M. H. Brown Co., Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1969

179 N.L.R.B. 889 (N.L.R.B. 1969)

M. H. BROWN CO., INC. 889
M. H. Brown Co., Inc. and Mechanics Educational
Society of America , AFL-CIO. Case 3-CA-3688
December 5, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND ZAGORIA
On July 28,' 1969, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom' and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection • with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent , M. H. Brown Co.,
Inc., Ilion, New York, its officers, agents,
' We agree with the Trial Examiner that Respondent violated Section
8(a)(1), (3), and (5) of the Act. Respondent violated Section 8(a)(l) by
coercively interrogating its employees concerning their union activities, by
promising and granting increases in wages, and by giving increased
vacation and sick leave benefits for the purpose of discouraging union
activities Respondent violated Section 8 (a)(3) by discriminatorily
eliminating the second shift within 2 days of the Union's demand for
recognition and laying -off seven employees Respondent violated Section
8(a)(5) by refusing to bargain with the Union and by engaging in the
aforementioned series of unfair labor practices to undermine the Union's
majority status In this connection, we are satisfied that Respondent's
unfair labor practices committed after it became aware of the Union's
organizational drive were so coercive in their impact on employee
attempts to exercise Section 7 rights that they bring this case within the
category of cases in which a bargaining order is necessary to repair the
effects of the unlawful conduct even in the absence of an 8(a )(5) violation
It follows that, inasmuch as the Union had signed up a majority of
employees prior to the unfair labor practices , and Respondent refused to
recognize and bargain with it as the employee's duly selected bargaining
representative , the bargaining order recommended by the Trial Examiner is
a necessary and appropriate remedy See N L R B v Grssel Packing
Company. 395 U S 575.
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified. 2
'Add as the last indented paragraph of the Appendix the following
WE WILL notify the above -named employees , if presently serving in the
Armed Forces of the United States, of their right to full reinstatement,
upon application , in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before me on May 26,
27, and 28, 1969, at Utica, New York, on complaint of
the General Counsel against M. H. Brown Co., Inc ,
herein called the Respondent or the Company. The issues
are whether the Respondent violated Sections 8(a)(l), (3),
and (5) of the Act. The charge was filed by Mechanics
Educational Society of America, AFL-CIO, Local 10, on
January 28, 1969, and the complaint issued on April 21.
Briefs were filed after the close of the hearing by the
Respondent and the General Counsel.
Upon the entire record, and from my observation of the
witnesses, I make the following '
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation and
maintains an office and place of business in Ilion, New
York, where it is engaged in the manufacture, sale, and
distribution of metal and related products In the normal
course of its business the Respondent annually
manufactures, sells, and distributes at said plant, products
valued in excess of $50,000, of which products valued in
excess of $50,000 are shipped from said plant directly to
states of the United States other than the State of New
York. I find that the Respondent is engaged in commerce
within the meaning of the Act and that it will effectuate
the policies of the Act to exercise jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
Mechanics Educational Society of America, AFL-CIO,
herein called the Union , is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This can be called a combination case. refusal to
bargain with a union on demand followed immediately by
discharge of a number of employees, the first act said to
reflect fundamental rejection of the principle of collective
bargaining, and the second called overt retaliation to
assure ultimate defeat of the self organizational campaign.
There is little dispute of substance about what was done
and what was said. Disagreement centers on what all of
this means, and what the true motivations were that can
rationally explain the events and their timing The
complaint alleges the refusal to bargain to have been a
'After the close of the hearing counsel for the Respondent and the
General Counsel each filed a motion to correct the transcript, no
opposition was received to either motion The motions are hereby granted
179 NLRB No. 155
M. H. BROWN CO., INC.
M. H. Brown Co., Inc. and Mechanics Educational
Society of America , AFL-CIO. Case 3-CA-3688
December 5, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On July 28, 1969, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended; and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, M. H. Brown Co.,
Inc., Ilion, New York, its officers, agents,
'We agree with the Trial Examiner that Respondent violated Section
8(a)(1), (3), and (5) of the Act Respondent violated Section 8(a)(I) by
coercively interrogating its employees concerning their union activities, by
promising and granting increases in wages, and by giving increased
vacation and sick leave benefits for the purpose of discouraging union
activities Respondent violated Section 8(a)(3) by discriminatorily
eliminating the second shift within 2 days of the Union's demand for
recognition and laying -off seven employees . Respondent violated Section
8(a)(5) by refusing to bargain with the Union and by engaging in the
aforementioned series of unfair labor practices to undermine the Union's
majority status In this connection , we are satisfied that Respondent's
unfair labor practices - committed after it became aware of the Union's
organizational drive were so coercive in their impact on employee
attempts to exercise Section 7 rights that they bring this case within the
category of cases in which a bargaining order is necessary to repair the
effects of the unlawful conduct even in the absence of an 8(a )(5) violation
It follows that, inasmuch as the Union had signed up a majority of
employees prior to the unfair labor practices , and Respondent refused to
recognize and bargain with it as the employee's duly selected bargaining
representative , the bargaining order recommended by the Trial Examiner is
a necessary and appropriate remedy . See N L R B v Gissel Packing
Company, 395 U.S 575.
