Cassis Management

National Labor Relations Board - Board Decisions

Aug 29, 1997

324 N.L.R.B. 324 (N.L.R.B. 1997)

324
324 NLRB No. 55
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 323 NLRB 456 (Chairman Gould and Member Fox; Member
Higgins dissenting).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 On May 12, 1997, the Respondent filed a motion for reconsider-
ation and to reopen the record, and the General Counsel subse-
quently filed a reply. In its motion for reconsideration, the Respond-
ent contends, among other things, that in reaching its conclusion that
Hoy was not a statutory supervisor, the Board erroneously found on
p. 2 of its decision that ‘‘Hoy and the other unit employees met with
[Property Manager] Shea daily in the office at 8 a.m. and discussed
the work that needed to be done.’’ The Respondent asserts that the
Board’s finding is inconsistent with Shea’s testimony that she did
not report to work until 9 a.m.
Even assuming arguendo that Shea was not present for the 8 a.m.
meetings, the Board would still reach the same result. The question
whether Shea was present at the morning meetings is immaterial be-
cause the Board found that Hoy’s role at those meetings was not in-
dicative of supervisory status. Thus, the Board found that at the
daily meetings Hoy merely informed ‘‘his coworkers if something
had occurred during the night that they were required to deal with
before they returned to their normal routine,’’ that ‘‘no independent
judgment was required to determine what problems constituted emer-
gencies,’’ and that ‘‘Hoy’s announcements of emergency repairs can-
not be considered evidence of supervisory authority.’’ Cassis, supra.
In all other respects, the Respondent’s motion for reconsideration
is denied as raising nothing not previously considered and as lacking
in merit.
In its motion to reopen the record, the Respondent asserts that
Donald Hoy is deceased, and therefore a reinstatement order as to
Hoy is not appropriate. The General Counsel acknowledges that Hoy
is deceased, and therefore submits that there is no need to reopen
the record on this matter. Accordingly, we shall modify the Order
by deleting Hoy’s name from the list of employees to be reinstated
and by providing that his estate shall be made whole.
The Respondent also asserts that the record must be reopened to
demonstrate changed circumstances affecting the reinstatement of the
discriminatees. First, the Respondent contends that it should be per-
mitted to offer evidence that certain of the discriminatees are not en-
titled to reinstatement, because they were unable to perform their
work in a satisfactory manner. We find that this issue either was,
or should have been, litigated by the Respondent during the underly-
ing unfair labor practice hearing. In addition, we find that the Re-
spondent has failed to demonstrate that the evidence it seeks to ad-
duce on this matter is either newly discovered since the close of the
hearing or was previously unavailable. See sec. 102.48(a)(1) of the
Board’s Rules. Second, the Respondent submits that it should be
given the opportunity to introduce evidence that since the April 1996
discharges of the discriminatees, it changed the nature of its business
operation by contracting out to another company the maintenance
work that the discriminatees performed. The mere fact that the Re-
spondent may have subcontracted out this work does not relieve the
Respondent of its obligation to reinstate unlawfully discharged em-
ployees. See Stalwart Assn., 310 NLRB 1046, 1055 (1993); Central
Air Corp., 216 NLRB 204, 214 (1975). Rather, the Respondent must
prove that it would have subcontracted the work in question even
if the discriminatees had not been terminated, and during the compli-
ance stage of this proceeding the Respondent will have an oppor-
tunity to present evidence bearing on that issue. See Ellis & Watts
Products, 143 NLRB 1269, 1271 (1963), enfd. 344 F.2d 67 (6th Cir.
1965). Accordingly, we deny the Respondent’s motion to reopen the
record.
Cassis Management Corporation and Service Em-
ployees International Union, Local 32E, AFL–
CIO. Case 2–CA–29311
August 29, 1997
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On September 30, 1996, Administrative Law Judge
Raymond P. Green issued a decision in this case find-
ing that the Respondent discharged the entire bargain-
ing unit, including Charles W. Morrow, in violation of
Section 8(a)(3) and (1) of the Act, that Donald Hoy
was a supervisor within the meaning of Section 2(11)
of the Act, that the authorization cards Hoy solicited
were invalid, and that there was no basis for a bargain-
ing order under the principles enunciated in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969). On April 14,
1997, the National Labor Relations Board issued a de-
cision adopting the judge’s findings concerning the un-
lawful discharge of the bargaining unit employees, but
the Board reversed the judge’s findings concerning
Hoy’s supervisory status, the validity of the authoriza-
tion cards, and the appropriateness of a bargaining
order.1 Thus, the Board found that Hoy was not a stat-
utory supervisor, that he should be offered reinstate-
ment and backpay along with the rest of the bargaining
unit, that the authorization cards he solicited were
valid, and that the cards demonstrated that a majority
of the employees in the unit wished to be represented
by the Union. The Board further found that, because
of the Respondent’s egregious unfair labor practices, a
bargaining order was presumptively appropriate.
