Desco Vitro-Glaze of Schenectady

National Labor Relations Board - Board Decisions

Jun 23, 1977

230 N.L.R.B. 379 (N.L.R.B. 1977)

DESCO VITRO-GLAZE OF SCHENECTADY
Desco Vitro-Glaze of Schenectady, Inc.' and Local 59,
International Association of Marble, Slate and
Stone Polishers, Rubbers and Sawyers, Tile and
Marble Setters Helpers, Marble Mosaic and
Terrazzo Workers Helpers, AFL-CIO 2
Local 6, Bricklayers, Masons, Plasterers, Marble, Tile
and Terrazzo Workers International Union, AFL-
CIO3 and Local 59, International Association of
Marble, Slate and Stone Polishers, Rubbers and
Sawyers, Tile and Marble Setters Helpers, Marble
Mosaic and Terrazzo Workers Helpers, AFL-CIO
Local 16, Bricklayers, Masons, Plasterers, Marble,
Tile and Terrazzo Workers International Union,
AFL-CIO4 and Local 59, International Associa-
tion of Marble, Slate and Stone Polishers, Rubbers
and Sawyers, Tile and Marble Setters Helpers,
Marble Mosaic and Terrazzo Workers Helpers,
AFL-CIO. Cases 3-CA-5993, 3-CB-2498-1, and
3-CB-2498-2
June 23, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On December 22, 1976, Administrative Law Judge
Michael 0. Miller issued the attached Supplemental
Decision in this proceeding. Thereafter, Respondents
filed exceptions and supporting briefs, and the
General Counsel filed cross-exceptions.
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,5 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, 6 as
modified herein.
We agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent Desco
variously violated Section 8(a)(l), (2), and (3) of the
I Herein Respondent Desco.
2 Herein Local 59 or the Helpers Union.
3 Herein Respondent Local 6.
4 Herein Respondent Local 16.
5 Respondents have 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,
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.
I General Counsel contends that the Administrative Law Judge erred in
failing to order Respondents jointly and severally to make Local 59 whole
230 NLRB No. 42
Act, and that Respondent Locals 6 and 16 violated
Section 8(bX)(IXA) and (2) of the Act.
We also agree with the Administrative Law Judge's
finding that Local 59 at all times material was the
collective-bargaining representative of Respondent
Desco's employees classified as helpers and that
Respondent Desco violated Section 8(aX5) of the Act
by, inter alia, withdrawing recognition from Local 59.
In light of these findings, we find that Respondent
Desco further violated Section 8(a)(5) by unilaterally
discontinuing its monthly contribution on behalf of
its helpers7 to the pension and savings fund main-
tained by Local 59. Accordingly, we shall order that
Respondent Desco make whole the employees
represented by Local 59 by paying into the aforesaid
funds all contributions which it has, since January
1975, failed to deposit therein on their behalf.
We disagree, however, with the Administrative
Law Judge's finding that Respondent Desco violated
Section 8(a)(5) of the Act by refusing to execute a
contract with Local 59. The record demonstrates, as
the Administrative Law Judge found, that Desco has
for many years recognized Local 59 as the exclusive
bargaining representative of its employees classified
as helpers and has consistently applied to these
employees many of the terms of the agreements
negotiated by Local 59 and the Capitol District Tile,
Marble, Terrazzo and Slate Contractors' Association.
The record also demonstrates, however, that Respon-
dent Desco is not a member of this Association and
has never directly negotiated or signed a collective-
bargaining agreement with Local 59. Thus, Desco's
refusal in December 1974 and January 1975 to sign
the Association contracts, as requested by Local 59,
was not contrary to its practice. In these circum-
stances, we perceive no factual or legal basis for
concluding that Desco's refusal to sign the contract
violated Section 8(aX5) of the Act. Accordingly, we
do not adopt that portion of the Administrative Law
Judge's recommended Order which requires Respon-
dent Desco to sign the Local 59 agreement.
Finally, we adopt the Adminstrative Law Judge's
recommended Order requiring that Respondent
Desco cease and desist from recognizing and
bargaining with Respondent Locals 6 and 16.
Nothing in that order shall be construed, however, as
for any dues, fees, and assessments it lost by virtue of Desco's unlawful
assistance to, and recognition of, Locals 6 and 16. We find no merit in this
contention. The Administrative Law Judge properly ordered Respondents
jointly and severally to reimburse Desco's helpers for any dues, fees, and
assessments they may have paid to Respondent Locals 6 and 16 by virtue of
the latter's collective-bargaining agreement with Respondent Desco. In
these circumstances, a further requirement that Respondents also reimburse
Local 59 for the same moneys would not be warranted.
7 Although the complaint does not allege this unilateral action as a
separate violation of the Act, we find that it is sufficiently covered by the
complaint's other allegation of 8(aX5) misconduct. Furthermore, the facts
surrounding Desco's unilateral actions with respect to the pension and
savings funds were fully litigated at the hearing.
379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requiring Respondent Desco to withdraw, vary, or
abandon any benefits which it may have granted to
its helpers under its collective-bargaining agreement
with Locals 6 and 16.8
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 5:
5. By the foregoing conduct which tended to
undermine Local 59's status as collective-bargaining
representative of Respondent Desco's helpers, by its
withdrawal of recognition from Local 59 and its
refusal to meet or negotiate with Local 59, and by its
unilateral changes in the terms and conditions of
employment of its helpers, Respondent Desco has
violated Section 8(a)(5) and (1) of the Act.
