Pincus Elevator & Electric Co.

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 684 (N.L.R.B. 1992)

684
308 NLRB No. 94
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
The Respondent has requested oral argument. The request is de-
nied as the record, the exceptions, and the briefs adequately present
the issues and the position of the parties.
The judge inadvertently included the signifier for a nonexistent fn.
22 in her decision. The judge also inadvertently omitted the pronoun
‘‘them’’ from par. 2(b) of the recommended Order and the
discriminatees’ names from the final paragraph of the notice. We
shall correct these errors.
2 In rejecting the Respondent’s economic-necessity defense to the
8(a)(3) discharge allegation, the judge relied in part on her finding
that Pincus’ mother-in-law provided the largest outstanding loan to
the Respondent after the discharges and apparently did not demand
repayment and that the Respondent pays rent to Pincus’ father. We
do not rely on the judge’s statements about these obligations.
We agree with the judge that the independent 8(a)(1) allegations
in the January 29, 1991 complaint are closely related to the original
November 28, 1990 charge. Therefore, we find it unnecessary to
pass on the judge’s alternative finding that (by virtue of the filing
of the July 12, 1991 amended charge) these 8(a)(1) allegations were
properly included in the complaint under Casehandling Manual Sec.
10064.5 and case precedent the judge cited.
Pincus Elevator and Electric Co. and Local 5, Inter-
national Union of Elevator Constructors. Case
4–CA–19400
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 24, 1992, Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
a brief in response to the General Counsel’s exception.
The General Counsel filed an exception and a support-
ing brief, and a brief in reply to the Respondent’s ex-
ceptions.
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,1 and con-
clusions2 as modified and to adopt the recommended
Order as modified.
1. We reverse the judge’s denial of the General
Counsel’s motion to amend the complaint at the hear-
ing to allege that the Respondent’s counsel had ques-
tioned employees about the case without giving appro-
priate assurances as required by Johnnie’s Poultry Co.,
146 NLRB 770 (1964).
At the hearing, the General Counsel called employee
John Vassilas, who testified about owner Matt Pincus’
statements during a June 1990 employee meeting. In
an effort to impeach his testimony, the Respondent in-
troduced a written statement Vassilas had provided to
the Respondent’s attorney during his investigation of
the complaint allegations.
On redirect, the General Counsel explored the cir-
cumstances under which the statement was obtained.
The Respondent did not object to the General Coun-
sel’s questions and chose not to recross-examine
Vassilas. Based on Vassilas’ answers indicating that
the Respondent’s attorney had failed to give assurances
against reprisals and had interrogated the employees
about signing union authorization cards, the General
Counsel moved to amend the complaint. The judge
granted the motion subject to further briefing.
The General Counsel questioned other employees,
who had provided statements to the Respondent’s at-
torney, about the circumstances under which the state-
ments were obtained. The Respondent had an oppor-
tunity to cross-examine those witnesses. As part of its
case, the Respondent questioned three of its wit-
nesses—employee Leszek Kamel, Pincus, and the Re-
spondent’s attorney—about the circumstances under
which the statements were obtained.
In the decision, the judge reversed her bench ruling
and denied the motion to amend on the ground that it
was not timely. We find that the judge erred by not
permitting the amendment to the complaint.
In deciding whether to permit the General Counsel’s
motion to amend the complaint at trial, we consider a
variety of factors, including the identity of the party
who first introduced evidence relating to the unfair
labor practice issue, whether the issue was fully liti-
gated, and whether the Respondent demonstrated that
the amendment is prejudicial. Citizens National Bank
of Willmar, 245 NLRB 389, 390–391 (1979), enfd.
mem. 644 F.2d 39 (D.C. Cir. 1981).
The issue arose as a result of the effort of the Re-
spondent’s attorney to impeach one of the General
Counsel’s witnesses by introducing the witness’ state-
ment obtained during the Respondent’s investigation.
Once the statement was introduced, the General Coun-
sel reexamined the witness about the circumstances
under which the statement was obtained. Thus, it was
the Respondent who initially introduced evidence relat-
ing to the unfair labor practice issue.
Thereafter, the General Counsel also called other
witnesses to testify about whether they had given state-
ments to the Respondent and the circumstances under
which statements were obtained. The Respondent had
an opportunity to cross-examine those witnesses. Fur-
ther, the Respondent, in presenting its case, called sev-
eral witnesses, including the Respondent’s attorney,
who testified about the circumstances under which
statements were obtained. Thus, the parties thoroughly
685PINCUS ELEVATOR & ELECTRIC CO.
3 The judge faulted the General Counsel for failing to pursue the
issue at an earlier time. We observe that the Respondent’s attorney
concedes that he advised the General Counsel that appropriate assur-
ances were given when he took the employees’ statements. The
judge’s statement implies that the General Counsel must assume that
parties act unlawfully. The Board makes no such assumption, espe-
cially where, as here, the Respondent’s attorney advised the General
Counsel that he had provided the necessary assurances.
4 Chairman Stephens notes that, in reviewing any findings made by
the judge, he will not find a violation solely on the ground of a lack
of assurance against reprisals but will consider whether, under all the
circumstances, questioning of the employees would tend to coerce
them in their exercise of Sec. 7 rights.
explored the unfair labor practice issue and we find
that it was fully litigated.
Given that the Respondent initially introduced evi-
dence relating to the unfair labor practice issue and
that the issue was fully litigated, we cannot agree with
the judge that the Respondent would be prejudiced by
permitting the motion to amend.3
Under Section 102.17 of the Board’s Rules and Reg-
ulations, a judge has wide discretion to grant or deny
motions to amend a complaint. We find, however, that,
as the matter has been fully litigated and the amend-
ment conforms the complaint to the evidence, the
judge should have granted the motion. See, e.g., Citi-
zens National Bank of Willmar, supra, 245 NLRB at
390–391, and Lion Knitting Mills Co., 160 NLRB 801,
802 (1966).
2. Because she denied the motion to amend the
complaint, the judge did not make specific findings re-
garding the conversations between the Respondent’s
attorney and its employees. Therefore, we shall remand
the case to the judge to make specific findings and
conclusions regarding those conversations.4
Having found that the Respondent engaged in unfair
labor practices, the judge recommended that it be or-
dered to cease and desist and to take certain affirma-
tive action designed to effectuate the policies of the
Act. Although we must await the judge’s supplemental
decision to determine whether the Respondent violated
Section 8(a)(1) when taking statements from its em-
ployees, we shall now issue an Order specifically rem-
edying those violations found by the judge and af-
firmed in this decision.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pincus
Elevator and Electric Co., Philadelphia, Pennsylvania,
its officers, agents, successors, and assigns, shall take
the action set forth in the recommended Order as
modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Remove from its files any reference to the un-
lawful discharges and notify Vladimir Dolic and Anton
Jukic in writing that this has been done and that the
discharges will not be used against them in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that this proceeding is re-
manded to Administrative Law Judge Arline Pacht to
reevaluate the record evidence in order to make credi-
bility resolutions concerning the conversations between
the Respondent’s attorney and employees from whom
he obtained statements, and to make findings as to
whether the Respondent’s attorney provided assurances
against reprisal in accordance with Johnnie’s Poultry
and as to whether he questioned employees about sign-
ing union authorization cards.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision con-
taining credibility resolutions, findings of fact, conclu-
sions of law, and a recommended Order; and that, fol-
lowing service of the supplemental decision on the par-
ties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
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.
WE WILL NOT discriminatorily discharge employees
because of their union and protected concerted activi-
ties.
WE WILL NOT threaten you with plant closure if you
join or support a union.
WE WILL NOT threaten you with discharge if you
join or support a union.
WE WILL NOT grant you raises or promise employ-
ment benefits in order to discourage support for a
union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Vladimir Dolic and Anton Jukic im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharge, less any
interim earnings, plus interest.
WE WILL notify Vladimir Dolic and Anton Jukic
that we have removed from our files any reference to
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Exhibits offered by the General Counsel will be referred to as
G.C. Exh., followed by the appropriate exhibit number; the Respond-
ent’s exhibits will be cited as R. Exh. References to the transcript
shall be denoted as Tr. followed by the page number. 2 Unless otherwise noted, all events took place in 1990.
their discharges and that the discharges will not be
used against them in any way.
