Ednor Home Care, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 392 (N.L.R.B. 1985)

392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ednor Home Care , Inc. and Local 819, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case 29-
CA-11395
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 10 June 1985 Administrative Law Judge
Harold B. Lawrence-issued the attached decision.
The General. Counsel and the-Respondent filed ex-
ceptions and supporting briefs, and the Respondent
filed an answering. brief to the General Counsel's
exceptions.
The National Labor Relations Board has delegat-
ed its authority. in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions- and briefs,and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended.
Order. '
Local 819, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union) as the bargaining representative of its drivers and
warehousemen because Respondent's principal reviewed
authorization cards and discussed contract terms with the
Union's business agent but thereafter withdrew its recog-
nition and refused to bargain with the Union; and that it
violated Section 8(a)(1) and (5) of the Act in that James
Williams, Respondent's vice president and agent, solicit-
ed grievances, promised employees various medical and
other benefits if they abandoned the Union and warned
them that it would be futile for them to remain in the
Union.
The Respondent's answer denies that recognition was
extended to the Union and subsequently withdrawn and
denies the commission of any wrongdoing by Williams.
The parties were afforded full opportunity t6 be heard,
to call , examine and cross-examine witnesses , and to in-
troduce relevant evidence. Posthearing briefs 'have been
filed on-behalf of the General Counsel and on behalf of
the Respondent.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the-
briefs- submitted, I make the following
,FINDINGS OF FACT
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Ednor
Home Care, Inc., Bethpage, New-York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order., -
' The General Counsel has excepted to some of the judge's credibility
findings The Board 's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect 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 re-
versing the findings
8 In adopting the judge 's finding of an 8(a)(1) violation as to the Re-
spondent 's solicitation of grievances and promising of benefits , we rely on
our decision in Ace Hardware Corp, 271 NLRB 1174 (1984)
Elias Feuer, Esq., counsel for the General Counsel.
Henry L. Goldberg, Esq. and Janet M. Connolly, Esq.
(Goldbert & Goldberg, Esqs.), Rockville Centre, New
York, for the Respondent.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was heard before me in Brooklyn, New York,
on 6 and 7 February 1985. The charge was filed and
served on 24 August 1984. The complaint was issued on
2 October 1984. The complaint as issued and as subse-
quently amended on motion at the hearing alleges viola-
tion of Section 8(a)(1) and (5) of the National Labor Re-
lations Act (the Act), in that Respondent recognized
I. JURISDICTION
There is no issue as to jurisdiction, the Respondent's
answer having admitted the allegations pertaining there-
to. Accordingly, I find that the Respondent is and has
been at all material times an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is and has been at all material
times a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES1
A. Withdrawal of Recognition
The Respondent sells and distributes oxygen tanks and
related home health care products. At the time of the
events involved in this case, its office and principal place
of business was located in Plainview, Long Island, New
York, from which it has since relocated to Bethpage,
New York. It is one of several business concerns owned
by a partnership whose principal partners are Simon
Shink and Alan Leffler.
Simon Shink is a pharmacist licensed in the State of
New York. His business interest, in partnership with
Alan Leffler, includes three drugstores in nearby Long
Island towns, three real estate corporations, and Ednor
Home Care, Inc. He divides his time between these en-
terprises, but spends most of his time in the drugstores,
where he frequently fills in as relief pharmacist. He tries,
not always successfully, to spend 1 day a week-or 8
i The matters narrated without evidentiary comment are those facts
founds by me on the basis of admissions in the answer , data contained in
the exhibits, stipulations between counsel, undisputed or uncontradicted
testimony , and, in instances where discrepancies in the testimony did not
warrant discussion , the testimony which I have credited
276 NLRB No. 42
EDNOR HOME CARE-
hours-at Ednor . When he is there, he uses James Wil-
liams' office . Williams, : a vice president and 10-percent
stockholder , actually runs Ednor . He is there throughout
every business day, supervises the operations , including
the dispatch of trucks and. the delivery operation ,' hires
and fires employees , gives them raises , and for the most
part does these things without advance consultation with
Shink or Leffler . Shink and Leffler each hold 45-percent
of the outstanding stock of,Ednor.
