Ideal Elevator Corp.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 347 (N.L.R.B. 1989)

IDEAL ELEVATOR CORP. 347
Ideal Elevator Corp . and International Union of Ele-
vator Constructors , Local 4. Case 1-CA-24705
June 15, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
DEVANEY
On June 15, 1988, Administrative Law Judge
Robert T. Wallace issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
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 brief and has
decided to affirm the judge 's rulings, findings, t and
conclusions2 and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Ideal Elevator Corp., Boston, Massachu-
setts, its officers, agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(b)
and reletter the following paragraphs accordingly.
"(b) Coercively polling employees concerning
their desire for union representation."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
i The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
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 reversing
the findings.
The Respondent has also excepted to the judge's factual finding that
employee Shawn Baker resigned from his job in March 1986 . We find
merit in this exception as the record clearly shows that Baker has worked
for the Respondent continuously since 1985 . This inadvertent error does
not affect our decision.
In addition, the Respondent excepts to the judge 's finding that by poll-
ing its employees before the Union claimed majority status , the Respond-
ent violated Sec 8 (a)(l) of the Act We also find merit in this exception.
The record clearly establishes that the Union knew of and condoned the
Respondent 's plan to poll its employees in November 1985 at a time
when the Union had not claimed majority status . In these circumstances,
we conclude that it would be inequitable to find that the timing of the
polling was unlawful . However, we agree with the judge that the Re-
spondent, by polling its employees without observing the safeguards set
forth in Struksnes Construction Co., 165 NLRB 1062 (1967 ), violated Sec.
8(a)(1) of the Act . Although the judge found the polling violation, he in-
advertently failed to include it in his recommended Order . We shall
modify the recommended Order and notice accordingly.
2 In reaching the conclusion that Kenneth Boyce Jr , the son of the
Respondent's sole owner, should be excluded from the unit , the judge
relied on NLRB v. Action Automotive , 469 U.S. 490 ( 1985), and on his de-
termination that Boyce Jr enjoyed a "special status" by virtue of his
close relationship to the owner and of the on-the-job benefits he enjoyed.
While we agree with the judge that Boyce Jr. should be excluded from
the unit , we find it unnecessary to rely on the judge 's "special status"
analysis because Sec. 2 (3) of the Act, as the judge himself noted , excludes
from coverage "any individual employed by his parent or spouse."
Further , we find it unnecessary to rely on the judge's "rebuttable pre-
sumption" analysis to conclude that statements made by Supervisors
Tnckett and Ahern were attributable to the Respondent . We note that,
on remand , the Board applied the analysis set forth by the Third Circuit
in NLRB v. Schroeder, 726 F.2d 967 ( 1984), to determine an employer's
responsibility for statements made by its supervisors , as the law of the
case in National Apartment Leasing Ca, 272 NLRB 1097 (1984). In this
regard , the Board continues to hold that under Sec . 2(13) of the Act "an
employer is bound by the acts and statements of its supervisors whether
specifically authorized or not ." Dorothy Shamrock Coal Ca, 279 NLRB
1298, 1299 (1986). Accordingly , we conclude that the Respondent is
liable for the statements of Supervisors Ahern and Tnckett.
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT unlawfully discourage member-
ship in the International Union of Elevator Con-
structors , Local 4, or any other labor organization.
WE WILL NOT threaten you with physical harm,
loss of jobs, and shut down of operations if you
choose to be represented by any union.
WE WILL NOT coercively poll you concerning
your desire for representation by International
Union of Elevator Constructors, Local 4.
WE WILL NOT coercively interrogate you as to
your sympathies and activities on behalf of any
union.
WE WILL NOT create an impression that union
meetings and activities are under surveillance.
WE WILL NOT promise or award pay raises or
other benefits in order to induce you to avoid
being represented by any union.
WE WILL NOT in any other manner interfere
with , restrain, or coerce you in the exercise of your
rights guaranteed by the Act.
295 NLRB No. 39
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL, on request, recognize and bargain
with International Union of Elevator Constructors,
Local 4, as the exclusive representative of all em-
ployees in the unit described below with respect to
rates of pay and other conditions of employment
and, if an understanding is reached , embody that
understanding in a written signed agreement. The
bargaining unit is:
All full-time and regular part -time elevator
constructors and helpers , excluding office cler-
icals, salesmen, guards and supervisors as de-
fined in the Act.
WE WILL , on their unconditional offer to return
to work , reinstate employees found in this proceed-
ing to have been striking to protest our continuing
unfair labor practices.
All of you are free to join the International
Union of Elevator Constructors , Local 4, or any
other labor organization.
IDEAL ELEVATOR CORP.
Benjamin Smith and John Welsh, Esqs., for the General
Counsel.
Scott G. Blair, Esq. (Stoneman , Chandler & Miller), of
Boston , Massachusetts, for the Respondent.
Paul F. Kelly and Shelley B. Kroll, Esqs. (Segal, Roitman
& Coleman), of Boston, Massachusetts , for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge.
Upon charges filed by the above-named Union on May
8, 1987,1 as amended , a complaint issued on July 1; and
the case was heard by me in Boston, Massachusetts, be-
tween August 24 and September 2.
