Mgr Equipment Corp.

National Labor Relations Board - Board Decisions

Sep 26, 1984

272 N.L.R.B. 353 (N.L.R.B. 1984)

MGR EQUIPMENT CORP 353
MGR Equipment Corp. and Local 810, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and MGR
Employees Union, Party to the Contract. Case
29-CA-10082
26 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 3 May 1984 Administrative Law Judge
Thomas T Trunkes issued the attached decision
The Respondent filed exceptions and a supporting
brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, MGR Equipment Corp, Inwood, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied
1 Substitute the following for paragraph 1(d)
"(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights to self-organization, to form,
join, or assist Local 810, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organiza-
tion, to bargain collectively through representatives
of their own choosing, and to engage in other con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to re-
frain from any or all these activities"
2 Substitute the attached notice for that of the
administrative law judge
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The Order provision requinng the Respondent to cease and desist
from violating employee nghts 'in any other manner" is modified to 'in
any like or related manner" because in our view the Respondent has not
shown a proclivity to violate the Act or a general disregard for employ
ees' fundamental statutory nghts See litckmott Foods, 242 NLRB 1357
(1979)
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 ordered us to post and abide by this notice
WE WILL NOT interfere in the formation or ad-
ministration of MGR Employees Union, or any
other labor organization of our employees, or give
support to that labor organization
WE WILL NOT offer, promise, or grant wage in-
creases, increases in vacation time, or any other
benefits for the purpose of discouraging member-
ship in, or adherence to, Local 810, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor
organization
WE WILL NOT maintain in effect our existing col-
lective-bargaining agreement with MGR Employ-
ees Union, however, existing benefits will not be
disturbed
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to
form, Join, or assist Local 810, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organi-
zation, to bargain collectively through representa-
tives 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 and all such activities
WE WILL withdraw and withhold all recognition
from MGR Employees Union as the bargaining
representative of our employees for the purpose of
dealing with us concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until
that Union shall have been certified as their repre-
sentative by the Board
MGR EQUIPMENT CORP
DECISION
STATEMENT OF THE CASE
THOMAS T TRUNKES, Administrative Law Judge The
above-captioned case was heard in Brooklyn, New York,
on May 25 and 26, 1983, based on a charge filed by
Local 810, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(Local 810 or the Charging Party), on November 22,
272 NLRB No 67
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1982,' and a complaint issued on January 5, 1983, alleg-
ing that MGR Equipment Corp (Respondent) violated
Section 8(a)(2) and (1) of the National Labor Relations
Act (the Act), by participating in the formation of, and
sponsoring and encouraging the organization of, the
MGR Employees Union (the Employees Union), and by
offering, promising, and granting to its employees wage
increases, vacations, and other benefits and improve-
ments in their working conditions and terms of employ-
ment to induce them to refrain from becoming or re-
maining members of Local 810, and to induce them to
designate the Employees Union as their collective-bar-
gaining agent In addition, the complaint alleges that
about October 28 Respondent recognized the Employees
Union as exclusive collective-bargaining agent of its em-
ployees in a unit consisting of all production employees,
and that about November 4 Respondent and the Em-
ployees Union executed and enforced the collective-bar-
gaining agreement, notwithstanding that at no time did
the Employees Union represent an uncoerced majority of
the employees in said bargaining unit Respondent filed
an answer, denying the commission of the alleged unfair
labor practices All parties participated at the hearing
and had full opportunity to adduce evidence, examine
and cross-examine witnesses, argue orally, and file briefs
Oral arguments were presented at the close of the hear-
ing by counsel for the General Counsel, counsel for the
Charging Party, and counsel for Respondent In addition,
Respondent submitted a timely brief and the General
Counsel submitted a letter in lieu of a brief 2
The principal issues raised at the hearing were as fol-
lows
(1) Whether Jacob Credell is an agent of Respondent?
(2) Whether Respondent particpated and assisted in the
formation of the Employees Union?
(3) Whether Respondent promised and granted wage
increases and other benefits to its employees in order to
discourage them from joining Local 810 and to encour-
age them to form the Employees Union?
(4) Whether the Employees Union represented an un-
coerced majority of employees in an appropriate unit at
the time recognition was accorded to it by Respondent?