On 8 August , 1984,2 Shink was at the Ednor premises
when he was visited by Robert Scalza , a business' agent
of the Union , who claimed to represent Respondent's
drivers and warehousemen . The Respondent stipulated at
the hearing that all drivers and warehousemen employed
by Respondent at its Plainview facility (which has since
been moved to Bethpage), exclusive of all clerical em-
ployees, guards and all supervisors as defined in Section
2(11) of the Act, and exclusive of all other classifications
of employees constitute 'a unit appropriate for the pur-
poses of collective bargaining. -
At the time ' of Scalza 's visit , Williams was not at the
premises and -Shink was using his office . Their conversa-
tion lasted about 45 minutes . Scalza had met with 11 of
Ednor 's 12 drivers and warehousemen on Saturday
morning , 4 - August , in- a park . They' all 'signed cards
which were in the form of applications for membership'
in the Union. On 7' August, the Union prepared a letter
addressed to Ednor "confirming" that a majority of the
employees of Ednor "have designated Local 819 , I.B. of
T., as their sole and exclusive bargaining agent . Please
contact us within three (3) days so that we may discuss
the working conditions of your employees."
Scalza gave Shink a copy of the letter requesting rec-
ognition . Shink reviewed the authorization cards. He
thumbed through them twice ,- the first time for about 1
minute and the second time , while continuing the discus-
sion with Scalza , for another 2 minutes . In the course of
their discussion Shink asked a number of questions re
garding the probable nature and extent of the union de-
mands and requested that Scalza furnish a blank form of
the union contract . At one point in the discussion , Scalza
mentioned the number of paid holidays that would be
demanded and Shink asked if the Union would accept a
lesser number, to which " Scalza responded that that was a
subject that could be negotiated. At the conclusion of
their meeting , Shink advised Scalza that he had to dis-
cuss the matter with his partners and told Scalza to get
back to him in about 2 weeks . Scalza delivered a copy of
,the union form contract on 14 August, at which time
only Williams was present at the premises. Even by Scal-
za's account , Williams said nothing which would have
imported a decision by Respondent to recognize the
Union . On 23 and 24 August Scalza had brief telephone
conversations with Williams, in which Williams told him
that Respondent had decided not to recognize the Union
and that he believed the men'did not want the Union.
The General Counsel contends that Shink extended
recognition to the Union, `arguing that he had held an
initial discussion with Scalza respecting the terms of the
2 All dates hereinafter mentioned are in 1984 except as otherwise
stated
393
proposed first contract,_and that his subsequent refusal to
go forward with the negotiations constituted an unlawful
refusal to bargain. His view that -Shink recognized the
Union is, however, based on a strained and exaggerated-
interpretation of the, actual testimony.
In his posthearing brief, the General Counsel summa-
rizes Scalza's testimony in such a fashion as to create the
impression that Shink and Scalza negotiated. the terms of
an agreement respecting a major medical plan, a pension
plan, paid holidays and paid vacations, and he states that
at one point "Shink then seized the initiative." Scalza's
actual testimony does not support the General Counsel's
interpretation of it. The two men had a discussion and
the points mentioned were touched on, but in all in-
stances the touch- was extremely light and hardly in the
nature of serious give-and-take negotiation. The parties
did not,, as contended, by `the General Counsel, agree to
meet 2 weeks after Scalza delivered a document which
the General Counsel refers to as "the contract" but
which was actually only a union contract- form with the
economic terms left blank. Scalza's testimony was -that
Shink asked him "if I could" give him some time to look
it over and discuss-it and Tasked him how much time he
would need and he said two weeks . . . . Time to look
over the contract and discuss it, and I said I would get
back to him and set up another meeting." Shink testified
that he told Scalza to get back to him in about 2 weeks.
No second meeting was -scheduled. -A fair reading of
Scalza's testimony amply supports Shink's version of the
event to the effect that everything was left up in the air.
There is no question whatsoever about the purpose for
which the contract form was made available: it was con-
cededly furnished solely to familiarize Shink with the
language . I cannot find that such a form was delivered
for any other purpose. ' It contained no matter reflecting
negotiation between the Union and the Respondent.
The General Counsel's presentation is-devoid of any
evidence' that Shink ever expressly told Scalza that he
recognized 'the Union as the collective-bargaining repre-
sentative of Ednor's employees or that he said anything
from which the intention to' recognize the Union can rea-
sonably be inferred-that is, without torturing the facts'
to fit the, theory. Scalza's testimony, for example, is ex-
tremely vague-as to what it was that Shink was supposed
to let him know in 2 weeks. The General Counsel says
Scalza was'supposed to check back to see about the
terms of the contract, thus importing recognition, though
concrete contractual proposals had not been discussed.