As further amended at the trial , the complaint alleges
that Respondent engaged in numerous unfair labor prac-
tices (threats of physical violence, layoffs , and plant clo-
sure ; and awarding of benefits) in order to defeat the
Union 's organizing drive. A bargaining order as well as
an order to reinstate striking employees is sought.
Based on the entire record, including my observation
of the witnesses and after due consideration of briefs
filed by all parties , I make the following
FINDINGS OF FACT/ANALYSIS
1. JURISDICTION
Respondent, a Massachusetts corporation engaged in
the construction and repair of elevators , admits that
during a representative 1-year period it purchased and
received directly from out-of-state suppliers at its place
of business in Boston goods valued in excess of $50,000. I
find that it is an employer engaged in commerce within
' All dates are in 1987 unless otherwise stated.
the meaning of Section 2(2), (6), and (7) of the National
Labor Relations Act. I also find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. BACKGROUND
Kenneth Boyce Sr. is the Respondent 's president and
sole stockholder , and is an employer within the meaning
of Section 2(2) of the Act. Thomas Woods is the Re-
spondent 's general manager and is a supervisor under
Section 2( 11) of the Act. The following employees con-
stitute a unit appropriate for collective bargaining within
the meaning of Section 9(6) of the Act:
All full-time and regular part -time elevator con-
structors and helpers , excluding office clericals,
salesmen , guards and supervisors as defined in the
Act.
On May 5 , 1987, the Union , by telegram, requested
that Respondent recognize it as the exclusive collective-
bargaining representative of employees in the unit; and 3
days later it filed a petition seeking a Board determina-
tion in that regard . Processing of the petition was
blocked by the charges at issue in this case.
Respondent 's payroll list for the period April 28
through May 9 includes the following 14 employees:
Paul Ahern Paul Hardy
Shawn Baker James Harrell
Ken Boyce , Jr. Dan Keating
Thomas Caruso John McDougall
John Donahue Robert Morales
Stephen Eagan Gerald Oemig
John Hardy William Trickett
Of those, Ahern and Trickett were the highest paid with
each receiving $20 per hour . Oemig at $16 . 50 per hour
was the next highest, followed by Eagan with $ 16. Each
of those employees were licensed elevator mechanics.
The other employees , all unlicensed , received hourly
rates ranging from $8.50 to $12 an hour.
III. REPRESENTATION ISSUE
Respondent contends that all 14 employees belong
within the bargaining unit as of May 5 . 1 find , however,
that Ahern and Trickett should be excluded because they
are supervisors within the meaning of Section 2(11) of
the Act; and that Boyce Jr. must be excluded because he
is an "individual employed by his parent" and hence not
an employee within the meaning of Section 2(3) of the
Act.
Boyce Jr., age 19, is the son of Respondent 's president
and sole owner . During all pertinent periods he resided
with his father and he is shown to have been given some
job-related privileges and benefits not available to other
employees . For example , during a 1-year period follow-
ing his hire as a full-time employee in May 1986, he was
the only nonsupervisory employee entrusted with keys to
IDEAL ELEVATOR CORP.
Respondent 's facility, 2 and he was accorded free use of
uniforms . In NLRB v. Action Automotive , 469 U.S. 490
(1985), the Court approved factors relied on by the
Board in deciding whether an employee 's familial ties are
sufficient to align his interests with management and thus
warrant his exclusion from a bargaining unit . Included
among those are: family ownership of and direct involve-
ment in the management of the business (NLRB v. Cara-
velle Wood Products, 466 F.2d 675 (7th Cir. 1972)); the
employee's continued residence in the family home (Pan-
dick Press Midwest , 251 NLRB 473 (1980)), and special
on-the-job benefits received by the employee (Holthouse
Furniture Corp., 242 NLRB 414 (1979)). Indeed, the
Court held that close relatives of management are prop-
erly excluded from bargaining units even absent a show-
ing that they enjoy special job-related privileges.
As to Ahern and Trickett, supervisory authority was
conferred on them expressly in policy notices to employ-
ees (dated June 12, 1985, and February 13, 1986, and
issued under the names of Ahern, Trickett, and Woods)
which were given to all employees when hired.3 Ac-
cording to the June 12 notice , Ahern and Trickett had
authority to discipline employees , including docking
their pay for tardiness or failure to respond to service
calls; and in the one dated February 13, employees were
advised that their timeslips would be monitored daily by
Ahern and Trickett. It does not appear that employees
were ever advised that the notices were rescinded or
modified in any respect.
Credited testimony also shows that Ahern and Trickett
acted in accord with the notices . Trickett hired Morales
and John Hardy and interviewed other job applicants.
On hiring Morales, Trickett told him that he, Ahern, and
Boyce Sr. would be his "bosses"; and he explained that
he was the construction foreman, Ahern the service fore-
man, and Boyce Sr. "in charge of the whole operation."
As construction foreman , Trickett assigned work to em-
ployees on a daily basis, instructed them on the job, rep-
rimanded them for work infractions , and, at least in one
instance , recommended that an employee (Paul Hardy)
be docked for poor performance. He also granted em-
ployees time off for short periods without prior authori-
zation . As service foreman Ahern also interviewed and
screened job applicants , and he assigned work to and in-
structed employees on the job.