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 as
modified below and hereby orders that the Respon-
dents, Desco Vitro-Glaze of Schenectady, Inc.,
Schenectady and Albany, New York, its officers,
agents, successors, and assigns, Local 6 and Local 16,
Bricklayers, Masons, Plasterers, Marble, Tile and
Terrazzo Workers International Union, AFL-CIO,
their officers, agents, and representatives, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for section A, 1, of the
recommended Order:
"A. Respondent Desco, its officers, agents, suc-
cessors, and assigns, shall:
"1. Cease and desist from:
"(a) Interrogating its employees concerning their
union membership; soliciting its employees to
withdraw their membership in Local 59, Internation-
al Association of Marble, Slate and Stone Polishers,
Rubbers and Sawyers, Tile and Marble Setters
Helpers, Marble Mosaic and Terrazzo Workers
Helpers, AFL-CIO, or any other labor organization;
soliciting its employees to join Local 6 or 16,
Bricklayers, Masons, Plasterers, Marble, Tile and
Terrazzo Workers International Union, AFL-CIO,
or any other labor organization; threatening its
employees with discharge unless they joined Local 6
or Local 16, or any other labor organization, or
otherwise assisting Locals 6, 16, or any other labor
organization to secure memberships from its employ-
ees.
"(b) Withdrawing recognition from and refusing to
recognize and bargain with Local 59 as the exclusive
collective-bargaining representative of its employees
(hereinafter called helpers) in the following appropri-
ate unit:
"All marble, stone and slate polishers, rubbers
and sawyers, tile and marble setters helpers, and
terrazzo workers helpers employed by Respon-
dent Desco at its plant and jobsites within the
geographical jurisdiction of Local 59, excluding
all office clerical employees, all professional
employees, and all guards and supervisors as
defined in the Act, and all other employees.
"(c) Unilaterally, without prior notice to or
negotiation with Local 59, discontinuing its pay-
ments to the pension and savings funds on behalf of
its employees in the above-described bargaining unit.
"(d) Recognizing Local 6 or Local 16, as the
collective-bargaining representative of its helpers in
the bargaining unit described above and extending
its contracts with Locals 6 and 16, including the
union-security provisions thereof, to its helpers.
"(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act."
2. Substitute the following for paragraph A, 2(a):
"(a) Withdraw and withhold all recognition from
Respondent Locals 6 and 16 as the collective-
bargaining representatives of its helpers in the above-
described bargaining unit unless and until said labor
organizations have been duly certified by the
National Labor Relations Board as the exclusive
representative of such employees."
3. Insert the following as paragraph A, 2(c) and
reletter the subsequent paragraphs and renumber the
subsequent footnote, accordingly.
"(c) Make whole the employees in the above-
described bargaining unit who were adversely affect-
ed by Respondent's failure to pay for their pension
and savings funds, contributions, as provided in the
past, by granting them all interest, emoluments,
rights, and privileges in the pension and savings
funds which would have accrued to them but for
Respondent's unlawful conduct, found herein; and,
further, henceforth make such pension and savings
funds contributions until such time as Respondent
negotiates in good faith with the Union either to an
agreement or to an impasse. 16
" Is See Fullerton Transfer & Storage Limited, Inc., 224 NLRB 480
(1976). See also Impressions, Inc., 221 NLRB 389 (1975)."
8 See. e.g., Stayer's Johnsonville Meats, Inc., 174 NLRB 693 (1969).
380
DESCO VITRO-GLAZE OF SCHENECTADY
4. Substitute the attached Appendix A for that of
the Administrative Law Judge.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning their union membership.
WE WILL NOT discourage our helpers from
membership in Local 59, International Associa-
tion of Marble, Slate and Stone Polishers,
Rubbers and Sawyers, Tile and Marble Setters
Helpers, Marble Mosaic and Terrazzo Workers
Helpers, AFL-CIO, or any other labor organiza-
tion, and WE WILL NOT encourage our helpers to
join Local 6 or Local 16, Bricklayers, Masons,
Plasterers, Marble, Tile and Terrazzo Workers
International Union, AFL-CIO, or any other
labor organization, by soliciting them to join
another organization, or by threatening them with
discharge unless they join Local 6 or Local 16.
WE WILL NOT assist or contribute support to
Local 6 or Local 16 by assisting them to organize
our helpers or by recognizing either of them as the
collective-bargaining representative of our helpers
in the bargaining unit described below, unless and
until they have been certified as such representa-
tive by the National Labor Relations Board.
WE WILL NOT unilaterally, without notice to or
negotiation with Local 59, discontinue our contri-
butions to pension and savings funds on behalf of
our helpers in the bargaining unit described
below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the
National Labor Relations Act.
WE WILL withdraw recognition of Local 6 and
Local 16 as the collective-bargaining representa-
tives of our helpers in the bargaining unit
described below, and WE WILL NOT apply the
collective-bargaining agreements between our-
selves and Locals 6 and 16 to our helpers.
However, we are not required to withdraw, vary,
or abandon any term or condition of employment
which may have been established or confirmed
within said collective-bargaining agreements. The
workers covered thereby will not be prejudiced
with respect to their assertion of rights derived
from said collective-bargaining agreements.
WE WILL recognize and bargain with Local 59
as the exclusive collective-bargaining representa-
tive of our helpers in the bargaining unit
described below and, upon request, WE WILL
execute a signed agreement embodying any
contract negotiated between Local 59 and our-
selves.
WE WILL offer all unreinstated unfair labor
practice strikers immediate and full reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, discharging if necessary any replace-
ments, and WE WILL make them whole for any
earnings lost as a result of our refusal to reinstate
them, plus interest at 6 percent per annum.