The Respondent says the very question of recognition
was the subject matter regarding which he was to call.
Shink's testimony is somewhat more explicit, though
both he and Scalza tended- to testify in vague terms
about it.
The evidence adduced by the Respondent convinces
me that Shink did ' not intend to and did not recognize
the Union. I credit Shink's.te-stimony that he told Scalza
that he needed 10 days to 2 weeks "to make a decision
on the matter," a statement which he made in direct re-
sponse to Scalza's request for recognition of the Union as
the bargaining agent. -I credit his testimony that he spoke
to Scalza in order to obtain as much information as pos-
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sible. He obviously saw, from his examination of the
cards, that his"employees overwhelmingly favored the
Union; in order to head off the Union, it was necessary
to know what the men were looking for (and willing to
accept) as compared with their expectations of what the
Union could obtain for them through collective bargain-
ing. He did not waste time. Paul Brown, a witness called
by Respondent, testified that on 8 August Shink called
him into the office (an event which had never happened
before) and interrogated him by asking him, "Why,
what's the problem? What grievance does anyone have?
What complaints do they have? What gripes do they
have?" -
The Respondent went to great lengths to establish that
Shink's conduct during his conference with Scalza was
without significance because he lacked experience in
union matters and did not know the employees- in the
unit, thus precluding his.concluding, from his examina-.
tion of the cards, that the Union had demonstrated that it
represented a majority of the employees in the unit. Un-
questionably, he was somewhat remote from the drivers
and warehousemen. - The General Counsel established
some slight experience on the part of Shink in connec-
tion with grievances and signing of collective-bargaining
agreements negotiated by others.. Frank Corona, a driver,
testified that most of the drivers who attended, the Re-
spondent's 1983 Christmas party did not know who
Shink was and that their conversations with him for the
most part involved nothing more than greetings. Shink
testified that the cards were "meaningless" to him and so
he actually only examined the two or three top cards of
the batch that Scalza handed to him. I find the conten-
tion that Shink's statements and actions are devoid of sig-
nificance as a knowledgeable acquiescence in union rep-
resentation of the unit to be highly implausible. Three,
minutes is a long time for a man with Shink's education-
al, professional , and business background to' spend exam-
ining two or three cards containing identical printed in-
formation. He has participated in grievance proceedings
in his other business enterprises over the years and ap-
parently he was signatory to earlier collective-bargaining
agreements with District 1199 of the National Union of
Hospital and Health Care Employees, AFL-CIO, one of
which is in evidence. Furthermore, though he only spent
1 day a week at Ednor, the cumulative total -of such time
over the years is considerable and he knew the names of
at least three of the long-term employees. Since he was
right in the Ednor office at the time he examined the
8 On the basis of Brown 's testimony in this regard , the General Coun-
sel moved to amend the complaint to allege that "On August the 8th,
1984, the Respondent , by Simon Shink , its president and agent at its
Plainview facility, interrogated employees concerning their membership
in and support for the Union " The motion was denied for the reason that
it entailed incorporation into the complaint , at an extremely late stage of
the proceedings , of 'a new allegation which had not been fully litigated
and could not be litigated without allowing the Respondent time to pre-
pare its defense , necessitating a resumption of the hearing at a later date.
This would have been unwarranted in- view of the likelihood that the
new allegation would stand or fall with the others on the basis of the
whole record, so that the outcome of the case as a whole , in terms of
effectuation of the policies of the Act , would not be affected either by
the addition or the exclusion of the new allegation even though the evi-
dence of the interrogation would be considered in deciding the merits of.
the existing charges.
cards, verification of the signatures of employees whom
he did not know personally and their status as employees
could have been accomplished easily. He patently did
not suspect fraudulent behavior on Scalza's part or doubt
the authenticity of the cards. I conclude that Shink ac-
cepted Scalza's representation that the cards were signed
by his employees and looked through them. He did not,
however concede the existence-of a majority in' favor of
the Union. Scalza made no such claim. I fail to see that
recognition of the Union has been proved by a prepon-
derance of the evidence.
