Paragon Paint Corp.

National Labor Relations Board - Board Decisions

May 31, 1995

317 N.L.R.B. 747 (N.L.R.B. 1995)

747
317 NLRB No. 101
PARAGON PAINT CORP.
1 We note that the judge made inadvertent errors in the Order and
notice. We will correct them. We also will add a broad remedial
order. The violations at issue are egregious. They include frequent
discrimination against employees selected as union representatives
and the unlawful layoff and subsequent unlawful lockout of, ulti-
mately, the entire bargaining unit. Moreover, the violations continued
unabated during an approximate 10-month period and the Respond-
ent’s owner and president, Selma Rattner, acted as a principal in
their commission. We find that a broad remedial order is required
in light of the Respondent’s unrelenting opposition to the employees’
exercise of their fundamental statutory rights. Hickmott Foods, 242
NLRB 1357 (1979).
Paragon Paint & Varnish Corporation and Local 8-
406, Oil, Chemical and Atomic Workers Inter-
national Union, AFL–CIO. Cases 29–CA–17710,
29–CA–17801, 29–CA–17835, 29–CA–17889,
29–CA–17926, and 29–CA–17966
May 31, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On November 9, 1994, Administrative Law Judge
Joel B. Biblowitz issued the attached decision. The Re-
spondent filed exceptions, a motion to reopen the
record, and a supporting brief. The General Counsel
filed a brief in support of the decision of the adminis-
trative law judge and a letter in opposition to the Re-
spondent’s motion to reopen the record.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as modi-
fied and set forth in full below.1
The Respondent has excepted to some of the judge’s
credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibil-
ity 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.
In adopting the judge’s discrediting of the testimony
of the Respondent’s owner and president, Selma
Rattner, we rely on the judge’s assessment of her de-
meanor both as a witness for the Respondent and as
a hostile witness for the General Counsel pursuant to
Section 611(c) of the Federal Rules of Civil Procedure.
We, however, do not rely on Rattner’s seating herself
within range of testifying witnesses, or any appearance
Rattner may have given of ‘‘staring down’’ these wit-
nesses. It is axiomatic that deference is due credibility
determinations based at least partially on the judge’s
assessment of the demeanor of the witness. See NLRB
v. Original Oyster House, 822 F.2d 412, 414 (3d Cir.
1987). The judge satisfied this axiom in his assessment
of Rattner’s veracity. Indeed, he contrasted Rattner’s
muted style and professed ignorance of procedures and
activities at the plant when Rattner testified for the
General Counsel with Rattner’s seeming verbosity and
freely offered explanations about incidents when
Rattner testified for the Respondent. We therefore deny
the Respondent’s motion to reopen the record to reas-
sess the judge’s discrediting of Rattner based on
Rattner’s seating arrangements and appearance when
she was not testifying. These factors are irrelevant to
the judge’s valid assessment of Rattner’s credibility
based on her demeanor.
The Respondent also claims that the judge was bi-
ased against Rattner. We have carefully examined the
entire record, including the judge’s decision, and we
are convinced that the judge’s conduct does not con-
stitute even the appearance of partisanship. There is no
basis for finding that bias or partiality existed merely
because the judge resolved important factual conflicts
arising in the proceeding in favor of the General Coun-
sel’s witnesses.
In addition, we find no merit to the Respondent’s
exception to the judge’s crediting the testimony of em-
ployee and Assistant Shop Steward William Cerezo
over Rattner’s testimony concerning incidents that oc-
curred on February 1, 1994. The Respondent argues
that the judge should have granted the Respondent’s
motion to strike the testimony of Cerezo on the basis
of the General Counsel’s failure to give the Respond-
ent all of Cerezo’s affidavits prior to the Respondent’s
cross-examination of Cerezo. The record reveals that
the affidavit at issue related to a charge that was with-
drawn, not to the charges at issue in this case about
which Cerezo was testifying. Nevertheless, the General
Counsel gave the affidavit to the Respondent, the
judge allowed the Respondent further time to cross-ex-
amine Cerezo, and the Respondent did so. In these cir-
cumstances, the judge correctly denied the Respond-
ent’s motion to strike Cerezo’s testimony.
In the absence of exceptions, we adopt pro forma
the judge’s findings that the Respondent violated Sec-
tion 8(a)(1) of the Act by interrogating employee Juan
Gonzales on February 1, 1994, and Section 8(a)(5) and
(1) of the Act by failing to provide the Union with in-
formation about the Respondent’s medical insurance
program and the names of current employees, their job
titles, and hourly pay pursuant to the Union’s oral and
written requests on November 29 and December 1 and
15, 1993.
Also in the absence of exceptions, we adopt pro
forma the judge’s dismissal of certain complaint alle-
gations: (1) The 8(a)(5) and (1) allegations involving
the Respondent’s failure to remit to the Union dues
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and initiation fees deducted from employees’ wages
since June 1, 1993, the Respondent’s refusal to permit
shop stewards to attend grievance meetings on
worktime on June 16 and September 22, 1993, and the
Respondent’s refusal to give the Union its books and
financial records pursuant to union requests at the De-
cember 1 and 15, 1993 negotiating sessions; (2) the
8(a)(3) and (1) allegations involving the Respondent’s
warnings, 3-day suspensions, and transfer to the paint
filling department given to Assistant Shop Steward
Hector Aponte on June 23, July 21, and October 25,
1993; (3) the 8(a)(1) allegations involving the Re-
spondent’s closer supervision and following of Shop
Steward Michael Meyers and forcing him to put his
clothes in a locked room on February 1, 1994, and in-
volving the Respondent’s pulling on Assistant Shop
Steward William Cerezo’s jacket on February 1, 1994;
and (4) the 8(a)(5), (3), and (1) allegations involving
the Respondent’s December 27, 1993 discharge of
Yugo A. Carmona, Pedro Mercado, Miguel Alvarado,
Jose Vendrell, Javier Restrepo, and Juan Serrano.
Finally, we note that the judge found that the merger
election satisfied the Board’s traditional due process
criteria. Accordingly, we need not pass on what action
the Board would take had the election not satisfied
those standards. Toyota of Berkeley, 306 NLRB 893,
899 fn. 6 (1992).
ORDER
The National Labor Relations Board orders that the
Respondent, Paragon Paint & Varnish Corporation,
Long Island City, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their support
for the Union.
(b) Imposing more onerous and less desirable work-
ing conditions on its employees because of their union
activity and because they engaged in a concerted pro-
test and strike commencing on December 22, 1993,
and other protected concerted actions.
(c) Issuing warnings to its employees because of
their union activities.
(d) Imposing more onerous and less desirable work-
ing conditions on its employees because of their union
activities.
(e) Discharging its employees Arias, Sossinski, and,
subsequently, all but six of its employees because of
union or other protected concerted activity.
(f) Suspending its employees because of union or
other protected concerted activity.
(g) Forcing employees to work overtime because of
union or other protected concerted activity.
(h) Requiring its employees to use the bathroom to
change into and out of their work clothes because of
their union or other protected concerted activity.
(i) Refusing to reinstate its employees after they
made an unconditional offer to return to work on Janu-
ary 12, 1994.
(j) Locking out its employees on about February 1,
1994.
(k) Failing to give its attorney the required authority
with which to bargain with the Union about griev-
ances.
(l) Reducing the frequency with which it paid its
employees without prior negotiations with the Union.
(m) Unilaterally refusing to grant the Union access
to the facility.
(n) Failing to provide the Union with information
that it requested regarding the medical insurance that
it provided and the employees that it employed.
(o) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act.
(a) Offer Arias and Sossinski immediate and full re-
instatement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other rights
and privileges previously enjoyed and make them
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them in
the manner set forth in the remedy section of the
judge’s decision.
(b) Make whole the other employees (those who
were laid off on December 22 as well as those who
concertedly refused to work beginning on December
27 and were included in the unconditional offer to re-
turn to work dated January 12, 1994) for the loss of
earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in
the remedy section of the judge’s decision.
(c) Remove from its files any reference to the un-
lawful layoffs and terminations and notify the employ-
ees in writing that this has been done and that the un-
lawful layoffs and terminations will not be used
against them in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) On request, promptly provide the Union with the
information that it requested regarding the medical in-
surance that it provided to the employees and the costs
thereof and the names, job titles, and salaries of all of
the Respondent’s nonsupervisory employees.
(f) On request, promptly provide the Union with ac-
cess to its facility.
749PARAGON PAINT CORP.
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(g) Post at its facility in Long Island City, New
York, copies of the attached notice marked ‘‘Appen-
dix.’’2 Copies of the notice, on forms provided by the
Regional Director for Region 29, after being signed by
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(h) 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 ORDERED that the consolidated com-
plaint is dismissed insofar as it alleges violations of the
Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate our employees about their
support for Local 8-406, Oil, Chemical and Atomic
Workers International Union, AFL–CIO or any other
labor organization.
WE WILL NOT impose more onerous or less desirable
working conditions on our employees in retaliation for
their protected concerted activities.
WE WILL NOT issue warnings to our employees, sus-
pend or discharge our employees, force our employees
to work overtime, lock out our employees, or require
our employees to use the bathroom to change into and
out from their work clothes in retaliation for their
union activities.
WE WILL NOT refuse to reinstate employees who
made an unconditional offer to return to work.
WE WILL NOT, without prior negotiation with the
Union, reduce the frequency with which we pay our
employees, affect the Union’s access to our facility, or
require our employees to use the bathroom to change
into, and out from, their work clothes.
WE WILL NOT refuse to give the Union requested in-
formation that is necessary and relevant to it as the
collective-bargaining representative of our employees.
WE WILL NOT fail to give our attorney adequate au-
thority with which to deal with the Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, provide the Union with the
cost and type of medical insurance coverage that we
provide for our employees, and with the names, job ti-
tles, and salaries of all of our nonsupervisory employ-
ees.
WE WILL, on request, allow the Union to visit our
facility.
WE WILL make whole Antonio Arias and Ted
Sossinski, with interest, for any loss of earnings and
other benefits they suffered as a result of our discrimi-
nation against them and we will offer them immediate
and full reinstatement to their former jobs or, if those
jobs are no longer exist, to substantially equivalent po-
sitions without prejudice to their seniority or other
rights and privileges previously enjoyed and WE WILL
make them whole for any loss of earnings and other
benefits resulting from their discharge, less any net in-
terim earnings, plus interest.
WE WILL make whole the employees that we laid
off at the end of the day on December 22, 1993, as
well as the employees that we refused to reinstate pur-
suant to their unconditional offer to return to work
dated January 12, 1994, with interest, for any loss of
earnings and other benefits resulting from their layoff,
less any net interim earnings, plus interest.
WE WILL remove from our files any reference to the
above-mentioned discharges, layoffs, and refusals to
reinstate, and we will notify each of these employees
in writing that this has been done and that we will not
use the discharges, layoffs, and refusals to reinstate,
against them in any way.
PARAGON PAINT & VARNISH CORPORATION
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 As will be discussed below under ‘‘Analysis,’’ the General
Counsel’s motion to substitute Local 8-406 for Local 8-712 is grant-
ed.
2 A further complaint in Case 29–CA–18275, which issued on June
3, 1994, and which was consolidated with the instant matter on that
same day, was settled by the parties during the hearing here and was
withdrawn and severed at that time.
3 Unless indicated otherwise, all dates referred to herein relate to
the year 1993.
April M. Wexler, Esq. and Ann S. Goldwater, Esq., for the
General Counsel.
Martin Gringer, Esq. (Franklin & Gringer), for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case1
was heard by me on June 6 and 7 and July 11 and 13, 1994,
in Brooklyn, New York. The amended consolidated com-
plaint here, which issued on March 31, 1994,2 was based on
unfair labor practice charges and amended charges that were
filed by Local 8-712, Oil, Chemical and Atomic Workers
International Union, AFL–CIO (the Union) on October 7,
1993,3 November 5, 17, and 24, December 13, January 5 and
26, 1994, February 2, 1994, and April 4, 1994. The amended
consolidated complaint alleges numerous violations of Sec-
tion 8(a)(1), (3), and (5) of the Act by Paragon Paint & Var-
nish Corporation (Respondent). It is alleged that Respondent,
by Selma Rattner, its president and agent, on about October
5, threatened to harass and discharge its employees because
of their union activities, and on about February 1, 1994, in-
terrogated its employees about their union activities, in viola-
tion of Section 8(a)(1) of the Act. It is also alleged that Re-
spondent discharged Antonio Arias from on about July 7
until about July 16, issued written warnings to Michael Mey-
ers and William Cerezo on about June 16, imposed less de-
sirable and more onerous working conditions on Meyers, in
about June or July, by assigning him to clean the fourth floor
bathroom at the Long Island City facility (the facility), sus-
pended Hector Aponte for 3 days without pay, and issued a
warning notice to him, in June or July, transferred Aponte,
in about July, from his position in Respondent’s batch mak-
ing department to its paint filling department, and discharged
Arias from about August 27 to about July 18, 1994, because
of their support for, or activities on behalf of, the Union in
violation of Section 8(a)(3) of the Act. It is further alleged
that Respondent violated Section 8(a)(3) of the Act by
issuing a written warning to Aponte on about October 5, as-
signing Meyers to work overtime in October, suspending
Aponte for 3 days without pay on about October 25, impos-
ing less desirable and more onerous working conditions on
Aponte and Meyers by assigning them to clean the second
and first floor bathrooms at the facility on about October 25,
and discharged Ted Sossinski in October or November. It is
also alleged that Respondent violated Section 8(a)(5) of the
Act by failing and refusing to bargain in good faith with the
Union which, for many years, had been the collective-bar-
gaining representative of most of its employees, in that on
about June 16 and September 22 it designated its attorney to
represent it at grievance meetings with the Union, but failed
to authorize the attorney to bargain with the Union, settle
grievances, or otherwise act on its behalf; on those same
dates, prohibited Meyers and Cerezo, the shop steward and
assistant shop steward, from attending grievance meetings
which they had previously been allowed to do; since about
June, Respondent has failed and refused to remit to the
Union all union dues and initiation fees that it has deducted
from the wages of its employees pursuant to valid checkoff
authorizations; on about October 26, November 17, and De-
cember 1, Respondent refused to allow union representatives
access to its facility, notwithstanding that its collective-bar-
gaining agreement with the Union provides for such access;
and on about October 15, it reduced the frequency with
which it paid its employees from once every week to once
every 2 weeks; this is also alleged to violate Section 8(a)(3)
of the Act. It is also alleged that Respondent violated Section
8(a)(5) of the Act, since on about December 1, by failing to
provide the Union with certain information that it requested.
It is further alleged that on about December 22, Respond-
ent’s employees concertedly protested to Respondent its fail-
ure to pay them certain wages due and, following this pro-
test, Respondent discharged 11 named employees and refused
to reinstate them until about March 8, 1994, and that from
about December 27 through about February 1, 1994, certain
of Respondent’s employees ceased work concertedly and en-
gaged in a strike, and that this was an unfair labor practice
strike caused by some of Respondent’s actions described
above. It is alleged that Respondent fired six named employ-
ees on December 27 and failed to reinstate them until March
8, and that on January 11 and 12, 1994, the Union made an
unconditional offer to return for the employees who ceased
work concertedly on December 27, and those who were ter-
minated on that same day, but that Respondent refused to re-
instate them until about March 8, 1994. Finally, it is alleged
that on about February 1, 1994, the employees on whose be-
half the Union offered to return unconditionally (as described
above) did return to work; however, it is alleged that on that
date Respondent violated Section 8(a)(1), (3), and (5) of the
Act by: imposing more onerous and less desirable working
conditions on Cerezo by assigning him to be in charge of
employees’ work clothes and where they change their
clothes, and on Cerezo and Meyers, by repeatedly requiring
them to move heavy paint cans manually, without a hand-
truck or other equipment, for no apparent business reason;
subjected Meyers to closer than normal supervision and fol-
lowed him and required him to put his clothes in a locked
room; directed certain of its employees to leave its facility
in the middle of the workday and locked them out; and
pulled Cerezo by his jacket.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with its principal of-
fice and place of business in Long Island City, New York
(the facility), has been engaged in the nonretail manufacture,
distribution, and sale of paints and related products. During
the year preceding the issuance of the complaint, Respondent
purchased and received at its facility products, goods, and
materials valued in excess of $50,000 directly from points
outside the State of New York. Respondent admits, and I
find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
751PARAGON PAINT CORP.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE FACTS
At the commencement of the hearing, the General Counsel
moved to amend the consolidated amended complaint by
substituting Local 8-406, Oil, Chemical and Atomic Workers
International Union, AFL–CIO (Local 406) for the Union be-
cause the Union was ‘‘amalgamated into’’ Local 406. Coun-
sel for Respondent objected to this amendment. I reserved
judgment on this motion.
