Martin A. Gleason, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1977

233 N.L.R.B. 1307 (N.L.R.B. 1977)

MARTIN A. GLEASON, INC.
Martin A. Gleason, Inc. and Local 100, Service
Employees International Union, AFL-CIO
Gutterman Funeral Home, Inc. and Local 100, Service
Employees International Union, AFL-CIO. Cases
29-CA-3602 and 29-CA-3604
December 19, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On December 6, 1974, the National Labor Rela-
tions Board issued its Decision and Order' in this
proceeding finding that Respondents had violated
Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, by locking out their
employees and conditioning their return to work
during the lockout upon their resignation from the
Union. Accordingly, the Board ordered Respondents
to cease and desist from engaging in these unfair
labor practices and to reimburse such employees for
earnings lost during the period of the lockouts.
Subsequently, on March 3, 1976, the United States
Court of Appeals for the Second Circuit denied
enforcement of the Board's Order,2 holding that the
lockout itself was lawful. The court, however,
remanded the case to the Board to resolve credibility
issues relating to the issue of whether Respondents
had encouraged their employees' resignations from
the Union and thereby used the otherwise lawful
lockout for an unlawful purpose in violation of
Section 8(a)(l) and (3) of the Act. In doing so,
however, the court held that even if Respondents
were found to have engaged in such unlawful
conduct no backpay would be due the employees
since any loss of pay incurred by them was
attributable to the lawful lockout.
On November 22, 1976, the Board remanded the
case to the Administrative Law Judge for the purpose
of making and issuing additional findings of fact,
conclusions of law, and recommendations in accor-
dance with the court's remand.
On August 9, 1977, Administrative Law Judge
Irving M. Herman issued the attached Supplemental
Decision in this proceeding. Thereafter, General
Counsel filed exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
court's opinion, the exceptions and brief and has
233 NLRB No. 187
decided to affirm the rulings, findings, and conclu-
sions 3 of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Martin A.
Gleason, Inc., New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed to the extent that it alleges
violations not found.
I Martin A. Gleason, Inc., 215 NLRB 340(1974).
2 N.LR.B. v. Martin A. Gleason, Inc., 534 F.2d 466 (C.A. 2, 1976).
3 In order to correct an inadvertent omission, the Administrative Law
Judge's Conclusion of Law 3 is hereby amended to delete the words
"Section 8(aX 1)" and substitute therefor the words "Section 8(aX)) and (3)."
SUPPLEMENTAL DECISION
IRVING M. HERMAN, Administrative Law Judge: On July
30, 1974, I issued a Decision in this proceeding, finding,
insofar as here pertinent, that Respondents had violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, by locking out their licensed funeral
directors and conditioning their return to work upon their
resignation from the Union; and recommending that
Respondents be ordered to cease and desist therefrom and
to reimburse such employees for earnings lost during the
period of the lockouts. On December 6, 1974, the National
Labor Relations Board entered its Decision and Order
affirming these findings and adopting such recommended
Order.'
On March 3, 1976, the United States Court of Appeals
for the Second Circuit denied enforcement of the Board's
Order and remanded the matter to the Board for the
purpose of making additional findings of fact based on the
present record, including credibility resolutions, and
determining, based thereon, whether, in accordance with
guidelines set forth in the court's opinion, Respondents had
violated the Act.2
On November 22, 1976, the Board ordered the proceed-
ing remanded to me for the purpose of making and issuing
I Martin A. Gleason, Inc., 215 NLRB 340 (1974).
2 Martin A. Gleason, Inc., 534 F.2d 466 (1976). The remand did not
embrace the issue of a backpay award, the court resolving that question by
finding that any "loss of earnings was caused by the lawful lockout, and not
by any subsequent wrongful conduct by the employers" (Id at 479),
notwithstanding the impact any unfair labor practices which may be found
herein might have had on the legality of the lockouts ab inirio (the court's
rejection of the Board's position on the principal issue in N.L R. B. v. Brown,
John, et al. d/b/a Brown Food Stores et al., 380 U.S. 278 (1965), affg. 319
(Continued)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
additional findings of fact, conclusions of law, and
recommendations in accordance with the court's remand.3
Pursuant to the foregoing, and upon the entire record,
including my observation of the witnesses, I make the
following supplemental findings and conclusions, adopting,
to the extent consistent with the court's opinion, such
findings and conclusions as appear in my Decision of July
30, 1974:
I. THE FACTS
A. Gleason 4
I credit the essence of the testimony of Frank Connelly,
Sr. Despite minor memory lapses and his uncertainty on
cross-examination whether the statements he attributed to
Gleason were made at the October 13 meeting with
Gallagher and Philipps, or at the October 15 meeting with
his son and Union Agent Benson, 5 he impressed me as an
honest witness, intent upon the truth, particularly in
contrast to Gleason who, as indicated in my earlier
decision, was adroit at evasion, and whose testimony in
material and significant respects was self-contradictory, as
well as inconsistent with that of Gallagher and Philipps,
Gleason's other witnesses. Moreover, the kernel of Connel-
ly's testimony finds support in varying degree in the
evidence furnished by each of Gleason's three witnesses.