On the entire record, including my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent, a New York corporation, with offices and
principal place of business located in the Village of
Inwood, Nassau County, New York, is engaged in the
manufacture, sale, and distribution of refrigeration equip-
ment and related products During the past year, Re-
spondent purchased and caused to be transported and de-
livered to its Inwood, New York facility refrigeration
equipment and other goods and materials valued in
excess of $50,000, of which goods and materials valued
' All dates hereinafter will refer to 1982, unless otherwise specified
2 The General Counsel, simultaneously with submitting her bnef, made
a motion to correct transcnpt refernng to 11 errors found in the tran
script Having received no objections to the motion by any of the parties,
I grant the motion to correct the transcnpt
in excess of $50,000 were delivered to its plant directly
from States of the United States other than the State of
New York Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATIONS
Respondent admits, and I find, that both Local 810
and the Employees Union are, and have been at all times
material herein, labor organizations within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent operates a plant in Inwood, New York,
where it manufactures, sells, and distributes refrigeration
equipment and related products The president of Re-
spondent is Gerald Ross and the vice president is George
Mahnder, both admittedly supervisors within the mean-
ing of Section 2(11) of the Act Undisputed testimony es-
tablished that another individual named Al Gerald is a
foreman at the plant 3 In addition to the above, all par-
ties stipulated that as of November 8-9, 1982, there were
32 employees in the appropriate unit
The parties further stipulated that on October 20,
1981, Local 810 filed a petition to represent the produc-
tion, maintenance, and shipping and receiving employees
of Respondent, the precise unit presently represented by
the Employees Union An election was conducted by the
Board on November 20, 1981, in which 22 eligible voters
participated Eight votes were cast for Local 810, 13
votes were cast against it The results of the election
were certified on February 1, 1982, indicating that a ma-
jority of the employees had not selected Local 810 as
their collective-bargaining representative
In addition, the parties stipulated that on October 19,
1982, Local 810 filed an unfair labor practice charge
against Respondent alleging, in substance, that about Oc-
tober 13, Respondent discriminatorily discharged em-
ployee Jose DeJesus The parties further stipulated that
Region 29 dismissed the charge on December 30, 1982,
and said dismissal was affirmed by the Office of Appeals
of the General Counsel
Luther Quinones, an organizer for Local 810, testified
that throughout 1983 he and another organizer, David
Popek, were in the vicinity of Respondent's plant for the
purpose of organizing another facility and to speak with
the employees of Respondent Throughout 1983, several
times a week they held conversations with employees of
Respondent at a lunch wagon which was stationed at the
back entrance of the plant Sometime in September, sev-
eral employees, including Jacob Credell, asked for union
authorization cards During the course of the next 2
months, a majority of the unit employees had signed
cards authorizing Local 810 to represent them Mean-
3 Foreman Gerald is not Involved in the Instant proceeding, and no
evidence was presented relating to his supervisory status Accordingly, it
is unnecessary to make a determination whether or not he is a supervisor
within the meaning of Sec 2(11) of the Act
MGR EQUIPMENT CORP 355
while, in October, employee Jose DeJesus was dis-
charged by Respondent On October 21, Quinones, ac-
companied by fellow organizers Popek and DeJesus, dis-
cussed the discharge of DeJesus with Ross, president of
Respondent The Local 810 representatives requested re-
instatement of DeJesus, but Ross would not acquiesce
Quinones indicated to Ross that sometime in the future if
Local 810 became the bargaining agent of the employees,
the reinstatement of DeJesus would be proposed at the
negotiation table At no time during this conversation
were Local 810 agents informed by Ross that Respond-
ent's employees were forming their own committee and
their own union
By November 9, Local 810 had acquired 23 union au-
thorization cards from Respondent's employees On that
date Quinones and Popek met with Ross and,Vice Presi-
dent Mahnder Quinones informed Ross that he had 23
union authorization cards and requested recognition Ac-
cording to Quinones, he handed the cards to Ross who
asked his bookkeeper to check the signatures After the
check was made, the bookkeeper informed Ross that the
signatures were genuine Quinones then asked for recog-
nition to which Ross responded that he would contact
