Bruce Duncan Co.

National Labor Relations Board - Board Decisions

Dec 5, 1977

233 N.L.R.B. 1243 (N.L.R.B. 1977)

BRUCE DUNCAN CO., INC.
Bruce Duncan Co., Inc. and Local 295, Air Freight,
Chauffeurs, Handlers, Warehousemen and Allied
Workers, International Brotherhood of Teamsters.
Case 29-CA-4000
December 15, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On June 13, 1975, Administrative Law Judge John
M. Dyer issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief. The General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
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, find-
ings, l and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found, and we
agree, that the Respondent violated Section 8(a)(l) of
the Act by the following acts in August 1974: Office
Manager Wagschel's assault on employee Kurz and
his threats to harm Kurz' family, and Vice President
Suazo's threat to close the JFK Airport office if the
employees choose to be represented by a union.
The Administrative Law Judge further found that
the Respondent closed its JFK office and discharged
its eight employees there on August 22, 1974, "in
retaliation for [their] attempts to have a union." He
thus rejected the Respondent's explanation that
unfavorable economic conditions necessitated the
closing of the office. We agree with these findings of
fact.
The Administrative Law Judge went on to require
that the Respondent reopen the closed facility and
reinstate its former full-time employees. This remedy
was based on the finding that the Respondent could
reasonably have foreseen that the closing of the JFK
office would "chill unionism" at one or more of its
other facilities, including the office at the World
Trade Center (WTC). We do not agree with this
finding of fact, with the conclusion of law that the
closing and discharges violated Section 8(a)(3) and
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
233 NLRB No. 176
(1) of the Act, or with the Administrative Law
Judge's remedy for the following reasons.
The permanent closing of part of an employer's
business is not an unfair labor practice proscribed by
Section 8(a)(3) of the Act unless evidence is elicited
to support two findings. First, the closing must be
motivated, at least in part, by a purpose to chill
unionism in any of the remaining facilities of the
single employer. Second, it must be found that the
employer could reasonably have foreseen such an
effect. 2
As indicated, the Administrative Law Judge found
that a chilling effect on employees of other offices
was foreseeable, but he did not discuss whether the
achieving of that effect was the motive for closing the
JFK office. In the absence of direct evidence, the
Board has in the past found an 8(a)(3) violation in a
situation where we could fairly infer that the
employer's conduct met the two-pronged test of
Darlington, supra. This inference, fairly drawn, must
rest upon the established facts presented in each
case. Generally, the Board in determining whether or
not the proscribed "chilling" motivation and its
reasonably foreseeable effect can be inferred consid-
ers the presence or absence of several factors
including, inter alia, contemporaneous union activity
at the employer's remaining facilities, geographic
proximity of the employer's facilities to the closed
operation, the likelihood that employees will learn of
the circumstances surrounding the employer's unlaw-
ful conduct through employee interchange or con-
tact, and, of course, representations made by the
employer's officials and supervisors to the other
employees. See, e.g., Motor Repair, Inc., 168 NLRB
1082 (1968). And compare A. C. Rochat Company,
163 NLRB 421 (1967), with George Lithograph
Company, 204 NLRB 431 (1973).
In the instant case, the Administrative Law Judge
relied on the fact that employee Ernestina Domingos
was subsequently transferred from the JFK office to
the Respondent's downtown New York City office in
the World Trade Center. However, aside from the
comment on August 13 from a superior at the WTC
that Domingos was to "[clome in here [WTC] to
work," there is no evidence of what else, if anything,
the Respondent told her or the other WTC employ-
ees about the closing, or that Domingos discussed the
matter with her fellow employees. Moreover, there is
no evidence that the WTC employees, or any of the
Respondent's 100-plus employees at the remaining
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Textile Workers Union of America v. Darlington Manufacturing Co., 380
U.S. 263 (196%5).
1243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seven offices, were engaging in any union activities at
the time of the JFK closing.
The Administrative Law Judge further relied on
the temporary assignment of several office managers,
including Walter Gabrielson and Rolf Wagschel, to
the JFK office on or about August 12. While the
record shows that Chicago Office Manager Wagschel
was at the JFK office on August 13, when he
coercively threatened employee Kurz, there is no
evidence that he was privy to the decision to close
that office, or that he said anything about the closing,
his encounter with Kurz, or the union efforts of the
JFK employees to any of the Chicago office
employees whom he supervised. Similarly, there is no
evidence of any conversations concerning the JFK
closing between WTC Office Manager Gabrielson or
Vice President Suazo and the WTC employees they
supervised. Suazo was told at the last minute of the
closing of the JFK facility, but the record shows that
that decision was reached despite his recommenda-
tion to the contrary. In sum, we find no evidence that
would fairly support the inference that the Respon-
dent, in closing the JFK office, was motivated by a
desire to disparage the union interests of its other
employees, or that the Respondent could have
reasonably foreseen such an effect, especially since
there is no evidence of any such interest or activity.
Accordingly, we shall dismiss that portion of the
complaint that alleged a violation of Section 8(a)(3)
and (1) of the Act. We also deny the request in the
complaint for a bargaining order. We are of the view
that the two violations of Section 8(a)(l) found
herein are insufficient to warrant such a remedy.3
THE REMEDY
We agree with the Administrative Law Judge that
it will effectuate the policies of the Act to order the
Respondent to cease and desist from engaging in
conduct herein found to be in violation of the Act.
Major modifications of the Administrative Law
Judge's other recommended remedies are required,
however, in view of our finding that the Respon-
dent's termination of part of its business was not an
unfair labor practice. Since the closing of Respon-
dent's JFK Airport office on August 22, 1974, is here
found to be a lawful action, we will not order a
reopening of the facility with reinstatement and
backpay for the discharged employees.
Our decision in this case is based on a finding that
the Respondent has permanently closed its JFK
Airport office. The possibility does exist, however,
that the Respondent will resume operations at the
3 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
' Motor Repair, Inc., 168 NLRB at 1083-84.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
JFK Airport at some future time. We shall therefore
retain jurisdiction herein so that, if such an event
should occur, we may consider its legal implications.4
AMENDED CONCLUSIONS OF LAW
We adopt the Administrative Law Judge's Conclu-
sions of Law 1, 2, and 4 and we delete his Conclusion
of Law 3.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Bruce Duncan Co., Inc., Brooklyn, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with closing its office or
warning employees to refrain from becoming or
remaining members of Local 295, Air Freight,
Chauffeurs, Handlers, Warehousemen and Allied
Workers, International Brotherhood of Teamsters,
and assaulting or threatening employees and their
families with bodily harm or other reprisals if the
employees become or remain union members or
assist the Union or choose it as their bargaining
agent.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in their right to
self-organization, to form their own labor organiza-
tions, to join or assist the above-named Union, or
any other labor organization, to bargain collectively
with representatives of their own choosing, and to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Mail copies of the attached notice marked
"Appendix" 5 to Richard Kurz, Brian Weremeychik,
William Geiger, Gary Scarchilli, Alfred Gross, Linda
Messina, and Neville Sankar. Copies of said notice,
on forms provided by the Regional Director for
Region 29, after being duly signed by the Respon-
dent's authorized representative, shall be mailed
immediately upon receipt thereof to such employees
at their last known addresses.