On the testimony as a whole, I find that, in response to
Gallagher's question about alternatives, Gleason informed
the employees present at the October 13 meeting that they
had to resign from the Union for the duration of the
lockout and prove that they had done so in order to return
to work; that he assured them, in response to Connelly's
questions, that a no-recrimination clause would be incor-
porated in any agreement reached so as to bar any vengeful
act by the Union therefor and permit their reentry into the
Union; and that Gleason concluded the meeting by saying
he did not expect an immediate decision on his proposal,
but that they should think about it and call him later to
advise him what they had decided. While all of Gleason's
witnesses agreed that Gleason himself made no reference
to resignations at the October 13 meeting, Gleason twice
testified that he believed Gallagher had mentioned the
subject on that occasion although he later testified, upon
being recalled to the stand by his counsel following a
recess, that the question of resignations had "[a]bsolutely
not" been raised by anyone. 6 Moreover, Gallagher con-
F.2d 7 (C.A. 10 1963), did not reach the validity of the Board's
determination that, given the violation, backpay was warranted for the
entire period of the lockout (137 NLRB 73, 75, 81-82); or at least on their
continued legality after the commission of such acts as might have
constituted a waiver of the lockout privilege, possibly leaving the case at that
point in essentially the same posture as Phelps Dodge Corp. v. N. L. R. B., 313
U.S. 177, 187-188 (1941). See, generally, Hale, Unconstitutional Conditions
and Constitutional Rights, 35 Colum. L. Rev. 321, 326-327, 352, 358-359
(1935).
3 The Board inadvertently included Walter B. Cooke, Inc., Case 29-CA-
3605, in the caption of its Order of remand despite the dismissal of the
complaint as to that Respondent in its original Decision and the
noninvolvement of that Respondent in the enforcement proceeding.
I As in my original Decision, Gleason and Gutterman are the responsible
officials, respectively, of Gleason and Gutterman, the Respondents herein.
I Connelly Jr.'s testimony was considerably more vague, and I have
credited him only insofar as he has been corroborated or his testimony
stands undenied.
firmed Connelly Sr.'s testimony that the latter had asked
questions of Gleason at the October 13 meeting and,
although Gallagher could not recall the nature of the
questions, there is no contradiction of Connelly's testimony
that they related to the employees' ability to rejoin the
Union if a contract were reached. Such questions, of
course, could only have been relevant if the matter of
resignations had arisen. And the failure of any of
Respondents' witnesses to advert to it in their testimony
would suggest that their account of Gleason's position at
the meeting was far from accurate.
Further indicating that Gleason did not take the position
at that meeting that he could not even discuss the question
of alternatives are the circumstances surrounding his sharp
departure from such a position as the evening progressed.
While his testimony rested his post-meeting conduct on his
belief that he was relieved of the requirement of silence
imposed by the Act only because Gallagher and Philipps
had firmly told him on the phone that they were going to
resign from the Union,' Philipps at least told quite a
different story. As Philipps describes his phone call, his
initial statement that he would like to go back to work
elicited Gleason's reply, "Well, do you know what you
have to do?" And it was at that point that he announced
that he would resign by responding, "Yes, I do. I believe I
have to sever myself from Local 100." Thus, contrary to
Gleason's testimony that he could say nothing until the
employees insisted on resigning, it appears from Philipps'
testimony, which I credit in this respect, that Gleason
imposed a condition to his return to work which Philipps
knew was his resignation from the Union; and, further,
that the condition was imposed at the virtual outset of the
conversation, when Philipps had said no more than
Gallagher had said at their earlier meeting. This lends
additional credence to the senior Connelly's version of that
meeting, particularly his testimony that Gleason told the
employees to think over his proposal and to call him later
to inform him of their decisions; s8 and indicates that the
subsequent phone calls that day were followups on the lead
given at the meeting by Gleason, or, stated differently, that
the phone calls were the two employees' responses to the
invitation earlier extended by Gleason after the employees
had had an opportunity to reflect on its acceptance and, at
least in Philipps' case, to discuss it with his wife -
responses which amounted to acceptances of job offers in
6 This testimony was given during the same supplemental direct
examination in which he made the further statement that he had an
additional motive for the lockout beyond the one expressed to the
employees, which I have already discredited in my original Decision (215
NLRB at 348, fn. 38) as "completely fabricated." That fabrication, in my
opinion, undermines not only Gleason's general credibility but particularly
the accompanying statement herein mentioned.