his lawyer before making a decision To date, Respond-
ent has not responded to the request for recognition
Quinones then testified that he and Popek explained to
the employees what had happened One of the employ-
ees informed him that, "there was a piece of paper going
around asking permission for the company to talk to
them They would sign it I asked for a copy of it I
didn't get a copy of it so I don't know what it said, but
this is what was said, after I told him what I had done
inside the office"
David Popek, another organizer for Local 810, con=
firmed in essential details the testimony of Quinones He
added that during the November 9 request for recogni-
tion, at no time did Respondent's representative inform
him that employees had signed union cards and were al-
ready covered by the terms of another collective-bar-
gaining agreement He also stated that after he and Quin-
ones departed from the premises he met with several em-
ployees, including Credell, who informed him that "he
was forced to go around with a petition" Popek further
stated that, in a conversation with Credell on November
24, Credell stated that Ross and Mahnder called him to
their office, gave him a sheet "to go around with," and
told him that they were going to give the employees a
10-percent raise During the same conversation, Popek
informed Credell that Quinones' car had been stolen, and
all the union authorization cards, which Ind been in the
car, were gone He asked Credell to sign a second card
which he did at that time 4
The General Counsel called as her last witness Gerald
Ross, president of Respondent He identified various pay-
roll records of Respondent which were received into
evidence He testified that the records indicated that
Credell had received 80 hours paid vacation on the pay
week ending January 20, 1982 When asked if the payroll
4 Popek testified that Credell had signed a card earlier at a time when
he handed to Popek 17 union authonzation cards acquired from other
unit employees
register further indicated that Credell received a third
week of paid vacation in the pay week ending November
29, Ross responded as follows "I would say that it is
poossible I'd have to check this with my bookkeeper It
would appear to me that Mr Credell was given a week's
advanced vacation applicable to 1983 " He further ac-
knowledged that nothing on the payroll records indicat-
ed that the payment was an advance payment to Credell
B Activity of the Employees Union
Jacob Credell, an employee of Respondent, and the
first and only president of the employees' Union, was the
sole witness called by Respondent Credell testified that
employee Kelvin Allen requested that he speak to Re-
spondent about an increase in wages Thereafter, Credell
asked Ross to grant Allen a wage increase Ross re-
sponded that, as other employees had asked him for a
raise at various times, Credell should form a committee
after which further discussion relating to wage increases
would be conducted
Credell further asserted that on September 19 he had
spoken to a lawyer about the legality of forming an em-
ployees' union and was told that this was perfectly legal
Thereafter, Credell spoke to the production employees in
the shop during working hours and circulated a petition
which was signed by a majority of employees on Octo-
ber 28 He stated that none of Respondent's representa-
tives was present at the time he obtained said signatures
Although the petition was dated October 28, 1982, Cre-
dell could not identify who had placed the date on the
petition, which he presented on the same day to Ross
and Mahnder requesting that Respondent's agents recog-
nize and negotiate with his group Ross answered that he
would consult with his attorney, whereupon Credell re-
turned to the work area and informed his fellow workers
what had occurred Credell further testified that on Oc-
tober 29 Ross handed him a letter stating that Respond-
ent would recognize and deal with the employees Cre-
dell posted the letter on Respondent's bulletin board
over the timecards 5 Thereafter, Credell spoke with em-
ployees in the shop and they agreed upon certain de-
mands to be made to Respondent Credell believed that
the demands were written on October 29 Ross respond-
ed that he would discuss the proposals with his partner
and get back to the employees The next day, Ross
called Credell and other committee members to his office
and discussed contractual terms Most of the items re-
quested by the employees were granted except for a 75-
cent-an-hour increase in pay Instead, Ross stated that he
would give each employee a 10-percent increase in
salary Thereafter, 22 of 28 employees voted to accept
Respondent's proposals Credell and the committee then
returned to Ross' office and requested a contract as soon
as possible Although Respondent wanted a 2-year con-
tract, the employees insisted on a 1-year contract which