PINCUS ELEVATOR AND ELECTRIC CO.
Steven Goldstein, Esq., for the General Counsel.
Michael G. Trachtman, Esq. (Powell, Trachtman, Logan &
Carrle King), of Prussia, Pennsylvania, for the Respond-
ent.
Robert C. Cohen, Esq. (Markowitz & Richman), of Philadel-
phia, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CAGE
ARLINE PACHT, Administrative Law Judge. On charges
filed by Local 5, International Union of Elevator Construc-
tors (the Union) on November 28, 1990, a complaint issued
on January 29, 1991 as amended on July 12 and 23, 1991.
The complaint alleges that the Respondent, Pincus Elevator
and Electric Co. (Respondent or Pincus Elevator) violated
Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act) by threatening employees that the business would
be closed, promising employees insurance and pension bene-
fits, increasing an employee’s wage rate and then discharging
Vladimir Dolic and Anton Jukic. The Respondent filed time-
ly answers denying the commission of the alleged unfair
labor practices.
This case was tried on August 6 and 7, 1991, in Philadel-
phia, pennsylvania, at which time the parties were afforded
full opportunity to examine and cross-examine witnesses and
to introduce relevant documents.1 On the entire record, in-
cluding my observation of the demeanor of the witnesses,
and after considering the parties’ posttrial briefs, I make the
following
FINDINGS OF FACT
I. JURISDICTION
There is no issue as to jurisdiction in this proceeding as
the Respondent admitted the allegations relevant to that mat-
ter. Accordingly, I find that the Respondent is, and has been
at all material times, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and that Local 5 is and has been at all material times a labor
organization within the meaning of Section 2(5) of the Act.
II. BACKGROUND
Pincus Elevator, owned and operated by Matt Pincus, was
a small firm with only six employees at the time of the
events giving rise to this litigation. The Company was en-
gaged in maintaining, repairing and modernizing or renovat-
ing elevators in various buildings in the Philadelphia area.
In December 1989, three union representatives, William
Fagan, Jim Martin, and John Davenport, met with Pincus and
asked him to consider entering into a collective-bargaining
agreement. After reviewing the Union’s wage rates and bene-
fit plans, Pincus expressed concern that his firm’s wage rates
were lower than those set by the Union. Fagan attempted to
assure Pincus that a schedule could be arranged which would
permit the Respondent to gradually increase wages until they
matched the union scale. The meeting ended on a cordial
note with Pincus saying that he would get back to the union
officials in a few weeks.
On failing to hear from Pincus, Fagan telephoned him the
following month. When Pincus told him he had no interest
in entering into an agreement, Fagan realized that the Union
would have to organize the employees directly.
Typically, Respondent’s employees returned to the shop at
4:30 p.m., the end of the workday, to turn in their timecards
and discuss any problems with Pincus which may have de-
veloped on the job. One such afternoon in late February
1990,2 Pincus told the men that the Union probably would
contact them, lie, and promise them everything. He also told
them they would do better to stay with him; that he would
try in the near future to give them better salaries and com-
pete with what the Union offered.
In March, Union Representatives Fagan, Dougherty, and
Martin did, in fact, contact two of Respondent’s employees,
mechanic Vladimir Dolic and his helper, Anthony Jukic
(Dolic and Jukic, respectively), while they were working on
an extensive project at 1510 Chestnut Street (the Chestnut
Street job). Martin asked Dolic if he was interested in joining
the Union and whether he knew about its programs. Dolic
confessed ignorance of such matters whereupon Martin ex-
plained the Union’s pension, welfare, and education program.
He gave Dolic some material outlining the Union’s wage
scales and benefits and invited him to stop at the union hall
to talk further about these matters.
When Dolic returned to the shop at the end of the day,
he told Pincus about meeting the union agents and indicated
some hesitancy in pursuing the matter. After stating that he
had anticipated such an encounter, Pincus told Dolic he
wanted to find out what each employee wanted in the way
of salary and benefits.
Accordingly, 2 weeks later, Pincus met privately with
Dolic, asking him what he wanted from the job. Dolic told
Pincus he would like a $1.50 raise, disability insurance, and
a pension plan. Pincus promised him a $1 hourly increase ef-
fective immediately with another 50-cent raise in September.
However, Pincus told Dolic he would need more time to
locate an appropriate company to handle benefits such as a
pension plan and insurance program. In the interim, he of-
fered Dolic an extra week of vacation the following year and
promised him that after 5 years’ employment he would have
a third week of paid vacation. In fact, Dolic saw a pay in-
crease in his next paycheck. Moreover, as Pincus promised,
Dolic received the additional 50-cent-an-hour raise in Sep-
tember, making him Respondent’s highest paid mechanic at
$18 an hour.
Union Agent Martin contacted Dolic and Jukic at the
Chestnut Street job several times during the next few
months. When Martin stopped by to talk with Dolic in May,
Pincus, who often visited the worksite, also was on hand. In
Pincus’ presence, Martin asked Dolic if he had given further
thought to the Union. Dolic told him ‘‘I am not ready yet,’’
687PINCUS ELEVATOR & ELECTRIC CO.
3 Jukic indicated that Dolic told Pincus that he had been contacted
by the Union during an employee gathering which took place some-
time in May. I conclude that Jukic, a Yugoslav immigrant who was
not proficient with the English language, inadvertently erred about
when and where Dolic first informed Pincus of his contact with the
Union, either because he misunderstood the General Counsel’s ques-
tion or simply forgot the precise month in which the contact oc-
curred.
4 Variations in Fagan’s, Martin’s, and Dolic’s testimony about who
initiated the request for a meeting and whether they agreed that other
employees would be included are minor irrelevant. The important
point is that after Dolic expressed his interest in the Union he and
Jukic agreed to meet with the union agents at their offices after work
on November 15.
and returned to his work. Martin then asked Pincus, if he had
reconsidered entering into a union contract.
Pincus replied that his business was too small for such an
undertaking.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Events in June
In the early part of June, Martin again found Dolic and
Jukic with Pincus at the Chestnut Street job. Martin asked
Dolic if he had considered the Union and whether he had
spoken with his fellow workers about it. Dolic said he still
was thinking it over and did not know how his coworkers
felt about it. However, he told Martin he was interested in
visiting the union hall to learn more about benefits and the
education program.
Dolic testified without controversion that when Martin de-
parted, he asked Pincus how he felt about the Union. Pincus
answered: ‘‘I will never join the Union. I would rather close
the shop. . . . I do not like union . . . you cannot hire your
own people. . . . [E]ven if I joined the Union, they are
going to fire you guys, and replace you with their own
men.’’ (Tr. 35.)3
Several witnesses testified about a meeting in the latter
part of June at which Pincus again allegedly threatened to
close his business should his employees opt for union rep-
resentation. Jukic, for one, testified that at this meeting
Pincus made the following statements:
I do not want a union in my company. My father was
in business for thirty years. Now, that business, it is
mine. So I want to stay out of the union. . . [I]f you
guys sign for the union, I have to close the busi-
ness. . . I can open another business, a different
name. [Tr. 145.]
Jukic also recalled that during this same meeting Pincus told
the employees he could pay them as if they were a union
company, but at some later time. Further, after urging the
employees to stay with him, Pincus remarked that he had
never fired anyone in the past and did not want to do so in
the future.
Another employee, helper John Vassilas (Vassilas), who
was still working for Respondent at the time of the instant
proceeding, also testified that at a June meeting Pincus ini-
tially stated that he did not object if the men spoke with
union representatives, and that if all the employees preferred
to join the Union, ‘‘that is the way it would have to be.’’
(Tr. 204.) However, Vassilas stated unequivocally that after
making this comment Pincus then told the group that he
would rather close the shop than go union and later could
open up under a different name. On cross-examination,
Vassilas conceded that Pincus said he ‘‘could [not] afford it
financially to go union ‘‘but expressly denied that his em-
ployer tied the closure of the business to financial consider-
ations. (Tr. 207.) Vassilas further testified that Pincus prom-
ised the men he would try to provide benefits comparable to
those offered by the Union in the future. Lastly, Pincus guar-
anteed them full-time work if they stayed with him. On
cross-examination, Vassilas conceded that a few times in the
next several months the employees spoke about the Union in
Pincus’ presence. However, he did not indicate what they
said on such occasions or whether they expressed pro or
antiunion sentiments.
