American Signcrafters

National Labor Relations Board - Board Decisions

Nov 8, 1995

319 N.L.R.B. 649 (N.L.R.B. 1995)

649
319 NLRB No. 89
AMERICAN SIGNCRAFTERS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The judge incorrectly stated that employee Wyatt was hired on
August 23, 1994; Wyatt was hired on August 24, 1994.
The judge’s conclusions of law are amended to read ‘‘By denying
Jose Nieves employment because it believed that he was a member
of a labor organization, Respondent violated Section 8(a)(1) and (3)
of the Act.’’
1 Fn. 2 of Respondent’s memorandum of law purports to state cer-
tain facts. However, these facts do not appear anywhere in the
record and are not based on the testimony of any witness. I shall
disregard fn. 2 of Respondent’s memorandum.
2 Petersen is an ex-member of Local 137.
TJ Signs, Inc. d/b/a American Signcrafters and Jose
Nieves. Case 29–CA–18509
November 8, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 11, 1995, Administrative Law Judge El-
eanor MacDonald issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, TJ Signs, Inc. d/b/a Amer-
ican Signcrafters, Bayshore, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
James P. Kearns, Esq., for the General Counsel.
Perry S. Heidecker, Esq. (Marshall M. Miller Associates,
Inc.), of Lake Success, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn, New York, on June 5, 1995. The
complaint alleges that Respondent, in violation of Section
8(a)(1) and (3) of the Act, interrogated its employees about
their union activities and denied employment to Jose Nieves
because he was a member of Local 137, Sheet Metal Work-
ers International Association. Respondent denies that it has
violated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent on July 10,
1995,1 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation located in Bayshore,
New York, is engaged in manufacturing and distributing
neon signs and other signs. Respondent annually receives
materials valued in excess of $50,000 directly from points
outside the State of New York.
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that Local 137, Sheet Metal Workers
International Association is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
It is undisputed that on August 8, 1994, Jose Nieves went
to Respondent’s premises and met with Jeffrey Petersen, Re-
spondent’s president and sole owner. Nieves told Petersen
that he was looking for a job, and Petersen took him around
the shop. Nieves did not go to work for Respondent. General
Counsel contends that Petersen promised Nieves a job but
reneged when he came to believe that Nieves belonged to
Local 137. Respondent maintains that Petersen did not offer
Nieves a job because there were no positions available when
Nieves applied for work. The resolution of the issues in the
instant case depends entirely upon a determination as to the
relative credibility and reliability of the witnesses.
Richard Quaresima, the business representative of Local
137, testified that in 1993 and 1994 he spoke to Petersen on
several occasions trying to obtain employment for Local 137
members.2 In May 1994, the Union picketed the worksites of
Respondent. Unfair labor practice charges were filed by Re-
spondent and a settlement agreement was entered into where-
by the Union agreed to stop picketing. Quaresima knew that
Respondent had a help wanted sign outside the shop: in Au-
gust 1994, he instructed union members to seek work from
Respondent and several members applied for work at the
shop.
Petersen testified that he had known sheet metal operator
Gino Marchese for years and that he was aware of his mem-
bership in Local 137. Marchese, who was unemployed, told
Petersen that he would be willing to come to work for Re-
spondent and that he was not concerned about any problems
that might arise. On August 1, 1994, Petersen hired Mar-
chese to do sheet metal work. The payroll records show that
Marchese began work on August 12 or 13. Petersen cited
Marchese’s affiliation with Local 137 as proof that he was
willing to hire union members and harbored no animus
against them. Local 137 Representative Quaresima testified
that Marchese came to the union hall on August 9 and paid
a fee to obtain a withdrawal card; Marchese informed
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Dybus was called to testify by Respondent. It is clear to me that
Dybus has no actual recollection of ever meeting Nieves. I shall not
rely on any of Dybus’ testimony.
Quaresima that he was going to California. Union records
show that the withdrawal was effective August 12, 1994.