was granted According to Credell, he requested that
Respondent draft the contract, which was done, and
eventually a contract was signed on November 4, 1982,
effective for 1 year
5 Although allegedly wntten by Ross, the letter was not signed
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination, Credell testified that at no time
before 1982 had Ross urged him to speak to employees
with respect to forming a union He further testified that
at no time when Credell discussed the formation of a
union with his fellow employees was Local 810 dis-
cussed, although Credell conceded that at the time he
was aware of Local 810's organizing campaign Al-
though he admitted signing a union authorization card
after his conversation with the employees regarding the
formation of an independent union, he denied taking part
in the distribution of Local 810 cards He further testified
that he was not sure whether or not he received a third
week of paid vacation for 1982 Credell conceded that
Ross had given him permission to speak to the employ-
ees while on the premises during working hours with re-
spect to the formation of the Employees Union He fur-
ther admitted that the Union had no money, and he had
no idea how arbitrators are picked, should the arbitration
clause of the contract be invoked
Credell denied having a conversation with Popek con-
cerning the circulation of a petition He did admit that
Popek requested that he sign a second union authoriza-
tion card in November, which was done He reluctantly
admitted to having signed a card previously Again, he
denied having handed to Popek any union authorization
cards from other employees
On redirect examination, Credell testified that during
conversations with employees with respect to the forma-
tion of the Employees Union, he did explain to fellow
employees why Local 810 would not be to their advan-
tage
In addition to the oral testimony of the witnesses pre-
sented by the parties, all parties stipulated to the follow-
ing set of relevant facts
1 The appropriate bargaining unit consisting of pro-
duction and maintenance employees on November 8-9,
1982, consisted of 32 employees
2 On November 11, Local 810 filed a petition for an
election which was blocked by the instant matter
3 As of November 4, the only employee of Respond-
ent covered by the collective-bargaining agreement who
had 6 years of service was Manuel Arreaga
4 Angel Lopez was terminated in February 1983, at
which time he received 2 weeks' vacation pay His se-
niority date was March 10, 1981
5 Subsequent to November 4, 1982, a second employ-
ee named Ron Phillips was terminated and did not re-
ceive any accrued vacation pay because he had not suffi-
cient seniority at that time
6 The only unit employee who will be eligible to re-
ceive 3 weeks' vacation in 1983 under the terms of the
contract was Jacob Credell, whose seniority date was
April 14, 1977
7 Prior to the effective date of the collective-bargain-
ing agreement (November 4, 1982), the employer's paid-
vacation policy had been that any employee who has
been employed for 1 year was entitled to 2 weeks' vaca-
tion time The change in the collective-bargaining agree-
ment made in that policy was that any employee with 6
years seniority was entitled to 3 weeks' paid vacation per
year
8 The contract also provided employees with two ad-
ditional holidays—the Friday after Thanksgiving and
Good Friday
9 The Employer had not checked off and/or remitted
dues to the Employees Union
Discussion and Analysis
Contention of the Parties
The General Counsel contends that Respondent,
through President Ross, unlawfully assisted in the forma-
tion of the Employees Union by suggesting that Credell
form a committee to meet with management about wage
increases, and by inducing Credell to do this with the
promise of benefits Additionally, the General Counsel
contends that the fact that Credell held employee meet-
ings and circulated a petition for the Employees Union
on company premises and during paid working time is
evidence that Credell was Respondent's agent, acting on
Respondent's behalf, and that the employees viewed him
this way Accordingly, the petition of the Employees
Union signed by a majority of employees in the unit was
obtained as a result of Respondent's violations of Section
8(a)(1) of the Act, and the recognition of and bargaining
with said Union constitutes a violation of Section 8(a)(2)
and (1) of the Act
Respondent, on the other hand, contends that Ross'
statement to Credell was protected under Section 8(c) of
the Act, which permits free expression of opinion As no
threats or promises were made to Credell, the suggestion
that he form a committee to deal with Respondent did
not violate the Act Moreover, Respondent, having re-
ceived evidence that an uncoerced majority of employ-
ees in an appropriate unit had designated the employees'
Union as their representative, was obliged to recognize
and bargain with that union