Pincus put a more benign gloss on his remarks at the June
meeting. He maintained that he told the employees they
could join the Union if they wished. Moreover, he indicated
that any comment as to going out of business was made sole-
ly in the context of financial pressures; this is, he would be
compelled to raise his rates in order to meet the higher union
wage scale, which would cause him to lose many of his cus-
tomers.
B. Events in November prior to the Discharges
Union agents did not contact the Pincus employees again
until sometime in November when by chance, Martin and
Fagan encountered Dolic and Jukic during their lunchbreak.
Each of the three witnesses who testified about this encoun-
ter remembered it somewhat differently. Thus, Fagan stated
that Dolic said he was interested in the Union and asked that
a meeting be arranged at the union hall for all the Pincus
employees. Martin, on the other hand, believed that he was
the one who proposed that Dolic and his fellow employees
come to the union hall on November 15 to discuss benefits
and the education program.
Dolic recalled agreeing to visit the union hall with Jukic
after work on November 15, but did not recollect telling the
union agents at that time that the rest of the employees also
would attend. However, he believed that his coworkers
would be likely to accompany him and would be amenable
to union representation, for in recent conversations, a number
of them had expressed dissatisfaction and frustration with
their jobs.4
Dolic testified that following his meeting with the union
representatives he and Jukic joined two of their coworkers,
Leszek Kamel and Nurfet Alic (Kamel and Alic, respec-
tively), for lunch at which time Alic complained that the em-
ployees’ medical insurance had been canceled. The men then
voiced certain discontents with their employer. Dolic took
this opportunity to tell them he was going to the union hall
on November 15 to see what they had to offer. Alic and
Kamel agreed to go with them.
During one of their usual after-work gatherings on or
about November 13, Pincus told the men that he was having
financial problems caused by the failure of some clients to
pay for work already completed. As a result, he instructed
them to curtail expenses by exercising greater care in pur-
chasing materials and reducing their driving time. One of the
workers asked whether they would be affected by Respond-
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Gilbert had served as Respondent’s accountant for 30 years when
the business was owned by Pincus’ father.
6 Dolic’s seniority apparently was not a factor. He first began to
work for Respondent in 1986, left after 1-1/2 years for a higher pay-
ing job, and returned to the Company in April 1989.
ent’s economic situation. According to the consistent testi-
mony of four witnesses—Dolic, Jukic, Vassilas, and Alic—
Pincus responded by assuring the group that they need not
worry for there was plenty of work for everyone and that the
coming year would be better. In addition, several of these
witnesses recalled that Pincus alluded to two new projects he
had contracted; one at a building located at 11th and Vine
Streets, the other at Pine and 48th Streets. In fact, Pincus had
advised Dolic in August that he probably would be assigned
to the Pine Street job. Coincidentally, in August, the owner
of the 11th and Vine Street building asked Dolic for an esti-
mate to repair the elevator there. When Dolic inadvertently
discovered that Pincus already had bid on the job, he de-
clined to submit his own bid so as to avoid competing with
his employer. Pincus expressed his appreciation to Dolic
when he found out about this.
The employees further testified that during the course of
this November meeting Dolic questioned Pincus about a
number of concerns. First he asked what had happened to
their medical insurance. Pincus explained that the cancella-
tion had been a mistake. Persisting, Dolic asked why no
medical insurance was obtained for Jukic and one other em-
ployee. Pincus apologized for his neglect and promised to
take care of these matters right away. Dolic then inquired
about disability insurance and a pension plan. Pincus replied
that he had contacted some companies but disability and pen-
sion plan were too costly at that time. Dolic insisted that
these were very important matters and the workers could not
do without them.
Following this meeting, all six employees went out to-
gether for coffee and spent the next several hours discussing
their frustrations with various working conditions. Dolic told
the group that he he was going to the union hall on Novem-
ber 15 at 5 p.m. At this point, all of his coworkers agreed
to join him.
Apparently, Dolic’s questions to Pincus had an effect. On
the day after the meeting, November 14, when Dolic returned
to the shop to pick up materials, Pincus informed him he had
contacted some insurance companies and had an appointment
with one of them the following day to discuss a pension
plan.
C. The November 16 Discharges
At approximately 3:45 p.m. on November 15, Pincus sent
Dolic and Jukic out to repair an elevator at the Bradford
Apartments. Dolic testified, and Jukic confirmed, that Pincus
told them not to work beyond 4:30 p.m. because he could
not afford to pay overtime. After investigating the situation,
Dolic surmised that the elevator might not be stopping even-
ly with the floor because a certain leveling device was faulty.
However, it was 4:20 p.m. by the time he completed his in-
spection. Therefore, he told the building manager he would
return the following morning to correct the problem. Dolic
further stated that he and Jukic returned to the shop at 4:35
p.m. at which time Pincus told them to return to the Bradford
building the following morning and resolve the matter.
After leaving the shop, Dolic and Jukic went to the union
hall as they had planned, but their coworkers failed to ap-
pear. Nevertheless, the two men met with union agents who
gave them material about benefits and wages and toured the
school with them. When Fagan asked why it had taken them
so long to seek a meeting with the Union, Dolic told him
that Pincus had warned him if he tried to join the Union he
would fire him or close the Company.
Dolic and Jukic were soon to discover that they would not
return to the Bradford job, or any other for that matter, for
Pincus had decided to terminate their employment. On arriv-
ing at the shop at 8 a.m. the next day, November 16, Pincus
told them he would have to lay them off for lack of work.
He handed Dolic one check covering a week’s vacation pay
and, although he was not obliged to do so, also gave him
a check for severance pay. Jukic, too, received his regular
paycheck plus 1 week’s severance pay. as a courtesy, Pincus
then drove the men home since, as usual, Dolic had driven
the company truck to work.
D. Respondent’s Justification for the Discharges
Pincus denied having any knowledge that Dolic and Jukic
met with union officials on November 15 or that their dis-
charges had anything to do with union activity. In fact,
Pincus insisted that Dolic told him on several occasions that
he was pleased with his job and was not interested in the
Union. However, Pincus did not indicate when Dolic made
such statements.
Pincus maintained that the layoffs resulted solely from le-
gitimate business considerations. He explained that he de-
cided to dismiss ‘‘somebody’’ when his accountant, Stephen
Gilbert, advised him on the evening of November 12 that the
business had lost approximately $34,000 in the previous tax
year and that steps had to be taken to cut Respondent’s
losses. (Tr. 288.)
Gilbert testified that he had just completed Respondent’s
income tax return form for the 1989 business year ending on
September 30 and, concerned by the size of the annual loss,
scheduled a meeting with Pincus to discuss the firm’s eco-
nomic condition.5 Gilbert was unsure of the exact date on
which they met, but thought it probably took place on or
about November 12, even though the tax form was dated No-
vember 16. In any event, he and Pincus both recalled that
after reviewing the form, Pincus stated that he would have
to dismiss someone.
Pincus detailed the reasons he chose Dolic and Jukic for
layoff. First, he explained that he targeted Dolic because he
was the highest paid employee. He selected Jukic because he
was the last hired and had worked almost exclusively as
Dolic’s helper.6
Pincus also stated that his selection of Dolic for layoff was
heavily influenced by his receipt of a letter dated August 7
in which the management company for the Chester Street
property complained about the lack of progress on the job
and the frequent absences of the two men assigned there.
Pincus noted that he often visited the Chestnut Street jobsite
and would not always find Dolic and Jukic on the site. He
also alleged that he spoke to them often about the need to
expedite the job.
Dolic, on the other hand, maintained that Pincus never
criticized his work; that he only once referred to the Chestnut
Street owner’s displeasure with the progress on the job, but
689PINCUS ELEVATOR & ELECTRIC CO.
7 Curiously, Pincus only testified about his conversation with
Lindy. He did not mention having any conversation about this inci-
dent with Schofield.
8 Sec. 10(b) provides that ‘‘no complaint shall issue based upon
any unfair labor practice occurring more than six months prior to the
filing of the charge.’’
