Aitoo Painting Corp.

National Labor Relations Board - Board Decisions

Sep 26, 1978

238 N.L.R.B. 366 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aitoo Painting Corporation and New York District
Council No. 9, International Brotherhood of Paint-
ers and Allied Trades, AFL-CIO. Case 29 CA-
5964
September 26, 1978
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On July 26, 1978, Administrative Law Judge Jesse
Kleiman issued the attached Decision in this proceed-
ing, and, on the same date, the case was transferred to
and continued before the National Labor Relations
Board in Washington, D.C. The Administrative Law
Judge found that Respondent has engaged in certain
unfair labor practices and recommended that it take
specific action to remedy such unfair labor practices.
Respondent has filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority' in this proceeding to a three-member panel.
The Board's Rules and Regulations, Series 8, as
amended, set forth the minimum requirements with
which exceptions to an Administrative Law Judge's
Decision must comply in order to merit consideration
by the Board. Parties questioning findings of an Ad-
ministrative Law Judge must, inter alia, set forth with
specificity those portions of the Decision with which
they disagree and support these contentions with le-
gal or record citation or appropriate argument.'
The "exceptions" filed herein2 fail to meet these
minimum standards. They do not allege with any de-
gree of particularity what error, mistake, or oversight
the Administrative Law Judge committed or on what
grounds the findings should be overturned. If'a party
intends to place a matter in issue, it is incumbent
upon that party to notice such contentions to the
Board with specificity. By its "exceptions" here, Re-
spondent would have the Board engage in a fishing
t Sec 102.46(hb) if the Board's Rules and Regulations states:
(b) Each exceptiion I Ishall set forth specificall) the questions iof
procedure, fact, law. or policy to which exceptions are taken. (2) shall
identify that part of the administrative law judge's decision to which
objection is made; (3) shall designate bh precise citation of page the
portions of the record relied on. and (41 shall state the grounds for the
exceptions and shall include the citation of authorities unless set forth in
a supporting brief: Any exception to a ruling,. finding. conclusion, or
recommendation which is not specifically urged shall be deemed to have
been waived. Any exception which fails toi coimpls with the foregoing
requirements may be disregarded
2 Respondent's exceptions read as follows:
IT]he respondent herein . . takes excepti n to the entire decisiion ot
the Administrative L.aw Judge, dated July 26, 1978, including his rulings
upion all muotiotns and objections, his entire findings, conclusions and
recommendations, which are contrary to lIau and contrary to a prepon-
derance of the findings submitted betiore him.
expedition to determine what, if any., problems, ir-
regularities, or manifest error ensued. However, the
Board is not obliged to embark on spurious or frivo-
lous endeavors. As the instant "exceptions" are insuf-
ficient to put in issue any finding of the Administra-
tive Law Judge, we reject them. Thus, in the absence
of exceptions thereto, the findings, conclusions, and
recommendations of the Administrative Law Judge
as contained in his Decision shall automatically be-
come the Decision and Order of the Board.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, and Section 102.48 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Board hereby adopts
the rulings, findings, conclusions, and recommended
Order of the Administrative Law Judge and orders
that the Respondent. Aitoo Painting Corporation,
New York, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
'Sec 102.48(a of' the Board's Rules and Regulations. Series 8, as
amended.
DECISION
SlAlMEINI O()i 111 (CASE
Ji ssi. Ki.eIMAN, Administrative l.aw Judge: Upon a
charge filed on October 11, 1977, by New York District
Council No. 9. International Brotherhood of Painters and
Allied Trades. AFL-CIO. herein called the Union. the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 29, Brooklyn, New
York, duly issued a complaint and notice of hearing on
November 30. 1977. against Aitoo Painting Corporation,
hereinafter called the Respondent, alleging that the Re-
spondent engaged in certain unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act. On De-
cember 12, 1977, the Respondent, b? counsel. duly filed an
answer denying the allegations of unlawlful conduct alleged
in the complaint.
A hearing was duly held before me in Brooklyn. New
York, on March 13, 1978. All parties were afforded full
opportunity to appear, to introduce evidence, to examine
and cross-examine witnesses, to argue orally on the record,
and to file briefs. No briefs were filed herein.
At the conclusion of the General Counsel's case, the Re-
spondent moved to dismiss the complaint for failure of
proof. I denied the motion. Again, at the close of the hear-
ing, the Respondent renewed its motion to dismiss, upon
which I reserved decision. For reasons hereinafter appear-
ing I deny the Respondent's motion to dismiss in its en-
tirety.
Upon the entire record in this case, and from my obser-
vation of the demeanor of the witnesses, I make the follow-
ing:
238 NLRB No. 51
366
AITOO PAINTING(; CORP.