(b) Deliver to the Regional Director for Region 29
signed copies of said notice in sufficient number for
posting by Local 295, Air Freight, Chauffeurs,
Handlers, Warehousemen and Allied Workers, Inter-
national Brotherhood of Teamsters, it being willing,
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."
1244
BRUCE DUNCAN CO., INC.
at all locations where notices to its members are
customarily posted.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that jurisdiction is retained
to reconsider and modify the provisions of this
Decision and Order, if such action is later found
appropriate.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to mail this notice to employees
Richard Kurz, Brian Weremeychik, William Geiger,
Gary Scarchilli, Alfred Gross, Linda Messina, and
Neville Sankar who worked for us at John F.
Kennedy Airport, and we intend to carry out the
Order of the Board and abide by the following:
WE WILL NOT threaten our employees with
closing operations if they insist on representation
by Local 295, Air Freight, Chauffeurs, Handlers,
Warehousemen, Allied Workers, International
Brotherhood of Teamsters.
WE WILL NOT assault or threaten our employees
or their families with bodily harm or other
reprisals if they assist the Union, or become or
remain union members.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed to them by
law.
BRUCE DUNCAN CO.,
INC.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: Local 295,
Air Freight, Chauffeurs, Handlers, Warehousemen and
Allied Workers, International Brotherhood of Teamsters,
herein called the Union, on September 4, 1974,1 filed a
charge against Bruce Duncan, Co., Inc., herein called the
Company or Respondent, alleging that Respondent had
refused to bargain with it for its employees at its location at
the John F. Kennedy Airport in New York, herein called
the JFK office, on and after August 11, and that, on
August 23, it had discharged its JFK office employees
because of their union and protected concerted activities.
On November 6, the Regional Director issued a
complaint and notice of hearing which in addition to the
standard service and jurisdictional allegations noted that
an appropriate unit of employees at the JFK office had
designated the Union as their bargaining representative by
August 9. On August 12, Respondent refused to recognize
the Union and the JFK employees then went on a strike
which was prolonged by Respondent's unfair labor
practices, consisting of threats and an assault in violation
of Section 8(a)(1); and on August 23, Respondent closed
the JFK office and terminated the employees in violation
of Section 8(aX3) and (1). The complaint requested a
bargaining order and resumption of the JFK office to
remedy these violations but no 8(a)(5) violation was
alleged.
Respondent's answer admitted the service and jurisdic-
tional allegations, denied that the Union represented a
majority of its JFK office employees, admitted it had
refused to recognize or bargain with the Union, and denied
that it had committed any unfair labor practices.
During the hearing of this case which was held on
February 10-13, 1975, in Brooklyn, New York, Respon-
dent admitted the status of the Union as a labor
organization and the parties stipulated that a unit consist-
ing of "all employees of Respondent, employed at its JFK
office, exclusive of guards and supervisors as defined in
Section 2(11) of the Act, constitute a unit appropriate for
the purpose of collective bargaining."
The parties were afforded full opportunity to appear, to
examine and cross-examine the witnesses, and to argue
orally. General Counsel and Respondent have filed briefs
which have been fully considered.
The basic question in this case is whether, as the General
Counsel and the Union contend, the Company decided to
terminate the JFK office because its employees sought to
be represented by the Union or, as Respondent contends,
that the termination of this office was brought about by a
decision made to close the JFK office because of economic
reasons, before the Union appeared.
On the basis of all the evidence I have concluded that
General Counsel's prima facie case has not been rebutted
by Respondent. Respondent's economic data concerning
the JFK office, when compared with the previous perfor-
mance of the JFK office and as against other locations,
convinces me that the JFK office economic picture was not
the outstanding "sore" which Respondent claimed it was.
Respondent's actions through the spring and summer of
1974 were not consistent with its economic testimony.
Further, Respondent's testimony was contradictory in
several instances and that of its main witness John Suazo
appeared much overstated and at times self-contradictory
and I have concluded that I cannot credit Respondent's
testimony when it is in conflict with the testimony of most
other witnesses. I have concluded that the Union did
represent a majority of Respondent's employees at the JFK
office and that Respondent refused to bargain with the
I Unless specifically stated otherwise all dates herein occurred in 1974.
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and closed its JFK office in retaliation for its
employees' attempts to have a union. Under these
circumstances I have concluded that it was foreseeable that
employees at Respondent's other locations and in particu-
lar at Respondent's Ocean division at the World Trade
Center location (herein called the WTC office) would have
any union aspirations "chilled" by Respondent's closing of
the JFK office; to remedy the violations it will be necessary
for Respondent to reinstitute the JFK office operations it
terminated.
On the entire record of this case, including the exhibits
and testimony proffered, and including my evaluation of
the reliability of the witnesses based on the evidence and
their demeanor, I make the following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Bruce Duncan Co., Inc., is a California corporation
engaged as a customs broker, an international air transport
association agency, and an international freight forwarder
with its headquarters in Los Angeles, California, and with
locations in California, Illinois, Texas, Florida, and New
York. Respondent annually performed services valued in
excess of $500,000, more than $50,000 of which was
performed in States other than California.
Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits and I find that the Union herein is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Respondent acts as a freight forwarder and customs
broker for customers inporting or exporting goods both by
air and sea. At the time of the hearing it had nine locations,
several of which were in California, in Houston, Texas,
Chicago, Illinois, Miami, Florida, and the two New York
locations. During 1974 the WTC office had five employees
with a sixth employee Ernestina Domingos at the JFK
office where she prepared ocean export documentation for
shipments received at the JFK Airport. The WTC office
was under Office Manager Walter Gabrielson during 1974.
The JFK office started in 1971 and John Suazo, who had
started at that location as the "Export Manager" in March
1971, was named office manager of the JFK office in
January 1973. In January 1974, Suazo took over responsi-
bility for both New York locations and in March was given
the title of vice president.
In January 1973, Suazo interviewed a number of people
and hired Richard Kurz as the "Import Manager." Suazo
knew the export business but testified he did not know
much about imports and so hired someone with a lot of
experience to handle the import functions at the JFK
office. Kurz had some 10 years' experience in imports and
was an import documentation clerk before coming with
Respondent.