WE WILL make whole our helpers in the
bargaining unit described below who were ad-
versely affected by our failure to pay for their
pension and savings funds contributions, as
provided in the past, by granting them all interest,
emoluments, rights, and privileges in their pen-
sion and savings funds which would have accrued
to them but for our unlawful conduct and,
further, WE WILL henceforth make such pension
and savings funds contributions payments until
such time as we negotiate in good faith with the
Union either to an agreement or to an impasse.
WE WILL, jointly and severally with Local 6
and Local 16, make our helpers whole for all
initiation fees, dues, and other moneys paid or
checked off pursuant to our contracts with those
Unions, with 6 percent per annum interest.
The appropriate bargaining unit in question is:
All marble, stone and slate polishers, rub-
bers and sawyers, tile and marble setters
helpers, and terrazzo workers helpers em-
ployed by Respondent Desco at its plant and
jobsites within the geographical jurisdiction
of Local 59, excluding all office clerical
employees, all professional employees, and
all guards and supervisors as defined in the
Act, and all other employees.
DESCO VITRO-GLAZE OF
SCHENECTADY, INC.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
matter was heard in Albany, New York, on June 2 and
August 3, 4, and 5, 1976, upon charges filed by Local 59 on
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 4, 1975,1 and amended on April 14, and a
consolidated complaint which issued on April 18 and was
amended on May 27, June 2, and at the hearing herein. The
complaint, the substantive allegations of which were
denied by each Respondent, alleged that Desco Vitro-
Glaze of Schnectady, Inc.,2 violated Section 8(a)(1), (2), (3),
and (5) by interrogating its employees, assisting and
recognizing Local 6, Bricklayers, Masons, Plasterers,
Marble, Tile and Terrazzo Workers International Union,
AFL-CI03 and Local 16, Bricklayers, Mason, Plasterers,
Marble, Tile and Terrazzo Workers International Union,
AFL-CIO,4 and applying Local 6 and 16's contracts
containing union-security clauses to its helper-employees,
refusing to recognize and bargain collectively with Local 59
International Association of Marble, Slate and Stone
Polishers, Rubbers, and Sawyers, Tile and Marble Setters
Helpers, Marble Mosaic and Terrazzo Workers Helpers,
AFL-CIO,5 and unilaterally changing terms and condi-
tions of employment of its helper-employees without
bargaining with Local 59. It further alleged that Locals 6
and 16 violated Section 8(b)(l)(A) and (2) by accepting the
fruits of that assistance and by causing or attempting to
cause Desco to unlawfully discriminate against its employ-
ees in violation of Section 8(a)(3).
The hearing was held by me herein pursuant to an Order
of the Board, dated March 1, 1976, directing a hearing de
novo. A prior hearing had been held, before a different
Administrative Law Judge, and a Decision therein had
issued on September 8, 1975. The Board found that in that
hearing both General Counsel and Respondents had been
denied due process of law because they had been denied
the opportunity to fully present and develop relevant
evidence. Accordingly, it remanded the matter for this de
novo hearing.
Upon the entire record in this case, 6 including the brief
filed by the General Counsel, and my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. RESPONDENT DESCO'S BUSINESS AND THE UNIONS'
LABOR ORGANIZATION STATUS
Respondent Desco, a New York corporation, is engaged
at Schenectady and Albany, New York, as a construction
contractor in the application of floorings, decks, and
coatings. During the year preceding the issuance of the
consolidated complaint said Respondent purchased goods
and materials valued in excess of $50,000, of which goods
and materials valued in excess of $50,000 were transported
directly to it in New York State directly from other States. I
find and conclude that Desco is an employer within the
meaning of Section 2(2), and is engaged in commerce
within the meaning of Section 2(6) and (7),of the Act.
Local 6, Local 16, and Local 59 are and at all times
material have been, labor organizations within the meaning
of Section 2(5) of the Act.
I All dates hereinafter are 1975 unless otherwise specified.
2 Herein Respondent Desco.
3 Herein Respondent Local 6.
4 Herein Respondent Local 16. Collectively, Local 6 and Local 16 will be
referred to herein as Respondent Unions or the Mechanics Unions.
n. THE UNFAIR LABOR PRACTICES
A. Collective-Bargaining History
The controlling issue to be determined herein is whether,
prior to January 1975, Desco had recognized and main-
tained collective-bargaining relations with Local 59 on
behalf of an appropriate collective-bargaining unit of its
employees, the helpers.
Desco had come into being around 1953, having been
founded by Joseph T. LePore, Jr. It was engaged in the
installation of terrazzo flooring. Initially, this involved
heavy cement materials. Gradually since 1953, the materi-
als have changed and been improved through the introduc-
tion of thinner, lighter compositions utilizing latex, epoxies,
and acrylics. Traditionally in the area, and specifically at
Desco during the period of LePore's ownership of the
business, 1953-73, two classifications of employees worked
at the installation of this flooring. Employees known as
helpers did the unloading, mixing, and distribution of the
flooring materials and prepared the floor for the installa-
tion. Other employees, "mechanics," worked with trowels,
applying the composition to the floor. The helpers would
then clean, sand, grind, and grout the floor.
During the period of LePore's management, Desco
maintained collective-bargaining relationships with Re-
spondent Locals 6 and 16 on behalf of the mechanics.
These relationships were maintained through Desco's
membership in the Eastern New York Construction
Employer's, Inc., an association to whom it assigned its
collective-bargaining rights. Desco continued to maintain
contractual relations with Locals 6 and 16, covering the
mechanics, subsequent to Joseph Cordi's acquisition of the
business from LePore, in early 1973.
