuate a decertification of Respondent
Union. Thereafter, a petition was circulated among the
employees requesting a decertification, and after obtain-
ing a sufficient amount of signatures Maffettone present-
ed the document to Region 2 on October 1 at which
time a formal petition for a decertification election was
filed.
D. Relationship of Respondent Union and Respondent
- Fund
Respondent Union's offices are located at 133 West
44th Street, New York, New York, on the third floor Its
president is Joseph Tarantola; the vice president is
Oswald Gutierrez; the secretary-treasurer is Herbert
Johnson Jr.; and Pedro (Pete) Ortiz is an organizer.
Respondent Fund also has an office located at the
same address on the third floor Four trustees are ap-
pointed by the Employer and four are appointed by Re-
spondent Union. Tarantola is chairman of the board of
trustees The three other trustees appointed by the Union
are Gutierrez, Johnson, and Ortiz. None of the trustees
receives any payment from the Fund for work per-
formed on the Fund's behalf. The four union trustees do
not have a separate office to perform work for the Fund.
E. Status of Joseph Tarantola
Tarantola has been president of Respondent Union
since June 1968. As such, he is a salaried employee In
addition to being a trustee and chairman of the board of
trustees of Respondent Fund, he has been the administra-
tor. of the Fund since approximately the end of 1968.
Both his positions as trustee and as administrator of the
Fund are unsalaried.
As administrator of the Fund, Tarantola directs the
work of the Fund, which included directing the work of
the claims processors and handling all correspondence
and communications. He is in communication with doc-
tors, hospital administrators, insurance actuaries, and at-
2 Unless "otherwise indicated, all dates refer to 1982
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
torneys of the Fund. Further, he corresponds with other
attorneys and with individual participants of the Fund
Additionally, he helps the claims department "draw up
different forms for the development and expediting- of
the claims and the processing routines." As administra-
tor, Tarantola decides whether or not a participant Of the
welfare plan is entitled to its benefits.
F The Alleged Violations of Section 8(b)(1)(A) and
(2) of the Act
Maffettone testified that about October 25 she received
a letter, dated October 12, addressed to her from Taran-
tola. The body of the letter, in its entirety, is as follows:
It has come to our attention through the Union that
you may ' not be a member of the bargaining tinit.
Therefore, pursuant to the Trust Agreement of the
Welfare Fund and the Plan, you are not entitled to
receive health and welfare benefits until this matter
is clarified. . ,
Please be advised that commencing November 14,.
1982, you shall no longer be covered under this
Plan. .We suggest that you use this grace period to
_obtain individual coverage.
A question' has arisen with respect to your and/or
Shor's responsibility in advising us of your non-bar-
gaining unit status while receiving benefits. There-
fore, we are commencing an investigation to deter-
mine whether a fraud has been perpetrated upon the
Fund. If so, we may hold you and/or I. Shoes -
liable for any claims paid to you during your period
of non-bargaining unit status
Although the letter also revealed that Tarantola was
aware of Maffettone's home address, the letter was sent
and received by Maffettone at the office of the Employ-
er. The letter was signed by Tarantola as administrator
of Respondent Fund.
On -receipt of the letter, Maffettone testified that she'
"panicked, cried, cursed, screamed. I was devastated."
She contended that she reacted this way because at the
time she was being treated for cancer and could not
afford to be without benefits. She further asserted that'
five or six fellow employees who occupied desks in the
same room where she sat were present at the time she
received the letter. On being asked what the problem
was, she showed the employees the letter in question.
According to Maffettone, several employees voiced the
fear that they would lose their medical benefits because
they had also signed the decertification petition. -
Thereafter, by letter dated October 28, Maffettone
wrote to Tarantola, acknowledging receipt of his letter
on Monday, October 25. She objected to the cancellation
of her benefits and requested a detailed explanation from
Tarantola for the reason for his planned' action. In addi-
tion, Maffettone retained an attorney, Robin Woodrow,
who further wrote to Tarantola, as administrator of Re-
spondent Fund, on November 4, threatening to institute
legal action should Maffettone be denied coverage or
benefits under the welfare plan. Woodrow further ad-
vised ,Tarantola that, any further correspondence with
Maffettone be directed to her.
Maffettone further testified that on November 22
union organizer Ortiz :visited the premises of the Em-
ployer, and stood by her desk looking down on her. She
requested that he not speak to her but speak to her attor-
ney. He asked her if she was "throwing me out as an of-
ficial of this company" to which she replied, "No." He
repeated his question approximately five or six times.
When Ortiz refused to leave, Maffettone reported the
matter to Peter Shor, 'who, on ascertaining that none of
the, employees wished to speak to Ortiz, requested Ortiz
to leave. Ortiz complied with this request.
On November 30, Tarantola, again in his capacity as
administrator of Respondent Fund, wrote to Maffettone,
requesting her presence at the Fund office to continue
the investigation concerning her status as a bargaining
unit- member: Maffettone did not comply with this re-
Vest. ' •
Meanwhile, by letter dated October 27 to Tarantola as
Fund administrator, attorneys for the Employer also pro-
tested 'the threatened cancellation of benefits of Maffet-
tone, :and assured the Fund that she was . a unit employee.
