Lower Bucks Cooling & Heating

National Labor Relations Board - Board Decisions

Jan 20, 1995

316 N.L.R.B. 16 (N.L.R.B. 1995)

16
316 NLRB No. 4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Member Cohen notes that the bad-faith bargaining in this case
occurred throughout the entire certification year. He therefore finds
it unnecessary to pass on the cited cases insofar as they hold that
the certification year is fully extended where the employer bargains
in bad faith for a portion of the certification year.
Lower Bucks Cooling & Heating, Inc. and Sheet
Metal Workers’ International Association,
Local No. 19, AFL–CIO. Cases 4–CA–21913, 4–
CA–22365, 4–CA–22469, and 4–CA–22502
January 20, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
On September 23, 1994, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
General Counsel filed an exception and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exception and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as modi-
fied.
In his exceptions the General Counsel requests a 1-
year extension of the certification year to remedy the
Respondent’s unlawful refusal to bargain in good faith.
We find merit in this exception.
The Respondent has from the outset of the certifi-
cation year bargained in bad faith and without an in-
tent to reach agreement. In these circumstances we
find it appropriate to modify the recommended Order
to include specific affirmative language extending the
certification year for a period of 1 year from the date
that good-faith bargaining begins. Bethea Baptist
Home, 310 NLRB 156, 157 (1993); Enertech Elec-
trical, 309 NLRB 896 fn. 1 (1992); Glomac Plastics
v. NLRB, 592 F.2d 94, 100–101 (2d Cir. 1979), enfg.
in pertinent part 234 NLRB 1309 fn. 4 (1978).1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Lower
Bucks Cooling & Heating, Inc., Croydon, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Add the following as paragraph 2(b) and reletter
the subsequent paragraphs.
(b) ‘‘Remove from the files of Joseph Carosi, Louis
Picuri, and Daniel White any reference to the Re-
spondent’s unlawful refusal to recall and reinstate
them, and notify Carosi, Picuri, and White in writing
that this has been done, and that the unlawful refusals
will not be used against them in any way.’’
2. Substitute the following for relettered paragraph
2(d).
‘‘(d) On request, bargain collectively in good faith
concerning wages, hours, and other terms and condi-
tions of employment with Sheet Metal Workers’ Inter-
national Association, Local No. 19, AFL–CIO, as the
designated representative of the employees in the
above-described appropriate unit and, if an understand-
ing is reached, embody it in a written, signed agree-
ment. The Union’s certification year shall extend 1
year from the date that good-faith bargaining begins.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To chose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to recall or reemploy or other-
wise discriminate against Joseph Carosi, Louis Picuri,
and Daniel White because they supported the Union.
WE WILL NOT require our service employees to have
their own vehicles or require them to sign a ‘‘noncom-
petition’’ clause or otherwise change their working
conditions without prior notice to Sheet Metal Work-
ers’ International Association, Local 19, AFL–CIO and
affording the Union the opportunity to bargain collec-
tively on behalf of the employees in the following unit:
All HVAC service technicians and service me-
chanics employed by Lower Bucks Cooling &
Heating, Inc., excluding all other employees, of-
fice workers, managers, guards, and supervisors as
defined in the Act.
WE WILL NOT bypass the Union and deal directly
with our unit employees with respect to benefits and
other terms or conditions of employment.
WE WILL NOT fail or refuse to bargain in good faith
with the Union on behalf of our unit employees.
17LOWER BUCKS COOLING & HEATING
1 The employees in the installation department were not included.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Joseph Carosi, Louis Picuri, and
Daniel White immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and we will make them whole for any
loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest.
WE WILL remove from our files any reference to our
unlawful refusals to recall these employees and notify
them in writing that this has been done and that the
unlawful refusals will not be used against them in any
way.
WE WILL reestablish the status quo ante and cancel
and destroy all ‘‘non-competition’’ forms executed by
our unit employees and cancel our policy requiring our
unit employees to have their own service vehicles.
WE WILL, on request, bargain collectively in good
faith concerning wages, hours, and other terms and
conditions of employment with the Union as the des-
ignated representative of the employees in the above-
described appropriate unit and, if an understanding is
reached, embody it in a written, signed agreement. The
Union’s certification year shall extend 1 year from the
date that good-faith bargaining begins.
LOWER BUCKS COOLING & HEATING,
INC.
David Faye, Esq., for the General Counsel.
William F. Kershner, Esq. (Pepper, Hamilton & Scheetz), of
Berwyn, Pennsylvania, for the Respondent.
Bruce E. Endy, Esq. (Spear, Wilderman, Borish, Endy, Spear
& Runckel), of Philadelphia, Pennsylvania, for the Union.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried on May 31, June 1 and 2, 1994, in Philadel-
phia, Pennsylvania. Upon charges filed by the Union, Sheet
Metal Workers’ International Association, Local No. 19,
AFL–CIO, a consolidated complaint issued on April 28,
1994, alleging that the Respondent, Lower Bucks Cooling
and Heating, Inc., violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act) by refusing to recall
three employees, because they supported the Union, by uni-
laterally bargaining with the unit employees, changing their
working conditions, and by engaging in certain conduct dur-
ing the negotiations with the Union which showed a failure
to bargain in good faith. The Respondent’s answer filed on
May 9, 1994, admitted the jurisdictional aspects of the con-
solidated complaint, but denied that the Company had en-
gaged in unfair labor practices.