Although there had been some personnel turnover at the
JFK office in 1973 and 1974, there were 10 employees there
in August 1974, plus John Suazo. Of the 10, Pat and
Geraldine Oliveto were college students who were hired for
definite time periods during the summer. Pat Oliveto
ceased work on Friday, August 9, and Geraldine Oliveto, a
typist, was due to cease work on Friday, August 16. Suazo
was the only person with an office. "Import Manager"
Kurz' desk was next to Scarchilli in the central office area
and they worked on import documentation. Scarchilli was
a college student who was new at the job. Kurz showed him
the work and it was split reasonably between them with
Kurz handling the more complicated jobs. When there was
more typing than they could handle Geraldine Oliveto or
her predecessors did the typing under an arrangement
made by Suazo. Usually Oliveto would type correspon-
dence for Suazo in the morning but was available to do
typing for either import or export as needed.
Linda Messina had been hired, in June, to do export
work, at a salary of S200 per week. There is a question of
whether she was told at the time that she would at some
point be given a title of "Assistant Export Manager." She
did not recall any mention of a title. Working with her in
exports were William Geiger and Brian Weremeychik. The
latter had originally been a field man and was brought into
the office in March to work on making up airway bills,
unloading trucks, and taking care of freight in the
warehouse. Neville Sankar did similar work. Al Gross was
the field man and ran errands in the field picking up
papers, packages, etc., for both the import and export
departments. The 10th person was Ernestina Domingos,
mentioned above, who apparently was attached to the
WTC office for ocean work but worked at the JFK office.
Both export and import businesses are seasonal, or at
least so far as Respondent's JFK office was concerned. The
export business is heavy from the fall through midwinter
and then it slacks off until the following fall. The import
business at the JFK office had clothing as its biggest item
and its seasons were fall, Christmas, spring, and Easter.
Accordingly, the summer of 1974 would have been the
slowest part of the import business since the spring and
Easter season for clothes had just passed, and they would
be looking forward to the fall and winter seasons.
Brian Weremeychik testified that around May he
became interested in a union but did nothing about it then,
other than discuss it with Kurz. On August 6, after having
discussed it again, he, Kurz, Scarchilli, and Geiger went to
the union hall and talked with Union Secretary-Treasurer
Davidoff. This was the first occasion on which any of them
had talked to a union official concerning organization.
After discussing the Company and the benefits of a union
as suggested by Davidoff, the four men signed union
authorization cards which were given to Davidoff. They
took other cards with them to seek authorizations from the
other employees.
I credit Kurz, Scarchilli, and Weremeychik that the four
men signed authorization cards at the union hall, rather
than Geiger's recollection of signing his card at the plant,
particularly since there is no testimony that there were any
union authorization cards in the possession of any of the
men prior to their visit to the union hall.
1246
BRUCE DUNCAN CO., INC.
Ernestina Domingos was asked to sign a union card and
did so. She testified that she felt she was a part of the WTC
office since she believed she was only temporarily at the
JFK office. There was no testimony to indicate whether she
was temporarily or permanently a part of the JFK office,
but when it was closed she was transferred to the WTC
office.
Linda Messina testified that she was an export documen-
tation clerk and had worked for the Company about 10
weeks with Weremeychik and Geiger when she was asked
to sign a union card; she did so and returned it to Geiger or
Weremeychik. She said she knew about the benefits of a
union contract since her husband was working under a
union contract and she picketed on the first day of the
strike.
Alfred Gross testified that Kurz gave him a union card in
the warehouse on Thursday, August 8. Neville Sankar was
given a card by Kurz on Thursday, August 8, but did not
sign it then and refused to sign the card on Friday. Brian
Weremeychik stated that he told Sankar that he would not
be able to work for a union establishment if he did not sign
a card, but if the Union came in he would have another
chance to sign a card within 30 days after they got a
contract. Sankar's testimony was less detailed, stating only
that he was told if he did not sign a card he would not be
able to work for union firms at the airport. Sankar
attributed this statement to Kurz rather than Weremey-
chik. Kurz testified that Sankar told him he had not signed
the card prior to his signing on Monday because he felt he
had been slighted in being the last one asked to sign. Kurz
explained that he had asked Sankar to sign prior to the
time he had asked Gross. After the employees did not go
into work on Monday, August 12, and while Suazo was
inside talking to the union officials, Sankar signed a union
card and picketed during the duration of the strike.
It appears from the testimony above that by Friday,
August 9, when apparently there was a meeting of some of
the employees with union officials, that Kurz, Weremey-
chik, Scarchilli, Geiger, Gross, Messina, and Domingos
had all signed union authorization cards which were given
to Union Secretary-Treasurer Davidoff. Apparently at this
Friday, August 9, meeting the employees agreed not to
report for work on Monday until after Union Official
Davidoff had a chance to discuss recognition and a
contract with John Suazo.
B. Kurz's Supposed Supervisory Status
Respondent claims that most if not all of the union
authorization cards are invalid because Kurz was a
supervisor and that his participation in securing union
authorization cards and asking employees to sign them
invalidated such cards, therefore there was no valid
uncoerced majority of Respondent's employees authorizing
the Union to be their collective-bargaining agent on
Monday, August 12. The General Counsel and the Union
maintain that, at most, Kurz was a minor "strawboss" with
no true supervisory authority in that he did not use any
independent judgment in directing work.
Respondent bases its supervisory claim on a number of
things. It starts with Kurz being hired in January 1973 at a
salary of $200 a week as the "Import Manager," his being
raised to a salary of $225 a week in January 1974, and in
either late February or March 1974 being given a title of
"General Manager." Respondent also argues that the
salaries of the other employees were considerably lower
and that such is an indicia of his supervisory status.
The salary structure, excluding the temporary summer
employees, ranged from $135 per week for Scarchilli and
Gross, to $180 per week for Sankar, and to $200 per week
for Linda Messina. Messina, who was not claimed to be a
supervisor by Respondent, had been hired in June for
export work and she described her job as that of an export
documentation clerk. Respondent indicated that a title
"Assistant Export Manager" may have been discussed with
her, but she did not recall any such discussion and
apparently never assumed or used such a title. Mrs.
Messina had some 7 years' experience as an export
documentation clerk. Contrasting her position and salary
with Kurz, it would appear that Kurz' prior 10 years'
experience, his year and a half of employment with
Respondent prior to Mrs. Messina, and his title "Import
Manager" might easily account for the $25-a-week differ-
ence.
The title of "General Manager" which was given to Kurz
in February or March was not accompanied by a raise.
When John Suazo testified about this new title, he stated
that he discussed with Kurz the additional duties the job
entailed. However, the only additional duty which Suazo
could remember was that Kurz was told to add up the
figures on the employees' timecards, make the necessary
deductions according to a provided formula, and figure out
the salaries to be paid. Thereafter the timecards were
initialed by Suazo before being sent to California for
payment. Apparently from Suazo's testimony Kurz re-
tained the same job with the same duties he had prior to
this title. Kurz testified that he still acted as an import
documentation clerk.