889
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified. 2
'Add as the last indented paragraph of the Appendix the following
WE WILL, notify the above-named employees , if presently serving in the
Armed Forces of the United States, of their right to full reinstatement,
upon application , in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci , Trial Examiner : A hearing in the
above-entitled proceeding was held before me on May 26,
27, and 28, 1969, at Utica, New York , on complaint of
the General Counsel against M. H. Brown Co ., Inc.,
herein called the Respondent or the Company. The issues
are whether the Respondent violated Sections 8(a)(l), (3),
and (5 ) of the Act. The charge was filed by Mechanics
Educational Society of America, AFL-CIO, Local 10, on
January 28 , 1969, and the complaint issued on April 21
Briefs were filed after the close of the hearing by the
Respondent and the General Counsel.
Upon the entire record, and from my observation of the
witnesses, I make the following'
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation and
maintains an.office and place of business in Ilion, New
York, where it is engaged in the manufacture, sale, and
distribution of metal and related products. In the normal
course of its business the Respondent annually
manufactures, sells, and distributes at said plant, products
valued in excess of $50,000, of which products valued in
excess of $50,000 are shipped from said plant directly to
states of the United States other than the State of New
York I find that the Respondent is engaged in commerce
within the meaning of the Act and that it will effectuate
the policies of the Act to exercise jurisdiction herein
II THE LABOR ORGANIZATION INVOLVED
Mechanics Educational Society of America, AFL-CIO,
herein called the Union , is a labor organization within the
meaning of Section 2 (5) of the Act.
III THE UNFAIR LABOR PRACTICES
This can be called a combination case: refusal to
bargain with a union on demand followed immediately by
discharge of a number of employees , the first act said to
reflect fundamental rejection of the principle of collective
bargaining , and the second called overt retaliation to
assure ultimate defeat of the self organizational campaign.
There is little dispute of substance about what was done
and what was said Disagreement centers on what all of
this means , and what the true motivations were that can
rationally explain the events and their timing. The
complaint alleges the refusal to bargain to have been a
'After the close of the hearing counsel for the Respondent and the
General Counsel each filed a motion to correct the transcript, no
opposition was received to either motion The motions are hereby granted
179 NLRB No. 155
M. H. BROWN CO ., INC. 891
employees concerning their union activities in a coercive
way. Again and again witnesses were invited to admit
Brown did not in haec verba ask them individually were
they in favor of or opposed to a union. The persistently
implied contention running through the record is that
because Brown did not in this very precise sense
"interrogate," anything he did ask, and anything he did
say that day in his office, being outside the ban of the
Blue Flash case, must therefore be deemed entirely proper
and lawful, and, of course, in consequence be totally
ignored in this case. There is no need for reporting here in
fine detail the testimony of all 10 of the employee
witnesses who told of what was said in the office that day;
they were in agreement , 6 called by the Respondent and 4
by the General Counsel, and Brown did not contradict
them. He started with each group by telling them he had
Just learned of the union campaign and that he was
"shocked" to hear of it; he then asked what their
"gripes," or "grievances" were. Quoting some of the
witnesses: Frank Jaquish: "And he wanted to know why
we thought we needed a Union, what was wrong in our
shop." Lawrence Newman: "And he wanted to know what
we thought we could gain by getting a Union. He said
that at that time that he couldn't see where it would
benefit a small shop like this or how we could benefit He
asked us individually why we thought we needed one."
Anthony Tuba: "He told us he had received a letter from
the Union, and he asked us if we were for it and why."
Murray Seaman: "And he wanted to know what the
problem seemed to be that the people in the shop felt a
Union was needed. . . . he started asking different ones
around the tables what their complaints were." Lawrence
Pupers: "He asked us what was wrong and what was
wrong that we would call in a Union. He asked us
individually" Not only did Brown not contradict all of
this from the employees, he corroborated them: "I asked
them what was wrong, what we had done, why would
anyone want to organize a union." His plant
superintendent , Frank Williams. "Maynard asked the
employees present what was wrong with out (sic) shop,
why they thought they should need a Union "
Altogether Brown had 12 or 13 employees in these
meetings. To a man their answer to his questioning was
"money," plain wage increases One mentioned pension,
and another favoritism towards a particular other
workman. And in each meeting, after hearing that all the
men wanted was "money," Brown came back by saying
he was going to give them raises. One man, asked by
Brown exactly how much he wanted, said 30 or 35 cents;
at this Brown turned to his assistant , Plant Superintendent
Williams, and said maybe he, the manager , was planning
to give higher wage increases than was necessary. He even
spoke of a "package in the wind," better than the
employees "requested." "He turned to Frank and said
maybe what he had planned for us was more too much
or something to that effect; he was going to give us more
than what they wanted." " . . . he told us he had a plan
and a program he could put into effect." " .. he had a
scale drawn up that was going to give raises, but he hadn't
gotten around to putting it into effect yet."
In the words of the manager himself. "I went out at
that point to tell them thats [sic] had already had a
program to give everyone more money, ..." " . I told
him, because he made the statement wages were kind of
low, that I had prepared previously in December wage
increases and benefits for my employees after the Ist of
the year, .. .
