Jamaica Towing, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1980

247 N.L.R.B. 353 (N.L.R.B. 1980)

JAMAICA TOWING, INC.
Jamaica Towing, Inc. and Local 917, an affiliate of
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 29-CA-5017 and 29-CA-5222
January 17, 1980
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On July 19, 1978, the National Labor Relations
Board issued its Decision and Order in this proceed-
ing' wherein it found that Respondent engaged in
conduct which violated Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended, and that
the gravity of this unlawful conduct warranted the
imposition of a bargaining order rather than the
remedy of a second election recommended by the
Administrative Law Judge.
Thereafter, on July 24, 1979, the United States
Court of Appeals for the Second Circuit issued a
decision' which accepted and affirmed the Board's
unfair labor practice findings, but questioned the
sufficiency of the Board's rationale supporting its
bargaining order as well as the necessity of imposing
such a remedy in view of certain post-decisional
factors, and remanded the matter "for further consid-
eration of the appropriate remedy."
The Board accepted the remand and invited the
parties to file statements of position. Thereafter,
counsel for the General Counsel and Respondent filed
position statements.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record as a whole, the
decision of the United States Court of Appeals for the
Second Circuit remanding the proceeding, and the
statements of position and, for the reasons set forth
below, has decided to affirm herein its initial Decision
and Order.
The unlawful labor practices found by the Board
and the reviewing court establish that on January 19,
1976,J the Union had acquired valid union authoriza-
tion cards from a majority of the unit employees and
tendered a request for recognition which Respondent
declined to answer. In late January, Respondent's
president, Giorgianni, initiated Respondent's 8(a)(1)
misconduct by interrogating employees as to "who
signed for the Union"; by subjecting employee Fran-
qui to a second similar interrogation; and by conduct-
'236 NLRB 1700.
' 602 F.2d 1100 (1979).
247 NLRB No. 42
ing individual meetings with Franqui and employee
Gavin wherein he stated his unalterable opposition to
the Union and also admonished Gavin that the union
situation could be handled "one of two ways"--his
way or by "resort to other measures .... I have the
muscle to take care of it," and by declaring to Franqui
that if not done "his way ... I know the right kind of
["muscle"] people but I am not going to do that. What
I will do is sit down and talk with you guys."
On February 2, the parties entered into a consent
election agreement in Case 29-RC-3282 which sched-
uled an election for February 24. Around the time of
entry into the agreement, Giorgianni conducted a
meeting of the unit employees where he first assured
them that "the union situation" had no bearing on
their job security, and then flatly warned them that if
they decided in favor of union representation he
"would have to dock them for being late," which he
was not then doing, and that his friendly relationship
with them "would not be the same . . . [and] in the
future would be strictly by the book"; i.e., the
bargaining agreement. He stated that such an agree-
ment "probably" would provide for a 40-hour work-
week without the overtime and driver compensation
pay benefits they then were receiving, that "most
likely" such a result would require him to hire
additional employees and institute additional shifts to
man the trucks, and that this in turn would result in
less work for them and the abolition of the company
practices of assigning a truck to each of the drivers
and allowing them to take their trucks home at the
end of the workday. During the meeting Giorgianni
also ascertained that the employees wanted, and the
Union intended to seek for them, various medical
benefits, work uniforms, wage increases, and improve-
ments in their vacation, sickness, and other benefits.
This prompted him to remark that while he would not
make any promises because of the pending election he
nevertheless "would consider and think about all the
demands."
Although the Administrative Law Judge found no
impropriety in Giorgianni's conduct, we concluded
that Giorgianni's explicit warnings that unionization
would bring a loss of present benefits and the
imposition of stricter working conditions violated
Section 8(a)(1), that his "prediction" of probable
adverse contractual terms and working conditions was
not based on objective facts from which he could
convey a reasonable belief as to demonstrably probable
consequences of unionization, and that by implicitly
equating such adversities with a union election victory
Respondent further violated Section 8(a)(1). We also
found that Respondent's promise to "consider and
think about" the employees' demands, which the
I All events occurred in 1976.