Upon the record as a whole, including my observation of
the witnesses and the well written briefs filed by the General
Counsel, the Respondent, and the Charging Party, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Lower Bucks Cooling and Heating, Inc. (the Respondent
or the Company) is a Pennsylvania corporation located in
Croydon, Pennsylvania, where it is engaged in the installa-
tion and maintenance of heating, air-conditioning, ventilation,
and refrigeration systems, and in the fabrication of duct
work. With goods valued in excess of $50,000 directly to
points outside the State of Pennsylvania, the Respondent is
admittedly an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
David Ripka, its president and owner, is an admitted su-
pervisor within the meaning of Section 2(11) of the Act.
The Union, Sheet Metal Workers’ International Associa-
tion, Local No. 19, AFL–CIO, is admittedly a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. FACTS
On March 1, 1993, the Union was certified as the exclu-
sive bargaining representative of the following unit among
the employees of the Respondent:1
All HVAC service technicians and service mechanics
employed by Respondent; excluding all other employ-
ees, office employees, managers, guards and supervisors
as defined in the Act.
The union campaign began in late August 1992. At that
time, the Respondent employed six service department em-
ployees: Gary Bush, Francis Lepone, Louis Picuri, Joseph
Carosi, Peter Cassano, and Daniel White (Tr. 47–48, 105).
Carosi called Mark Summerville, the union organizer, on Au-
gust 31, 1992, and expressed the employees’ interest in being
represented by the Union. Summerville gave Carosi several
union authorization cards. He distributed them to all of his
fellow workers, except Bush who was known to be against
the Union. The five employees signed the cards and returned
them to Summerville in September 1992. Summerville subse-
quently met with the employees at a diner in Bristol, Penn-
sylvania, on October 7, 1992, for a briefing about the Union.
The employees visited the Union’s training center on Octo-
ber 13, 1992.
Sometime in October, Respondent’s president, David
Ripka, saw Picuri and Carosi at a deli near the plant and said
that ‘‘he believed it was his installers they [the Union] were
trying to organize’’ (Tr. 76, 105). The employees did not
reply.
In October, Ripka began to hold regular meetings with the
service department employees after work to discuss cus-
tomers, sales, or problems at work. During one meeting in
October 1992, Ripka told the group that he had heard about
the Union in his shop and that he suspected that the employ-
ees in the installation department were for the Union. At
similar meetings in late October and in November, he in-
formed the same group of service employees that he had dis-
covered that it was they, the service employees, who favored
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union, and that he wanted them to stop and to get their
cards back. He asked them what benefits they wanted. (Tr.
59–60, 77, 107.) The employees mentioned raises, health
benefits, training, better trucks, and uniforms. Ripka prom-
ised them the benefits if the employees abandoned their ef-
forts on behalf of the Union. He offered to prepare letters for
them to that effect.
In the meantime, on October 26, 1992, the Union had filed
its petition for representation of the service employees. The
notice was mailed to the Respondent on October 27, 1992.
At yet another weekly meeting with the service department
employees, employee Gary Bush proclaimed that he would
never sign a union card and that all the guys except him fa-
vored the Union. After Bush expressed his hostility toward
the Union with even more emphasis, Ripka told him, ‘‘Gary
will always have his job.’’ (Tr. 61, 79, 108.) Ripka, saying
that Bush was the only one who does not want the Union,
promised to fight for him and informed the employees gen-
erally that ‘‘he will never negotiate with the Union. He
would close his doors before he negotiated with Local 19.’’
(Tr. 61, 80, 109.) Ripka repeatedly said that he would never
negotiate with the ‘‘fucking union.’’ Ripka again urged the
employees to write to the Union to get their cards back and
stated that, on the advice of counsel, he was prohibited from
writing letters for them or assisting them to get their union
cards back. Stephanie Sloan, secretary and office coordinator,
testified that she had actually prepared such letters. (Tr. 462.)
The representation hearing scheduled for November 10
and rescheduled for November 12, 1992, was withdrawn by
the Union, because the employees were unavailable. A new
petition was filed on November 20, 1992, and a hearing on
the representation petition was scheduled for December 4,
1992.
At Ripka’s behest, employee Picuri went to the other em-
ployees in late November and polled them to find out wheth-
er they were still interested in the Union. Picuri, after speak-
ing to three employees, reported back to Ripka stating that
they still supported the Union. Employee Bush, also prompt-
ed by Ripka, instructed the employees that they should meet
on December 3, 1992, and take a vote concerning the Union.
The six employees met on that day, they first discussed the
Union, and then listened to Bush express his strong opposi-
tion to the Union. Nevertheless, after a secret vote was taken,
the count favored the Union. Bush promptly informed Ripka
by car phone that the Union had the support of the employ-
ees. (Tr. 33, 47–48, 63, 112.) Ripka, thereafter, agreed to ne-
gotiate a stipulation for a consent election. This obviated the
hearing scheduled for December 4, 1992. One day after the
straw vote favoring the Union, Ripka assembled the six serv-
ice employees and informed them that after a 20-year history
without a layoff, half of the service department would be laid
off, because ‘‘the company is not doing well’’ (Tr. 33, 63,
84, 113). The Company’s installation employees were not af-
fected. Ripka initially asked for volunteers, but when no one
came forward, he selected White with the comment that he
could ‘‘use a vacation,’’ and then Carosi with the remark
‘‘you got a cold anyway’’ and finally Picuri saying, ‘‘You
too.’’ (Tr. 34, 64, 85, 115.) Ripka, indicating that more lay-
offs were possible, insisted that the laid-off employees imme-
diately clean out their trucks. During this process he took
photographs of the trucks and its contents, while his secretar-
ies, including Stephanie Sloan, recorded the inventory items
taken from the trucks. (Tr. 64, 85, 116, 315.) The employees
felt humiliated by this process, because Ripka and his sec-
retaries joked and laughed while they watched the three em-
ployees empty out their trucks to leave their employment.