FINDIN(iS OF FA(CI
I. HFE IBUSINESS OF Tlil RESPONDFNI
The Respondent. at all times material herein, has been a
corporation organized under and existing by virtue of the
laws of the State of New York, maintaining its principal
office and place of business at 25-45 32d Street, in the
county of Queens, city and State of New York, where it is.
and has been continuously. engaged in providing painting
and related services. In the year preceding the hearing,
which period is representative of its annual operations gen-
erally, the Respondent in the course of its business provided
painting services valued in excess of $50,000 directly to the
city of New York, a municipality which in turn purchased
goods and services valued in excess of $50,000 directly from
firms located outside the State of New York. The complaint
alleges, the Respondent admits, and I find that it is now.
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. [lil I ABOR ORiANIZAHION INVOLVE )
The complaint alleges, the Respondent admits, and I find
that New York District Council No. 9. International Broth-
erhood of' Painters and Allied Trades, AFL-CIO, is. and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
ll. itE UNFAIR l.AROR PRA( II( S
A. Background
On or about March 16. 1976. the Respondent and the
Union entered into a collective-bargaining agreement the
expiration date of which was July 31, 1977. As alleged by
the Respondent. during the period March 16, 1976. through
July 31, 1977, the term of' the bargaining agreement. more
than 50 percent of its employees registered dissatisfaction
with the Union, and the Respondent thus refused to renew
the bargaining agreement when it expired on July 31, 1977.
instead, on August 5, 1977. the Respondent filed its petition
for an election with the Board in Case 29-RM-539. An
election by secret ballot was conducted on September 30,
1977, pursuant to a Decision and Direction of Election by
the Regional Director for Region 29. Brooklyn, N.Y.. dated
August 31, 1977. in a unit appropriate for the purposes of
collective bargaining comprising all journeymen, painters,
paperhangers, and apprentices (excluding all other employ-
ees, guards, and supervisors as defined in the Act) employed
by the Respondent.' The Union lost the election, failing to
obtain a majority in its favor of the votes cast therein.' On
October 7. 1977. the Union filed timely objections alleging.
in substance, that the Respondent had omitted eligible vot-
ers from the Eccelvior list submitted and, further, had mis-
represented as to the actual employees properly to be in-
this unit was coextensive with hat set fIorth in the expired colleclive-
bargaining agreement
Four ballots were voted in flaor of the Union. and five were cast against
it
cluded in the unit. As stated above, the Union also filed an
unfair labor practice charge with the Board on October I 1,.
1977.
On December 21, 1977. the Regional Director in a Sup-
plemental Decision and Direction of Second Election found
that there had been substantial noncompliance with the Ex-
cclsior requirements warranting the setting aside of the elec-
tion held on September 30, 1977, and directed that a new
election be conducted at some future date.'
B. .4 cit of lInterterence, Restraint, anad ('oercion
The complaint alleges, in substance, that the Respondent
interfered with, restrained, and coerced and is interfering
with, restraining, and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act, in that the
Respondent offered and promised its employees wage in-
creases and other benefits and improvements in their work-
ing conditions and terms of employment to induce them to
refrain from becoming or remaining members of' the Union,
interrogated its employees concerning their membership in,
activities on behalf of. and sympathy towards the Union
and warned and directed its employees to refrain from be-
coming or remaining members of the Union and from giv-
ing any assistance or support to it and thereby engaged in,
and is engaging in, unfair labor practices affecting com-
merce within the meaning of Section 8(a)(I) and Section
2(6) and (7) of' the Act. The Respondent denies these allega-
tions.
The Evidence
Miguel Cloquell. the General Counsel's sole witness, tes-
tified that he commenced his employment with the Respon-
dent as a painter on June 16, 1977. He continued that dur-
ing the month of August 1977. his "boss" Markos
Zafiropoulos,2 often stated to him that "... the U'nion is no
good. I give you better benefits, you out of the Union."'
Cloquell stated that he had been a member of the Union for
"9-10 years."
Cloquell related that on September 21 or 22. 1977, a Fri-
dav,6 after completing his work he was informed by Zafiro-
3 Excelrior U'nders.ear Inc., 156 NLRB 1236 (1966); Pactfic Gamble Rohin-
son (o., 180 NLRB 532 /1970); Sonfarrel, Inc.. 188 NLRB 969 (1971);
('hemical Technolog, Inc., 214 NLRB 590 (1974).
4 Zafiropoulos is either the Respondent's secretars. as he so testified and as
set forth in his affidavit given to a Board agent investigating the charges filed
herein, or the Respondent's president, as stated in another affidavit given by
him in support of the Respondent's petition in Case 29 RM 539
'The Respondent's counsel introxuced Chloquell' sworn written affidavit
dated October 27, 1977. in evidence, contending it was a prior contradictory
statement. and while I do not agree with this contention, I find it is before me
for consideration and paragraph 4 thereof states:
Marco lZafiropoulosl began to talk to me about how bad the Union
was. I never said anything to him because I was afraid of losing my job.