It is the General Counsel’s position that the Union merged
with Local 406, effective April 1, 1994, pursuant to an elec-
tion conducted on March 8, 1994. This contention is sup-
ported by the testimony of Sarah Adams, who was the sec-
retary treasurer for the Union, and Charles Horvath, a rep-
resentative of Local 406. Adams testified that in about Janu-
ary 1994, the Union represented about 110 employees. Noti-
fication of the merger election to be conducted on March 8,
1994, was given to the shop stewards and to those present
at prior meetings. In addition, the notice was faxed to com-
panies under contract with the Union, but not to Respondent.
This notice, with the Union’s letterhead, but undated, states:
O.C.A.W.—Local 8-712
Union Meeting Notice
Date—Tuesday, March 8, 1994
Time—5:30 P.M.
Place—160 Montague Street
Brooklyn, NY
Agenda—1. Regular Monthly Business
2. Amalgamation (merger) vote into another
OCAW Local will be taken.
Adams testified that there was a regular union membership
meeting in February 1994, specifically for Respondent’s em-
ployees, at a diner near the facility; prior notice of the meet-
ing was given to the shop stewards and all of the employees
of Respondent attended the meeting. At this meeting she
spoke of the ‘‘possible merger into Local 8-406’’ and it was
decided that the vote on merging with Local 406 would take
place at the next union meeting on March 8, 1994. About
seven union members attended the membership meeting on
March 8, 1994. Notice of this meeting was sent to the shop
stewards for each of the Union’s shops to be posted at the
shops. Michael Meyers, the shop steward at the facility, how-
ever never received it. Adams read the minutes of the prior
meeting and a discussion took place about a merger with
Local 406. Those present voted unanimously in favor of this
merger. By letter dated March 9, 1994, Adams wrote to the
president of the O.C.A.W. International union to inform him
of the vote to amalgamate into Local 406. By notice to the
officers of Local 406 and to the Union, dated March 23,
1994, the International president approved of the merger to
be effective April 1. By letter dated March 31, Adams wrote
to Respondent, as well as the other employers with whom it
had contracts, that the Union had ‘‘merged into’’ Local 406.
The letter concludes: ‘‘Therefore, upon receipt of information
from Local 8-406, kindly contact and forward all future cor-
respondence regarding Local 8-712 union business to officers
of merged Local 8-406.’’
William Cerezo, an employee of Respondent and assistant
shop steward at the facility, testified that shortly before the
March 8, 1994 election, he received a telephone call from
Adams saying that the election was going to take place and
that he should attend. Of Respondent’s employees, only he,
Meyers, and Hector Aponte, another assistant shop steward
at the facility, attended the meeting. Horvath testified that
prior to the merger with the Union, Local 406 had approxi-
mately 1000 members. In about the late summer of 1993, he
had discussions with Adams about a possible merger of the
unions. In a letter dated November 1 to be posted on the bul-
letin board of all its shops, Horvath notified the Local 406
members of a regular monthly meeting to be held on Novem-
ber 16, at which one of the items to be discussed was an
amalgamation with the Union. About 12 to 15 members at-
tended the meeting, and a motion to accept an amalgamation
with the Union was passed unanimously. After the Union
voted to approve the amalgamation, Horvath wrote to the
International, by letter dated March 10, requesting approval
of the merger. As stated above, the International approved on
March 23, 1994. The parties stipulated that since that time,
Respondent has been remitting dues to Local 406 and has
been making contributions to the International’s pension
fund, and that Rattner has met with representatives of Local
406.
The Union had represented Respondent’s production em-
ployees at the facility for approximately 20 years. The most
recent contract between the parties is for the period Decem-
ber 1, 1991, through November 30, 1994. This contract con-
tains a union-security clause and checkoff provision, provid-
ing that the Respondent shall deduct union dues and initi-
ation fees from the members’ wages and shall remit these
amounts to the Union, as well as a grievance-and-arbitration
clause. It is alleged that Respondent violated Section 8(a)(1),
(3), and (5) of the Act by committing certain acts during
scheduled grievance meetings and thereafter on June 16 and
September 22. It is alleged that on those dates Respondent
designated its attorney as its agent to represent it at the
grievance meetings with the Union, but failed to authorize
him to bargain with the Union over the grievances or to set-
tle the grievances and, on these dates, prohibited Michael
Meyers and Cerezo, the shop steward and assistant shop
steward, from attending these meetings, notwithstanding the
contract between the parties and the past practice of permit-
ting shop stewards and assistant shop stewards to attend bar-
gaining sessions and grievance meetings during working time
and, on about June 16, issued written warnings to Meyers
and Cerezo for attempting to attend the grievance meeting
held at the facility that day.
Adams whose testimony, while fairly credible and believ-
able, was not a model of clarity, was one of those present
on behalf of the Union at these grievance meetings. The
meeting of June 16 was scheduled to attempt to settle some
pending grievances. It took place in a room on the second
floor at the facility. Attending were Adams, Union Attorney
Vito Mundo, Respondent Attorney Stephen Bermas, and Re-
spondent’s plant manager, Michael Murray. Adams testified
that while she and Mundo were waiting for the meeting to
begin, Meyers and Cerezo came into the room and ‘‘then
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they were being paged to return to work and then they paged
Steve Bermas to send them back to work.’’ They never at-
tended the meeting. At this meeting Bermas told them that
he had no authority to make any decisions; all decisions were
made by Rattner. When issues were discussed, Bermas
walked out, spoke to Rattner, and reported her position on
the grievance. As best as she could recollect, no grievances
were settled with Bermas at this meeting. Adams could not
remember how many times she had previously been at the
facility prior to June, but on those occasions she was there
with the then union president, Murray, who ceased working
for Respondent on January 10, 1994, and testified as a wit-
ness for the General Counsel, testified that on that day ‘‘we
interpreted that we really were not obligated to have them
[Meyers and Cerezo] leave their work area.’’ Because they
came to the grievance meeting, he issued them a written
warning on the instructions of Rattner. He testified that, in
the past, the Union’s representatives were allowed to meet
with the shop steward for brief periods to discuss grievances
as long as it did not interfere with production, and the shop
committee was allowed to attend ‘‘grievance meetings.’’ He
testified further that at these meetings, Bermas told the
Union that he didn’t have the authority to resolve the griev-
ances, that he had to check with Rattner, and he did not re-
solve any grievances on his own.
Mundo, whose law firm was retained by the Union to rep-
resent them for problems that they were having with Re-
spondent, testified that he was present in the second floor
room at the facility on June 16 for a grievance meeting. The
purpose of the meeting was to attempt to resolve eight items
for which the Union had issued demands for arbitration.
When he and Adams arrived at the room, Meyers and Cerezo
were already there, but Murray and Bermas told them that
they had to return to their workplace, and they left. He want-
ed Meyers and Cerezo at the meeting because they knew best
what was occurring at the facility, but they left as requested.
Shortly after Meyers and Cerezo left the room, he heard
Rattner yelling: ‘‘I’ll fire them all before I do anything.
They’ll all be gone.’’ When they began discussing the griev-
ances Bermas agreed with the Union on most of the griev-
ances, but he said that he had to go out to discuss the issues
with Rattner:
He went out for several minutes, came back maybe five
minutes later and said well, I’m sorry, my view doesn’t
count, Ms. Rattner is a tough woman and she does
things her way. Whether or not I think you have a point
or not doesn’t matter here, Ms. Rattner said that she
wouldn’t agree to any of these items to be resolved.
Mundo asked why they were meeting if only Rattner had the
authority to make the decisions, and Bermas said that he
didn’t have the authority and that he could only say what he
was told, and that he had to go back to Rattner to ask her
whether or not he could do something, ‘‘and if she says no,
she says no. My opinion doesn’t count.’’ On one of the occa-
sions that Bermas left the room, he returned with Rattner.
After discussing how she became involved in the business
when he husband retired, she proposed: ‘‘If you drop all the
grievances, then let’s try to work forward from here, let’s
drop everything that’s pending now.’’ Mundo said that the
Union would be happy to work with her, but they could not
drop all the pending grievances. Rattner became upset and
began yelling that the Union was going to put her out of
business and she left the room. Nothing was resolved at that
meeting.
Cerezo testified that he was asked (presumably by the
Union) to attend this grievance meeting. As he got to the
room where the meeting was being held, Murray told him to
return to his work station, which he did. Shortly thereafter,
Murray gave him a written warning for not being at his work
station when he should have been there. Cerezo asked Mur-
ray why he wasn’t allowed to attend the grievance meeting,
and Murray told him that Rattner didn’t want him in the
meeting during worktime. The warning that Cerezo received
that day states that he was in the coffeeroom (where the
grievance meeting took place) rather than at his work station.
He testified that when he told Murray that he was not in the
coffeeroom, Murray said: ‘‘I wrote down what I was sup-
posed to write down. She wants to write you up for it, she’s
writing you up for it.’’ Meyers, who had been shop steward
at the facility for 3 or 4 years, testified that on the evening
Adams called him and told him that there would be a griev-
ance meeting in a room at the facility and asked him to at-
tend. He had never previously attended a grievance meeting.
On the day in question, before he and Cerezo could get into
the room, Murray told them that Rattner said that they were
not allowed to be in the meeting and that they should return
to their work stations. Later that day, Murray gave him a
written warning identical to Cerezo’s warning.
Rattner was called as an 611(c) witness by the General
Counsel at which time she was asked about this June 16
grievance meeting, among other subjects. She was asked:
Q. Directing your attention to June 16, 1993, isn’t it
true that there was a meeting with the union that day
to discuss grievances?
A. I don’t recall.
Q. Do you recall attending a meeting with the union
or having a meeting scheduled with the union in June?
A. what was the date?
Q. June 16, 1993.
A. I don’t recall.
Rattner then answered two questions fairly candidly:
Q. Isn’t it true that prior to June 16, 1993, the shop
committee attended grievance meetings and bargaining
sessions?
A. They were asked to attend.
Q. Isn’t it true that they attended those meetings?
A. Not always.
Rattner then returned to her prior attitude and position:
Q. Isn’t it true that these sessions were held during
the work day, prior to June 16, 1993?
A. I don’t recall.
Q. Isn’t it true that they were held at 10 a.m. in the
morning prior to June 16, 1993?
A. I don’t recall.
Q. Did you attend those meetings, when they would
have grievance sessions?
A. Not necessarily.
Q. Isn’t it true that you had Michael Murray issue
written warnings to both Meyers and Cerezo because
753PARAGON PAINT CORP.
they attempted to attend the union meeting on June 16,
1993?
A. I would doubt that.
Q. Isn’t it true that written warnings were issued to
both Meyers and Cerezo on June 16, 1993?
A. I don’t recall.
Rattner’s attitude and memory improved substantially about
a month later when she was questioned about this incident
by her counsel. At that time, she testified that at about 10
a.m. on June 16 she saw Meyers and Cerezo outside the
coffeeroom, where the grievance meeting was to take place.
Because that area was ‘‘only for authorized personnel and
not for the factory employees’’ she told them that they had
no business being there; ‘‘they mumbled something about
Union, you know, meeting, but that was it.’’ A grievance
meeting was scheduled to take place in that room at 11:30
that morning, but nobody was in the room at the time. She
told Murray that they were there. She testified that she was
aware that Meyers and Cerezo were going to participate in
the grievance meeting. She further testified that in the prior
10 years there had never been a grievance meeting at the fa-
cility.
Bermas testified that the June 16 grievance meeting was
the first grievance meeting that he attended for Respondent.
At either that session, or the grievance meeting on September
22, to be discussed more fully below, Mundo accused him
of not being in good faith because he did not have authority
to negotiate with him on the grievances. Bermas responded
that was ‘‘nonsense . . . I had a client, I was the attorney,
not the client, and any type of agreement that he and I came
to, of course, was subject to the approval of the client and
in this case, really meant Mrs. Rattner.’’ He testified that
during the grievance meetings of June 16 and September 22,
there were some grievances that he was aware of prior to the
meetings and some that he didn’t know of until after the
meetings began. As to the former, ‘‘I knew on some griev-
ances going in to the meetings how far I could go and with
those I didn’t have to go back, but it is only because I al-
ready had her [Rattner] approval.’’ He testified further: ‘‘But
. . . if we got in to new areas that I couldn’t have expected,
so I couldn’t have gotten . . . the parameters of my authority
beforehand, then yes, I would have to go back to Ms. Rattner
to have it approved.’’ He never told Mundo that he agreed
with him on his grievances, but lacked the authority to re-
solve anything.
The next grievance meeting took place at the facility on
September 22 at 4 p.m. Adams and Frank Melton, an Inter-
national representative attended for the Union; again, Bermas
and Murray attended for the Respondent. Adams testified
that she asked to have Meyers and Cerezo join the meeting,
but Rattner said that they would not be allowed to do so
until 4:20 p.m., when their workday was completed, but they
never did come to the meeting. Adams and Melton remained
until about 4:30 p.m.; they discussed grievances with Bermas
and Murray, but Bermas left the room and returned, saying
that he had no authority to do anything about the grievances
and none were settled at this meeting. Melton testified that
prior to September 22, he had a number of conversations
with Rattner where it was agreed that the grievance meeting
would take place on September 22 at 4 p.m. Melton told her
that he wanted his grievance committee to be present, and
she told him that Bermas and Murray would be present for
Respondent. He said that he had no objection to that. He and
Adams arrived at the facility that afternoon and were taken
to the conference room at 4 p.m.; Bermas was present, but
Murray, Meyers, and Cerezo were not. When Melton asked
Bermas where they were, he said that Murray was busy and
the grievance committee members were loading a truck.
Bermas also told them that he didn’t know anything about
the grievances and was not prepared to discuss them. Bermas
left the room to speak to Rattner, and when he returned
Melton again asked him where Murray and his committee
were. Bermas said that he didn’t know where they were.
Melton asked about the grievances and Bermas said that he
didn’t know anything about the grievances that he was talk-
ing about. Melton said that since his committee and Murray
were not there, and Bermas didn’t know about the griev-
ances, that they were leaving and, at about 4:30 p.m., they
left. Meyers testified that he knew ahead of time that Melton
and Adams would be at the facility on September 22 at 4
p.m. for a grievance meeting. At about 3:55 p.m. that day,
Murray told him that they could not leave work to attend the
meeting until 4:20 p.m. At about 4:20 p.m. they went to the
conference room, but everybody had left by then.
The complaint alleges that Respondent violated Section
8(a)(1), (3), and (5) of the Act by assigning Meyers to clean
the bathroom at the facility in about June, and by assigning
Meyers and Aponte to clean the bathroom in about October.
Meyers testified that in about June or July, Rattner told him
to come to her office because someone had filed a complaint
with OSHA and a woman from OSHA was there to inspect
the facility. At Rattner’s request, Meyers showed the woman
around the facility. After this woman left, Murray told him
that he had to clean the fourth floor bathroom. He had never
done this work before and it had previously been performed
by ‘‘Nicky,’’ who cleaned the bathrooms as part of his job
and was still working at the facility. Murray testified that
Meyers had submitted some grievances about the bathrooms
and Rattner told him to assign Meyers to clean the bath-
rooms—‘‘to solve that grievance.’’ Meyers had never before
cleaned bathrooms at the facility. Previously, Murray had ro-
tated this work among the newer employees. Meyers contin-
ued cleaning the bathroom until the end of December, and
in about October, Aponte was assigned to clean another bath-
room at the facility. Without reciting Rattner’s 611(c) testi-
mony at length, it was, again, generally, evasive and not re-
sponsive, although she did testify that she did not direct
Murray to assign Meyers to clean the bathroom. As part of
Respondent’s case, in answer to questions from her counsel,
her answers were clear, concise, and direct:
Q. Did you ever instruct Michael Murray that they
had to clean the bathrooms every day?
A. No.
Q. What, if any, instructions did you give to Murray
about the cleaning of the bathrooms?
A. That we needed a schedule for maintaining the
cleanliness of the bathrooms, and that this should rotate
among the workers.