True to his word, on February 13 Brown did give a
raise to all of these employees, very substantial increases,
some in excess of their requests, and all retroactive back
to January 3. In fact, with announcement of the raise
there also came improved vacations and sick leave
benefits. But that is another aspect of the case, and is
discussed below. For the moment what is important is to
dispose of the threshold contention that because Brown
did not literally inquire which, or how many of his
employees favored the Union, no significance can be
attached to what he did that day It is true he did not poll
the men, but the fact is he did not care how many were
behind the Union, or whether a majority was or was not
achieved On his own testimony, when the demand for
recognition came 4 days later, and he swept aside
Taverna's invitation to verify the claim to majority, he
told the business agent "there would be no point in me
checking the cards . against my payroll," and admitted
he "didn't care" how many cards had been signed The
reason why pure interrogation, without affirmative
safeguards, normally is found to be unlawfully coercive, is
because there is a necessary implication in the inquiry that
the employer intends to do something about it if he learns
the employees do favor the union, and that this
"something" will be aimed at stopping the union activity
Here no inference is required for devining the employer's
purpose. Brown asked, without equivocating, what was it
that had to be done to end the union movement that had
"shocked" him so. He was as much interested in
dissuading those who had already signed, as he was in
buying off others who might later decide to go union. And
when he quickly realized it was money, and only money
that would accomplish his purpose, forthwith he promised
to satisfy the employees' demand. Without more, he was
assuring himself accomplishment of the very purpose
which emerges clearest from the total testimony. No need
in this case for the Board 's expertise as to the inevitable
effect upon workmen of employer interrogation. The
purpose for Brown's interrogation could not be clearer; in
asking the employees what it would take to satisfy their
demands, or "grievances," as he said, he was as directly
telling them he knew they wanted a union, and had no
need to check one head at a time And that he as well
intended to do "something" about it, appears no less
clearly from his own testimony
I find that by questioning the employees as to their
reason for joining the Union, and then, by responding to
their demands with promises to give the raises they
desired, Brown made direct promises of benefits for the
purpose of discouraging union activities, and thereby
directly violated Section 8(a)(1) of the Act at each of the
three employee meetings . If the phrase "coercively
interrogate" has any meaning, this is the situation where
it applies.
Three of the employees, activists in soliciting signature
cards, accompanied Taverna as a supporting committee
when he called on Brown at about 1 30 p.m. on January
14. This was when the cards were offered for inspection
and bargaining requested The meeting lasted perhaps 45
or 60 minutes The three men were John Ashley, Alfred
Gargiullo and John Pritchard, they stayed off work the
rest of the afternoon. The next day each of them received
a written notice requiring the employees to state on the
face of the notice sheets, "the reason why you were
absent the afternoon of 1/14/69?" They wrote across the
bottom of the sheet that they had met with the union
representative
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Never, in their entire employment with the Respondent,
had any of these three been required to make such written
statement before; indeed, there is no evidence, or claim,
indicating the Company ever used such a system for
reprimands with respect to any of its employees Ashley
said that when there is need or an emergency, the men
often ask for and receive permission for time off, and that
Brown "is very lenient" in this respect . Pritchard testified,
without contradiction, that he had on other occasions
taken time off even without asking permission, although
all of them did admit employees normally do request time
off in advance. They had arranged the day before to act
with Taverna on the 14th, and when the union agent
arrived, at about I I a.m., it was Mrs. Bolen, the company
secretary, who came to them in the work area to advise
them Taverna was outside waiting She even reminded
them to be sure to check out before leaving. And of
course the, manager knew why they had absented
themselves that day and quite exactly what they had done.
In the total circumstances, the unprecedented form of
censure could only be explained as a technique for
intimidating the employees, carrying a message of
company resentment towards their union activities, and
indicating things would be different - to their
disadvantage -- if they continued this sort of cooperation
with the union representative. The conclusion is not
rebutted by the fact- that on earlier occasions they had
been warned about undue absences , or tardiness, and one
of them even dismissed on a charge of excessive drinking.
I find that by requiring these three union committeemen
to state their-reason for a temporary absence already well
understood by the manager, the Respondent interfered
with their free exercise of the right to self-organization
and thereby violated Section 8(a)(1) of the Act.
said no.
2. On January 16, a notice was posted in the plant
advising that the second shift would be discontinued
because of "loss of business." Most, but not all of the
employees on that shift, were part-timers. That same day
seven employees, six part-timers and a full-time man,
found layoff notices with their paychecks, effective
immediately., There had been no prior notice to anyone,
of any kind The employees were also told that day that
thenceforth it would be a 40-hour week; many full-time
workmen had long done 50 hours per week and more.
The discharges are clear, for those seven people went
home that day. There is testimony by several employees to
the effect that after January 16 they worked less overtime
than before. Gargiullo said he used to work 10 hours each
day, but went to 8 thereafter. Verna Ashley said that
before January 16 the women "were not working too
many over 40," and that she used to do between 35 and
45 hours, she added she did do some overtime even after
the layoffs Newman, also a full-time man, said he used to
do between 53 and 65 hours per week, and since the
change has been working between 47 and 55 hours.
Employee Russell Randt's testimony was no more
definitive. He said his old schedule reached 50 hours per
week, and that later "there was some nights I didn't work
overtime too much," "maybe one or two nights a week,
one."
3. When the employees received their pay on February
13 they found a raise in the envelope, retroactive back to
January 3 and paid in full then and there. Certain
apprentices, very few, who were subject to a state
apprenticeship program, were not affected; part-timers
also were excluded from the raise. The largest raises went
to the skilled machinists and operators, as follows:
Refusal to- Bargain : Layoffs and Raises
The complaint rests essentially upon three major facts
and the relationship each is said to bear to the others
These are the refusal to deal with the Union, the discharge
of seven employees 2 days later, and a very substantial
raise given the employees a month later . If every one of
these acts be viewed, as the Respondent would have it, as
though neither of the other two had ever happened, there
would be little, if any, basis for criticism.