According to the testimony of LePore, which I credit, at
all times during his tenure Local 59 was recognized as the
collective-bargaining representative of the helpers. Desco,
however, executed no contracts with Local 59; neither did
it belong to any associations through which it contracted
wtih Local 59. Rather, it acceded to the terms of the
agreements negotiated between Local 59 and the Capital
District Tile, Marble, Terrazzo and Slate Contractors'
Association. When requested, as in 1967, Desco executed
letters of intent to be bound by the terms of the agreement
to be negotiated by those parties and to pay the wages and
benefits of that agreement, retroactively. It was the wages
and benefits prescribed in the agreements between Local
59 and this Association which Desco paid to its helpers
throughout this period. During this same period, Desco's
helpers were either members of Local 59, were referred to it
by Local 59, or if hired off the street when the Local had no
helpers available, were referred to that Union if their
performance was satisfactory to the employer and they
were interested in taking up the trade.
Joseph Cordi was employed by Desco in February 1972,
in order to learn the business and to introduce a painting
operation into it, with the intention of acquiring that
business from LePore. The acquisition was completed
5 Herein Local 59 or the Helpers' Union.
s General Counsel's unopposed motion to correct transcript is granted.
382
DESCO VITRO-GLAZE OF SCHENECTADY
about January 1973. LePore testified that by virtue of
Cordi's position and activities during that period, Cordi
had to be aware of Local 59's status. When asked whether
he was aware of Local 59's representative status, Cordi,
however, testified before me that he "was not that familiar
with Local 59 and their activities." In his testimony in the
prior hearing (of which I have taken administrative notice
without limitation as to its evidentiary effect), Cordi
admitted that he "was aware" at that time "that Local 59
was the Collective-Bargaining Representative for the Tile,
Marble and Terrazzo Workers Helpers." Based upon
LePore's testimony, Cordi's admissions in the earlier
hearing and the weighty probability that a businessman
acquiring a labor-intensive business in a heavily unionized
area would ascertain the collective-bargaining obligations
of the business before committing his effort and capital, I
conclude that Cordi did, in fact, acquire Desco with
awareness of Local 59's status as the helpers' collective-
bargaining agent.
Similarly, the record reflects that for the period from
February 1973 until December 1974, Desco continued to
pay its helpers the wage rates specified in the contract
between Local 59 and the Capitol District Tile, Marble,
Terrazzo and Slate Contractors' Association. In the initial
hearing, Cordi admitted to having a copy of that contract
and utilizing that wage schedule. In the instant hearing,
however, Cordi asserted that he was only paying prevailing
wage rates. In addition to its compliance with the
contractual wage rates, Desco made monthly payments to
several union-maintained funds on behalf of its employees.
Thus, each month after December 1972, Cordi signed a
"Monthly Report of Savings Deposits for Tile, Marble and
Terrazzo Workers Helpers of the Metropolitan Capital
District," listing certain employees and the amounts
deposited in each employee's name. Similarly, Cordi
executed monthly reports, listing those same employees,
and detailing contributions on their behalf to the Capital
Area Mason's Pension Fund. That form provided for
separate itemization of deposits to three additional funds
but set forth that only pension funds were required on
behalf of "No. 59-Tile Helpers." According to these report
forms, Cordi did not make contributions on behalf of these
employees to the other funds, as would have been required
for members of Locals 6 or 16. The deposits reflected in
these 2 monthly reports were consistent with the employer
obligations set forth in article 11 of the agreement between
Local 59 and the association with which it negotiated.
These same monthly reports indicate that between
December 1972 and December 1974, Desco employed
between four and nine employees on whose behalf these
payments were made. Throughout 1974, there were five or
six such employees, comprised at various times of Christos
Glantizis, Raymond Ingoldsby, Allie Mohamad, Dominick
Marotta, Giovanni Segatto, Domenico Coppola, and
Constantinos Psarras. Glantzis was a member of Local 59
until October 1974, when he was upgraded to mechanic
and left the local. Ingoldsby's name does not appear on the
I The record reflects that the Helpers' Union was utilized as a training
ground or apprenticeship program for mechanics. It was an accepted
practice for experienced helpers to move on to the mechanics' classification
and become members of the mechanics' local, with the approval of both the
forms after July 1974 and Psarras was hired in October
1974. As of December 1974, according to the reports, there
were five employed as helpers: Marotta, Mohamad,
Segatto, Coppola, and Psarras. All were members of Local
59; Cordi admitted knowing of the membership status of
the first four so listed. Psarras testified, additionally, that
when he was hired he was told by Kenneth King, Desco's
superintendent (an admitted supervisor), that he would
have to join Local 59. In the following month, three
additional employees, contended by General Counsel to be
helpers, were hired: J. C. Hamilton, Dimitrios Evangelides,
and John Sitiriou. The record reflects that Hamilton and
Sitiriou made efforts to join Local 59.
Respondent Desco contended, in substance, that because
of changes in the industry, there ceased to be work for a
separate unit of helpers, that all of its employees worked as
a team interchangeably performing the same functions.
The record evidence fails to bear out this contention. Thus,
the changes which occurred in the industry had been
taking place throughout Desco's existence and involved the
materials being installed rather than the division of work.
The employees themselves credibly testified that they spent
the majority of their time performing the work traditionally
assigned to the helpers. On occasion, for small portions of
their time, the more experienced helpers did some work
with the trowel. 7
Based upon all of the foregoing, I conclude that at all
times material herein, from Desco's 1953 inception to
February 1975, there was a unit of helpers employed by
Desco, described in the complaint and Association con-
tract as follows:
All marble, stone and slate polishers, rubbers and
sawyers, tile and marble setters helpers, and terrazzo
workers helpers employed by Respondent Desco at its
plant and jobsites within the geographical jurisdiction
of Local 59, excluding all office clerical employees, all
professional employees, and all guards and supervisors
as defined in the Act, and all other employees.