Q. And what was Mr. Murray’s response?
A. He agreed.
Meyers testified that in about September or October, right
after he gave a grievance to Murray, Murray told him that
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from then on he was to clean the bathroom and he did so
until about December. Murray also told Aponte to clean an-
other bathroom at the facility; Aponte is a union committee-
man. On cross-examination, Meyers testified that after he
had been told to clean the bathroom in June or July, he did
it continuously until the end of the year. He was asked, if
that was so, why did Murray have to tell him again in Sep-
tember or October to do it; he could not answer this ques-
tion. Aponte testified that about this time, Rattner accused
him of standing around talking to a fellow employee when
he should have been working; he denied it. Aponte asked
Rattner why she was harassing him, and she said that she
would harass him until he left her employ. Later that day she
asked him if he felt that he was being harassed and he said
that he did. She told him that he should go to the Union and
tell them and he said that he would. Rattner told Frank to
give him a warning for not working, and he received a warn-
ing, dated October 5, stating: ‘‘Employee was seen not work-
ing. Also a warning for conduct.’’ Later that day, Murray
told him that he was to clean the bathroom on the second
floor. He said that he would do it, but under protest because
he had never previously done it. He continued to perform
this work until December 22. Murray testified that in about
October, Meyers and Aponte together filed a grievance com-
plaining that the bathrooms at the facility were dirty. Rattner
directed him to assign Meyers and Aponte to clean the facili-
ty’s bathrooms because they filed this grievance. They had
not previously been assigned to clean the bathrooms. Rattner
testified that she never instructed Murray to assign Meyers
and Aponte to clean the bathrooms and doesn’t know wheth-
er she received a grievance regarding the cleanliness of the
bathrooms.
It is next alleged that in about June or July, Respondent
suspended Aponte for 3 days without pay in violation of Sec-
tion 8(a)(1), (3), and (5) of the Act. Aponte testified that he
was elected as assistant shop steward in about late 1992; this
involved covering for Meyers or Cerezo in their absence. He
has filed grievances on his own and he first attended a griev-
ance meeting in about summer 1993. On about June 23,
while he was making a batch of paint at his work station,
an OSHA inspector came through the facility. Shortly there-
after, Murray told Aponte that Rattner wanted to speak to
him; Aponte told Murray that he wanted Meyers to come
with him, but he was not allowed to accompany Aponte.
Rattner told Murray to give Aponte a 3-day suspension for
failing to wear a mask. He testified that he was wearing a
mask, while a lot of other employees were not. The proce-
dure is to wear a mask while pouring the paint, as he did.
The 3-day suspension states that he had been warned numer-
ous times to wear the proper safety equipment. He testified
that he had previously been warned verbally about wearing
the mask. Respondent’s records establish that he had pre-
viously received warnings dated August 1, 1991; January 24,
1992; and January 11, April 16, and June 11. Meyers testi-
fied that Aponte became a member of the union committee
sometime in about 1993 at which time he (Meyers) told Mur-
ray that Aponte was a member of the committee. Aponte at-
tended his first grievance meeting in December. Mundo testi-
fied that he didn’t know whether Aponte was part of the
union committee at the time of the June 16 meeting. Murray
testified that Aponte became part of the union committee in
about July or August.
Murray testified that certain employees at the facility are
required to wear goggles, masks, and gloves during certain
procedures, for example, when they are mixing paints. The
purpose is to prevent the paint or airborne particles from
coming in contact with their skin. Aponte and other employ-
ees sometimes removed their mask and goggles. Aponte was
given the 3-day suspension in June because Respondent
‘‘wanted to make an example of him, being that he was in-
volved with the union, he was a key figure to do that to.’’
He was not present when Aponte was allegedly not wearing
his goggles and mask when he should have been, although
he knew that Aponte was in the processing area, an area that
requires that these items be worn, at the time. He also testi-
fied that Rattner and Aponte had ‘‘a very hostile relationship.
She didn’t like him.’’ Rattner testified that Aponte was given
the 3-day suspension because he was not wearing a mask and
goggles when he should have been wearing it. She did not
observe any other employee in the department who was not
wearing a mask when he should have been wearing it. She
testified further that it was not until early 1994 that she was
aware that Aponte was part of the union committee. At that
time, Aponte was present at a meeting she had with the
Union and she asked why he was there. It was then that she
was first told that he was part of the committee.
In about July, while at work, Aponte made a sign about
a foot square with the Union’s name on it. He did it because
many of the employees did not know the Union’s name, and
he testified that he did it on his breaktime. Rattner saw him
with the sign and claimed that he made it during working
time, but Aponte claimed that he made it on his breaktime.
The next day he was transferred to a different job, filling
paint and was given a warning for making the sign. He had
previously been transferred when Rattner saw him doing
something allegedly improper. The warning that he received
for this infraction is dated July 21.
Aponte received a warning dated October 25, wherein he
was suspended for 3 days ‘‘as a result of numerous warn-
ings, verbal and written, concerning not working as assigned,
and conversing instead of working.’’ It is alleged that this
warning violates Section 8(a)(1) and (3) of the Act. The sole
testimony supporting this allegation is Aponte’s testimony
that on the day in question while he was working ‘‘moving
paint around’’ and waiting for the conveyor belt, Rattner
passed by and claimed he was talking to another employee
instead of working. Aponte claimed that he and the other
employee were working, waiting for the conveyor belt. As a
result, he received the warning and, that afternoon, Murray
told him that he was to clean the second floor bathroom,
which he had not previously done.
It is next alleged that Respondent fired Antonio Arias on
about July 7 and failed to reinstate him between July 7 and
16, and discharged him again on about August 27 and failed
to reinstate him until July 18, 1994, in violation of Section
8(a)(1) and (3) of the Act. The contract between the parties
requires employees to become members of the Union within
60 days of the commencement of employment at the facility.
The parties stipulated that Arias was first hired by Respond-
ent on October 19, 1992, and terminated March 12. Arias
testified that he began working at the facility in October
1992 in the shipping department. He worked for about 7
weeks and Murray ‘‘sent him home’’ without a reason.
About 2 weeks later he returned to Respondent’s employ this
755PARAGON PAINT CORP.
time mixing paint. He filled out a new job application and
again worked for 7 weeks and was sent home by Murray
without reason. In July, he was called again and told to re-
turn to work the following day ‘‘as a new employee’’ in the
lab. He filled out another job application and worked for an-
other 7 weeks at which time he was fired by Murray, al-
though there had been no complaints about his work. He was
never a member of the Union and never returned to Re-
spondent’s employ again. Murray testified that Arias worked
for the Respondent on several occasions. On the first occa-
sion, he worked for 3 or 4 months at which time Rattner in-
structed him to let him go, allegedly because his did not per-
form quality work, whereas the real reason was that if they
kept him he would have to go into the Union. Approximately
3 weeks later he rehired Arias as a new employee on the in-
structions of Rattner, who felt that he did good work and that
they should use him again. She directed Murray: ‘‘Bring him
back and take him up to the 60 days point and then . . . re-
lease him.’’ They did that to Arias on three occasions, in
order to prevent him from working for 60 days, when he
would have had to join the Union. Rattner testified that she
never directed Murray to terminate employees when they
were about to reach their 60th day of employment with Re-
spondent.
Rattner was especially difficult and testy when being ques-
tioned pursuant to Section 611(c) about Arias and his person-
nel files. Some examples are:
Q. When I was out at your factory on Friday, I
looked at your personnel files, isn’t that correct? You
provided me personnel files, isn’t that correct?
A. Presumably you looked; I was not watching what
you looked at.
Q. You provided them to me, isn’t that correct?
A. The company provided them to you, yes . . . .
Q. Who handled the terminations in the factory?
A. I need a definition of termination.
Arias’ payroll records establish that he worked from the
week ending October 23, 1992, to the week ending March
5; during the final 8 weeks of this period, he worked 3 40-
hour weeks and 5 32-hour weeks. He returned to Respond-
ent’s employ the workweek ending June 4 and worked until
the workweek ending August 27. He worked 40-hour weeks
for each of the final 9 weeks of this period. It is not clear
from these payroll records whether there was a break in his
employment service between the workweek ending June 18,
when he worked a 32-hour workweek, and the workweek
ending June 25, when he worked a 40-hour week.
In a similar vein, it is alleged that Respondent discharged
Ted Sossinski in about October or November, and failed to
reinstate him in violation of Section 8(a)(1) and (3) of the
Act. Sossinski did not testify. Murray testified that Sossinski
was hired on July 13 and terminated August 13. He was a
very good employee, but was terminated because: ‘‘We were
not allowing anybody to have enough time to go into the
union.’’ For about a year, at that time, they had not had any
employee who worked for a long enough period to join the
Union. He was rehired on October 4 ‘‘as a new employee
with nothing accrued’’ and was terminated on November 19.
Two days earlier, at a meeting, the Union notified Murray
that Sossinski had a total in excess of 60 days of employ-
ment at the facility. Murray told Rattner that Sossinski ‘‘had
kind of slipped through the network, so we got rid of him
the next day.’’ Murray testified:
Well, it happened to everyone that we hired for the pe-
riod of a year, because no one ever made 60 days. If
the union didn’t question us on it, we would let them
go past their 60 days, but the minute they brought up
the issue, they were gone.
Mundo testified that at a meeting with Respondent he asked
about certain employees and Murray stated that Sossinski
was fired after their meeting on November 17 because the
Union notified them that he was employed long enough to
be in the bargaining unit. Adams testified that at the Novem-
ber 17 meeting, the Union told Murray that employees had
to go into the Union after 60 days of employment at the fa-
cility. She told Murray that there was an employee named
Ted who should have been in the Union, and Murray said
that he was employed there, but that he would terminate him.
As stated above, Rattner eventually testified that she never
instructed Murray to terminate employees before they
reached 60 days’ employment. She had no direct role in
Sossinski’s termination; however, she was informed that he
did not produce the I–9 form that is required for employment
with Respondent. As credibility is an important issue here
however, it may be helpful to recite some of her initial testi-
mony as a 611(c) witness:
Q. Are you familiar with an employee named Ted
Sossinski?
A. I know the name.
Q. Isn’t it true that he worked for you on more than
one occasion?
A. I don’t know.
Q. Do you know what department he worked in?
A. We have no departments.
Q. What area did he work in?
A. We have no areas.
Q. Do people have job classifications?
A. No.
It is alleged that in about October, Respondent assigned
Meyers to work overtime in violation of Section 8(a)(1), (3),
and (5) of the Act. Meyers testified that in about October,
he filled out some grievances for employees about harass-
ment. He had the grievances in his hand preparing to give
them to Murray or Rattner when he met Rattner on the sec-
ond floor of the facility at about 4:15 p.m. She asked him
what he had in his hand and he told her that they were griev-
ances that he was going to give her and she told him to put
them down and to give them to her after work. About 5 min-
utes later when the workday was over, Meyers gave the
grievances to Murray. About 5 minutes later, he was told
that he had to work overtime; he was not given a choice on
the subject, and he testified that he had never previously
been assigned to work overtime. Murray testified that on Oc-
tober 22, he received a grievance from Meyers regarding the
assignment of mandatory overtime. Shortly thereafter,
Rattner told him that Bermas said that Respondent could as-
sign mandatory overtime to employees. He knew that Meyers
did not want overtime work, and later that day, he told Mey-
ers that he had to stay overtime that day, or he was not to
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
come in the following day. He was given this overtime in
retaliation for submitting the grievance and being the shop
steward. Rattner testified that Meyers was not given overtime
work because he complained about overtime work or because
he filed a grievance about overtime assignments.
It is further alleged that Respondent violated Section
8(a)(5) of the Act by denying the Union access to its facility
since about October 26, notwithstanding the contract between
the parties. Article 23 of the contract, plant visits, provides:
A duly authorized representative of the Union shall be
permitted access to the factory of the Employer upon
condition that he shall before entering the factory, make
application therefor to the Employer, and upon further
condition that he shall not during such visits interfere
with production in the factory.
Adams testified that prior to October, the Union had no
problem with visits to the facility; ‘‘Mr. Melton, or anyone
who chose to go over there, was allowed to go through the
plant with no problem whatsoever. We’d park the van or the
car in the back and just walk in. There was no problem.’’
They did not have to call ahead of time, and did not need
an escort at the facility. By fax to the Respondent dated Oc-
tober 26, Adams wrote that pursuant to article 23 of the con-
tract, the Union ‘‘would like to visit the plant on Wednesday,
October 27, 1993, on or about 11:00 a.m. If, for any reason,
you will not permit this visit, please explain why, and notify
me immediately.’’ Rattner wrote Adams that she could not
come to the facility because Bermas was not there on that
day and that ‘‘[a]n appointment will have to be made to ac-
commodate your request. We would also [have] to know the
purpose of your visit.’’ Adams then called Horvath and
asked him to accompany her to the facility. When they ar-
rived at the facility they spoke to the receptionist on the
speaker phone at the entrance and asked permission to come
inside to speak to Rattner or Bermas. She told them that they
could not come in because Bermas was not there. She and
Horvath noticed Bermas’ car in the lot and Horvath got on
the speaker phone and asked to see either Rattner or Bermas.
They were allowed in and were met by Constantine Karras,
the bookkeeper, who told them that they could not meet with
Rattner, and Bermas was not available, so they left. By letter
to Respondent, dated November 19, Adams notified Rattner
‘‘that as a duly authorized representative of the Union, we
would like to visit the plant on November 29, 1993 at ap-
proximately 11:00 a.m.’’ She received no response to this
letter.
Murray testified that prior to October, article 23 of the
contract ‘‘was interpreted in a very loose fashion that we
could handle it informally.’’ Prior to this time, the Union did
not have to make written notification, did not have to ‘‘for-
mally’’ give the reason for the visit, and did not have to be
escorted throughout the facility. At about that time, Rattner
told him: ‘‘they’re holding us to the contract, so we’re going
to hold them to the contract, and it says here they have to
apply, we interpret that they have to give written notification
and it has to be approved by the company.’’ Mundo testified
that prior to a meeting that the Union had with Respondent’s
representatives on December 1, as will be discussed more
fully below, OSHA found numerous violations at the facility.
Sometime thereafter, but still prior to December 1, OSHA
wrote to the Union that they had reached certain agreements
with Respondent because Respondent alleged that it cleared
up the violations. He testified that he believes that under
OSHA rules a party has a specific period in which to file
exceptions to such an action. Adams’ November 19 letter to
Respondent was sent to determine whether the violations had
been cleared up. In addition, at the wage reopener meeting
on December 1, Mundo told Bermas that the Union wanted
to visit the facility, but Bermas said that he didn’t think that
the Union had that right. Mundo showed him article 23 of
the contract, and said, ‘‘Now do you think that we have the
right to go in?’’ Bermas responded: ‘‘We don’t see any rea-
son for it. Besides, you didn’t give us sufficient notice.’’
Mundo said, ‘‘Well, we’re all standing here now, let’s pick
a day so that nobody can say that we didn’t give you suffi-
cient notice,’’ but Bermas refused to allow them to visit the
facility. Mundo told Bermas that they had to visit the facility
within the time period that OSHA gave them to object to its
agreement with Respondent. Bermas said that the union peo-
ple who work at the facility could do it, ‘‘we’re not allowing
the Union in.’’
Rattner testified that she refused Adams’ October 26 re-
quest for access to the facility because it was not possible
to arrange a visit for the following morning, and these visits
were Bermas’ responsibility and he was not available to es-
cort the union representatives throughout the facility. In addi-
tion, due to the nature of the operation, they have to restrict
access to the facility because of the possible danger of a visi-
tor smoking or getting splattered by the paint. She had never
previously received a request from the Union to visit the fa-
cility. Bermas also testified that prior to this request, he had
never received a request from the Union to visit the facility.
It is next alleged that on about October 15, Respondent re-
duced the frequency with which it paid its employees from
once a week to once every 2 weeks in violation of Section
8(a)(1) and (5) of the Act. Murray testified that on a Friday
in October he went to get the paychecks to distribute to the
employees and was told that there were no checks, that be-
ginning that week employees would be paid biweekly. He in-
formed the employees of the change on that day. To his
knowledge, Respondent did not first discuss this matter with
the Union. A memo from Rattner to all employees, dated Oc-
tober 15, states: ‘‘A change has occurred in the payroll sys-
tem. Future payments of wages will be made every two
weeks for wages earned over a two week period. You will
receive the next payroll check on 29 October 1993.’’ This
biweekly pay lasted until December 22. Mundo testified that
in October Adams told him that Respondent’s employees in-
formed her that beginning at that time they were going to be
paid every 2 weeks instead of every week. He called Rattner
and told her that it was a breach of contract for her to unilat-
erally change the payroll week without first discussing it
with the Union. She told him to speak to her attorney, Gerald
Richman, which he did, and Richman said that he would dis-
cuss it with Rattner. By letter to Rattner dated October 22,
Mundo objected to this payroll change, alleging that it vio-
lated the contract. He testified that the Union received no
prior notification from Respondent about this change. The
Union filed notice of arbitration about the change, and short-
ly before the arbitration was to take place, Richman told him
that Rattner agreed to return to the weekly payroll. By letter
to Mundo dated December 8, Richman confirmed that ‘‘be-
757PARAGON PAINT CORP.
ginning with the upcoming pay period,’’ Respondent would
return to a weekly pay system. On December 22, the em-
ployees eventually received checks for 2 weeks’ work.
