Promenade Garage Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1994

314 N.L.R.B. 172 (N.L.R.B. 1994)

172
314 NLRB No. 23
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.
We agree with the Respondent that Local 272’s August 20, 1991
letter demanding recognition did not refer to the after-acquired
clause in its contract. We do not agree, however, that a union which
is party to a collective-bargaining agreement containing an after-ac-
quired facilities clause must, in order to secure its right to recogni-
tion, specifically reference that clause in making a bargaining de-
mand on an employer that is party to the agreement. So long as the
union presents evidence of majority support in the facility in ques-
tion at the time of the demand, it is entitled to recognition. Alpha
Beta Co., 294 NLRB 228, 229 (1989). Hence, we agree with the
judge that a bargaining order is warranted on this basis as well as
on the rationale of NLRB v. Gissel Packing Co., 395 U.S. 575
(1969).
2 In affirming the judge’s conclusion that the Respondent interro-
gated employees in violation of Sec. 8(a)(1), Member Browning
finds it unnecessary to rely on the judge’s citation to Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985).
3 The backpay period shall be from November 8, 1991, the date
of Philippe’s discharge, through May 12, 1993, when Philippe de-
clined the Respondent’s valid offer of reinstatement. Philippe shall
also receive backpay for the 3-day suspension. We note that in the
remedy section of his decision, the judge mistakenly stated that
Philippe was discharged on May 8, 1991.
4 See Human Development Assn., 293 NLRB 1228 (1989), enfd.
937 F.2d 657 (D.C. Cir. 1991), cert. denied 112 S.Ct. 1512 (1992).
MJS Garage Management Corp., d/b/a Promenade
Garage Corp. and Garage Employees Union,
Local 272 International Brotherhood of Team-
sters, AFL–CIO and Local 917, International
Brotherhood of Teamsters, AFL–CIO, Party in
Interest. Case 2–CA–25421
June 30, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On October 18, 1993, Administrative Law Judge
Howard Edelman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed limited exceptions and a sup-
porting brief and a brief in support of the judge’s deci-
sion.
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 and to adopt the recommended Order as
modified and set forth in full below.
AMENDED REMEDY
Having found that the Respondent engaged in cer-
tain unfair labor practices in violation of Section
8(a)(1) of the Act, we shall order it to cease and desist
and to take certain affirmative action to effectuate the
policies of the Act.
Having found that the Respondent has violated Sec-
tion 8(a)(3) and (1) by suspending and discharging em-
ployee Emmanuel Philome Philippe, we shall order the
Respondent to make Philippe whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him.3 Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent shall also be required to expunge from
its files any and all references to the unlawful suspen-
sion, transfer, and discharge, and to notify the
discriminatee in writing that this has been done and
that these actions will not be used against him in any
way. Sterling Sugars, 261 NLRB 472 (1982).
It having been found that the Respondent, in viola-
tion of Section 8(a)(2) and (3) of the Act has rendered
unlawful aid and assistance to Local 917, by recogni-
tion of that Union as exclusive collective-bargaining
agent, and by remitting of union dues deducted from
employees’ pay to that Union, the Respondent will be
required to withdraw such recognition, to cease and
desist from such recognition, and to cease deducting
and remitting dues to Local 917. The Respondent shall
also be ordered to cease giving effect to the collective-
bargaining agreement between Promenade Garage and
Local 917. However, nothing shall authorize or require
the withdrawal or elimination of any wage increase or
other benefits or terms and conditions of employment
that may have been established pursuant to the per-
formance of that agreement. The Respondent shall re-
imburse all present and former employees, who may
have been coerced into membership in Local 917 by
virtue of the union-security clause contained in the col-
lective-bargaining agreement with Local 917, for mon-
eys paid by or withheld from them with interest com-
puted in the manner provided in New Horizons for the
Retarded, supra.4
Although the judge found that the Respondent vio-
lated Section 8(a)(5) by failing to apply and extend the
Local 272 contract to its employees at the Promenade
Garage, the judge failed to provide a make-whole rem-
edy for unit employees. To remedy the 8(a)(5) viola-
tion, the Respondent shall be ordered, inter alia, to rec-
ognize and bargain with Local 272, on request, as the
exclusive representative of all Promenade Garage em-
ployees in the appropriate unit; on request, to apply
and extend Local 272’s 1989–1992 collective-bargain-
ing agreement to the unit employees at Promenade Ga-
rage with retroactive effect from and after August 20,
1991, the date that Local 272 demanded recognition;
and to make unit employees whole for any loss of
173PROMENADE GARAGE CORP.