This unit consists of a clearly identifiable and functionally
distinct group of employees, with common separate
interests, and is a traditional separate craft unit within the
construction industry. The employees within this unit
receive different wages and fringe benefits than are
received by those considered mechanics. The Board deems
such a separate unit appropriate for the purposes of
collective bargaining. See R B. Butler, Inc., 160 NLRB
1595 (1966), and cases cited therein. Within this unit, I
further conclude, Local 59 has consistently maintained
majority status and, at least until December 1974, Desco
recognized Local 59 as its collective-bargaining representa-
tive.
B. The Refusal To Bargain
On December 12, 1974, David Lavenberg, Local 59's
business agent, sent Cordi copies of the Association
employer and the Helpers' Union business agent. This was the progression
which Glantzis followed; indeed, the fact that he followed this progression
tends to establish the existence of the helper's unit.
383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement with which, as the prior discussion reveals,
Desco had been complying. When Lavenberg asked him to
sign that agreement, at that time and again later in the
month, Cordi put him off. When Lavenberg repeated his
demand in late January, Cordi finally told him that he had
no intention of signing the agreement.
At a jobsite meeting on February 18, Gerald Bombassa-
ro, an international representative of the Helpers' Union,
repeated the request that Cordi sign the agreement.
According to Bombassaro, 8 Cordi stated that he had
changed his method of doing business, no longer needed
Local 59 members to do his work and therefore had no
reason to sign an agreement with Local 59. Cordi spoke of
alleged harassment by business agents of Local 59 and
alluded to his membership in another association (National
Association of Decorative Architectural Finishers-NA-
DAF), pursuant to which he was party to contracts with a
"Chemical Products" division of the Bricklayers (BMPIU)
and Painters (IBPAT) International Unions. Cordi refused
to sign Local 59's agreement. Cordi testified that prior to
January 1975, he was under the mistaken impression that
Desco was a member of NADAF. Upon learning that he
was in error, he alleged, Desco joined NADAF sometime
in January 1975. Assuming the credibility of this testimony,
Desco's membership in NADAF as of January 1975 is
irrelevant. Selection of a collective-bargaining representa-
tive is the right of the employees, not the employer, and an
employer cannot substitute another representative for that
chosen by his employees merely by joining an association
which purports to contract with another labor organiza-
tion. Moreover, the NADAF-BMPIU-IBPAT Jurisdiction-
al and Work Rules Agreement placed in evidence by Desco
only purports to assign the installation of the materials
according to traditional work techniques (bricklayers use a
trowel, painters use rollers or brush). It does not appear to
preclude assignment of traditional helpers' work to mem-
bers of some other labor organization. Finally, in this
regard, I note that Cordi's lack of specificity as to when he
joined NADAF or what authority he assigned to that
organization, and the absence of any documentary evi-
dence corroborating Desco's membership therein, casts
considerable doubt as to the veracity of his testimony.
When, in late January, Desco's employees who were
within the previously described helper's unit made applica-
tion to Locals 6 and 16 (discussed in more detail infra).
Cordi raised their wages and/or fringe benefits to the
higher rates specified in the agreements maintained by
those Unions. Cordi alleged that this was the result of
upgrading or promotion, but the credible evidence establ-
ishes that there was no change in the work of these
s To the extent that there are conflicts between Bombassaro's testimony
and that of Cordi, I credit Bombassaro, with whose demeanor I was
favorably impressed. Moreover, Bombassaro's testimony was corroborated
by that of Lavenberg, another credible witness.
9 See Marquis Elevator Company, Inc., 217 NLRB 461 (1975); Manor
Research, Inc., 165 NLRB 909 (1967).
t0 King's response (undenied, as King did not testify), to the effect that
Sitiriou could have waited a couple of weeks before joining, is further
acknowledgment of Local 59's presence as the helpers' bargaining
representative.
1i Cordi claimed that King had reported pressure being placed against
these employees. Hamilton did not testify and Sitiriou denied that his
application was other than an act of free will. The record contains no
employees. The newest and least experienced employees,
Psarras, Evangelides, and Sitiriou were entitled "impr-
overs," a classification below that of "mechanic." They
received no wage increases but some improvement in
fringes.
The foregoing evidence establishes that Desco, after
recognizing Local 59 for a long course of years, declined to
sign the contract to which it was obligated and with which
it had been complying, refused to continue its recognition
of that Union during the term of the agreements and, not
withstanding that there was no evidence of any loss of
majority, purported to recognize other labor organizations
as the representatives of the same employees, and changed
the wages and benefits accorded to the unit employees
without negotiation with representatives of Local 59. By all
of the foregoing conduct, and as will be seen in the next
section, by conduct intended to undermine Local 59's
status as bargaining representative, I conclude, in agree-
ment with the General Counsel, Respondent Desco has
violated Section 8(aX5) of the Act.
C. Alleged 8(a)(1) and (2) and 8(b)(IXA) and (2)
Violations
On January 24, 1975, Lavenberg came on to Desco's
jobsite in the Empire State Plaza. He received applications
for union membership and down payments on the
initiation fees from J. C. Hamilton and John Sitiriou.
Shortly thereafter, Sitiriou told Superintendent King that
he had joined Local 59.10
On January 26, Cordi called Lavenberg and accused him
of sneaking onto the jobsite and coercing employees into
applying for union membership." Lavenberg denied doing
so and agreed to meet Cordi on the jobsite the following
day. On January 27, before Lavenberg came to the site,
Cordi and King went to Sitiriou. They asked Sitiriou
whether he had joined Local 59. He replied that he had and
that he had given Local 59 a $100 deposit. He asked
whether he had done something wrong and both replied,
"No, that's okay."