1. When union representative Taverna sat in Manager
Brown's office on the afternoon of January 14, he said a
majority of the employees had authorized the Union to
bargain, asked Brown to check them against the record,
demanded recognition and placed the signed cards on the
table at which the parties sat. As will appear below, there
wag a majority of cards then. Brown refused to extend
recognition on the ground he had no authority to act. He
admitted saying there was "no point" in his comparing
the cards against the payroll, and that he did not care how
many cards Taverna had obtained. From the testimony of
Plant Superintendent F rank Williams who was also
present: "Mr. Brown told him that whether he had a
majority "'or whether he did not have a majority, he
couldn 't recognize him ...... Taverna and two employees
then present testified Brown also said he did not doubt
there was a majority; Brown denied this statement but I
credit the other three witnesses. As Brown requested, the
Union wrote a demand letter the same afternoon, and it
was ignored. On the 20th Taverna was back in Brown's
office to protest the discharges of January 16, charging
the employees had been released because of the union
activity and again requested recognition. Again Brown
Amount of raise New Rate
Frank Williams
(the supervisor)
$15.00 wk $155.00 wk
John Butera .55 hr 3.00 hr
Frank Jaquish .55 3.00
Murray Seaman .50 3.00
John Ashley .49 3 00
Al Gargiullo .10 3.25
Larry Pupera .39 3.10
John Prichard .45 2.40
Ken Dack 7.00 wk $135.00 wk
Paul Favat, Sr. .17 hr 3.25 hr
L. Newman .35 2.60
A Tubia .15 1 95
Leon Van Cour .05 1.95
Dick Pritchard .10 1.95
Jake Elnicky .10 1 95
Russel Randt .30 1.95
All women .15 1.80
The employees were also informed that day that
thereafter every employee who had worked more than 1
year would receive a 2 week's vacation instead of 1, as in
the past, plus an additional one-half day vacation and
one-half day paid sick leave for each year of service A
final fringe benefit announced then was one-half day
The following employees were discharged Albert Jenette, Howard
March, Gary Smithson , Shirley Willoughby, Robert Willoughby, Ralph
Thiede, and Anthony Tubia
M. H. BROWN CO., INC. 893
bonus pay at the end of a year for each day of sick leave
unused during the year.
A good half of the 20 employees still employed in
February, and who testified, said they had heard nothing
about raises before the unexpected announcement on
February 13. There is some vague testimony by others
about Christmas party reference to better working
conditions, improvement of one kind or another It is
quite clear, however, that the last references made by
anyone to raises was when Manager Brown promised
wage increases during the January 10 meetings with
employees in his office. This was when the "key"
employees told him it would take "money" to solve the
"problem" which had caused them to form a union. And
it will be noted that virtually all of the major raises went
to those persons whom Brown interrogated that day.
The theory of this complaint is that with the manager
committing deliberate unfair labor practices as soon as he
heard of the union activities - and promising to meet the
money demands of the skilled personnel in order to
discourage their union activities ' and then realizing,
only 4 days later, that his efforts had failed, it follows
necessarily that unannounced discharge of so large a
group of virtually all the second shift people only 2 days
after the Union's demand for recognition, was the next
step towards the same ultimate objective of intimidating
the entire group. There is no contention that Brown
selected these particular seven because he knew them to be
among the culprits. As it happened, five had signed cards.
Rather, the General Counsel argues Brown did not care
who had signed , or who had not, j ust as he did not care
whether or not a majority had signed. This was a
broadside sweep, according to the complaint, intended
generally to convey a message of coercion.'
And the inference of illegal motivation is bolstered,
under this view, by the next step - equally unannounced
and as severe in its application, - the extensive raises of
February 13, unprecedented in -amount. The timing
element adds great persuasion to the total argument
There are also i7iany collateral facts lending further
support, some offered by the General Counsel's witnesses,
many seen in the Respondent's recital of the affirmative
defense it offered. At the hearing Brown called off the
names of no less than 13 employees he hired after the
January layoff; 4 in February, 7 in March, and 2 in May.
Some worked full time, more only served him part time,
and Brown was glad to keep all of them as long as they
were willing to work. He said he can use part-time people
because this is a job shop.', But not one of the seven sent
home in January was recalled. There is no assertion any
had been released for incompetence. With all of this and
the fact Brown promised 'his skilled people he would give
them the money they wanted, a finding of unlawful
motivation, in both the layoffs and the raises, is fully
warranted, unless there is affirmative reason for
concluding otherwise.
The Respondent' s answer to all this starts with two
very simple assertions : business volume declined
throughout the year 1968 and-therefore the staff had to be
reduced, not enough orders were coming in to justify the
payroll. As to the raises the reason was because
competitors were paying more and it was necessary to
increase wages in, order not to lose good people. A
company that is losing business normally does not
increase wages. Nevertheless, it could still be true that in
an effort to build up a failing business , especially in a
'Arnoldware. Inc. 129 NLRB 228
period of rising wages, the technique could be tried. As
Brown talked, and as the Respondent's asserted
explanations became clearer at the hearing, more and
more disturbing questions arose, particularly as to timing,
and he became hard put to account for suspicious
circumstances. Orders received were lowest in November
and December of 1968, and on December 11 Brown had
been told "right after the first of the year close down our
next shift " Why did he wait until January 16'' He said the
layoff notice had to be given on a payday. With I week's
pay always held back, why did it have to be a payday, and
why that particular Thursday) Why was the cut not made
on January 3, also a payday "after the first of the year?"