Suazo also testified that, at the time Kurz was given this
title, he asked Kurz whether he wanted to hire an import
manager to be under him. With only one additional duty
being given to Kurz to perform, it is not credible that such
an event occurred, because Kurz would have been left with
nothing to do but tote up timecards unless he kept his
former duties.
In regard to his duties as "Import Manager," Kurz stated
he was not a manager although he had that title, since he
continued to do the full duties of an import documentation
clerk, assisted in those duties by various employees at
various times and during the last period of his employment
by Scarchilli. Kurz testified credibly that, since Suazo did
not have any experience in the import end of the business,
the manner of handling import documents was left to him
since he did most of it with the help of, at the most, one
other person. As the volume of business picked up and he
and the other person were unable to do all of the typing an
arrangement was made with Suazo that the office secretary
would type some of the documents when there was too
much for them to complete. Although Suazo defined the
"import department" as including the field man and his
secretary, this was not the case. The field man, as several
people testified, had the duty of picking up imports,
exports, documents, or whatever was needed from points
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
around the airport and his orders, as such, came from
whatever was placed in the "order box" for him. He would
make up his own schedule in going about the field.
Additionally, it was testified that the position of "Office
Manager" which was held, for example, by Mr. Gabrielson
at the WTC office was superior to that of "General
Manager." Suazo said it was his hope that, if the business
kept growing, one day they would reach the position where
Kurz would be in charge of the JFK office, leaving him to
manage both New York locations, but such was not then in
sight. Suazo admitted that the work of the import
department was so structured and the duties were so
regular and routine that if Kurz was absent the work would
continue to flow through the import department.
Respondent's brief states that in January 1973 Kurz
received the same salary as Suazo, who had hired him, but
the record shows that Kurz was then receiving $200 a week
while Suazo was receiving $1,000 a month. Respondent
also noted that Suazo and Kurz did riot punch the
timeclock while it stated the rest of the employees did.
However, this was erroneous since Linda Messina did not
punch a timeclock and as noted above was not a supervisor
nor did Respondent claim her to be such.
John Suazo testified that Kurz had the authority to hire
and fire employees and to recommend raises and he did so.
Specifically Suazo testified that Kurz hired an employee
named Ranowicz and set his salary; it was not until later
that he met Ranowicz.
The sequence according to Kurz is that a position in the
import section was open and Suazo posted notices of the
opening on bulletin boards around JFK Airport. Ranow-
icz' mother, whom Kurz had known for some time, called
and asked about the job and Kurz said to have him come
for an interview. Suazo knew Ranowicz from having
interviewed him in 1973 and had decided he did not have
the experience to fill the job for which Kurz was hired.
With this background Suazo had Kurz interview Ranowicz
to determine if he knew enough about the import work to
handle the job duties. During the interview Ranowicz said
he wanted a salary around $180 per week and Kurz told
him that was out of line with the company's salary
structure, that if he really wanted the job to settle at a
figure around $140 per week. According to Kurz, Suazo
then interviewed Ranowicz, who later told Kurz that Suazo
hired him at $140 per week.
Suazo claimed that Kurz discharged Ranowicz, but gave
no particulars. Kurz testified that Suazo on a number of
occasions said he was going to discharge Ranowicz and
finally at a meeting in the office told Ranowicz the
Company had to cut back and that he was being laid off.
Suazo stated again, without details, that Kurz hired and
fired an employee named Yacobellis. Kurz testified that,
after Suazo had posted a notice seeking a typist, a friend
called and told Kurz of a young woman who was looking
for a typist job. Kurz said she should come to the office for
an interview with Suazo. Miss Yacobellis asked for Kurz at
the office and, after a few minutes' conversation, because
Suazo was busy, was interviewed and hired by Suazo.
Later, after expressing some dissatisfaction because Yaco-
bellis had been out sick for 3 days, Suazo called her into
the office and discharged her. Kurz said that Yacobellis
resented the discharge and a scene ensued in the office.
Kurz denied having anything to do with either the hiring or
firing of Yacobellis.
Suazo also testified, again without details, that Kurz
interviewed and hired an employee named Paolino. Kurz
testified that Paolino was related to Suazo in some manner;
that Suazo had been downstairs interviewing Paolino and
called him down to ask Paolino some technical questions to
be sure that Paolino had some knowledge of imports. Kurz
testified that he may have asked Paolino a few questions
but then said he knew that Suazo had already hired
Paolino.
In regard to an employee named Perretta, Suazo stated
that Kurz discovered that Perretta had not been doing his
work and recommended his discharge; he told Kurz that
whatever he did was fine and Kurz discharged Perretta.
Kurz testified that on one occasion, when Perretta was
absent from work, he went to his desk to do some of the
import work and found some documents regarding "in-
bond" goods, which should have been processed, lying in a
desk drawer. When he determined that the Company was
going to be charged substantial amounts because of
Perretta's derelictions, he reported this incident to Suazo,
saying that Perretta should be fired, leaving the matter to
Suazo. Kurz testified he was not present at the office about
a week later when Perretta was discharged. Suazo told him
that Lambretta, an accountant from the Los Angeles office,
actually fired Perretta after being told to do so by Suazo.
Kurz denied that employees asked him for raises or that
he had recommended any salary increases. There was no
direct testimony from any employee that they had sought
raises from Kurz expecting Kurz to grant such raises. Some
employees stated that they did not ask Kurz for time off or
for raises knowing that Kurz would have to ask Suazo for
such.
Suazo consistently modified some of his testimony on
cross-examination. For example, after originally stating
that Paolino had been interviewed and hired by Kurz,
Suazo stated during cross-examination that he was with
Paolino and that Kurz was called down to ask Paolino
some technical questions. Suazo apparently confused
another hiring, stating that Kurz hired a Miss Galm when
apparently she had been employed by Respondent prior to
Kurz' employment. Although originally testifying that he
discussed employee performance with Kurz, indicating that
this was done solely in Kurz' position as a "supervisor,"
Suazo later admitted that he discussed employee perfor-
mance with most of the employees in the plant and sought
their recommendations on other employees.
Suazo also stated that Kurz could and did authorize
overtime for employees. Kurz denied that overtime was
authorized as such, stating that employees worked over-
time when there was work which had to be finished. This
was corroborated by other employees.
In considering the conflicting testimony above, and
noting that the titles used apparently had no relationship to
the job content of the employees (for instance Suazo called
Gross a field manager when, in reality, he was the
messenger who used a van to pick up documents and
freight and considered himself at the bottom of the totem
pole) and, considering the inflated claims and later
1248
BRUCE DUNCAN CO., INC.
concessions by Suazo on a considerable amount of his
testimony, I have come to the conclusion that Kurz was not
a "supervisor" within the ordinary meaning of the word
but was rather a "strawboss" who had certain duties and
responsibilities due to his knowledge of the import field. In
implementing these duties Kurz' decisions were not of the
type where independent judgment was needed or exercised.