There are two important omissions from the evidence
adduced in support of the General Counsel 's case . First,
there is no statement attributed to Shink which even re-
motely connotes recognition of the Union. Second, there
is no explicit testimony by Scalza that when he parted
from Shink it was with the understanding that he would
contact Shink in 2 weeks respecting contract terms.
Furthermore, the postconference conduct of the par-
ties, both the Respondent and the Union, imported a lack
of recognition. On the one hand, Scalza's conduct after
his meeting with Shink was not that of a man who was
operating under the impression that his Union was recog-
nized by the Respondent. He made no statements to the
employees indicating that the Union had been recog-
nized; instead, he indicated to them that the question was
still open. He did not testify that he ever informed the
employees that the Union had been recognized. Frank
Corona, a driver to whom Scalza made reports on his
progress, gave. highly contradictory evidence on his
point. He initially testified that shortly after- Scalza met
with Shink, Scalza telephoned him at home: -
Q. What did he say to you?
A. That Sy recognized the Union. -
That was the last clear statement that he made in the
course of his testimony. When he was -subsequently
asked whether Scalza had given him any understanding
that the Union was "in," he indicated a complete lack of
any such impression. He then testified that Scalza called
him after he had met with Shink and told him that Shink
had looked at the cards. According to Corona, "At the
time he didn't know anything because there was no date
set." Corona was vague about a lot of things except one:
Q. Did Mr. Scalza ever indicate to you that the
union-that the company was now a unionized
shop? -
A. No, he- never said that.
Q. Did he say anything that would give you an
indication that the union was now in? -
A. No, he never-he said we had a good shot
though. .
Q. But he didn't say it was in yet?
A. No, he never said that it was actually in.
The "good shot" resulted from the fact that- Shink had
"looked at a few of the cards." Though the General
Counsel contends, in her posthearing brief, that Scalza
was "unequivocal in his belief that on - 8 August, Re-
EDNOR HOME CARE
spondent had recognized the Union" the fact is that he
was extremely tentative about it. Scalza did not say it to
Corona and he testified only.that the issue of recognition
was settled as far as he was concerned. Corona's testimo-
ny, considered in its entirety, affords no warrant for the
General Counsel 's assertion that Scalza "informed the
unit employees". that Respondent had recognized the
Union. Scalza's statement to the employees was that "it
looked better than we had thought" and that is a clear
manifestation of the extent of his own- doubts about the
matter. Scalza testified that he had maintained a careful
silence while Shink toyed with the cards-hardly an ap-
proach brimming with confidence.
In fact, Corona's testimony supports Shink's testimony
that he examined only the top two or three cards and
thus removes even the inspection of the cards as a basis
for implying recognition.
Of course, Scalza did not claim to do any of the things
that a business agent would normally.have done on ob-
taining recognition from an employer. He did not testify
that any contract proposals were prepared, or pertinent
records opened in the Union's office, or some kind of
notice given to the members of the unit or any of the
things that normally take place upon recognition of a
union and the institution of a new 'collective -bargaining
relationship .' His - reticence in this regard , is cogent, evi-
dence that,Shink had not recognized the Union and that
Scalza did not think he had. ' .
The Respondent's conduct, of course, was uniformly
inconsistent with the notion of recognition. There was
no express recognition. There was express refusal of rec-
ognition:'when Scalza telephoned Williams'about a week
after delivering the form contract, Williams told him that
Respondent would not recognize the-Union . Shink's edu-
cational conference with Scalza was followed by consul-
tation with his business associates and an approach to the
employees.by Williams,' which is discussed below..
To hold, in 'these circumstances , that by examining the
cards Shink recognized the Union would be to advance
form over substance in precisely the manner which the
General Counsel, in her posthearing brief, says the Board
avoids. She concedes that to find recognition an employ-
er's actions in .direct response to a majority union's re-
questt for recognition must be consistent with the idea of,
recognition . Shink 's actions-delay, equivocation, and
having Williams meet with the employees in a hurry-
are wholly inconsistent with peaceful recognition in con-
formity with-supposed past practice. This is borne out. in
the very cases cited by the General Counsel. In Snow •'&
Sons, 134 NLRB 709 (1961), enfd. 308 F.2d 687, 692 (9th
Cir. 1962), the employer expressly agreed with the union
to a check of the, signed cards. The General Counsel
cites the case for the proposition, that an employer does
not have an absolute right to insist on a Board election
when there is no reasonable doubt of a union's majority
and of the appropriate- unit. That is not what the case.