According to him the pay raise schedule had been finely
fixed and written, chapter and verse, even with details of
improved fringe benefits, before December 20 Brown said
he hinted at this "package" when the employees made
him a gift at the Christmas Party in December Why did
he not then and there tell them of the proposed new wage
scale'? Why did he not give the raise before the Union
appeared on January 16? Why was it not given in any one
of the several weeks that passed before February 13" If
the purpose was to avoid the danger people might be lost
to competitors, why keep the raise a secret so long? How
did retroactivity serve this purpose'? To each of these, and
other questions that arose, asked or unasked, Brown had a
ready answer. And anyone of them, if the particular
question were the only one that could be raised, might be
convincing. Maybe even several such suspicious
circumstances might be disentangled with some decree of
persuasion. Where, however, the questions mount, where
the total situation presents a series of meaningful
coincidences met only with superficially pat replies, logic
and human experience dictate that all be rejected.
It is the timing of the layoffs and the raises, relative to
the Respondent's reaction to the Union's demand for
recognition, that Brown offered to explain away at the
hearing. His testimony went essentially to his state of
mind at the time of the events. Considering his expressed
resentment toward the union activity generally, his overt
and illegal promise to buy off the key men, the extreme
implausibility of statement after statement he made at the
hearing, and his demeanor as a witness, I do not believe
him. I find on the record in its entirety that he chose
January 16 for the layoffs, and granted all these raises,
plus improved vacation and sick leave benefits, when he
did, for the purpose of restraining the employees in their
exercise of the statutory right to self-organization, and to
frustrate any attempt by the Union to win a majority in a
future election By such conduct he violated Section
8(a)(1) of the Act.
Brown insisted at the hearing that the raises, exactly as
announced in February, had been definitively decided
upon long before the Union appeared, and the Respondent
therefore argues there can be no unfair labor practice
finding in the granting of the added benefits. Cf
Doubleday Bros., 163 NLRB No. 144. To prove the point
ne relied on an undated sheet of paper listing employees
names and the exact raises given. He testified that on
December 11, 1968, he advised Bickman, of Boston, raises
were necessary to meet the competition and that with
Bickman's agreement he prepared this document before
December 20. Bickman testified only that the two talked
generally of the advisability, of raising wages.
In its brief the Respondent argues the total testimony
proves that the employees had been told during December
there would be raises, further evidence of preunion
decision on the matter. Brown said that at the company
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Christmas party, on December 20, while speaking to the
employees in appreciation of a holiday gift they gave him
at the celebration, "I told the people that things were
going to be better for them in 1969, that I had a
scheduled raise and benefits for them." "I said after the
first of the year we are all going to get more money." The
collective testimony of many employees who were there
does not clearly support a finding Brown spoke explicitly
about raises, as he said at the hearing. As in every refusal
to bargain proceeding of this type, there were employees
who did not favor the Union, and what with Brown's
intervening promises to satisfy their direct demands
anyway, their testimony at the hearing necessarily
becomes suspect.' John Ashley, Gargiullo, Richard
Pritchard, and Verna Ashley, for the General Counsel,
said they had heard nothing about raises before receiving
them. Randt was at the party but said all he heard were
"rumors" of raises later from other employees Newman.
who was not at the party, said he later heard from others
"Brown was going to come forward with a raise. But
nobody said how much." Testifying for the Company,
Olive Crisman and Margaret Murphy also said they had
heard from others at the party there was going to be a
raise. Jaquish was at the party and quoted Brown "
he went on and was telling us we were going to have a
better year, we were going to have raises and a different
organization after the first of the year." And finally,
Golda Crim: "He said after the first of the year, things
would be a little better. . . he said he thought we were
going to have better conditions."
No doubt at that moment Brown spoke encouragingly
to the employees, but it is reasonable to believe that had
he already made a positive determination to grant such
substantial raises as he said some of them 50 cents per
hour and more and had he really been concerned about
losing these people to competitors, he would have been
much more explicit and clear in his party talk. Indeed,
that was the moment most appropriate of all for winning
allegiance, if in fact it had already been decided to grant
raises. For the least, he could have told them of a future
date. He did not.
Accepting, for the moment, all this vacillating
testimony in its best light for the Respondent, Brown
decided, and told the employees in December, he would
give them raises after the first of the year. By the time of
the Union's first notice to him on January 10 he had not
yet done anything. Why'? He explained that while January
2 and January 9 were paydays, the employees were not
then being paid for work performed in January but rather
for December work, because a week's pay was always
being held back. He gave no coherent reason why, if it is
urgent to raise wages, they must be first announced, and
paid, after the work has been performed On the 10th he
tells his key men it has already been decided to raise their
pay, and again only general phrases from him. If the
theory of defense is that there is nothing illegal in carrying
out an economic program fixed before the inception of
union activities, and if he in fact had the detailed schedule
of new rates in his possession, why did he not then and
there produce it? If January 2 and January 9 were too
early, as paydays to fall within "the first of the year," why
were raises not announced on the next payday, January
16? And again a pat answer: because by this time the
Union had appeared, and it might have been illegal. And
so Brown's testimony continued, less and less convincing
as he proceeded to explain away each following payday
'Quality Markets, Inc, 160 NLRB 44
and why he did nothing until February 13. He even said
that on February 6, also a payday, he finally talked to the
lawyer, who told him he could go ahead. Why did he not
do so? The paychecks had already been made. Why did he
not at least announce the raises, retroactively or
prospectively?