5 The Respondent shall pay backpay as prescribed in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for the Retarded,
supra.
6 See NLRB v. Windsor Castle Health Care, 13 F.3d 619 (2d Cir.
1994), citing Hickmott Foods, 242 NLRB 1357 (1979).
earnings and other benefits resulting from the Re-
spondent’s failure to apply the terms and conditions of
such collective-bargaining agreement to them, with in-
terest.5
We shall order the Respondent to make whole its
unit employees by making all delinquent fringe benefit
contributions, including any additional amounts due the
Local 272 benefit funds in accordance with
Merryweather Optical Co., 240 NLRB 1213 fn. 7
(1979). In addition, the Respondent shall reimburse
unit employees for any expenses ensuing from its fail-
ure to make the required contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons for the Retarded, supra. In
addition, if the Respondent has failed to deduct union
dues for employees who had executed dues-checkoff
authorizations for Local 272 and to remit them to that
Union, we shall order the Respondent to deduct and
remit union dues as required by the agreement and to
reimburse Local 272 for its failure to do so, with inter-
est as prescribed in New Horizons for the Retarded,
supra.
Because the Respondent’s misconduct is so wide-
spread as to demonstrate a general disregard for em-
ployee rights, we shall also amend the judge’s rec-
ommended Order to include a broad cease-and-desist
provision.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set out in full below and orders that the
Respondent, MJS Garage Management Corp., d/b/a
Promenade Garage Corp., New York, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union sup-
port.
(b) Threatening employees with discharge because
they support a union.
(c) Threatening employees that it would be futile for
them to support a union.
(d) Soliciting and coercing employees to sign dues
checkoff for any particular union, including Local 917,
International Brotherhood of Teamsters, AFL–CIO.
(e) Soliciting and coercing employees to sign docu-
ments which revoke their membership cards to any
particular union, including Garage Employees Union,
Local 272 International Brotherhood of Teamsters,
AFL–CIO.
(f) Suspending, transferring, or discharging employ-
ees because they exercise Section 7 rights.
(g) Recognizing and bargaining with Local 917 as
the exclusive bargaining agent of its employees since
Local 917 did not represent an uncoerced majority of
the Respondent’s employees.
(h) Enforcing and maintaining the Local 917 collec-
tive-bargaining agreement containing a union-security
clause and checkoff provision clause since Local 917
did not represent an uncoerced majority of the Re-
spondent’s employees.
(i) Refusing to recognize and bargain with Local
272 as the exclusive bargaining representative of its
employees employed at the Promenade Garage in the
unit found appropriate as set forth below:
All full-time and regular part-time working man-
agers, washers, floormen, transporters, attendants,
cashiers employed by Respondent at its facility
located at 530 East 75th St., New York, New
York, excluding office clericals, professional em-
ployees, guards, and supervisors as defined by the
Act.
(j) 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 necessary to
effectuate the policies of the Act.
(a) Make Emmanuel Philome Philippe whole for any
loss of earnings and other benefits suffered as a result
of his unlawful suspension and discharge, in the man-
ner set forth in the amended remedy section of this de-
cision.
(b) Remove from its files any reference to the un-
lawful suspension, transfer, and discharge of Emman-
uel Philome Philippe, and notify him in writing that
this has been done and the the suspension, transfer,
and discharge will not be used against him in any way.
(c) Withdraw recognition from Local 917 which
does not represent an uncoerced majority of unit em-
ployees.
(d) Reimburse all present and former unit employees
for moneys paid by or withheld from them pursuant to
the collective-bargaining agreement for initiation fees,
dues, or other obligations of membership in Local 917,
with interest computed in the manner provided in the
amended remedy section of this decision.
(e) Recognize and, on request, bargain with Garage
Employees Union, Local 272 International Brotherhood
of Teamsters, AFL–CIO as the exclusive bargaining
representative of all employees employed at the Re-
spondent’s Promenade Garage in the unit described
above.