9 Hereinafter, counsel for the General Counsel will be referred to
as General Counsel.
did not attribute the delay to him or Jukic. In fact, Dolic tes-
tified that a number of delays on that jobsite either were un-
avoidable or attributable to Pincus himself. Thus, Dolic stat-
ed without dispute that materials did not arrive on time; that
on one occasion a piece of equipment was delivered heavily
damaged, and that after completing one of the elevators he
discovered Pincus had ordered an important piece of equip-
ment in the wrong size. Corroborating Dolic’s testimony in
this regard, Pincus admitted that the mistake was his and
confirmed that a new part had to be ordered and installed.
Pincus also testified about what he perceived to be Dolic’s
mishandling of the situation at the Bradford Apartments.
Thus, he stated that when Dolic and Jukic returned to the
shop and told him they would repair the elevator the follow-
ing morning, he objected and said they could not leave it in
that condition. Pincus stated that he subsequently received a
telephone call from the Bradford Park’s manager, Allen
Lindy, who, angered that the elevator had not been repaired,
purportedly told Pincus he would cancel his contract with
Respondent if the same two men returned to the building.
Pincus added that the owner of the Bradford is one of his
largest maintenance customers and denied telling Dolic and
Jukic to avoid overtime work there.
Respondent called Jacqueline Schofield as its witness who
was identified as the manager of the Bradford Park Apart-
ments.7 Schofield testified that she was extremely irate when
Dolic and Jukic left without repairing the elevator, for the
building housed some handicapped and elderly tenants. She
further stated that she left a message for Pincus when she
was unable to reach him by phone and he returned her call
either that same evening or the following day at which time
she lodged her protest. Two other employees took about 15
minutes to repair the elevator the next morning.
Pincus also claimed that Kamel was a more experienced
and competent employee than Dolic. Although conceding
that Kamel could neither speak nor read English when he
was first hired, Pincus maintained that he had technical train-
ing and 15 years’ prior experience. In fact, Pincus was wrong
in this regard for Kamel testified that he had 11 years’ expe-
rience before Respondent hired him. Consequently, his quali-
fications for the job were not greater than Dolic’s who had
completed technical college training and then worked in Eu-
rope for 10 years on every aspect of elevator work prior to
coming to the United States. Moreover, he had worked for
Respondent for 1-1/2 years before Kamel was hired. In fact,
Kamel worked as Dolic’s helper for the first 7 months of his
employment. Before this case arose, Pincus apparently recog-
nized Dolic’s superior skills for he explained to the employ-
ees that he was assigning Dolic to the Chestnut Street job
on the strength of his experience.
Lastly, Pincus testified that his layoff decision was influ-
enced by the fact that Dolic had been disloyal in quiting his
job with Respondent to take a more lucrative position.
On the day that the two men were terminated, Alic, a
friend of Dolic’s, asked Pincus why he had taken such a
step. Alic testified without dispute that Pincus simply an-
swered, ‘‘he had his reasons.’’ (Tr. 476.) Alic and Vassilas
both maintained that following the discharges their workload
increased, even becoming hectic on occasion, and for the
first time, employees were shifted from one job to another
during the day, rather than being assigned exclusively to one
site. In fact, Alic testified that he received some inquiries
from owners about the delays caused by the workers being
transferred from one site to another. When he told his boss
about these complaints, Pincus said he would speak to the
owners. Pincus offered uncontradicted explanations for each
of the delays.
Although the work force did not expand from the time of
the layoffs to the date of the instant trial, the four remaining
employees each received pay raises. Pincus explained that he
generally granted wage increases to reward quality perform-
ance.
The two new renovation projects to which Pincus alluded
at the November 13 meeting, both materialized. One of these
jobs on 11th Street began in January and lasted a month. An-
other 1-week job also came up that same month. Alic be-
lieved that the second job at 48th and Pine Streets began a
month or two after the discharges, but Pincus thought it
might have started in late spring. A third major renovation
job began in August 1991. Neither of these latter two
projects were completed at the time of trial.
VI. DISCUSSION AND CONCLUDING FINDINGS
A. The 10(b) Issues
1. The propriety of the complaint
The Respondent contends, inter alia, that two of the allega-
tions in the original complaint are barred by Section 10(b)
of the statute and should be dismissed because they were not
supported by timely unfair labor practice charges.8 The facts
bearing on this contention follow.
The original charge in this case, filed November 28, 1990,
dealt solely with the two 8(a)(3) discharges. When the com-
plaint issued on January 29, 1991, in addition to the dis-
charges of Dolic and Jukic, it contained independent 8(a)(1)
allegations that Respondent threatened to close the business
in June and promised insurance and pension benefits on No-
vember 14 in order to discourage employee support for the
Union.
On or about July 12, the Union filed an amended charge
accusing Respondent of the very acts which were alleged as
independent 8(a)(1) violations in the complaint. On July 23,
the Union filed a second amended charge adding an alto-
gether new allegation that in September 1990, the employer
unlawfully granted a wage increase to an employee.
After giving notice to the Respondent, the General Coun-
sel9 moved to amend the complaint at the outset of the hear-
ing on August 5, 1991, in order to incorporate the allegations
raised in i the second amended charge. (See G.C. Exh. 2.)
Over Respondent’s objection, I granted the amendment sub-
ject to further briefing by the parties on the issues raised by
these matters.
The complaint allegations at issue here were made within
6 months of a timely filed charge. However, as explained
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Although Redd-I involved the amendment of a complaint alleg-
ing a violation of the Act outside the 10(b) period, the tests articu-
lated by the Board in that case seem equally appropriate to fact pat-
terns such as the one in this case.
above, the complaint contained two 8(a)(1) allegations which
were not set forth in the underlying charge. Thus the real
question is not one of timeliness, but whether the 8(a)(1) al-
legations were properly included in the complaint. In ad-
dressing a related issue in NLRB v. Fant Milling Co., 360
U.S. 301, 309 (1959), the Supreme Court observed that ‘‘a
charge filed with the Labor Board is not to be measured by
the standards applicable to a pleading in a private lawsuit.
Its purpose is merely to set in motion the machinery of an
inquiry.’’ The Court then held that that a complaint is not
restricted to the precise allegations of the charge if during the
course of this inquiry new allegations of unlawful conduct
are uncovered, so long as they ‘‘are related to those alleged
in the charge and . . . grow out of them while the proceed-
ing is before the Board.’’ Ibid.
Confirming the Fant Milling requirement of a factual
nexus between the charge and the complaint allegation, the
Board ruled in Nickles Bakery of Indiana, 296 NLRB 927
(1989), that there must be a showing of factual relatedness
between the specific charge allegations and the 8(a)(1) alle-
gations of the complaint.
The Board clarified the standards it would use in determin-
ing whether there was a close factual relationship between
the charge and the complaint in Redd-I, Inc., 290 NLRB
1115 (1988),10 Specifically, the Board stated that the term
‘‘closely related’’ would turn on (1) whether the charge and
complaint allegations involve the same legal theory; (2)
whether they arise from the game factual circumstances; and
(3) whether a respondent would raise similar defenses to
both allegations. Id. at 1116.
Under the principles outlined above, I conclude that the
8(a)(1) allegations in the January 29, 1991 complaint are
closely related to the charge. Here, the charge alleged that
Dolic and Jukic were discharged because of their union and
protected concerted activity. While the complaint contained
additional allegations regarding threats of business closure
and promise of benefits, clearly, distinct acts separate in
time, the legal theory underlying all of them is identical; that
is, that the Respondent engaged in unlawful conduct as part
of an effort to prevent the organization of its employees. See
NLRB v. Kohler Co., 220 F.2d 3, 6–7 (7th Cir. 1955); Be-
retta U.S.A. Corp., 298 NLRB 232 fn. 1 (1990). The fact
that different sections of the Act are involved does not alter
this determination. See Nickles Bakery, supra at fn. 5.
Further, according to the General Counsel’s theory of the
case, the discharges were the culmination of a related series
of events; that is, the employees were discharged when
Pincus determined that his threats of closure and promises of
benefits to them and others were insufficient to deter them
from interest in union representation. In other words, the dis-
charges allegedly grew out of the same factual circumstances
and unlawful motivation that led to the commission of the
8(a)(1) violations.