Ahern's and Trickett's pay, benefits , and working con-
ditions also were commensurate with supervisory status.
The blouses of their work uniforms were of a different
color than those worn by other employees . They were
paid the highest hourly rate and received medical insur-
ance.4 Together with Boyce Sr. and Woods , they had
2 Although Harrell had keys, it is not clear that he obtained them any
earlier than June 1987 (Tr 865).
a General Manager Woods testified that since the fall of 1986 the two
notices have not been included in the packet. By that time , however, all
the named unit employees had been hired , including Keating whose
packet contained both notices when he was hired on September 12, 1986.
4 According to Boyce Sr ., Respondent 's group medical insurance
policy required at least four covered employees . In March 1987 the only
insured employees were Boyce Sr., Woods, Trickett, Ahern, and Eagan.
Eagan was included in the group because Ahern opted not to take the
insurance when it was initially offered.
349
their own desks in Respondent 's office. They also had
keys to the shop and custody of Respondent 's vehicles
after working hours.
I conclude that Ahern and Trickett possessed both
actual (Nueva Engineering, 269 NLRB 999 (1984)) and
apparent (Houston Coca Cola Bottling Co., 256 NLRB
520 (1981 )) supervisory authority, and this notwithstand-
ing the fact that they may not have been clothed with all
attributes of a supervisor as that term is defined in Sec-
tion 2(11) of the Act (Hydro Conduit Corp., 254 NLRB
433 (1981)).5
Excluding Boyce Jr., Ahern, and Trickett, the bargain-
ing unit as of the May 5 union demand for recognition
consisted of 11 employees ; and of those more than a ma-
jority (7) had signed cards which unambiguously au-
thorized the Union to represent them.?
Respondent , however, contends that four cards should
be disregarded because signatures were procured either
by misrepresentation (to Paul Hardy) or other improper
inducements (to Baker, Eagan , and Morales). In addition,
Respondent argues that all the cards are invalid because
card signers were told by Business Agent Frank McGet-
tigan that by signing they were authorizing Local 4 to
represent them in negotiating wages , hours, and working
conditions, whereas only the International Union had au-
thority under its constitution to negotiate in regard to
those matters.
Taking up the latter claim first, I find that while
McGettigan made the claim to some of the signers, the
error is neither advertent nor material . Each employee is
shown to have read the card before signing and , as indi-
cated above, the words on the card plainly designate the
International or the Local or both as bargaining agent.
That some signers referred in their testimony to being
represented by the entity most visible to them (Local 4)
does not negate their awareness also of having designat-
ed the International as their representative.
As to Paul Hardy , the alleged misrepresentation is that
McGettigan told him the purpose of the card was to
secure an election . The pertinent testimony (Tr. 28) reads
as follows:
MR. MCGETTIGAN : [I] told him that . . . the
card was . . . to organize Ideal Elevator and that
S This conclusion accords with an answer in a prior proceeding (I-
CA-23659) before the Board in which Respondent admitted that Trickett
held supervisory status in 1986, since Trickett's uncontradicted testimony
herein is that his responsibilities remained unchanged up to the time he
left Respondent 's employ in June 1987. The admission remains effective
even though the proceeding subsequently was settled by an agreement
which contained a nonadmission clause.
6 Eagan signed on March 27, McDougall on April 13 , John and Paul
Hardy on April 21, Morales and Keating on April 28, and Baker on May
4.
° The printed portion of each card reads as follows:
Authorization for Representation By
International Union of Elevator Constructors
I desire to be represented by the International Union of Elevator
Constructors, and I hereby designate the International Union of Ele-
vator Constructors and/or its appropriate affiliated Local Union as
my Bargaining Agent in matters of wages, hours , fringes and all
other conditions of employment
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the International Union of Elevator Constructors-
if they won an election would represent them in
wages, fringes and working conditions.
However, when read in conjunction with other testimo-
ny (Tr. 27, 30, 40) it is clear that McGettigan informed
each prospective signer that voluntary recognition or an
election would be sought only if a majority of Respond-
ent's employees designated the Union as their representa-
tive ; and that construction accords with testimony of
other signers including Paul Hardy (Tr. 394-395).
Baker, in Respondent 's view , was intimidated or "pres-
sured" into signing by the president of another union
(Fireman's Local 144) of which Baker was a member;
and, in support Respondent cites testimony wherein
Baker states that the president told him to "tread lightly"
in regard to the organizing drive of Local 4. Here too I
find that the testimony does not support the contention.
The pertinent quotation (Tr. 908) is as follows:
[BAKER] . . . I was advised by my union presi-
dent to tread lightly on it; to possibly stay out of it;
not get involved in it.
Far from being intimidated , Baker was told to avoid get-
ting involved in the drive. His subsequent testimony that
he felt "a little bit pressured" when he signed amounts to
nothing more than an expression of subjective intent and
as such it is irrelevant . Federal Alarm , 230 NLRB 518
(1977).
