Kevah Konner, Inc.

National Labor Relations Board - Board Decisions

May 19, 1981

256 N.L.R.B. 67 (N.L.R.B. 1981)

KEVAH KONNER, INC. 67
Kevah Konner, Inc. and Amalgamated Local Union
355. Case 22-CA-9536
May 19, 1981
DECISION AND ORDER
On January 29, 1981, Administrative Law Judge
James F. Morton issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
brief, and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Kevah Konner,
Inc., Pine Brooke, New Jersey, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Laws Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT ask you to speak directly
with our officers to secure satisfaction of any
of the demands you have as to your hours,
wages, or other working conditions and WE
WILL NOT inform you that we will not talk to
any representative of Amalgamated Local
Union 355 about such matters.
WE WILL discharge or fail or refuse to rein-
state any of our employees because they have
joined or supported Amalgamated Local
Union 355.
WE WILL NOT refuse to recognize and bar-
gain with Local 355 as the exclusive repre-
sentative of all our service employees.
256 NLRB No. 8
WE WILL NOT change any work rules to dis-
courage any of our employees from joining or
supporting Local 355.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you with respect to
your rights under Section 7 of the National
Labor Relations Act, as amended.
WE WILL, upon request, bargain in good
faith with Local 355 as to the wages, hours,
and other terms of employment of our service
employees.
WE WILL offer Allan Krzastek and Ronald
Crane immediate and full reinstatement to
their former jobs or, if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or any
other rights or privileges previously enjoyed,
and WE WILL make them whole for any loss of
earnings they may have suffered as a result of
the discrimination against them, plus interest.
WE WILL write Ronald Crane to inform him
that he need not punch the timeclock and that
he can use our telephone for personal calls as
he was allowed to do before he took part in
the strike called by Local 355.
KEVAH KONNER, INC.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge: On
October 26, 1979, Amalgamated Local Union 355, herein
called the Union, filed the unfair labor charge in this
case against Kevah Konner, Inc., herein called Respond-
ent, alleging violations of Section 8(a)(l), (3), and (5) of
the National Labor Relations Act, as amended (herein
called the Act). The complaint issued against Respondent
on December 3, 1979. Respondent filed an answer and
also a motion for a bill of particulars which was denied
by order of the then Acting Chief Administrative Law
Judge. The hearing was held before me in Newark, New
Jersey, on July 24 and 25, 1980.
Summary of the Issues
The issues in this case as framed by the pleadings as
amended at the hearing are:
(a) Whether Respondent, in violation of Section 8(a)(1)
of the Act, solicited grievances from and promised bene-
fits to its employees to discourage them from supporting
the Union or informed them that it would be futile for
them to join the Union?
(b) Whether Respondent, in violation of Section
8(a)(l) and (3), discharged an employee, failed to recall
another to its employ, and changed the working condi-
tions of certain of its employees because they joined and
supported the Union?
Kevah Konner, Inc. and Amalgamated Local Union
KEVAH KONNER, INC
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Whether Respondent engaged in such serious
unfair labor practices as to require it as a remedy, to rec-
ognize and bargain with the Union as the representative
of its service employees, and ancillary to that matter,
whether a unit of those service employees is appropriate
for collective bargaining and whether the Union had
been selected by a majority of those employees to repre-
sent them in collective bargaining?
(d) Whether Respondent, in violation of Section
8(a)(1) and (5), refused to bargain collectively with the
Union as the representative of its service employees.
Upon the entire record in this case,' including my ob-
servations of the demeanor of the witnesses, and after
full consideration of the briefs filed by counsel for the
General Counsel and by counsel for Respondent, I make
the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
As established by the pleadings, Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and the Union is a labor
organization as defined in Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Appropriate Unit
Respondent sells, services, and repairs automobiles,
buses, and trucks at its dealership in Pine Brook, New
Jersey, and also provides schoolbus and charter bus serv-
ices. In September and October 1979, Respondent em-
ployed two mechanics in its auto department, seven me-
chanics in its bus department, four mechanics in its truck
department, two employees in its body shop department,
three in its parts department, and one in its camper de-
partment. As noted below, the camper department was
closed on or about April 1, 1980, and the one individual
employed in that department was transfered to the body
shop department.
