Brazil Design, Ltd.

National Labor Relations Board - Board Decisions

Apr 14, 1977

228 N.L.R.B. 1509 (N.L.R.B. 1977)

BRAZIL DESIGN, LTD. 1509
Brazil Design , Ltd. and Brazilian Products, Inc. and
Truck Drivers Local Union No. 807, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 29-CA-
4859
brief was received from the General Counsel on October
18, 1976, and it has been carefully considered.
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
April 14, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On December 21, 1976, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, Respondents filed excep-
tions and General Counsel filed cross-exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondents, Brazil Design,
Ltd. and Brazilian Products, Inc., Brooklyn, New
York, their officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on February 13, 1976, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 29 (Brooklyn, New York), issued a
complaint on May 6, 1976, against Brazil Design, Ltd. and
Brazilian Products, Inc., herein called Respondents, alleg-
ing that they had engaged in certain unfair labor practices
in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, herein called the Act.'
Respondents filed an answer denying the allegations of
unlawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held before me in
Brooklyn, New York, on September 20 and 21, 1976. A
1. THE BUSINESS OF RESPONDENTS
Respondents are New York corporations engaged in a
single, integrated business enterprise with their principal
offices and place of business located in the Borough of
Queens, New York, where they are engaged in the
importation of, and retail sale of, furniture and related
products. During the 12 months preceding the hearing
herein, Respondents purchased goods or services valued in
excess of $50,000 from points and places located outside
the State of New York. Respondents concede, and I find,
that they are engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers Local Union No. 807, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
At issue in this case is whether Respondents discharged
employees Vincent Sciroppo and Gregory Brooks on
December 12 and 16, 1975, respectively, in violation of
Section 8(a)(3) and (1) of the Act. Independent violations
of Section 8(a)(1) are also alleged to have occurred.
It is to be significantly noted that Respondents did not
call any witnesses, hence the testimony of all General
Counsel witnesses in this proceeding is unrefuted and
undenied.
A. Vincent Sciroppo
Certain preliminary events are first in order. Thus, about
7:30 a.m. on December 12, 1975, two union organizers,
acting upon a phone call from one of the employees on the
preceding day, came to meet with the employees in front of
Respondents' plant. Approximately five employees, includ-
ing Sciroppo, were present to meet with the representatives
at this time. Following some discussion, two of the
employees signed union cards that were distributed at this
time. Shortly before the 8 a.m. starting time, two of
Respondents' managerial employees approached and
passed within 15 feet of the group as they entered the plant.
These were Elaine Siegman, Respondents' vice president,
and Steven Udell, the warehouse manager. A short while
later, Robert Matovic, a truck helper who had punched in,
observed the group outside. Matovic testified that as he
started to walk outside to join the group, Udell asked
where he was going. Upon replying that he was going
outside, Udell stated that he should not do so, that he
should go back into the warehouse.
i An allegation that Respondents also committed unfair labor practices
within the meaning of Sec 8(a)(5) of the Act was withdrawn by the General
Counsel at the hearing
228 NLRB No. 200
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later, on the same day, December 12, 1975, Warehouse
Manager Udell called Matovic into his office and asked if
he knew "who the people were outside." Matovic said he
did not know them. Udell asked if he knew what they
wanted. Matovic replied that he did not. Udell asked "Are
they from the union?" Matovic answered that he did not
know because he did not speak to them. Udell then
queried, "What are your feelings about the union? Do you
want a union?" The conversation ended with Matovic's
response that he did not know, that he would first have to
speak with the representatives of the Union.
Sciroppo started with Respondents on October 12 as a
part-time office cleaner at $2.25 per hour . About the
beginning of December, Sciroppo was made a full-time
employee and was raised to $2.50 per hour. Sciroppo
testified that at this time he was assigned to warehouse
work, this entailing 7 hours in the warehouse with 1 hour of
his time still spent in office cleaning.
In about the middle of the afternoon on December 12,
Sciroppo was engaged with employee Matovic in the
loading of an elevator on the fourth floor of the warehouse.