Rattner was asked by the General Counsel:
Q. Did you discuss this [the payroll change] with
anyone from the union, Local 8-712, Oil, Chemical and
Atomic Workers, AFL–CIO?
A. It was not my responsibility to discuss with the
union,
ADMINISTRATIVE LAW JUDGE: Remember, yes or no.
A. No, I did not.
The next allegations involve the Union’s request for infor-
mation and the Respondent’s alleged refusal to provide the
information. It is alleged that by letter dated November 29,
and by oral request on about December 15, the Union re-
quested that Respondent provide it with information concern-
ing the cost of medical insurance and types of coverage pro-
vided; that by letter dated about December 1, and by oral re-
quest on about December 15, the Union requested that Re-
spondent provide it with a list of all current employees, their
job titles and hourly pay; and that by letter dated about De-
cember 1, and by oral request on about December 15, the
Union requested that Respondent turn over its financial
books and records to the Union. It is alleged that the Union
was entitled to these financial records because on about De-
cember 1 and 15, at the wage reopener talks, Bermas in-
formed the Union that Respondent could not afford any in-
crease in wages or medical benefits.
Article 13(e) of the contract provides:
Either the Union or the Employer, upon thirty days
prior written notice to the other party, may reopen ne-
gotiations as of December 1, 1992 and/or December 1,
1993, solely on the issue of the rates of pay during the
then remainder of the term of this contract. In all other
respects, except as provided in Paragraph 17 (b)1C of
this contract, this contract shall remain in full force and
effect until November 30, 1994.
Article 17(b)1C provides an identical reopener on the subject
of medical coverage. By letter to the Respondent dated No-
vember 29, Mundo wrote:
In preparation for the collective bargaining negotiations
concerning wages and medical benefits which is sched-
uled for Wednesday, December 1, 1993, please provide
me, on behalf of the Union, with the information re-
garding the cost of medical insurance and types of cov-
erage which was stipulated that you would provide the
Union as a result of the July 16, 1993 arbitration.
Mundo testified that the Union needed this information be-
cause medical coverage was one of the subjects available for
reopening, and in order to ‘‘intelligently discuss and nego-
tiate’’ about this item, they needed this information which,
at the time, only the Respondent knew. By letter and fax
dated December 1, Mundo wrote Rattner:
On behalf of Local 8-712 OCAW, I hereby request
the following information which is necessary for the
Union to prepare for current negotiations concerning
wages.
A list of all current employees, their job titles and
hourly salaries. Since employee’s job functions have
often been changed, it is necessary to have this infor-
mation on an individual basis.
Since this information is relevant for our negotiations
session today and you do not have a large workforce,
please have this information for us at this afternoon’s
meeting. In addition, please have the information pre-
viously requested regarding the medical insurance cov-
erage available for today’s negotiations.
Bermas testified that in about August or September, the
Union had requested a list of all union members, and the
dates of hire and wage rates and he supplied this information
to the Union. On December 1 the Union again requested this
information and Bermas said that he had already given them
the information. After consulting with his client, Mundo said
that they wanted a list of all former employees, going back
to the commencement of the contract, as well as the present
employees. Bermas said that he didn’t have that information
with him, but he would have Karras prepare the list. Bermas
left Respondent’s employ on December 30, prior to receiving
this list. He never refused to give them this list. As to the
Union’s request for health insurance information, he testified
that, although he does not remember receiving the November
29 letter requesting the medical insurance information,
Mundo asked for it at the December 1 meeting:
I said to him [Mundo] . . . when the company reduced
the medical benefits pursuant to the language in the
agreement a year ago, there had been no request for in-
formation; there had been no reopener even on these
benefits. Now the second year the company was not
changing the benefits, they were continuing with the
same benefit level and I just didn’t see why any cost
information was appropriate.
Mundo testified that at the December 1 meeting he asked
Bermas for the medical benefit information requested in the
November 29 letter, but Bermas said that they weren’t enti-
tled to the information. Mundo asked: ‘‘How are we sup-
posed to negotiate if you don’t tell us what benefits there are
and the cost of those benefits?’’ Bermas refused to provide
this information. Mundo then asked for the payroll informa-
tion requested in the December 1 letter and Respondent gave
him the list of current employees with their wage rate written
in. This list was not adequate because the Union suspected
that people were working at the facility who should have
been, but were not, union members, and Mundo told Bermas
that the list did not satisfy their request because it only gave
the information for existing union members. He asked
Bermas how many people were then working at the facility,
and Bermas refused to answer, saying that it was none of the
Union’s business. Mundo then gave Bermas a copy of the
Union’s demands for the reopener: it requested a $2.50-an-
hour wage increase and a request to ‘‘reinstate the medical
coverage that was in effect on December 14, 1992, including
prescription coverage.’’ Mundo testified that Bermas’ re-
sponse was:
There would be absolutely no wage increase, the com-
pany couldn’t afford it, business was bad . . . so there
was no way the employer could afford it. He told me,
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
right now anything that costs money we are not going
to do. I asked about the medical benefits, he said forget
it, we’re not going to pay anything additional; there’ll
be no increases at all at this time. I said are you telling
me that the company cannot afford to pay any in-
creases? He said that’s right, there’s no way we’re
going to pay any increases, we can’t afford it. I specifi-
cally asked him, are you telling me the employer is
pleading poverty in this case, that they can’t afford any
increases? He said, there’ll be no increases, that’s right.
I’m telling you, we cannot afford it. At which time I
then asked to be able to view the company’s books and
records since they were pleading poverty in negotia-
tions, that they could not afford to pay it. He said abso-
lutely not, there’s no way we’ll turn it over.
Respondent never gave the Union its books and records.
Murray testified that, at this December 1 meeting, after the
Union asked for the additional wages and health benefits,
Bermas said: ‘‘We didn’t have the best of years, and we
couldn’t afford to give out any salary increases, and we were
not changing the health benefits, we couldn’t afford to.’’
Bermas also said that Respondent could not remain competi-
tive if they gave the employees increased wages.
The parties met again on December 15. The date was ar-
ranged in conversations between Mundo and Rattner, when
Rattner told him that December 15 was the only day that she
was available to meet. When they arrived at the facility on
that day, Rattner was not there. Mundo asked Bermas where
Rattner was, and he said that she was at the facility, but was
not going to attend the meeting. Mundo objected to her ab-
sence, and asked Bermas if he would give him the informa-
tion that he asked for. Bermas said that the Union had no
right to the medical information. He asked for the informa-
tion about the employees working at the facility, and Bermas
refused to give him that information as well. Mundo asked
Bermas if he had the authority to negotiate about the re-
opener issues and Bermas said: ‘‘We don’t have any money
to give; there’ll be no increases.’’ Bermas testified that on
December 1 and 15, pursuant to the reopener, the Union
asked for about a $2-an-hour increase and to have the medi-
cal benefits returned to the level they had been before being
reduced in the prior year. Bermas told him that there would
be no wage increase: ‘‘the condition in the paint industry
. . . was very difficult and the competition was very tight
and . . . if Paragon were to give any wage increase or any
other of their cost increases, they just would not be able to
be competitive any more.’’ He testified that at these meetings
he never said that Respondent could not afford a wage in-
crease:
I knew enough about labor law to understand the dif-
ference between a company pleading that they couldn’t
afford to give an increase and that they couldn’t do it
for competitive reasons. . . . As I understand it . . . if
your claim at the collective bargaining table is that you
can’t afford it, then you have to substantiate that by
opening up your books to the Union, and the company
just didn’t want to do that. And besides, that was not
the fact, it was not a case that they could not afford it.
The remaining allegations relate to the events of December
22 and thereafter. Wednesday, December 22, was a payday
and was the final workday that week because of the Christ-
mas holiday. The next workday was scheduled to be Mon-
day, December 27. The events of December 22, triggered by
Respondent’s initial failure to pay its employees 2 weeks’
pay to make up for the change to the biweekly pay system
2 months earlier, caused a work stoppage that began that day
and lasted until February 1 and then until about March 6.
Cerezo testified that on December 22, the employees were
expecting 2 weeks’ pay because they had not been paid the
prior week. They received their checks and it only was 1
week’s pay and they asked Murray why they were not paid
for 2 weeks and he said that he didn’t know. All the employ-
ees then went to the second floor of the facility to speak to
Rattner. Cerezo, Meyers, Aponte, and one other employee
went to Rattner’s office and asked about their pay and she
told them that they had already been paid and that they
should leave. They said that they were owed 2 weeks’ pay
because they had not been paid the prior week. She asked
Murray if it was true that they had not been paid the prior
week and he said that it was true. The employees said that
they would not leave until they got all their pay, and Rattner
and Murray went into the office. Murray came out 15 min-
utes later and said that their checks for the prior week would
be mailed to them. The employees said that was not accept-
able because they needed the money for Christmas shopping.
At about 6, Karras, the bookkeeper (who had been away
from the facility on jury duty), arrived and asked what the
problem was. When he was told that the employees were de-
manding their pay for the prior week, he said, ‘‘What are
you talking about? It’s in the safe.’’ Murray and Karras went
into the office and got the checks. Murray then told the em-
ployees that all the employees, with the exception of six,
would get their checks. He handed out the checks to all ex-
cept six and he told those who were paid to leave the build-
ing. The six who did not get their checks, apparently, Earl
Bruno, Juan Serrano, Juan Gonzales, Jose Vendrell, Javier
Restrepo, and Pedro Mercado, were told to go upstairs to see
Rattner. Cerezo testified that he and the other employees
who were paid followed Murray and the six employees up-
stairs because they wanted to make sure that they were paid;
however, they were not allowed to enter the area. They stood
on the floor and heard Rattner apologize for what had oc-
curred and tell the employees that they were to report for
work on Monday. Murray opened the door and told Cerezo
and the other employees that they were not to come to work
on Monday, Rattner only wanted the six employees with
whom she spoke to work on Monday. This was the first time
that they were told not to come to work on Monday. Cerezo,
who had been employed at the facility for 17 years, testified
that he had never previously been laid off. There had been
occasions when some employees’ workweeks were cut to 32
hours, usually by seniority, but they were given about 2
days’ advance notification of this change. The employees
complained that there was no prior notification of this layoff
and that it was not done by seniority, and said that they were
all going to report for work on Monday, which they did.
They arrived for work the usual time on December 27, but
Murray told them that only six named employees whom
Rattner wanted would be allowed in. Some of the employees
asked why they were not being allowed to work and why
weren’t they chosen by seniority, and Murray said that
Rattner only wanted those six. The employees said that if all
759PARAGON PAINT CORP.
of them couldn’t work, none would work. They remained
outside the facility until 4:30 p.m. and none of them worked.
Earl Bruno, who had been employed by Respondent for 17
years, testified that when he was given his check by Murray
on December 22, it was only for 1 week’s pay when it
should have been for 2 weeks. He and the other employees
said that they were entitled to 2 weeks’ pay, but Murray said
that Rattner said that they were only entitled to 1 week’s
pay. They all handed Murray their checks and went to see
Rattner. Bruno stayed in the back, while Cerezo and some
other employees were in front and went into Rattner’s office.
Cerezo told Rattner that they should have been paid for 2
weeks, not one, and she took the checks from Murray and
they went into her office. At about 6 p.m., Karras arrived
and when they told him the problem, he said that their
checks were in the safe. A few minutes later, Karras and
Murray came downstairs and said that they had the correct
checks, but were ‘‘holding back’’ six checks, and that those
six employees should go upstairs to speak to Rattner. Bruno
and five other employees were not given their checks and
went to the second floor to speak to Rattner. Rattner handed
them their checks, apologized for the problem, and told them
to have a nice Christmas. ‘‘Pedro’’ asked about his vacation
and Rattner said that she knew about it and would take care
of it. Bruno said that he wasn’t paid the correct amount be-
cause of his vacation and asked Rattner to look into it. She
said that she had a dinner appointment that night and didn’t
have time to look into it. She walked away, and ‘‘all of a
sudden she turned around and she told me, you stay home
on Monday, too.’’ On the following day, Bruno was called
by Joanne, the receptionist at the facility, and was told that
he was not to come to work on Monday. He testified that
about 3 or 4 years earlier there had been a layoff at the facil-
ity where certain employees were informed during the day
that they would be laid off at the end of the day. He was
not laid off because of his seniority.
Aponte testified that on December 22, when they got their
checks, they realized that they had only been paid for 40,
rather than 80, hours of work. They told Murray that they
should have been paid for 80 hours, and he said that was all
they were supposed to get. They said that they were not
going to leave until they were paid all that they were owed.
Later, when Karras arrived, they told him of the problem and
he said that the checks were inside. Murray then gave out
the checks and said that whomever did not receive a check
should go to the second floor, as Rattner wanted to speak to
them. Six employees did not get their checks and they went
to see Rattner. The other employees ‘‘were concerned that
they might not get paid,’’ so they followed them to the sec-
ond floor. When Rattner saw them she said: ‘‘Didn’t you get
paid? Why don’t you go home?’’ Aponte said: ‘‘Just pay
them and we’ll all go at the same time.’’ Rattner said:
‘‘Whoever got paid, go home.’’ They started to walk out and
heard Rattner screaming at Murray ‘‘that she wanted all of
us laid off for that day.’’ Aponte, who had been employed
at the facility for 7 years, testified that he had been laid off
in the past, but was notified days in advance of the layoff
and was able to use sick leave or vacation days for the layoff
period. On December 22, the employees were first advised
of the layoff at about 6 p.m., and were not given the option
of using sick days or vacation days for that period. All the
employees appeared for work on Monday morning, but the
gate was closed and they were not permitted to work. They
appeared at the facility every day until February 1, when
they returned to work, albeit, briefly.
Mundo testified that on the evening of December 22 he re-
ceived a telephone call from Cerezo, who told him of the
events of the day as discussed above:
So my advice to Mr. Cerezo was that it appeared that
this was purely retaliatory by the employer and that this
was an unfair labor practice, and that it was up to the
employees, if the employees wanted to band together
and take action. That, in fact, I advised them that they
should all report to work on Monday. I told them that
they should sign in, have a sign in sheet to show that
everybody was there, and everybody ready and willing
to work because the employer’s actions were clearly il-
legal and improper . . . .
Murray testified that in the past Respondent has had sea-
sonal layoffs in around December or January. On these past
occasions (prior to 1993), Respondent notified the employees
at least 2 weeks in advance and gave them an opportunity
to use accrued sick leave or vacation time during this period.
In December, he was not specifically told that there was to
be a layoff until late in the afternoon of December 22. He
testified: ‘‘It happened every year, so I didn’t have to spe-
cifically be advised, but I wasn’t specifically advised that
that day it was going to happen.’’ He testified that on De-
cember 22, after he gave the employees their checks, they
complained that they were owed for 2 weeks’ work. He re-
ported it to Rattner, who said: ‘‘This is the payroll, it’s pre-
pared and that’s it.’’ The employees refused to leave the fa-
cility until they got their 2 weeks’ pay. Rattner prepared to
write new checks for the employees to cover the second
week’s pay when Karras arrived and the employees were
given their full compensation. When he was about to give
the employees these additional checks, Rattner told him that
on Monday the facility would be closed for a seasonal reduc-
tion and she only wanted six employees to come to work on
Monday. This was the first that he heard of this reduction.
Rattner gave him a list of six employees and he was told to
tell those employees to go to see her in her office. He did
that, and told the other employees to go home and not to re-
port for work on Monday, but to call him on a daily basis
and he would tell them when to return. He went to Rattner’s
office with the six employees and she told them to come to
work on Monday. They said that they would not come to
work unless everybody came back. Bruno, who had been
asking him about alleged accrued vacation time that he had,
then asked Rattner if he could get his vacation time. Rattner
said that it wasn’t the proper time to discuss it. ‘‘But he pur-
sued it for whatever reason, and tempers flared, and Mrs.
Rattner told him that he was not to come in on Monday.’’