(Tr. 36, 64–65, 86, 117, 324.)
Pursuant to the stipulated election agreement, the election
was held on January 7, 1993, in a unit composed of the six
service department employees. (G.C. Exhs. 31, 32, 34.) The
Respondent, characterizing the layoffs as permanent, chal-
lenged the votes of the three laid-off employees. The Union,
without challenging the objections, was then elected by a
vote of two to one and was ultimately certified on March 1,
1993. (G.C. Exhs. 35–38.)
Shortly after the election in January 1993 and prior to its
certification, the Union attempted to commence negotiations
with Ripka. In spite of numerous telephone calls and mes-
sages left by Mark Summerville, the Union’s negotiator, the
attempts were without success. (Tr. 150–151.) Summerville
had expected to negotiate with Ripka on favorable terms and
therefore decided not to challenge the permanency of the lay-
offs (Tr. 224–225). Ripka termed the layoff of the employees
as permanent in his letters, dated December 28, 1992, to
White, Picuri, and Carosi. (G.C. Exhs. 8, 11, 17.)
For more than a year, the Union’s efforts to negotiate a
contract were without success. By certified letter, dated Feb-
ruary 10, 1993, Summerville proposed certain dates in Feb-
ruary to commence bargaining. (G.C. Exh. 39, Tr. 151.)
Ripka replied by letter of February 16, 1993, suggesting that
the Union ‘‘send in writing any suggestions for contract ne-
gotiations’’ or ‘‘a copy of an existing contract’’ with another
service company and if ‘‘an actual meeting must be set’’
Ripka suggested an ‘‘early morning or a late evening ap-
pointment’’ (G.C. Exh. 40). Summerville, in his letter of
February 23, 1993, agreed ‘‘to meet in the early morning on
any day’’ Ripka would suggest. (G.C. Exh. 41.) But Ripka
failed to respond, explaining during his testimony that he
was not obliged to negotiate prior to the Union’s actual cer-
tification. (Tr. 325.) By certified letter of March 8, 1993,
Summerville renewed his request and reminded Ripka of the
numerous, yet unsuccessful efforts to set up a negotiation
meeting. Summerville stated that he would file charges with
the National Labor Relations Board if he did not get a reply
by March 15, 1992. (G.C. Exh. 42.) Ripka still did not reply.
A meeting was finally scheduled through the efforts of the
attorneys for the respective parties. But pursuant to Ripka’s
request, the meeting had to be rescheduled to March 24,
1993. Ripka was accompanied by his business partner and
suggested at the first negotiation session that a contract be
negotiated between the Union and Anaconda Controls, an-
other company partially owned and controlled by Ripka. (Tr.
156, 425–427, 430.) Summerville provided Ripka with a pro-
posed contract which had been specifically prepared by the
Union with the assistance of counsel. The parties made no
progress and agreed to meet again on March 29, 1992.
The next scheduled meeting was also rescheduled at
Ripka’s request. At the meeting on April 6, 1993, Ripka
again urged that the parties negotiate with Anaconda Con-
trols instead of the Respondent, a suggestion which Summer-
ville rejected because the Union was not elected by the em-
ployees of the Company. When Summerville referred to the
Union’s proposal, Ripka stated that he had misplaced the
Union’s proposal and not read it. (Tr. 158.) Summerville pro-
19LOWER BUCKS COOLING & HEATING
vided Ripka with another copy of its proposal. The parties
scheduled their next meeting.
The parties met again on April 12, 1993, at the same diner
as in the past in Bristol near the Respondent’s facility.
Again, Ripka had not yet read the Union’s proposal and was
also unable to agree to another meeting because he did not
have his calendar. (Tr. 160.)
The fourth meeting was held on April 27, 1993, at the
diner near the plant. Ripka, accompanied by his partner,
again expressed his intention to negotiate on behalf another
firm. He had still not read the Union’s proposal, nor was he
prepared to schedule another meeting because he did not
have his calendar. (Tr. 16.)
The May 12 meeting was held at the union hall, because
Summerville wanted to introduce Ripka to Tom Kelly, the
Union’s president, and tour the Union’s training center, in-
cluding the service school. (Tr. 162.) Again the meeting
ended without negotiating any proposals, because Ripka had
not read the Union’s proposal. Another meeting could not be
agreed upon, because Ripka had forgotten his date book. (Tr.
161.) Kelly and Summerville told Ripka unequivocally that
the parties could not negotiate a contract on behalf of a com-
pany where the Union was not elected to be the employees’
bargaining representative.
The May 19 meeting, convened at Summerville’s sugges-
tion at the union hall, ended in the same fashion, without ne-
gotiations. In a vain attempt to accommodate Ripka, Sum-
merville had introduced Ripka to the building manager of a
high rise building at Penn Center who had indicated his will-
ingness to give Ripka the service work in the building. (Tr.
163.) Yet Ripka was still trying to substitute the Respondent
with his Anaconda Controls company (Tr. 377–338).
Summerville called Ripka on June 1, 1993, stating that he
had demonstrated his good faith and that he needed Ripka’s
commitment and cooperation to sign an agreement. Ripka’s
replied with a suggestion of yet another company, explaining
that he would never sign a contract on behalf of the Re-
spondent, Lower Bucks. (Tr. 164.)