The General Counsel contends that these service em-
ployees comprise a unit appropriate for purposes of col-
lective bargaining. Respondent contends that that unit is
inappropriate and urges instead that, at all times material
herein, each of the above-named five departments is ap-
propriate. 2 It is apparent that, if Respondent's unit con-
tention were held to have merit, the one person em-
ployed in the camper department, as it existed in late
1979 until its demise in early 1980, could not have been
represented for collective-bargaining purposes in view of
the long established policy against one person units.
As the evidence in this case establishes that the service
employees perform the usual mechanical and mainte-
nance work in the automotive field; that they use the
tools and other equipment normally associated with such
I Errors in the transcript have been noted and corrected
2 Respondent initially denied the appropriateness of the overall five de-
partment unit urged by the General Counsel as appropriate. At the hear-
ing Respondent first indicated that its 180 bus drivers must be included in
any unit found appropriate; later, Respondent stated that those drivers
could be included or excluded from the unit. Its final position was hat
only separate departmental units of its service employees are appropriate
work and that they receive the same fringe benefits and
work substantially the same hours; as a dealer's service
employees are the analogue of a production and employ-
ee unit in the manufacturing area and thus is presump-
tively appropriate;3 as the parties have expressly agreed
to exclude sales and clerical employees; as it is evident
that the remaining employees of Respondent are virtually
all part-time operators of school buses or charter buses
and that those operators have minimal contacts with the
service employees and as no labor organization is seeking
to represent employees in a different unit, I conclude
that a unit comprised of all service employees employed
by Respondent at its facility in Pine Brook, New Jersey
excluding all office clerical employees, sales employees,
drivers, guards, and supervisors, as defined in the Act, is
appropriate for the purposes of collective bargaining.
B. The Union's Majority Status
Eight of Respondent's service employees signed au-
thorization cards for the Union at a meeting in a diner in
Fairfield, New Jersey, on September 24, 1979. (All dates
hereafter are for 1979 unless noted otherwise.) Two days
later, three more of Respondent's service employees
signed union authorization cards. Another service em-
ployee signed a union card on September 27. Altogether,
12 service employees had signed union cards by that
date.
Respondent's payroll records for the period September
21 to 27 list the names of 19 service employees, 4 includ-
ing the 12 who had signed cards for the Union.5 It is ob-
vious and I so find, that the Union represented a major-
ity of Respondent's service employees as of September
27 the date the strike began as discussed below and the
date immediately prior to the alleged commission of the
unfair labor practices, also as discussed below.
C. The Union's Demand for Bargaining
On September 27, two of the Union's representatives,
Howard Kleinberg and Frank D'Isa, met with Respond-
ent's corporate secretary, Norman Konner, who has also
been identified in the record as Respondent's owner.
Kleinberg, and Konner are in essential agreement as to
what transpired then.6 The Union asked that Respondent
3 Bob Bundy. Inc., 205 NLRB 336 (1973); Austin Ford. Inc., 136 NLRB
1398 (1962).
4 One of the 19 names was that of Dominick Logge. He was a high
school student working with Respondent as part of a work-study pro-
gram. He received none of the fringe benefits given the other service em-
ployees. The General Counsel would exclude him from the service unit
as a temporary employee and as one who lacked a sufficient community
of interest with the other service employees It is unnecessary to pass
upon his status then as the Union's majority status would not be affected
by his unit placement.
5 Respondent asserts that one of the card signers, Don Penque, was a
supervisor. From January 1979 to April 1980 he ssas the only employee
in Respondent's camper department. The record is devoid of evidence of
supervisory authority possessed by him. In April 1980, he was transferred
to work in the body shop department I conclude that he was not a su-
pervisor as defined in the Act.
I Kleinberg testified that he asked Konner to recognize the Union as
the representative of the service employees. Konner testified that the
Union asked to represent the service department employees which he
said then numbered 18. In its brief, Respondent points to other aspects of
Continued
KEVAH KONNER, INC. 69
recognize the Union as bargaining agent for the approxi-
mately 18 service employees and Respondent declined to
do so. The 12 employees who had signed union cards
then struck and picketed outside Respondent's premises.
D. The Alleged Independent 8(a)(1) Violations
1. The September 28 incident
Three of General Counsel's witnesses-Louis Dale
Kincaid, Donald Penque, and James Larkin-testified
that, while they were picketing at the rear of Respond-
ent's premises on September 28, they were approached
by Respondent's bus shop manager, Robert Weiser, who
asked them why they did not go to see Norman Konner
and who also told them that Konner wanted to know
what they wanted. These three witnesses further testified
that Weiser then informed them that Konner would deal
with them but that he would not deal with the Union.
