Operating Engineers Local 295-295C (Weather Wise)

National Labor Relations Board - Board Decisions

Nov 26, 1986

282 N.L.R.B. 273 (N.L.R.B. 1986)

OPERATING ENGINEERS LOCAL 295-295C (WEATHER WISE) 273
Local 295-295C, International Union of Operating
Engineers, AFL-CIO and Weather Wise Condi-
tioning Corp.
Weather Wise Conditioning Corp. and Local 295-
295C, International Union of Operating Engi-
neers, AFL-CIO. Cases 29-CB-5941, 29-RM-
738, and 29-RC-6359
26 November 1986
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BA13SON
On 4 August 1986 Administrative Law Judge El-
eanor MacDonald issued the attached decision.
The Charging Party filed exceptions and a support-
ing 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.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Local 295-
295C, International Union of Operating Engineers,
AFL-CIO, Brooklyn, New York, its officers,
agents, and representatives, shall take the action set
forth in the Order.
IT IS FURTHER ORDERED that the objections to
the election held on 29 March 1985 are overruled.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have" been cast for Local 295-295C, Interna-
tional Union of Operating Engineers, AFL-CIO,
and that it is the exclusive collective-bargaining
representative of the employees in the' following
appropriate unit:
All mechanics and helpers, including shop em-
ployees, employed by the Employer at its
Brooklyn, New York location, excluding all
r The Charging Party has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule,an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Way Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings
office clerical employees, guards and supervi-
sors as defined in the Act.
Beatrice Kornbluh, Esq., for the General Counsel.
Harry Turk, Esq. (Epstein, Becker, Borsody & Green,
P. C.), of New York, New York, for the Employer.
Michael J. Comerford, Esq. (Driscoll & Delaney), of New
York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge.
These consolidated cases were tried in Brooklyn, and
New York, New York, on 30 September and 9 and 10
December 1985. The order consolidating the cases and
referring the representation case to the Board issued on 6
June 1985. The complaint issued on 31 May 1985, alleges
that the Union in violation of Section 8(b)(1)(A) threat-
ened bodily injury and other harm to employees if they
did not support the Union in a strike.
In the representation case, the RM petition was filed
on 12 March 1985 and an election (directed by the Re-
gional Director) was conducted on 29 March 1985. The
vote was nine for and eight against union representation.
The objections in issue are that property of employees
and of the employer was damaged shortly before the
election, the Union threatened employees with harm if
they did not vote for it in the election and the Union
threatened employees with harm if they failed to support
the Union.
FINDINGS OF FACT
1. JURISDICTION
The Company, a New York corporation with an office
in Brooklyn, New York, is engaged in the fabrication
and installation of air-conditioning equipment. The Com-
pany annually installs air-conditioning' equipment for en-
terprises in New York that purchase goods valued in
excess of $50,000 directly in interstate commerce. I find
that the Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The record shows that the .employees were on strike
from 4 to 15 March 1985.
Employee Ralston Cuffy was originally a supporter of
the Union and was elected a union representative during
the organizing drive. He participated in the strike. Cuffy
attended a union meeting at Aldo's coffeeshop after the
strike began. Most of the employees were there and
three union agents were present, William Guarino,
Charles Clemenza, and Peter Clemenza. The discusson
centered around the Union's effort to get Bruce Kellman,
Respondent's president, to sign a contract. A second
meeting was held the next day at Aldo's. All the striking
employees attended. Cuffy testified that he could not
recall any details of specific meetings because there were
282 NLRB No. 44
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so many meetings . At one meeting, employee Ramon
Acosta asked whether the striking employees were eligi-
ble for unemployment compensation. The union agents
said yes. Then Cuffy found out that the strikers were not
eligible until after a waiting period and he mentioned this
at one of the meetings . He was "argued down" by the
other employees. Because the men needed money, Cuffy
mentioned the possibility of going back to work. The
union agents said the employees should be patient, that
the boss would sign . In the evening after this meeting,
Guarino called him at home and said, "It wasn't cool
what you guys pulled today because you're breaking up
the morale of the guys."
Cuffy said no threats were made to him, but one day
during a union meeting Guarino said if anyone went
back to work he might fall off a ladder or something.
When asked if he took this comment to mean anything,
Cuffy answered "basically, no." Cuffy could not say
when this occurred.
The night before the election Cuffy went to a union
dinner at Aldo's with employees Ronald Jones and
Ramon Acosta. After the dinner, he went to a dinner
given by the Company at a Chinese restaurant a few
blocks away. Cuffy drove there in his car with Jones and
Acosta; he remained about 1-1/2 or 2 hours. When he
left, Cuffy found that he had a flat tire. He was later told
by the repairman that his tire had been cut. There is no
evidence, concerning who, if anyone, damaged Cuffy's
tires.