Eagan claims to have signed only after McGettigan
promised to give him a job with a union company within
2 weeks; and Respondent , citing D. H. Overmyer Co.,
170 NLRB 658 (1968), argues that this was an offer of a
substantial economic benefit which undermined his free-
dom of choice . But I decline to credit Eagan's claim,
finding it hard to believe that McGettigan at the outset
of an organizing drive of uncertain duration would make
a commitment to transfer a card signer out of the bar-
gaining unit prior to a demand for recognition or a deci-
sion to abandon the drive . Indeed , Eagan admits agree-
ing to help in the drive , and on cross-examination he
conceded that the asserted job offer was not absolute but
instead was tied to the outcome of the drive . In that re-
spect , he quotes McGettigan (Tr. 686 and 687) as saying
"the quicker you get more responses from these guys
. .. then the quicker things will happen . . . for you."
In the circumstances , I find likely and credit McGetti-
gan's testimony that his only reference to obtaining an-
other job for Eagan came in response to Eagan's expres-
sion of fear that by signing he would risk his job. He
states (Tr. 799): "I did tell Steve that if he got fired be-
cause of this organizing drive, that I would make every
effort to try and find him a job, but beyond that, I didn't
guarantee him anything ." Ostensibly because of McGetti-
gan's failure promptly to live up to the promise of a job
"within two weeks," Eagan asked for return of his card;
and Respondent contends that this demand constitutes an
additional reason for nullifying the card . However,
Eagan also testified that he did not seek its return until
May 8 and after Respondent had posted the Union's May
5 telegram demanding recognition . Therefore, his request
does not affect the majority status achieved by the Union
at the time of its demand for recognition . Federal Alarm,
supra; Emco Steel, 227 NLRB 989 (1977), enfd. sub nom.
Bohack Corp. v. Teamsters Local 807, 567 F.2d 237 (2d
Cir. 1977). Furthermore, a revocation is never effective
when it follows , and is likely to have been induced by,
an employer 's unfair labor practices . Quality Markets, 160
NLRB 44, 46 (1966). Given the small complement of em-
ployees, Eagan 's habit of hanging around with them after
work, and his longtime friendship with an individual
(Caruso) who was responsible for several threats of vio-
lence, I view as incredible Eagan 's assertion that prior to
requesting return of his card he had no idea that threats
had been made.
Morales was already a member of the Union when he
signed an authorization card April 28. He had been re-
hired by Respondent on March 16,8 and about 1 week
later he was contacted by McGettigan and asked to sign.
During that conversation he told Morales that he "possi-
bly could be fined" for working for a nonunion compa-
ny. These circumstances , in Respondent 's view, negate
the voluntariness of Morales act in signing the card. I
disagree . As a member of the Union , Morales had agreed
to be subject to legitimate internal disciplinary policies.
There is no evidence that McGettigan 's statement repre-
sented anything more than a declaration of fact applica-
ble to Morales' situation in working for a nonunion com-
pany . Unlike Eagan and Baker , Morales appeared in sup-
port of the complaint ; and in volunteering that the state-
ment was made, he did not suggest that it was uttered in
an invidious context , i.e., as a threat of punishment for
not signing . On the contrary , his testimony reaffirms the
voluntariness of his signature . Further, I find no merit in
Respondent 's argument that if Boyce Sr.'s son is ex-
cluded from the unit for having interests too closely
aligned with management so should Morales because, as
a union member and subject to its disciplinary rules, his
interests are inextricably interwoven with the Union. As
noted above, however, Boyce Jr.'s exclusion is based on
a specific statutory provision; and, in any event, to con-
strue preexisting membership in a union as bias sufficient
to exclude employees from a bargaining unit would vio-
late the spirit and plain intent of the Act.
In sum, I find that as of May 5, a majority of eligible
employees in the unit had knowledgeably and freely
opted to be represented by the Union.
IV. UNFAIR LABOR PRACTICES
A. Boyce Sr.
In mid-December 1986, General Manager Woods, at
the behest of Boyce Sr., conducted a poll of employees.
As they came into the office to be paid they were told
that their envelopes contained ballots which were to be
checked "yes" if they were in favor of unionization and
"no" if against, and completed ballots were to be placed
in a box situated on a desk . No other instructions or ex-
planations were given . The poll patently was in violation
8 Morales initially was hired on February 24, 1986 . He, along with sev-
eral other employees (including Caruso and Baker) left on or about
March 28 , 1986, and began to work for companies having contracts with
the Union
IDEAL ELEVATOR CORP. 351
of their rights under Section 7 of the Act since, among
other things, the Union had not at that time claimed ma-
jority support, and employees were not advised that their
participation was voluntary and without risk of reprisals.
Struksnes Construction Co., 165 NLRB 1062 (1967).
The Union's organizing campaign effectively began on
March 27 when Eagan was first to sign an authorization
card. Boyce Sr. grudgingly conceded that he knew
Eagan had signed and that he knew the names of other
signers.9 On May 4, in a conversation in the shop over-
heard by Morales, Boyce Sr. instructed Caruso "to put a
cap on the Union situation because it would be coming
to a head any day now." He also told Caruso that "it
would be his job to talk to the employees about the
Union and about the pros and cons of it"; and he empha-
sized the importance of the matter by adding that if the
Union came in he would "just close his doors and go out
of business."' 0
In directing Caruso to interfere with the Union's cam-
paign and threatening to close his business in the event
the Union obtained majority support, Boyce Sr. violated
Section 8(a)(1) of the Act.