Respondent did not call Weiser to rebut the foregoing
testimony. The pleadings, as amended, establish that
Weiser is a supervisor as defined in the Act and is an
agent of Respondent. The record discloses that he is in
charge of the bus shop department and reports directly
to Norman Konner. I credit the uncontroverted accounts
of the General Counsel's witnesses.
2. The October 4 incident
Jerry Ciccolella, a truck mechanic in Respondent's
employ testified, without contradiction, that he went to
Norman Konner's office on October 4 and that Norman
Konner told him there that he, Konner, did not want a
union and that the service employees should come to
speak to him if they have any problems which their su-
pervisors could not solve. Ciccolella further testified,
also without contradiction that Konner said that he,
Konner, did not realize what was going on and that
Konner also told Ciccolella that he should speak with
the other employees to see what they want to do. I
credit Ciccolella's account.
Konner's testimony which pertain to the approximately 180 part-time
schoolbus and charter bus drivers in its employ. In particular, Konner
testified that D'Isa visited him again and apparently before the Union
presented its written demands for the 18 service employees as discussed
later in this Decision and stated that he was also going after those driv-
ers. Konner testified that D'Isa flipped through about 40 cards he held in
his hand then. There is no evidence that the Union demanded recognition
as bargaining agent of those drivers. I note that the Union had filed a
representation petition requesting the service employee unit and with-
drew that petition when the complaint issued in this case. The Union did
not file a petition seeking to represent the drivers. I am at a loss in trying
to understand the significance of the testimony offered by Respondent
that, at some point, the Union's representative advised that he was orga-
nizing the drivers too. If that testimony was submitted to establish that
Respondent had a good-faith doubt, that is no longer a relevant consider-
ation respecting whether or not a bargaining order remedy may be war-
ranted. If that testimony was offered to suggest that only an overall em-
ployee unit is appropriate, I note that no one is urging such a unit con-
tention. Respondent, as discussed elsewhere has urged that each of its
five service departments is appropriate for bargaining. If the testimony
was offered to show that the Union had abandoned its claim that it repre-
sented the 18 service employees as a separate unit, it would have to be
rejected as the overall testimony is unequivocal that the Union's efforts
were directed in virtually their entirety towards securing a contract for
the unit of 18 service employees.
3. The October 8 incident
Alan Krzastek, one of Respondent's auto mechanics,
testified that on October 8, the manager of his depart-
ment, David Porter, told him and two other service em-
ployees while they were picketing that they should see
Norman Konner, that Konner would meet their de-
mands, and that Konner just did not want a union.
Krzastek identified those two other service employees
present with him then as Carl Granese and Al Ciccolella.
Granese's testimony corroborated Krzastek's account as
to what Porter had said. Granese, however, identified
the third service employee who was present then as
Peter Rymwid and not Ciccolella. In his testimony, Cic-
colella did not refer to any incident on October 8.
Rymwid who left Respondent's employ in late 1979 did
not testify at the hearing.
Porter, according to the amended pleadings in this
case, is a supervisory agent to Respondent. Further, the
record testimony discloses that he is in charge of Re-
spondent's auto department and that he reports directly
to Norman Konner.
Despite the confusion in the identity of the third serv-
ice employee present, I credit the accounts of Krzastek
and Granese respecting what Porter told them on Octo-
ber 8, particularly as Porter did not controvert their ac-
counts.
4. The October 10 incident
Granese, one of the service employees who testified to
the incident of October 8, above, also testified that he
had heard that Norman Konner had told the Union that
he would consider the written demands the Union had
given to him.7 Granese related that he then assumed that
Konner would recognize the Union. On October 10, ac-
cording to Granese, he asked Konner if he had recog-
nized the Union. Granese testified that Konner told him
that he had not recognized the Union and that he did not
want a union in his shop. Granese testified that he then
asked Konner if he would deal directly with the employ-
ees instead of the Union and that Konner, in response,
nodded his head in the affirmative. Konner ended the
discussion by telling Granese that the employees could
come back as a group.
Konner testified for Respondent, as noted earlier, but
he did not allude to this incident in his testimony. I
credit Granese's account.