I credit Cuffy's testimony and I, therefore, find that
Guarino said that if anyone went back to work, he might
fall off a ladder.
Employee Dennis Burgess testified that he did not join
the picketing but continued to work for the first 3 days
of the strike. One day during the strike, his car was
parked close to the shop; at the end of the workday, air
had been let out of his tires. That night, Burgess spoke to
employee Strudwick Taffe by telephone; Taffe was a
strong supporter of the Union. The two men spoke about
the Union. The next day, Burgess told Bruce Kellman's
,son, Howard Kellman, that the striking employees were
not pleased that they were sacrificing on the picket line
but that Burgess would then receive the benefits they
had fought for. Burgess also, thought it was unusual for
his tires to be flat. He told Howard Kellman he would
stay out until the strike was over. Burgess testified that
he joined the picket line so he could be part of the union
negotiations . Burgess attended several union meetings
but he never heard anything about falling off a ladder or
his family being hurt. Burgess did not testify that he re-
ceived any threats. There is no evidence that anyone
connected with the instant matter let the air out of his
tires.
Employee Ronald Jones testified that he attended two
or three union meetings at Aldo's before the strike
began. Union benefits, such as medical coverage and the
like, were discussed. At one of these meetings , Guarino
said, "if we went back to work for the boss that we
would fall off ladders. There would be accident[s] and
we'd be a bunch of whores if we went back to work."
At first, Jones testified that this comment was made "at
one meeting" but then he changed his testimony to say it
was made at other meetings. He also changed his testi-
mony to say the threat was made after the strike began.
Jones picketed during the first week of the strike; during
the second week, Guarino got him a job at another shop.
Jones stated that he heard rumors of threats to Burgess. I
will not rely on Jones' testimony. On the witness stand,
his testimony seemed given by rote and without reflec-
tion; further Jones was easily led to change his testimo-
ny.
Mechanic Ramon Acosta testified that on the day the
strike began, he was working on a job at 498 Seventh
Avenue where he was insulating a condenser top. On his
way out to lunch with his helper, Acosta saw Guarino in
the building lobby. Guarino told him that there was a
strike and that "we would have to go." Acosta called the
shop and Howard Kellman told him to pack up his tools
and return to the shop. According to Acosta, when he
went upstairs .to gather his tools, he noticed that the in-
sulating work he had just completed had been "slashed."
There was much testimony about the nature and extent
of the damage; there is no evidence to connect the
damage to any participants in the instant matter.
On the first day of the strike Acosta attended .a union
meeting at Aldo's. Acosta testified that the employees
discussed tactics and the ways the Union persuades
people to vote. Acosta could not recall who was talking
because, "I wasn't paying much mind." The employees
discussed "cracking heads" and hitting them, beating
guys." Peter Clemenza said "we would suffer or our
family would suffer." Acosta felt this was an indirect
threat. He also heard rumors about property damage to
employee's property. At the union meetings , Acosta
asked Guarino who would compensate the employees to
the strike. Guarino said the "unemployment" would do
it. After Acosta later found out there was a 49-day wait-
ing period and told Guarino about this, Guarino denied
he had ever said strikers would be compensated by un-
employment insurance. Acosta had an argument with
Guarino and some of the employees about this.
It is clear that no union employee threatened Acosta
with bodily harm, even by his own account. I do not
credit Acosta's testimony that employees were discussing
violence at the Union's first meeting after the strike
began. First Acosta' could not recall who talked about
"cracking heads" and "hitting" because, by his own ad-
mission, "I wasn't paying much mind." It is not reasona-
ble to suppose that someone hearing a threat of violence
could not recall which of his fellow employees had made
the threat. Further, Acosta linked Peter Clemenza to
these threats by stating that Clemenza said "we would
suffer." According to Acosta, the discussion centered not
around the strike but around the election. This is not
supported by the testimony of other witnesses and is not
in accord with the credited testimony of Cuffy. Finally,
Acosta's demeanor while testifying evidenced anger and
bias toward the Union. Thus, I shall not rely on' Acosta's
testimony.
Three employees testified that they attended many of
the union meetings both before and during the strike and
that they heard no threats of violence. These witnesses
OPERATING ENGINEERS LOCAL 295-295C (WEATHER WISE)
were Wilfred Brathwaite, Rigoberto Benitez, and- Jorge
Sandoval. I credit their testimony.