Suazo was in charge of the JFK office and was gone,
from his estimate, about 20 percent or I day a week, while
employees placed his absence at or about 5 percent. While
gone he was in touch with the office by phone and notified
office personnel where he could be reached. There appears
no compelling necessity to have a "supervisor" appointed
to take his place under these circumstances for a group of
10 employees whose work was standardized.
Kurz' job kept him mainly at a desk which was next to
the desk of the other person who worked in the import
department. At that location they both worked on import
documents. Kurz stated he was not a supervisor since he
was still doing the work of a clerk and it is clear that he was
given no supervisory duties, contrary to the assertions of
John Suazo. In considering all the testimony I do not credit
Suazo where his testimony conflicts with Kurz and I find
that Kurz was not a supervisor within the meaning of the
Act. I therefore conclude that the union authorization card
signed by Kurz and the cards signed by those whom he
approached are valid authorization cards.
C. Events of August 12 and 13
On August 12, the employees met outside the JFK office
and did not go into the building. It would have been
normal procedure for Kurz or one of the other persons with
a key to open the building, turn off the burglar alarms, and
open the offices. Union Secretary-Treasurer Davidoff and
possibly Local Union President Costa were present at the
JFK office prior to the time that John Suazo arrived.
Employee Sankar and summer employee Geraldine Oliveto
were told that the employees were on strike so they later
signed union cards. When Suazo arrived he was told by
Kurz that the union officials wished to see him. Suazo then
opened the office and, accompanied by Davidoff and
perhaps Costa, proceeded into the office.
Davidoff testified that he showed Suazo the signed
authorization cards he had with him, claimed that the
Union represented a majority of the employees, and said
they would like to negotiate a contract as soon as possible.
He gave Suazo a copy of a contract that the Union had
with another air freight company, saying it was an
industrywide agreement. He asked Suazo to go over it,
saying that if he had any questions they could work it out
and that if he did not have any questions he could sign it.
Suazo looked briefly at it, remarking that it would take
some time to read it. He asked about the classifications and
salaries, noting that there was one classification he did not
have called "lead agent." Davidoff stated that a "lead
agent" would have to be appointed. Suazo said he could
not make such a decision but would have to contact Bruce
Duncan in California and, because of the time difference,
he would have to wait until noontime. Davidoff testified
that he got the impression, from what Suazo said, that
Suazo would like to sign a contract because Suazo would
probably get a raise and that it looked good. Suazo said he
would let him know something after he contacted Duncan.
Somewhere around noon Suazo contacted Davidoff and
said they were working on it and would let him know.
Davidoff told the employees who were still outside to go
ahead and put on the picket signs and start a picket line.
Davidoff testified that throughout the period of the
picketing up until August 23, when the employees got
letters that the office was closing, he was in contact with
Suazo who on a number of occasions told him that it
looked good, that Bruce Duncan was coming around, and
that it should be straightened out and he would be happy
when the contract was signed and the people could go back
to work.
Suazo's testimony was that he was surprised when he got
to the office on the morning of August 12 and saw the
employees standing around outside. He stated that Kurz
greeted him sarcastically and said the union officials
wanted to see him and that he and two union men then
went into the office. Suazo said he was not shown any
union authorization cards but was handed a contract which
was said to be similar to the contract that Emery Freight
Company had with the Union. He told Davidoff that he
had no authority to discuss anything and that they would
have to wait until noontime so he could discuss it with
Duncan. Davidoff then briefly reviewed the contract with
him, discussing the classifications, salaries, etc. After about
15 minutes Davidoff left. Around noon he called Duncan
and told him about the terms of the contract and to
Duncan's question of whether the Union represented the
people he said he did not believe so. Duncan then told him
to contact a local attorney.
Specifically Suazo was asked whether the Union asked
for recognition and bargaining. He testified that the word
recognition was not used by either of the union officials.
He said that Davidoff said the salary schedule was firm
and that neither of the union officials demanded that the
Company negotiate with the Union. He also claimed that
Davidoff said that nobody could come into the building
that morning, which claim Davidoff denied. There was
other evidence that people did go into the building on
August 12 and on succeeding days.
During cross-examination Suazo said he did not under-
stand what the word recognition meant or what a
relationship between an employer and a union would be,
and that he did not believe that the people were with the
Union. Suazo changed his testimony to admit that when
Davidoff came in that morning he did say he represented
the employees. To the question of what Davidoff was doing
in the office that morning if it was not to secure a contract
on behalf of the employees with the Union, Suazo said he
was not sure, that Davidoff had wanted him to relay
information to Duncan and he really was not sure what the
relationship would be. Later that day the Union sent a
telegram to the Company stating that the Union represent-
ed a majority of their employees and requesting Respon-
dent to contact the Union as soon as possible to negotiate a
contract. Following the warning testimony of Suazo,
Respondent's counsel stated on the record that the
Company had declined to recognize the Union based on a
number of things. This admission would indicate that there
1249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a request for recognition and bargaining as the
testimony clearly indicates.
Suazo called Gabrielson at the WTC office and Gabriel-
son came out to the JFK office later that day to assist. On
the following day several office managers from other
locations came in to assist Suazo in trying to run the office.
Chicago Office Manager Wagschel came to New York and
was there on August 13 to assist Suazo. Sometime between
4 and 5 p.m., while Kurz was off the picket line relaxing,
Wagschel came out of the office and approached him.
Wagschel stated that he did not know any of the others but
he knew Kurz and was going to talk to him. Motioning
towards the picket line he said that, if Kurz wanted to fool
around he could, but that he (Wagschel) had many friends
in Chicago only a telephone call away; that Kurz had a
lovely family, a nice wife, and two children, but if he did
not stop fooling around, again pointing to the picket line,
he was going to have them taken care of, and then made a
backhand slapping motion towards his face, knocking
Kurz back. Kurz recovered and started after Wagschel
and, according to all the witnesses who were around at that
point, Kurz yelled at Wagschel asking whether he was
threatening his family. Weremeychik corroborated the
encounter but gave a different version of how the blow was
struck. Sankar and Geiger indicated that they heard the
preliminaries of the conversation but moved off to picket at
that point and did not see a blow struck. Gabrielson, who
was outside checking one of the company vehicles, said he
did not pay too much attention to Wagschel coming out of
the building but he did hear Kurz in a loud voice ask
whether Wagschel was threatening his family.
Maxie Phillips, who was employed during at least part of
the strike as a security guard for an independent security
agency assigned to the JFK office, testified that he was
inside the plant, heard a bit of a ruckus, and by the time he
got outside heard Kurz yelling at Wagschel asking whether
he was threatening his family.