The Board, however, did not order the Respondent
to bargain with the Union because of the need to re-
solve a conflict in the hearing testimony as to facts
concerning the Respondent’s allegation that union offi-
cials had engaged in picket line misconduct. The Re-
spondent claims that the alleged misconduct precludes
the issuance of a bargaining order under the doctrine
set forth by the Board in Laura Modes Co., 144 NLRB
1592 (1963). The Board remanded the matter to the
judge for the purpose of making credibility resolutions
concerning the conflicting testimony, and findings of
fact and conclusions of law concerning the Respond-
ent’s defense based on Laura Modes Co.
On May 7, 1997, the judge issued his supplemental
decision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an answer-
ing brief.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,2
and conclusions set forth in the supplemental decision,
and to issue the Order set forth below,3 which super-
sedes the order previously entered in this proceeding.4
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325CASSIS MANAGEMENT CORP.
4 Member Higgins joins the majority in affirming the judge’s find-
ing that there is no credible evidence of any picket line misconduct,
and in denying the Respondent’s motion for reconsideration and to
reopen the record. However, he continues to adhere to his earlier dis-
senting view of this case. Thus Member Higgins finds that Donald
Hoy was a supervisor and that union authorization cards cannot be
used to support a bargaining order. See Cassis Management Corp.,
supra, Member Higgins dissenting.
5 The Respondent excepts to the judge’s failure to find that Union
Official Formisano threatened to suspend employee Reyes’ pension
checks and that thereafter Reyes’ pension payments were, in fact,
suspended. We find no merit in this exception. Any such alleged
threats are beyond the scope of the Board’s remand, which was for
the express purpose of consideration of alleged death threats directed
at Reyes or other employees. In any event, the record indicates that
any cessation of Reyes’ pension payments that may have occurred
were in accord with the terms of the Union’s pension plan.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
In Laura Modes, the Board held that where a union
evidences total disinterest in enforcing its rights
through the peaceful legal process provided by the Act
and instead resorts to violence, the Board will refuse
to issue a bargaining order, even though the employer
has violated the Act. Here, the judge found, based on
his credibility findings, that no agent of the Union or
prounion employee engaged in any picket line mis-
conduct. Specifically, the judge discredited the testi-
mony of the Respondent’s witnesses and found that no
threats were made by union officials or agents to kill
or physically harm employees Reyes and Jusino, who
had crossed the Union’s picket line in order to perform
work for the Respondent. As stated in footnote 2,
supra, there is no basis for reversing the judge’s credi-
bility resolutions. Therefore, we find that there is noth-
ing to preclude a bargaining order under the doctrine
set forth in Laura Modes, supra.5
Accordingly, based on the judge’s credibility find-
ings in his supplemental decision and our own findings
in our prior decision summarized above, we conclude
that Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to recognize and bargain with the
Union on April 4, 1996, and we shall order the Re-
spondent to bargain with the Union as the exclusive
representative of the employees in the bargaining unit.
ORDER
The National Labor Relations Board orders that the
Respondent, Cassis Management Corporation, Dobbs
Ferry, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting Service Employees Inter-
national Union, Local 32E, AFL–CIO or any other
union.
(b) Refusing to recognize and bargain with the
Union as the exclusive collective-bargaining represent-
ative of its employees in the following appropriate
unit:
All full-time and regular part-time cleaning, paint-
ing, and maintenance workers employed by the
Employer at its facility located at 200 Beacon Hill
Road, Dobbs Ferry, New York, excluding all
managers and supervisors as defined in the Act.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Charles Allien, Louis Cioffi, Nicholas Michel, Joe
Elias Moody Jr., and Charles W. Morrow, full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Charles Allien, Louis Cioffi, Nicholas
Michel, Joe Elias Moody Jr., Charles W. Morrow, and
the estate of Donald Hoy, whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges of Charles Allien, Louis Cioffi, Nicholas
Michel, Joe Elias Moody Jr., and Charles W. Morrow,
and within 3 days thereafter notify them in writing that
this has been done and that the discharges will not be
used against them in any way.
(d) On request, recognize and bargain with the
Union as the exclusive collective-bargaining represent-
ative of its employees in the appropriate unit concern-
ing wages, hours, and other terms and conditions of
employment and, if an understanding is reached, em-
body the understanding in a signed agreement.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post
at its Dobbs Ferry, New York facility copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the no-
tice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
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326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since April 11, 1996.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps the Respondent has taken to com-
ply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting Service Employ-
ees International Union, Local 32E, AFL–CIO or any
other union.
WE WILL NOT refuse to recognize and bargain with
Service Employees International Union, Local 32E,
AFL–CIO as the exclusive collective-bargaining rep-
resentative of employees in the following appropriate
unit:
All full-time and regular part-time cleaning paint-
ing, and maintenance workers employed at our fa-
cility at 200 Beacon Hill Road, Dobbs Ferry, New
York, excluding all managers and supervisors as
defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Charles Allien, Louis Cioffi,
Nicholas Michel, Joe Elias Moody Jr., and Charles W.