William Guarino is the treasurer and field agent of
Local 295. He testified that he never made any statement
about falling off a ladder nor threatened anyone if he
failed to participate in the strike. In the second week of
the strike, Cuffy told him some men needed work; Guar-
ino then found jobs for Acosta and Jones. I credit Guar-
ino's testimony about fording jobs for Acos,.a and Jones.
As discussed above, I find that a union agent said at a
meeting that if anyone went back to work he might fall
off a ladder. This is a violation of Section 8(b)(1)(A) of
the Act. Teamsters Local 107' (Virginia-Carolina Freight
Lines), 123 NLRB 551 (1959), enfd. 273 F.2d 815 (D.C.
Cir. 1959); Teamsters Local 810 (Kate's Art Supply), 268
NLRB 1378 (1984).
CONCLUSIONS OF LAW
1. By threatening employees with physical harm if
they did not support the Union during the strike, the
Union violated Section 8(b)(1)(A) of the Act.
2. The General Counsel has not proved that any other
violations of the Act were committed.
REMEDY
Having found that the Union has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
REPRESENTATION PROCEEDING
The company's objections before me are:
Objection 2: Property of employees whom the Union
believed were planning to or would vote against Local
295, was damaged by representatives and/or agents of
Local 295, acting on their behalf, shortly before the elec-
tion in an effort to intimidate those employees and other
employees to vote for the Union.
Objection 3: Property of the employer was damaged by
representatives and/or agents of Local 295, acting on
their behalf, prior to the election in a manner designed to
intimidate employees to vote for the Union.
Objection 5: Representatives and/or agents of Local
295 acting on their behalf threatened employees of
Weather Wise Conditioning Corp. and members of their
families with harm if they failed to support Local 295.
Objection 6: Representatives and/or agents of Local
295 acting on their behalf threatened employees of
Weather Wise Conditioning Corp. and members of their
families with harm if they failed to support Local 295.
Discussion and Conclusions
As discussed above, there is no evidence that any
property damage either to the employees' or the employ-
er's property was caused by employees or union agents.
Further, I have not found that any threats of physical
harm were made to employees concerning their vote for
the Union.
I have found above, based on Cuffy's testimony, that
Guarino said that if anyone went back to work he might
275
fall off a ladder or something. This finding comports
with the substance of the Company's Objection 6.
The Company has the burden of proving that the
threat by Guarino was made during the critical period
after the election petition was filed on 12 March 1985. 1
There is no such proof in the record because Cuffy was
unable to say when this statement was made. Further the
totality of Cuffy's testimony shows that at first he sup-
ported the strike and fulfilled whatever duties were re-
quired of him as an elected employee representative. He
was one of a delegation that met with Bruce Kellman to
persuade him to sign a contract with the Union. This
meeting occurred in the first week of the strike. He then
became disenchanted with the Union because it had no
strike fund and because the men could not begin collect-
ing unemployment insurance benefits immediately. At
that point, he told the men he was no longer their repre-
sentative. The strike did not hurt Cuffy too much be-
cause he had a second income.' However, other employ-
ees were in great need of money; the record shows that
these employees were referred to jobs by Guarino at the
beginning of the second week of the strike. From all
these facts, I infer that the discussions about going back
to work took place early in the strike when Guarino was
still hopeful Kellman would sign a contract and could
counsel patience to those employees who complained
that they needed to work. There would be no reason to
talk about the consequences of returning to work once
Guarino had referred the needy employees to interim
employment. Thus, I conclude that Guarino's statement
about falling off a ladder was made in the first week of
the strike between 4 and 11 March 1985. This was before
the election petition was filed.
To sum up, the Company has not met its burden of
proving when Guarino made his statement about falling
off a ladder. In the alternative, ,l find that the statement
was made before 12 March 1985 when the petition was
filed. Thus, there is no basis for setting aside the election.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Local 295-295C, International Union
of Operating Engineers, AFL-CIO, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Restraining or coercing any employee in the exer-
cise of rights guaranteed by Section 7 of the Act by
threatening employees with physical harm if they do not
support the Union during a strike.
(b) Restraining or coercing any employees' in any like
or related manner.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
1 Ideal Electric & Mfg., 134 NLRB 1275, 1278 (1961).
2 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.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at business offices and meeting halls copies of
the attached notice marked "Appendix."s 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 members 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.
(b) Deliver to the Regional Director for Region 29,
signed copies of said notice for posting by Weather Wise
Corp., if it be willing, `at places where notice to employ-
ees of Weather Wise are customarily posted.
(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.
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found.
IT IS FURTHER RECOMMENDED that the Board issue the
appropriate certification results.
' 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 Nation-
al 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 AND MEMBERS
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice'
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT threaten, employees with physical 'harm
if they do not support a strike.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
LOCAL 295-295C, INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL-CIO