On Monday, all the employees reported for work. He asked
Meyers if the six employees that they wanted were going to
report for work. Meyers said that they would not work unless
everybody worked, and they were not allowed to work. This
procedure continued on a daily basis until his employment
with Respondent ended 2 weeks later.
Murray testified further that Respondent has an inventory
done every year, and, as of December 22, it had not yet been
done. Therefore, he knew that it had to be performed on De-
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Art. 9 of the contract states: ‘‘Seniority shall prevail with regard
to layoffs, rehiring and promotions. When layoffs are necessary, the
last employee hired shall be the first laid off.’’ Art. 9 also states that
the shop chairman and shop steward shall head the seniority list in
the event of a layoff.
cember 27, 28, and 29, because the facility was to be closed
on December 30 and 31. When asked on cross-examination:
‘‘And you knew you didn’t need the full complement of em-
ployees?’’ he testified: ‘‘Well, no, that doesn’t follow.’’ He
testified that ‘‘the inventory was taken around production’’
and that he uses three or four of the unit employees for the
inventory. He was asked:
Q. Okay, now is it your testimony that you didn’t
know you needed a reduced work force for the week
of December 27th?
A. It was my testimony that I didn’t make that final
decision and nothing had been said up until that point,
but we all knew that that is a slow period. No specific
decision, you can’t tell people Friday not to come to
work Monday.
Q. Well wasn’t that your responsibility as plant man-
ager to decide how many people you needed to work
each week?
A. It should have been, but I didn’t make that deci-
sion.
A few moments later he was asked:
Q. Well, did you ever have a discussion with Mrs.
Rattner, hey, it’s December 22nd or December 21st,
you know next week we’re going to have the inventory,
we’ve got to get it done by the end of the week, we
don’t have any orders. We’ve got to tell the people, re-
duce the work force?
A. No, we had no such discussion.
Q. You knew it was going to be slow?
A. Yes, I knew that, that I knew.
Q. And you knew there was going to be an inven-
tory?
A. I knew there was going to be an inventory.
Q. And you knew you only needed four or five peo-
ple to do the inventory?
A. Right. But we had always done that around pro-
duction when it was warranted.
Rattner testified that on December 22, she had ‘‘an under-
standing’’ with Murray that they would do an inventory the
following week and the sales and production ‘‘would be ex-
tremely reduced.’’ In prior years, during inventories, ‘‘a se-
lect few . . . were called to work during that period.’’ On
December 22, Murray came to her office and said that there
was a problem, that the employees were supposed to get two
paychecks and only received one. Earlier, Karras, who was
on jury duty, had given her the checks which she had locked
in the safe. She was under the impression that the biweekly
pay had ended previously and that the employees were only
entitled to 1 week’s pay. Murray left and, shortly thereafter,
the employees lead by Meyers and Cerezo came ‘‘barging’’
through the factory, waving their arms and yelling. They
spoke to Bermas, who then told Rattner that they said that
they were owed 2 weeks’ pay. Rattner looked in the safe, but
could not locate the additional checks. She then called the
payroll company and was told that another set of checks was
issued, but she could not find these checks, so she began to
write a new set of checks for the employees. Before they
could be completed, Karras returned to the facility, showed
her where the checks were located in the safe, and they were
given to the employees. During this period while they were
looking for the checks, ‘‘I raised the subject with Michael
Murray as to who was going to be coming back, who was
. . . going to be reporting for work for that three day inven-
tory period.’’ They decided on six employees who would
work the following week and it was Murray’s job to notify
the employees. Bruno was one of the employees who was
originally scheduled to return the next week. She testified
however that when he complained to her about his vacation
pay,
I had the very strong sense that there was an order [sic]
of liquor at that point and also it was getting on to 6:00
and my impression was that he wasn’t his usual self,
that perhaps this wasn’t a good idea to bring him back.
On the morning of December 27, Murray told her that all the
employees reported for work and that their position was that
none would work unless they all worked. She never fired the
employees. In answer to a question from the General Coun-
sel regarding whether employees are given prior notice of
layoffs, Rattner testified: ‘‘The employees were notified the
day before if they were not required to come to work the fol-
lowing day.’’
By letter dated December 30 (and faxed to Mundo)
Richman stated that he was notified by Rattner that nine
named employees (none of whom were individually dis-
cussed above) were to report for work on Monday, January
3, 1994. Mundo responded to Richman’s letter on the same
day. His letter alleges that the work stoppage that began on
December 22 was a lockout that followed Respondent’s un-
fair labor practice, and that the layoffs were unlawful and
were not done in accordance with seniority.4 The letter asks
about the status of all of the union members who were em-
ployed at the facility.
On January 5, 1994, representatives of the Union and the
Respondent met at a diner near the facility. Mundo testified
that during the week of December 27 he had numerous tele-
phone conversations with Richman regarding the situation at
the facility. On January 4, 1994, he received a telephone call
from an attorney whose name he believes is Robert Sachs,
who said that Richman was no longer representing Respond-
ent, that he was, and he would like to arrange for a meeting
of the parties. Mundo said that he had been trying to do that
since December 27. They agreed to meet at a diner (chosen
by Rattner) near the facility at 10 a.m. on January 5, 1994.
Everyone (Mundo, Adams, Meyers, Aponte, Cerezo, Melton,
and Sachs) except Rattner arrived on time. Sachs said that
Rattner would be detained a bit because there were some
problems at the facility. At 10:45, Rattner had not yet arrived
and Mundo told Sachs that they would remain for only 5
more minutes. At 10:50, they got up, went into the parking
lot, and Rattner drove up. Mundo and the union representa-
tives decided to return to the diner with Rattner and Sachs.
Sachs opened the meeting by explaining the reason for the
meeting. Adams then said something to the effect of: ‘‘She
didn’t provide us with’’ when Rattner jumped from her seat
761PARAGON PAINT CORP.
and said, ‘‘I have a name, I’m not going to be referred to
as she, I want respect and I’m leaving, I’m not going to put
up with this.’’ She got up and left and that was the end of
the meeting. On the following day Mundo got a call from
Sachs saying that he was no longer representing the Re-
spondent. Cerezo’s testimony about this meeting is very
similar except that he testified that it was Mundo, not
Adams, who used the word ‘‘she,’’ which caused Rattner to
say that she was to be addressed as Mrs. Rattner, that she
would not be dictated to, and that she was terminating the
meeting. Rattner, who was asked about a meeting that took
place at the diner on January 20, 1994, testified that she was
late for the meeting because she was trying to hold the oper-
ation together during the strike. She testified that the first
person to speak was Adams, ‘‘who immediately proceeded to
what I considered to be a personal attack on me. . . . She
accused me of stealing money, of not paying my employees,
of not paying Union dues and a whole lot of things.’’ Rather
than listen to such a personal attack, she left to return to the
facility.
There were numerous letters and telephone conversations
after December 22 among Mundo, Richman, and Rattner that
were intended to settle the dispute and get the employees
back to work. Mundo testified that on January 11, 1994, he
had a telephone conversation with Rattner about having the
employees return to work. He wrote her a letter dated Janu-
ary 12, 1994, confirming the details of this understanding. It
states, inter alia:
This is to confirm your telephone conversation with
me on the afternoon of January 11, 1994.
You stated to me that you want all of your employ-
ees who are members of Local 8-712 OCAW, who
have not been working since December 22, 1993, to re-
turn to work.
The employees will return to work provided that all
employees are allowed to return to work, the employer
will not retaliate, discriminate or take any disciplinary
or adverse action against any employee because he or
she has not worked since December 22, 1993 or be-
cause of the events of December 22, 1993, which lead
up to this action.
The Union and its members hereby reserve all of
their rights to take whatever action they believe proper
whether via the Courts, the NLRB, the grievance proce-
dure or any other forum it feels proper to protect their
rights and obtain any remedies for all acts which have
occurred since December 22, 1993.
The return to work of any employee is not deemed
a waiver of any such rights.
It should be noted that the nature of the cross-examination
of Mundo indicates that Respondent’s position is that this
letter did not constitute an unconditional offer to return be-
cause it provided for the return of all employees, whereas 1
week earlier Respondent wrote to Mundo that it wanted only
nine employees to return. Rattner called Mundo after receiv-
ing this letter and said that she disagreed with it because the
only way that the employees could return to work was if
they withdrew their charges at the Board and their griev-
ances. Mundo told her that was not acceptable and such a
demand might violate the Act. In addition, Rattner faxed to
Mundo a response on the same day. It states, inter alia:
In a brief telephone conversation with my attorney, I
relayed your claim that ‘‘the withdrawal of all charges
at the NLRB is in and of itself a violation of the labor
law.’’ He informed me that there is a procedure for re-
tracting such charges.’’
On that same day, she also faxed him a letter stating that as
she told him in a telephone conversation that day, she never
agreed to the statements contained in paragraphs 4, 5, 6, 7,
and 8 of his January 12 letter. Still later that day, Mundo
wrote another letter to Rattner summarizing their earlier cor-
respondence and conversations that day and concluding that
the union members ‘‘are agreeable to return to work at Para-
gon Paint, provided they reserve all of their rights at the
NLRB, through the grievance process and via any other
forum they may have available to them.’’ Between that date
and late January, Mundo and Richman had numerous con-
versations in which they attempted to come to an agreement
providing for the employees to return to work. This eventu-
ally resulted in an agreement that the employees would re-
turn to work on February 1, 1994, which they did, and which
will be discussed more fully below.
The parties met again on January 20, 1994, with basically
the same individuals representing the Union, and Richman
and Rattner representing the Employer. At the conclusion of
the meeting a tentative agreement was reached wherein the
employees would receive a 3-percent wage increase and
would be paid $275 backpay to cover the prior 4 weeks of
being out of work. This agreement was subject to ratification
by the employees, and the committee members who were
present at the meeting said that they thought that there would
be problems getting the employees to approve this settle-
ment. The employees voted not to accept this tentative agree-
ment, apparently, because they were angry that Rattner re-
ferred to the $275 backpay as ‘‘bread money,’’ which some
of them considered insulting.
Richman wrote to Mundo on January 27, 1994, that Re-
spondent was puzzled by the lack of response from the
Union to the apparent settlement agreed to a week earlier.
The letter states that unless Respondent hears from the Union
by noon on January 28, 1994, that the employees will return
to work on Monday, January 31, 1994, Respondent would be
forced to hire replacement workers to maintain its business.
On the following day, Richman again wrote to Mundo that
he expects the employees to return to the facility on January
31, 1994, and that the return would ‘‘be without prejudice
to any and all outstanding charges which may presently be
pending before the Labor Board.’’
At the orders of their delegate, the employees returned to
work on February 1, 1994, at the usual reporting time, before
8 a.m.; Rattner arrived about 40 minutes later. Cerezo testi-
fied that Rattner asked Fred Frank, Respondent’s general
manager at the facility, what Aponte was doing on the label-
ing machine, where he was working that morning, and where
he had worked prior to December 22. Frank then transferred
Aponte to labeling cans by hand and she then asked where
Meyers was and Frank said that he was working on the third
floor. Rattner left the second floor and, about 15 minutes
later, Meyers came to the second floor and said that Rattner
had been harassing him on the third floor. Rattner then re-
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
turned to the second floor and said that she wanted to have
a meeting with all the union members. Cerezo picked up the
intercom phone to page the employees on the other floors to
come to the meeting, and Rattner grabbed the phone away
from him, saying that he had no right to use that phone, she
was the boss, and it was her phone. Meyers said that he did
have a right to call the members together for a meeting since
he was the assistant shop steward. The meeting took place
at about 9 a.m. that morning; all the union members were
present, as were Rattner and Frank. Rattner said that she
wasn’t running a nursery and that she was not harassing
them, that harassment meant either profanities or physical
contact. She said that they had to wear safety shoes at work
and that she expected an honest day’s work from the em-
ployees and that is why she was critical of them. Meyers
asked a question, which Cerezo could not recollect, and
Cerezo asked her how were the employees supposed to
change into the safety shoes when she removed their locker
room. Rattner then told the employees that whoever wanted
to work should return to their work stations because the
meeting was over. Because the meeting took 15 minutes,
they would not get a coffeebreak that morning. Cerezo re-
turned to work and Rattner told him that he should follow
her into the stockroom where the cans of paint are stored.
She pointed to a batch of 5-gallon paint cans each weighing
about 50 to 70 pounds and told Cerezo to bring her the cans.
Cerezo said that he didn’t have a handtruck, and Rattner said
that he should carry it by hand, which he did. At that point
she told him to put it back. When he questioned her about
it, she said: ‘‘If you want to work for me, you do as you’re
told.’’ An employee who was nearby said that she was
harassing Cerezo, and she denied it and said: ‘‘Get out, go
march in the snow one more time for another month or so.’’
Cerezo prepared to go down the stairs and she told him that
was not the way to go. When he continued, without arguing
with her, she grabbed and pulled on his jacket. Cerezo testi-
fied that as he was preparing to leave, he saw Rattner stop
employee Juan Gonzales and ask him: ‘‘Are you staying
with me or are you with the Union?’’ Gonzales answered
that he was a union member and was going with the Union.
Rattner then stopped another employee whose name is uncer-
tain in the record. She put her hand on his chest and asked
if he was staying. He said that he was not crazy, that he was
going.
Bruno testified that on the morning of February 1, 1994,
Rattner spoke to all the employees and said that telling the
employees to work fast is not harassment. A few minutes
later, Cerezo made an announcement in Spanish over the
intercom. He asked a Spanish-speaking employee to translate
and was told that Cerezo said that they should return to the
second floor. When he got there, Cerezo told him that
Rattner kicked them out of the plant and they had to leave,
so he did.
Meyers testified that on the morning of February 1, 1994,
he began working on the third floor of the facility, but
Rattner instructed Frank to assign him to a job on the second
floor. At about 9 a.m., Rattner had a meeting of all the em-
ployees and told them that she was not running a nursery;
that the employees were there to work, and if they didn’t
want to work they should get out. Meyers and Aponte said
that she was harassing the employees and she said that har-
assment is using profanities of attacking somebody. Rattner
also told them that they couldn’t work unless they wore the
proper workshoes, and Cerezo said that they had no place to
change into the shoes. Rattner said that she was putting
Cerezo in charge of employees’ work clothes and shoes and
that they should change in the bathroom, which they had not
done previously. Rattner then told Cerezo to come to the
shipping department and to move 2- and 5-gallon cans of
paint. Normally they move them with a handtruck, but there
was no handtruck, so she told him and Karras to go down-
stairs to get a handtruck. As he was coming back upstairs,
he heard Cerezo on the intercom telling the employees to re-
turn to the second floor. When he got there, Cerezo told him
that Rattner was harassing him. Rattner told the employees
that If they were not there to work, to get out, and if they
didn’t leave, she would call the police. Meyers went upstairs
to get his coat and Rattner asked him where he was going.
When he responded, she had Frank follow him. He got his
coat and left with the other employees.
Aponte testified that on February 1, when he returned to
work, he went to the machine that he had operated prior to
December 22, the labeling machine. A few minutes later,
Rattner came by screaming that she didn’t want him working
on that machine, she wanted him to put ‘‘labels on quarts,’’
a job that he had not previously performed. She stood over
him for about 5 or 10 minutes, saying that she wanted him
to label them ‘‘right now.’’ He said that he would do them,
but could not do them all at the same time. Rattner then
asked Frank where Meyers and Cerezo were; Frank said that
he gave them an assignment, and Rattner said: ‘‘You’re not
to assign them anything. I’m going to assign them work.’’
Aponte continued working until the meeting was called
where Rattner spoke to the employees. At this meeting
Rattner defined harassment as using foul language or hitting
an employee. Aponte was translating what she said to a
Spanish-speaking employee and Rattner told Aponte to shut
up. He said to her: ‘‘You’re talking about harassment and
you’re screaming at me to shut up.’’ She said: ‘‘Just shut
up,’’ and he did. Cerezo asked where the employees could
change, and she said that she was putting him (Cerezo) in
charge of everybody getting changed in the bathroom.
Cerezo told her that the bathroom was too small. At the con-
clusion of the meeting Aponte returned to his labeling ma-
chine. Later that morning he saw Rattner telling Cerezo to
get ‘‘a five’’ can of paint. He saw Cerezo carrying it on his
shoulder, whereas they usually transported these cans by
handtruck as they weigh 40 or 50 pounds. He then saw
Rattner directing Cerezo to return the can to where it had
been previously. Cerezo did it, as ordered and waved to
Aponte to come to him. When he got there, Cerezo said:
‘‘She’s making me carry the fives from one place to another
and back.’’ Aponte then said to Rattner: ‘‘I thought you said
that you were not going to harass us?’’ Rattner responded:
‘‘If you want to work here, you’ll do as I say.’’ Aponte said
that they would do what she said, ‘‘but not that way.’’
