Dilene Answering Service, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1976

222 N.L.R.B. 462 (N.L.R.B. 1976)

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dilene Answering Service, Inc. and United Telephone
Answering & Communications Service Union, Local
780, AFL-CIO. Case 2-CA-13573
January 19, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On September 30, 1975, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Dilene Answering Ser-
vice, Inc., Spring Valley, New York, its officers,
agents,, successors, and assigns, shall take the action
set forth in the said recommended Order.
' Member Penello concurs in the finding of a violation herein on the basis
that the substantial contributing factor which led to Respondent's discharge
of Nichols was her, union activities. Erie Sand Steamship Company, 189
NLRB 63 (1971).
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: United Tele-
phone Answering and Communications Service Union,
Local Union 780, AFL-CIO, herein called the Union or
Chargmg Party, filed a charge on January 9, 1975,' alleging
various violations of the Act and that Florence Nickels had
been discharged by Dilene Answering Service, Inc., herein
called Respondent or the Company, in violation of the Act
on or about August 16.
The Regional Director of Region 2 issued a complaint
on April 9, 1975, alleging that Respondent had discharged
i Unless otherwise stated all events herein occurred in 1974
Florence Nickels on or about July 12,- and failed and re-
fused to reinstate her until on or about December 9, be-
cause,_ of her union and concerted activities. Respondent's
timely-answer denied that it had discharged Mrs. Nickels
or violated the Act. Insofar as the jurisdictional allegations
were concerned, Respondent admitted that the Board had
asserted jurisdiction over,it in the Board's decision in Di-
lene Answering Service, Inc., 216 NLRB No. 108 (1975).
The answer did not deny any other allegations of the com-
plaint, such as the status of the Union or the status of
Kenneth H. Iscol as the president of Respondent.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in New York, New York, on August 6,
1975. The parties requested time within which to file briefs
and briefs have been received from Respondent and the
General Counsel.
The principal issues in this case are what was said in a
telephone conversation which took place on July 10 or 11,
and whether Mrs. Nickels was discharged at least in part
because of her union position and activities at that time
and Respondent's animus toward the Union. I have con-
cluded that where the testimony of Mrs. Nickels and of
Mr. Iscol differs materially that I should credit the testimo-
ny of Mrs. Nickels. Mr. Iscol appeared to try to picture
himself in a most-favorable light and to try to place Mrs.
Nickels in an unfavorable light by his testimony. I believe
from an overall view of the testimony that Mr. Iscol tended
to exaggerate where he thought such exaggeration would
help his cause and I have discredited him where there are
conflicts.
I have concluded that the discharge of Mrs. Nickels took
place on or about July 11, and that part of the reason for
her discharge was Mr. Iscol's animus toward the Union
and towards Mrs. Nickels' assistance to the Union by hav-
ing a union meeting at her home. Based on those conclu-
sions, I have further concluded that Respondent violated
Section 8(a)(1) and (3) of the Act by its discharge and will
recommend appropriate remedial action.
On the entire record in this case, including my evalua-
tion of the reliability of the witnesses, based on the evi-
dence received, my observation of the demeanor of the
witnesses, and the nature and manner in which they made
responses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
Respondent is a New York corporation with its principal
office and place of business located in Spring Valley, New
York, maintaining other places of business in nearby New
York cities and engaging in the operation of telephone an-
swering services and radio paging and beeper devices.
Respondent's businesses in it various locations are affiliat-
ed business with common officers, ownership, directors,
and operators and constitute a single integrated enterprise
which, during the past year, derived gross revenues in ex-
cess of $500,000. During the same period of time, Respon-
dent purchased goods and materials which were delivered
222 NLRB No. 76
DILENE ANSWERING SERVICE
directly to it from States outside the State of New York
and were valued in excess of $50,000.
The National Labor Relations Board determined in an
advisory opinion dated February 21, 1975 (Case AO-163),
that it would assert jurisdiction over the operations of Re-
spondent with respect to labor disputes.