held, for the, employer was not found to have violated
Section 8(a)(5) of the Act. -In the present case, the appro-
priateness of the unit was disputed until a stipulation was
arrived at during the hearing . In Snow & Sons there was
a doubt of. the Union's -majority, which is why a check
was agreed upon: In Jem Mfg., 156 NLRB 643 (1966),
395 -
the employer's -attorney requested .a copy of the union
proposals. In Gregory Chevrolet, 258 NLRB 233 (1981),
the employer expressly agreed to recognize.the union if
he satisfied himself, that the employees had not been co-
erced by the union: In Jerr-Dan Corp., 237 NLRB 302
(1978), enfd. 601 F.2d, 578 (3d Cir. 1979), the employer
expressly conceded that the union had signed up all the -
employees and asked the union representative what had .
to be done next.
More pertinent-to the present case is Trevose Family
Shoe Store, 235 NLRB 1229 (1978), in which the com-
plaint of violation of Section 8(a)(5) of the Act founded
on a conference between a union business agent and the
management was dismissed for failure to establish that
during such conference there was any agreement or
commitment on the part of the employer's principal to
recognize the union on the basis-of the signed cards or to
engage in contract negotiations, or even to concede the
existence of a majority. The facts are strikingly similar to.,-
those of the instant case, with the exception of the events
hereinafter discussed.
The General Counsel makes an interesting argument
that there occurred some sort of constructive recogni-
tion, based on the proposition that once the door is open`
to negotiations, even if unwittingly , negotiations must ,
continue with the union for a reasonable period of time.
I have, of course, found that negotiations, consciously or
unwittingly, did not take place. In the same veins he has
put forth an argument that Shink's testimony that he was
feeling Scalza out was simply a depiction of Shink's state
of mind and does not protect him because he never said
outright to Scalza that he_ would consult his partners
about recognition and get back to'Scalza . This puts the
burden on Shink to overtly , negate recognition in a con-
ference such as the one he had with Scalza , and that is
not what the pertinent cases have held. They have put
the burden on the General Counsel to prove that in such
a conference an employer ,has made some statement or
done some specific act which clearly imports recogni-
tion. -
(The General Counsel also argues that'it was to some
degree incumbent on Shink, to express whatever doubts
he had about the cards when. he examined them. I have
already noted that verification was a simple' matter and
in ordinary circumstances it can be presumed that an em-
ployer knows his employees . In addition , a business
agent would not be expected to exhibit signature cards
which were not authentic , even if some question might
arise as to the manner in . which the signatures were ob-
tained. The -issue, however, is not whether recognition of
a majority representative has been unlawfully withheld.
The issue is whether an express recognition was unlaw-
fully withdrawn. The case was tried and briefed on that
basis.),
Recognition of the Union 'by Shink, by word or deed,
has not been established by 'a preponderance of the evi-
dence'.' - ,
I therefore find that the Respondent did not extend
recognition to the Union and consequently did not vio-
late Section 8(a)(5) by any withdrawal of recognition.,
thereafter. .
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Solicitation of Grievances, Promises, and Warnings
that Unionization Would Be Futile
The great difference between the 'situation herein and
the circumstances of cases such as Trevose Family Shoe
Store, 235 NLRB 1229 (1978), is that Respondent's be-
havior following the Shink-Scalza encounter was wholly
unlawful. In -Trevose, it was expressly found that subse-
quent to respondent's refusal to recognize the union, it
did not commit any unfair labor practices designed to de-
stroy the union's claimed majority or which made a fair
election unlikely. The evidence in the instant case tells a
very different story. Williams quickly let the employees
know he wanted to meet with them and he made a series
of statements designed to undercut the union's demands.
Two weeks after Shink's meeting with Scalza, and
about I week after Williams told Scalza that Respondent
would not recognize the Union, a meeting of all of the
drivers and warehousemen took place in Respondent's
warehouse . It was held on working time , beginning at 8
a.m.-and lasted about an hour and a half . Williams spoke
to the men during the meeting.