By certified letter of June 9, 1993, Summerville reminded
Ripka of his obligation to bargain on behalf of the Respond-
ent, suggesting a certain date and time. Ripka called Sum-
merville, setting July 7, 1993, as the date and insisting that
the meeting be limited to 1 hour. (G.C. Exhs. 43, 44.)
Prior to the next bargaining session, Ripka met with the
service employees on June 30, 1993, and asked them to sign
a statement entitled ‘‘Non Competition Clause’’ (G.C. Exh.
2, Tr. 19–20). The employees signed the form, because they
felt that they had no choice in the matter and ‘‘feared for
[their] job at that time.’’ (Tr. 20, 38–40.) The Union was not
aware of these developments until February 1994. (Tr. 200.)
On July 7, 1993, the parties met again. In addition to
Summerville, the Union was also represented by its attorney.
As in the past meetings, Ripka informed the Union that he
had not read its proposal. (Tr. 167–169.) Ripka insisted again
that Anaconda Controls be the negotiating party. Again the
Union informed him that the proper party was the Respond-
ent, Lower Bucks. Two significant issues were raised at this
meeting by the Union. First, the Union wanted to know why
the Company had hired two new service employees, one on
April 23 and one on June 10, 1993, instead of recalling any
of the three laid-off employees. (Tr. 167, 218, 249.) The
Union also demanded the names of the newly hired employ-
ees. Ripka replied that these three people on layoff were no-
tified by letter of April 30, 1993, offering them reinstate-
ment. (G.C. Exhs. 7, 12, 18, Tr. 168.) All three laid-off em-
ployees denied ever receiving Respondent’s letter. (Tr. 66,
89, 95, 118.) Admittedly, the letters were not sent by cer-
tified mail. (Tr. 505.) Respondent had hired Joseph
Musiowsky on April 23 and Eugene Zurybida on June 10,
1993. On January 10, 1994, Ripka hired Paul McEowan.
None of the laid-off employees were recalled. (Tr. 36, 133,
505.)
The other issue raised at the July 7 meeting concerned a
newly implemented policy concerning vans for the employ-
ees. While two of the service employees had retained their
company vans for their work, the two newly hired service
employees were required to have their own trucks. (Tr. 170.)
The Company had adopted a new policy after the election,
namely, service employees were required to have their own
service vans. (Tr. 168, 219, 255.) The Union advised Ripka
that he had changed the conditions of employment for the
employees without bargaining with the Union. (Tr. 170.)
By letter of July 13, 1993, Ripka canceled the next meet-
ing scheduled for July 27, 1993, and proposed instead Au-
gust 12, 1993. (G.C. Exh. 45.) This delay, according to
Ripka, would provide them ‘‘with enough time to go over
the contract in full detail and be prepared for the 27th meet-
ing.’’ (G.C. Exh. 45.)
On August 12, 1993, the parties met and discussed for the
first time the individual provisions of the Union’s proposal.
(Tr. 173.) Although the first 10 of the 27 proposals were re-
viewed, the parties failed to agree to any of them. Moreover,
Ripka revealed that he was undergoing psychiatric treatment,
that he suffered from migraine headaches, and that he was
learning disabled. He accordingly declared the meeting con-
cluded after 2 hours of discussions. (Tr. 173.) The next meet-
ing was set for August 27.
In the meantime by letter of August 13, 1993, addressed
to Ripka, the Union demanded copies of all written offers of
employment made to the laid-off employees as well as the
documents showing that Picuri, one of the laid-off employ-
ees, was incompetent as earlier claimed by the Respondent.
(G.C. Exh. 46.) Ripka responded by letter of August 19,
1993, providing only some of the requested information.
(G.C. Exh. 47.) The Union, agreed by letter of August 26,
1993, that the August 27 scheduled bargaining session be
postponed to September 1, 1993. (G.C. Exh. 491.)
On that day the parties met at Respondent’s facility. They
covered several more paragraphs of the Union’s proposal
without reaching an agreement on any one significant issue
and without obtaining a counteroffer. (Tr. 177–179, 259–
260.)
The Union wanted to resume negotiations as soon as pos-
sible, but Ripka insisted that he could not meet any sooner
than October 11, 1993, Columbus day. (Tr. 180–181.) The
Union protested the 6-week delay as well as the late timing
during the day. Ripka prevailed as usual, and the parties met
on October 11, 1993. (G.C. Exhs. 51–53, Tr. 181–184.) Nei-
ther Ripka, nor his secretary who was present had their notes
from the prior meetings. Accordingly, after they finished
going through the remaining paragraphs of the Union’s pro-
posal, Ripka suggested that they start from the beginning.
(Tr. 185.) Ripka suggested that the Union should be prepared
to give up some of its proposals. In any case, Ripka would
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not agree to even a tentative agreement on anything. (Tr.
266.) Ripka, accompanied by his secretary, Sloan, objected
to most proposals and frequently vacillated or changed his
mind on items which had appeared acceptable to him. (Tr.
270, 276.)
Ripka by letter of September 2, 1993, to the Union re-
quested that it revise its proposal ‘‘to delete and/or modify
Articles in order for us to begin the process again.’’ (G.C.
Exh. 54.)
The next session was held on November 8, 1993. Again,
the Union had protested that the interval was too long. Ripka
again was unprepared to make any counterproposals which
the Union had urged during the prior meeting. (Tr. 187.)
Summerville requested that the next meeting be held at the
union hall. Ripka rejected the idea stating that it would be
too dangerous for him in downtown Philadelphia. (Tr. 188.)