Even if it was found that the charge was too narrow to
support the independent 8(a)(1) allegations of the complaint,
the Charging Party subsequently corrected that deficiency by
filing the amended charge of July 12. In so doing, the Charg-
ing Party and the General Counsel complied with the guide-
lines set forth in the Casehandling Manual Section 10064.5,
in accordance with a procedure the Board expressly endorsed
in Clark Equipment Co., 278 NLRB 498 fn. 3 (1986); ac-
cord: G. W. Galloway Co,. 281 NLRB 262 fn. 2 (1986),
revd. on other grounds 856 F.2d 275 (D.C. Cir. 1988).
2. The July 23 amended charge is not time-barred
As mentioned above, a second amended charge issued on
July 23, containing new allegations of an unlawful wage in-
crease given in September 1990 to Dolic and a June 1990
threat to fire employees if they supported the Union. There-
after, the General Counsel moved to amend the complaint to
incorporate the amended charges of July 12 and 23. Apply-
ing Redd-I, supra, I find that these allegations are sufficiently
closely related to the original charge to justify their inclusion
in the amended complaint and thus are not barred by Section
10(b) of the Act.
In reaching this conclusion, I note that the Respondent suf-
fered no prejudice even though the charges were filed less
than a month before the instant trial. The July 12 charges
simply conformed to allegations in the original complaint. In
refuting the July 23 charges, Respondent was able to present
a single witness—Pincus—who did not deny the factual con-
tentions, but instead, claimed that his conduct was not moti-
vated by antiunion animus or knowledge that Dolic and Jukic
were engaged in protected activity. In effect, the Respond-
ent’s defense was the same one it posed with respect to other
purported violations of the Act. Respondent was not bur-
dened by having to search for obscure documents or unat-
tainable witnesses.
3. The ‘‘Johnnie’s Poultry’’ amendment was untimely
During the hearing, the General Counsel again moved to
amend the complaint to allege that Respondent’s counsel had
questioned employees about the case without giving appro-
priate assurances as required by Johnnie’s Poultry Co., 146
NLRB 770, 775 (1964).
The requested amendment flowed from the following cir-
cumstances. At the hearing, Respondent attempted to im-
peach General Counsel’s witness, John Vassilas with a state-
ment he gave prior to the hearing. On redirect, Vassilas testi-
fied that Respondent’s counsel had questioned him about the
case without assuring him he would suffer no reprisals. I
granted the General Counsel’s motion to amend subject to
further briefing.
On reconsideration, I conclude that the General Counsel’s
motion to amend the complaint should have been denied as
untimely. The General Counsel did not, and, indeed, could
not, contend that the proposed amendment was closely relat-
ed to the timely filed charge within the meaning of the Redd-
I rule. Instead, counsel suggests that he first learned of the
alleged impropriety during the course of Vassilas’ testimony.
Hence, the violation was in the nature of newly discovered
evidence.
Based on counsel’s averments, I am not persuaded that the
General Counsel was unable to determine prior to the hearing
whether or not a Johnnie’s Poultry violation was committed.
The General Counsel acknowledged that Respondent’s coun-
sel told him he had taken the employees’ statements about
the allegations in the complaint a month before the hearing.
691PINCUS ELEVATOR & ELECTRIC CO.
11 Respondent relies on testimony of employee Leszek Kamel who
stated that he never heard Pincus say anything about closing the
business because of the Union, as proof that Pincus did not make
such a threat. Kamel, admittedly, was even less proficient in English
than Jukic. Moreover, his testimony on this point came in response
to a rather blatant leading question. Therefore, I am not inclined to
put much weight on his response.
12 In crediting Vassilas, I rely both on his demeanor and on the
fact that as a current employee he testified against his own employ-
ment interest. Midwestern Mining, 277 NLRB 221 fn. 1 (1985).
13 It was clear from Vassilas’ heavily accented words that he was
foreign born. His written statement, which is perfectly grammatical
and reads quite smoothly, does not accurately reflect his speech pat-
terns.
At that time, the Government asked Respondent’s attorney if
he had given the employees assurances against reprisals, and
was told that he had. Satisfied, the General Counsel made no
further investigation. In explaining his failure to pursue the
matter, the General Counsel averred that Respondent had de-
clined to provide copies of the statements prior to the hearing
or give him the employees’ names and telephone numbers.
However, counsel did have access to one such employee—
Vassilas—the very witness whose testimony opened the door
to the Johnnie’s Poultry issue. Moreover, Alic, another em-
ployee who continued to work for Respondent and was a
personal friend of Dolic’s, also could have been contacted
about this matter. Thus, the General Counsel had the ability
to explore this question and could have determined some
weeks before the hearing whether an amendment was appro-
priate. In other words, if the evidence was newly discovered,
it was because the General Counsel decided not to pursue the
matter at an earlier time.
Having no forewarning that a question would arise about
this matter, Respondent’s counsel was put at a disadvantage
in having to defend against it at the 11th hour. For the fore-
going reasons, fundamental fairness requires that I reverse
my former ruling, dismiss the amendment, and treat any evi-
dence bearing on an alleged violation of Johnnie’s Poultry
as if received by way of proffer.
B. Independent Violations of Section 8(a)(1)
1. Threats of plant closure
Section 8(c) of the Act protects the expression of views,
argument or opinion as long as ‘‘such expression contains no
threat of reprisal or force or promise of benefit.’’ In other
words, an employer’s right to free speech is not absolute; it
must be balanced against the employees’ right to organize or
refrain from organizing, free of coercion, restraint, and inter-
ference. One of the more troubling issues in balancing an
employer’s rights under Section 8(c) against employees
rights under Section 7 is to determine whether an employer’s
remarks about plant closure during a union organizational
campaign are permissible predictions or threats proscribed by
Section 8(a)(1). In drawing such distinctions, the Supreme
Court provided the following guidance in NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969):
A prediction must be carefully phrased on the basis of
objective fact to convey an employer’s belief as to de-
monstrably probable consequences beyond his control.
. . . If there is an implication that employer may or
may not take action on his own initiative for reasons
unrelated to economic necessities and known only to
him, the statement is no longer a reasonable prediction
based on available facts, but a threat of retaliation
based on misrepresentation and coercion.
As detailed above, in early June, Pincus flatly told Dolic
that he would rather close his business than join the union.
He gave no objective reason for his position, merely stating
in conclusory fashion that he did not like the Union and as-
sumed he would not be permitted to engage his own employ-
ees. These reasons (if they can be called that) are obviously
unrelated to ‘‘economic necessities’’ or ‘‘demonstrably prob-
able consequences beyond his control.’’ Id. In reality, Pincus
was doing nothing less than threatening that the Company
would close as a retaliatory measure in the event of unioniza-
tion. As such, his comment was a threat violative of Section
8(a)(1).
During an employee meeting in the latter part of June,
Pincus again made some remarks about closing the business.
Both Jukic and Vassilas recalled that Pincus said he would
rather close the business than accept unionization and would
open up a new business under a different name. Pincus did
not explicitly deny their testimony.11 Instead, he skirted the
issue and maintained that his comments were couched in
terms of the effect unionization would have on his business;
that is, that the advent of the Union would increase his costs
and he would lose customers. Based on his testimony, the
Respondent claims that Pincus reasonably predicted plant
closure based on probable consequences beyond his control;
that is that higher costs imposed by a union contract would
lead to a loss of customers.
Vassilas acknowledged that his boss referred to the finan-
cial costs of unionization, but he emphatically insisted that
Pincus’ reference to such concerns were posed as a separate
statement which followed his remark that he would rather
close the business than accept unionization. Bearing in mind
that Vassilas remained in Respondent’s employ at the time
he testified, I am persuaded that he accurately and truthfully
reported the nature and sequence of Respondent’s remarks.12
Respondent attempted to impeach Vassilas with a written
statement that counsel obtained in preparation for this instant
trial. It reads, in pertinent part that: ‘‘Matt never said that he
would close the shop if we went with the Union. One time,
he said that he would rather it close because of all the money
it would cost him if the Union came in to the shop.’’ (R.