When Lavenberg arrived, he went with Cordi and King
to Hamilton. As Lavenberg testified,12 Cordi asked
Hamilton whether Lavenberg had coerced him into making
his application. Hamilton replied affirmatively. Lavenberg
denied that there was any coercion but returned Hamil-
ton's deposit to him. They then went to Sitiriou and the
same question was asked. Cordi asked Sitiriou whether he
was with them (Local 59) or with him (Cordi). Sitiriou said
that Cordi was the man who paid him so he was with
Cordi. Cordi asked him if he wanted his money back and,
probative evidence of coercion upon these or any other employees by Local
59.
12 To the extent that there are conflicts between Lavenberg's testimony
and Cordi's, I credit Lavenberg. Cordi's testimony throughout is best
characterized by its lack of responsiveness, its tendency to be shaded so as
to improve Respondent Employer's arguments (as, for example, Cordi's
claims that the employees did not have specific job responsibilities but
worked as a "team," that he paid "prevailing rates" rather than complying
with a contract, and that he did not know "that much" about Local 59 when
he took over the business), and the contradictions between his testimony in
the initial and remanded hearings. Lavenberg's testimony was essentially
corroborated by Sitiriou and I was more favorably impressed by the
demeanor of Lavenberg and Sitiriou than by that of Cordi.
384
DESCO VITRO-GLAZE OF SCHENECTADY
when Sitiriou said that he did, Lavenberg returned his
deposit.
General Counsel contended that by the foregoing
conduct, Respondent Desco interrogated its employees and
solicited them to withdraw from Local 59, in violation of
Section 8(a)(1) of the Act. I agree. Cordi's statements and
actions made clear to these two new employees that he did
not want them to join Local 59, that he wanted them to
withdraw their membership applications and that going
"with him" rather than "with them" was what was
expected of them. By this conduct, Desco interfered with,
restrained, and coerced Hamilton and Sitiriou in the
exercise of their right to join Local 59, and violated Section
8(a)(1).
On January 29, King told Psarras: "the company
decided to not have anymore helpers, so instead of losing
your job, do you mind if you become a mechanic." Psarras
asked how he would become a mechanic and King told
him:"you're going to join another Union but you're still
going to do the same job as a helper you are now but we're
going to stop having anything to do with the helpers. So
what do you want to dof?r' King also asked Mohamad
whether he wanted to become a mason. Mohamad asked
when it would take place and what he would be doing.
King told him that his job would not change and that the
business agent from Local 6, Aldo Malossi, would be there
to speak to him on the following day. According to Cordi,
King similarly surveyed the other helpers.
On January 30, King told Mohamad that Malossi was
present at the jobsite and he could sign up. They went to
the office. Mohamad questioned what his status would be
in Local 6 and was assured that he would be a journeyman.
He tendered a deposit to Malossi and received a receipt.
Cordi testified that Hamilton was similarly brought to the
office; he (Cordi) asked Hamilton if he was interested in
becoming a mechanic, Hamilton said that he was, and
Hamilton gave Malossi some money.
On January 31, the scene was repeated with Vince Riggi,
business agent of Local 16 and employees Psarras, Sitiriou,
Evangelides, Marotta, Segatto, and Coppola. Cordi asked
them if they wanted to join Local 16 and loaned money to
Psarras and Sitiriou to make down payments on the
initiation fees. Riggi returned to the jobsite office on
February 7 and, again in the presence of Cordi and King,
requested money for the down payments from Psarras,
Evangelides, and Sitiriou. They made arrangements to pay.
Thereafter, Evangelides and Sitiriou made an attempt to
give Riggi additional money, which Riggi refused, appar-
ently because someone was questioning the procedure.
On February 27, as he was passing out their paychecks,
Cordi asked Psarras and Evangelides whether they had
completed their payments to Local 16. They replied that
they had not and Cordi told them that they had better do
so or they would lose their jobs.13 Cordi admitted that its
contracts with Locals 6 and 16 were extended to cover the
helpers.
13 Psarras' and Evangelides' testimonies are mutually corroborative.
Cordi's testimony acknowledges that he asked them what their status was
with Local 16 and advised them of the risks of running afoul of the union-
security requirements in Local 16's contract.
No further efforts were made by either Local 6 or Local
16 to collect initiation fees or dues and neither Union
sought to invoke the union-security clause of their
agreements against any of these employees.
As the foregoing evidence makes clear, Respondent
Desco was the moving force in its employee's alienation
from Local 59 and their applications for membership in
Locals 6 and 16. By such assistance and support of those
unions, at a time when it was obligated to continue
recognition of Local 59, and by its recognition of Locals 6
and 16 for those employees and the extension of its
contracts with those Unions to those employees, Respon-
dent Desco has violated Section 8(aXl) and (2) of the Act.
By accepting that support and the extension of their
contracts to the employees so coerced, Respondent Locals
6 and 16 violated Section 8(bXIXA). International Ladies'
Garment Workers Union (Bernhard-Altmann Texas Corp.) v.
N.LR.B., 366 U.S. 731, 738-739 (1961); Captive Plastics,
Inc., 209 NLRB 749 (1974). Contrary to Respondent
Unions' contentions, scienter is not an element of the
violation. Even assuming that Riggi and Malossi were
unaware of Desco's obligations toward Local 59 (which is
most unlikely) or of Cordi's unlawful support of their
organizations, the acceptance of recognition under such
circumstances violates the Act. Berhard-Altmann, supra.