By létter dated November 4, Tarantola, as administrator
of the Fund, replied to the letter of October 27. By letter
dated. November 30, Tarantola, as administrator of the
Fund, invited Nat Shor, president of 'the Employer, to
participate id the investigation of Maffettone's status with
the Employer. By letter dated December 7, the Employ-
er;through its attorney, notified Ta'rantola, as administra-
tor of the- Fund, that as the Board had already found
Maffettone not to be a supervisor, Tarantola should rein-
state Maffettone to full coverage under 'the plan. By
letter dated December . 20, Tarantola advised Maffettone
that on consideration; Respondent Fund had reinstated
her coyerage. Maffettone testified that at no time did
anyone from Respondent Fund or Respondent Union ex-
plain to her why her benefits had been reinstated.
G. Defense of Respondents
In their defense, Respondents did not dispute that Tar-
antola took the, actions recited above, rather, they at-
tempted to show , that the reasons behind these actions
were lawful.
Tarantola, the principal witness of Respondents, testi-
fied that he received information from his union agents,
Ortiz and Gutierrez, that Maffettone might be a supervi-
sor within the_ meaning of Section 2(11) of the Act, in
which case, she would be ineligible to participate in the
Fund's benefits. Accordingly, Tarantola sent Maffettone
the, October-,12 letter and suspended her benefits. He fur-
ther testified that, as administrator of the Fund, he had
full authority to , suspend a participant as he did to Maf-
fettone between November 14 and December 20, but the
final ,authority, for termination of coverage could only be
made by the full board of trustees of the Fund. His .prin-
cipal concern in suspending Maffettone was to execute
his duty as Fund administrator by ensuring that Fund
moneys were not depleted through payment to ineligible
parties.. Specifically, When asked why he did not termi-
SERVICE EMPLOYEES LOCAL 1-J (SHOR CO)

935
nate Maffettone from participating in the Fund, he
stated:
Because I don't think that you handle those
things lightly. You have got to be careful about
people's rights, individual's rights, and the obliga-
tion to the fund. As well as the fact that I certainly
wouldn't want the fund, to be accused of improper
action. So, I instituted an investigation. Rather than
terminate benefits, I suspended them.
When asked Why the letter of October 12, although
addressed to Maffettone's residence in Brooklyn, was
mailed to the Employer's facility in Manhattan, Tarah-
tola replied: -
It was sent certified, and we wanted to make sure
that Ms. Maffettone 'got the letter. It was supposed
to be a return receipt requested letter, and figure
[sic] that if she were working, she would not be
able to get it at home and sign for it. The letter may
have lain in the post office for some period of time
before she got to the post office, because all they
'would have done, - they would have left a notice.
We therefore felt that she would have gotten it
sooner had-it been sent to her place of work-.
— -
When asked the reason for sending the letter Of De-
cember 20, which reinstated Maffettone to the plan, Tar-
antola responded:
From the evidence that had been presented to me
from the information , that I received during the in-
vestigation, it seemed to me that her status had
changed with the company. That she was no longer
functioning as a supervisor. •
Tarantola continued by stating that he had obtained
this information from Ortiz and Gutierrez who, in turn,
had heard of it during , their investigation at the EmPlOy-
er's facility.
Ortiz testified that, as an organizer for Respondent
Union, he serviced the Employer's facility. Some ` time at
the beginning of October, at one of his visits to the Em-
ployer's 'facility, he observed Jacquhne Gross, who at the
time was the shop steward, crying. Although Gross had
given the Employer a 2-week notice that she was resign-
ing from her job; a fact of which Ortiz was aware, Gross
told Ortiz that Maffettone had fired her that' day, and
that Maffettone was the Empl4er's comptroller. Ortiz
reported this matter 'to Tarantola, whO instructed him to
investigate the matter further. Ortiz testified -that he -re-
turned to the Employer's facility a number-of times in an
attempt to ascertain Maffettone's alleged supervisory
status. He stated that he was unable to do so because
every time he entered the facility he Was followed by
Maffettone who stood within hearing distance each time
he attempted to speak to an employee He thereafter re-
ported to Tarantola that he could obtain no further infor-
mation with respect to Maffettone's status as a supervi-
sor. - -
On cross-examination by the General Counsel, Ortiz
conceded that he made no attempt to contact any of the
employees of the Employer outside the Employer's facil-
ity or outside their working hours.
On redirect examination Ortiz recalls having spoken to
several employees at , the Employer's facility who in-
formed him that Maffettone marked their timecards 'and
would grant them permission to leave the facility early
without speaking to anyone else. Ortiz asserted that none
of the employees was prepared to submit an affidavit de-
tailing this information Ortiz also reported this informa-
tion to Tarantola
Gutierrez testified that in early October Gross came lo
his office and related to him that she had been dis-
charged by the Employer, through Maffettone, who had
hired her in the first place 6 months earlier. Gross relat-
ed further information to indicate to Gutierrez that Maf-
- fettOne actually was a supervisor He passed on this in-
formation to Tarantola. Tarantola instructed him to in-
vestigate the matter further, which he did by speaking to
• several workers at the Employer's facility without any
interference or obstruction by Maffettone. Several em-
ployees furnished information on which one might con-
clude Maffettone was a supervisor. However, no one
was prepared to submit an affidavit to document this
fact.