Exh. 9.) I am reluctant to rely on this statement for the cir-
cumstances under which it was taken do not vouch for its
accuracy. All the employees were together in Pincus’ pres-
ence when counsel interviewed them and apparently put
questions to the group at large. As the employees responded
to these questions, counsel took notes and then prepared
written statements which were returned to them for signature.
Because I do not feel assured that the written words literally
were those of Vassilas or that they faithfully captured his
verbatim statements during the interview, I prefer to rely on
his testimony given in court where I was able to observe that
his demeanor was candid and sincere.13 Thus, while Pincus
probably did mention that the pay scale and benefits under
a union contract were higher than those the employees cur-
rently received, a fact based in reality, he produced no evi-
dence, as it was his burden to do, to support the claim that
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Following the discharges of Dolic and Jukic, Respondent award-
ed pay raises to the other employees, yet the record contains no evi-
dence that this regulated in the loss of customers. Moreover, a union
agent testified without controversion that he assured Pincus they
could arrange a schedule which would permit Respondent to gradu-
ally raise wages to union scale. This evidence tends to counter Re-
spondent’s contention that Pincus would have to raise his fees so
sharply and suddenly that he would lose customers, much less be
forced to close his business.
15 Pincus’ statement that Respondent could resume business under
a new name suggests that evasion, not economic necessity, would
lead to closure.
16 This is not to imply that Pincus had no genuine interest in pro-
viding employment benefits for I found him to be a generally well-
intentioned employer who was not indifferent to the well being of
his employees. However, I bear in mind that Pincus just learned that
his business was losing thousands of dollars. Thus, his promptness
in responding to Dolic’s demands appears to be motivated at this
point in time chiefly by his interest in deterring employees from
turning to the Union.
17 Similarly, Respondent pointed to Vassilas’ testimony that Pincus
had mentioned the possibility of benefits before he had heard about
the Union. However, Vassilas was first hired in late January 1990,
after the Union had contacted Pincus .
higher wages would lead inevitably to the loss of customers.
Neither did he adduce any proof, beyond mere speculation,
that the possible loss of an unknown number of customers
would cause the demise of the Company. See Harrison Steel
Castings Co., 262 NLRB 450 (1982), affd. 728 F.2d 831 (7th
Cir. 1984).14 Further, according to Vassilas’ credited testi-
mony, I conclude that Pincus did not causally connect higher
costs and possible loss of customers to plant closure. His
statement that he would ‘‘rather’’ close and reopen under a
new name had the ring of an implied threat stemming from
a subjective predilection against the Union rather than a pre-
diction based on the likely economic consequence of demon-
strable fact.15
I am mindful that Pincus is charged with threatening plant
closure to all the employees as a group on only one occa-
sion, and that, thereafter, they continued to discuss the Union
in his presence. However, I am not persuaded that these fac-
tors nullify the coercion implicit in his remark. Although the
threat of closure was not repeated, it cannot be viewed in
isolation, for Pincus made other unlawful statements and
took impermissible actions (discussed further below) which,
when considered cumulatively, revealed his antipathy to the
Union. Accordingly, I conclude that Pincus’ statement re-
garding plant closure tended to coerce the employees in vio-
lation of Section 8(a)(1) of the Act.
2. The threat of discharge
At this same employee gathering in late June, according
to Jukic’s unrefuted testimony, Pincus coupled a request that
the employees stay with him with a gratuitous comment that
he had never fired anyone in the past and did not want to
do so in the future. The employees surely were capable of
discerning the intended implication of his words—that is,
that those who remained loyal to him by rejecting the Union
would not be discharged. Mark J. Leach Electrical Contrac-
tors, 251 NLRB 1100 fn. 2 (1980).
3. Unlawful inducements
The Wage Increase and Implied Promise of Benefits
The promise or actual grant of benefits is no less unlawful
than threats or disciplinary action if the employer’s purpose
is to dissuade employees from engaging in protected con-
certed activity or supporting a union.
The amended complaint alleges that the Respondent im-
properly increased Dolic’s wages in September and promised
him benefits in November. The propriety of these acts cannot
be evaluated without reference to preceding events. Thus, it
will be recalled that in March, when Dolic told Pincus of the
Union’s overtures to him, Pincus asked what he wanted.
Dolic’s wish list included a $1.50-an-hour raise, disability in-
surance, and a pension plan. Almost immediately, Dolic re-
ceived a $10 raise. As promised, the remaining 50-cent pay
increase was given in September. Pincus did not reject
Dolic’s other request, but said he would need more time to
locate appropriate carriers. In the interim, he promised Dolic
additional vacation time.
The complaint did not indict Respondent for granting
Dolic the dollar wage increase or the extra vacation benefits,
only because those acts occurred outside the 10(b) period.
Nevertheless, that conduct may be taken into account in rec-
ognizing that the improper motives which colored Respond-
ent’s actions in March continued to taint its conduct in Sep-
tember when Dolic received the balance of the promised
raise.
Dolic returned to the subject of benefits at a November 13
employee meeting. First, he asked first why Respondent had
failed to provide health insurance for Jukic. He then renewed
his inquiry about disability insurance and a pension plan.
When Pincus said that such plans were too costly, Dolic
stressed the importance of such coverage to the men. The
next day, Pincus advised Dolic that he had contacted several
insurance firms and was meeting with one of them to discuss
a pension plan. The import and purpose of this announce-
ment is clear: one day after Dolic had forcefully expressed
the employees’ concerns, Pincus attempted to assure him that
their complaints were being remedied in order to compete
with the Union and retain their loyalty.16
Respondent contends that the promise of benefits was un-
related to the employees’ involvement in Union or protected
concerted activity for Pincus had long been seeking insur-
ance. To support this contention, Respondent relied on a Jan-
uary 18 letter indicating that Pincus was investigating benefit
plans before the Union made any overtures to the employees.
However, the Union first approached Pincus in December
1989. Thus, the only documentary proof that Pincus made se-
rious inquiry into such matters came after and was prompted
by the Union’s advent.17 Accordingly, I conclude that
Pincus’ statement to Dolic regarding his appointment with an
insurance company to consider a pension plan, was tanta-
mount to an implied promise of a benefit in violation of Sec-
tion 8(a)(1). See Statler Industries, 244 NLRB 144, 148
(1979), modified on other grounds 644 F.2d 902 (lst Cir.
1981).
C. The Discharges Were Unlawful
1. Applicable precedents
The amended complaint alleges that the Respondent dis-
charged Dolic and Jukic on November 16 in violation of
693PINCUS ELEVATOR & ELECTRIC CO.
18 Approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
19 Pincus’ curiosity about the men’s activity could have been
aroused on the afternoon of November 15 for he admitted he was
surprised when they returned to the shop after working at the Brad-
ford site, rather driving home directly.
20 It is not absolutely certain that the meeting between Pincus and
his accountant took place on the evening of November 12. The ac-
countant was not sure of the exact meeting date and the tax return
which he brought with him to the meeting was dated November 16.
If their meeting did not take place until that night, then the account-
ant’s report of the Company’s poor economic status could not have
affected the discharges which took place that morning.
Section 8(a)(1) and (3). Denying any knowledge that they
were engaged in union activity, the Respondent contends that
it selected these two employees for layoff solely for reasons
of economic necessity. Where, as here, both lawful and un-
lawful motives are offered to explain an employer’s conduct,
the Board requires that the evidence be assessed according
to the two-part, burden-shifting analysis set forth in Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (lst
Cir. 1981), cert. denied 455 U.S. 989 (1982).18 Initially, the
General Counsel must make a prima facie showing that the
employer knew of the employee’s protected activity and that
this knowledge was a motivating factor in its decision to take
discriminatory action. Once the General Counsel has made
this showing, ‘‘the burden of persuasion shifts to the em-
ployer to prove that the employee would have . . . received
the . . . claimed discriminatory action in any event because
of unprotected conduct.’’ Champion Parts Rebuilders v.
NLRB, 717 F. 2d 845, 849 fn. 6 (3d Cir. 1983).