Stephanie Sloan, testified that it was her fear which prompt-
ed Ripka’s attitude in this regard. (Tr. 482, 515.) Ripka sug-
gested November 29, 1993, as the date for the next session.
Ripka in a lengthy letter of November 15, 1993, to the
Union expressed his disbelief that the Union had filed unfair
labor practice charges with the Board. He blamed his dif-
ficulties on the pressures of his business. He renewed his
concern for his staff’s feeling of fear in the downtown area
and demanded that the bargaining sessions be recorded.
(G.C. Exh. 55.) The Union responded by letter of November
17, 1993, informing the Respondent that the Union’s down-
town location was safe and that the tape recording of nego-
tiations would not be acceptable. (G.C. Exh. 56.)
The meeting on November 26, 1993, was held at Ripka’s
facility and, in accordance with his demand at 5 p.m. The
parties did not make any progress and the meeting was fre-
quently interrupted by telephone calls by Ripka. (Tr. 191,
247.) The Union requested the next meeting to be held at the
union hall. Ripka refused, stating that he was unable to meet
sooner than December 14, 1993. (Tr. 192–193.)
The meeting on December 14, 1993, was held at Ripka’s
shop, because ‘‘he would never came to the union hall, he
would only negotiate at his shop’’ (Tr. 193). Nevertheless,
the Union requested that the next meeting he held at the
union hall, because Tom Kelly, the Union’s president could
be present. Again, Ripka refused to meet there or any time
earlier than January 25, 1994, because he would be on vaca-
tion. (Tr. 194.)
On January 25, 1994, the parties, including Kelly, met at
the Respondent’s plant to bargain. Discussed were employee
benefits. Ripka refused to accept the Union’s proposal for
employee benefits contained in ‘‘Schedule A.’’ (G.C. Exh.
57, Tr. 195.) Instead, he informed the union negotiators that
he had his own plan, a ‘‘cafeteria plan,’’ which had already
been presented to the employees directly at a prior meeting
on December 20, 1993. (G.C. Exh. 58, Tr. 196.) That meet-
ing was attended by all employees, except Lepone. (Tr. 29.)
The benefit package devised by the Respondent was pre-
sented to the assembled employees on December 20. Lepone
received the substance of the information at a later date from
Respondent’s office coordinator. (Tr. 27–28.) The Union’s
attorney advised Ripka during the January 25 meeting that
his direct dealing with the employees about their benefits
constituted an unfair labor practice. (Tr. 197.) Ripka replied
that one of his employees had given him the plan and sug-
gested by letter dated January 25, 1994, that the Union sign
the plan (Tr. 197, G.C. Exh. 58). The Union refused, stating
that it had proposed its own plan.
The next negotiation session was held on February 23,
1994, at Ripka’s plant. The Union asked for shift differential
pay for its employees, but Ripka replied that he did not pay
it now and would not in the future (Tr. 200). The Union’s
counsel inquired whether Ripka would be willing to change
any terms of employment through negotiations. Ripka replied
that he ‘‘wouldn’t give up anything that he already has’’ and
that the employee should be glad to have a job (Tr. 201).
During the following meeting on March 25, 1994, at
Ripka’s facility, the Union was represented as usual by Sum-
merville, as well as Kelly and Attorney Bruce Endy. They
hoped to go over parts of the agreement with Ripka. How-
ever, Ripka complained of a migraine headache and stated
that he was under medication and again reminded everyone
that he had a learning disability, and could not take the pres-
sure. (Tr. 202.)
By this time, the Union had filed its respective unfair
labor practice charges with the Board alleging that the Re-
spondent failed to recall the three laid-off employees because
of their union support, that the Respondent had failed to bar-
gain in good faith with the Union, and that the Respondent
had unilaterally changed the employees’ working conditions.
At this juncture, the parties had not agreed to any of the
Union’s proposals consisting of 21 articles. (Tr. 284–285.)
At the suggestion of the Union’s president, Kelly, the par-
ties ultimately agreed to meet at the offices of the Federal
Mediation and Conciliation Service. (Tr. 247.) Federal Medi-
ator Thomas Washington participated in the negotiations and
met with the parties separately. The Union’s proposal was re-
viewed from the beginning. The negotiators finished review-
ing the first six articles. (Tr. 277, 281–283.) For the first
time, the Respondent initialed his agreement with several
provisions. (C.P. Exhs. 2, 3, 4, 5; Tr. 271, 283.) The parties
agreed to a next session scheduled for June 13, 1994.
Analysis
The record fully supports a finding of violations of the
Act. The Respondent’s antiunion animnus was amply shown
by Ripka’s statement to the employees. The layoff of White,
Picuri, and Carosi is not disputed, nor can it be gainsaid that
they were not reemployed. After the Union’s certification,
Ripka dealt directly with the employees about their benefits
and put into effect new conditions of employment, without
bargaining or even notifying the Union. Finally, Ripka, as he
had threatened, did not agree to any terms of a union pro-
posal, much less sign an agreement and only reluctantly at-
tended bargaining sessions.
The Respondent relied upon a defense that Ripka, the
chief executive of this and various other companies is a nov-
ice, an unsophisticated individual, totally inexperienced in
dealing with the Union, and that he is mentally disabled, suf-
fering from dyslexia and a learning disability since child-
hood. (Tr. 11, 292.) Ripka testified that he and his family
have a history of depression, that he had suffered numerous
strokes, and is generally afflicted with memory losses, mi-
graine headaches, and visual problems, requiring medication
such as Prozac. (Tr. 293.)