Boyce Sr. also violated that section in his captive-audi-
ence speech on May 14. It was given at the Respondent's
facility after working hours and all unit employees were
required to listen. Although Boyce Sr. read from a docu-
ment prepared by Woods and legal counsel, he also
spoke extemporaneously. t t In the course of his remarks
he threatened that if the Union came in he would lose
customers and be forced to close his business. He warned
employees that he would fight the Union "until his last
penny" and stated that the Respondent was a nonunion
shop, always had been, and always would be. He forbade
employee organizing efforts "during our working days
and any place that we were officially working for Ideal
Elevator." He also urged them to go to the union hall as
a group and demand return of their authorization cards.
The speech exceeded the bounds of the Respondent's
Section 8(c) rights. Boyce Sr. did not simply make per-
missible predictions of business reverses based on objec-
tive facts. Instead he attempted to coerce employees into
voting against the Union by warning them that union
representation would result in plant closure and loss of
jobs. Such conduct directly inhibits union activity in vio-
lation of Section 8(a)(1). Walter Garson, Jr. & Associates,
276 NLRB 1226, 1231-1232 (1985).
Similarly, his "last penny" warning, his statement that
the Company would always be nonunion, and his urging
employees to regain their cards are patently violative as
conveying a sense of futility in pursuing the organizing
9 I am not impressed by Boyce Sr.'s candor. As a witness he viewed
his role as that of a participant in a cat -and-mouse game . For example,
see Tr. 592, 627-629, and particularly Tr. 649-653 in which he concedes
that he was deliberately evasive in answering prior questions as to his
knowledge of employee involvement in the drive.
10 Caruso has a reputation for talking tough and fighting At the time
of trial he was serving time in prison and was likely to remain there for
an extended period . Despite that circumstance his status as an employee
was not terminated Boyce Sr. regards him as a "talented young man"
and will put him back to work whenever he is released.
11 Another instance of Boyce Sr .'s gamesmanship is found at Tr. 668
where, in response to my inquiry as to whether his remarks on May 14
went beyond the prepared speech , he answered . "If I went beyond them,
it was very, very carefully, but my statement is that I didn't."
effort. Crest Floors & Plastics, 274 NLRB 1230, 1257
(1985). Further, Boyce Sr.'s speech entailed promulga-
tion of an unlawful proscription of solicitation. Rules
which prohibit union organizing during working hours
and in working areas without making clear exception for
the employees' breaktime and meal periods violate Sec-
tion 8(a)(1). Our Way, 268 NLRB 394 (1983).
At the time he gave the speech Boyce Sr. was aware,
assertedly through "scuttlebutt," that union adherents
had been subjected to threats and harassment; and he
told the assembled employees that such activity must
cease immediately. In the context of his own unlawful
statements, however, that admonition was rendered inef-
fectual. Indeed, he continued unlawfully to interfere with
employees' choice of their bargaining representative both
by providing the "carrot" of increased benefits and,
when that failed, by attempting to derail the union drive
by again using the "stick" of intimidation and coercion.
As to increased benefits, on May 25 employees Har-
rell, Morales, Caruso, Keating, Boyce Jr., and Paul
Hardy received raises of 50 cents an hour; and on June
15, John Hardy received the same raise. They neither re-
quested nor had any reason to expect the raises. Medical
insurance benefits also were granted to Keating in June
and to Paul Hardy in July. Keating had applied for in-
surance upon being hired in September 1986. That appli-
cation was "lost." A second application was submitted in
Feburary 1987 but coverage was not forthcoming until
June 1. Paul Hardy had a similar experience. He applied
in April 1986. Six months later he was asked to complete
another application, and in April 1987 still another. He
finally received insurance on July 1, about 3 months after
his wife gave birth. Up to the time Keating and Hardy
received coverage during the Union's organizing cam-
paign, only Respondent's supervisors and Eagan were in-
sured under its medical plan.
Following on the heels of the Union's demand for rec-
ognition and the filing of its representation petition and
unfair labor practice charges, the wage increases and in-
surance benefits granted to employees between May and
July were clearly meant to discourage employee support
for the Union. These improvements were not instituted
in accordance with any preexisting company policy, but
were wholly within the Respondent's discretion. They
were timed to lure employees away from the Union by
increasing their dependency on the Respondent.
The danger inherent in well-timed increases in bene-
fits is the suggestion of a fist inside a velvet glove.
Employees are not likely to miss the inference that
the source of benefits now conferred is also the
source from which future benefits must flow and
which may dry up if it is not obliged.
NLRB v. Parts Co., 375 U.S. 405 (1964). Accordingly, I
find the wage increases and insurance benefits to have
been discriminatory in violation of Section 8(a)(3) and (1)
of the Act.
When bribes failed, Boyce Sr. turned to more forth-
right methods of coercion. On Monday July 27, several
employees went on strike to protest unfair labor prac-
tices charged in the complaint. Beginning on July 23,
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Boyce Sr. began to interrogate newly hired employees
concerning their support for the Union and whether they
intended to strike . Anthony Renna was hired on June 24.