In a recent case, Farmers Energy Corp, 266 NLRB 722
(1983), the Board stated the following
In assessing the impact of a respondent's assistance
to a union, the Board examines the totality of cir-
cumstances to determine whether the respondent's
conduct tainted the union majority status The total-
ity of circumstances consists of post-recognition as
well as pre-recognition conduct of a respondent
See Siro Security Service, Inc , 247 NLRB 1266,
1271-1272 (1980)
In the same case, the Board further explained that the
Supreme Court indicated that, in these types of cases,
events cannot be separated "artificially from their back-
ground and consequences, and from the general contem-
poraneous current of which they were integral parts"
Machinists Local 35 (Serrick Corp ) v NLRB, 110 F 2d
29, 35 (DC Cir 1939), affd 311 U S 72, 78 (1940)
Credibility of Witnesses
In presenting their case, the General Counsel and the
Charging Party relied on the oral testimony of two
Local 810 representatives, Quinones and Popek, in addi-
tion to various documents of Respondent and stipulations
MGR EQUIPMENT CORP. 357
of the parties. The sole witness presented by Respondent
was Credell, although Ross testified as an adverse wit-
ness of the General Counsel. The evidence presented by
the union officials relating to Local 810's organizational
campaign in 1982 and its demand for recognition by Re-
spondent was unrefuted. By the same token, much of the
evidence furnished by Credell, although not supported
by anyone else, could not be refuted by direct testimony
of the General Counsel's witness. Nevertheless, there
was conflict between the testimony of the General Coun-
sel's and Respondent's witnesses. For the reasons stated
below, where such conflict does exist, I credit the testi-
mony of the General Counsel's witnesses against that of
Credell and Ross.
Although some of the testimony of Quinones and
Popek was hearsay, or could not be imputed directly to
Respondent, I found both witnesses to be forthright, sin-
cere, trustworthy, and believable. On the other hand, I
was not impressed with the testimony of Credell and
Ross. I base my conclusion on the following.
With respect to Ross, although Respondent's records
revealed that Credell received a third week of vacation
pay in 1982, when asked for an explanation, Ross was
unable to do so, and stated that he would have to check
with his bookkeeper before verifying that Credell did or
did not receive a third week of vacation. No further evi-
dence was presented by either Ross or his bookkeeper to
explain the records. Whether Respondent's failure to
provide further information to enlighten us resulted from
inadvertence or a deliberate act is immaterial. As Ross
had been subpoenaed by the General Counsel to explain
the records, and his explanation shed no light as to the
issue of the third week of vacation, as Ross was the
president of Respondent with apparent, if not actual,
knowledge of Respondent's operations, his failure to ex-
plain the document satisfactorily leads me to conclude
that the document is accurate and indicates that Credell
was granted a third week of vacation in 1982.
To further buttress my conclusion I refer to Credell's
own testimony. When questioned on cross-examination
on the subject of his vacation, he stated that he was not
sure whether or not he received a third week of vacation
in 1982. I cannot accept Credell's statement. This hearing
took place in May 1983. An employee's testimony under
oath that he does not recall whether or not he received 3
weeks' vacation the year before is incredible. I conclude
that both Ross and Credell submitted vague testimony as
to Credell's vacation time because both were aware that
the General Counsel relied on the fact that Ross made
promises which later were granted to Credell for his co-
operation in obtaining signatures for the employees'
Union. Neither of the two individuals could satisfactorily
explain why Respondent's records revealed that Credell
received a third-week vacation time in 1982 without
jeopardizing their respective positions that no promises
of benefits had been made or granted and, therefore, the
agency of Credell could not be established.
Although the signed petition reveals a date of October
28, Credell testified that he did not place that date on the
document, and that it probably was placed by the person
who typed the petition. Nevertheless, it is noted that the
date was inscribed by hand, whereas the petition was
typed. No evidence was received that anyone signed the
petition on any specific date, although the petition con-
tains 26 signatures. Credell would have us believe that
the date was typed in by the typist. Neither the typist
nor any other employee was called on to explain when
the petition had been signed or who placed the hand-
written date on the petition I therefore conclude that
the petition was not signed on the date indicated.