One das he said that if' I quit the Union he would give me the same
benefits if I dropped out of the Union. He repeated this seseral times.
This was before the Nl.RB election was held lie said rather than pay
the money to the Union he would pay the people directly I told him I
thought he couldn't give all the benefits that the Inion gave. lie said he
would do it. Most of these conversations took place during the month of
September, hut I do not know the exact date
September 22. 1977. is a Thursday. and Cloquell's testimons is not that
clear concerning this date September 2 I. 1977. was also mentioned bs Clo-
quell as the date of this telephone call
367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poulos that there was no additional work for him the fol-
lowing week. Cloquell stated that he then took the paint-
brush and some epoxy material he used in his work,
informed Zafiropoulos he would call the next week to find
out if any work was available, and left for home. According
to Cloquell, he received a telephone call from Zafiropoulos
that very evening, during which he was asked if he had
gotten the Board's notice of election to be held on Septem-
ber 30, 1977. When Cloquell said he had, Zafiropoulos in-
quired if Cloquell intended to vote in the election or not, to
which, as Cloquell testified, he responded, "I think so I no
go." While Cloquell stated to Zafiropoulos he had initially
insisted that he appear and vote in the election, he admitted
that Zafiropoulos did not tell him to vote against the
Union.7
Cloquell additionally testified that Zafiropoulos said to
him during this telephone conversation that the Respon-
dent was in competition with other painting firms, which
was not only Zafiropoulos' own problem but that of Clo-
quell's as well; that ". . he want no union I have to find a
job if you want to join the Union"; and that ". . . he wanted
to make sure everything goes, he said he did not want any-
more union." Cloquell related that he told Zafiropoulos
during this conversation that he wanted to remain in the
Union. Zafiropoulos denied that such a telephone conversa-
tion between him and Cloquell ever took place. He testified
also that C'loquell had told him at work about receiving the
Board's election notice.
Cloquell continued that on September 30, 1977, after vot-
ing in the election, he left the polling place, entered the
parking lot located at Mitchell Houses project in the Bor-
ough of the Bronx, City and State of New York, where the
Respondent maintains a shop while its painters perform
painting services at the project, and observed Zafiropoulos
and some of the other employees standing around. Cloquell
stated that after greeting Zafiropoulos he asked if there was
any work for him, and Zafiropoulos' only reply was a
"downward movement of his hand" which Cloquell re-
garded as not only a negative response but one which
boded ill for him. However, Cloquell added that Zafiropou-
los did not say anything about the election or inquire as to
which way Cloquell had voted.
Markos Zafiropoulos' account of what happened at the
Mitchell Houses parking lot after the election on September
30. 1977, is quite different than that given by Cloquell. Za-
firopoulos testified that on that day, he, Cloquell, and sev-
eral other employees
8 were present in the parking lot subse-
quent to the election when he informed all the employees
there to report to work the following Monday, October 3,
1977.9 He stated that Cloquell told him he would not return
Again from Cloquell's affidavit, paragraph 5 states in substance that Za-
firopoulos said in this conversation. ". .. Next he said if I wanted to work in
a union I have to find another job. He said I would have to tell him if I was
going to vote or not going to vote. I told him I did not know ... and I asked
him why he wants to know. He said he wanted to make sure everyone goes.
He said he did not want anymore union and he could not pay anymore to
the union .. I asked him if it was important for me to go and he said 'no I
could stay home. It was no problem.' "
s Jose Rial, Jose Prienga, Ernesto Feebles, and Alex Zafiropoulos.
9 However, in a prior sworn written statement dated November 7, 1977,
given to a Board agent in the course of the investigation of the charges
herein. Zafiropoulos stated that he had spoken to Cloquell alone, with no one
else present, in the parking lot after the election on September 30, 1977.
to the job and actually failed to report for work on the
following Monday. Jose Rial, a painter employed by the
Respondent, testifying in its behalf, testified that he was
also present at the parking lot on September 30, 1977, when
Zafiropoulos told all the employees, including Cloquell, to
report for work on Monday, October 3, 1977. He stated
that although he waited for C(loquell to show up for work
that Monday morning in order to have Cloquell accompany
him to ajobsite, Cloquell never appeared, that day or there-
after. to
Cloquell testified that the following week he telephoned
Zafiropoulos on several occasions inquiring as to whether
there was any work available for him, and Zafiropoulos
told him that "no got no job for me no more." Cloquell
added that he asked Zafiropoulos for 2 days' pay owed him,
and Zafiropoulos told him he would not pay him unless he
returned the paintbrush and the epoxy material which Clo-
quell had in his possession. Cloquell testified that he had
taken the paintbrush and epoxy home with him with the
expectation of returning to work, since Zafiropoulos had
told him before the election that there would be work for
him subsequently but, after the election, had insisted there
would be no job for him thereafter.