While I agree that Ripka’s recollection of the relevant
events, particularly the discussion about the bargaining ses-
sions, was less accurate and less reliable than the testimony
21LOWER BUCKS COOLING & HEATING
of Summerville, I am not convinced that Ripka demonstrated
less ability than other business executives or a lack of so-
phistication. To the contrary, I observed an alert and fully re-
sponsible individual who, by his own record, has dem-
onstrated financial success and professional achievement in a
complicated and competitive environment. In spite of his
memory lapses, he impressed me as a shrewd and clever ex-
ecutive who can easily maneuver complicated events to his
advantage. In addition, the record shows that Ripka was as-
sisted by counsel at least during the latter part of the negotia-
tions. In his testimony Ripka agreed with many of the salient
facts provided by the witnesses called by the General Coun-
sel, as for example the Respondent’s knowledge of the em-
ployees,’ union support, his assurances of job security for
Gary Bush, the unilateral changes in working conditions, his
dealings with the employees’ and certain conduct during the
negotiations. However, numerous observations in Ripka’s
testimony were implausible or exaggerated and several re-
sponses were uttered in anger and unreliable. I have accord-
ingly credited his testimony only to the extent that it cor-
roborated the more detailed and reliable accounts provided
by Summerville and the three employee witnesses.
Moreover, I have little faith in the reliability of Stephanie
Sloan’s testimony. Not only was she associated with Ripka
on a professional basis as his office manager, but she was
also at times referred to as Ripka’s girlfriend. Her testimony
impressed me as clearly biased in favor of the Respondent
and generally lacking sincerity. For example, I observed her
bursting into tears while testifying about the ‘‘inevitable’’
layoff so close before the Christmas season. (Tr. 464–465.)
Yet when asked whether she also cried during the time while
she witnessed the actual layoff, she answered, ‘‘[N]o’’ (Tr.
518). The record contains other examples of responses which
appear vague and inconsistent. I have therefore not relied
upon her testimony.
Responding to the General Counsel’s allegation of unfair
labor practices, the Respondent argues in substance; (1) the
Respondent ‘‘LBCH was under no obligation to ‘recall’ the
three service employees who had been permanently laid off’’
and it ‘‘did not discriminatorily refuse to rehire the employ-
ees,’’ (2) the ‘‘service employees were not required to sign
the non competition clause as a term and condition of em-
ployment,’’ (3) the requirement of ‘‘new employees to pro-
vide their own trucks. . . . was the involuntary result of the
forbearance agreement between LBCH and the bank,’’ (4)
‘‘[n]o persuasive evidence was presented to show that LBCH
proposed the cafeteria plan directly to bargaining unit em-
ployees,’’ and (5) ‘‘LBCH has not failed or refused to bar-
gain in good faith’’ and any mistakes were the results of
Ripka’s inexperience.
Even though the Respondent may have had an economic
justification for the layoff of the three employees, it is well
settled that the refusal or failure to recall the employees be-
cause of their union support constitutes a violation of the
Act. Here, the record shows that Carosi, Picuri, and White
had supported the Union and that the Respondent knew it.
Ripka had requested Picuri on November 30, and Bush on
December 4, 1992, to poll the employees about their union
sentiments. The two employees reported back that the em-
ployees supported the Union. During meetings with the six
employees, Ripka promised benefits to the employees, if they
would forego their union support. He offered to help them
withdraw their union cards and promised to fight for Bush,
the only employee who openly professed his antagonism to
the Union Ripka clearly knew that all the other employees
supported the Union. Even without the clear evidence of
knowledge by the Employer, I can also infer that the Re-
spondent was aware of the employees’ union support under
the ‘‘small plant doctrine.’’
The record reveals in stark terms the Respondent’s
antiunion animus, when he threatened that he would never
negotiate with the Union and would rather go out of business
than deal with the Union. With such a hostility towards the
Union, it is not surprising that Ripka would rather hire some-
one off the street than to recall Carosi, Picuri, or White. In-
deed, on April 23, 1993, he hired Musiowski, and on June
10, 1993, an employees by the name of Zuribyida and on
January 10, 1994, the Respondent hired McEowen.
Ripka claimed to have sent letters on April 30, 1993, to,
the three laid-off employees offering them reinstatement.
However these letters were not received by them. Ripka tes-
tified that he instructed his office coordinator, Sloan, to send
certified letters. (Tr. 413, 497.) Sloan testified, however, that
she did not send them by certified mail and when asked
whether she may have forgotten to mail them at all, she re-
plied: ‘‘No, I don’t think so.’’ (Tr. 517.) Her somewhat un-
certain response, as well as her demeanor as a witness con-
vinces me that the letters were never sent. In any case, the
letters merely stated that positions were available and that the
recipient had to ‘‘apply for either position.’’ (G.C. Exh. 7.)
The letters also required the applicants to have their own ve-
hicle. In short, these letters, even if sent, were not offers to
recall the employees. The same conclusion applies to the cer-
tified letters, dated November 1, 1993. (G.C. Exh. 19.) Not
only were these letters sent after two new employees had al-
ready been hired, but the letters also indicated that interviews
were necessary and that the applicants were required to have
their own service vehicle. Indeed, Carosi responded to the
letter, was interviewed on December 8, 1993, but was not
hired. According to the Respondent, Carosi may not have
been ‘‘qualified for the position, or met the requirement of
having his own truck.’’ (R. Br. 48.) Clearly then, the Re-
spondent failed to reinstate the three employees.