E. The Alleged Discriminatory Acts
On the morning of October 5, representatives of the
Union, accompanied by service employees Ronald Crane
and Gene Koepfler visited Konner in his office. In that
discussion, the Union asked Konner if he would consider
the Union's bargaining demands if they were submitted
to him. Konner responded that he would. Later that day,
the union representatives met with the striking employ-
ees to draft the demands. Having done this, the Union
selected one employee from each of the five service de-
' This referred to a meeting on October 5 at which the union repre-
sentative had presented to Konner a list of demands the Union prepared
in consultation with the service employees.
KEVAH KONNER, INC.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partments. Those employees were Ronald Crane from
the parts department, Alan Krzastek from the auto de-
partment, Jerry Ciccolella from the truck department,
Louis Kincaid from the bus department, and Donald
Penque from the camper department. These five striking
employees accompanied the union representatives to
Konner's office on October 5 to present him with the list
of demands for the service employees. Konner accepted
the list and said he would look them over.
From then and until October 10, it appears that
Konner did not advise the Union directly as to its posi-
tion on the list of demands. On October 10 the striking
employees, through the Union, offered unconditionally
to return to work. All but Alan Krzastek were reinstat-
ed. Krzastek was one of the two mechanics in Respond-
ent's car department when the strike began. It is undis-
puted that a replacement mechanic had been hired,
during the strike, in that department. It is also noted that
the General Counsel asserts, and Respondent agrees, that
the strike was an economic strike.8
One of the striking employees who was reinstated on
October 11 was Peter Rymwid. He and Krzastek were
the only mechanics in the car department when the
strike started; Rymwid had started working for Respond-
ent as a car mechanic about 3 or 4 months after Krzastek
did. There was no evidence adduced at the hearing that
seniority was a factor which Respondent takes into ac-
count in job assignments. Respondent offered no explana-
tion as to why it had chosen Rymwid for reinstatement,
rather than Krzastek.
The General Counsel contends that Krzastek would
have been selected for reinstatement, instead of the less
senior Rymwid, but for the fact that Krzastek attended
the meeting between the Union and Norman Konner on
October 5 (when Krzastek was one of five striking em-
ployees representing their respective departments).
I find that the evidence is insufficient to establish that
Respondent in selecting Rymwid, rather than Krzastek,
for reinstatement on October 11 thereby unlawfully dis-
criminated against Krzastek. For all I know, Rymwid
may have been a more productive or more capable
worker than Krzastek. It seems to me that it was incum-
bent upon the General Counsel to offer some evidence to
discount those explanations before Respondent must
proffer its reason.
I note that the basic argument made by the General
Counsel respecting the allegation that Krzastek was dis-
criminatorily denied reinstatement is not that another
striker, Rymwid, was given preference in being reinstat-
ed but rather that, when job openings occurred in the
car mechanic's classification, Krzastek was not recalled
and that new employees were hired in his stead. That
contention is supported by Respondent's personnel re-
cords. Thus, a car mechanic was hired on October 19.
Respondent's records also note, for that same day, that
the word "termination" appears alongside Krzastek's
name to indicate the status of his employment with Re-
spondent. Still other car mechanics were hired after that
date, e.g., another was hired on October 26 and another
I note that it is not contended that the alleged independent violations
of Sec. 8(a)(1), the facts as to which have been set out earlier, prolonged
the strike to convert it into an unfair labor practice strike.
in February 1980. As it is evident that there were job
openings as of October 19 and later to which Krzastek
could have been reinstated but was not and as Respond-
ent's personnel records indicate that his employment
status with it was terminated as of October 19, 1 must
conclude that Respondent's failure to reinstate Krzastek
to his position of car mechanic was in derogation of his
reinstatement rights as an economic striker who had ap-
plied unconditionally to return to work.9
3. Alleged discrimination as to Ronald Crane
Crane began working for Respondent in May 1979 in
its parts department. He kept his own records, on time-
sheets provided him, of the hours he worked and used
the telephone in the parts department for personal as
well as business calls. About a month after he had began
working for Respondent, he met a friend at a tavern near
Respondent's premises. This occurred during a break
period. Norman Konner observed him there and in-
formed him later that day that he was not to drink
during working hours. Crane has complied with that in-
struction.