Under examination by counsel for the Fund, Gutierrez
acknowledged that following his conversation with
Gross he did obtain an affidavit, dated October 21, from
her in Which she stated, among other things, that Maffet-
tone was the only person who had interviewed her
before her employment and that Maffettone informed her
"that she does the hiring and firing for the Company."
On the same day that Gross furnished the affidavit to
him, Gutierrez filed an unfair labor practice charge
against • the Employer, alleging violations of Section
8(a)(1), (3), and (5) of the Act, which were eventually
dismissed by the Regional Director.3
H. Discussion and Analysis—The Alleged Violations
The complaint alleges that Respondents violated Sec-
tion 8(b)(1)(A) and (2) of the Act by threatening to ter-
minate and thereafter terminating Maffettone's fund cov-
erage effective November 14. The General Counsel con-
tends that the latter action violates Section 8(b)(2) of the
Act, which forbids a union, except in limited circum-
stances, from taking action which causes or attempts to
Cause the employer to discriminate against its employees.
Thus, the General Counsel urges; by causing or attempt-
ing' to cause the Employer to cease making fund contri-
butions, and by causing the Fund to cancel Maffettone's
coverage, Respondents clearly violated Section
8(b)(1)(A) a‘nd (2) of the Act.
Agreeing With the contentions'of the General Counsel,
the Employer further contends that' Respondents' actions
against Maffettone were clearly, designed to restrain and
coerce her and fellow' unit employees in the exercise of
their Section 7 rights and to encourage membership in
the Union by causing the Employer to discriminate
against her.
3 This was a secOnd amended charge, the original charge having been
'filed in September -
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents contend that they acted in good faith in
their actions and did not engage in any discriminatory
conduct against Maffettone in violation of.the Act.
Before one can judicially make findings and conclu-
sions as to whether any of the alleged violations- did
occur as ,contended by the General Counsel, it is neces-
sary to make credibility findings with respect to the testi-
mony of the various witnesses presented at the hearing
In addition to considering the -demeanor of the witnesses,
the Board has stated, "It is abundantly clear that the ulti-
mate choice between conflicting testimony also rests on
the weight of the evidence, established or admitted facts,
inherent probabilities, reasonable inferences drawn from
the record, and,, in sum, all of the other variant factors
which the trier of fact must consider in resolving credi-
bility." Northridge Knitting Mills, 223 NLRB 230, 235
(1976).
At the hearing, I emphasized that the credibility of
Maffettone was not an issue for two reasons: (1) There
was no dispute as to what 'Maffettone said or-did which
led to the instant conflict; and (2) essentially, there was
no conflict with respect to relevant testimony offered by
Maffettone. However, I made it clear that the credibility
of Respondents' witnesses was at stake, especially that of
Tarantola, the key person who performed the various
acts which led to the instant complaint
After listening to the testimony, I found it difficult to
make a finding based on the demeanor of Tarantola that
he undertook his actions for other than legitimate mo-
tives. He appeared extremely sincere as a witness„ and I
left the hearing with a visceral reaction that he truly be-
lieved that the actions he undertook, considering the evi-
dence that was presented to him, were just and proper.
Notwithstanding my initial thoughts, after a careful
study of the transcript and an evaluation of the totality
of the evidence, I have concluded that there is merit in
the General Counsel's position for the following reasons.
1. Timing of the actions of Tarantola
, Had Maffettone not filed a petition for a decertifica-
tion of the Union on October. 1, there would be no basis
for a charge or a complaint in this case. At the time,
Maffettone had been an employee of the Employer and a
member in good standing of the Union for more than 20
years. There was no suspicion at any time prior to Octo-
ber that she was a supervisor of the Employer. Never-
theless, shop steward Gross, following her termination of
employment, informed agents of the Union, according. to
the undisputed testimony of Ortiz and Gutierrez, that
Maffettone had certain indicia of supervisory status
under Section 2(11) of the Act. Her affidavit, presented
later to the Union, states that she was interviewed ,and
hired by Maffettone 6 months earlier. Despite thisal-
leged occurrence, this information was not presented to
the Union before the filing of the decertification petition
by Maffettone. , •. .
, 2. Animosity toward Maffettone
Tarantola frankly admitted without hesitation that,. on
hearing that -Maffettone was responsible for the filing of
the decertification petition, he became very angry. This,
of course, would be a natural reaction of any agent of a
union which represented a group of employees. Al-
though under similar circumstances, other union repre-
sentatives may react in a very calm and placid manner
' on hearing such news, even they would not appreciate
Maffettone's -actions..
3. Insufficient evidence to support the sending of
the October 12 letter to Maffettone
The General Counsel argues that the October 12 letter
advised Maffettone of the termination_ of her health and
welfare benefits. Respondents, on the other hand, argue
that the letter merely signified a suspension of benefits
which eventually was restored. A reading of the letter
reveals that neither the word "termination" nor "suspen-
sion'', was used. The first paragraph appears to indicate
that the benefits would be suspended "until this matter is
clarified." However, in the second paragraph, the letter
also states, "you shall no longer be covered under this
plan," and further suggests that Maffettone obtain indi-
vidual coverage. Although Maffettone's coverage was
• reinstated at a later date, for at least the period from No-
vember 14 to December 20 . slie was not covered by the
plan, and therefore suffered potential harm. Inasmuch as
the record revealed that Maffettone had a serious medi-
cal problem at the time, at minimum the receipt of the
letter had a chilling effect on her.