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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.’’
(f) On request, apply and extend with retroactive ef-
fect from August 20, 1991, the Local 272 contract to
its employees employed at the Promenade Garage.
(g) Make whole unit employees at the Promenade
Garage for any loss of earnings and other benefits they
may have suffered by reason of the unfair labor prac-
tices engaged in by the Respondent in the manner set
forth in the amended remedy section of this decision.
(h) Make any delinquent benefit fund contributions
and union dues payments to Local 272 as required by
the amended remedy section of this decision.
(i) 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 determine the amounts of money
due under the terms of this Order.
(j) Post at its place of business in New York, New
York, copies of the attached notice marked ‘‘Appen-
dix.’’7 Copies of the notice, on forms provided by the
Regional Director for Region 2, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained 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
altered, defaced, or covered by any other material.
(k) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 interrogate employees about their
union support.
WE WILL NOT threaten employees with discharge be-
cause they support a union.
WE WILL NOT threaten employees that it would be
futile for them to support a union.
WE WILL NOT solicit and coerce employees to sign
dues checkoff for any particular union, including Local
917, International Brotherhood of Teamsters, AFL–
CIO.
WE WILL NOT solicit and coerce employees to sign
documents which revoke their membership cards for
any particular union, including Garage Employees
Union, Local 272 International Brotherhood of Team-
sters, AFL–CIO.
WE WILL NOT suspend, transfer, or discharge em-
ployees because they exercise rights guaranteed by
Section 7 of the Act.
WE WILL NOT recognize and bargain with Local 917
as the exclusive bargaining agent of our employees
since Local 917 did not represent an uncoerced major-
ity of employees.
WE WILL NOT enforce and maintain the Local 917
collective-bargaining agreement containing a union-se-
curity clause and checkoff provision clause since Local
917 did not represent an uncoerced majority of em-
ployees.
WE WILL NOT refuse to recognize and bargain with
Local 272 as the exclusive bargaining representative of
our employees employed at the Promenade Garage in
the unit found appropriate.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL make Emmanuel Philome Philippe whole
for any loss of earnings and other benefits resulting
from his unlawful suspension and discharge less any
net interim earnings, plus interest.
WE WILL remove from our files any reference to the
unlawful suspension, transfer, and discharge of Em-
manuel Philome Philippe and notify Philippe, in writ-
ing, that this has been done and that the suspension,
transfer, and discharge will not be used against him in
any way.
WE WILL withdraw recognition from Local 917
which does not represent an uncoerced majority of unit
employees.
WE WILL reimburse all present and former unit em-
ployees for moneys paid by or withheld from them
pursuant to the collective-bargaining agreement for ini-
tiation fees, dues, or other obligations of membership
in Local 917, with interest.
WE WILL recognize and, on request, bargain with
Garage Employees Union, Local 272 International
Brotherhood of Teamsters, AFL–CIO as the exclusive
bargaining representative of all employees employed at
the Promenade Garage in the unit described below:
All full-time and regular part-time working man-
agers, washers, floormen, transporters, attendants,
cashiers employed by us at our facility located at
530 East 75th St., New York, New York, exclud-
ing office clericals, professional employees,
guards, and supervisors as defined by the Act.
WE WILL, on request, apply and extend with retro-
active effect from August 20, 1991, to our employees
175PROMENADE GARAGE CORP.
1 Manager Herve Gratia, an admitted employee within the meaning
of Sec. 2(3) of the Act was a member of Local 917. However, the
credible evidence set forth below establishes that he was unaware of
any collective-bargaining agreement with Local 917 which covered
the Promenade employees.
employed at the Promenade Garage the Local 272 col-
lective-bargaining agreement.
WE WILL make our employees at the Promenade Ga-
rage whole for any loss of earnings and other benefits
resulting from our unfair labor practices, plus interest.
WE WILL make any delinquent fund contributions
and union dues payments which may be required under
our contract with Local 272.
MJS GARAGE MANAGEMENT CORP.,
D/B/A PROMENADE GARAGE CORP.
Ruth Weinreb, Esq., for the General Counsel.
John Canoni, Esq. (Twonley & Updike), for the Respondent.