Crane had signed a card for the Union in September,
had participated in the strike, and on two occasions had
accompanied union representatives when they met with
Norman Konner during the strike. Two days after Crane
and the other strikers returned to work, Crane was in-
structed by the manager of the parts department, Leon
Hesapis, that he had to punch the timeclock instead of
keeping his own timesheet and that he could not use Re-
spondent's telephones for personal calls. The other parts
department employee did not go on strike and he has
continued to keep his own timesheet and has not been re-
quired to punch the timeclock. Further, other employees,
including some in other departments who had participat-
ed in the strike, have been allowed to use Respondent's
phones for their personal calls.
The following recital is based upon Crane's uncontro-
verted testimony which I credit. On or about October
14, Crane asked Konner whether the fact that he had to
punch the timeclock was due to his having been on
strike and whether his being forbidden to make personal
calls was also due to the strike. Konner replied by saying
that there were a lot of contributing reasons. Konner
said that punctuality was one. (Crane had never been
warned as to his attendance.) Konner also told Crane
that he had found him in a tavern once during working
hours-a reference to the incident that had occurred 4
months previously.
In view of the suddenness of the changes in the
method of recording his working times and his use of
Respondent's telephones, the timing of those changes in
relation to the end of the strike, the disparate treatment
accorded Crane as compared to that given the parts de-
g Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1970). In its brief, Respondent urges
that the General Counsel failed to prove that Respondent did not offer
Krzastek reinstatement. Krzastek testified that he has not yet been taken
back by Respondent. No doubt the testimony could have been more pre-
cise but it seems to me that the clear sense of the testimony is that he was
never offered his job back. Respondent had the opportunity to rebut this
but did not do so
KEVAH KONNER, INC. 71
partment employee who did not strike, the patently pre-
textual nature of the reasons proferred by Respondent
for making the changes and as is apparent from the testi-
mony credited earlier in this Decision that Konner
would take care of any work problems Crane or the
other strikers may have provided they abandoned the
Union and that Respondent had made it clear that it was
futile for the service employees to support the Union, I
find that those changes were instituted by Respondent
because Crane joined and supported the Union.
About a week after Crane had returned to work from
the strike, he became ill. He testified that he missed 4
days work because of that illness and that on each of
those days either he or a woman friend called the parts
department manager to inform him that he, Crane, was
not able to come to work because of his illness. His parts
department manager simply responded that this was all
right with him. On the afternoon of the fourth day he
received a message to call Norman Konner. Crane called
Konner who told him simply that his services were no
longer required. Konner gave no reason. On the basis
that Respondent may have used Crane's illness as a pre-
text to discharge him, the General Counsel subpenaed
Respondent's attendance records for service employees.
These show that employees have been absent for periods
longer than 4 consecutive days, because of illness, with-
out any effect on their employment tenure. For example,
one employee was absent due to illness for 6 straight
days in June 1979 and for 4 more days during the first
week of July 1979; yet he has remained in Respondent's
employ.
The disparate treatment accorded Crane, his summary
and unexplained discharge, the timing of his discharge in
relation to the end of the strike, the factors cited above
respecting the other instances of discrimination all estab-
lish that Crane's discharge was based solely on Crane's
support for the Union. I note that Respondent has not
offered any reason for Crane's discharge. Its position, as
expressed in its brief is that the General Counsel has
failed to make out a prima facie case. For the reasons set
out above, I reject that contention. o
4. Alleged discrimination among the truck
department employees.
All of the employees in the truck department signed
cards for the Union and took part in the strike. The testi-
mony is uncontroverted that a day or two after they re-
turned to work from the strike, their supervisor told
them that they could not leave the premises during
10 At fn. 13 of Respondent's brief, there is a statement to the effect
that I had reserved decision on Respondent's motion to dismiss the alle-
gations of the complaint based on its view that the General Counsel had
failed to prove a prima facie case. Respondent further states that it was
thus not obligated to come forward with evidence until its motion is dis-
posed of The record is clear, however, that Respondent's motion to dis-
miss was in fact denied. Perhaps Respondent is simply now urging me to
reconsider my ruling as I had indicated that my ruling was without prej-
udice to my consideration of the ultimate merits of the overall case upon
its completion. Insofar as Respondent's remarks may be construed as a
motion to reconsider my ruling, I shall note simply that I have consid-
ered all of the relevant testimony and conclude that the General Counsel
has both proved a prima facie case and has discharged his burden of es-
tablishing the violations by a preponderance of the credible evidence.
working hours. (Before the strike, their practice had
been to leave the premises at break times and at lunch.)
They were further advised that same day that they could
not leave by the rear door but only by the front door.