On July 23 while working at the "Peterboro" jobsite,
Renna, with Boyce Jr. present , was asked by Boyce Sr.
whether he had attended a union meeting held the night
before . When he answered "yes," Boyce Sr. turned and
walked away . Later in the day at a different site Boyce
Jr. pressed Renna further , asking him to identify employ-
ees present at the union meeting. He refused.
On the following day Boyce Sr. again appeared at the
Peterboro site and went directly over to Renna and
asked whether he was going to strike , whether he had
signed a card , and the names of other employees who
had attended the union meeting . Renna expressed reluc-
tance to provide information beyond admitting his own
attendance, stating he felt he owed Boyce Sr. that much
as an employee . Boyce Sr. continued to press saying that
the Union was not interested in Renna, just Ideal and
that if the company "went Union" you probably will be
out of a job . Renna answered that he "would take every-
thing into consideration , and the decision . . . I make
probably would be the same one you would make if you
were in my shoes ." Boyce Sr. replied : "[Be] . . . sure
you make the right decision . . . because if you go on
strike, you will never work at Ideal again ." He then
walked about 10 feet away, turned facing Renna (but
looking off into the distance" and in apparent frustration)
said "I know I 'm not supposed to talk with you . . . but
I don 't give a damn . . . what the Union is doing is ille-
gal . . . and if it gets in . . . I will shoot everyone re-
sponsible."
Thomas Gleason was hired on Wednesday, July 22.
He too was approached on July 24 by Boyce Sr., who
inquired whether he would attend a Union meeting that
night and join others in striking Ideal on Monday. Glea-
son responded that yes he would attend the meeting but
was not aware of a strike. Boyce Sr. then warned him
that he or anyone else who went on strike would never
work for him again. i 2
I find coercive and in violation of Section 8(a)(1)
Boyce Sr.'s interrogations of Renna and Gleason con-
cerning their own and other employees Union activities
and sympathies and his threats of loss of jobs and physi-
cal harm if employees went on strike or chose to be rep-
resented by the Union. Boyce Sr.'s threat to shoot those
responsible for bringing in the Union had added force
because employees were aware that he carried a gun and
used it for target practice in the shop.1 a
12 Employee Harrell was present throughout this exchange and was
called by Respondent as a witness. He does not recall Boyce Sr . saying
that sinkers would never work for Ideal again . All he remembers of the
conversation was that Boyce Sr. may have said there was going to be a
union meeting "but I don 't really even definitely recall that ." On the
other hand, Boyce Sr. while denying having made any threats, states that
he asked both employees "if they had been at a meeting and if they
would be at work on Monday ." He claims they answered no to the first
question and yes to the second.
IS Although Boyce Sr . indicated he had a license to carry a gun and
occasionally did so , he denied ever firing it in the shop "because that
would be a criminal act" (Tr 193 ). At a later point, however , he backed
off from his categorical "no" stating that he would answer only by
saying "it is not legal to shoot a gun within City limits " (Tr. 63).
B. Ahern and Trickett
Respondent is also liable for the unfair labor practices
committed by Trickett and Ahern . For the reasons dis-
cussed above, both are supervisors and therefore ex-
cluded from the bargaining unit . As supervisors , there is
a rebuttable presumption that any threats or statements
they make in violation of Section 8(a)(1) are attributable
to the Respondent. NLRB v. Schroeder, 726 F.2d 967 (3d
Cir. 1984), remanding National Apartment Leasing Co.,
263 NLRB 15 (1982).
As stated in the circuit court's decision : "The burden
would then be placed on the employer to show that, de-
spite his supervisory status, the speaker was not author-
ized to speak on behalf of management and could not
reasonably have been seen so by the threatened employ-
ees."14 In this case , Boyce Sr.'s testimony that he alone
had the authority to speak on behalf of the Respondent
lacks credibility. The supervisory duties carried out by
Trickett and Ahern, together with their apparent author-
ity to direct, discipline , and reward employees, made
them agents of the Respondent in the eyes of the work
force. The Respondent never acted to disavow their
statements or to deny their authority . Boyce Sr.'s vague
references to threats and harassment in his May 14
speech does not constitute a revocation of authority.
This is especially so since his own unlawful activity con-
tinued unabated . The Respondent is therefore liable for
the unfair labor practices committed by Trickett and
Ahern even if they acted without actual authority. Alad-
din Industries, 147 NLRB 1392 (1964).
On the morning of May 6 , while in the toolroom,
Ahern warned McDougall that if he "went union" he
would "get laid off." On June 8, Morales and Ahern
were together in the shop. After pointedly studying the
Union's May 5 telegram demanding recognition, which
had been posted by the Respondent, Ahern turned to
Morales and said , "You're in the middle of this." By so
identifying Morales, Ahern created the impression that
employees were under surveillance.