Although he may have believed he was acting in 'good
• faith, Tarantola had insufficient evidence as of October
12 to warrant the issuance of the letter. The sole evi-
dence presented to Tarantola consisted of statements by
his two agents, Ortiz and Gutierrez, that they had heard
from employees in the unit that Maffettone was a super-
visor.' Respondent argues that the affidavit-of Gross sub-
stantiates in detail these allegations. However, as the
General Counsel and the Employer correctly point out,
the affidavit of Gross-was obtained subsequent to the_is-
suance of the October 12 letter. Although Ortiz and Gu-
tierrez- were requested by Tarantola to obtain evidence
of Maffettone's supervisory status, the record revealed
that, as of October 12, no further evidence had been ob-
tained.
'4. Failure to contact Maffettone prior to thefl
. issuance of the letter
'The record. is clear that it was not until November 30
that Tarantola wrote to both MaffettOne and the. Em-
ployer requesting .their_assistance in the investigation, of
her alleged -supervisory status. It is further clear that at
,no time ,prior to the issuance . of.the October . 12 letter, al-
though'Maffettone had been a union member -and in the
appropriate unit for many years, did Respondents obtain
•,Maffettone's position with respect to the problem at
hand. No explanation was offered at the hearing for this
-failure to.contact Maffettone.
5. Failure tO IresPOnd to communications from
Maffettone and the Employer
It is undisputed that following the receipt of the Octo-
• ber 12, letter both Maffettone and the Employer wrote
letters to Tarantola protesting the threat of termination
SERVICE EMPLOYEES LOCAL 14 (SHOR CO.) 937
of benefits. Tarantola did not respond to these communi-
cations. In addition, although Maffettone's attorney ad-
vised him that any further correspondence to Maffettone
should be directed to her, Tarantola ignored this request
and continued to deal with Maffettone directly
6 Conflict between Ortiz and Gutierrez
Ortii testified that he was unable to obtain verification
of Maffettone's supervisory status from unit employees
because Maffettone followed him around the facility
while he was attempting to speak to employees. On the
other hand, Gutierrez testified that he had no problem in
speaking to other employees at the facility. Ortiz was'
unable to explain why he did not -diligently pursue the
matter further by contacting employees either at their
homes or somewhere outside the Employer's premises
where Maffettone could not interfere. Whether he was
negligent, had no time, or was aware that no evidence
was forthcoming to support the allegations furnished to
him earlier is of no consequence. I conclude that the evi-
dence presented at the hearing is sufficient to warrant a•
finding that Ortiz did not act in good faith.
.7. Failure to contest the status,of,Maffettone,
The evidence is undisputed that, following the filing of
the decertification petition, a hearing was held to deter-
mine, among other matters, the eligibility of Maffettone
to vote in a Board-conducted election. Although aware
that this representation hearing was taking place, Re-
spondent Union chose not to participtate at the hearing.
Had Respondent Union reason to believe that Maffettone
was a supervisor, which belief warranted the suspension
of her benefits, logic dictates that it would have partici-
pated at the hearing in an effort to prove this point. Yet,.
no effort was made by Respondent Union to contest the
supervisory status of Maffettone at the hearing.
8. The letter of December 20 reinstating
Maffettone's -benefits
In his letter to Maffettone reinstating her, coverage,
Tarantola offered no explanation for his change of heart.
The record is bare of any evidence indicating that 'any
further investigation was conducted following the refusal
of Maffettone and the Employer to cooperate in the in-
vestigation of her supervisory status. Had Tarantola
acted in good faith, on being advised by Ortiz and Gu-.,
tierrez that employees would not cooperate' with them,
he could have advised Maffettone immediately thereaf-
ter, by telephone or telegram if necessary, of the rein-
statement of her benefits. Surely by November 14, the
date that the coverage was suspended, Taranto1a was
aware that he would be unable to obtain any concrete
evidence to justify the suspension as indicated in his Oc--
tober 12 letter.
Although the General Counsel argues that the address-
ing of the October 12 letter to the employer's -establish-
ment is further evidence of Respondents' wrongdoing, I
do not adopt this argument. Tarantola's explanation for
the reason he sent the letter to the workplace rather than
to the residence of Maffettone is most reasonable. As the
letter was sent certified, and as Tarantola was aware that
Maffettone was at work, it is logical that the letter be
sent there, rather than to her home where she would not
be able to retrieve the letter until a Saturday morning.
However, her reaction on receipt of the letter, including
the fact that she showed it to other employees, many of
whom, according to Maffettone's undisputed testimony,
expressed fears that their own benefits would be termi-
nated, is 'a consequence for which Respondents must be
held accountable. I do not accept Respondents' conten-
tion that Maffettone, with authority from the Employer,
deliberately circulated the October 12 letter in order to
instill a sense of fear in employees. As evidence is lack-
ing that Maffettone is an agent of the Employer, I do not
hold the Employer liable. Maffettone's reaction was one
of anger and fear and moreover, it was quite natural that
her coworkers would inquire about her apparent agita-
tion, thus leading to the disclosure of the October 12
letter
Respondents further contend that the General Counsel
has failed to prove that, but for Maffettone's filing of the
decertification petition, Tarantola would not have under-
taken the actions he did. I find no merit in this argument.