I therefore conclude and find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(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
Kenneth Iscol, the president of Respondent and its allied
companies, has owned the Respondent operations for the
last 6 years. At the present time he has some 24 or 25
employees operating 24 hours around the clock, 7 days a
week, in the various locations in New York. One of the
conditions of employment was that employees sign a con-
tract agreeing that they would not engage in a similar occu-
pation in that general territory for a period of 2 years after
they left Respondent's employ.
Respondent had a contract with the Union which ex-
pired on June 30, 1974, and was not renewed. Respondent
and the -Union engaged in negotiations thereafter and at
the time of the hearing apparently had not agreed on a new
contract. Respondent filed a representation petition with
the New York State Labor Board prior to the expiration of
the contract and the Union filed various charges with the
New York State Labor Board, including a charge concern-
ing the discharge of Mrs. Nickels.
The parties stipulated that relations between Mr. Iscol
and Union Representative Fischer were hostile.
Although the union contract called for bulletin board
space, for union notices, Respondent stated that it did not
provide such space and the Union had not filed any griev-
ance concerning lack of a .bulletin- board during the period
of the contract. One of the employees testified that notices
concerning union meetings were placed on Respondent's
company bulletin board whenever a union meeting was to
take place. Mr. Iscol stated that he did- not see such notices
and would have taken them down if he had.
Florence Nickels started to work for Respondent in Feb-
ruary 1970. In April 1974, she became disabled due to an
accident and was still in that condition when her only son
died on June 29. According to her testimony she was re-
leased by her doctor as being able to go back to work on
August 19 and on that day returned to Respondent's of-
fices and spoke with Iscol concerning returning to work.
Mrs. Nickels was a union shop steward at Respondent
for a period of 2-1/2 years at the time of the hearing in this
matter, an4 had been a shop steward during the time of her
disablement. She testified that the Union regularly held its
monthly meetings at a Holiday Inn. On either Wednesday,
July 10, or Thursday, July 11, a union meeting was held at
Mrs. Nickels' home since the Union had been unable to
rent a room at the local Holiday Inn. This meeting was
463
attended by some 17 of Respondent's employees.
Through June 1974, Lucille Kubisky was employed by
Respondent. In the yellow pages (classified telephone di-
rectory) for the area, which was dated July 1974, there was
a listing for a new telephone answering service in one of
the nearby towns. Iscol testified he had heard that Kubisky
and Nickels were starting a -competing telephone answer-
ing service and around July 9 or 10 he called the listed
number and recognized Kubisky's voice.
In June, Iscol and Respondent's manager, Joyce Latas-
sa, attended a convention of telephone answering execu-
tives in West Virginia. Iscol said this was some 2 or 3 weeks
prior to July 10 and that Mrs. Nickels called Joyce Latassa
several times attempting to get him and finally reached him
at one of the convention meetings. He testified she asked
him for a loan and he said he would think about it and
contact her later. He acknowledged that he did not speak
to her about a loan until July 10 or 11 when he called her,
although he had been back from the convention some 2
weeks by that time. There was testimony that Mrs.
Latassa's telephone number at the convention had been
posted so that she could be reached,by employees if it was
necessary.
B. The July, August, and December Conversations
Mrs. Nickels testified that either on the day of the union
meeting at her house or the following day Iscol called her
at her home, stating that he was very upset and would
expect Lucille Kubisky to cut his throat but not her, and
that she had no right to have a union meeting in her home.
She replied that she was the shop steward and could have a
meeting at her home when she wished. He said she should
be on the Union's payroll, and to consider herself em-
ployed by the Union from then on.
Mrs. Nickels testified that the reference to Kubisky may
have been a belief on Iscol's part that she was going to be
working with Kubisky in setting up this competing service.