Moreover, as the contracts extended to these employees
contained provisions requiring union membership as a
condition of continued employment, Respondent Desco
has violated Section 8(aX3) and Respondent Locals 6 and
16 have violated Section 8(bX2) of the Act. Melbet Jewelry
Co., Inc., and I.D.S.-Orchard Park, Inc., 180 NLRB 107
(1969).
D. The Unfair Labor Practice Strike
On March 31, Local 59 began a strike against Desco and
picketed for a period of about 2 weeks at the Empire Plaza
jobsite and for I week at another Desco jobsite. The strike
and picketing were caused by the above-described conduct
and, I find, this was an unfair labor practice strike. 4 On
June 19, Lavenberg made an unconditional offer to return
to work on behalf of all of Desco employees.
CONCLUSIONS OF LAW
1. The helpers employed by Respondent Desco consti-
tute an appropriate unit for collective bargaining.
2. By interrogating its employees concerning their
union membership and by soliciting them to withdraw their
membership in Local 59, Respondent Desco has engaged
in unfair labor practices in violation of Section 8(aXl) of
the Act.
3. By soliciting its employees to join Respondent
Locals 6 and 16, by assisting Respondent Locals 6 and 16
to secure membership applications from its employees, by
threatening its employees with discharge unless they joined
Respondent Locals 6 or 16, by recognizing Respondent
Locals 6 and 16 as the collective-bargaining representative
14 Allie Mohamad and Dimitrios Evangelides participated in the strike.
After approximately I week, Evangelides had returned to work. However,
he rejoined the strike prior to its conclusion.
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its helpers and by applying its contracts with Respon-
dent Locals 6 and 16 to its helpers, Respondent Desco has
violated Section 8(a)(2) and (1) of the Act.
4. By unlawfully applying its union-security contracts
with Respondent Locals 6 and 16 to its helpers, Respon-
dent Desco has violated Section 8(aX3) and (1) of the Act.
5. By the foregoing conduct which tended to under-
mine Local 59's status as collective-bargaining representa-
tive of Respondent Desco's helpers, by its withdrawal of
recognition from Local 59 and its refusal to meet,
negotiate, or execute its agreement with Local 59, and by
its unilateral changes in the terms and conditions of
employment of its helpers, Respondent Desco has violated
Section 8(a)(5) and (1) of the Act.
6. By accepting Respondent Desco's assistance in their
organizational efforts among Desco's helpers, by demand-
ing and accepting recognition as the exclusive collective-
bargaining representative of Respondent Desco's helpers,
by applying their collective-bargaining contracts with
Respondent Desco to the helpers employed by Desco, and
by extending the union-security provisions of those
contracts to those helpers, Respondent Locals 6 and 16
have violated Section 8(b)(iXA) and (2) of the Act.
7. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
8. The strike which began on March 31, 1975, was
caused and prolonged by Respondent Desco's unfair labor
practices and was an unfair labor practice strike.
THE REMEDY
Having found that Respondent Desco and Respondent
Locals 6 and 16 have engaged in unfair labor practices in
violation of Section 8(aX)(1), (2), (3), and (5), and (b)(l)(A)
and (2) of the Act, I shall recommend that they take the
actions described in the following section of this Decision,
entitled "Order," which are necessary in order to effectuate
the policies of the Act.
Upon the foregoing 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:
ORDER 15
A. Respondent Desco, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Interrogating its employees concerning their union
membership, soliciting its employees to withdraw their
membership in Local 59 or any other labor organization,
soliciting its employees to join Local 6 or 16, or any other
labor organization, threatening its employees with dis-
charge unless they joined Local 6 or Local 16, or any other
labor organization, or otherwise assisting Locals 6, 16, or
any other labor organization to secure memberships from
its employees.
'5 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.
(b) Recognizing Local 6 or Local 16 as the collective-
bargaining representative of its helpers and extending its
contracts with Locals 6 and 16 including the union-security
provisions thereof, to its helpers.
(c) Withdrawing recognition from and refusing to
recognize and bargain with Local 59 as the exclusive
collective-bargaining representative of its helpers or refus-
ing to execute, upon request, its collective-bargaining
agreement with Local 59.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Respon-
dent Locals 6 and 16 as the collective-bargaining represen-
tatives of its helpers unless and until said labor organiza-
tions have been duly certified by the National Labor
Relations Board as the exclusive representative of such
employees.
(b) Jointly and severally with Respondent Locals 6 and
16 reimburse its helpers, including former employees, for
all initiation fees, dues, and other monies paid or checked
off pursuant to its contracts with those labor organizations,
with interest at 6 percent per annum, as provided by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
(c) Upon request, bargain collectively with Local 59 as
the exclusive collective-bargaining representative of its
helpers, and if requested, embody its contract with Local
59 in a written signed agreement.
(d) Offer each of the former unfair labor practice strikers
immediate reinstatement to his former position or, if such
job no longer exists, to a substantially equivalent position,
without loss of seniority or other rights or privileges,
discharging if necessary any replacements hired, and make
each of these employees whole for any loss of earnings he
normally would have earned from 5 days after the
unconditional offer to return to work was made on behalf
of the employees, to the date of Respondent Desco's offer
of reinstatement, in accordance with the Board's formula
set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon at the rate of 6 percent per
annum. Isis, supra.
(e) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
records concerning payroll, personnel, social security
payments, timecards, disbursements and all other records
necessary to ascertain the backpay and reimbursement of
union fees and dues owed under the terms of this Order.
(f) Post at its office and each of its jobsites copies of the
attached notice marked "Appendix A." 16 Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent Desco's
representative, shall be posted by Respondent Desco
immediately upon receipt thereof, and shall be maintained
it 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."