Morrow, full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Charles Allien, Louis Cioffi, Nich-
olas Michel, Joe Elias Moody Jr., Charles W. Morrow,
and the estate of Donald Hoy, whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, with interest.
WE WILL, on request, recognize and bargain with
Service Employees International Union, Local 32E,
AFL–CIO as the exclusive collective-bargaining rep-
resentative of our employees in the appropriate unit
concerning wages, hours, and other terms and condi-
tions of employment and, if an understanding is
reached, WE WILL embody the understanding in a
signed agreement.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharges of Charles Allien, Louis
Cioffi, Nicholas Michel, Joe Elias Moody Jr., and
Charles W. Morrow and WE WILL, within 3 days there-
after, notify them in writing that this has been done
and that the discharges will not be used against them
in any way.
CASSIS MANAGEMENT CORPORATION
Ian Penny, Esq. and Lauri Kaplan, Esq., for the General
Counsel.
Robert Ziskin, Esq. and Stacey Ziskin, Esq., for the Respond-
ent.
Mathew N. Persanis, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
RAYMOND P. GREEN, Administrative Law Judge. On April
14, 1997, the National Labor Relations Board (the Board)
issued its decision in this case wherein it found that the Em-
ployer had violated the Act in certain respects. As part of
that decision, the Board remanded a portion of the case to
me for further determination. In this regard, the Board noted
that two employees, Carlos Reyes and Israel Jusino, were
told by a union official at the picket line that he wanted to
kill them. This was denied by the Union’s witnesses and the
Board remanded this question for a credibility finding.
I have reviewed again the relevant portions of the tran-
script and have considered the briefs previously filed by the
parties. I have also considered the demeanor of the witnesses
in making the following conclusions. (In conjunction with
the transcript and my own notes taken at the hearing, I recall
these witnesses, notwithstanding that their testimony was
taken on July 31 and August 1, 1996.) As the previously
filed briefs dealt with this contention, there is no need for
further briefing on this issue. Therefore, based on the record
as a whole, the briefs filed by the parties and my observation
of the demeanor of the witnesses, I make the following find-
ings.
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327CASSIS MANAGEMENT CORP.
Both of the witnesses presented by the Respondent were
hired as replacements for the illegally discharged employees.
One of them, Carlos Reyes, had previously worked for the
employer and indicated that he had received lots of favors
from George Cassis in the past. The testimony of George
Cassis also indicated that there was some animosity between
Hoy and Reyes.
Reyes testified that he was threatened every day with
statements by the pickets and by union officials to the effect
that they wanted to kill him. He pointed specifically to An-
thony Formisano, a business representative, as being one of
the people who made this threat. Reyes also testified that
Formisano made a threat to kill him, when handing him a
piece of paper which was a charge by the Union. (R. Exh.
13.) In the latter regard, Reyes testified that a policeman was
present when he got this paper.
Jusino testified that that one or more of the people on the
picket line said, ‘‘he was going to kill one of—he want to
poke us.’’ He went on to testify that the pickets called Reyes
and old man and said that he was going to lose his check.
According to Jusino, statements were made to himself and
Reyes almost every day for about 2 weeks after the picketing
started. When asked if he recognized Formisano in the court-
room, Jusino said that he did. However, when asked if
Formisano made the threats, Jusino said that he did not.
When asked who made the threats to kill or the comment
about poking, Jusino said that it ‘‘was a colored guy who
was saying every day that he wanted to kill one of you. He
wanted to poke us.’’
Formisano and Union Business Agent Angel Figueroa tes-
tified that they supervised the picketing and were there al-
most every day. Both credibly denied making any threats to
kill either Reyes or Jusino. Both credibly testified that no
such threats were made in their presence by any of the other
people on the picket line. With respect to the charge noted
above, Formisano testified that when he tried to hand it to
Reyes, the latter became very agitated and a policeman came
over to explain to Reyes that all he (Formisano) wanted was
to hand him the piece of paper.
The General Counsel called police officers Curt Giacobbe
and Gregory Vince to testify in this matter. Both testified
that as far as they observed, the picketing was peaceful and
without any incidents of threats or violence.
Officer Giacobbe testified to the incident when Formisano
gave the paper to Reyes and his testimony was that
Formisano made no threats during that incident.
Officer Vince testified that he was dispatched to the picket
line on three occasions, once when it was reported that the
pickets were on the property and the other two times when
it was reported that there was some blockage of entrances.
In describing what he saw when he arrived, Officer Vince
testified that he saw ‘‘a peaceful demonstration of numerous
picketers standing on the street area.’’ There was no indica-
tion in his testimony, or in any other testimony, that Reyes
and Jusino had ever complained to the police about alleged
threats of physical harm or alleged threats to kill them.
In conclusion, I do not credit the testimony of Reyes and
Jusino about the alleged threats.
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