'In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board enunciated a test in all cases alleging violations of
Section 8(a)(3) of the Act or violations of Section 8(a)(1)
turning on employer motivation: (1) The General Coun-
sel must make a prima facie showing sufficient to support
an inference that the protected conduct was a motivating
factor in an employer's decision; and (2) on such a show-
ing, the burden of proof then shifts to the employer to
demonstrate that even in the absence of the protected
conduct, the same action would have been undertaken
by him.
In subsequent decisions, the Board's analysis of Wright
Line has been applied to cases involving the motivation
of respondent unions under Section 8(b)(1)(A) and (B)
and (2) of the Act. Plumbers Local 669 (American Fire
Protection), 268 NLRB 515 (1984).
Based on my analysis of the evidence as detailed
above, I conclude that the benefits enjoyed by Maffet-
tone under the health and welfare plan would not have
been suspended but for her filing of the decertification
petition I reject Respondents' argument that in two
other instances employees' benefits had been suspended
pending investigation of charges against them The facts
of those cases are unlike the facts of the instant case.
Here, Maffettone was attempting to decertify the Union
and Respondents' actions were in retaliation for her at-
tempt
Respondents further argue that Tarantola acted within
the provisions of Section 302(c)(5) of the Labor Manage-
ment Relations Act and Sections 404, 405, and 502 of the
Employee, Retirement Income Security Act (ERISA). I
find both these laws inapplicable to the instant matter. In
the first 'place, for the reasons as detailed above, there is
insufficient evidence on which anyone could have ac-
cused Tarantola of any violation of any other law had no
action been taken against Maffettone until such time as
sufficient probative evidence had been obtained to estab-
lish her supervisory status, which, of course, never oc-
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
curred. Furthermore, as detailed below, I find that Tar-
antola acted as president of Respondent Union, rather
than as a- trustee or administrator of Respondent Fund
In conclusion, although standing by itself, each and
every one of the specific points explained above may not
be sufficient to warrant a conclusion that a violation oc-
curred, the totality of the evidence has convinced me
that Respondent Union violated Section 8(b)(1)(A) and
(2) of the Act.
I. Relationship of Respondent Fund and Respondent
Union
Having found that Tarantola violated the Act, the next
questions are in what capacity did he violate the Act,
and whether or not the Fund should be held liable for
Tarantola's acts.
In Hospital Employees (Sinai Hospital), 248 NLRB 631,
633 (1980), the Board found that a union's collective-bar-
gaining representative, who was also a trustee of a fund,
collaborated with other fund trustees in denying an em-
ployer's request for certain specific information. The
Board held that the union representative violated the Act
as a trustee of the fund by his action, and thereby violat-
ed his "affirmative obligation to make a reasonable effort
to obtain the information, or to investigate reasonable al-
ternative means for obtaining it or to truthfully explain
or document the reasons for its unavailability."
The Board's decision in Sinai preceded_ a Supreme
Court decision in which the Court held that employer-
designated trustees Of a trust fund are dot representatives,
of the employer "for the purposes of collective bargain-
ing or the adjustment of grievances" within the meaning
of Section 8(b)(1)(B) of the Act NLRB v. Amax Coal
Co., 453 U.S. 322, 337 (1981).
In light of the Supreme Court decision in Amax, in a
recent' decision the Board modified its holding in Sinai
and concluded that "our decision in Sinai continues to be
valid only where a collective-bargaining representative
demonstrates that it is in de facto control of a nominally
independent trust fund." Food & Commercial Workers
Local 1439 (Layman's Market), 268 NLRB 780, 781
(1984).
The General Counsel contends that the evidence is
clear that Respondent .Union made Respondent Fund its'
agent "when it had the Fund threaten Maffettone with
civil suit, threatened to terminate her coverage, and ter-
minated her benefit coverage because she filed a decerti-
fication petition."
Respondent contends that the record does not contain
any direct evidence to support the General Counsel's po-
sition. Moreover, it argues, citing Amax, that Tarantola's
actions as Fund administrator were not only lawful but
mandatory under ERISA, which provides that trustees
owe their primary loyalty not to those protected under
Section 7 of the Act but to those defined as trust benefi-.
ciaries, namely, all the participants and their dependents.
Respondent further argues that if the matter is dismissed
against Respondent Fund, then Respondent Union also
must be found innocent of any wrongdoing.
As related above, the facts are not in dispute. The four
union-appointed trustees of the fund are Tarantola, Gu-
tierrez, Johnson, and Ortiz, who are , respectively the
president, vice president, secretary-treasurer, and orga-
nizer_of Respondent Union The offices of the Fund are
located in the same building and on the same floor as the
offices of the Union. The union agents perform their
duties as Fund trustees from their union offices. Al-
though Tarantola attempted to demonstrate that he per-
formed certain functions as a union officer, and other
functions as the administrator of the Fund, I find it diffi-
cult to separateone function from the other.