According to C'loquell. Zafiropoulos appeared at his
home the following Sunday, and, after Cloquell had re-
turned the paintbrush and epoxy, Zafiropoulos offered him
a check in the amount of $110 which Cloquell refused to
endorse because the actual amount owed to him was $135.
He testified that Zafiropoulos refused to continue the con-
versation in Cloquell's home because Cloquell's wife was
present, and therefore both of them went outside. Cloquell
stated that he again asked Zafiropoulos for his job back, but
Zafiropoulos stated "You no come back to job because you
no go no vote you no suppose to go to vote." "I [no] got no
job for me because you come to vote." He added that Za-
firopoulos also said, "I give you no job the Labor Depart-
ment push me for give you back I give you one day or two
days because I know the law."
Cloquell testified that subsequently he received a tele-
phone call from Western Union in connection with a tele-
gram from the Respondent requesting that he report to the
Respondent's Mitchell Houses shop on Monday, February
8, 1978, at 7:30 a.m. for work." Cloquell stated he failed to
appear for work on that day because there was a severe
snowstorm which prevented him from getting there. Clo-
quell added that he telephoned Zafiropoulos the following
Wednesday but was unable to contact him.
Zafiropoulos denied ever having told Cloquell that he did
not want the Union or that Cloquell should or should not
vote in the election. Further, in the sworn affidavit previ-
ously referred to above given to a Board agent during the
investigation of the matter herein, Zafiropoulos stated:
'° According to Rial's own testimony, he gives work assignments to the
Respondent's other employees, is in charge when Zafiropoulos is not present.
and checks on the work being performed by the other painters and sees that
they are properly following directions.
i What purports to be a copy of the telegram sent, although Cloquell
admits the receipt thereof, indicates February 6, 1978.
368
AITOO PAINTING CORP.
About before the elections I discussed with Cloquell
and I told him that I would prefer to pay him the
money instead of the Union.'
Rial, the Respondent's other witness, testified that all the
Respondent's employees had received a wage increase on
August 1. 1977, and another increase in October or Novem-
ber 1977.1" He added that these wage increases were re-
ceived by the Respondent's employees pursuant to the pro-
visions of the collective-bargaining agreement with the
Union.
Zafiropoulos' explanation of these wage increases was
that the New York City Housing Authority, with whom the
Respondent has a contract for painting services, required
such periodic raises as well as did the collective-bargaining
agreement between the Respondent and the Union. When
Zafiropoulos was reminded that the bargaining agreement
had expired on July 31, 1977, and that the wage increase
was granted subsequent thereto, he maintained that the
New York City Housing Authority still required him to pay
the Union's prevailing wage rate, which he was doing. Za-
firopoulos added that he pays the same wage rate as that set
forth in the Union's contracts with other employers. even
though the Respondent's collective-bargaining agreement
with the Union has expired. He stated that the wage rate
required by the New York City Housing Authority is $9.37
per hour and that the Respondent actually pays its employ-
ees a higher wage rate, $9.55 an hour, the wage rate re-
quired pursuant to, as stated before, the Union's bargaining
contract with other employers or associations.
Analysis and Conclusions
Section 8(a)(I) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act.
The test applied in determining whether a violation of
Section 8(a)(1) of the Act has occurred is "'whether the
employer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of employee
rights under the Act.' "'4
The resolution of the issues presented herein rests primar-
ily upon a determination of the question of credibility,. and
such determination is, at best, often difficult and distressing,
as it is here. However a close analysis of the evidence herein
leads me inexorably to the conclusion that the Respondent
has indeed interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed in Section
7 of the Act.
Cloquell, whose testimony I credit over that of the Re-
spondent's witnesses, since it is supported by the evidence
12 There was a question raised as to the interpretation of Zafiropoulos'
statement, since he had wnritten it in Greek. The Greek translator who had
originally translated the document and acted as the interpreter during the
interview with Zafiropoulos was called as a witness at the hearing and trans-
lated the statement. Zafiropoulos contested the interpreter's translation of
this particular sentence, although unconvincingly.
1' Zafiropoulos testified that wage increases were given on August 1, 1977,
and February I, 1978.