Unquestionably, the. initiative .for Williams' appearance
at the meeting came from Williams himself. Frank
Corona testified that there was a great deal of unpleasant
tension in the shop. In his words , "It was a point where
things were really bad and Jim said he would like to talk
to us." He asked if it was all right to sit down and talk
and in effect he called the meeting , although attendance
was a voluntary matter. "
Paul Brown , then a driver but a dispatcher since Janu-
ary 1985, testified that word got around that there was
going to be a meeting. Where the impetus for the meet-
ing came from is apparent in his testimony that Williams
"was surprised by all of this happening and everything.
He didn't realize what was going on, and he wanted to
know what was happening ." He also testified , "He just
wanted to hear from us."
Williams testified that there was a period of coolness
for about 3 weeks; then "the drivers asked me to come
to a meeting in the warehouse." He then presented a
contradictory story in which he first testified that a
driver named Dan Weininger asked him to sit down with
the' drivers , and explain management 's "side of the issue,"
but he declined stating that "my hands are bound by
law, I cannot do something like this ." In the same sen-
tence, however, he continued with the assertion that
Weininger asked if it was all right to invite him to a
meeting, whereupon he said he would be there.
The testimony of several witnesses establishes that
before the Union came on the scene there had been peri-
odic meetings of the drivers with Williams, but these
meetings appear to have been primiarily concerned with
workaday problems such as the quality of maintenance
service by the truck rental agency. Questions of medical
benefits had been raised in the past, but had been
sloughed off by promises by Williams' to look into it. He
did, but never reported the results of his investigations to
the men.
This time it was different.
According to Williams, there were 11 drivers and
warehousemen in the meeting when he appeared. He
told them that his hands were tied and he was under in-
structions from counsel as to what he could and could
not say. He listened to what they had to say, talked to
them about unions without reference to any specific
union , "about what is going on with a lot of unions
today," and union dues . He refrained from criticising
unions . He went on:
.. . and I talked about problems that we had id the
past and ' problems when were addressed to me I
took care of them. I talked about my open door
policy. It had always been • explained . to them that
whenever they had a desire to' talk we could work
things out . . . . that there is not one person in this
room that hasn 't come to me on a personal basis
with either a grievance or a problem that we
weren't able to address and I didn't think that they
should forget that at this time.
Williams characterized the meetings previously held as
"drivers' meetings" necessitated by turnover of drivers
and devoted to scheduling , adding drivers , instruction re-
garding equipment, truck safety, brake safety, mainte-
nance, servicing , "grievances with the trucks, problems
that they had with their scheduling and so on."
Williams testified that he avoided committing himself
to any promises to the drivers and warehousemen, espe-
cially when someone raised the question of major medi-
cal coverage . According to Williams , "I told them again,
I cannot promise you anything . We would have to see
what the results of this union situation turns out to be."
Other subjects covered at the meeting included schedul-
ing . of days off,, vacations, and lunch hour pay. He was
then asked to leave the meeting. The meeting continued
for another 45 minutes , at which time he was called back
in and told "that their decision at that time was to take
the side of the corporation and not the: union." Frank
Corona was the driver who advised him of this decision.
According to Williams, Corona declared that:
They understood the position that I was in as far as
what I could say and what I could not say and that
they believed that I would do the right thing and
that they would come to the side of Ednor Home
care versus going with the Union. -
They told him they had elected somebody to call the
Union "and tell the official to tear.up the cards they had
signed.
Williams denied making,any promises or threats to the
employees. .
However, the remarks made by Williams to the em-
ployees on this occasion were not as devoid of emotional
content as he at first indicated . Later in his testimony he
fleshed out the scene and providing a clearer idea both
as to who was in charge and how things went:
I opened up the meeting by thanking -them for
giving me an opportunity to talk to them; expressed
my hurt of what was transpiring between manage-
ment and labor at this point, and at that time, I said
that, "I have to be very careful of what I say to
EDNOR HOME CARE
you right now. I am restricted by law of what I can
say and what I cannot say to you "
I told them that I was very upset to the fact that
they were trying to organize a union . I let them
know that I had no idea that this was occurring. I
always felt that we could iron out our own prob-
lems, and wanted to know why? What has hap-
pened to make it different?