Rattner then said: ‘‘If you’re going to work with me, you
work with me. If not, get out.’’ Aponte asked: ‘‘What do
you mean, get out?’’ Rattner screamed: ‘‘Just get out. Get
out of my factory.’’ Aponte asked: ‘‘Are you throwing us
out again?’’ Rattner said, ‘‘Just get out.’’ He said that he
wanted to get his clothes and change, and she said that he
should just get his clothes and leave. As he was preparing
to leave, he saw Rattner pull on the coat of employee Fer-
763PARAGON PAINT CORP.
nando Ramos and she was saying to all the employees that
they should get out. As they employees were leaving, she
said: ‘‘Why don’t you go outside and walk a little more in
the snow. Maybe that month wasn’t enough for you.’’ He
later returned to work on about March 7, 1994, and left Re-
spondent’s employ on June 28, 1994.
Rattner testified that she had no advance knowledge that
the employees were going to report for work on February 1,
1994. Frank called her at about 7:30 that morning to tell her
that the employees were standing outside and were told to
report for work. Rattner told him to let them in, which he
did. She arrived at the plant at about 8 a.m. and ‘‘imme-
diately went to the working areas and tried to assign, help
assign people to different jobs.’’ This was a difficult task be-
cause the employees had been out for 2 months, she had no
time to prepare for their return, and Murray was no longer
working for her. Because of the difficulties caused by the
strike, the storage of materials needed a major reorganization
and she told Meyers and Cerezo to follow her to reorganize
this storage system. Without any direction from her, Cerezo
got on the intercom and told the employees to come to a
meeting. When she saw the employees assembled, she de-
cided that she might as well speak to them. Employees were
shouting about harassment, and she told the employees that
if she tells them to do something they must follow her or-
ders. She told them that they were starting a ‘‘new chapter,’’
and that it would initially be difficult because she did not
have a chance to plan for their return to work. At the conclu-
sion of this meeting she returned to assigning Meyers and
Cerezo to the reorganization of the storage system. She ini-
tially directed them to separate the inventory into two cat-
egories; the ‘‘specials’’ that were produced for certain cus-
tomers, and the regular stock that Respondent carried. She
never told them that they could not use handtrucks to per-
form this work. In fact, Meyers asked if he could get a hand-
truck and she told him that he could. Cerezo began arguing
with her, picked up a 5-gallon can of paint and dropped it
by her feet. Cerezo then shouted something and took the
intercom again. Rattner took it out of his hand and he yelled
that it was harassment, ‘‘we can’t work like this, you are not
letting us work.’’ Rattner explained what needed to be done
and the employees started walking out. She tried to talk
some of them into staying at work, but the others said:
‘‘Let’s go, let’s go.’’ As the employees were leaving, she
saw that Meyers was going upstairs. She followed him up-
stairs to see why he was there, and Meyers picked up an
item of clothing, turned around, yelled an obscenity at her,
and left. She never pulled at Cerezo’s jacket and never told
the employees to get out: ‘‘No, I tried to keep some of them
there.’’
IV. ANALYSIS
There are major credibility determinations that must be
made here. As may be evident from the recitation of the
facts, I was not impressed with the credibility or attitude of
Rattner. The change from her responses as a 611(c) witness
to her responses as a witness for Respondent a month later
can best be described as miraculous. Whereas she had earlier
been extremely hostile with a difficulty remembering events
that occurred between 6 months to a year earlier, her subse-
quent testimony revealed a memory adept at recollecting
events of her childhood. In addition to observing Rattner on
the witness stand, I observed her actions as well during the
testimony of the General Counsel’s witnesses. Rather than
sitting with her counsel, she sat in a chair closest to the wit-
nesses and appeared to be ‘‘staring them down’’ during their
testimony. Neither the witnesses nor the General Counsel
complained about this, and it did not appear to affect the wit-
nesses’ testimony, so I did nothing to stop it. This attitude
however correlated with her 611(c) testimony and the testi-
mony of the General Counsel’s witnesses that depicted her
as an Employer who was constantly harassing them and who
seemed intent on doing whatever she could to stymie, and
ultimately get rid of, the Union. The most important witness
for the General Counsel here was Murray. There is a tend-
ency to look very carefully at testimony given on behalf of
the General Counsel by former agents of Respondent. Very
often, they are angry at their former employer and are look-
ing for a way to get even. This does not appear to be the
case with Murray. All that Respondent could establish about
him was that Rattner had refused to lend him some money
shortly prior to his leaving its employ, and that Cerezo had
lent him some money. On the other hand, unlike Rattner, he
appeared to be testifying in an honest and truthful manner.
For example, as regards the events of December 22, he testi-
fied that the production needs at the facility would be re-
duced the following week and that even with some employ-
ees being required to perform the inventory, layoffs would
probably be needed. With no difficulty, I credit the testimony
of Murray over that of Rattner.
On the first day of hearing here, the General Counsel
moved to amend the complaint to substitute Local 406 for
the Union on the ground that the Union was merged into
Local 406. Counsel for Respondent objected and, in his brief,
alleges that this proposed merger was not performed properly
by the Union because written notice of the proposed merger
was not given to Respondent’s employees, and there was no
evidence that the merger was approved by a secret-ballot
election. The evidence establishes that a regular membership
meeting was held in February solely for Respondent’s em-
ployees, and all attended. At this meeting Adams spoke of
the possible merger into Local 406 and that the election
would take place on March 8, 1994. Notification of this
merger election was given to all shop stewards and those
present at prior meetings, as well as being mailed to all em-
ployers under contract, except Respondent, presumably be-
cause its employees were then on strike and had not been at
the facility since December 22. Of the Union’s 110 members,
only about 7 attended the March 8, 1994 meeting (only 3
employed by Respondent) and those present voted unani-
mously (apparently not by secret ballot) to approve the merg-
er.
The Board has traditionally required that two conditions be
met before it will allow one union to be substituted for an-
other. First, the Board requires that the vote process occur
under circumstances satisfying minimum due process stand-
ards and, second, that there be a substantial continuity be-
tween the pre- and postaffiliation bargaining representative.
Hammond Publishers, 286 NLRB 49 (1987). As the burden
of establishing that the merger was performed improperly
rests with the Respondent, and as the Respondent does not
contest the second part of this test, the only issue to be dis-
cussed is whether the vote and prevote notification satisfied
minimum due process standards. Insulfab Plastics, 274
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 817 (1985). Respondent objects that the employees
never received written notice of the proposed merger. Al-
though the Union could certainly have done more here, all
Respondent’s employees attended a meeting in February at
which they were told of the merger election to be conducted
the following month. In addition, shop stewards were given
notices of the upcoming election. The Union cannot be fault-
ed for failing to post a notice of the March 8 election at the
facility, as the employees had been away from the facility for
some time and it seemed highly unlikely that Rattner would
have posted, or distributed, such a notice to the employees.
Additionally, none of the unit employees were at the facility
to see the notice. The Union did all that the Board or courts
would require it to do. Bear Archery, 223 NLRB 1169
(1976).
Respondent’s remaining objection to the merger is that it
was not conducted by secret ballot. The merger election was
conducted on March 8, 1994, apparently not by secret ballot.
Only about seven members appeared and voted and the mo-
tion passed unanimously. In United States Steel Corp., 185
NLRB 669 (1970), the vote on affiliation was taken by the
distribution of ballots that were to be marked anywhere in
the room and then were to be placed in a ballot box. Testi-
mony established that persons could, and did, see how others
voted. The Board dismissed objections to this vote and
amended the union’s certification:
While the actual voting procedures did not follow the
format employed in Board-conducted elections, it is
evident that inexperience in conducting votes of this na-
ture (elections of officers have been by mail ballot)
contributed to the lack of some safeguards. However,
there was no challenge at the time of the election or,
thereafter until the hearing of the procedures used . . .
and there is no evidence of manipulation in the dis-
tribution of the ballots, or of coercion in the voting.
The court, at 457 F.2d 660 at 666 (3d Cir. 1972), disagreed
because the voting procedure did not comport with the pro-
cedure employed by the Board or the Department of Labor
and refused to enforce the Board’s Order. In State Bank of
India, 262 NLRB 1108 (1982), the Board, in finding that an
attempted merger was invalid because it failed to adhere to
minimum standards of due process in ascertaining whether
the employees were in favor of the merger, relied on the fol-
lowing factors:
(1) the distribution of the notice announcing the De-
cember 2, 1980 meeting at which the vote on the merg-
er agreement was to be taken was not completed until
shortly before the meeting was to take place and there-
fore was untimely; (2) the notice of the December 2
meeting failed to announce that a vote on the merger
agreement would take place; (3) the individuals attend-
ing the December 2 meeting did not have access to
copies of the merger agreement; (4) no record was kept
of the identity of the individuals attending the Decem-
ber 2 meeting; and (5) in light of the above, the voting
procedure—including the lack of a secret ballot—em-
ployed at the December 2 meeting was improper. [Em-
phasis added.]
Toyota of Berkeley, 306 NLRB 893 at 899 (1992), states that
the Board requires that the voting procedure satisfies mini-
mum due process standards, ‘‘and no specific procedures are
mandated.’’ In Insulfab, supra at 823, the administrative law
judge stated:
The Union was under no obligation arising out of stat-
ute or regulation to conduct its affiliation vote in a
manner deemed suitable by the Respondent. The fact
that it did not act in strict conformity with the proce-
dures required for a representation election and chose
instead to conduct its business more informally in ac-
cordance with the traditions of New England town
meeting democracy is no basis for post hoc faultfind-
ing.
In the instant matter, the Union’s entire membership in
March 1994 numbered about 110. The Union’s president had
been disabled since about mid-1993. Adams ran the Union,
without a working typewriter or fax machine. Although a
show of hands might seem somewhat crude in hindsight,
considering the size and operation of the Union, I can see
nothing improper in it. Only about seven members showed
up at the meeting and the vote was unanimous. I find that
in light of the facts here, the merger election satisfied mini-
mum due process standards, and the General Counsel’s mo-
tion to amend the complaint to substitute Local 406 for the
Union is granted.
Under Wright Line, 251 NLRB 1083 (1980), the General
Counsel has the initial burden of establishing a prima facie
showing to support the inference that the employee’s pro-
tected conduct was a ‘‘motivating factor’’ in the employer’s
decision. If the General Counsel satisfies this burden, the
burden then shifts to the respondent to establish that the
same action would have taken place even absent the pro-
tected conduct.
The initial allegations relate to the grievance meeting held
at the facility on June 16. It is alleged that Meyers and
Cerezo, the shop steward and assistant shop steward for the
Union at the facility, were prohibited from attending this
meeting (as well as the September 22 grievance meeting) in
violation of Section 8(a)(1) and (5) of the Act. The issue,
therefore, is whether this was a unilateral change in practice
on the part of Respondent. Adams testified that she could not
remember how often she had previously been at the facility,
but, on those occasions, she was there with the then union
president. Murray testified that, in the past, the shop commit-
tee was allowed to attend grievance meetings. Meyers, who
had been the shop steward at the facility for 3 or 4 years,
testified however that he had never previously attended a
grievance meeting. Although I have already found Murray to
be a credible and believable witness, since this was a subject
that Meyers would be more familiar with, I credit his testi-
mony as also testified to by Adams, and find that the union
representatives had not attended these grievance meetings in
the past. I therefore find that by barring Meyers and Cerezo
from attending the meeting during working time on June 16
and September 22, Respondent did not unilaterally change
the working conditions at the facility and recommend that
this allegation be dismissed. Meyers and Cerezo each re-
ceived a written warning for attempting to attend the June 16
grievance meeting. Although the testimony differs, it appears
that Meyers and Cerezo were either in, or adjacent to, the
765PARAGON PAINT CORP.
room where the grievance meeting was to take place for a
very short time, and left and returned to work when they
were told to do so. Considering Respondent’s union animus
here, and the fact that Meyers and Cerezo missed little work
due to the incident, I find that the warnings they were given
on June 16 were in retaliation for their support for, and posi-
tions with, the Union. I therefore find that these warnings
violate Section 8(a)(1) and (3) of the Act.
It is next alleged that Respondent violated Section 8(a)(1)
and (5) of the Act by placing Bermas in these grievance
meetings without giving him the proper authority to act to
settle, or bargain about, these grievances. Adams and Mundo
testified that Bermas told them that he had no authority to
make any decisions, that all had to be made by Rattner. In
fact, whenever grievances were discussed, he left the meeting
to discuss them with Rattner. Bermas testified that as
Rattner’s attorney, any agreement he reached with the Union
was subject to her approval. In addition, he differentiated be-
tween subjects that he was aware of prior to the meeting, and
those that he was not aware of. As to the former, he knew
how far that he could go without Rattner’s approval. As to
the latter, he had to go to Rattner for approval of any agree-
ment. I found Mundo to be a credible witness attempting as
best he could to testify truthfully about events that occurred
a year ago. As stated above, I also found Adams to be a
credible, though confusing, witness. Although Bermas ap-
peared to be testifying in an honest and truthful manner, as
there is a clear conflict between his testimony and that of
Mundo and Adams, I credit Mundo and Adams, principally
because I find that Rattner would not give her negotiator the
necessary authority to enter agreements with the Union about
the grievances. National Amusements, 155 NLRB 1200 at
1206 (1965), states:
Respondent’s duty to bargain included the obligation to
appoint a negotiator with real authority to negotiate and
a willingness to meet at reasonable times and places.
The law requires an employer to apply himself to col-
lective bargaining sessions with the same degree of dili-
gence and promptness as he does in his other important
business interests, and his reluctance or apparent disin-
terest in this area or his failure to appoint an agent to
negotiate fundamental issues is evidence of lack of
good faith in the bargaining process.
In Carpenters Local 1780, 244 NLRB 277 at 281 (1979), the
Board stated: ‘‘While Respondent is not required to be rep-
resented by an individual with final authority to enter into an
agreement, this privilege is subject to the proviso that such
limitation does not act to inhibit the progress of negotia-
tions.’’ Although these cases speak of negotiations rather
than grievance meetings, as is present here, the rule is the
same as good-faith collective bargaining extends to grievance
discussions. It is a waste of time for both sides, if the parties
meet to attempt to resolve grievances, but the representative
of one side has no authority to do so. Because I find that
the failure to give her representative the authority to properly
act at grievance meetings is consistent with Rattner’s general
attitude here, I credit Adams and Mundo and find that Re-
spondent violated Section 8(a)(1) and (5) of the Act.
It is next alleged that Respondent discharged Arias on
about July 7 and did not reinstate him until on about July
16, and discharged him again on about August 27 and did
not reinstate him until about July 18, 1994, in order to pre-
vent him from becoming a member of the Union pursuant to
the union-security clause of its contract with the Union in
violation of the Act. Although the record is unclear whether
Arias worked continuously between about June 4 and August
27, or whether he was discharged on about July 7, was re-
hired about 10 days later, and was finally terminated on
about August 27, I credit the testimony of Murray that Arias
was fired on about August 27 to prevent him from becoming
a member of the Union. This finding is supported by the lack
of any other reason for his termination; there was no evi-
dence that he was anything other than a good employee, as
Murray testified, and he generally worked full 40-hour weeks
during the period of his employ. I therefore find that by dis-
charging Arias on about August 27, Respondent violated
Section 8(a)(1) and (3) of the Act. There is a similar allega-
tion regarding Sossinski. It is alleged that in about October
or November, Respondent discharged Sossinski to prevent
him from becoming a member of the Union. The testimony
establishes that at a meeting on November 17, the Union in-
formed Murray that Sossinski had in excess of 60 days of
employment with Respondent (he had been employed for 30
days in July and August, and was rehired on October 4) and
that he therefore had to become a member of the Union.
When Murray informed Rattner of this situation, she directed
him to fire Sossinski to prevent him from joining the Union,
which he did on November 19. The timing was right, there
is no lack of animus, and Respondent presented no defense
to this discharge, other than Rattner’s unsupported testimony
that he was fired because he did not produce the required I-
9 documentation. I find that this discharge on November 19
violates Section 8(a)(1) and (3) of the Act.