As they were so working, they were approached by Giore
Gerzon, the warehouse foreman. According to the unrefut-
ed testimony of Sciroppo and Matovic, Gerzon remained
with them for about an hour, during which time he
continually interrogated them about the Union. Thus, he
specifically asked Sciroppo, "What's so good about a
union? Why do you want a union? We got you this job,
why should you want a union?" Sciroppo replied that he
wished to receive the benefits a union might offer, but that
he [Gerzon] should speak to Matovic because Matovic had
been in a union before. Gerzon asked the same questions of
Matovic ; and thus, as the employees continued working,
the same line of questioning went on. Gerzon finally stated
that he had obtained both employees their jobs and told
them that "You are going to vote against me if you vote for
the union."
About an hour and a half after the above conversation,
Sciroppo was told to report to Udell's office on the first
floor. Coming down from one of the upper floors, Sciroppo
passed the office of Jaime Singer , Respondents' president.
Singer called out that his wastebasket and ashtray were
filled. Although Sciroppo's testimony at this point is
somewhat confusing , it appears that he did not continue
directly to Udell's office, but first emptied the receptacles
that were stationed in Singer 's office. In any event, he
proceeded to Udell's office about 4:30 p.m., at which time
Udell handed him his pay and told him not to report back
the following Monday because Singer was "kind of mad"
that he had not cleaned the office properly. When Sciroppo
asked if he was being fired because of the Union, Udell
replied "no."
On Monday, December 15, Sciroppo returned to the
plant and went to Singer 's office where he asked Singer
why he had been discharged. Singer stated that it was
because he had not emptied his wastebasket and ashtray.
Sciroppo asked if he could continue to work in the
warehouse . Singer responded that he did not need anyone
else in the warehouse , but that he should leave his name
with the warehouse foreman and that he would be called if
needed. Singer then asked Sciroppo if he knew "who were
the two men standing outside on the 12th ." Sciroppo
replied that he thought the men were union organizers.
With this, according to Sciroppo, the conversation ended.
I turn now to my conclusions. I should first note that on
cross-examination , Sciroppo conceded having been fre-
quently criticized by Singer for not performing his cleaning
work properly. However, it should be borne in mind that
only some 10 days before his discharge, Sciroppo was given
a raise , was made a full-time employee , and was assigned
substantially to warehouse duties. In addition, Sciroppo
testified that on Wednesday , September 10, Singer again
complained about his office cleaning. Because of this, he
said, he took particular pains the next 2 days to properly
perform these duties, including the emptying of the
receptacles in Singer's office . Having emptied Singer's
wastebasket and ashtray earlier in the day on December
12, Sciroppo testified that he was surprised to see that they
were full again later that day at the point of his
termination . Indeed , Sciroppo testified that this in itself
was unusual inasmuch as he never before had seen more
than a few butts in the ashtray or more than "three pieces
of garbage" in the wastebasket . In the absence of any
testimony by Respondents, it must be concluded Scirop-
po's explanation of the alleged cleaning infraction makes it
appear that the matter was not, at the very least, entirely
his fault.
Upon the entire record in this case , I am persuaded and
find that the General Counsel has made out a prima facie
case establishing that Sciroppo was discharged because of
his known or suspected union sympathies . This conclusion
is inescapable when it is considered in the context of the
timing and sequence of events , which included the
following : Sciroppo's being observed by Respondents'
officials with other employees conferring with two "stran-
gers" in front of the plant before work on December 12;
the later interrogation of employee Matovic as to the
identity of the "strangers" by Udell and Udell's asking him
if they were from the Union; the still later extensive
interrogation of Sciroppo and Matovic by Foreman
Gerzon concerning their union sympathies (with Sciroppo
indicating that he was desirous of union benefits ); all of
which culminated with Sciroppo being discharged at 4:30
p.m. on the same day for the asserted reason , heretofore
related, which reason I find to be a pretext. Finally,
Singer's further questioning of Sciroppo , when Sciroppo
returned to the plant on the following Monday, concerning
the identity of the two outsiders who met with the
employees in front of the plant on the preceding Friday
morning further ties in Sciroppo 's discharge with the union
activity which occurred at that time. In sum, and for all the
reasons aforesaid, I find that Respondents' discharge of
Sciroppo on December 12 was for reasons proscribed by
the Act and was therefore violative of Section 8(a)(1) and
(3) of the Act.