353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union intended to push, constituted direct dealing
with the employees and a repudiation of its bargaining
obligation, and violated Section 8(a)(1) and (5) of the
Act.
Approximately 2 weeks prior to the election, the
employees sought and obtained a meeting with Giorgi-
anni where they expressed error in seeking union
representation, which they then offered to reject if
Giorgianni would meet their demands concerning
guaranteed sick pay, hospitalization, work uniforms,
and a wage increase. Giorgianni again asserted that he
could not make any promises because of the forthcom-
ing election and then proceeded to do so through
direct bargaining with the employees by (1) declaring
that he "would" continue his existing policy of paying
for sick days at his discretion; (2) promising that he
"would look into" hospitalization plans; (3) indicating
his agreement to supply work uniforms by stating that
the uniforms "would" serve as "good advertisement
for our company"; and (4) promising to rectify an
allegedly long-delayed wage revision by telling the
employees that "I would talk to [them] individually
. . . and give men [wage] increases, whoever I felt
deserved an increase." We found that those statements
were affirmative promises of benefit, that Respondent
made those commitments as inducements for its
employees to reject the Union, in violation of Section
8(a)(l), and that, by dealing directly with the employ-
ees rather than with the Union, Respondent again
violated Section 8(a)(5) of the Act.
We found that Respondent further violated Section
8(a)(l) when, a few days prior to the election,
Giorgianni renewed his threat of physical violence by
telling employee Passantino that "we don't need a
union around here ... there are two ways we can go
about this thing. We can do it my way or we can use
muscle. I have the power to do that ... union or no
union I am the boss . . . I will take care of you guys
one at a time."
In our initial Decision, we categorized Respondent's
conduct as pernicious and deserving of a bargaining
order. The legitimacy of that remedy, we believe, is
well founded, for even assuming, arguendo, that
Respondent's violations of the Act are insufficient to
place this proceeding in the category of exceptional
cases described by the Supreme Court in N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969), and
assuming further that Respondent's violations cannot
be characterized as "outrageous," they are at least
sufficiently serious and extensive, and their effects so
lingering, that they fall within the second category of
"less extraordinary cases marked by less pervasive
practices which nonetheless still have the tendency to
undermine majority strength and impede the election
processes." Gissel, supra at 613-614.
Here, Respondent deliberately embarked upon a
course of unlawful conduct designed to convince its
eight unit employees that their demands would be met
through direct dealing with Respondent, and that
union representation would in no way be advanta-
geous to them. The Supreme Court long has recog-
nized that even an unsophisticated employee is quick
to perceive "the fist in velvet glove" implicit in the
carrot and stick approach utilized by Respondent.4
The results of that approach, and the clear impact
upon the employees, are manifest by the employees'
complete capitulation to Respondent just 2 weeks
prior to the election when they expressed error to
Respondent in seeking union representation which
they then offered to reject in return for certain
concessions which they wanted and which, Respon-
dent knew, the Union intended to seek for them if
successful at the polls. The designed effect was to leave
the Union without any function or purpose and to
convince the employees that their desired goals could
be achieved only without the Union. Thus, Respon-
dent's conduct so thoroughly chilled its employees'
desire for union representation as to cause them to
reject the election process and, along with it, their
freedom of choice.
Experience has shown that an employer's unlawful
conduct is magnified when directed at a small number
of employees, such as here. Given both the nature of
Respondent's preelection conduct and the clear and
decisive impact thereof upon the employees, it is
reasonable to infer that employee support for the
Union, once dissipated, would long remain dormant,
and that the enthusiasm for union representation
formerly displayed by them has been, and will
continue to be in the foreseeable future, dampened or
indeed eliminated as has already been the case. In our
view, the impact of Respondent's conduct on the
employees would continue to influence their choice in
a rerun election, for they have already shown that they
drew 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."
N.LR.B. v. Exchange Parts, supra at 409. Inasmuch
as Respondent not only thwarted the representation
desire of its employees and, in the process, intentional-
ly caused the election process to be aborted, the odds
for a free choice in a rerun election are, at best,
minimal. It is obvious to us, therefore, that our
traditional remedies cannot eradicate the impact or
lingering effects of Respondent's actions.