Trickett played an even more prominent role in seek-
ing to derail the union drive. In early May at the "Ran-
dolph Savings Bank" jobsite, he told Paul Hardy that if
employees opted for the Union, Hardy would be laid off
and replaced by more experienced help. At the same job-
site, he had conversations with Keating in which he re-
peated his threat of layoffs. He also told Keating that the
Union was "no good" and indicated that despite his in-
quiries, none of the employees were willing to discuss
the Union with him . On May 6, in Respondent 's shop,
Trickett told John Hardy, Paul Hardy , and McDougall
that he knew about the union organizing drive and once
again warned them that if the Union succeeded they
would be laid off and replaced by more experienced
help. Early on the next day , Morales and McDougall ap-
proached Trickett at a jobsite on Broad Street and com-
plained to him about threats they had received from
Caruso and Boyce Jr. In response , Trickett denied any
14 On remand in National Apartment Leasing Ca, 272 NLRB 1097
(1984), the Board accepted the circuit court 's opinion as to the law of the
case.
IDEAL ELEVATOR CORP. 353
knowledge of the threats but volunteered that he knew
about the union drive and told them they would be sorry
if the shop was organized because they would "end up
on the bench ." Finally, on May 12 or 14 at a jobsite in
Stoughton , Trickett advised Keating to "watch out" for
Morales who he identified as the Union 's key organizer.
He also told Keating that "the Union doesn't give a shit
about employees . All they want is the company's ac-
counts." Keating opted not to go on strike and testified
reluctantly and pursuant to a subpoena. I regard his testi-
mony as highly credible and corroborative of testimony
of the other employees . Indeed , Trickett himself gave
credence to their testimony . He admitted talking to em-
ployees about the possibility of layoffs and shutdown if
the Union organized Ideal . Also, he admitted warning
Paul Hardy and Keating to "watch out" for Morales.
I find the repeated threat of layoffs uttered by Ahern
and Trickett as well as their intimations that union activi-
ties were being monitored to be binding on Respondent
and unlawful under Section 8(a)(1) of the Act.
C. Boyce Jr. and Caruso
Although Boyce Jr. and Caruso are not supervisors,
they too acted as the Respondent 's agents in committing
unfair labor practices during the course of the Union's
organizing drive.
Boyce Jr. is not an "employee " within the meaning of
the Act for reasons heretofore discussed . As stated, he is
the 19-year-old son of Boyce Sr., lives with him , and was
accorded special benefits on the job . Bargaining unit em-
ployees were well aware of his privileged position and
rightly perceived him as his father's agent . Compare,
South Shore Pontiac Co., 203 NLRB 928 (1973); Airborne
Freight Corp., 263 NLRB 1376 (1982), and cases cited
therein at 1377 fn. 33.
Acting in that role, Boyce Jr. threatened employees
with the loss of their jobs and with physical violence if
they supported the Union . On May 6 he was present
during a conversation with employees (the two Hardys
and McDougall) in the shop during which Trickett
threatened that layoffs would result if Ideal was orga-
nized . Interjecting , Boyce Jr. observed that if they failed
union-sponsored courses they would be kicked out of the
Union . Later that day, in an elevator at "the South
Street" jobsite , Boyce Jr. and Caruso interrogated John
Hardy about which employees had signed authorization
cards . When Hardy pled ignorance , Caruso threatened to
"bust [his] head in," and warned him not to come back
to the shop at night . Boyce Jr. added that "it would be a
real shame if [he] fell down a shaftway." He went on to
say: "I may not be able to beat [you ] up, but my friends
can." That same night, Boyce Jr. called Morales at his
home and warned him that "we" had to put a stop to the
Union . He told Morales he wanted to speak with him on
the following day.
Early the next morning, Boyce Jr. and Caruso con-
fronted McDougall and Morales outside the shop.
Caruso, after stating that he had heard "some bad sto-
ries" about him, accused Morales of "trying to turn the
shop Union" and warned him that if he "found out any-
body was behind the Union , he'd be a dead man." Boyce
Jr. bolstered the threat by stating that "something could
be done after work" while at the same time making a
fist-in-hand gesture.
Boyce Jr.'s threats continued after his father's speech.
During the week of May 18, Boyce Jr. told Morales,
while riding home from work, that "if the shop did
become union . . . we'd just close the doors , go out of
business , and come in under a different name ." Also, and
as noted above, on July 23 at the Peterboro Street job-
site, he interrogated Renna in regard to the names of em-
ployees who had attended a union meeting.
Caruso, for his part, was expressly commissioned by
Boyce Sr. on May 4 to stop the organizing drive; and
within 10 minutes thereafter he began to implement that
order by telling employees (Eagan , Boyce Jr., John
Hardy, and Morales) seated together in the shop that
Boyce Sr. wanted him to cap the drive because the Com-
pany would have to close down if employees opted for
the Union . On the next day, he interrogated the same
group (augmented by Paul Hardy) about their contact
with the Union . Receiving no reply, he told them that
the Union only wanted the Company not its employees,
and again observed that if the Union came in they would
be laid off. Finally , he suggested that it might "be a good
idea to take organizer Frank McGettigan down to the
local Holiday Inn and waste him."
Other instances of unlawful interrogations and threats
by Caruso occurred on May 6 and 7 in conjunction with
similar conduct of Boyce Jr., and are described above.