She said she reached this conclusion after receiving a letter
from Iscol's attorney dated July 18, addressed to both her
and Kubisky, stating Respondent understood that they
were starting a competing telephone service and reminding
them of the 2-year term within which they could not do so.
The letter said that legal proceedings would follow if they
attempted to start such a business.
Respondent's brief is mistaken when it states that Nick-
els conceded that at the time of the July telephone conver-
sation she understood that Iscol was referring to her being
in business with Kubisky.
Iscol testified that, after hearing about the competing
telephone service and calking Kubisky, the next thing he
thought of was to call Florence Nickels and find out the
story. He said he told her he could understand Lucille Ku-
bisky cutting his throat but could not see how she could do
so. He testified that she got abusive, told him to go to hell,
and when he mentioned that he could not give her a loan,
she told him to keep his money, said she quit, and hung up.
Mrs. Nickels denied becoming abusive or raising her
voice or telling Iscol to go to hell and further denied saying
that she quit.
Originally Iscol's testimony conveyed the impression
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that during this conversation, Mrs. Nickels again asked
about the loan, having first requested it over the phone
while he was at the convention. His later testimony indi-
cated that he did not recall whether she had asked about it
again, but he told her that he could not give her such a
loan. Iscol was not specifically asked and did not deny
Mrs. Nickels' testimony concerning Iscol's statements
about her holding a union meeting in her home or that she
should from thereon be paid by the Union.
After she was released by the doctor on August 19, she
went to the company office to talk to Iscol, who escorted
her out of the office and into the hallway and conversed
with her for a moment. According to her testimony he told
her she was guilty until proven innocent of working for
someone else and that concluded the conversation. She
said that two other girls Evelyn Ronney and Joyce Reyn-
olds were in the hallway at the time and overheard the
conversation. Neither of these two ladies was produced by
either of the parties at the hearing.
Iscol stated that when she came to the office on August
19 he had her step out into the hall and told her he was
unhappy about the circumstances of the telephone conver-
sation, that he felt that she had quit, and that he was con-
ducting an investigation to determine whether or not she
had in fact solicited the Company's customers for another
telephone answering service. He denied saying anything
about her being guilty until proven innocent. In his testi-
mony he made no mention of anyone else being present
during this conversation.
On December 9, Company Manager Latassa called Mrs.
Nickels and asked if she would talk to Mr. Iscol at her
home. She agreed to do so and Iscol came to her home. He
brought with him an agreement entitled "General Release"
which provided that she released Respondent from any
damages in any suit or arbitration against Respondent. It
was stipulated that the Union had started an arbitration
proceeding against Respondent on the basis of her dis-
charge and that Respondent had resisted the arbitration on
the basis that the contract had expired on June 30 and
accordingly the impartial arbitrator had no jurisdiction.
The impartial arbitrator agreed with Respondent's position
and no arbitration proceeding was held in the matter.
In the interim an arbitration proceeding against Lucille
Kubisky for starting a competitive answering service had
proceeded and Respondent had received an award and was
going into the New York courts to enforce the award
against Kubisky.
Iscol testified that they received the award against Kubi-
sky and that there had been no proof in his investigation
that Florence Nickels had worked for Kubisky or had so-
licited customers for Kubisky. He said that when he spoke
to Nickels on the telephone in July she had been upset and
aggravated and that he did not want to hold a grudge and
since he had an opening he asked her to come back to
work. He did testify that a condition of her coming back to
work was her signing the "General Release."
At the time of the hearing Mrs. Nickels had been em-
ployed at Respondent since December 10.
C. Analysis and Conclusions
The crux of this case is what was said in the telephone
conversation between Mrs. Nickels and Mr. Iscol.
Mrs. Nickels' testimony is specific concerning Iscol's
statements to her about the union and the union meeting in
her home and that she should consider herself employed by
the union from then on. She specifically denied becoming
abusive or telling Iscol to go to hell or that she quit. Her
testimony was aimed at the facts.