2. The General Counsel’s case
As described in the Findings of Fact, supra, Dolic and, to
a lesser degree, Jukic, engaged in union and protected con-
certed activity. They were approached on a number of occa-
sions by union agents and Dolic, in particular, expressed in-
terest in finding out about the Union’s benefits and education
program. In November, shortly before their discharges, Dolic
scheduled a November 15 meeting for himself and Jukic at
the union hall, and, after advising his coworkers of the meet-
ing, understood that they planned on attending as well. Dolic
and Jukic were, however, the only ones to appear at the
union hall on the evening immediately before the day of their
discharge.
Notwithstanding the Respondent’s disclaimers, Pincus had
to know that Dolic and Jukic were approached by and gradu-
ally became interested in the Union’s program. From the
first, Dolic candidly told Pincus during an employee gather-
ing that he had spoken with union officials about their wage
scales and benefit package, which prompted Pincus to prom-
ise he would try to improve their pay rates. Moreover, in an
effort to compete with the Union, Pincus granted Dolic a
$1.50-an-hour wage increase and additional vacation benefits.
In June, Pincus was on the scene when Dolic. told the union
agents he was interested in visiting their offices and learning
more about the Local’s program. Just a few days later,
Pincus told employees that he would eventually try to match
the Union’s benefits. At another employee gathering in No-
vember, Dolic pressed Pincus to provide health, disability,
and insurance plans for the men. In the past, reference to dis-
ability and pension plans had arisen in the context of discus-
sions about the Union. Therefore, it is fair to infer that when
Dolic again raised such issues, Respondent viewed him as a
gadfly who persisted in reminding him that, unlike the
Union, he was not providing benefits to his employees.
Proof that Pincus also knew that Dolic and Jukic arranged
and attended a union meeting on November 15 is more elu-
sive. Although no direct evidence exists that Pincus had such
knowledge on the morning of November 16 when he termi-
nated them, circumstantial evidence points strongly in that
direction. By November 13, all the employees knew of the
November 15 union meeting. Respondent’s shop was small
and the employees gathered at the end of the workday to dis-
cuss all manner of things with their employer. Given the in-
formality of Pincus’ relationship with his employees, it
stands to reason that one of them let him know that Dolic
and Jukic visited the union hall.19
It also should be recalled that on November 13, after pur-
portedly disclosing that the Company was in poor financial
straits Pincus nevertheless assured the employees that there
was sufficient work for all of them.20 Yet, 3 days later, he
cited lack of work as the reason for Dolic’s and Jukic’s dis-
missals. Further, although Pincus testified that he decided on
the evening of November 12 he would lay off one employee
right away, it took him 4 more days to decide that he would
sever two men. His decision, curiously enough, was made
sometime after Dolic and Jukic left work at 4:35 p.m. on No-
vember 15 believing that they had an assignment the follow-
ing morning.
Given these facts, troubling questions present themselves.
For example, why was there enough work for six employees
on November 13 but not on November 16. Why did Pincus
indicate on November 12 that he would lay off only one em-
ployee and then take 4 days to decide he would dismiss two
employees. Why did he lead Dolic and Jukic to believe they
had jobs on the afternoon of November 15 and then suddenly
and without prior warning, terminate them the following
morning for lack of work. Only one intervening event ex-
plains Respondent’s anomalous decision—that is, the em-
ployees’ attendance at the union meeting. The Board often
has relied on a coincidence in timing between employees’
union activity and their discharge to support an inference of
discrimination. See, i.e. Abbey’s Transportation Services, 284
NLRB 698, 699 (1987), enfd. F.2d 837 (2d Cir. 1988). Such
an inference is warranted here.
Little needs to be said with respect to Respondent’s oppo-
sition to the Union. Pincus signaled his views to the workers
early on when he warned them that the Union would lie and
make extravagant promises. He told Dolic outright that he
did not like the Union and on two occasions told him and
the other men that he would rather close his shop than be
unionized. He also hinted that employees who supported the
Union might be fired. Such statements provide persuasive
proof of Respondent’s antiunion animus. Id. at 701.
To sum up, evidence of the Respondent’s unlawful moti-
vation in discharging Dolic and Jukic rests essentially on
three grounds: the timing of the discharges in relation to the
employees’ union activity, manifestations of Respondent’s
antiunion bias based on the 8(a)(1) violations and the con-
tradictory nature of Respondent’s words and deeds at the
time of the terminations. Accordingly, while the the General
Counsel’s case rests entirely on circumstantial evidence, it is
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Pincus spoke to his employees on November 13 about taking
cost-saving measures, suggesting that he learned of the Company’s
economic reversals on the previous evening, and not on November
16, the date which appeared on the income tax statement.
sufficient to support a prima facie showing that the Respond-
ent discharged the two employees for discriminatory motives.
Ibid.
3. The Respondent’s defense
In order to meet its burden of proving that the employees
were dismissed for bona fide reasons, the Respondent’s
claims that economic exigencies compelled a reduction in the
work force. In answering the complaint, Respondent ex-
plained that Dolic and Jukic were selected for reasons of
economic necessity. In addition, Dolic was targeted because
of his ‘‘incompetent and irresponsible job perform-
ance.’’(G.C. Ehx. l(h).)
Although the date on which the accountant reviewed the
Company’s tax return with Pincus is not free of doubt, I as-
sume that they met on or about November l2.21 It was on
that date that the accountant alerted Pincus that the Company
had sustained a substantial loss in the preceding tax year. I
have no doubt that Pincus recognized the need to cut costs.
However, the evidence does not persuade that this was the
predominant reason for terminating Dolic and Jukic.
Consider first that Pincus testified, and the accountant con-
firmed, that on the night they met, Pincus expressed an intent
to lay off only one person. Further, the Company’s financial
health was not as grave as the income tax statement might
make it appear. On cross-examination, Respondent’s account-
ant conceded that the tax return did not reflect depreciation
which reduced the loss to $25,000. Further, Pincus acknowl-
edged that he was owed a minimum of $10,000 in accounts
receivables and received a tax refund in January 1991. Thus,
instead of the $33,000 loss reflected on the return, the loss
was more in the neighborhood of $15,000. Moreover, while
Pincus had outstanding loans, the largest one was money
borrowed from his mother-in-law in December, after the two
employees were discharged, and apparently, she was not de-
manding immediate repayment. Finally, Respondent pays
rent for its quarters, but the landlord is Pincus’ father.
More compelling evidence emerges from what Pincus said
and did not say to the employees the day after he met with
the accountant. With the Company’s fiscal problem fresh in
mind, he urged the men to adopt a number of cost-saving
measures; yet, did not even hint that a reduction in force
might be necessary. To the contrary, when an employee
asked what impact the Company’s fiscal situation might have
on the work force, he assured them there was plenty of work
and mentioned certain new contracts he had obtained.
Pincus’ commitment to retain all six employees on Novem-
ber 13 is wholly inconsistent with and casts great doubt on
his claim that 3 days later he was compelled to lay off Dolic
and Jukic for lack of work. Moreover, if lack of work was
the true reason for the terminations, why did Pincus refuse
to reply candidly to the employee who asked why the men
were laid off, and instead said cryptically, ‘‘I have my rea-
sons.’’ Pincus’ evasive reply raises rather than resolves ques-
tions about his motives.
Further, on November 14, Pincus mentioned to Dolic that
he was taking steps to obtain disability and pension plans.
The Company could not be on genuinely hard times if Pincus
was contemplating such coverage for its employees. More-
over, it is curious that Pincus would divulge this information
to Dolic if he was on the verge of firing him. By the same
token, Pincus would not have authorized Dolic and Jukic to
return to the Bradford Apartments on the morning of Novem-
ber 16 if he had resolved to dismiss them when they returned
to the shop the previous afternoon. Clearly, Pincus had not
decided to terminate Dolic and Jukic until sometime after
they left work on November 15 and before they arrived at
the plant the following morning. The only intervening event,
of course, was their attendance at the union meeting.
Moreover, the evidence suggests that if there was a short-
age of work, it was short lived. One of the new contracts
which Pincus mentioned at the November 13 meeting began
in early January. Ironically, Pincus told Dolic in August that
he would be assigned to that project. Two other major jobs
commenced in subsequent months and were not completed at
the time of trial. In addition, Respondent had over 100 main-
tenance accounts which it serviced on a monthly or bi-
monthly basis as well as emergency repair work.