14Jimmy Dean Meat Co., 227 NLRB 1012 (1977); Flectrical Fittings Cor-
poration, a subsidiar? of I-T-E Imperial Corporation. 216 N .RB 1076 (1975):
The Cooper Thermometer Company. 154 NLRB 502 (1965).
in the record as a whole, testified that in August 1977, sig-
nificantly in and about the same time that the Respondent
had filed its petition in the aforementioned representation
proceeding (Case 29 RM 539) and after the expiration of
the collective-bargaining agreement between it and the
Union, Zafiropoulos, the Respondent's secretary, told Clo-
quell that the Respondent would give him and the other
employees the "same benefits" if the Union no longer repre-
sented them and better benefits to Cloquell if he quit the
Union. This testimony is bolstered by Zafiropoulos' own
sworn statement dated November 7. 1977, in which he
states: "About before the election I discussed with Cloquell
and told him that I would prefer to pay him the money
instead of the union."' Cloquell additionally testified that
Zafiropoulos also told him that if Cloquell wanted to be
represented by the Union he would have to find another
job. While Zafiropoulos denied making such statements, his
actions belie this.
The uncontradicted evidence herein shows that the Re-
spondent granted wage increases to its employees,"6 match-
ing those paid to employees doing si;nilar work with em-
ployers who were still under bargaining contracts with the
Union. That such wage increases had as the purpose to
induce the Respondent's employees to refrain from voting
in favor of the Union. impinging upon their freedom of
choice for or against unionization, is obvious and can rea-
sonably be calculated to have had that effect. This is made
more evident when viewed in the light of Zafiropoulos'
statement to Cloquell that not only was the Respondent in
competition "with others" for painting contracts, and the
Union's continuation as the bargaining representative of
the Respondent's employees would place the Respondent in
a weakened competive position because of the additional
costs a new union contract would impose, but this was Clo-
quell's problem as well as that of the Respondent, carrying
with it the clear implication that the employees' jobs were
at stake as well in the election. Zafiropoulos' explanation
for the wage increase-- that the New York City Housing
Authority, with whom the Respondent has painting con-
tracts, requires this-is not persuasive at all, since he admit-
ted that while the City Housing Authority requires painters
to be paid $9.37 an hour, the Respondent pays its painters
$9.55, an amount which painters receive pursuant to the
Union's other contracts still in force.
It is evident from the above that the Respondent's ac-
tions were directed toward influencing the election in its
favor and excluding the Union as the collective-bargaining
representative of the Respondent's employees in an appro-
priate unit, a clear violation of the Act.'7
Finally, concerning the telephone conversation between
Cloquell and Zafiropoulos I week before the election in
which Zafiropoulos interrogated Cloquell as to whether or
15 While Zafiropoulos challenged the Greek interpreter's translation of this
statement, as aforesaid, he was not convincing,
I6 An increase was granted August 1. 1977. prior to the election to be held
on September 30, 1977, and another on February 1., 1978, subsequent to the
determination setting aside the election results favoring the Respondent and
directing a second election at a future date.
17 N.L. RB. v. Erchange Parts Co., 375 U.S. 405 (1964): Medo Photo Sup-
ply Corp. v N.L R B 321 U.S. 678 (1944): N.L.R.B v Crown Can Co., 138
F.2d 263 (C A. 8. 1943), citing Western Cartridge Co. v. N'.LR.B, 134 F.2d
240, 244 (1943).
369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not he was going to vote in the election, while this inquiry
in and of itself might not constitute unlawful interrogation,
when considered in the light of all the surrounding circum-
stances herein, such as its being conducted I week prior to a
scheduled election, the known position of the Respondent
concerning the Union, the promise of benefits and granting
of a wage increase, and the threat to Cloquell concerning
loss of employment if he remained loyal to the Union, I am
contrained to find that such was violative of the Act."
Applying the test set forth supra, I hereby find that the
Respondent, in offering and promising wage increases and
other benefits and improvements and in actually granting
wage increases to its employees, and in warning and direct-
ing its employees to refrain from becoming or remaining
members of the Union and to refrain from giving any assist-
ance or support to it, and in interrogating its employees
concerning their intention to vote in the representation elec-
tion or not and their activities on behalf of and sympathy in
and for the Union interfered with, restrained, and coerced
the Respondent's employees in the exercise of their rights
guaranteed in Section 7 of the Act and thereby violated
Section 8(a)( 1 ) of the Act.
C. The Unlo juld Discharge
The complaint alleges, in substance, that the Respondent
discriminated and is discriminating in regard to hire and
tenure and terms and conditions of employment of its em-
ployees, thereby discouraging membership in a labor or-
ganization, and by discharging its employee Miguel C'lo-
quell and failing and refusing to reinstate him, the
Respondent thereby engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(3) and Section 2(6) and (7) of the Act. The
Respondent denies these allegations and contends that Clo-
quell voluntarily quit his employment.