With respect to the demands of the employees' Union,
Credell testified that he thinks the document was written
on November 9, after a meeting with employees. Al-
though I did not realize the significance of the number, I
corrected him by asking him if he meant October 29. He
answered affirmatively. In evaluating the evidence, I
have concluded that Credell, in testifying, did mean the
9th—not October 9, but November 9. I base this conclu-
sion on the testimony of Popek, who stated that at the
time the Union was requesting recognition from Re-
spondent on November 8 or 9, he was informed that
Credell was circulating a petition among the employees.
He further testified that Credell had admitted to him that
Respondent had forced him "to go around with a peti-
tion." Although Credell denied this, the totality of the
evidence presented compels me to credit Popek against
Credell I thus conclude that the petition was circulated
by Credell on November 9 at the time Local 810 was re-
questing recognition.
To buttress this conclusion, I credit the unrefuted testi-
mony of Quinones and Popek, both of whom credibly
testified that when the Union demanded recognition,
Ross failed to inform the union representatives that Re-
spondent had already recognized and consummated an
agreement with the Employees Union. This evidence
was not refuted by Ross, although he did appear as a
witness. It is illogical for Respondent not to have in-
formed Local 810 officials that it had a contract with the
Employees Union, if such contract existed. Had the col-
lective-bargaining agreement been executed on Novem-
ber 4 between Respondent and the Employees Union, it
would have been simple for Ross to have shown the
document to Local 810, thus averting its future problems
with that union. Not only did Ross fail to show the col-
lective-bargaining agreement, but, as I credit the union's
version, Ross accepted the union authorization cards of
Local 810 which indicated that it had an uncoerced ma-
jority of Respondent's employees in an appropriate unit,
and advised Local 810's agents that he would contact his
attorney. I emphasize again that, although appeanng as a
witness, Ross was not asked to, nor did he, refute the
testimony of the union agents. I therefore credit their tes-
timony with respect to the conversation they had with
Ross at the time local 810 demanded recognition on No-
vember 8 or 9.
Further reasons why I cannot accept Credell's testimo-
ny are the following.
Although he acknowledged his awareness of Local
810's organizational activity, Credell initially testified
that said activity never was discussed with employees
when they were asked to sign the petition for their own
company union. However, he later did testify that he ex-
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plained to the employees why joining Local 810 was not
to their advantage.
Credell was very hesitant as to dates certain important
events occurred. He indicated very early in his testimony
that he was not sure of dates. He testified that he spoke
to employees in September, he thinks, "to form a get to-
gether." As stated above, he thinks that the demands of
the Employees Union were written on the 9th. When
confronted with the fact that he signed a second union
authorization card, he answered that he probably did
sign a card. Considering that Credell was the sole wit-
ness presented by Respondent, I was not impressed with
his lack of recollection as to when or if certain events
occurred.
Although Credell acknowledges that before November
3 he signed two union authorization cards for Local 810,
he did not satisfactorily explain why he had signed a
second union card, or for that matter a first, in light of
his efforts undertaken, purportedly without promised
benefits by Respondent, on behalf of the Employees
Union, Local 810's rival.
Notwithstanding the fact that the agreement between
Respondent and the Employees Union contains an arbi-
tration clause, Credell admitted that he had no idea how
arbitrators are chosen. He conceded that the Union had
no money, "not a quarter," in its treasury and did not
collect dues from employees. It is common knowledge
that the use of labor arbitrators involves a payment of
money. I therefore conclude that the arbitration clause
was inserted in the agreement by Respondent without
any knowledge or conception of its significance by Cre-
dell.
Further, I cannot accept Respondent's argument that it
was unaware that Local 810 was organizing its employ-
ees at the time it entered into a contractual relationship
with the Employees Union. Undisputed evidence estab-
lished that some time during October, when an employee
of Respondent was discharged, Local 810 officials dis-
cussed the discharge with Respondent. Not receiving sat-
isfaction, Local 810 filed a charge with the Board, which
was investigated and later dismissed for lack of evidence
of an unfair labor practice. Undisputed evidence present-
ed by the witnesses of the General Counsel further re-
vealed that throughout the months of September and Oc-
tober, while Local 810 agents were speaking to employ-
ees of Respondent immediately within the area outside of
Respondent's facility, they were observed by officials of
Respondent. These two factors linked to the fact that in
the previous year Local 810 had filed a petition for a
Board-conducted election compels me to conclude that
Respondent was aware of Local 810's organizational ac-
tivity in the fall of 1982.