The conclusion is inescapable that the Respondent’s mo-
tive for his refusal to reinstate White, Picuri, and Carosi was
their union support. Significantly, Ripka expressed his inten-
tion to discriminate against them, when during the meeting
with the service employees, he assured Gary Bush that he
would always have a job with him after Bush had expressed
his opposition to the Union. (Tr. 79, 108.) Ripka said,
‘‘That’s why I’ll fight for you, because you’re the only one
who doesn’t want the Union. I’ll fight for you.’’ (Tr. 109.)
The import of Ripka’s message is that those who favor the
Union are dispensable and those that are opposed to the
Union are indispensable.
The General Counsel has established a prima facie case of
violations of the Act. Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). The Respondent has failed to show that even in the
absence of their union support the result would have been the
same. The Respondent made a weak attempt to show that
Picuri was incompetent. However, the record does not sup-
port such an argument. The record does not contain any evi-
dence of disciplinary actions. To the contrary, Picuri had a
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reputation as an excellent employee who had received merit
raises, who was rehired in 1989 and had his picture in a
company brochure. As already stated, Ripka’s professed at-
tempts to rehire the employees was disproven under closer
scrutiny. Finally, suggesting that the layoff was permanent is
not a defense to his disparate treatment of the laid-off em-
ployees, none of whom were recalled. Yet other individuals
were hired in preference to the ones on layoff. It is also clear
that the Respondent considered hiring Picuri, White, and
Carosi but ultimately failed to do so. I accordingly find that
the Respondent violated Section 8(a)(1) and (3) of the Act.
The Unilateral Actions
The record discloses that on January 30, 1993, after the
Union’s certification, the employees were requested to sign
a ‘‘noncompetition clause.’’ The employees signed the forms
out of fear that otherwise they would have lost their jobs.
The Union was unaware of this action until February 1994.
In addition, on or about April 23, 1993, the Respondent
adopted a new policy whereby new service employees were
required to have their own service vehicle (Tr. 219). The
Union did not know about this change in the employees’
working conditions until July 7, 1993. Finally, the record
shows that the Respondent dealt directly with the bargaining
unit employees and offered them a cafeteria benefit plant on
December 20, 1993. The Respondent submitted a proposal of
this type to the Union on January 25, 1994. It is clear there-
fore that the Respondent by bypassing the Union and by
dealing directly with the unit employees violated Section
8(a)(1) and (5) of the Act. Furthermore, by unilaterally
changing the working conditions of the unit employees (even
if prompted by economic necessity) without prior notice to
the Union and without affording the Union to bargain about
the unilateral changes, the Respondent violated Section
8(a)(5) and (1) of the Act.
The Failure to Bargain
The Respondent has shown in several ways that it refused
to bargain in good faith. To make a determination whether
or not a party has violated Section 8(a)(5) and (1) of the Act,
the Board looks to the totality of the Respondent’s conduct
not only during the negotiations but also to the conduct away
from the bargaining table. Overnite Transportation Co., 296
NLRB 619 (1989), enfd. 938 F.2d 815 (7th Cir. 1991). Ini-
tially, the records show that the Respondent expressed in no
uncertain terms that it had no intention to bargain with the
Union. In graphic language, Ripka told the employees prior
to the Union’s election that there was no way that he would
negotiate with ‘‘the expletive Union’’ and that he would
close his doors before he would ever bargain with the Union.
(Tr. 61, 80, 109.) Ripka had effectuated his intentions by his
subsequent conduct. As already discussed, he bypassed the
Union and dealt directly with the employees and unilaterally
changed their working conditions. For a period of more than
1 year, he has avoided any meaningful dialogue with the
Union, he has frustrated the bargaining process by attempting
to negotiate on behalf of another company, by canceling bar-
gaining sessions, by failing to read the Union’s proposal, by
refusing to meet at a certain place, by refusing to set times
for future meetings, by limiting the duration of the negotia-
tions, by delaying the scheduling of future meetings and by
blaming his conduct on his inexperience and his disability.
More specifically, Ripka avoided any contact by telephone
during January 1993 with Summerville. In spite of numerous
calls to the Respondent’s office, Ripka was unavailable. (Tr.
150–157.) In answer to a certified letter by the Union, Ripka
suggested bargaining by mail or meetings in the early morn-
ing or late in the evening. When Summerville accepted the
proposal to meet early or late, Ripka failed to respond at all.
The Union finally retained counsel, who was able to sched-
ule a meeting in late March. But Ripka rescheduled that
meeting. He similarly canceled meetings scheduled for June
25 and 27, 1993. On other occasions (March 24, April 12
and 27, May 12 and 19, 1993) Ripka failed to bring his cal-
endar or his date book and for those reasons refused to
schedule another bargaining session. On numerous occasions,
Ripka was indisposed to schedule meetings within a reason-
able time and insisted that he could not meet any sooner than
October 11, November 8 and 29, December 14, 1993, and
January 25, 1994.
Particularly frustrating was Ripka’s failure to even review
the Union’s proposal for the first six or seven meetings.
After finally reviewing the proposal during the August 12
and September 1 sessions, Ripka suggested during the Octo-
ber 11, 1993 meeting that they commence from the begin-
ning of the document, because he and his secretary had for-
gotten their notes from the prior meetings. (Tr. 185.) In addi-
tion, Ripka proposed that the Union should be ready to give
up some of the proposals.
Another example of bad-faith bargaining was Ripka’s re-
peated insistence during meetings on March 24, April 6 and
27, May 12, June 1, and July 7, that they bargain on behalf
of another company in order to maintain the nonunion status
of the Respondent. (Tr. 339–340.)