The Evidence
Briefly. since the evidence applicable hereto is more par-
ticularly and fully set forth above, Cloquell testified that
Zafiropoulos had told him often in August 1977 that the
Respondent did not want the Union and had offered (Clo-
quell "all the benefits" the Union had obtained under its
expired bargaining contract and more if Cloquell would re-
nounce and withdraw his membership in the Union. Signif-
icantly. Cloquell questioned the Respondent's ability to do
so by telling Zafiropoulos that ". . . I thought he couldn't
give all the benefits that the Union gave," conceivably rais-
ing a question in Zafiropoulos' mind as to ('loquell's dispo-
sition toward the Respondent in connection with the forth-
coming election.
According to Cloquell, in September 1977 approximately
I week before the Board's scheduled election on September
30, 1977, Zafiropoulos telephoned him and inquired as to
whether he was going to vote in the election or not. Clo-
quell testified that during the telephone conversation Za-
firopoulos told him that the Respondent did not want a
union and if Cloquell wanted the Union to remain as the
1 G(rubers Food Center, Ina, 159 NL.RB 629 (1966)
employee's bargaining representative he would have to find
another job. Cloquell also stated that Zafiropoulos also
pointedly advised him that the Respondent was in competi-
tion with other companies seeking painting contracts with
the City of New York and that this was not only the Re-
spondent's problem but that of Cloquell, as an employee, as
well. Cloquell added that he told Zafiropoulos that he
might not appear at the election to vote.
Cloquell continued that subsequently, on September 30,
1977. he voted in the election and upon leaving the polling
place spotted Zafiropoulos and other employees standing in
an adjacent parking lot. Cloquell stated he asked Zafiro-
poulos if he had any work for him and Zafiropoulos, in
response, made a downward gesture of his hand. Cloquell
related that he subsequently called Zafiropoulos not only to
inquire as to whether there was work available for him but
additionally to obtain 2 days' pay owed to him by the Re-
spondent. He added that at a meeting between him and
Zafiropoulos, at Cloquell's home, as set forth hereinabove,
Zafiropoulos told him that the Respondent would give Clo-
quell no more work nor allow him to return to the job
because he had voted in the election although he was not
supposed to do so.
Zafiropoulos denied the telephone conversation and fur-
ther testified that after the election on September 30, 1977,
in the parking lot, he had told all his employees to return to
work on the following Monday but that Cloquell had ad-
vised him that he would not. Rial's testimony was to the
effect that Zafiropoulos had told the Respondent's employ-
ees, including Cloquell, to return to work on Monday but
that although Rial waited for C'loquell to appear on Mon-
day morning so they could proceed to a jobsite. C'loquell
failed to show up for work.
Analysis and Conclusions
Section 8(a)(3) of the Act provides in pertinent part, "It
shall be an unfair labor practice for an employer . . . by
discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or dis-
courage membership in any labor organization .... "
That the Respondent refused to give Cloquell any work
after the election on September 30, 1977, in all actuality
effectively discharging him in order "to discourage mem-
bership" in the Union, is clear from the record herein. The
Respondent's attitude of animus toward the Union, as evi-
denced by the antiunion statements of Zafiropoulos, its sec-
retary: Zafiropoulos' offers to Cloquell to match or better
any benefits the Union could obtain for its employees if
Cloquell would renounce the Union and his membership
therein: and the threat by Zafiropoulos that if Cloquell
wanted the Union he could seek employment elsewhere and
Zafiropoulos' own admission to Cloquell that he was not
going to receive any work from the Respondent because he
had voted in the election after Cloquell had indicated that
he would probably not vote all lead to this inescapable con-
clusion.
The Respondent's contention that C'loquell quit his job is
unsupported by any credible evidence in the record. Zafiro-
poulos never denied that Cloquell made various telephone
calls to him concerning his obtaining work with the Re-
spondent after the election. certainly not the actions of' an
370
AITOO PAINTING CORP.
employee who has quit his employment.'9 Further, accord-
ing to Zafiropoulos' testimony, if believed, he had told all
the employees on September 30, 1977. after the election, to
report to work the following Monday. including Cloquell.
and Cloquell had stated he was not going to appear for
work. Rial, whose testimony indicates he is the Respon-
dent's supervisory employee on the job when Zafiropoulos
is not present, was not advised by Zafiropoulos about Clo-
quell's alleged decision not to come to work on Monday
and waited for Cloquell for approximately 3 hours that
Monday morning before leaving for the designated work-
site, again, a hardly credible account of what allegedly oc-
curred. It is suggested that most probably Zafiropoulos said
nothing to the employees in the parking lot on September
30, 1977, about subsequent work, or, if he did so, omitted
telling Cloquell, since Cloquell had already received a nega-
tive response from Zafiropoulos to his inquiry about avail-
able work for the following week. Cloquell did not appear
on Monday. therefore, knowing there would be no work for
him. Further, as stated before, I fully credited Cloquell's
testimony over that of Zafiropoulos and Rial.