We fully agree with the court that "[b]argaining
orders are not immune from the great principle that
' N.LR.B. v. Exchange Parts Co.. 375 U.S. 405 (1964).
354
JAMAICA TOWING, INC.
like cases must receive like treatment," or else the
discrepancy must be explained. See N.L.R.B. v.
General Stencils, Inc., 438 F.2d 894, 904-905 (2d Cir.
1971). We also agree, as noted by the Court, that this
case does not include the factors present in the
hallmark type of case where bargaining orders issue,
such as discharge for union activity or direct threats to
close or curtail operations. Other types of conduct
substantially similar to that involved herein, however,
while perhaps less dramatic in nature, nevertheless can
and do affect employees to such an extent that a
bargaining order is equally warranted,' and has been
ordered with judicial approval.' Such severity of
impact is graphically demonstrated here by the effect
of the misconduct in causing the employees to
repudiate the Union prior to the election.
In its remand, the court noted the post-decisional
factors of a substantial employee turnover since the
commission of the unfair labor practices as well as the
passage of time since issuance of our Decision herein,
and suggested that the prejudicial impact of the
unlawful conduct may have been dissipated sufficient-
ly to permit a fair rerun election. We respectfully find
no such dissipation.
Bargaining orders have two basic purposes-to
protect employee sentiment reached at the time of
card signing by a majority of unit employees and to
Tipton Electric Company and Professional Furniture Corporation, 242
NLRB 202 (1979): Honolulu Sporting Goods Co.. Ltd.. a ub.idiary of Zale
Corporation. 239 NLRB 1277 (1979); Red Barn Systen. Inc.. 224 NLRB 1586
(1976): Bookland. Inc.. 221 NLRB 35 (1975); Skaggs Drug Centers. Inc.. 197
NLRB 1240(1972); International Harvester Company. 179 NLRB 753 (1969).
' N.L.R.B. v. WKRG-T Inc., 470 F.2d 1302 (5th Cir. 1973); N.LR.B. v.
Colonial Knitting Corp.. 464 F.2d 949 (3d Cir. 1972); N.LR.B. v. Renner
Plumbin& Heating & Air Conditioning, Inc., 437 F.2d 893 (4th Cir. 1971);
deter an employer's future misbehavior.' The validity
of a bargaining order, therefore, properly rests on an
evaluation of the situation as of the time the unlawful
conduct was committed, and to delete a bargaining
order on the basis of employee turnover would reward,
rather than deter, an employer guilty of unfair labor
practices committed during the preelection period.' To
hold otherwise is "to put a premium upon continued
litigation by the employer." 9
As to the passage of time, the delay hardly has
denied justice to the wrongdoer, for during the period
of the delay it has enjoyed the fruits of its miscon-
duct-misconduct which was directed precisely at
avoiding the bargaining obligation it still seeks to
avoid. o
Accordingly, we are persuaded that the pervasive-
ness and lingering effects of Respondent's unlawful
conduct cannot be exorcised by the imposition of a
traditional remedy and, therefore, we shall affirm our
initial Order in its entirety.
ORDER
Based on the foregoing, and the entire record in this
proceeding, the National Labor Relations Board
hereby affirms its Order issued in this proceeding on
July 19, 1978, reported at 236 NLRB 1700.
Texaco, Inc. v. N.L.R.B.. 436 F.2d 520 (6th Cir. 1971); N.LR.B. v. Brown
Specialty Company, 436 F.2d 372 (7th Cir. 1971); N.LR.B. v. The Mather
Company. Fluorotec Division. 432 F.2d 944 (6th Cir. 1970).
' N.L.R.B. v. Dixisteel Buildings, Inc.. 445 F.2d 1260 (8th Cir. 1971).
' Ibid; Ex-Cell-O Corporation v. N.LR.B.. 449 F.2d 1058 (D.C. Cir. 1971);
Glomac Plastics. Inc.. 241 NLRB 348 (1979).
'N.LR.B. v. L B. Foster Company, 418 F.2d 1. 4-5 (9th Cir. 1969).
D Cf. Glomac Plastics. Inc.. supra.
355