The testimony indicates that Wagschel went back into
the building at that time, either hurriedly or not depending
on the witnesses. Kurz thought there were at least six
guards on the steps protecting Wagschel as he went in. The
testimony indicates there were only two guards on the
steps. Kurz was restrained by Weremeychik and others
who felt that it was an attempt to provoke an incident and
told Kurz that. Kurz called the police and had Wagschel
arrested. Wagschel left the New York area and according
to the Company as of the time of the hearing was no longer
with them. Wagschel did not make an appearance at the
hearing of this matter.
The complaint alleges that Respondent, through the
actions of Rolf Wagschel, its agent and supervisor, warned
its employees not to become or remain members or give
any assistance to it and that Wagschel assaulted an
employee and threatened the employee's family with
bodily harm and other reprisals if the employee became or
remained a member of the Union.
Respondent claims that no blow was struck, pointing to
the blow variations testified to by Kurz and Weremeychik
and claiming that none of the other people present saw a
blow struck. However, neither Phillips, Gabrielson, Gross,
nor Sankar was in a position to see a blow struck. It is clear
from the testimony of all the witnesses that something was
said by Wagschel to Kurz which Kurz immediately
interpreted as a threat against his family. Whether a blow
actually landed or not, it is clear that some sort of gesture
was made towards Kurz by Wagschel and that, in the
context, the statements and motions constituted an assault
on Kurz. An assault does not have to result in the actual
physical hitting of a person.
I conclude and find that the allegation of the complaint
as alleged has been proven by the General Counsel and
that Respondent, through Rolf Wagschel, who was an
office manager of Respondent if not a vice president, and
who was known at least by Kurz as such, and more than
likely by the other employees present to be a supervisor or
managing agent for Respondent, performed the actions
alleged and that Respondent is responsible for such actions
of its supervisors. There has never been any disavowal of
such actions by Respondent.
The complaint also alleges that, on August 13, Office
Manager Gabrielson offered to negotiate directly with
striking employees in order to induce them not to become
or remain union members or support the Union and to
abandon their union membership.
Brian Weremeychik testified, on direct, that during the
second day of the strike Gabrielson came up to him and
asked why he did not come in and go back to work, to
come in and forget it and that if he came in and talked
about it he believed they could get around the union
nonsense. Weremeychik replied that he had signed a union
card and was going to go all the way with it. During his
cross-examination Weremeychik admitted that he was not
completely sure what Gabrielson said to him when he came
out on the sidewalk.
Gabrielson testified that he talked informally with some
of the people on the picket line and would answer any
questions that were asked of him, but denied that he had
asked people to go back into the plant.
In view of the inconclusive nature of Weremeychik's
testimony and his admission that he did not recall just what
Gabrielson said, this complaint allegation must be dis-
missed.
Alfred Gross testified that I to 2 months before the union
organizing began John Suazo had said that if a union came
in to the JFK office he did not think the Company would
be able to afford union salaries and benefits and possibly
the Company would close the JFK office. Gross was not
sure where the conversation took place, saying he had
various conversations with Suazo since his fiancee is
Suazo's cousin. Suazo as the head of the JFK office and of
New York operations would be in a position to know and
employees would expect him to know the Company's ideas
concerning a union organizational effort and any statement
he made that the JFK office would possibly close if it were
organized would be taken as a company position by any
employee hearing the statement. Whether it was said in a
private conversation at the office or elsewhere would make
no difference since Suazo was the company representative
with apparent knowledge. I therefore conclude and find
that Respondent through Suazo's statement violated
Section 8(a)(1) of the Act by threatening that the JFK
1250
BRUCE DUNCAN CO., INC.
office would be closed if the employees chose to be
represented by a union.
Respondent offered testimony through WTC Office
Manager Gabrielson that a number of flat tires were found
on company vehicles and on the car of a company
customer during the first 2 days of the strike. Summer
employee Geraldine Oliveto testified that two of the
strikers walked down the street and were next to a car
similar to that driven by one of the Respondent's
customers and on returning to the picket line one of them
had a valve stem from a tire. Marianne Fullerton, an
employee of Duncan Air Courier Company, a separate
corporation which had a desk in the JFK office, testified to
having some tires flat on the company station wagon she
drove, but her testimony was inconclusive as to when the
trouble with the tires occurred and there was nothing to
link the tire problems directly with the strike or the pickets.
There was also testimony from Respondent that a van was
tipped over on its side, but there was no testimony directly
linking any of the pickets with this occurrence. On these
three items Respondent stated that no remedial bargaining
order should be entered, basing its claim on the Laura
Modes case. (Herbert Bernstein, et al., d/b/a Laura Modes
Company, 144 NLRB 1592 (1963).)
The circumstantial linking of one or two flat tires to one
of the pickets does not come anywhere near the violence
which occurred in Laura Modes. There, union agents took
over the office of the company, knocked people around,
and with the assistance of pickets severely beat company
personnel. The Board found that the reprehensible assaults
and beatings were of such a character that it would not be
effectuating the purposes and policies of the Act to grant a
bargaining order.
I do not find that the conduct complained of above is
such as would permit denial of a substantial remedial
order.
D. The Closing of the JFK Location
John Suazo testified that on Thursday, August 15, he was
notified that the JFK office would be closed, probably at
the end of August. On Saturday, August 17, he flew to Los
Angeles and met with Mr. Duncan to try to persuade
Duncan not to close the office. He was not told what would
happen. On Thursday, August 22, Suazo was told that the
office would be closed as of that time and he sent letters to
the employees dated August 23, advising them of the
immediate closing of the JFK office.
John Menudier testified that he was a vice president of
the Company and had been in charge of the San Francisco
office until he was moved to Los Angeles at the end of
1973. In the Los Angeles office his job involved corporate
planning, liaison with the Company's legal counsel,
supervising its European operations, and assisting in the
operations of various branches. He testified that manage-
ment meetings were held between Mr. Duncan, who at that
time had become the chairman of the Board, Mr. Gregg,
the president of the Company. and himself and whoever
else was needed for any particular reason. Menudier said
2 The break-even figure is found by multiplying the total salaries paid
during the 4-week period by a factor (2.21 for 1974)., which factor, according
to Respondent, was supposed to take care of all the costs and provide a
he reviewed the operations of all the offices and in a
meeting in February with Duncan and Gregg he told them
that something would have to be done with the JFK office
because they were going into the fourth year of operations
and the results were terrible and stood out like a sore on a
face. Duncan said he wanted to give Suazo a chance to
remedy the situation.
Menudier stated he kept reviewing the "fact sheets" that
were prepared for each location. These sheets showed on a
4 weeks' basis the total of the salaries of the employees at
each location, the break-even figure,2 the excess amount
over the break-even figure (overage) or the amount less
than the break-even figure (underage) for each 4-week
period, and the total cumulative overage or underage.