Accordingly, based on the credible testimony of the
General Counsel's witnesses coupled with the testimony,
in part, of Credell and the records of Respondent, I con-
clude that the following occurred: -
Credell, who had many times previously acted as
spokesman for fellow employees, sometime in the fall of
1982 requested that Respondent's president, Ross, grant a
wage increase to a fellow employee. At this time, Ross,
aware that Local 810 was in the process of organizing
Respondent's employees, encouraged Credell, by a prom-
ise of a third week of vacation and an increase in salary,
to circulate a petition among its employees to form an in-
dependent union. Credell, acting as a spokesman and
agent for Respondent, did circulate a petition and obtain
a majority of signatures of employees in the unit. Said
circulation, performed on company premises during
working time with permission of Respondent and with-
out any diminution of wages, took place in November,
concurrently with a demand for recognition being made
by agents of Local 810. These agents, who had been
signing up a majority of Respondent's employees for 2
months prior to their demand within the vicinity of Re-
spondent's premises, were observed by Respondent's offi-
cials. Following the execution of the agreement between
the Employees Union and Respondent, the employees all
received raises in salary Although the agreement calls
for a wage increase of 10 percent, the records indicate
that the wage increases range from 8 to 27 percent.
In Elias Mallouk Realty Corp., 265 NLRB 1225 at 1236
(1982), my learned colleague, Administrative Law Judge
Robert T. Snyder stated:
It is settled law that an employer commits an unfair
labor practice under Section 8(a)(2) of the Act
where it renders unlawful assistance to a union.
However, the Board has long held that not all em-
ployer assistance to a union may be sufficient to
hold an employer in violation of the Act. Thus,
there have been cases where the union's use of com-
pany time and property, provided by the employer,
did not establish a per se unfair labor practice. In
finding such a violation the U S. Supreme Court has
observed that there must be an inference that the
employer's assistance denied the employees their
right to complete and unhampered freedom in
choosing a bargaining representative, without
regard to their employer's wishes. Each case must
be judged according to its own particular facts. (Ci-
tation omitted.)
Agency Status of Jacob Credell
In Serrick Corp., supra at 80-81, the Supreme Court
held that an employer is liable for the acts of its nonsu-
pervisory employees who act as its agents. In Community
Cash Stores, 238 NLRB 265 (1978), the Board stated,
"The critical issues in making this determination is
whether under all the circumstances the employees
would reasonably believe that [the employee] was re-
flecting company policy and speaking and acting for
management."
The credible facts, undenied by Respondent, estab-
lished that employees' meetings on the premises of Re-
spondent during working time were conducted by Cre-
dell. In addition, Credell acknowledged that he spent
working hours on Respondent's premises in obtaining
signatures. Credell further disclosed that permission had
been granted by Ross for him to take part in these activi-
ties, and no evidence was received that the employees'
wages, including that of Credell, were diminished be-
cause of these activities. Although no evidence was pre-
sented that any of Respondent's supervisory or manageri-
MGR EQUIPMENT CORP 359
al employees were present during these activities of Cre-
dell, from the facts as listed herein, I conclude that the
employees would reasonably believe that Credell was re-
flecting company policy and speaking and acting for Re-
spondent. Accordingly, I find that Credell was acting as
an agent for Respondent in his organizational activities
for the employees' Union.
Alleged Assistance and Support of the Employees
Union
The credible evidence revealed that Local 810 was at-
tempting to organize employees of Respondent, and that
Respondent's officials had knowledge of this activity
Thereafter, in order to forestall any possibility of Local
810 obtaining a majority of Respondent's employees and
acquiring recognition from Respondent, Respondent,
through Ross, promised benefits to Credell and utilized
Credell as its agent to convince a majority of employees
of the unit to form the Employees Union. Consequently,
its facility was utilized during working hours by Credell,
with the approval of Respondent, to induce and encour-
age unit employees to form the Employees Union. I find
that by providing the forum, the facilities, and the sug-
gestion which eventually resulted in the creation of the
Employees Union, Respondent assisted and supported a
labor organization, contrary to Section 8(a)(2) of the
Act. C & W Lektra-Bat Go, 232 NLRB 776, 778 (1977),
and cases cited therein.