7 Indeed, Gleason testified that these employees' mere declarations that
they wanted to resign only evoked the response that he could not tell them
what to do even though they repeated this desire, and that he did not feel
free to discuss the details until they insisted that they had decided to resign.
Gallagher's testimony indicates that his insistence had not been quite that
strong but, rather, that Gleason reacted positively as soon as Gallagher
made the suggestion.
8 It would seem more than mere coincidence- orjust a lucky guess-
that Connelly would attribute to Gleason a request for phone calls, the
precise means employed by both Gallagher and Philipps to report their
decisions.
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MARTIN A. GLEASON, INC.
light of the further promise of protection against later
union retaliation.
I further find, in the absence of any denial by Gleason,
that he imparted substantially the same message to
Connelly Jr. on October 15 that he had communicated to
the other employees on October 13.
B. Gutterman
I credit Gutterman's denial that union resignation was
mentioned when he advised his employees that they were
out of work. I was as impressed with his straightforward
manner on the witness stand as I was unimpressed with
Tolomie who seemed unduly anxious to please the union
representatives present and whose testimony was evasive
and internally inconsistent. I am also unable to credit
Marinaro's testimony concerning resignation because I
cannot believe that such a dedicated union member 9
would have neglected to report the matter to Union
Official Benson whom he saw later that day, but would
have waited an entire week before reporting it, and then
only in response to a specific question from the Union's
attorney at a picket captains' meeting.
II. ANALYSIS
A. Gleason
In my opinion the above findings, together with my
findings in the earlier Decision concerning Respondent
Gleason's firm insistence on the precise manner in which
resignation was to be accomplished and proven, leave no
room for doubt that Gleason did exactly what the court's
opinion said "[n o employer can" do in the way of
inducing resignation from a union. 534 F.2d at 477-478.
Although this would thus seem determinative of the
critical issue, however, the court suggested, for purposes of
clarification and the avoidance of obscurity and confusion,
that the teachings of the relevant cases be applied through
the analytical framework of N.L.R.B. v. Great Dane
Trailers, Inc., 388 U.S. 26 (1967). As the court of appeals
here observed (534 F.2d at 473, fn. 6), Great Dane
dichotomized discrimination into (1) conduct inherently
destructive of important employee rights, as to which no
proof of antiunion motivation is needed and the Board can
find an unfair labor practice even in the face of employer
evidence that the conduct was motivated by business
considerations; and (2) conduct with a lesser adverse effect
or carrying a potential for adverse effect on employee
rights, as to which antiunion motivation must be proved if
the employer has come forward with evidence of legitimate
and substantial business justifications. 388 U.S. at 34-35.
And speculation is not permitted upon what might have
constituted a justifiable business purpose, the employer
being bound by his failure of proof. Ibid. N.L.R.B. v.
Fleetwood Trailer Co., 389 U.S. 375, 378, 380 (1967). The
court here, moreover, has foreclosed a finding of inherent
destructiveness, as well as one of unlawful motivation in
the lockout itself, leaving open only the questions of
I He was senior shop steward, as well as a member of the bargaining
committee, and had served as a picket captain.
10 N.L.R.B. v. Truck Drivers Lzoal Union No. 449, International
weighing the employer's conduct in terms of the legitimacy
and substantiality of the business justification advanced by
it, and balancing such asserted justification against the
employee rights threatened. 534 F.2d at 473, fn. 6.
While, as stated, I am bound not to find unlawful
motivation in the lockout as such, I do not deem
necessarily precluded a finding that Respondent Gleason's
asserted justification for its overall conduct was not its true
motive, and I believe such a conclusion is fairly inferable
from its belated and incredible effort to prove an
additional motive never suggested to the employees (supra,
fn. 6). Cf. N.L.RB. v. Dinion Coil Co., 201 F.2d 484, 487
(C.A. 2, 1953).