Their supervisor told them, when asked for an explana-
tion for those changes, that an air gun was missing. A
few days later one of the employees placed an air gun on
the supervisor's desk. " Neither of the instructions re-
stricting their movement were orally rescinded. The
truck department employees abided by the new restric-
tions for several months before they reverted gradually
to their prior practice.
All of the factors noted above respecting the changes
made in the parts department for Ronald Crane upon his
return from the strike to work apply to these changes in
the truck department and satisfy me that the General
Counsel has made out a prima facie case. Respondent did
not come forward with any evidence towards rebutting
any of the material aspects upon which that finding was
based. Under the applicable guidelines, 12 I therefore find
that the changes imposed on the truck department em-
ployees on or about October 13 were done because the
employees in that department joined and supported the
Union.
F. The Requestfor a Bargaining Order as a Remedy
and the Alleged Unlawful Refusal of Respondent To
Recognize and Bargain With the Union
I have found that, at all times material to the issues in
this case, the Union has been selected by a majority of
Respondent's service employees to represent them, that a
unit comprised of those employees is appropriate for col-
lective bargaining, and that Respondent has committed a
series of acts since on or about September 28, 1979, in
order to interfere with, restrain, and coerce these em-
ployees respecting their right to be so represented.
I now further find that the issuance of a bargaining
order is warranted to remedy those acts as those acts had
a tendency to undermine the Union's majority status and
to impede the election processes and as there is only a
slight possibility that the Board's traditional remedies
could erase their impact and insure a fair election.'3 Re-
spondent's urging these employees to deal directly with
its principal official, without the Union, and its making it
clear that they would only in that way obtain solutions
to the very matters as to which they had sought the
Union's representation go directly to the heart of the
election process. Respondent was not content to stop
there but instead impressed upon these employees its re-
solve that they would never have the Union as their rep-
resentative by imposing patently discriminatory condi-
tions upon the Union's supporters when they returned
from the strike and it underlined that resolve to them, in
case they still did not recognize the futility of their seek-
ing representation by the Union, by discriminatorily dis-
' One of the General Counsel's witnesses testified that another em-
ployee whose identity he could not recall found "the missing air gun
and put it on the supervisor's desk. There was no testimony from Re-
spondent's witnesses that any air gun had been removed
12 Wright Line. . Dvision of Wright Line. Inc., 251 NLRB 10H3 (1980)
3 NI.R.B. v. Gissel Packing Co., 395 U S 575. 614 (196).
KEVAH KONNER, NC.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging one of the employees who had struck and by
ignoring another who had been replaced during the
strike but who had sought reinstatement although it is
obvious that job openings existed to permit his ready
recall to employment.
As it is also apparant that the Union had demanded
recognition as bargaining agent on or about September
27, 1979, and that Respondent has failed and refused
since that date to honor that request and in view of my
findings above that a bargaining order is warranted, I
find also that Respondent has unlawfully failed and re-
fused to bargain collectively with the Union as the exclu-
sive representative of its service employees since on or
about September 27, 1979.14
CONCLUSIONS OF LAW
1. Kevah Konner, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Amalgamated Local Union 355 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All service employees employed by Respondent at
its facility located in Pine Brook, New Jersey, excluding
all office clerical employees, drivers and dispatchers,
sales employees, professional employees, guards and su-
pervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. By having filed and refused to recall Alan Krzastek
to its employment as a car mechanic since on or about
October 19, 1979, because of his actions on behalf of the
above-named labor organization, by having discharged
Ronald Crane on or about October 24, 1979, for the
same reason, by having on or about October 12, 1979, re-
quired Ronald Crane to punch a time clock and to re-
frain from using telephones in Respondent's parts depart-
ment for personal calls because of the same reason, by
having required its truck department employees since on
or about October 14, 1979, to use only the front door of
that department when leaving and to refrain from leav-
ing Respondent's premises at any time during working
hours because those employees had joined and supported
the above-named labor organization, Respondent has en-
gaged in, and is engaging in, unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(3) and
(1) and Section 2(6) and (7) of the Act.