Ripka refused on several occasions to meet with the Union
at the union hall, insisting that the meetings be scheduled at
his shop. Indeed, Ripka flatly refused even to negotiate at the
union hall, arguing that the downtown area of Philadelphia
was unsafe. (Tr. 188.) The Union was usually forced to ac-
cede to Ripka’s demands for time and place in order to
schedule any negotiations. Ripka stated during the February
23 meeting that he would not change the terms or conditions
of employment for the unit employees pursuant to negotia-
tions. The only ray of hope to his intransigence was the one
meeting with the federal mediator on May 10, 1994, more
than a year after the certification of the Union. Considering
that the bargaining unit consists of only a few employees,
ranging from three to six, it is clear that the Union has strug-
gled for too long. Both parties were represented by counsel
which should have obviated this protracted course of con-
duct. It is my finding, considering the totality of the cir-
cumstances, including the Respondent’s antiunion animus,
Ripka’s expressed intentions not to negotiate with the Union,
his other violations of the Act and his uncompromising con-
duct during the bargaining process, that Ripka has skillfully
and cunningly failed and refused to bargain in good faith.
CONCLUSIONS OF LAW
1. The Respondent is and has been at all times material
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
23LOWER BUCKS COOLING & HEATING
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
3. The following employees were found to constitute an
appropriate bargaining unit:
All HVAC service technicians and service mechanics
employed by Respondent, excluding all other employ-
ees, office workers, managers, guards and supervisors
as defined in the Act.
4. By refusing to recall or reemploy Joseph Carosi, Louis
Picuri, and Daniel White because they supported the Union,
the Respondent violated Section 8(a)(3) and (1) of the Act.
5. By requiring its new employees to have their own serv-
ice vehicles, and by requiring its employees to execute a
‘‘non-competition clause,’’ without prior notice to the Union
and without affording the Union an opportunity to bargain,
the Respondent violated Section 8(a)(5) and (1) of the Act.
6. By bypassing the Union and dealing directly with its
unit employees by offering them a ‘‘cafeteria’’ benefit plan,
the Respondent violated Section 8(a)(5) and (1) of the Act.
7. By its overall conduct during the negotiations and away
from the bargaining table, including its proposals to bargain
under the name of a different employer, its cancellations of
bargaining sessions, its failure to review the Union’s propos-
als, its delaying tactics to schedule future bargaining ses-
sions, its repeated insistence to schedule bargaining sessions
at times and places convenient only for the Respondent, its
statements that it would not negotiate with the Union and not
agree to change any terms or conditions of employment for
the unit, the Respondent failed to bargain in good faith in
violation of Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I recommended that it cease and desist
therefrom and take certain affirmative action necessary to ef-
fectuate the policies of the Act. It also having been found
that the Respondent failed and refused to recall or reemploy
Joseph Carosi, Louis Picuri, and Daniel White because of
their union support, the Respondent must be ordered to offer
them immediate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to substantially
similar positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, dismissing if
necessary, any employees hired to fill those positions, and
make them whole for any loss of earnings they may have
suffered by reason of the failure to recall or reemploy them,
less net earnings during such period. Backpay is to be com-
puted on a quarterly basis in the manner established by the
Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest to be computed in the manner prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
It should further be ordered that the Respondent reestab-
lish the status quo ante and cancel and destroy the noncom-
petition clauses, and further that the policy requiring employ-
ees to have their own vans be canceled.
With reference to the Respondent’s failure to bargain in
good faith, a bargaining order is necessary, requiring the Re-
spondent to bargain collectively in good faith with the Union
as the exclusive bargaining representative of the employees
in the above-described unit, and in the event an understand-
ing is reached to embody such understanding in a signed
agreement. The Respondent must also be ordered to post an
appropriate notice attached hereto as appendix (omitted from
publication).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Lower Bucks Cooling and Heating, Inc.,
Croydon, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to recall or reemploy or, otherwise discrimi-
nate against, Joseph Carosi, Louis Picuri, and Daniel White,
because of their union support.
(b) Requiring its employees to have their own service ve-
hicles or requiring them to execute noncompetition clauses or
otherwise changing the employees’ working conditions with-
out prior notice to the Union and without affording the
Union an opportunity to bargain with the employees in the
following unit:
All HVAC service technicians and service mechanics
employed by Lower Bucks Cooling and Heating, Inc.,
excluding all other employees, office workers, man-
agers, guards and supervisors as defined in the Act.
(c) Bypassing the Union and dealing directly with the unit
employees with respect to benefits and other terms or condi-
tions of employment.
(d) Failing and refusing to bargain in good faith with the
Union on behalf of the unit employees.
(e) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their right
to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recall and reinstate Joseph Carosi, Louis Picuri, and
Daniel White to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs without prejudice to
their seniority or other rights and privileges, dismissing if
necessary any employees hired to fill these jobs, and make
the three employees whole for any loss of earnings they have
suffered as a result of the discrimination against them in the
manner set forth in the remedy section of this decision.
(b) Concerning the unlawful unilateral changes, reestablish
the status quo ante and cancel and destroy the noncom-
petition clauses signed by the employees and cancel the pol-
icy requiring its unit employees to have their own service ve-
hicles and notify the affected employees that this has been
done.
(c) Bargain in good faith with Sheet Metal Workers’ Inter-
national Association, Local No. 19, AFL–CIO on behalf of
the employees in the above-described bargaining unit, and in
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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
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.’’
the event an understanding is reached embody such an under-
standing in a signed agreement.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Croydon, Pennsylvania facility copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 4,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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 the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.