It is true that the work force did not expand beyond four
employees following the discharges, a fact the Respondent
relies upon in contending that there was not enough work for
six employees. However, Respondent failed to explain why,
following the discharges, Pincus began a practice of shifting
the employees from one job to another even though cus-
tomers complained about the lack of progress in completing
the work. Although one employee said they had less over-
time in 1991, several others said they sometimes worked at
a hectic pace. Moreover, Respondent conceded in its answer
to the complaint that a position substantially similar to the
one held by Jukic became available in February 1991. Thus,
it appears that Respondent did not experience a serious work
shortage in 1991 as claimed and, at the risk of disappointing
clients, kept the employee complement to four as a litigation
stratagem.
In addition to economic necessity, Respondent also offered
the following reasons for selecting Dolic for layoff: (1) based
on complaints by clients, Pincus concluded that his perform-
ance at the Chestnut Street and Bradford Apartment jobs was
irresponsible; (2) he was the highest paid employee, and (3)
he had been disloyal in the past by quitting for a more lucra-
tive position, as shown below, none of these purported rea-
sons withstand scrutiny.
a. Respondent did not rely on customer complaints
The client letter complaining to Respondent about the fail-
ure of the two employees assigned to the Chestnut Street job
to make greater progress is dated August 7. According to
Dolic’s credited testimony, Pincus never disclosed this letter
to him, reprimand or discipline him for his performance,
refer to it when he told the men they were being laid off for
lack of work, or cite the complaint as a ground for layoff
to the State’s unemployment department. In fact, it was not
until December 19, a month after the charge was filed in this
case, that Respondent first relied upon the August 7 com-
plaint as an additional ground for Dolic’s layoff. Clearly, Re-
spondent’s actions toward Dolic were not influenced by this
complaint until it became convenient to do so.
Further, following receipt of the August 7 complaint, Re-
spondent’s actions toward Dolic show that he continued to
695PINCUS ELEVATOR & ELECTRIC CO.
23 Although the author of the August 7 letter asked Pincus for an
immediate reply, Respondent did not offer any written response into
evidence.
24 Respondent’s failure to send an employee or go himself to the
Bradford Apartments that very evening suggests that he was con-
cerned about paying overtime wages, as Dolic alleged.
place great confidence in him. He permitted Dolic and Jukic
to remain on the Chestnut Street job until its completion in
early November. Significantly, Respondent granted Dolic a
50-cent-an-hour pay increase in September. As Pincus ex-
plained, raises were granted for superior performance. In No-
vember, acting on Dolic’s request, Pincus informed him he
was seeking benefit plans for the employees. It may well be
that Pincus not only failed to chastise or penalize Dolic in
any way following receipt of the August 7 letter, but, in fact,
continued to reward him, because he knew that the employ-
ees were not responsible for delays at the Chestnut Street
site.23 All things considered, it strains credulity to believe
that the August complaint played any role in Respondent’s
decision to discharge Dolic or Jukic.
It is equally clear that any complaint which Pincus re-
ceived about Dolic’s conduct at the Bradford Apartment
played no part in the discharge decision. Pincus professed to
be concerned when Dolic failed to complete the repairs on
November 15, particularly after receiving a call from the
manager there. Yet, he made no effort to correct the problem
immediately, either by insisting that Dolic and Jukic return
to the site, attending to it himself or contacting another em-
ployee who could handle it on an emergency basis.24 The
complaint was registered hours before the layoffs, yet Pincus
did not suggest to the employees that it played any part in
their layoffs. Moreover, in his pretrial statement provided to
the Board’s regional office the month after the discharges,
Pincus referred solely to the August complaint.
b. Dolic’s pay rate
Respondent also claimed that Dolic was selected for layoff
because in the face of its economic slump, it made sense to
dispense with its highest paid employee. However, since
Pincus asserted that payraises were given to reward superior
performance, it follows that he must have perceived Dolic as
his most capable employee. Pincus suggested that Dolic was
less experienced and, thus, less qualified and more dispen-
sable than Leszek Kamel. However, according to Kamel’s
own testimony, Pincus was wrong in stating that he had
greater experience than Dolic. Moreover, Kamel’s English
language skills admittedly were far weaker than Dolic’s.
While Leszek may have been as competent a craftsman as
Dolic, his lack of English speaking proficiency had to impact
his versatility in relating to clients or other workmen on the
job. One might well wonder why the Respondent would
choose to get rid of one of its most capable and senior em-
ployees.
Further, if Pincus actually believed that Dolic’s rate of pay
was more than Respondent could bear, he could have re-
quested him to take a pay cut until business picked up again.
In the final analysis, Pincus could not have been genuinely
influenced by the wage factor for he terminated Jukic who
was earning less than at least one other helper, gave both
employees severance pay, although not required to do so,
and in subsequent months awarded pay raises to the remain-
ing employees.
c. Dolic’s loyalty
Pincus also suggested for the first time at the hearing that
Dolic’s lack of loyalty in quitting his job for a higher paying
one influenced his discharge decision. Obviously, this was a
hyperbolic afterthought. If Pincus was at all swayed by an
employee’s loyalty, he might have remembered that the pre-
ceding August, Dolic had shown both ethical and loyal be-
havior by forgoing a contract on which he discovered his
employer had bid. By adding new grounds for terminating
Dolic at the hearing, Respondent inadvertently supplied fur-
ther proof that none of its justifications were the real reasons
for Dolic’s discharge. Where, as here, an employer offers
shifting rationales for its actions, an inference arises that the
real motive was an impermissible one.
Consistency was not Respondent’s strong suit in present-
ing reasons for either Dolic’s or Jukic’s layoffs. Respondent
supposedly discharged Dolic because he was the highest
wage earner, but Jukic was not the highest paid helper. Re-
spondent claimed that Jukic was laid off because he had the
least seniority, but if Dolic’s original date of employment is
counted, he clearly was the most senior employee. Respond-
ent said Jukic was discharged because as Dolic’s helper, he
would no longer have anyone to work with. Yet, the record
establishes that Jukic also worked occasionally with the other
mechanics and that helpers were interchangeable. Respond-
ent’s resort to shifting and inconsistent grounds to explain its
actions toward Dolic and Jukic gives rise to a soundly based
inference that its real reasons were unlawful.
The foregoing considerations compel the conclusion that
Respondent did not terminate Dolic and Jukic for valid rea-
sons and would not have done so in the absence of their
union and protected concerted activity.
CONCLUSIONS OF LAW
1. Respondent, Pincus Elevator and Electric Co., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 5, International Union of Elevator Constructors,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent violated Section 8(a)(1) of the Act by
impliedly threatening employees with plant closure and dis-
charge in the event they organized.
4. Respondent also violated Section 8(a)(l) by granting a
pay increase to one employee and promising employment
benefits to the entire work force in order to discourage the
employees from supporting the Union.
5. Respondent violated Section 8(a)(1) and (3) of the Act
by discriminatorily discharging Vladimir Dolic and Anton
Jukic for their union and protected concerted activities.
6. The unfair labor practices outlined above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
I shall order it to cease and desist therefrom and to take cer-
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
26 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.’’
tain affirmative action designed to effectuate the policies of
the Act.
Specifically, the Respondent shall be directed to offer em-
ployees Dolic and Jukic immediate and full reinstatement to
their former positions or, if those positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously en-
joyed. Further, the Respondent shall be ordered to make
them whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
The Respondent also shall be instructed to remove from its
files any reference to Dolic’s and Jukic’s unlawful discharges
and notify them that this has been done and that any such
documents will in no way be used against them.
Lastly, the Respondent shall be ordered to post the notice
appended to this decision.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended25
ORDER
The Respondent, Pincus Elevator and Electric Co., Phila-
delphia, Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discriminatorily discharging employees because of
their union and protected concerted activities.
(b) Impliedly threatening employees with plant closure and
discharge if they join a union.
(c) Granting employees wage increases or promising them
employment benefits in order to discourage support for the
Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Vladimir Dolic and Anton Jukic immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner get forth in the rem-
edy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify Dolic and Jukic in writing that this has
been done and that the discharge will not be used against in
any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its in Philadelphia, Pennsylvania facility copies
of the attached notice marked ‘‘Appendix.’’26 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees customarily are posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
of the date of this Order what steps the Respondent has taken
to comply.