B. Gregory Brooks
The unrefuted testimony of Brooks concerning the
background and circumstances of his discharge is as
follows: Brooks, a delivery truckdriver, was employed by
Respondents since about October 1, 1974. Although his
deliveries were usually of a local nature, in early December
BRAZIL DESIGN, LTD. 1511
1975, he was informed by Udell that he was to make a 3-
day trip to Boston. Brooks told Udell that he would make
the trip but asked that he be paid extra money. Somewhat
later, Udell advised Brooks that he had spoken to Singer
but that Singer had stated that since his hotel and food bill
would be paid, he would not receive anything extra in
wages. When Brooks protested that he did not wish to
make the trip without extra wages, Udell said that he
would speak to Singer again.
On December 10, Brooks proceeded to load the truck for
the Boston trip but kept asking Udell for extra money.
About 4:30 p.m., having received no response from Udell,
Brooks went to Singer and again requested the extra
compensation. Singer became angry and told Brooks to
forget about the trip to Boston. As Brooks left the office, he
overheard Singer remark to Udell, "If he doesn't do what I
ask him to do, then he is not my employee." That evening
Brooks received a call from Foreman Gerzon advising that
he was no longer employed.
The following day, December 11, Brooks went to the
plant to pick up his check. After some discussion with the
bookkeeper, he was advised that Singer wished to see him.
Apparently relenting his discharge of Brooks, Singer told
Brooks that since another employee was driving his truck
to Boston, he (Brooks) should take a 1-week vacation. This
was agreed upon. Singer then accompanied Brooks to the
bookkeeper's office where he authorized that Brooks be
given a week's vacation pay in addition to his regular pay.
At 9:53 on Monday, December 15, Respondents, by
Singer, sent Brooks the following telegram:
After further consideration of the differences we have
had with you about what your work duties should be, I
have decided to accept your resignation of December
11. Your remaining vacation pay will be sent by mail
today to your home.
In the middle of the afternoon on the following day,
December 16, Brooks received a telephone call at home
from Udell. Udell asked if he had received the telegram.
Brooks replied that he had not, whereupon Udell read the
contents of the above telegram to him. However, notwith-
standing the language of the telegram, Udell at this point
asked Brooks if he would work in the warehouse. Brooks
replied that he would. Udell then stated, "This doesn't have
anything to do with your discharge or anything; how do
you feel about the union?" Brooks responded, "The Union
is okay. I will accept one." The conversation terminated
with Udell stating that he [Brooks] should call him back in
an hour. Brooks did so. Udell at this time told Brooks that
,.it was no deal," that "Singer didn't want [him] back
anyway."
Upon all the foregoing uncontroverted testimony, and in
the context of the other events related heretofore, I find
that in Brooks' case the General Counsel has again
presented a prima facie case establishing that this employee
was discharged for discriminatory reasons. Thus, as
heretofore noted, the union activity occurred on the Friday
2 Apart from the fact that Brooks ' testimony of having been placed on
vacation status on December I I is unrefuted, there is independent evidence
to substantiate this testimony Thus, Brooks testified that on this date he had
2 weeks' vacation pay coming, but that at Singer's behest he was given only
preceding Brooks' discharge. On the same day, as well as
on the following Monday, Respondents' hostility to this
activity was manifested by their interrogation of employees
and was simultaneously followed by the unlawful discharge
of Sciroppo on December 12. Earlier, on December 10,
Respondents initially decided to terminate Brooks, an
obviously lawful determination at this time, for his refusal
to drive his truck to Boston. They notified him of his
termination on this date. However, on December 11, which
was prior to the occurrence of any union activity,
Respondents revoked Brooks' termination and instead
placed him on vacation status with the promise of his being
returned to work at the vacation's end.2 On the evening of
Monday, December 15 (following the union activity of
Friday, December 13), Respondents revoked their an-
nounced intention to retain Brooks in their employ by
sending him a telegram advising that he was terminated.
