Auto Sunroof Of Larchmont, Inc.

National Labor Relations Board - Board Decisions

May 31, 1990

298 N.L.R.B. 717 (N.L.R.B. 1990)

AUTO SUNROOF 717
Auto Sunroof of Larchmont , Inc. and Local 422-S,
Production , Service and Sales District Council,
Hotel Employees and Restaurant Employees,
AFL-CIO, CLC. Case 2-CA-23561
May 31, 1990
DECISION AND ORDER
Spadiccini, interrogated its employees regarding their ac-
tivities on behalf of the Union, threatened the employees
with unspecified reprisals for supporting the Union, and
created the impression that these activities were under
surveillance by Respondent and, on or about March 1
granted a pay increase to employee Hector Roberts, all
in violation of Section 8(a)(1) of the Act.
On the entire record, I make the following
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 2, 1990, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief
to the Respondent'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 exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Auto Sun-
roof of Larchmont, Inc., New Rochelle, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
I The Respondent has excepted to some of the ,fudge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Gregory B. Davis, Esq. and David E. Leach, Esq., for the
General Counsel.
Stuart M. Kirshenbaum, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBL0wITz, Administrative Law Judge. This
case was heard by me in New York, New York on No-
vember 15, 1989.1 The complaint and notice of hearing
here, which issued on May 15, and was based on an
unfair labor practice charge, and a first amended charge,
filed on April 13 and May 15 by Local 422-S, Produc-
tion, Service and Sales District Council, Hotel Employ-
ees and Restaurant Employees, AFL-CIO, CLC (the
Union). Alleges that in March Auto Sunroof of Larch-
mont, Inc. (Respondent), by its president and agent, Paul
I Unless indicated otherwise, all dates referred to relate to the year
1989
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation located in New
Rochelle, New York (the facility), is engaged in the non-
retail installation of sunroofs and other automotive acces-
sories. Annually, in the course and conduct of its busi-
ness operations, Respondent receives at the facility mate-
rials valued in excess of $50,000 directly from points out-
side the State of New York. Respondent admits, and I
find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
III. FACTS AND ANALYSIS
In 1986, 1988, and 1989, the Union filed petitions with
the Board to represent certain of Respondent's employ-
ees; the Union lost each of these elections, the last- of
which was conducted on May 5; the certification of re-
sults issued May 15. The instant allegations involve state-
ments made in an alleged conversation between Spadac-
cini and employee Hector Roberts and a wage increase
given to Roberts on about March 1; both occurred a few
weeks before the petition was filed, General Counsel's
case is supported solely by the testimony of Roberts; Re-
spondent's defense is supported solely by Spadaccini's
testimony.
Roberts had been employed by Respondent from May
1986 until March 1989 when he was terminated for fight-
ing with a fellow employee. He testified that in all three
union campaigns, he was the principal "go between" be-
tween the Union and the Respondent's employees. He
met With John Bartclotta, the union organizer who gave
him union authorization cards. He signed one for each
campaign (the last one was signed in about February)
and he spoke to some of his fellow employees about the
advantages of the Union and obtained signed authoriza-
tion cards from them, which he gave to Bartolotta.
Roberts testified that sometime in early March Spadac-
cini called him into his office and said: "Hector, what's
up with this bullshit union game with you're going on
with? I heard you're handing out union cards in the
shop. Two persons told me. You want to play that bull-
shit union game with me, go ahead. The choice is
yours." At that point, Roberts left the office. Spadaccini
testified that he never had any such conversation with
Roberts. It would be difficult to find a clearer credibility
conflict. My observation of the two witnesses does not
298 NLRB No. 100
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reveal one to be clearly more credible than the other. It
is therefore necessary to examine other -facts and testimo-
ny. The most obvious point in this regard is that Roberts
was discharged by Respondent in about mid-March; it
would not be surprising or unusual if this resulted in
animus toward Respondent. On the other hand, Spadac-
cim was asked whether he ever discussed the Union with
any of his employees; he testified: "Yes, possibly, yes,"
but only if an employee asked his opinion about the
Union and, on those occasions, he only said that he did
not think the Union was good. When questioned about
how many times he had such conversations, he answered
that he might have had a conversation with a certain em-
ployee early in the 1986 campaign; the employee asked
him his opinion of the Union and Spadaccini answered
that he did not think the Union was for him. That was
the only conversation with an employee about the Union
that he could remember; there were no such conversa-
tions during the 1989 campaign. Campaign literature was
mailed to the employees during the 1989 campaign, but
he neither personally handed out literature or spoke to
the employees during this period. Neither Spadaccini nor
his attorney could locate this past campaign literature
pursuant to the request of General Counsel.