In addition, by recognizing the Employees Union on
the basis of the unlawful petition circulated by Credell,
Respondent denied its employees a free choice of a bar-
gaining representative guaranteed to them by the Act,
thus further violating Section 8(a)(2) and (1) of the Act.
Lastly, by offering, promising, and granting a third week
vacation to Credell and wage increases to its employees,
Respondent violated Section 8(a)(1) of the Act.
Respondent argues that Missouri Heel Co., 209 NLRB
481 (1974), is directly on point in support of its position.
In that case, the Board reversed an administrative law
judge's decision, finding no violation of Section 8(a)(2) of
the Act. The General Counsel, on the other hand, argues
that Missouri Heel is Inapplicable. An evaluation of the
facts and the law of Missouri Heel convinces me that
there is merit in the General Counsel's argument. As
stated earlier, each case must be decided on its own par-
ticular set of facts. The facts of the instant case are dis-
tinguishable from those of Missouri Heel. In Missouri
Heel, the employees had been bargaining with their em-
ployer for 10 years after forming their own committee,
with no evidence of interference by their employer. Fur-
thermore, although an outside union had petitioned for
an election of the employees, the petition had been with-
drawn and, although the petition was subsequently re-
filed, the evidence revealed that the employer in that
case had no knowledge that another union was interested
in organizing its employees at the time it reached an
agreement with the employees' committee. In the instant
case, as detailed above, Respondent was well aware of
the activities of Local 810, and the petition was circulat-
ed among its employees concurrently with Local 810's
request for recognition.
Respondent further argues that Bruckner Nursing
Home, 262 NLRB 955 (1982), is applicable to the instant
case. The General Counsel disagrees. Again, I am in an
agreement with the General Counsel. The rationale for
my conclusion that Bruckner is inapplicable is based on
my findings that the Employees Union in the instant case
is not an uncoerced, unassisted union 6
CONCLUSIONS OF LAW
1. MGR Equipment Corp., an employer within the
meaning of Section 2(2) of the Act, is engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local 810, IBT, and MGR Employees
Union are labor organizations within the meaning of Sec-
tion 2(5) of the Act
3. By offering, promising, and granting benefits for the
purpose of discouraging membership in, or adherence to,
Teamsters Local 810, IBT, Respondent violated Section
8(a)(1) of the Act.
4. By interfering with, suggesting, and supporting the
formation of MGR Employees Union, and by maintain-
ing in effect the existing collective-bargaining agreement
with MGR Employees Union, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(2) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(2) and (1) of the Act, I shall recommend
that it cease and desist therefrom, and that it take certain
affirmative action as set forth below designed to effectu-
ate the purposes and policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 7
ORDER
The Respondent, MGR Equipment Corp., Inwood,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interfering in the formation or the administration of
MGR Employees Union, or any other labor organization
of its employees, or giving support to such labor organi-
zation.
(b) Offering, promising, and granting wage increases,
increases in vacation time, or any other benefits for the
purpose of discouraging membership in, or adherence to,
Teamsters Local 810, IBT, or any other labor organiza-
tion.
8 After bnefs were filed, Respondent alerted me to a recent Board de-
cision, Film Consortium, 268 NLRB 436 (1983), which it claims tends to
support its argument However, I find this decision, like Bruckner, to be
inapplicable for the reason cited above
7 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Maintaining in effect the existing collective-bar-
gaining agreement with MGR Employees Union; provid-
ed, however, that nothing herein shall be construed as
requiring it to rescind, abandon, or vary any economic
benefits or any terms and conditions of employment
granted the employees thereunder
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise in their rights to
self-organization, to form, join, or assist Teamsters Local
810, IBT, or any other labor organization, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from MGR
Employees Union as the bargaining representative of Re-
spondent's employees for the purpose of dealing with
Respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other con-
ditions of employment unless and until said Union shall
have been certified as such representative by the Board.
(b) Post at its facility in Inwood, New York, copies of
the attached notice marked "Appendix." 8 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
8 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"