The next allegation is that Respondent imposed less desir-
able and more onerous working conditions on Meyers, by as-
signing him to clean the fourth floor bathroom at the facility
in about June or July, and the first floor bathroom during the
week of October 25, and by assigning him to work overtime
in about October. As stated above, Meyers had been em-
ployed at the facility for 10 years and had been the shop
steward at the facility for 3 or 4 years. Meyers testified that
he was given this bathroom assignment in about June after
he accompanied an OSHA agent to inspect the facility on the
basis of a complaint that had been filed with OSHA. When
he returned, Murray told him that he had to clean the fourth
floor bathroom at the facility. In his 10 years of employment
with Respondent, he had never previously performed this
work, and the employee who did it was still employed. Mur-
ray testified that Meyers had filed grievances about the con-
dition of the bathrooms, and Rattner told him to assign Mey-
ers to clean it to solve the grievance. The difference between
their testimony is not surprising as a year had passed since
the incident occurred, and Meyers and Murray could have
confused a grievance with an OSHA inspection. Further, Re-
spondent presented no evidence to establish why Meyers was
given this assignment. I find that the evidence establishes
that Meyers was given the assignment in retaliation for his
union activities in violation of Section 8(a)(1) and (3) of the
Act. As the evidence establishes that Meyers continued to
clean the bathroom until December 22, I find it unnecessary
to determine whether he was unlawfully assigned to clean a
different bathroom in October. In October, Meyers had some
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
grievances in his hand preparing to give them to Murray or
Rattner. When he met Rattner at about 4:15 p.m., she asked
what he had in his hand and he said that they were griev-
ances that he was going to give to her. She told him to wait
until after work, which he did, and gave them to Murray
about 5 minutes later. A few minutes later Murray told him
that he had to work overtime that day. The overtime was
mandatory and he had not previously been assigned to over-
time work. Murray testified that he knew that Meyers did not
like overtime work and he assigned this work to Meyers, on
orders from Rattner, because Meyers had filed the grievances
as the shop steward. As Meyers was ordered to perform the
overtime work in retaliation for his filing grievances as the
union shop steward, this also violates Section 8(a)(1) and (3)
of the Act.
It is next alleged that in June or July Respondent sus-
pended Aponte for 3 days without pay, in about July, issued
Aponte a written warning and transferred him from his posi-
tion in its batch making department to its paint filling depart-
ment, issued him a written warning on about October 5, and
on about October 25 suspended him for 3 days without pay
and assigned him to clean the second floor bathroom at the
facility. Aponte received a written warning dated June 23
stating: ‘‘Employee has been warned numerous times . . .
concerning not wearing proper safety equipment—Employee
is now being suspended for three days.’’ Murray testified
that Aponte was given this warning because Respondent
wanted to make an example of him because of his union ac-
tivities; however, he was not present at the time that Aponte
was allegedly not wearing his goggles on June 23. Addition-
ally, Murray also testified that Aponte did not become a part
of the union committee until July or August, and there is no
evidence of any earlier union activities on the part of
Aponte. The convincing evidence fails to establish any union
activity on Aponte’s part until after this warning. Consider-
ing Aponte’s prior warnings and the lack of proof that it was
his union activities that caused this June 23 warning (it may
have been that Rattner just didn’t like Aponte, as Murray tes-
tified), I recommend that this allegation be dismissed. I
would also recommend that the allegations regarding the
warning that he received on July 21, and the subsequent
transfer to the paint filling department be dismissed. As stat-
ed above, Aponte had received other prior warnings and
there is a lack of convincing evidence of union activities on
his part at that time. Although there is substantial evidence
of animus on the part of Respondent, that does not mean that
all discipline that it metes out violates the Act. That is espe-
cially so in this situation, where the boss sees an employee
at his work station with a union sign. It was not unreason-
able to assume that he made it during his working time.
Aponte received written warning on October 5 for ‘‘not
working’’ and ‘‘conduct’’ and a warning on October 25 for
‘‘disobedience’’ stating: ‘‘As a result of numerous warnings,
verbal and written, concerning not working as assigned, and
conversing instead of working, employee is suspended for
three days.’’ In addition, on about October 25 he was as-
signed to clean the second floor bathroom. By this time,
Aponte’s position with the union committee was known to
Respondent. In addition, unlike the prior warnings, Rattner’s
contemporaneous comments to Aponte connect the warnings
to his union activities. When she told Aponte about the Octo-
ber 5 warning, she told him to tell the Union about it. I
therefore find that this warning violates Section 8(a)(1) and
(3) of the Act. As there is no direct evidence that this Octo-
ber 25 warning and suspension were caused by his union po-
sition and activities (and Rattner was not very circumspect
in her feelings toward the Union and its supporters) I would
recommend that this allegation be dismissed. Although there
is also no direct evidence connecting the bathroom cleaning
assignment to his union activities, there are two factors that
convince me that it was in retaliation for his union activities.
His union activities were now known to Respondent, and he
and Meyers had never previously been assigned to clean the
bathroom at the facility. Two union committeemen receiving
assignments to clean bathrooms is too much to be considered
a coincidence. I therefore find that this assignment violated
Section 8(a)(1) and (3) of the Act.
The next allegations to be discussed involved alleged vio-
lations of Section 8(a)(1) and (5) of the Act. It is alleged that
on about October 15, Respondent changed the frequency for
which its employees were paid from weekly to biweekly. On
October 15, Respondent notified its employees that beginning
the following week, they would no longer be paid weekly;
rather, they would be paid every other week. There was no
prior negotiation or notification to the Union. This biweekly
pay system lasted through December. The frequency that em-
ployees are paid is a mandatory subject of bargaining. King
Radio Corp., 166 NLRB 649, 654 (1967); Sommerville Mills,
308 NLRB 425 at 439 (1992). Respondent made this change
without first contacting, or bargaining with, the Union. It
therefore violated Section 8(a)(1) and (5) of the Act.
The next allegation in this category is that on about Octo-
ber 26, November 17, and December 1, Respondent denied
the Union access to the facility, even though the contract be-
tween the parties provides for such access in violation of
Section 8(a)(1) and (5) of the Act. Article 23 of the contract
provides:
A duly authorized representative of the Union shall be
permitted access to the factory of the Employer upon
condition that he shall before entering the factory, make
application therefor to the Employer, and upon further
condition that he shall not during such visits interfere
with production in the factory.
The uncontradicted testimony of Adams and Murray is that
prior to October there were no restrictions on the right of the
Union to visit the facility. They just showed up and walked
in. In about October, Rattner told Murray that she interpreted
the contract to mean that the Union had to make prior appli-
cation to visit the facility, and if the Union ‘‘was holding us
to the contract, we’re going to hold them to the contract.’’
Actually, she did more than that, she refused to allow the
Union to visit the facility on about October 27, November
29, and December 1. Mundo testified that one reason for the
Union’s request to visit the facility was to determine whether
to file exceptions to OSHA’s findings at the facility. By uni-
laterally changing the practice allowing the Union to visit the
facility, as set forth in its contract, Respondent violated Sec-
tion 8(a)(1) and (5) of the Act. Harvey’s Wagon Wheel, 236
NLRB 1670 (1978); 15th Avenue Iron Works, 301 NLRB
878 (1991).
The next allegations allege that Respondent refused to pro-
vide certain information to the Union in violation of Section
767PARAGON PAINT CORP.
8(a)(1) and (5) of the Act. These information requests cover
three different areas; by requests on November 29 and De-
cember 15, the Union requested information on the cost and
type of medical insurance coverage provided by Respondent,
information allegedly needed for the contract reopener on
that subject; by request of December 1 and 15, the Union re-
quested a list of all current employees, job titles, and hourly
pay, which was needed to investigate whether all employees
were joining the Union after 60 days of employment, as re-
quired by the contract; and on December 1 and 15 the Union
requested that the Respondent furnish it with its books and
records to substantiate its alleged inability to afford a wage
increase in the wage reopener negotiations. The law is clear
that an employer must provide a union with requested infor-
mation where there is a probability that the information
would be relevant to the union in fulfilling its statutory du-
ties as the bargaining representative of the employer’s em-
ployees. When the requested information concerns wage
rates, job descriptions, and other information pertaining to
employees within the bargaining unit, the information is pre-
sumptively relevant. Where the information does not concern
matters pertaining to the bargaining unit, the union must
show that the information is relevant. NLRB v. Acme Indus-
trial Co., 385 U.S. 432 (1967); Trustees of the Masonic Hall,
261 NLRB 436 (1982). The contract contained a clause al-
lowing the Union or Respondent to reopen the contract on
December 1 on the subjects of wages and medical coverage,
and the Union properly exercised this right to reopen. There
can be no question that the Union was entitled to the medical
insurance information requested in its November 29 letter.
This information was necessary for the Union to intelligently
negotiate about this subject. I cannot understand the testi-
mony of Bermas, an otherwise articulate witness, that be-
cause the Union had made no information request a year ear-
lier when the Respondent reduced medical benefits, he ‘‘just
didn’t see why any cost information was appropriate’’ in
1993. I therefore find that Respondent’s failure to provide
the Union with the medical coverage information requested
on November 29 violated Section 8(a)(1) and (5) of the Act.
On December 1, the Union requested that Respondent pro-
vide it with a list of all current employees, their job titles,
and salaries. The list that Respondent provided gave only the
union members with their salaries. That, obviously, missed
the point. The Union suspected that Respondent was employ-
ing people at the facility who should have been in the Union,
but were not. These suspicions were not without substance;
2 weeks earlier, when the Union told Murray that Sossinski
had been employed long enough to be in the Union, Murray
said that if that were true he would be terminated. A list of
all employees (not union members) employed at the facility
was clearly relevant to the Union in determining whether the
union-security clause of the contract was being followed. By
refusing to provide the Union with this information, the Re-
spondent violated Section 8(a)(1) and (5) of the Act.
Duquesne Light Co., 306 NLRB 1042 (1992). The final alle-
gation in this area is that Respondent refused to turn over its
books and records to the Union after claiming that Respond-
ent could not afford to pay an increase to its employees.
When an employer alleges an inability to pay as a defense
against a proposed wage increase, it must substantiate that
claim if the union demands to see its books and records.
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). As the Union
requested this information at the meetings on December 1
and 15, and Respondent never provided it with the informa-
tion, the only issue is whether Respondent, at these meetings,
said that it could not afford a wage increase. I found
Bermas’ testimony very convincing on this subject. As stated
above, I found him to be a very articulate and sometimes
convincing witness. He testified that he knew enough about
labor law to understand the difference between saying that
you could not afford an increase (where you have to turn
over your books and records) and saying that you could not
do it for competitive reasons (without the need to turn over
the books and records), and that makes sense. I do not credit
Mundo’s testimony that at the December 1 meeting Bermas,
on three occasions, stated that Respondent could not afford
a wage increase. While Bermas may not have been an expert
in the field of labor law, he was clearly not so stupid and
gullible as to respond as Mundo testified that he did. I there-
fore find that Respondent never alleged an inability to pay
at the December 1 and 15 meetings, and therefore was not
under an obligation to turn over its books and records to the
Union. I therefore recommend that this allegation be dis-
missed.
Finally, the complaint alleges that since about June 1 Re-
spondent has failed to remit to the Union all dues and initi-
ation fees which it deducted from its employees wages in
violation of Section 8(a)(1) and (5) of the Act. There was no
evidence to support this allegation. In fact, the only evidence
adduced on this subject was that the Union did not possess
checkoff authorization forms from its members. In addition,
the General Counsel’s brief does not address this issue, and
I recommend that this allegation be dismissed.
The remaining allegations relate to the events of December
22 and the subsequent events. It is alleged that on that day
the Respondent discharged all the unit employees at the facil-
ity (with the exception of the six who were told to report for
work on December 27) because they engaged in concerted
activities of demanding the full 2 weeks’ pay owed to them.
Respondent defends that the following week was historically
a slow week warranting large layoffs, and that was the rea-
son that they were told not to come in until further notice.
The employees’ testimony on this subject was especially
credible. Cerezo, who had been employed by Respondent for
17 years, testified that, in the past, employees’ workweeks
were cut to 32 hours, but it was usually done by seniority
and the employees were given 2 days’ notice of the change.
Aponte, who had been employed at the facility for 7 years,
testified that he was laid off in the past, but he was notified
days in advance of the layoff and was given the option of
using vacation days or sick leave during the layoff. Bruno
testified that 3 or 4 years earlier there had been a layoff
without any advance warning, but because of his seniority
(17 years at the facility) he was not laid off. Murray also tes-
tified that, in the past, employees were given advance warn-
ing of layoffs and were given an opportunity to use vacation
time or sick leave during that period. I find that the over-
whelming credible evidence establishes that these employees
were told not to return to work on December 27 because of
their protected activities on December 22. We start with the
incredible amount of union animus displayed by Rattner over
the prior 6 months. Additionally, the employees were not
told of the layoff until about 6 p.m. that day, after they had
concertedly protested the fact that they were not paid in full;
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The record is unclear who, other than Bruno, these six employees
are. In addition, the complaint and the General Counsel’s brief are
not always consistent on this subject. I therefore leave this deter-
mination to the supplemental hearing.
until that time, Murray had not been told of the layoff. Fur-
ther proof that this was discriminatorily motivated is that the
employees were not given an opportunity to use sick leave
and vacation leave during this period, and that the layoffs
were not chosen by seniority or superseniority, as provided
by the contract. Murray testified credibly that work would be
slow the following week and that even with some additional
employees needed for the inventory, some layoffs would be
required. I find however that the number of those being laid
off and Rattner’s choices for layoff were selected discrim-
inatorily, and that the layoff of these employees on Decem-
ber 22 violated Section 8(a)(1) and (3) of the Act. The fact
that some layoffs would have occurred regardless is a factor
to be considered in the supplemental hearing here.
Bruno was originally one of the six employees chosen by
Rattner to work the following week. It is alleged that be-
cause he protested the amount of his check and vacation pay,
Rattner changed her mind and said that he could not work
the following week. Bruno and Murray testified to that ef-
fect; Rattner testified that she smelled liquor on his breath
and decided that it was not a good idea to bring him back.
Although it is true that Mercado questioned Rattner about his
vacation pay before Bruno, without retribution, it appears
from Murray’s credible testimony that Bruno was more per-
sistent, which may explain Rattner’s reaction. I therefore find
that Rattner laid him off on December 22 because of his pro-
tected concerted activities in violation of Section 8(a)(1) of
the Act.
It is next alleged that on December 27, Respondent dis-
charged the six employees (less Bruno who was laid off after
he protested his pay on December 22) who were scheduled
to work on December 27.5 The General Counsel’s brief al-
leges that ‘‘it should be found that Respondent discharged
these six employees on January 3, when it stopped asking for
any employees to report for work, for their concerted activi-
ties.’’ Rather, the evidence establishes that, by letter dated
December 30, Respondent requested that the six employees
(less Bruno and plus four others, nine in total) report for
work on Monday, January 3, 1994. The evidence further es-
tablishes that the employees banded together, agreeing that
none would work unless they all worked, and that was the
reason that these six employees did not work. They were
never terminated by Respondent. I therefore recommend that
this allegation be dismissed.
Beginning on about January 3, 1994, the Union established
a picket line at the facility. The complaint alleges that from
December 27 to about February 1, 1994, these employees
ceased work concertedly and engaged in a strike that was
caused by Respondent’s unfair labor practices. The complaint
further alleges that by oral communication and letter of its
attorney on February 11 and 12, the Union made an uncondi-
tional offer for the employees to return to work.
In Typoservice Corp., 203 NLRB 1180 (1973), the Board
stated: ‘‘An unfair labor practice strike does not result mere-
ly because the strike follows the unfair labor practice. A
causal connection between the two events must be estab-
lished.’’ National Fresh Fruit & Vegetable Co., 227 NLRB
2014 at 2017 (1977), stated: ‘‘It is well established by Board
and court precedent that a strike is an unfair labor practice
strike if only one cause, even if not the primary cause, was
the employer’s unfair labor practice, notwithstanding the
presence of economic issues.’’ Tufts Bros., Inc., 235 NLRB
808 at 810 (1978), stated:
An unfair labor practice strike is one which is caused
in whole or in part by an unfair labor practice. The re-
quirement of a causal connection between the unfair
labor practice and the strike is not satisfied merely be-
cause the two coincide in time. It is necessary for the
Board to find that Respondent’s unlawful conduct in
fact constituted a contributing cause to the strike that
followed.
The connection between the strike and the unfair labor prac-
tices here is unmistakable. It is unnecessary to discuss Re-
spondent’s pre-December 22 unfair labor practices because
the unfair labor practices of that day was the immediate
cause of the strike. The evidence is clear that the employees
concertedly engaged in the work stoppage beginning on De-
cember 27 because Respondent had unlawfully laid off all
but six of the employees. Protesting that none will work un-
less all work is a layman’s way of protesting a layoff (found
unlawful). I therefore find that commencing December 27,
employees of Respondent engaged in a strike protesting Re-
spondent’s unfair labor practices.