5. By having urged its service employees to present
their grievances directly to Respondent's corporate sec-
retary for favorable results and to abandon their support
of the above-named labor organization and by having in-
formed these employees that Respondent would not
permit the above-named labor organization to represent
them for the purposes of collective bargaining, Respond-
ent has engaged in and is engaging in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
6. It is appropriate, to remedy the foregoing unfair
labor practices, to require Respondent to bargain collec-
tively, upon request, with the above-named labor organi-
zation as the exclusive representative of all service em-
14 Trading Port, Inc., 219 NLRB 298 (1975).
ployees employed by Respondent at its Pine Brook, New
Jersey, facility excluding all office clerical employees,
sales employees, bus drivers and dispatchers, professional
employees, guards, and supervisors as defined in the Act.
7. By having failed and refused to bargain collectively
with the above-named labor organization since on or
about September 27, 1979, respecting hours, wages, and
other terms and conditions of employment of the em-
ployees in the unit described above in paragraph 6, Re-
spondent has engaged in, and is engaging in, unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
As I have found that Respondent has, since October
19, 1979, unlawfully failed and refused to offer Allan
Krzastek reinstatement to employment as mechanic in its
auto department and that it, on October 24, 1979, discri-
minatorily discharged Ronald Crane from its employ and
had for about 2 weeks previously to that date imposed
discriminatory conditions upon him while at work, I
shall recommend that Respondent be ordered to offer
them immediate and full reinstatement to their former
jobs, without prejudice to their seniority or other rights
and privileges and to write Ronald Crane at his home
address to inform him that it has rescinded its require-
ment that he punch a timeclock and its rule forbidding
him to use Respondent's telephones for personal calls. I
shall further recommend that Respondent be ordered to
make them whole for any loss of earnings they may have
suffered as a result of the discrimination against them by
payment to them of the amount they normally would
have earned from the dates above until the dates of Re-
spondent's offers of reinstatement, less net earnings, to
which shall be added interest to be computed in the
manner prescribed in F W. Woolworth Company, 90
NLRB 289 (1950); Florida Steel Corporation, 231 NLRB
651 (1977); and Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
As noted above, a bargaining order remedy is warrant-
ed and the same reasons that support that remedy require
a broad cease-and-desist order. 15
Upon the foregoing finding of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER' 6
The Respondent, Kevah Konner, Inc., Pine Brook,
New Jersey, its officers, agents, successors, and assigns,
shall:
lb S. L. Industries, Inc.. and Extruded Products Corp., 252 NLRB 1058
(1980).
'6 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
by Sec. 102.48 of the Rules and Regulations, be adopted by the Board
Continued
KEVAH KONNER, INC. 73
1. Cease and desist from:
(a) Telling its employees that they should talk directly
with its officials to obtain satisfaction of any problems or
demands they have respecting their hours, wages, or
other terms of employment.
(b) Telling its employees that Amalgamated Local
Union 355 cannot represent them for purposes of collec-
tive bargaining.
(c) Changing work rules for Ronald Crane, for the em-
ployees of its truck department, or for any employee or
imposing more onerous rules upon them in order to dis-
courage them from joining or supporting Amalgamated
Local Union 355.
(d) Discharging or refusing to reinstate Ronald Crane,
Allan Krzastek, or any other employee to discourage
them from joining or supporting Amalgamated Local
Union 355.
(e) Failing and refusing to recognize or to bargain col-
lectively with Amalgamated Local Union 355 as the ex-
clusive representative of a unit of all service employees
employed by Respondent at its Pine Brook, New Jersey,
facility excluding all office clerical employees, sales em-
ployees, bus drivers, and dispatchers, professional em-
ployees, guards, and supervisors as defined in the Act.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with Amalgamated Local Union 355 as the exclusive
representative of the employees in the appropriate unit
described above in paragraph (e) of this Order.
and become its findings, conclusions, and Order, and all objections there-
to shall be deemed waived for all purposes.
(b) Offer Allan Krzastek and Ronald Crane immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for
any loss of earnings they may have suffered as a result of
the discrimination practiced against them in the manner
set forth in the section of this Decision entitled "The
Remedy," and write Ronald Crane at his home address
to inform him that he is not required to punch a time-
clock and that he may use Respondent's telephone for
personal calls.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords relevant and necessary to a determination of com-
pliance with paragraph (b) above.
(d) Post at its Pine Brook, New Jersey, place of busi-
ness, copies of the attached notice marked "Appen-
dix."'7 Copies of said notice on forms provided by the
Regional Director for Region 22, after being duly signed
by Respondent's representative, shall be posted by it im-
mediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
I7 In the event that this is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
KE A :ON R N .7