Menudier testified that he relied solely on the "fact
sheets" in making his comparisons and deciding what to
recommend. In regard to the JFK office he testified that he
relied solely on Respondent's Exhibits I(a), l(b), 3(a), and
3(b), which are "fact sheets" for imports for 1973, for
exports for 1973, and a combined fact sheet for imports
and exports for 1974. He testified that in April he became
alarmed when the fact sheet showed the JFK office had a
cumulative loss of some $8,800 which he projected to mean
a loss of approximately $25,000 for the year. He stated that
in May the figure was up again and by the end of June it
had jumped to $19,000. Menudier said he was also
concerned with a bad debt of some $49,000 which would
have to be written off at some future time if it were not
collected. He did not state that this debt came solely from
the JFK office. The JFK office picture, he said, was
mentioned to Duncan in May and during that month a
company meeting was held in Los Angeles and in a private
meeting Suazo was chewed out for the showing made by
the JFK office and he was told to trim expenses and keep
the salaries down. Suazo agreed that this meeting took
place and he was so instructed. He said that on his return
he mentioned the meeting and the instructions to Kurz and
they were disappointed because they wanted to expand the
JFK office operations. Menudier testified that the Los
Angeles main office held the power to disapprove any
expenses to be incurred, including not approving hiring
employees.
Events in New York during the early summer seem to be
contradictory to these claimed warnings. There was some
turnover of employees at the JFK office and Suazo hired
two temporary summer employees. According to Suazo, his
complement of employees went up only by one and that
one was Linda Messina whom he hired at $200 a week. The
Los Angeles main office neither said nor did anything
about this new expense, which it knew about since copies
of all personnel actions were sent there.
Suazo sought and received approval to buy a new truck
for the use of the JFK office. In discussing this purchase
Menudier stated it was approved on the basis that the old
truck was breaking down, that the new truck would be used
to replace it and would also replace a station wagon being
used by the Duncan Air Courier service. He said that
Duncan Air Courier could use the truck at night and the
break-even figure on which the profit or loss was based for the Company's
profit-sharing plan.
1251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JFK office would use it during the day, that an overall
saving would be achieved by disposing of two vehicles and
using only one. This "plan" was never effected and there
was no testimony from anyone connected with the JFK
office of there being such a plan. Although Suazo testified
that Duncan Air Courier was using the new truck
excessively and hampering his activities, the Duncan Air
Courier manager, Miss Fullerton, testified that the Duncan
Air Courier service continued to use the station wagon and
only used the truck on a sporadic basis for a few hours at
night if the station wagon was being serviced or repaired.
This testimony contradicts Menudier's cost-saving testimo-
ny of doing away with two vehicles and using one.
Certainly if that had been intended something would have
been done to see it was effected. There was no explanation
offered by Respondent on this point.
The purchase of a new truck and the adding of an
employee at $200 a week with not one disproving word are
acts which are contradictory to Respondent's claimed
"chewing out" and instructions to trim expenses and hold
salary costs down. In a case such as this, actions speak
louder than words and I do not credit Respondent's claims
about its great concern for the JFK office.
Menudier testified that following the fact sheet figures
for June a decision was made by Duncan, Gregg, and
himself to close the JFK office but this decision was not
communicated to Suazo. Embellishing the story somewhat,
Menudier said that, after the May meeting with Duncan,
Suazo asked him what the story was and he told Suazo that
the operation was going bad and he had recommended
terminating the JFK operation. Suazo was not sure just
what did happen at the meetings.
In trying to show that the Company apparently was
retrenching, Menudier testified that in 1974 the San
Francisco Airport operation was reduced from four
persons to one, the Houston Airport operation was cut off,
and the San Ysdro office was closed. The Houston Airport
office personnel were all transferred to another office in
Houston and the operation was thereafter run from one
office rather than two. Nothing was ever put in writing
concerning the claimed June decision to close the JFK
office. According to Menudier only two locations, the Los
Angeles office and the Chicago office, showed an overage
on the "fact sheets," with the remaining seven locations all
showing an underage.
Considering first the claimed "losses" at the JFK office, I
cannot agree that what is shown as a "loss" on the fact
sheet is in fact a loss as far as the Company is concerned.
These figures are the product of the collected fees shown by
the Company as received at that location, minus the total
salaries paid out during that same period (which would
include overtime pay), multiplied by the factor of 2.21
which supposedly takes care of the remaining expenses at
each office. Subtracting the "break-even" figure from the
collected fees gives the amount of "profit" which is subject
to the Company's profit-sharing plan. This plan gives 50
percent to the Company and 50 percent to the local
manager to be kept by him or divided up with his
employees. Since the total salary figure including overtime
payments is multiplied by the factor 2.21, we see that
salaries and overtime are not a direct reduction from fees,
but rather are penalized by being multiplied. This produces
direct pressure on the office manager to hold salaries down
and eliminate overtime since each dollar spent that way
adds $2.21 to his break-even figure to reduce the possibility
of profit sharing. It appears clear therefore that this "break-
even" figure is not a figure which shows profit or loss for
the Company but is a figure which establishes the profit-
sharing base and is an indicia of salaries and fees. It clearly
is an excellent device to force a local manager to keep
salaries and overtime pay down. Certainly this device also
provides a cushion for Respondent's ultimate profits or loss
since it is inconceivable that Respondent could remain in
business if it actually sustained monetary losses at seven of
its nine locations.
In evaluating the gravity of the situation at the JFK
office it would be helpful to see just how the operations at
the JFK office were going in 1974 as contrasted to the 1973
operations. Using Respondent's Exhibits I-A (combined
exports and imports January through August 1974), I-B
(imports February through December 1973), and 3-B
(exports February through December 1973), we can
compare the records through June, when Menudier said
the decision to close the JFK office was made and through
August when the closing occurred. Since Respondent's
Exhibit 1-B starts with February 1973 we will use February
through June 1973 and 1974. Imports for February through
June 1973 show an underage in 4 months and an overage in
I month for a cumulative underage of $16,587.48. Exports
for the same period show an underage for 4 months and an
overage for I month for a cumulative underage of
$7,927.42; adding these two figures produces a net
cumulative underage of $24,514.90 for that period. (Menu-
dier had stated he was shocked in May at a projected loss
for all 1974 of $25,000.) Respondent's Exhibit I-A which
shows imports and exports combined for 1974, for the
period of February through June shows a net cumulative
underage of $14,496.76 or a figure indicating a $10,000
better performance in 1974. Even if the underage of
January 1974 is added, making it an unfair comparison, the
performance is still some $5,500 better.
The figures for February through August show virtually
the same picture. The combined underage for that period
in 1973 is $27,205.52, while the total underage for 1974
(February through August) is $18,143.11 for a more than
$9,000 better record.