On June 5 after work John Hardy ran into Caruso and
Boyce Jr. in Pug's Pub in Roxbury . One or the other
asked if Hardy intended to provide an affidavit to the
Board regarding the union organizing effort. When
Hardy feigned ignorance (he had given affidavits on
May 15 and on June 3), Caruso observed : "It looks like
we are going to have to bring `Mario ' down ." In prior
conversations , Caruso had described a friend named
Mario as "a friendly firebug ." Finally, on June 6 Caruso
told Morales in a telephone conversation that he hoped
McGettigan came through with his "promises" because
"once this was over . . . [you'll] be the first . . . [Boyce
Sr.] would let go ...." He went on to tell Morales that
he was being kept on only because of the "situation"
then currently existing between Boyce Sr. and the
Union.
I find that Respondent, through Boyce Jr. and Caruso
and on the dates indicated, engaged in a campaign of
threats and coercive interrogations designed to thwart
the union organizing drive in violation of Section 8(a)(1)
of the Act.
V. BARGAINING ORDER
The unfair labor practices found to have been commit-
ted by Respondent, including repeated predictions of clo-
sure and layoffs accompanied by threats of physical vio-
lence (e.g., to beat and shoot union adherents) and the
discriminatory award of benefits , are so serious and per-
vasive that the possibility of erasing their coercive effect
and of conducting a fair election by use of traditional
remedies is virtually nonexistent . There are no significant
mitigating circumstances . On the contrary , the damage is
magnified because the coercive acts occurred in a com-
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany having a small work force and several of the most
flagrant violations were perpetrated by the owner.
Impact Industries, 285 NLRB 5 (1987). I conclude that
entry of a bargaining order is appropriate and necessary
in this case.
CONCLUSIONS OF LAW
I find that Respondent violated Section 8(a)(3) and (1)
of the Act in the particulars and for the reasons stated
above. further find that those unfair labor practices and
each of them have affected, are affecting, and unless per-
manently enjoined, will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
And I further find: (1) that the following employees of
Respondent (the unit) constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time elevator con-
structors and helpers, excluding office clericals,
salesmen, guards and supervisors as defined in the
Act.
(2) That on or about May 4, 1987 a majority of employ-
ees in the unit designated and selected the International
Union of Elevator Constructors and its affiliate Local 4
(the Union) as their representative for purposes of collec-
tive bargaining; (3) that since then the Union, by virtue
of Section 9(a) of the Act, has been, and is, the exclusive
representative of the Unit for purposes of collective bar-
gaining with respect to wages, hours, and other terms
and conditions of employment; (4) that the unfair labor
practices found to have been committed herein are so se-
rious and substantial in character that the possibility of
erasing their effects and of conducting a fair election by
the use of traditional remedies is slight, and the employ-
ees' sentiments regarding representation, having been ex-
pressed through authorization cards, would, on balance,
be protected better by issuance of a bargaining order
than by recourse to traditional remedies; and (5) that Re-
spondent's striking employees are entitled to prompt re-
instatement upon their unconditional offer to return to
work because the strike was initiated and conducted for
the purpose of protesting Respondent's continuing unfair
labor practices (compare Jimmy Dean Meat Co., 227
NLRB 1012, 1030 (1977)).
REMEDY
In addition to the customary cease-and-desist order
and requirement for notice posting, my Order will re-
quire Respondent to recognize and, on request, bargain
with the Union as the exclusive representative of em-
ployees in the Unit in regard to terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement. Also, I will
order prompt reinstatement of striking employees upon
their unconditional offer to return to work.
I conclude that the scope and severity of Respondent's
unfair labor practices evince a general disregard for em-
ployees' fundamental rights under the Act and warrant a
broad cease-and-desist order. Hickmott Foods, 242 NLRB
1357 (1979).
Pursuant to Section 10(c) of the Act, I issue the fol-
lowing recommended 15
ORDER
The Respondent, Ideal Elevator Corp., Boston, Massa-
chusetts, its agents, officers, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with physical violence, dis-
charge, loss of jobs, and shutdown of operations if they
select the Union, or any other labor organization, as their
collective-bargaining representative.
(b) Coercively interrogating employees concerning
their or other employees' union activities and sympathies.
(c) Creating an impression that union meetings and ac-
tivities are under surveillance.
(d) Promising or awarding pay raises and other bene-
fits in order to induce them to choose not to be repre-
sented by the Union or any other labor organization.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain with the Union
as the exclusive representative of all employees in the
unit described below with respect to rates of pay, wages,
hours of employment, and other conditions of employ-
ment, and, if an understanding is reached, embody such
understanding in a written, signed agreement:
All full-time and regular part-time elevator con-
structors and helpers, excluding office clericals,
salesmen , guards and supervisors as defined in the
Act.
(b) Upon their unconditional offer to return to work,
reinstate employees here found to have been striking to
protest Respondent's continuing unfair labor practices.
(c) Post at its facility in or near Boston, Massachusetts,
copies of the attached notice marked "Appendix."16
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being signed by Respond-
ent's authorized agent, shall be posted by it immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that these notices
are not altered, defaced, or covered by other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
16 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
16 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant To a Judgment
Of The United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."