Perhaps that which is most illustrative of the Respon-
dent's intent herein and which gives force and effect, in my
own mind, as to Cloquell's account of what happened and
what I believe actually occurred, as related above, was Za-
firopoulos' gesture to Cloquell in the parking lot after the
election when Cloquell asked him if the Respondent had
any work for him and Zafiropoulos made a "downward
movement of his hand" as his only response, indicating to
Cloquell that he was in trouble or, as it transpired eventu-
allyv, finished as an employee of the Respondent.
For all of the above and upon the evidence in the record
as a whole, I hereby find that the Respondent. by laying off
Miguel Cloquell and refusing and continuing to refuse to
reinstate him or give him work, effectively discharged him
and thereby violated Section 8(a)(3) and (1) of the Act.
IV. i111 !It-(l OF ( lite t'NIAIR L.ABIOR PRA(TI('F UPON
( ()MMItR( E
The activities of the Respondent set forth in section 1II.
above. found to constitute unfair labor practices occurring
in connection with the operations of the Respondent de-
scribed in section I. above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow thereof.
CON( iLt SIONS OF LAW
I. The Respondent. Aitoo Painting Corporation, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. New York District Council No. 9, International
[V Fhere is in the record a statement b ( CIoquell that he "would go else-
where to work" when Z:liropoulos told him about the Respondent's prob-
lem of competing with other firms for painting contracts, but this does not
change my conclusion in an) way, since this statement was obviousl) ('to-
quell's response to Zafilopoulos' insistence that the problem of competition
was Cloquell's as well as that of the Respondent and noit an action b) ('lo-
quell in quitting his emploslment, as evidenced bh his varied attempts to
obtain work from the Respondent subsequentls
Brotherhood of Painters and Allied Trades. AFL CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By offering and promising wage increases and other
benefits and improvments in their working conditions and
terms of employment, by granting wage increases to its em-
ployees, by interrogating its employees as to whether they
were going to vote in the election or not, and by warning
and directing its employees to refrain from becoming or
remaining members of the Union and to refrain from giving
any assistance or support to it, the Respondent has inter-
fered with, restrained, and coerced its employees in the ex-
ercise of their rights guaranteed in Section 7 of the Act and
has engaged in unfair labor practices in violation of Section
8(a)(l ) of the Act.
4. By discharging Miguel Cloquell and failing and refus-
ing to reinstate him, the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(3) and ( 1) of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Till REMFE)Y
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, I shall recommend that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.21
20 As part of the remedy herein the Charging Parts seeks the issuance of a
bargaining order for the reason that the Respondent's unfair labor practices
found abose "dissipated the union's majority status."
Under the general principles enunciated by the United States Supreme
Court in V L R.B v. (issel Packing Co., In., 395 *lS 575 (1969). applicable
to the issuance of bargaining orders, such orders are authonLzed to redress
those unfair labor practices so coercive that even in the absence of an 8(a)(5)
violation a bargaining order would be necessary to repair the unlawful ef-
fects of such unfair labor practices and in those less extraordinary cases
marked by less pervasive practices which nonetheless still have the tendencs
to undermine majoriis strength and impede the election process In the latter
instance the Board is to determine the nature and extent of the employer's
unlawful conduct and ascertain whether use of traditional remedies would
insure a lair election.
% While it is trie that the Respondent's unfair labor practices were coercive
and pervasie aind may well have interfered with the conduct of the election.
a bargaining order is not appropriate in this case. since it would, in effTect,
torce the Respondent to bargain with a union which has failed to show its
majority status, While the Charging Party alleges that the Respondent's un-
fair labor practices dissipated the Union's majority status, neither it nor
counsel for the General ('ounsel offered any evidence to show that the Union
at ans time had such a majority. whether by authorization cards or by a
combination of authonrization cards and election ballots (Pinter Bros. Inc.,
227 NLRB 921 (1977)). As Board Member Murphy. in a concurnng opinion
in Bandag, Incorporated, 225 NLRB 72, 73 (1976). observed:
As the Supreme Court noted in Gissel. there may be some situations in
which the employer's unfair labor practices are so severe that a bargain-
ing order mas be appropriate notwithstanding the absence of a showing
of majority status. This is not such a case, however, and the Board has
not yet found a bargaining order warranted in the absence of a majority.
In this case it is my considered opinion, based upon the record herein, that
the Board's traditional remedies of a cease-and-desist order, reinstatement
and backpay with interest for Miquel Cloquell, and posung of an appropri-
ate Board notice coupled with, as previously indicated, the Regional Direc-
tor's direction of a new election at a subsequent date might well be sufficient
to reinstate the laboratory conditions necessary to conduct a proper repre-
sentation election and undo the damage caused by the Respondent's unlaw-
lul conduct so that the new election can take place In the lforeseeable future
under circumstances which would guarantee the electoral process to be a
true gauge of emplovee sentiment.