Brown's explanation of the seven layoffs in January was
no more persuasive The company records show that
orders for work received varied greatly from month to
month during 1968, no significant progression up or down
is shown.' It does appear that November and December,
with $18,000 and $14,000, respectively, were well below
the average for the year of $28,000. Monthly shipments
held steady throughout the year, but starting in June the
order balance - outstanding work to be done - - began to
decline steadily. The successive figures are. June,
$117,000; July, $93,000; August, $65,000; September,
$76,000; October, $59,000; November, $48,000, and
December, $27,000. It was this decline of outstanding
orders that Brown said made elimination of the night shift
necessary. He testified, and Bickman corroborated him,
that the matter was decided at a conference between the
two on December 11. It was to be done, in Bickman's
words, "immediately after the first of the year." As
Brown recalled, Bickman told him " . . right after the
first of the year close down our next shift " But he did
nothing about this until January 16, 2 days after the
Union presented its authorization cards. And again the
Respondent came forth with a number of explanations for
seeming inconsistencies in the story
If it had to be "right after the first of the year,"
January 2, a payday, was the perfect target date. Brown
said he was too "busy" the first 2 weeks of the year.
Normally an employer will give some advance notice of
layoffs, especially if he knows it for sure in advance and if
it has already been decided a particular shift is to be
discontinued There was no notice to anyone. The
Respondent says it had to be done on a payday, and when
asked why, Bickman answered only it was more
"palatable" to the discharged employee. Why summary
discharge without notice comes easier one day than
another, he did not say.
There are other facts of record that do not seem to fit
into the assertion that a reduction in force was necessary,
or even achieved. Orders picked up again in February,
March, and April $25,000, $22,000, and $30,000
respectively. More important, there was no drop in work
performed: $28,000 in November and $35,000 in
December. It went to $20,000 in January, $23,000 in
February, $32,000 in March, and $43,000 in April. Brown
hired four persons in February and seven in March. None
of the old people were recalled. The group released was
neither all part-timers nor all night shift. Tubia used to do
full time, from 4.30 p.m to 2 a.m. S Willoughby used to
do 6 hours daily, mornings. Several of the discharged
persons said there was work for them to do at their work
stations when they were released. Brown got around this
by distinguishing between "primary" and "secondary"
operations. He said the primary persons he sent home did
secondary work, which was less in demand at the time. He
also spoke of problems with inspection, and without clear
and definitive explanation somehow associated the
discharged employees with this problem On this entire
'Orders received by month January, $58,000; February, $29,000, March,
$52,000, April, $28,000, May, $6,000, June, $26,000; July, $6,000, August,
$24,000, September, $55,000, October, $26,000, November, $18,000,
December, $14,000
M. H. BROWN CO., INC. 895
subject of secondary work, or inspection problem, his total
testimony is vague and uncertain, and he spoke in
conclusionary words.
No records were produced to show how, or whether,
the total work performed after the layoff compared in one
way or another with the total work done before January
16, so as to prove some form of economy had been
achieved. It is clear, from the record as a whole, that
irregular hours are a normal aspect of this shop's
operations Any number of employees, before and after
January 16, worked here to supplement their regular jobs
elsewhere. Brown admitted he regularly takes any capable
persons he can get, even if they only report at uncertain
times. This is what he described as the very nature of a
"job" shop.
I find that by discharging, on January 16, 1969, the
seven employees named in the complaint and listed in the
margin above, the Respondent violated Section 8(a)(3) of
the Act.
Alleged Denial of Overtime Work
It is a specific allegation of the complaint that, apart
from the seven discharges, from January 16 on the
Respondent deliberately permitted the remaining
employees to enjoy less overtime work than theretofore
for the purpose of discouraging their union activity, and
thereby violated Section 8(a)(1). The record as a whole
does not support this allegation.
Although there did exist generally a day and a night
shift in this plant, variations in hours of daily work were,
and have continued to be a normal aspect of employment
Because, as Manager Brown explained, this is a job shop,
the need for employees is not completely predictable by
the week or even by the day. While some employees did
testify that for short periods after January 16, at least, the
amount of overtime they did was less, the testimony in its
entirety is vague, imprecise , and does not permit any
definitive factual ruling one way or the other.
Employment of part- time people has continued as in the
past, and apparently considerable overtime has also been
performed. In such a situation, and considering the total
testimony, the affirmative proof normally requisite for
establishing the truth of a complaint allegation is lacking
Bargaining Unit: Union's Majority Status
I find, as the complaint alleges and as the answer
admits, that all production and maintenance employees of
the Respondent employed at its Ilion, New York, plant,
excluding all office clerical employees, professional
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act
An exhibit received in evidence pursuant to stipulation
of the parties establishing that on January 14, 1969, when
the demand and refusal occurred, there were 36 employees
at work in this bargaining unit
By January 13, the day before the Union requested
recognition, 20 of these employees had signed union
authorization cards, 9 on January 9, 9 on January 10, 1
on January 11, and the last on January 13 The
authorization cards read as follows-
Membership Application and Authorization Card
I, the undersigned, do hereby apply for membership in
the Mechanics Educational Society of America and
authorize said union to represent me in collective
bargaining This supersedes any previous authorization I
may have given to any other labor organization.
There can be no question but that each person who signed
a card intended at the time to authorize the Union to
bargain for him forthwith.