On the basis of all of the above, I would credit the tes-
timony of Roberts over that of Spadaccini, although
Roberts' testimony was not always precise on dates and
amounts, he appeared to be attempting to testify in an
honest and truthful manner regarding the events that oc-
curred in March at the facility, even though he apparent-
ly felt hostile to Respondent because of his discharge.
However, I found Spadaccini's testimony lacking credi-
bility in two areas: I find difficult of belief Spadaccini's
testimony that in the three union campaigns at the facili-
ty since 1986 he only had one conversation with an em-
ployee regarding the Union, and the employee initiated
the conversation by asking him what he thought of the
Union and he said he did not think that the Union was
for him (the employee). This conversation occurred in
1986 and he has had none since then. Additionally on the
issue of the wage increase to Roberts (to be discussed,
infra) any part of a stipulation, Spadaccini informed the
General Counsel that he employed 16 unit employees
during the first quarter of 1989. While being cross-exam-
ined on another issue, Spadaccini was shown the Excelsi-
or list from the 1989 election, which showed that the
number of employees employed by Respondent at that
time was considerably more than 16; it turned out to be
37. Spadaccim testified that his mistake was not counting
the drivers. Although this is not evidence of a total lack
of credibility, in a close case such as this everything must
be considered. On the basis of all the above, I would
credit Roberts' testimony over that of Spadaccini. I
therefore find that about early March Spadaccini called
Roberts into his office and said to him: "Hector, what's
up with this bullshit union game you're going on with? I
heard you're handing out Union cards in the shop. Two
persons told me. ' You want to play that bullshit union
game with me, go ahead. The choice is yours."
I find that this one statement encompasses all three al-
legations: it is an unlawful interrogation, a threat, and a
creation of the impression of surveillance. There can be
no question that this statement constitutes an unlawful in-
terrogation under Rossmore House, 269 NLRB 1176
(1984), and Sunnyvale Medical Clinic, 277 NLRB 1217
(1985), in violation of Section 8(a)(1). The substance of
the conversation, together with the fact that it was initi-
ated by Spadaccini, it was a one-on-one, boss to employ-
ee in Spadaccini's office, and it took place near the com-
mencement of the Union's campaign leaves no doubt of
that. Additionally, it requires no case citations to estab-
lish that Spadaccini's words to Roberts ("Hector, what's
up with this bullshit union game you're going on with? I
Heard you're handing out union cards in the shop. Two
persons told me.") would create an impression in an em-
ployee's mind that his union activities were under sur-
veillance, It therefore also violates Section 8(a)(1) of the
Act. The final portion of the statement is: "you want to
play that bullshit union game with me, go ahead. The
choice is yours." Roberts could reasonably conclude
from this statement that the Respondent was threatening
economic reprisals if he continued to support the Union.
I therefore find that this statement, as well, violates Sec-
tion 8(a)(1) of the Act.
The remaining allegation is that the wage increase Re-
spondent gave Roberts on or about March 1 violated
Section 8(a)(1) of the Act because it was meant to dis-
courage Roberts and other employees from joining or
supporting the Union. Roberts began his employ with
Respondent in May 1986 at a wage rate of $4.50 an hour.
One month later (presumably after his probationary
period! his hourly rate was increased to $5.62 Sometime
in 1987, he received an increase to $6.50 an hour. In
February 1988, his wage rate was raised to $7.75 an
hour; the hourly increase to $8.37 on about March 1 is
the one that is alleged to violate the Act.
In NLRB v. Exchange Parts Co., 375 U.S. 405 (1964),
the Court stated:
We have no doubt that it [Sec. 8(a)(1) of the Act]
prohibits not only intrusive threats and promises but
also conduct immediately favorable to employees
which is undertaken with the express purpose of im-
pinging upon their freedom of choice for or against
unionization and is reasonably calculated to have
that effect.
It was in that case that the Court used the now famous
language: "The danger inherent in well-timed increases
in benefits is the suggestion of a fist inside the velvet
glove." In Fireside House of Centralia, 233 NLRB 139,
140 (1977), the Board stated:
It is well settled that the granting of wage increases
and/or benefits during union organizational activity
is not per se unlawful. Rather, the test is whether,
based on the circumstances of each case, the grant-
ing of the new wages and benefits is calculated to
interfere with the employees' rights to organize.