371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the Respondent unlawfully dis-
charged Miguel Cloquell, it shall be recommended that the
Respondent offer him immediate and full reinstatement to
his former position or, if said position no longer exists, to a
substantially equivalent position, without loss of seniority
or other benefits, and make him whole for any loss of pay
resulting from the discrimination against him by payment
of a sum of money equal to the amount he normally would
have earned as wages from the date of his discharge to the
date of a bona fide offer of reinstatement, less net interim
earnings. The backpay due under the terms of the recom-
mended Order shall include interest to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977).21
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER22
The Respondent, Aitoo Painting Corporation, New
York, New York, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Promising and granting its employees wage increases
and other benefits in their working conditions and terms of
employment to induce them to refrain from becoming or
remaining members of New York District Council No. 9,
International Brotherhood of Painters and Allied Trades,
AFL-CIO, and to refrain from giving assistance or support
to it.
(b) Warning and directing its employees to refrain from
becoming or remaining members of New York District
Council No. 9, International Brotherhood of Painters and
Allied Trades, AFL-CIO, and to refrain from giving any
assistance or support to it.
(c) Coercively interrogating its employees concerning
whether or not they are going to vote in a representation
election and about their activities on behalf of and sympa-
thy in and for New York District Council No. 9, Interna-
tional Brotherhood of Painters and Allied Trades, AFL-
CIO.
(d) Discouraging membership in or activities on behalf
of New York District Council No. 9, International Brother-
hood of Painters and Allied Trades, AFL-CIO, or any
other labor organization, by discharging employees or in
any other manner discriminating against them in regard to
their hire or tenure of employment or any term or condition
of employment.
(e) By any means or in any manner interfering with, co-
ercing, or restraining employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
21 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, he adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Offer to Miguel Cloquell full and immediate rein-
statement to his former position or, in the event that his
former position no longer exists, to substantially equivalent
employment, without prejudice to his seniority or to the
other rights which he formerly enjoyed.
(b) Make whole Miguel Cloquell for any loss of pay suf-
fered by him by reason of the discrimination found herein.
in the manner described in the section entitled "The Rem-
edy."
(c) Post at its Queens, New York, office and/or any other
offices maintained by it where its employees usually report
to work each day, copies of the attached notice, in English
and Spanish,2 ' marked "Appendix.'"4 Copies of said notice
on forms provided by the Regional Director for Region 29,
after being duly signed by a representative of the Respon-
dent, shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 days con-
secutively or until at least the date of any new election
directed by the Regional Director for Region 29, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to insure that such notices are not altered, defaced, or
covered by any other material.
(d) Preserve and, upon request, make available to the
Board or its agent, for examination and copying, all payroll
and other records necessary to analyze the amount of back-
pay due under the terms of this recommended Order.
(e) Notify the Regional Director for Region 29. in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
23 Or any other language, such as Greek. if some oft its employees cannot
speak English and only are fluent in a particular foreign language.
24 In the event that this Order is enforced bh a judgment of the United
States Court of Appeals. the words in the notice reading "Posted by Order Iof
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Entorcing an Order of the Na-
tional l abor Relations Board."
APPENDIX
NoTrI(E To EMPI.OYEES
Pos-rTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Aitoo Painting Corporation is posting this notice to comply
with the provisions of an Order of the National Labor Rela-
tions Board. The Order was issued after a hearing before an
administrative law judge after which we were found to have
violated certain provisions of the National Labor Relations
Act.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain as a group through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any and all of these things.
372
AITOO PAINTING CORP.
WE WILL NOT do anything that interferes with, re-
strains, or coerces you with respect to these rights.
WF, \ILt. NOT interrogate employees or ask other
questions to ascertain employees' union activities or
sympathies.
WE wILL NOT promise or grant wage increases or
benefits to induce employees to refrain from becoming
or remaining members of New York District Council
No. 9, International Brotherhood of Painters and Al-
lied Trades, AFL-CIO, or giving assistance or support
thereto.
WE WILL NOT warn or direct employees to refrain
from becoming or remaining members of New York
District Council No. 9, International Brotherhood of
Painters and Allied Trades, AFL-CIO, or giving assist-
ance or support to it.
WE WILL NOT discharge or otherwise discriminate
against employees to discourage membership in or ac-
tivities on behalf of New York District Council No. 9,
International Brotherhood of Painters and Allied
Trades. AFL CIO, or any other labor organization.
WI: ii.l. N(1 in any other manner punish emploN-
ees for exercising the rights guaranteed themii h Sec-
tion 7 of the National Labor Relations Act.
WE vw 1.L offer Miguel Cloquell his job back. and \\ 1
WILL reimburse him for any loss of pay he ma 3 have
suffered because we discharged him together with il-
terest.
Alroo PAINTING( CORPORATION