The Respondent contends that some of the cards ought
not be counted on the ground that they were signed in
consequence of false representations made by the
solicitors. One such card is that of employee Leon Van
Cour On direct examination he testified that when John
Ashley invited him to sign a card "I asked him if there
was any others that signed And he said that the others
had signed already." Van Cour then said, at the hearing,
that had he known "all of them" had not signed, he would
himself have refused On cross-examination he changed
his testimony. "Before I signed it I asked him if there was
any others that signed He said, yes, that the others had
signed. So, I signed the card " As Ashley recalled it Van
Cour asked him "how many had signed" and that he
answered "we did have a majority." I do not think Van
Cour's total testimony suffices for a holding now that he
intended only a conditional authorization of the Union
that day
A lady, Patricia Williams, signed a card before starting
time one morning. She was solicited by Verna Ashley.
Williams' testimony was not consistent. She stated that
when Ashley asked her to sign "I understood her to say
that I was the only one that hadn't signed. . . . the only
one left that hadn't signed." Like Van Cour, she then
commented that but for this statement she would not have
signed As she continued, she was not sure when she
signed, once saying it was the 20th; the card is dated
January 10. Then she added Ashley's quoted statement
"might have been the day before." She then recalled that
because it was time to start work, Ashley said ` "Come on,
hurry up. I've got to get these signed before 8:00 o'clock,'
and that I was the only one that hadn't signed." Ashley's
version of this is that she was at the moment soliciting a
group of three women, Ernestine Lester and B Murphy
together with Williams, and as it was time to start work
she said only Williams of the three had not signed. She
denied saying Williams was the only one remaining in the
entire shop who had not signed. In the circumstances, I
believe her. I see no reason for not counting Patricia's
card.
I find that on January 14, 1969, when Taverna
requested recognition, a majority of the employees in the
bargaining unit had authorized the Union to bargain on
their behalf
Violation of Section 8(a)(5)
There is no merit in the Respondent's argument that
the complaint must be dismissed because the Union added
the designation "Local 10" in its charge and the
designation was restated in the complaint . The cards
authorized Mechanics Educational Society of America,
AFL-CIO, there was no mention of any local at the time
of the events , all correspondence from the Union,
including two direct letters, are purely in the name of the
Society, and whether or not the employees choose to carry
on their internal union affairs through a local, is totally
irrelevant to the issue of this case The appropriate order
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain will run in favor of the Society only.
The ultimate question is whether the preponderance of
the substantial evidence on the record as a whole suffices
to prove that the refusal to bargain, on January 14, was
an act of bad faith intended to gain time to dissipate the
Union ' s representation status so as to preclude a fair
election . I find that , the Respondent ' s refusal to recognize
the Union that day as exclusive representative of the
employees in the appropriate bargaining unit constituted a
violation of Section 8(a)(5) of the Act. The most
persuasive evidence of such illegal motivation are the clear
promises of raises to the more important employees on
January 10,,and the quick discharge of seven others on the
16th. The raises given on February 13, when the
Company's own representation petition was pending,
serves all the more to support the conclusion.
On January 20, Juan Butera, who had refused to sign a
card initially, prepared a statement, for employee
signatures , declaring a desire not to be represented by the
Union. It included the phrase: "We feel we are capable of
resolving whatever differences we may have with M. H.
Brown Co. to our satisfaction, on our own accord ...."
With Maynard Brown's personal approval, he solicited
signatures during working hours in the shop, and obtained
13 names. Among these were six who had signed
authorization cards before the 14th: Hallock, Seaman,
Van Cour, Williams, Richer, and Walters Brown saw this
paper on January 21 and at the hearing he said it was a
major basis for his doubt as to the union majority. He
also said Jaquish and Butera had told him they were
against the Union, "a girl" said the same thing to him on
January 15, Ken Dak likewise "before the 20th," with
Ken Dak adding his brother Clarence felt the same way.
Butera, who circulated the antiunion petition , added that
on January 10, after Brown had held his meetings with the
employees, he, Butera, heard Olive Grisman, Golda Crim,
Lawrence Pupera and Jaquish tell the manager they were
not in favor of the Union. And finally, Hallock testified
he asked employee Gargiullo to return his signed card, but
did not remember when , and that he also told Brown,
about 2 days before January 21, he had changed his mind
It is obvious, both from the testimony of the witnesses
at the hearing and from the documents received in
evidence , that in its organizational campaign the Union
did not succeed in winning 100 -percent adherence. There
was a contrary-minded minority. Nothing of significance
was proved when the Respondent highlighted this fact by
presenting some employees who had not signed union
cards. Of the eight employees mentioned in the oral
testimony, and whose position respecting collective
bargaining Brown now says justified his doubt as to
majority, seven -- Jaquish, Butera, Ken Dak, Clarence
Dak, Olive Crisman, Golda Crim, and Lawrence Pupera
- were not among the card signers. The Respondent
cannot be heard to say it relied on the attitude of these
persons for its rejection of the Union ' s recognition
demand, while at the same time it refused to look at the
authorization cards, offered for its inspection at an earlier
date. It was not shown that Hallock, who did sign a card,
changed his mind before Brown rejected the Union's
demand, or before the coercive interviews he had with all
the employees and the promises of raises See, Sullivan
Surplus Sales, 152 NLRB 132.