In American Sunroof Corp., 248 NLRB 748 (1980), the
Board stated that an employer can sustain its burden in
these matters "by showing that the benefits granted were
part of an already established company policy and the
AUTO SUNROOF
employer did not deviate from that policy upon the
advent of the Union." In Wrn. T Burnett & Co., 273
NLRB 1084, 1091 (1984), the administrative law judge
stated:
More specifically, the presumption is that the em-
ployer's motive in granting the benefit is to influ-
ence employee choice in union representation. In
view of this presumption, the burden is that of the
employer to show that the grant of the increase was
unresponsive to the organizational activity and the
election.
In 1987, Roberts received a wage increase (to $6.50 an
hour) of approximately 16 percent from his 1986 salary;
in February 1988 Roberts received a 19-percent-wage in-
crease to $7.75 an hour, 13 months later, on about March
1, he received an 8-percent wage increase. Of the 37 bar-
gaining unit employees, at the time, only 4 others re-
ceived wage increases in the first quarter of 1989. Spa-
daccini's,testimony regarding these wage increases is less
than crystal clear. As to why when he gave Roberts
wage increases "from time to time," he testified that on
one occasion (unspecified) he trained one or two people
in a specific job and Spadaccini felt that he should be re-
warded for it. He gave him the increases prior to March
1, because "his productivity was quite good." Although
he testified that the Union had nothing to do with the
March increase he gave Roberts, he never specifically
stated what the basis of that increase was, other than the
fact that Roberts had not received an increase for about
a year.
True, it is suspicious that Respondent granted an in-
crease to Roberts at the time of the Union' s organization-
al campaign , and that he was only 1 of 5 employees, in a
unit of 37, who received an increase in that quarter. And
it is also true that Spadaccini never satisfactorily ex-
plained why Roberts was given the March 1 increase.
What I have difficulty comprehending about this aspect
of General Counsel's case (in addition to the fact that
Roberts had received yearly wage increases from Re-
spondent and' the increase of March 1 was the lowest of
all) is its failure to look at the "big picture." General
Counsel argues that since Roberts and only four other
employees received wage increases in the first quarter of
1989, this helps to establish that his wage increase was
unlawfully motivated. However, these figures can be
looked at another way, as well. If Spadaccini was,
indeed, unlawfully motivated in increasing Roberts'
wages in March, his purpose was to influence the up-
coming Board election by convincing the employees that
they did not need a Union to improve their conditions of
employment. If that were so, however, one would
assume that he would have increased the wages of all, or
most, of his employees. In a bargaining unit of 37, one
vote (Roberts) would hardly help him and four addition-
al votes would only benefit him a little more. To truly
influence the upcoming election, he would probably
have to increase the wages of more employees than that.
Therefore, although I find that the March 1 wage in-
crease to Roberts was suspicious, and inadequately ex-
719
plained, because of all the circumstances herein, I would
recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section (5) of the Act.
3. By interrogating its employees regarding their ac-
tivities on behalf of the Union, by threatening its em-
ployees with unspecified reprisals if they continued to
support the Union, and by creating the impression that
the employees' activities on behalf of the Union were
under surveillance, Respondent violated Section 8(a)(1)
of the Act.
4. Respondent did not otherwise violate the Act as fur-
ther alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Auto Sunroof of Larchmont , Inc., its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed, them by
Section 7 of the Act, by interrogating its employees
about their activities on behalf of the Union; by threaten-
ing its employees with reprisals if they continued to sup-
port, or give assistance to, the Union; and by creating
the impression that the employees' union activities were
under surveillance by Respondent.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its New Rochelle, New York facility copies
of the attached notice marked "Appendix."3 Copies of
the notice to be furnished by the Regional Director for
Region 2 of the Board, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and shall
2 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.
3If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
he taken by Respondent to ensure that the notices are
not altered , defaced , or covered by and other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed as to matters not specifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees regarding
their activities on behalf of, or support for, Local 422-S,
Production , Service and Sales District Council, Hotel
Employees and Restaurant Employees , AFL-CIO, CLC
(the Union) or any other labor organization.
WE WILL NOT threaten our employees with reprisals
should they continue to engage in activities in support of
the Union.
WE WILL NOT create the impression that the activities
of our employees in support of the Union are under sur-
veillance.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
AUTO SUNROOF OF LARCHMONT, INC.
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.