Quite apart from this, and even accepting at face value
the defensive motive asserted to the employees, based upon
Buffalo Linen O and Brown, supra, I do not find it
sufficiently legitimate or substantial to justify the harm to
the employees' statutory rights mentioned in my original
Decision (215 NLRB at 347) and expanded upon by the
court (534 F.2d at 478). The justification found in Buffalo
Linen for the deprivation of the employees' work opportu-
nities was the preservation of the integrity of the multiem-
ployer bargaining unit by counteracting the whipsaw
effects of the strike. Brown found the same interest of the
nonstruck employers to warrant their continued operation
for the period of the lockout through the hire of temporary
replacements, thus enabling them to compete with the
struck members of the unit. But it is essential to bear in
mind the extent to which the scale was tipped by such a
balancing of the respective interests and the purpose served
thereby. Thus, the Court specifically disavowed any
intention in Brown to achieve full equalization between the
struck and nonstruck employers in the bargaining unit by
stating that it was not deciding whether nonstruck
employers could hire permanent replacements for their
locked-out employees if the struck employer had invoked
its right to do so. Brown, supra at 292, fn. 6. But granting
Respondent Gleason's claim in the instant case would even
go beyond equalization and would thus fail to serve the end
sought in Buffalo Linen and Brown. Rather, Respondent
Gleason here seeks an advantage not enjoyed by the struck
employers, i.e., the privilege to continue operations with its
regular employees. And at the same time, the effect on the
employees' statutory rights would be aggravated by the
induced resignations with resultant debilitation of the
Union. True, an employer might normally prefer that its
work be done by its own employees instead of by
inexperienced outsiders, but Respondents' inability to do
so was simply the consequence of its having chosen to
exercise its lockout prerogative, in the same way that
strikers forgo their current working benefits.'I As the Court
observed in American Ship Bldg. v. N. LRB., 380 U.S. 300,
309 (1964), "the right to bargain collectively does not entail
any 'right' to insist on one's position free from economic
disadvantage."
Respondent Gleason has failed to show that it could not
have preserved the integrity of the bargaining unit by
invoking its Brown right to hire temporary replacements.
Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of
A merica AFL [Buffalo Linen Supply Co.l, 353 U.S. 87 (1957).
" Indeed, economic strikers even risk permanent replacement.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unlike Brown, where denial of the privilege there sought by
the employers would have meant that the nonstruck
employers could have carried on their business during the
strike only by forgoing their Buffalo Linen lockout
privilege, Respondents here could have locked out its
employees and continued to operate its business in
precisely the same way as the struck employers. It was not
entitled to more through the process of inducing resigna-
tions from the Union. Indeed, it was the only employer of
the 32 in the bargaining unit and of the 18 engaging in the
lockout that sought this additional advantage. If Brown
preserved the integrity of the unit by restoring the ability of
the nonstruck employers to compete with their struck
fellows, then the competitive advantage here claimed by
Gleason would destroy that integrity by weakening the
struck employers pro tanto. I accordingly find that
Respondent Gleason thus violated Section 8(a)(1) and (3)
of the Act.
B. Gutterman
In view of the failure of proof as to the complaint against
Gutterman I would dismiss the complaint in Case 29-CA-
3604.
CONCLUSIONS OF LAW
1. Respondents are employers 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.
3. Gleason has violated Section 8(a)(1) of the Act by
inducing its licensed funeral directors to resign from the
Union as a condition to their return to work during the
period of the lockout.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Gutterman did not violate the Act as charged.
THE REMEDY
Bound in the present posture of the case, as noted supra,
fn. 2, not to recommend a backpay award, and in view of
the court's conclusion that no conduct here was " 'inher-
ently destructive' of important employee rights" (534 F.2d
at 473, fn. 6), I confine my recommended Order to
requiring Gleason to cease and desist from the unfair labor
practices found and from violating the Act in any like or
related manner, together with the usual posting of notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
ORDER 12
Respondent Martin A. Gleason, Inc., New York, New
York, its officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Inducing or encouraging any employee to resign from
Local 100, Service Employees International Union, AFL-
CIO, as a condition to his return to work for the duration
of any lockout.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its principal place of business at New York,
New York, and at such other establishments as it may
operate, copies of the attached notice marked "Appen-
dix." 13 Copies of said notice on forms provided by the
Regional Director for Region 29, after being duly signed by
an authorized representative of Respondent Martin A.
Gleason, Inc., shall be posted by said 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
said Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps said Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint against
Gutterman Funeral Home, Inc., be dismissed.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
13 In the event that the Board's 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any employee to
resign from Local 100, Service Employees International
Union, AFL-CIO, as a condition to his return to work
for the duration of any lockout.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights under the National Labor Relations Act.
MARTIN A. GLEASON, INC.
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