As to the antiunion petition , signed by six card signers,
the determinative -fact is that all this came on the 20th, a
week after the refusal to bargain and after the unfair
labor practices committed for the very purpose of
unlawfully influencing the attitude of the employees
generally. No amount of repetition in the Respondent's
brief will alter the fact that the refusal 'Came on January
14, and not January 21 when the Respondent filed its RM
petition. Rural Electric Co , 130 NLRB 799. Once the
necessary effect of intervening unfair labor practices has
come into play, there is no choice but to rely upon the
previously expressed, and duly authenticated written
authorization cards, for later expressions of opinion, be
they by circulated petition or even Board elections, are no
longer reliable methods of inquiry. N.R.L B v. Gissel
Packing Co , 395 U S 575.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V. THE REMEDY
It having been found that the Respondent committed
certain unfair labor practices, it must be ordered to cease
and desist from further such conduct and to take certain
remedial action designed to effectuate the policies of the
Act. The Respondent unlawfully refused to bargain with
the Union on demand, accordingly it must be ordered to
bargain with that Union, in the unit found appropriate,
upon demand, and in the event an agreement is reached,
to embody such understanding in a signed agreement. It
having been found that the Respondent unlawfully
discriminated against seven employees by discharging
them it must be ordered to make them whole for any loss
of,earnings they may have suffered in consequence of the
unlawful discrimination and to offer them reinstatement.
The unfair labor practices committed were so extensive in
scope that the remedial injunction must be against further
commission of any kind of unfair labor practices
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act.
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed
at the Respondent's Ilion, New York, plant, excluding all
office clerical employees, professional employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
4. The Union was on January 14, 1969, and at all times
thereafter has been the exclusive collective-bargaining
representative of the Respondent's employees in this
appropriate unit within the meaning of Section 9(a) of the
Act.
5. By refusing to bargain with the above-named labor
organization in good faith the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6 By discriminating against Albert Jennett, Howard
March, Gary Smithson, Shirley Willoughby, Robert
M. H. BROWN CO., INC.
Willoughby, Ralph Thiede , and Anthony Tubia in their
employment the Respondent has illegally discouraged
membership in the Union and thereby violated Section
8(a)(3) of the Act.
7. By the foregoing conduct , by coercively interrogating
employees concerning their union activities, and by
promising and by granting increases in wages for the
purpose of discouraging union activities , and by giving
increased vacation and sick leave benefits, the Respondent
and its agents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, I recommend
that M H Brown Co ., Inc., Ilion , New York, its officers,
agents, successors , and assigns , shall.
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Mechanics Educational Society of America, AFL-CIO, as
the exclusive representative of all employees in the
bargaining unit.
(b) Discharging its employees or otherwise
discriminating against them in their employment because
of their union activities.
(c) Coercively interrogating employees concerning their
union activities , promising to give and granting increases
in wages for the purpose of discouraging union activities,
giving increased vacation and sick leave benefits, or in any
other manner interfering with, restraining or coercing its
employees in the exercise of their rights to self
organization , to form , join, or assist any labor
organization , to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any and all such activities.
2 Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request , bargain collectively with the Union
as the exclusive bargaining representative of all employees
in the appropriate unit described above, with respect to
rates of pay, wages, hours of employment , and other
terms and conditions of employment , and if an
understanding is reached embody such understanding in a
signed agreement.
(b) Offer Albert Jennett , Howard March, Gary
Smithson , Shirley Willoughby, Robert Willoughby, Ralph
Thiede, and Anthony Tubia immediate and full
reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other
rights and privileges , and make them whole for any loss of
pay which they may have suffered as a result of the
discrimination against them , in the manner set forth in
that portion of this Decision entitled "The Remedy "
(c) Notify Albert Jennett , , Howard March, Gary
Smithson , Shirley Willoughby, Robert Willoughby, Ralph
Thiede , and Anthony Tubia , if they are serving in the
Armed Forces of the United States, of their right to full
reinstatement , upon application , in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended , after discharge from the
Armed Service Forces.
(d) Preserve and, upon request , make available to the
Board , or its agents , for examination and copying, all
897
payroll records, social security payment records,
timecards, personnel records and reports, and all records
necessary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its plant in Ilion, New York, copies of the
notice attached hereto and marked "Appendix "" Copies
of said notice, on forms provided by the Regional
Director for the Third Region, shall, after being signed by
the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps it has
taken to comply herewith Y
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of the United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that-
WE WILL NOT refuse to bargain collectively with
Mechanics Educational Society of America, AFL-CIO,
as the exclusive representative of the employees in the
bargaining unit described below.
WE WILL bargain collectively, upon request, with this
Union as the exclusive representative of all our
employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and if
an understanding is reached embody such understanding
in a signed agreement The bargaining unit is:
All production and maintenance employees, excluding
all office clerical employees, professional employees,
guards and supervisors as defined in the Act
WE WILL NOT discharge or otherwise discriminate
against our employees because of their union activities.
WE WILL NOT coercively interrogate employees
concerning their union activities, promise them or grant
them wage increases or give increased vacation and sick
leave benefits, for the purpose of discouraging union
activities
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization, to form, join or assist any labor
organization , to bargain collectively through
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives of their own choosing and to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer Albert Jennett, Howard March, Gary
Smithson , Shirley Willoughby, Robert Willoughby,
Ralph Thiede, and Anthony Tubia immediate and full
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other
rights and privileges, and make them whole for any loss
of pay which they may have suffered as a result of the
discrimination against them.
All our employees are free to become or remain
members of any union of their choice , and we will not
punish them in any way if they do.
Dated By
M. H. BROWN Co., INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Fourth Floor,
The 120 Building, 120 Delaware Avenue, Buffalo, New
York 14202, Telephone 716-842-31 12