Respondent said nothing about the WTC office in New
York as having a good or bad record and did not indicate it
ever contemplated closing that office. General Counsel's
Exhibits 13-A and 13-B show that from February through
December 1973 the WTC office had a cumulative underage
of $37,936.95, which, when added to the January through
August 1974 underage of $14,522.07, amounts to a less
than 2-year cumulative underage of $52,459.02. For the
same periods the JFK office had an underage of $32,271.18
in 1973 and in 1974 of $22,718.63 for a total of $54,989.81.
For these periods the JFK office of some 10 employees had
a worse figure of some $2,500 than did the WTC office of
some 5 or 6 employees.
Respondent testified that, because of economic losses, it
closed its location at the Houston, Texas, airport. However,
this was merely the closing of a location since it transferred
1252
BRUCE DUNCAN CO., INC.
the employees to another office and consolidated its
operations. From February through December 1973 the
Houston Airport office had an underage of $21,278.32
which, when added to its 1974 underage of $22,899.50 (a
little more than the JFK office 1974 cumulative underage),
gives a cumulative total of $44,177.82. From January
through June 1974 the Houston airport office had a
cumulative underage of $19,929.37 which is almost $1,000
more than the underage for the JFK office. However, the
reaction was transfer and consolidation rather than
liquidation of the terminal as at the JFK office.
Respondent acknowledged that it was "losing money" at
its Miami, Florida, location but said it was getting to the
place where the "losses" there were acceptable since it
expected an increase in business (importing flowers) to
reverse the trend. For February through December 1973
the cumulative underage there was $36,915.44 and from
January through August 1974 was $44,235.67. This latter
figure is nearly double the JFK office figure and the total
for the less than 2-year period was $81,151.11 or some
$27,000 worse than the JFK office figure. For January
through June 1974 the cumulative underage was
$34,943.25.
Contrasting the JFK office performance against its prior
performance or against Miami or Houston or even the
WTC office (which Respondent never mentioned as a
trouble spot) demonstrates clearly that the JFK office did
not stand out as the "sore" Menudier claimed it to be. In
June 1974 the export "season" was over, the spring and
Easter import "seasons" had concluded, and the JFK
office would be entering a low season until the fall and
Christmas imports would begin and the export "season"
would start again in December, which should be a more
profitable time. The JFK office had bettered its track
record by 40 percent in 1974 as compared to 1973.
Considering that Respondent's deeds in approving new
hires and the purchase of a new truck did not match its
words of holding down expenses and salaries and sharing
of the truck, the contradictions and self-contradictions of
Suazo's testimony, the unexplained absence of Duncan
who was said to have made the June and August decisions,
the secondhand testimony of Menudier and the contradic-
tions thereto, and the fact that the JFK office clearly was
not the outstanding "sore" Respondent sought to paint it, I
have concluded that Respondent did not decide to close
that operation in June as Menudier testified and did not
make such a determination until after it was faced with the
Union's demand for recognition and bargaining in August
1974. I am convinced and find that Respondent's economic
defense is an ex post facto attempt to justify its action. This
economic defense was Respondent's only defense to its
action in closing the JFK office and terminating the
employees located there. That leaves the Union's demand
for recognition and bargaining for an appropriate unit of
employees as the remaining motivating factor, and,
remembering Suazo's prior threat and Wagschel's picket
line action, I conclude and find that Respondent violated
Section 8(a)(3) and (I) of the Act by its closing of the JFK
office.
As found above, the Union represented a majority of
Respondent's employees in an appropriate unit and the
recognitional strike which ensued following Respondent's
refusal of recognition was prolonged by Wagschel's unfair
labor practices at the picket line.
Further noting that there would be a foreseeable
"chilling effect" on Respondent's other employees at the
WTC office through the transfer there of Ernestina
Domingos and that transfer's proximity and relationship
through Suazo to and through the office managers
temporarily at the JFK office to other Respondent
employees, it becomes necessary to enter a bargaining
order and to order the reinstitution of the JFK office and
the reinstatement of the employees terminated from there.
Those are the only remedies which I find can effectuate the
Act in these circumstances.
II1. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
IV. THE REMEDY
Having found that Respondent violated Section 8(a)(3)
and (I) of the Act by its termination of the employees at its
JFK location because of their union sympathies and
activities and their designation of the Union to act as their
collective-bargaining agent, I recommend that it cease and
desist from such practices and take affirmative actions
designed to effectuate the policies of the Act.
I concur in the General Counsel's recommendation that
under the principles of the Darlington case the Respondent
should be ordered to reinstate its JFK operation. Although
the Respondent ceased its air operations at JFK it is still in
the same business at its other locations and through its
WTC office in New York accommodates customers
through other brokers at the JFK airport for air freight
imports and exports. Respondent, at the time of the
hearing, still had the JFK location unoccupied and has a
long-term lease on the property.
Since I have found that no decision to terminate the JFK
office and operations was made until after the Union's
request for recognition and bargaining and that the
financial picture of the JFK office was not the preeminent-
ly distressful object Respondent sought to make it appear,
the economic motive for closing the JFK office was not the
true motivating factor and the organization of the employ-
ees remains as the item which prompted the closing.
Suazo's threat and Wagschel's statements and actions
corroborate this conclusion.
Since Respondent's action could reasonably be inferred
as foreseeable in having a "chilling effect" on other
employees (e.g., Mrs. Domingos who was transferred to the
World Trade Center office and the employees in that office
and probably the persons who assisted at the JFK location
during the strike) the actions of Respondent were therefore
intended to interfere with, restrain, or coerce its employees
1253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the exercise of their Section 7 rights and a proper remedy
must be established.
Respondent shall therefore resume its air freight opera-
tions at the JFK airport and offer its employees who were
terminated immediate and full reinstatement to their
former positions without prejudice to any seniority or
rights and privileges they may enjoy. Respondent shall
make them whole for any loss of pay they may have
suffered by reason of the discrimination against them, by
payment to them of a sum equal to that which each would
have received as wages from the date of discharge until
they are fully reinstated, less any net interim earnings.
Backpay is to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest at the rate of
6 percent per annum to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). I further recommend that Respondent, upon
request, make available to the Board payroll records and
other records to facilitate checking the amounts of backpay
and any other rights due them.
Respondent further violated Section 8(a)(1) of the Act by
the statements and actions of its agents and supervisors
John Suazo and Rolf Wagschel as set forth above and I
recommend that Respondent be ordered to cease and
desist from violating the Act in the same or in any other
manner.
On the basis of the foregoing findings and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Bruce Duncan Co., Inc., 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 discriminatorily terminating its JFK office
employees on August 23, 1974, and not thereafter reinstat-
ing them to their positions because of their union
sympathies, activities, and support, Respondent engaged in
and is engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(3) and (1) and
2(6) and (7) of the Act.
4. By threatening employees with office closure and
with physical or other harm to themselves or their relations
if the employees chose or assisted the union, Respondent
violated Section 8(aX I) of the Act.
[Recommended Order omitted from publication.]
1254