Mundo’s letter to Respondent of January 12, 1994, states
that ‘‘the employees will return to work provided that all em-
ployees are allowed to return to work,’’ that the Employer
will not take any action against any employee regarding the
events of December 22, and the Union and the employees re-
served their rights to take any action before the courts, the
Board, or the grievance machinery of the contract: ‘‘The re-
turn to work of any employee is not deemed a waiver of any
such rights.’’ Respondent denies that this was an uncondi-
tional offer to return to work. In his cross-examination of
Mundo, counsel for Respondent stressed that Mundo’s letter
stated that all would return when, 10 days earlier, Richman
had written that Respondent had work for nine named em-
ployees. In his brief, counsel for Respondent alleges that the
letter was not an unconditional offer to return to work be-
cause it was an inaccurate recapitulation of his earlier con-
versations with Richman. The brief states:
There was nothing in Mundo’s conversation with
Richman relating to the continuation or non-continu-
ation of the NLRB charges. Respondent submits that
Rattner did not want to inadvertently waive or concede
rights that she might have had without first ascertaining
what the paragraphs meant. In denying that the state-
ments set forth in paragraphs 4, 5, 6, 7 and 8 were
made, she did not reject an unconditional offer; she was
just setting the record straight.
Although it is not entirely clear from this statement, I will
assume that Respondent is alleging that the offer was not an
unconditional offer to return because it reserved the rights of
the employees to take whatever legal action that was avail-
able to them and because it stated that all the employees
769PARAGON PAINT CORP.
6 Whereas Rattner’s fax to Mundo dated January 12, 1994, states
that she never agreed to the statements contained in pars. 4, 5, 6,
7, and 8 of his January 12, 1994 fax, it is par. 3 where Mundo states
that the employees will return provided that all are allowed to return.
Because par. 8 of Mundo’s fax however simply states the name of
the union agent to contact if she has any questions, I assume that
Rattner misnumbered the paragraphs and was objecting to this provi-
sion in par. 3.
would return.6 As regards the Union’s reservation of its
rights, clearly this does not convert an otherwise uncondi-
tional offer into a conditional offer. These rights exist by
statute, and the Union would have had these rights even if
it were not so specified in the letter. Additionally, if Rattner
had specifically demanded that the employees give up these
rights in order to be reinstated, it would probably constitute
a violation of the Act.
More difficult is the question whether because the January
12, 1994 letter states that ‘‘[t]he employees will return to
work provided that all employees are allowed to return to
work’’ converts this letter into a conditional offer to return
to work. I find that it does not. Because they were engaged
in an unfair labor practice strike and none of them engaged
in conduct so serious as to deprive them of reinstatement, all
the employees were entitled to reinstatement. Richmond Re-
cording Corp. v. NLRB, 836 F.2d 289 (7th Cir. 1987). If Re-
spondent had a question as to this portion of the offer to re-
turn, it should have advised Mundo and sought clarification
of his position. It did not do so, and I find that this January
12, 1994 letter constituted an unconditional offer to return to
work. Woodlawn Hospital, 233 NLRB 782 (1977); Columbia
Portland Cement Co., 303 NLRB 880 (1991). I therefore
find that backpay begins to accumulate for all the employees,
including the six who were not laid off on December 22, on
January 17, 1994, 5 days after this unconditional offer to re-
turn. Drug Package Co., 228 NLRB 108 (1977).
February 1, 1994, was a day in which many events oc-
curred within a short period of time at the facility. On that
day, the employees reported for work, for the first time since
December 22. Under normal circumstances this would have
been a difficult time for Respondent with about 18 employ-
ees reporting for work after being out for more than a month,
and with Murray, the plant manager, no longer employed at
the facility. It is alleged that Rattner’s activities that morning
made a difficult situation chaotic. It is first alleged that on
that day Respondent required its employees at the facility to
change into their work clothes in the bathroom, contrary to
prior procedure, in violation of the Act. The evidence estab-
lishes that when Rattner spoke to the employees on that day,
she told them that they would have to change into their work
clothes (in the morning, and back into their street clothes in
the afternoon) in the bathroom at the facility. This was a
change from their past practice, and had not been previously
discussed with the Union. Rattner testified generally about
changes in the areas that Respondent rented and it may be
that these changes resulted in the loss of the employees’
changing room. If that were so, Respondent could have dis-
cussed it with the Union to work out alternative plans. Re-
spondent failed to do so. Although, at first glance, this may
seem to be an inconsequential matter, for the employees who
have to change twice a day, this affects their terms and con-
ditions of employment. It is a mandatory subject and, as Re-
spondent introduced this change without prior notice to, or
bargaining with, the Union, it violates Section 8(a)(1) and (5)
of the Act. It is also alleged that by assigning Cerezo to be
in charge of the employees’ changing in the bathroom, Re-
spondent violated Section 8(a)(1) and (3) of the Act. Re-
spondent never explained why Cerezo (or any employee) was
needed to be in charge of the employees’ changing in and
out of their work clothes. Considering Rattner’s union ani-
mus throughout this period, and on February 1, 1994, in par-
ticular, I find that it was done to punish Cerezo for his sup-
port for the Union and his position with the Union. I there-
fore find that it violates Section 8(a)(1) and (3) of the Act.
The next allegation involves Rattner’s assignment to Mey-
ers and Cerezo to move the heavy paint cans. As the em-
ployees had been away for over a month, obviously, much
was to be done before the facility would be operating at full
capacity. It is also obvious that in a situation such as this,
employees, initially, have to expect changes in assignments,
at least, until the facility is operating smoothly. That, how-
ever, does not explain Rattner’s assignment of Meyers and
Cerezo to separate the paint cans by regular stock and spe-
cials. Even if that were a worthwhile cause, it seems more
reasonable to get the facility operating smoothly first, and
then assign employees to move the cans. The other unan-
swered question is why Rattner chose Meyers and Cerezo,
the union steward and assistant steward, from all its employ-
ees, to perform this work. Considering the clear union ani-
mus here, I have no difficulty in finding that they were cho-
sen because of their union positions. Although the evidence
establishes that Rattner sent Meyers and Karras to get a
handtruck, before they returned, she assigned Cerezo to carry
a 50-pound can of paint without a handtruck for no apparent
reason, and I therefore find that these assignments violated
Section 8(a)(1) and (3) of the Act.
It is next alleged that Respondent violated the Act by sub-
jecting Meyers to closer than normal supervision and by fol-
lowing him. In this regard, I found Rattner’s testimony rea-
sonable and logical. The employees were leaving, and Mey-
ers was going upstairs instead of downstairs. With feelings
inflamed, as they must have been, it was not unreasonable
for her to look to see where he was going. I therefore rec-
ommend that this allegation be dismissed. It is further al-
leged that Respondent violated the Act by requiring Meyers
to put his clothes in a locked room. As I find no evidence
to support this allegation, I recommend that it be dismissed.
It is also alleged that during this incident, Rattner interro-
gated an employee about his support for the Union. Cerezo’s
credible evidence establishes that as the employees were pre-
paring to leave the facility, Rattner asked Gonzales: ‘‘Are
you staying with me or are you with the Union?’’ Gonzales
said that he was a union member and was leaving. Rossmore
House, 269 NLRB 1176 (1984), and Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985), provide that in interrogation
situations such as this, the administrative law judge and the
Board must look at all the circumstances to determine wheth-
er the interrogation was coercive and violated Section 8(a)(1)
of the Act. Facts to look at include the background and sur-
rounding circumstances, who was the questioner and who
was questioned and whether he/she was an active and open
union supporter, and the place and method of interrogation.
In the instant situation, Rattner had displayed union animus
and committed numerous violations of the Act over the prior
8 months. She was the boss and had just ‘‘fired’’ all the em-
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees for the second time in about 5 weeks. Under these
circumstances, the interrogation reasonable tended to coerce
Gonzales, and it therefore violates Section 8(a)(1) of the Act.
In this regard, it is also alleged that Rattner pulled Cerezo
by his jacket in violation of the Act. Although I credit the
testimony of Cerezo that during the final encounter with
Rattner on February 1, 1994, she pulled on his jacket, I find
that under the circumstances here that would not have a tend-
ency to coerce him, and I recommend that this allegation be
dismissed.
The final allegation here is that Rattner concluded the
events and workday of February 1, 1994, by directing its em-
ployees to leave the facility and locked them out from that
day until about March 8, 1994, in violation of Section
8(a)(1), (3), and (5) of the Act. The credible evidence sup-
ports this allegation. Rattner committed numerous violations
on and prior to December 22, resulting in an unfair labor
practice strike by her employees and they picketed the facil-
ity from about January 3, 1994. As evidenced by her actions
at the January 5, 1994 meeting, she was not pleasantly dis-
posed toward the Union. When she was called on February
1, 1994, and told that the employees had returned, without
advance warning, she was obviously more annoyed at the
employees, and showed it beginning about a half hour later
when she arrived at the facility. As found above, she com-
mitted numerous violations in the short period that she was
at the facility. As an example, when Cerezo complained
about being forced to carry a 50-pound can of paint for no
apparent reason, she responded that if you work for her, you
do as you are told. When Aponte claimed that she was
harassing them, she said that either the employees worked
with her or they should get out. When Aponte asked her
what she meant, she said, ‘‘Get out of my factory.’’ She also
told the employees that they should spend some more time
walking in the snow, as they had before, and they left. Clear-
ly, the employees had done nothing to warrant being termi-
nated, other than supporting the Union and engaging in an
unfair labor practice strike from December 27 to February 1,
1994, and it was these activities and her dislike for the
Union which caused Rattner to direct her employees to leave
and to lock them out until about March 8, 1994, in violation
of Section 8(a)(1) and (3) of the Act. The complaint also al-
leges that because the contract contains a no-strike, no-lock-
out clause, this lockout violates Section 8(a)(1) and (5) as
well, and I agree.
At the hearing and in his brief, counsel for Respondent ar-
gues that the issues here should be deferred to the contractual
grievance procedure under Collyer Insulated Wire, 192
NLRB 837 (1971), and United Technologies Corp., 268
NLRB 557 (1984). The General Counsel defends in two
areas. One, that it is never appropriate to defer breach of ac-
cess and failure to provide information cases, which are in-
cluded here and, as regards the remainder of the case, be-
cause of the ‘‘egregious violations’’ here, deferral would be
inappropriate. The grievance provision in the contract covers
‘‘Any controversy, claim or dispute or grievance of any na-
ture whatsoever arising between the employer and the Union
or any employees.’’
In the long history of deferral cases, principally lead by
Collyer, supra, a number of factors had to be present in order
for the Board to defer its jurisdiction to the grievance-arbitra-
tion machinery of the parties’ contract: that the arbitration
clause clearly encompassed the dispute at hand, the employer
was willing to utilize the arbitration procedure to resolve the
dispute, and the dispute arose within the confines of a long
and productive collective-bargaining relationship and there
was no claim of employer animosity to the employees’ exer-
cise of protected rights. Put in another way, whether the em-
ployer’s conduct ‘‘constitutes a rejection of the principles of
collective bargaining’’ as was stated in the dissenting opinion
in General American Transportation, 228 NLRB 808 (1977).
In United Aircraft Corp., 204 NLRB 879 (1973), the Board
stated:
We continue to believe that an exploration of the nature
of the relationship between the parties is relevant to the
question of whether in a particular case we ought or
ought not defer contractually resolvable issues to the
parties own machinery. Where the facts show a suffi-
cient degree of hostility, either on the facts of the case
at bar alone or in the light of prior unlawful conduct
of which the immediate dispute may fairly be said to
be simply a continuation, there is serious reason to
question whether we ought defer to arbitration.
The instant matter presents a classic situation of an em-
ployer who, during the period in question, rejected the col-
lective-bargaining process. I have found, inter alia, that be-
ginning in June, Rattner appointed Bermas to represent Re-
spondent in grievance meetings without giving him the prop-
er authority to act and disciplined the shop steward and as-
sistant shop steward for attempting to attend the June 16
meeting, fired employees rather than let them join the Union
as provided in the union-security clause of its contract with
the Union, discriminated against its shop steward and assist-
ant shop steward for their actions in those capacities, refused
to provide the Union with requested and relevant informa-
tion, and refused to provide the Union with access to its fa-
cility. All these found violations illustrate a rejection of the
collective-bargaining process. As for its activities involving
Meyers and Cerezo, the Board in Joseph T. Ryerson & Sons,
Inc., 199 NLRB 461 at 462 (1972), stated that a threat of
reprisal for engaging in union activities:
strikes at the foundation of that grievance and arbitra-
tion mechanism upon which we have relied in the for-
mulation of our Collyer doctrine. If we are to foster the
national policy favoring collective bargaining and arbi-
tration as a primary arena for the resolution of indus-
trial disputes, as we sought to do in Collyer, by declin-
ing to intervene in disputes best settled elsewhere, we
must assure ourselves that those alternative procedures
are not only ‘‘fair and regular’’ but that they are or
were open, in fact, for use by the disputants.
The evidence establishes that for the period of June through
February 1994, Respondent rejected most aspects of collec-
tive bargaining with the Union by not engaging in meaning-
ful grievance meetings, not turning over relevant documents
to the Union, not allowing it access to the facility, discrimi-
nating against its representatives at the facility, and more. It
appears that Rattner’s principle purpose during this period
was to get rid of the Union and its supporters. In this situa-
tion, deferral to the contract’s grievance-and-arbitration pro-
cedure is not warranted.
771PARAGON PAINT CORP.
CONCLUSIONS OF LAW
1. Respondent Paragon Paint & Varnish Corporation has
been an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees employed by Respondent in its plant lo-
cated at 5–49 46th Avenue, Long Island City, New
York, including working foremen, and excluding sales-
men, chemists, laboratory assistants, clerical office em-
ployees, guards and supervisors as defined in the Act.
4. At all material times, the Union and/or Local 406 has
been the collective-bargaining representative of the employ-
ees described above.
5. Respondent violated Section 8(a)(1) of the Act in the
following manner:
(a) Interrogating its employees about their support for the
Union.
(b) Imposing more onerous and less desirable working
conditions on its employees because they engaged in a con-
certed protest and strike commencing on December 22 and
other protected concerted actions.
6. Respondent violated Section 8(a)(1) and (3) of the Act
in the following manner:
(a) Issuing warnings to its employees.
(b) Imposing more onerous and less desirable working
conditions on its employees.
(c) Discharging its employees Arias, Sossinski, and subse-
quently all but six of its employees.
(d) Suspending its employees.
(e) Forcing employees to work overtime.
(e) Requiring its employees to use the bathroom to change
into their work clothes.
(f) Refusing to reinstatement its employees after they
made an unconditional offer to return to work on January 12,
1994.
(g) Locking out its employees on about February 1, 1994.
7. Respondent violated Section 8(a)(1) and (5) in the fol-
lowing manner:
(a) Failing to give its attorney the required authority with
which to bargain with the Union about grievances.
(b) Reducing the frequency with which it paid its employ-
ees without prior negotiations with the Union.
(c) Unilaterally refusing to grant the Union access to the
facility.
(d) Failing to provide the Union with information that it
requested regarding the medical insurance that it provided
and the employees that it employed.
(e) Requiring its employees to use the bathroom to change
in and out of their work clothes.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully discharged
Arias and Sossinski, I shall recommend that Respondent be
ordered to offer them immediate reinstatement to their
former positions of employment or, if those positions no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights and privileges, to
make them whole for the loss they suffered, and to expunge
from its files any reference to these terminations. I have also
found that Respondent unlawfully laid off all but about six
of its employees on December 27. It is clear that Meyers,
Cerezo, Aponte, and Bruno are 4 of the approximately 12
who were unlawfully laid off at that time. I leave it for the
supplemental hearing the identity of the others. The backpay
of these employees begins on that day and runs until about
March 8, 1994, when they were apparently reinstated to their
former positions of employment. As the Union made an un-
conditional offer of reinstatement for all its members on Jan-
uary 12, 1994, the backpay for the approximately six remain-
ing employees commences on January 17, 1994, and also
runs to March 8, 1994, when they were apparently reinstated.
It is recommended that Respondent make each of these
groups of employees whole for the loss they suffered due to
the discrimination against them. Backpay shall be computed
in accordance with F. W. Woolwoth, 90 NLRB 289 (1950),
and New Horizons for the Retarded, 283 NLRB 1173 (1986).
[Recommended Order omitted from publication.]