Jose Nieves had been working as a inventory clerk for
about 1 month. On Monday, August 8, 1994, Nieves worked
from 8:30 a.m. to 3:30 p.m. After he finished work, his
friend Richard Mercado called and asked to borrow his cam-
era. Nieves and Mercado traveled by car to Respondent’s
shop. Mercado took a picture of a help wanted sign outside
the shop and told Nieves that he thought Respondent had not
given him a job because he was a member of Local 137.
While Mercado went off to make a telephone call, Nieves
went into Respondent’s shop to see if he could get work.
Nieves is not a member of Local 137.
According to Nieves, when he entered the shop, he met
Petersen who identified himself and asked whether Nieves
had any experience. Nieves replied that he had some experi-
ence, but not a lot. Nieves informed Petersen that he had
worked for a sign company in Florida and had done a little
bit of sheet metal work. Petersen told Nieves that he wanted
to hire helpers. Petersen asked Nieves if he had worked with
the type of machines in the shop and Nieves replied that he
was familiar with one of the machines. Petersen introduced
Nieves to his foreman. After the brief tour of the shop, Peter-
sen took Nieves upstairs to his office and asked whether
Nieves would come to work for him. Nieves said he was
willing to work for Petersen; Petersen was offering $7.50 per
hour to start with the prospect of a lot of overtime, whereas
Nieves was currently earning only $5 per hour as an inven-
tory clerk. The two men discussed whether Nieves would
have to give 1 week’s notice at his job, and they decided that
Nieves would tell his current employer that Friday would be
his last day. Petersen said that he needed someone by next
week. Then Petersen asked Nieves if he had any family re-
sponsibilities that would affect his work, and Nieves replied
that he did not, Petersen asked Nieves, ‘‘Are you involved
with any union?’’ Nieves said that he was not. Petersen
asked Nieves, ‘‘Are you affiliated with any union?’’ Again,
Nieves said that he was not. Petersen said something about
‘‘starting his union and about initiation fees.’’ When Nieves
replied that he did not know anything about that, Petersen
said that he would explain in detail when Nieves began
work. Petersen gave Nieves his business card and asked him
to call Thursday morning with the telephone numbers of his
references. If Nieves did that, then Petersen would call
Nieves back on Thursday evening.
Nieves testified that when he telephoned Peterson on
Thursday morning, Peterson asked him if he knew Richard
Quaresima. Nieves denied knowing Quaresima. Then, Peter-
sen said that Quaresima knew Nieves, and he asked whether
Nieves knew anything about Local 137. Nieves said that he
did not. Petersen went on to say that Quaresima had told him
that Nieves came from Local 137. Nieves said that he did
not know anything about that. Petersen said, ‘‘I don’t know
what the deal is . . . something else don’t add up here.’’
Nieves was upset; he told Peterson that he had already given
notice at his current place of employment and that his re-
placement had been hired. Nieves asked Petersen what he
would do for a job, and Peterson replied that he could not
help him.
Nieves testified that he did not know Quaresima when he
had the conversation with Petersen. However, after the con-
versation with Petersen, Nieves called his friend Mercado
who told him that Quaresima was the Local 137 business
agent. Quaresima testified that he never called Petersen to
tell him that Nieves was affiliated with the Union.
Jeffrey Petersen testified that August is a busy month in
which Respondent receives many orders from store owners
planning to take advantage of the fall shopping season. As
set forth above, Petersen had hired Marchese on August 1,
1994, as a sheet metal mechanic. Petersen recalled that
Nieves came to the shop in the morning on August 8 and
that the two men spoke briefly. Nieves said he wanted to
work for Respondent and that he had done sign work in Flor-
ida. Nieves did not mention duct work. According to Peter-
sen, he and Foreman Theodore Dybus walked Nieves around
the shop briefly to ascertain his abilities and his knowledge
of the various pieces of equipment.3 Petersen told Nieves
that several people had been hired and that he would keep
Nieves’ name and number on file. Petersen testified that he
did not offer Nieves a job and that he did not ask Nieves
whether he was affiliated with a union. Petersen stated that
he never heard from Nieves again.