As the General Counsel correctly pointed out in her
brief, on hearing from the union agents of the possibility
that Maffettone was a supervisor, Tarantola, without
much deliberation or hesitation, immediately notified her
that her coverage would no longer be in effect As ad-
ministrator of the Fund, there would be no reason for his
hastiness in writing the letter without further evidence
Although Respondent Fund asserts that it was Taranto-
la's duty as Fund administrator to protect the benefici-
aries,of the Fund, it was also his duty as union official
and collective-bargaining agent of Maffettone to protect
her rights. As I find that there was no reason for the
Fund to act as quickly as Tarantola did, I conclude that
his action in writing to Maffettone was for the benefit of
the Union and that, although he characterized his action
as that of the Fund administrator, in reality it was an
action of an agent of Respondent Union
Another factor which militates against Respondents'
claim that Tarantola was acting for the Fund was the
fact that, before benefits of beneficiaries of the Fund
could be terminated, the matter had to be considered and
voted on by the entire board of trustees of the Fund. In -
this case, however, Tarantola made his decision unilater-
ally, without consultation with anyone. Although Re-
spondent may contend that as administrator of the Fund
Tarantola had the right to act as he did, again, I con-
clude that his actions cannot be attributed to the Fund
but to Respondent Union whose principal interests Tar-
natola represented at the time he committed his actions.
Accordingly, in applying the Board ruling enunciated
in Food & Commercial Workers, supra, I am constrained
to draw the conclusion that, as Tarantola had de facto
control of the Fund, all -actions by him, as related above,
are imputed to Respondent Union I further find that the
board of trustees of Respondent Fund, which included
the employer-appointed trustees, never was afforded an
opportunity to either confirm or refute Tarantola's ac-
tions with respect to Maffettone. Therefore, I do not
find, as the General Counsel contends, that the Fund was
an agent of Respondent Union. Having found that the
actions of Tarantola were performed in his capacity as
the agent of Respondent Union, I shall recommend that
the complaint against Respondent Fund be dismissed in
its entirety
IV. REPORT ON OBJECTIONS TO THE ELECTIONS
The record establishes that a petition for decertifica-
tion of Respondent Union in Case 2-RD-1073 was filed
on October 1 Pursuant to a Decision and Direction of
Election issued by the Regional Director on February
10, 1983, an election was held on March 10, 1983 The
tally of ballots revealed that 14 votes were cast for Re-
' SERVICE EMPLOYEES LOCAL 1-J (SHOR CO.) 939
spondent Union and 11'were cast against it, with 1 . chal-
lenged ballot insufficient to- affect the results of the elec-
tion. A majority of the valid votes counted plus the chal-
lenged ballot were cast for Respondent Union. On
March 17, 1983, the Employer filed timely objections to
the conduct of the, election. The objections, verbatim,
were as follows:
•
1. On or about October 12, 1982, and continuous-
ly thereafter, the Amalgamated Jewelry, Diamond
and Watchcase ,Workers', Union, Local 1-J,
S.E.I.U., AFL-CIO [hereinafter the "Union"] by its
officers, agents, representatives, and others acting in
concert with them, restrained and ,coerced the de-
certification petitioner and other eligible voters and
is restraining and coercing the decertification peti-
tioner and other eligible voters in the exercise of
their Section 7 rights, by:
a. threatening to terminate the decertification
petitioner's welfare benefits,
b. threatening to commence legal action
against the decertification petitioner;
c. terminating the decertification petitioner's
welfare plan coverage on or about November 14,
1982; .
d. failing and refusing to pay claims submitted
to the Union and its Welfare Fund in behalf of
the decertification petitioner;
e. creating an atmosphere- of fear of retaliation
among the eligible voters that any who opposed
or voted against the Union would risk imminent
loss of insurance coverage and other Welfare
Fund benefits.
The above-specified acts and other related ac-
tions or inaction by the Union within the critical
preelection period so impaired voter free choice
that the election should be set aside on' these
grounds alone and a new election should be con-
ducted.
2. On or about October 12, 4982; and continuous-
ly thereafter, the Jewelry Manufacturers Associ-
ation/Local 1-J Welfare Fund, a labor organization
or, an agent of the Union, by its officers, agents,
representatives and others acting in concert with
them, restrained and coerced the decertification pe-
titioner and other eligible voters and is restraining
and coercing the decertification petitioner and other
eligible voters in the exercise of their Section 7
rights by engaging in the acts specified in Count 1
(a-e) and other related actions or inactions Such
actions within the critical pre-election period so im-
paired voter free choice that the election should be
Set aside on these grounds alone' and a new election
Should 'be 'conducted.
3 Threats of violence and retaliation against em-
ployees during the critical period so permeated the
atmosphere of the election as to impair voter free
choice and destroy the laboratory condiditions re-
quired in Board elections.
4. During the cntical period preceding - the elec-
tion, the Union, by its offieers, agents: representa-
tives, and others acting in concert with them co-
erced and intimidated eligible voters by entering the
Employer's premises and committing the following
acts:
a. threatening employees with loss of employ-
ment, if they voted against the Union;
b. threatening employees with lois of wages,
hours, benefits and working conditions, if they
yoted against the Union;
c. coercing, harassing and intimidating workers
at their work station;
d. stopping production at the Employer's facil-
ity without notice to or permission by the Em-
ployer;
e. disrupting and interfering with the Employ-
. er's business by engaging in boisterous harangues
of employees in the middle of the production
area.