Frank Corona, the employees' spokesman quoted by
Williams, testified that the proposition that they could
work out their problems among themselves and did not
need a union to do it was advanced by Williams, who
examined a prepared list of their problems and said they
should have come to him before seeking outside help, be-
cause they can always talk. The list included items such
as pension and major medical benefits, wage increase,
and safer trucks. Shortly after the meeting, a permanent
grievance committee was established to discuss such mat-
ters with Williams on.a more regular basis. Corona as-
serted that the committee was Williams' idea: instead of
everybody coming directly to him, they could bring
their problems first to the committee which would then
bring them to him. Testimony by Brown tended to show
that the drivers themselves set up this grievance commit-
tee, but I found his testimony on that point vague and
.undependable. Even if they themselves did set up the
committee and designate its members (though testimony
that it was appointed on seniority did not stand up) I
conclude that the impetus for its formation nevertheless
came from Williams.
Corona's testimony furnished many illuminating details
of the meeting. Whereas questions of medical and dental
insurance coverage had been raised at earlier meetings
with Williams, without result, on this occasion Williams
listened to all their wants, promised to look into them
and noted that they were problems which they. could
work out themselves and did not need a union to work
out for them. On cross-examination, Corona testified that
Williams told them to get together and draw up a list of
their problems; this was done at the meeting. The list
was thus prepared directly at the instigation of Williams.
The list was given to him. According to Corona, he read
the list and returned it to them.
Paul Brown testified that he had no knowledge of any
list being prepared or given to Williams. According to
Brown, during the period that Williams was out of the
meeting , the men sat around and talked about their
gripes and what they wanted. He also estimated the du-
ration of Williams' absence from the meeting as consider-
ably less than the - period Williams himself testified to.
However, even according to Brown's reluctant testimo-
ny, the impetus for the preparation of the list came from
Williams himself. He testified that Williams "just basical-
ly wanted to know what our gripes were." Brown
quotes Williams as saying, before he left the meeting,
"Talk it-over. I am going to leave the room so that you
guys can talk." Though Brown is uncertain about the de-
tails of Williams' return to the meeting, he appears to
have been invited to return to the meeting.
The testimony of Williams and Brown skirts around
the important questions of who was really running the
397
meeting and what Williams was communicating to 'the
employees, but the impression is inescapable that in tell-
ing the men that his hands were tied Williams sent them
a signal to interpret his concern for their problems in the
most favorable light-as promises of action to come-
and that action on and solution of the problems they had
raised were stalled by the impending question of union
recognition. He did say explicitly that they could resolve
their problems better by themselves and promoted the
establishment of an apparatus whereby an on-going dia-
logue could ensue between management and the drivers
and warehousmen, without an intermediary.
Accordingly, I find a clear and serious violation of
Section 8(a)(1) of the Act by reason of Williams' solicita-
tion, grievances and promises of benefits. I find, howev-
er; that there is no evidence that he at any time told
them that it would be futile for them to maintain their
union membership. His talk to them appears at the very
least to have convinced them that there was no advan-
tage to them in maintaining their union membership, for
he was promising them the same benefits the Union
would obtain for them, but that is not the same thing as
telling them it would be futile for them ' to belong to the
Union.
C. Refusal to Bargain
The complaint herein alleges violation of Section
8(a)(5) of the Act in that Respondent withdrew its recog-
nition of the Union as the exclusive collective-bargaining
representative of the employees in the unit and in that it
refused to bargain with the Union. Though it is clear
from the foregoing analysis of the evidence in this case
that Shink did not extend recognition to the Uniori in the
course of his conversation with Shink, either by saying
anything or by looking at the cards, it is equally clear
that the Union as of 8 August represented a majority (in
fact all) of the drivers and warehousemen, a fact either
known or easily ascertainable by Shink, and which was
in any event confirmed by Williams' identification of em-
ployees' signatures on 12 of the cards. It is clear that
after Scalza's visit the partners consulted and that there-
after Williams, the 10-percent partner, embarked on a
course of action designed to destroy the union majority.
The legal consequences_ , of such behavior by an em-
ployer confronted with a demand for union recognition
have been elucidated in the Board's decisions over the
course of many years. Though I did not consider Snow &
Sons, 134 NLRB 709 (1961), applicable to the circum-
stances of Shink's conversation with Scalza, I note that
the decision expressly recognized that an employer's
-right to insist on a secret-ballot election to determine the
employees' bargaining representative in spite of the pres-
entation of cards signed by a majority is lost when the
employer's insistence on an election is for the purpose
only of gaining time to dissipate the union majority.