Petersen testified that Nieves would probably have worked
out in an entry level position but that he was not hired be-
cause all the entry level positions had been filled. Petersen
also testified that Nieves did not want an entry level position
because he had skills. Petersen emphasized that Nieves was
not hired because Respondent had no need for his services
as all entry level positions had been filled. In fact, Respond-
ent had hired more people than it needed because a certain
amount of attrition was to be expected. On cross-examination
by counsel for the General Counsel, Petersen acknowledged
that his payroll records show that on August 15, Jimmy
Amentler was hired as an installation helper at a rate of $9
per hour. Amentler had ‘‘some experience’’ in the field. In
addition, the payroll records show that on August 23, 1994,
Keith Wyatt was hired as a porter at a wage rate of $7.50
per hour. Petersen testified that this is an entry level position.
Although Petersen stated that the payroll record shows the
date an employee commenced work and not the date of ac-
tual hire. Respondent offered no further evidence to show
when Amentler and Wyatt were hired.
I have decided to credit the testimony of Nieves about the
events of August 8, 1994. Nieves was a forthright witness
who gave his testimony in a cooperative albeit unsophisti-
cated manner. I shall not rely on the testimony of Petersen
wherever it is contradicted by more credible evidence. I find
that Petersen’s testimony was inconsistent with the documen-
tary evidence. Although Petersen stated that he would have
hired Nieves, he testified that he did not hire Nieves on Au-
gust 8 because he could not use him. However, Respondent’s
records show that Amentler was hired as an installation help-
er and began work on August 15. Amentler had ‘‘some expe-
rience,’’ which is exactly what Nieves had. Further, Wyatt
was hired on August 23 into the entry level job of porter at
the same wage rate that Nieves had agreed on with Petersen.
Nieves, who was only earning $5 per hour as an inventory
clerk was willing to work for $7.50. Further it is undisputed
that Respondent had a help wanted sign outside its premises
on August 8, 1994. Finally, when Nieves walked into the
651AMERICAN SIGNCRAFTERS
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
shop and inquired about a job, Petersen did not tell him that
all the positions had been filled and that there was no work
available. Instead, Petersen took the time to walk Nieves
around the shop and discuss the machinery with him. Since
August was admittedly the busy season, it is not believable
that Petersen would spend valuable time ascertaining Nieves’
skills and experience unless Petersen in fact wanted to hire
another employee.
I find that Petersen interrogated Nieves about his union ac-
tivities and that Petersen offered Nieves a job, but reneged
on the offer when he came to believe that Nieves was a
member of Local 137. Respondent thus violated Section
8(a)(1) and (3) of the Act. Gatliff Business Products, 276
NLRB 543 (1985).
CONCLUSION OF LAW
By interrogating Jose Nieves about his membership in a
labor organization, Respondent violated Section 8(a)(1) of
the Act. By denying Jose Nieves employment because it be-
lieved that he was a member of a labor organization, Re-
spondent violated Section 8(a)(3) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent having
discriminatorily denied employment to Jose Nieves, it must
offer him employment and make him whole for any loss of
earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of employ-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, TJ Signs, Inc. d/b/a American
Signcrafters, Bayshore, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities.
(b) Refusing to hire applicants because it believes they are
members of a labor organization.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Jose Nieves immediate employment in the posi-
tion he would have received absent the Respondent’s dis-
crimination against him or, if that position is no longer avail-
able, to a substantially equivalent position, and make him
whole for any loss of pay he may have suffered by reason
of the Respondent’s discrimination in accordance with the
remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its facility in Bayshore, New York, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.‘
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively question you about your union
support or activities.
WE WILL NOT refuse to hire applicants for employment be-
cause we believe they are members of Local 137, Sheet
Metal Workers International Association, or any other union.
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Jose Nieves immediate employment in the
position he would have received or, if that position is no
longer available, to a substantially equivalent position, and
we will make Jose Nieves whole for any loss of pay he may
have suffered as a result of our discrimination against him,
with interest.
TJ SIGNS, INC. D/B/A AMERICAN SIGN-
CRAFTERS