By this and other related conduct, the Union
created fear of retaliation in the minds of voters,
„ which impaired voter free choice and affected
the results of the election
5. During the 24-hour period immediately pre-
ceding the election, the Union, by its officers,
agents, and representatives made campaign speeches
to assembled groups of employees on Company
time. Peerless Plywood Co., 107 NLRB 427, 333
.LRRM 1151 (1953).
' 6. By this and other conduct, the Union inter-
' fered with-the election and destroyed the laboratory
conditions required in Board elections.
An analysis of each objection reveals the following:
1(a) Threatening to Terminate the Decertification Petition-
er's Welfare Benefits: The facts and conclusions relating
to this specific objection have been detailed above under
the section "Unfair Labor Practices." Having found that
the conduct of the Union constituted a violation of the
Act, a fortiori I find that the Employer has sustained its
.burden of proof with respect to this objection.
(b) Threatening to Commence Legal Action Against the
Decertification Petitioner: Apparently, the Employer bases
this objection on language in the third paragraph of the
October 12 letter which . states, "Therefore, we are com-
mencing aw . investigation- to determine whether a fraud
has been perpetrated upon the Fund. If so, we may hold
you and/or I. Shcir liable for any claims paid to you
•during your period of non-bargaining unit status."
Although the General Counsel and the Employer have
concluded that a threat of legal action was being made
to 'Maffettone by Tarantola, I do not find that this con-
clusion is warranted. Nowhere in the letter is there any
language stating that legal , action would be commenced
against Maffettone. To hold Maffettone or the Employer
liable for any claims paid to her can be construed in
.many ways. Tarantola .had options of collecting the
moneys paid, if warranted, through various means, in-
cluding threatening to expel Maffettone from the Union
Accordingly, I find that the Employer has not sustained
its burden of proof with respect to.this objection.
(c) Terminating the De-certification Petitioner's Welfare
Plan . Covercige - about November' 14, 1982: For the same
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons as stated in 1(a), I find that the Employer has
sustained its burden , of proof with respect to this objec-
tion
(d) Failing and Refusing to Pay Claims Submitted to the
Union and Its Welfare Fund in Behalf of the Decertifica-
tion Petitioner: Tarantola testified, without contradiction,
that no claims to the Fund were submitted by Maffettone
between November 14 and December 20. Accordingly, I
find that the Employer has not sustained its burden of
proof with respect to this objection.
(e) Creating an Atmosphere of Fear of Retaliation among
the Eligible Voters that Any Who Opposed or Voted Against
the Union Would Risk Imminent Loss of Insurance Cover-
age and Other Welfare Fund Benefits . The undisputed evi-
dence as submitted by Maffettone that fellow employees
reacted in fear on reading the letter of October 12, as . de-
tailed above in the unfair labor practices section of this
decision, supports the objection. Accordingly, I find that
the Employer has sustained its burden of proof with re-
spect to this objection
2. The objection contained in paragraph 2 is substan-
tially identical to the objection raised in 'paragraph 1
Thus, for the reasons stated above, I find that the Peti-
tioner has sustained its burden of-proof with respect to
this objection.
3. Threats of Violence and Retaliation Against Employees
During the Critical Period so Permeated the Atmosphere of
the Election as to Impair Voter Free Choice and Destroy
the Laboratory Conditions Required in Board Elections: I
find no evidence in the record of any threats or violence
against any employees by agents of the Union. .Despite
the hostility that Respondent Union may have had and
demonstrated against Maffettone, I find no evidence that
threats or actual violence were committed by any agent
of Respondent Union. Accordingly, I find that the Em-
ployer has not sustained its burden of proof with respect
to this objection.
4(a), (b), and (c). To support these objections, Re-
spondent relied on the testimony of Maffettone who
stated that, on March 8, 2 days prior to. the scheduled
election, union agents Ortiz and Johnson spoke with em-
ployees, including Maffettone, at their work stations
during working hours. Ortiz warned employees that if
they voted the Union out they would be out of a job the
day after. Maffettone testified that Johnson yelled and
screamed at her that "if we vote the Union on Thursday
that we'd all be out of jobs on Friday, and he just was
screaming at me and I don't remember everything he
said." As neither Johnson nor Ortiz disputed that these
statements were made by them, I find that the Employer
has sustained its burden of proof with respect to these
objections.
4(d) and (e). The undisputed evidence revealed that
during, the entire period that the collective-bargaining
agreement was in effect, union agents were able to enter
the Employer's premises and speak to employees at will.
Nothing is contained in the record which establishes that
specific permission from the Employer was necessary
prior to their speaking to employees. No evidence was
adduced that the union agents, , either themselves or
through other employees, stopped production and inter-
fered with the Employer's business during -their visits to
the facility Accordingly, I find that the Employer has
not sustained its burden of proof with respect to 4(d) and
(e).