In contrast Iscol's testimony rambled and seemed to be
an effort to depict himself in an excessively favorable light.
He stated that during the conversation Mrs. Nickels asked
him about the loan and then during cross-examination said
that he did not remember whether she asked him but that
he dust told her he could not give her a loan. Although he
said he knew nothing about a union meeting, he did not
deny Mrs. Nickels' testimony that he had said she had no
right to have a union meeting in her home, and that she
should be on the Union's payroll or consider herself em-
ployed by the Union from then on.
On balance Mrs. Nickels' testimony appears more credi-
ble and I credit her version of the conversation and her
denials of Iscol's statements.
In their conversation, two things were apparently trou-
bling Iscol: (1) that a competing operation was being estab-
lished in which Mrs. Nickels might be involved, and (2)
that she had a union meeting in her home at a time when
he was involved in a contentious relationship with Union
Representative Fischer.
Mrs. Nickels had worked for Iscol for a number of years
and these two matters very evidently angered him.
I conclude and find that Iscol made the remarks about
the Union and her employment to which Mrs. Nickels tes-
tified. Since one of the motivating factors in his statements
was her involvement with and support of the Union, then
such was a part of her separation from Respondent and for
the later refusal to return her to work. Accordingly, I find
and conclude that by such action Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
Respondent's brief seeks to blame Mrs. Nickels for not
providing Iscol with evidence of her innocence and nonin-
volvement with Kubisky as though she were entrapping
Iscol. This line of thinking conforms to Iscol's "guilty until
proven innocent" statement, which I find he made, but is
not a rationalization followed by the Board.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of Respondent set forth in section III, and
therein found to constitute unfair labor practices in viola-
tion of Section 8(a)(1) and (3) of the Act, occurring in con-
nection with Respondent's business operations as set forth
above in section I, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
DILENE ANSWERING SERVICE 465
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows:
Having found that Respondent discharged Florence
Nickels on July 11, 1974, and refused to reinstate her on
August 19, 1974, and did not thereafter offer her full rein-
statement, but did reemploy her on December 10, 1974, I
recommend that Respondent offer her immediate and full
reinstatement to her former position, and that Respondent
make her whole for any loss of pay she may have suffered
by reason of Respondent's discriminatory termination of
her, by payment'to her of a sum equal to that which she
would have normally received as wages from July 11, 1974,
the date of her termination until Respondent offers her full
reinstatement, less any net earnings for the interim. Back-
pay 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 make available to the Board,
upon request, payroll and other records in order to facili-
tate checking the amounts of backpay due her and any
other rights she might be entitled to receive.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) and (3) of the
Act by its discriminatory termination of Florence Nickels
because she engaged in union and concerted activities with
other employees for the purpose of mutual aid and protec-
tion.
Upon the basis of the foregoing findings of fact and con-
clusions of law and the entire record in this case , I issue the
following recommended:
ORDER2
Dilene Answering Service, Inc., Spring Valley, New
York, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discriminatorily terminating employees because
they engaged in union and concerted activities with other
employees for their mutual aid and protection.
(b) In any other manner interfering with , restraining, or
coercing employees in the exercise of rights under Section 7
of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make Florence Nickels whole for the loss of pay she
suffered by reason of Respondent's discrimination against
her in accordance with the recommendations set forth in
the section of this Decision entitled "The Remedy."
(b) Post at its Spring Valley and other New York offices
copies of the attached notice marked "Appendix." 3 Copies
of said notice, on forms furnished by the Regional Director
for Region 2, after being duly signed by an authorized rep-
resentative of Respondent, shall be posted by Respondent
immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
2 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 herem 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.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fire employees for engaging in union
and concerted activities with other employees for their
mutual aid and protection.
WE WILL offer Florence Nickels immediate and full
reinstatement to her former job and reimburse her for
the pay she lost as a result of our action.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed under Section 7 of the act.
DILENE ANSWERING SERVICE, INC.