386
DESCO VITRO-GLAZE OF SCHENECTADY
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by
Respondent Desco to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Post at the same places and under the same
conditions as set forth in (f) above, as they are forwarded
by the Regional Director, copies of the attached notices
marked "Appendix B" and "Appendix C."
(h) Deliver or mail signed copies of the attached notice
marked "Appendix A" to the Regional Director for posting
by Respondent Locals 6 and 16, as provided hereinafter.
(i) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps
Respondent Desco has taken to comply herewith.
B. Respondent Local 6, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from:
(a) Accepting unlawful assistance or support from
Respondent Desco or any other employer in the organiza-
tion of employees, or accepting recognition or entering into
collective bargaining as the representative of Respondent
Desco's helpers unless and until certified by the National
Labor Relations Board as the exclusive representative of
said employees pursuant to Section 9(c) of the Act.
(b) Giving effect to, or requesting Respondent Desco to
give effect to, the collective-bargaining contract between
Respondent Desco and Respondent Local 6 as applied to
the helpers employed by Desco.
(c) In any other manner restraining or coercing the
helpers employed by Respondent Desco in the exercise of
their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Desco reim-
burse Desco's helpers, including former employees, for all
union initiation fees, dues and other moneys, paid or
checked off pursuant to the contract between Respondent
Desco and Respondent Local 6, with interest at 6 percent
per annum. Isis, supra.
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
records necessary to ascertain what is owed in reimburse-
ment of union fees, dues, and other moneys under the
terms of this Order.
(c) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix B."' 7 Immediately
upon receipt of said notice, on forms to be provided by the
Regional Director for Region 3, Respondent Local 6 shall
cause the copies to be signed by an authorized representa-
tive and posted, the posted copies to be maintained for a
period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondent Local 6 to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Deliver or mail signed copies of the attached notice
marked "Appendix B" to the Regional Director for posting
by Respondent Desco and Respondent Local 16, as
provided herein.
(e) Post and maintain at the same places and under the
same conditions provided in paragraph B 2, (c) above, as
soon as forwarded by the Regional Director, copies of the
attached notices marked "Appendix A" and "Appendix
C."
(f) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps
Respondent Local 6 has taken to comply herewith.
C. Respondent Local 16, its officers, agents, and
representatives shall:
1. Cease and desist from:
(a) Accepting unlawful assistance or support from
Respondent Desco or any other employer in the organiza-
tion of employees, or accepting recognition or entering into
collective bargaining as the representative of Respondent
Desco's helpers unless and until certified by the National
Labor Relations Board as the exclusive representative of
said employees pursuant to Section 9(c) of the Act.
(b) Giving effect to, or requesting Respondent Desco to
give effect to, the collective-bargaining contract between
Respondent Desco and Respondent Local 16 as applied to
the helpers employed by Desco.
(c) In any other manner restraining or coercing the
helpers employed by Respondent Desco in the exercise of
their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Desco reim-
burse Desco's helpers, including former employees, for all
union initiation fees, dues and other moneys, paid or
checked off pursuant to the contract between Respondent
Desco and Respondent Local 16, with interest at 6 percent
per annum, Isis, supra.
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
records necessary to ascertain what is owed in reimburse-
ment of union fees, dues, and other moneys under the
terms of this Order.
(c) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix C." 18 Immediately
upon receipt of said notice, on forms to be provided by the
Regional Director for Region 3, Respondent Local 16 shall
cause the copies to be signed by an authorized representa-
tive and posted, the posted copies to be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent
Local 16 to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Deliver or mail signed copies of the attached notice
marked "Appendix C" to the Regional Director for posting
by Respondent Desco and Respondent Local 6, as
provided theretofore.
(e) Post and maintain at the same places and under the
same conditions provided in paragraph C, 2, (c) above, as
soon as forwarded by the Regional Director, copies of the
17 See preceding footnote.
387
18 See preceding footnote.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached notices marked "Appendix A" and "Appendix
B."
(f) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps
Respondent Local 6 has taken to comply herewith.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT seek or accept recognition as the
collective-bargaining representative of the helpers
employed by Desco Vitro-Glaze of Schenectady, Inc.,
unless and until we have been certified as such a
representative by the National Labor Relations Board.
WE WILL NOT seek to enforce or apply our contract
with Desco to the helpers employed by that company.
WE WILL NOT in any other manner restrain or coerce
employees of Desco in the exercise of rights guaranteed
in Section 7 of the Act.
WE WILL, jointly and severally with Desco, make
Desco's helpers whole for all initiation fees, dues, and
other moneys paid or checked off pursuant to our
contract with Desco.
LOCAL 6, BRICKLAYERS,
MASONS, PLASTERERS,
MARBLE, TILE AND
TERRAZZO WORKERS
INTERNATIONAL UNION,
AFL-CIO
APPENDIX C
NOTIcE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT seek or accept recognition as the
collective-bargaining representative of the helpers
employed by Desco Vitro-Glaze of Schenectady, Inc.,
unless and until we have been certified as such a
representative by the National Labor Relations Board.
WE WI. NOT seek to enforce or apply our contract
with Desco to the helpers employed by that company.
WE WILL NOT in any other manner restrain or coerce
employees of Desco in the exercise of rights guaranteed
in Section 7 of the Act.
WE WILL, jointly and severally with Desco, make
Desco's helpers whole for all initiation fees, dues, and
other moneys paid or checked off pursuant to our
contract with Desco.
LOCAL 16, BRICKLAYERS,
MASONS, PLASTERERS,
MARBLE, TILE AND
TERRAZZO WORKERS
INTERNATIONAL UNION,
AFL-CIO
388