In Linden Lumber Division v. NLRB, 419 U.S. 301
(1974), the Supreme Court held that the union has the
burden of invoking the Board's electoral procedures
when an employer refuses recognition on the basis of au-
thorization cards purportedly signed by a majority of the
employees, unless the employer "has engaged in an unfair
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practice that impairs the electoral process." (419
U.S. at 310.)
The general proposition that an employer who en-
gages in unfair labor practices tending to destroy the
union's majority and seriously impede an election-may
not- insist on an election as a condition precedent to bar-
gaining is set forth in NLRB v. Gissel Packing Co., 395
U.S. 575 (1969).'It cannot be said, however, that the cir-
cumstances of the Respond'ent's behavior in this case
place the situation within the category of "outrageous"
and "pervasive" unfair- labor practices which inherently
justify a bargaining order under Gissel. In and of them-
selves, Respondent's actions fall within Gissel's class of
"less extraordinary" and "less pervasive" violations.
They clearly were of a nature tending to undermine the
Union's majority. It is not clear, however, -that they tend
to impede the electoral process.
The Gissel decision requires an investigation with re-
spect to the extensiveness of the unfair labor practices in
terms of past effect on election conditions, the likelihood
of future recurrence, the feasibility of traditional reme-
dies to rectify the violations, and the need for protection
of employee sentiment as expressed through the authori-
zation cards. NLRB v. Gissel Packing Co., 395 U.S. 575,
614 (1969).
Such little evidence as the record contains respecting
these matters indicates, if anything, that traditional reme-
dies should - suffice to set matters, right in this case. One
of the General Counsel's repeated arguments was that
Simon Shink had a long history of 'voluntary acquies-
cence in union representation of employees at his other
business enterprises. (The point was made in order to
show that he probably recognized the Union during his
conference with Scalza.) Animosity toward the Union
was not even hinted at. Communications with Scalza
were always courteous in tone.
Accordingly, I find no violation of Section 8(a)(5) of
the Act by reason of circumstances-which would bring
the case within the doctrine of Gissel. '-
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices committed by the Respond-
ent have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to. lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce. _
CONCLUSIONS OF LAW - -
1. The Respondent is an employer engaged in com-
merce within the meaing of Section-2(6) and (7) of the
Act. -
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act
by soliciting grievances and promising its employees
health, major -medical, dental, optical, and other benefits
and safer trucks if they withdrew their membership in
and support for the Union.
4. The Respondent did not commit any other viola-
tions of the Act except as herein found.
5. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act. -
THE REMEDY
Having found that the Respondent engaged in unfair
- labor practices, I recommend that the Respondent be di-
rected to cease and desist therefrom and take certain af-
firmative Action to effectuate the policies of the Act.-
The General Counsel' has requested relief by way of a
"broad order": and the Respondent has specifically
argued the inappropriateness of a bargaining order.
While the Respondent's conduct was of a type which
tended to undermine the union majority, the degree, if
any, to which it may have impeded the,election • process
is unproven. Accordingly, I do not find a bargaining
order to be appropriate under the guidelines of NLRB v.
Gissel Packing Co., 395 U.S.- 575 (1969). See J. Coty Mes-
senger Service, 272 NLRB 268 (1984):. - . -
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4 -
ORDER
The Respondent, Ednor Home Care, Inc., Bethpage,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Soliciting grievances of employees and promising
employees health, major medical, - dental, optical, and
other benefits and safer trucks in,order to induce them to
withdraw their membership in and support for the
-Union.
(b) In' any like or related manner interfering with, re-
straining, 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) Post at its place of business in Bethpage, New
York, copies of the attached notice marked "Appen-
dix."5 Copies of the notice, on forms provided by the
Regional Director for Region 29, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to -employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
•poses
S 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
EDNOR HOME CARE 399
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found
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 protect
ed concerted activities
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
WE WILL NOT solicit grievances of employees in order
to mduce you to abandon your membership in or support
for Local 819 International Brotherhood of Teamsters
Chauffeurs Warehousemen and Helpers of America or
any other union
WE WILL NOT promise you health major medical
dental optical and other benefits and safer trucks in
order to mduce you to withdraw your membership in
and support for Local 819 or any other union
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
EDNOR HOME CARE INC