The evidence reflects a likely explanation, not yet related,
for Respondents' sudden change of mind. Thus, Brooks
testified that late in the summer of 1975, he was having a
conversation with Udell and Gerzon when the subject of a
union came up. Brooks at this time told Udell and Gerson
that unions were okay and that he liked unions. Udell
responded that the Company was too small for a union. In
the absence of any explanation by Respondents for
changing their decision to retain Brooks and by suddenly
sending him the discharge telegram on the evening of
December 15, it may well be inferred that this action was
precipitated by the intervening union activity of December
12 and Respondents' recollection of Brooks' previously
expressed prounion sentiments. In any event, it appears
from Udell's call to Brooks in the afternoon of December
16 that Respondents wished to give Brooks one more
chance; i.e., that they would retain him if they could be
assured that he was not proumon. This was not the case,
for Brooks responded to Udell's questioning during the
conversation. that he would accept a union. Notwithstand-
ing Udell's clear indication during the same conversation
that there would be a job for him in the warehouse, Udell
informed him an hour later that Singer did not want him
back. Clearly, when considered in context of the union
activity heretofore related, and also again in the absence of
any explanation from Respondents' witnesses, the infer-
ence must be taken that Brooks was terminated and not
recalled because of his expressed prounion sentiments.
Accordingly, I find that by such conduct Respondents
violated Section 8(a)(3) and (1) of the Act. I further find
that by interrogating employees concerning their union
sentiments and activities, Respondents independently
violated Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with the operation of
Respondents described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
I week's vacation pay at this time That this was the fact is borne out by
Respondents ' December 15 telegram which informed Brooks, inter alia, that
his "remaining vacation pay" would be sent by mail to his home
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondents engaged in certain
conduct violative of Section 8(a)(1) and (3) of the Act, I
shall recommend that they be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
It having been found that Respondents discharged
Vincent Sciroppo and Gregory Brooks in violation of
Section 8(a)(3) and (1) of the Act, I shall recommend that
Respondents be ordered to offer them full and immediate
reinstatement to their former positions or, if these jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and to make them whole for any loss of earnings they may
have suffered from the date of their discharge to the date of
Respondents' offer of reinstatement. Backpay shall be
computed in accordance with the formula prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), with interest
thereon computed in the manner and amount prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
In view of the nature and extent of the unfair labor
practices herein found, it will be recommended that
Respondents be ordered to cease and desist from in any
manner infringing upon the rights guaranteed employees in
Section 7 of the Act.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Vincent Sciroppo and Gregory Brooks immedi-
ate reinstatement to their former positions or, if these
positions no longer exist, to substantially equivalent
positions, and make them whole for any loss of pay they
may have suffered by reason of the discrimination against
them in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon 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 their facilities in Queens, New York, copies of
the attached notice marked "Appendix." 4 Copies of said
notice, on forms to be provided by the Regional Director
for Region 29, shall be posted by it immediately upon
receipt thereof and 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 be taken by Respondents to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
CONCLUSIONS OF LAW
1. Brazil Design , Ltd. and Brazilian Products, Inc.,
constitute a single , integrated business enterprise and is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
On the basis of the above findings of fact, conclusions of
law, and the entire record , and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDERS
Brazil Design, Ltd. and Brazilian Products, Inc., Brook-
lyn, New York, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
sympathies and activities.
(b) Discharging employees because of their union
activities.
3 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 , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
4 In the event that the Board's 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or fall to recall employees
because of their union activities.
WE WILL NOT interrogate our employees concerning
their union sympathies or activities.
WE WILL offer Vincent Sciroppo and Gregory
Brooks immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have
suffered by reason of the discrimination against them.
BRAZIL DESIGN, LTD.
WE WILL NOT in any other manner interfere with our
employees' exercise of rights guaranteed them by
Section 7 of the National Labor Relations Act, as
amended.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of Truck
1513
Drivers Local Union No. 807, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or of any other labor organization.
BRAZIL DESIGN, LTD. AND
BRAZILIAN PRODUCTS, INC.
/r U.S. Government Printing Office : 1977-261-294/2