. 5. Violation of the Peerless Plywood Rule . The Employer
contends that on the morning of the election, March 10,
1983, .Ortiz entered the Employer's premises and made
campaign speeches lasting 5 to 15 minutes apiece to-as-
sembled groups of unit employees on company time and
less than 1 hour before this scheduled election
The evidence on which the Employer relied to sup-
-port its objection is the testimony of Maffettone who as-
serted that on the morning of the election she observed
'Ortiz speaking to two unit employees from 5 to 15 min-
utes. She did not hear what he said. She then testified
that she went to the receiving and shipping area in the
back of the facility, remaining there about 10 minutes.
No evidence was offered to indicate what, if anything,
took place in the shipping and receiving area.
Under Peerless Plywood Co., 107 NLRB 427, 429
(1953), the Board established a rule banning campaign
speeches of any kind by either unions or employers to as-
sembled groups . of employees on company time and
property within 24 hours before a scheduled election. A
violation of this rule automatically is grounds for setting
aside the election. I do not conclude that a union agent
speaking to two employees at the - employer's premises
approximately 45 minutes prior to the opening of the
polls, in which no evidence was obtained as to what was
said • to these employees, constitutes a violation of the
Peerless Plywood rule. Accordingly, I find that the Em-
ployer has not sustained its burden of proof with respect
to -this objection. Hudson Oxygen Therapy Co., 268
NLRB 1374 (1984).
6 Through the Conduct ,of Its Agents, the Union Inter-
fered with the Election and Destroyed the Laboratory Con-
ditions Required in Board Elections: Although there is in-
sufficient evidence to sustain some of the objections
raised by. the Employer, I find that other objections do
have merit. Accordingly, I recommend that the election
-held in Case 2-RD-1073 on Match 10, 1983, be set aside
and a second election be conducted following an appro-
priate posting period.
CONCLUSIONS OF LAW
• 1. The I. Shor Company, Inc is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening to WI-inmate the insurance benefits of
Inan. Maffettone because she filed a decertification peti-
tion with the Board, Respondent Union has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act.
4. By, suspending the insurance benefits of Joan Maffet-
tone between November 14 and December 20, 1982, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(b)(1)(A) and
(2) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
SERVICE EMPLOYEES LOCAL 1-J (SHOR CO) 941
6. Respondent Union's unlawful conduct interfered
with the representation election conducted on March 10,
1983.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor , practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action,
as provided for in the Order, to remedy, and remove the
' effects of the unfair labor practices and to effectuate the•
purposes of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 4
ORDER
The Respondent, Amalgamated Jewelry, Diamond and
Watchcase Workers Union, Local 1-J, SEIU, AFL-
CIO, - its officers, agents, and representatives, shall • ..
1. Cease and desist from -
(a) Threatening to terminate insurance benefits of Joan
Maffettone or any other employee of the I. Shor Compa-
ny, Inc. for filing a decertification petition with the
Board, or engaging in any other protected concerted ac-
tivity.
(b) Suspending the insurance benefits of Joan Maffet-
tone, or any other employee of the I. Shor Company,
Inc., for filing a 'decertification petition with the Board,
or engaging in any other protected concerted activity.'
(c) In any like or related manner restraining or coerc-
ing employees of the I. Shor Company, Inc in the exer-
cise of rights guaranteed in Section 7 of the_ Act, except
to' the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act. .
(a) Make whole Joan Maffettone for any loss of bene-
fits suffered by her and for any expenses incurred by her
as a result of the unfair labor practices of Respondent
Union. Said pecuniary loss, with interest, is to be deter-
mined by the Regional Director for Region 2.
(b) Post copies of the attached notice marked "Appen-
dix" in conspicuous places in its business offices and
meeting halls, and all places where notices to. members
are customarily posted 5 Copies of the notice, on forms
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
5 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
provided by the Regional Director- for Region 2, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by . Local 1-J to ensure that the notices are not
altered, defaced, or covered by any other material.
(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 ORDERED that the complaint be dis-
missed insofar as it alleges unfair labor practices commit-
ted by Jewelry Manufacturers Association, Local 1-J
Welfare Fund.
IT IS FURTHER ORDERED that the election in Case 2-
RD-1073 conducted on March 10, 1983, is set aside and
that, after an appropriate posting period, a new election
be scheduled by the Regional Director for Region 2,
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to terminate insurance benefits
of Joan Maffettone, or any other employee of the I. Shor
Company, Inc., for filing a decertification petition with
the National Labor Relations Board or engaging in any
other protected concerted activity. -
- WE WILL NOT suspend insurance benefits of Joan Maf-
fettone, or any other employee of the I. Shor Company,
Inc, for filing a decertification petition with the National
Labor ' Relations Board or engaging in any other protect-
ed concerted activity
WE WILL NOT in any like or related manner restrain or
coerce employees of the I. Shor Company, Inc , in the
excercise of rights guaranteed in 'Section 7 of the Act,
'except to the extent that such rights may be affected by
an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by Sec-
tion 8(a)(3) of the Act
WE WILL make whole Joan Maffettone for any loss of
benefits suffered by her and for all expenses incurred by
her as a result of our unfair labor practices.
AMALGAMATED JEWELRY, DIAMOND AND
WATCHCASE WORKERS UNION, LOCAL 1-J,
SEIU, AFL-CIO