Daniel Campbell, Esq., for Local 917.
Bruce Cooper, Esq. (Dublier, Haydon, Straci & Victor), for
Local 272.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on May 12 and 13.
On November 13, 1991, Garage Employees Union, Local
272 International Brotherhood of Teamsters, AFL–CIO (the
Union or Local 272) filed charges against MJS Garage Man-
agement Corp., d/b/a Promenade Garage Corp. (Respondent)
alleging violations of Section 8(a)(1), (3), and (5) of the Act.
On March 25, 1992, Local 272 filed an amended charge al-
leging a violation of Section 8(a)(2) of the Act. On July 21,
1992, a complaint issued alleging that Respondent violated
Section 8(a)(1), (2), (3), and (5) of the Act. The complaint
was amended on May 12, 1993, during the hearing to allege
additional violations of Section 8(a)(1), (2), and (3) of the
Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and briefs filed by counsel for the
General Counsel, counsel for Respondent, and counsel for
Local 917, I make the following
FINDINGS OF FACT
MJS Management Corp. is a New York corporation with
an office and place of business in New York City. MJS
Management leases and operates parking garages in New
York City including Promenade Garage Corp., located at
East 75th St., Manhattan, New York. Respondent admits that
MJS Management Corp. and Promenade Garage Corp. are a
single employer within the meaning of the Act in view of
common ownership, management, and common administra-
tion of labor policy. Annually, MJS Management Corp., and
its various leasing corporations, including Promenade Garage
Corp., during the course and conduct of its business oper-
ations derive gross revenues in excess of $500,000. Annu-
ally, Respondent also purchases and receives at its facilities
goods and materials in excess of $5000. directly from points
outside the State of New York. Respondent admits and I
conclude that it is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Respondent’s Promenade Garage contains approximately
23 parking spaces. Most of its customers are regular monthly
paid customers. Respondent employs approximately five
parking attendants at the Promenade Garage. These attend-
ants park and deliver the automobiles. The manager of the
Promenade Garage oversees the operation of the garage.
Since the garage is open 24 hours a day, the parking attend-
ants work one of three shifts. Mondays through Fridays, the
parking attendants work either an 8 a.m. to 4 p.m. shift, a
4 p.m. to midnight shift, or a midnight to 8 a.m. shift. On
weekends, the parking attendants work either an 8 a.m. to 8
p.m. shift or an 8 p.m. to 8 a.m. shift. The Promenade park-
ing attendants and manager do not work with any of Re-
spondent’s other employees employed in Respondent’s other
garages.
Respondent, at all times material has been, and is pres-
ently an employer-member of Metropolitan Garage Owners
Association (MGOA), an employer which represents various
employers, including Respondent. MGOA and Local 272
were parties to a collective-bargaining agreement effective
from February 6, 1989, until February 5, 1992. This agree-
ment covered a bargaining unit of:
All full-time and regular part-time working managers or
working foremen, washers, floormen, transporters, cash-
iers and other persons now or hereafter performing one
or more of the said included job classifications em-
ployed by the employer-members of the Association.
This agreement also contained an ‘‘after acquired store’’
clause which set forth:
In the event the Employer takes over the operation of
a garage or parking establishment within the geographic
area . . . that is not covered by a union contract, then
the provisions of the contract shall immediately take
full force and effect.
In addition, Respondent has an individual collective-bar-
gaining agreement with Local 917, International Brotherhood
of Teamsters, AFL–CIO (Local 917), which covers seven of
Respondent’s facilities, excluding Respondent’s Promenade
facility. The present agreement is effective from October 1,
1992, through September 30, 1995. There was a prior agree-
ment effective from October 1, 1987, until September 30,
1992. The Local 272 agreement contained a similar ‘‘after
acquired store’’ clause.
A major point of contention in this case is which, if any,
local represents Respondent’s Promenade employees.
Emmanuel Philome Philippe (Philippe). Philippe became
employed by Respondent at the Promenade Garage in 1988
as a parking attendant. He worked the 4 p.m. to midnight
shift. Gary Schneeweiss, the son of Respondent’s president,
Michael Schneeweiss, hired Philippe. At the time Philippe
was hired, no one advised him that the Promenade employ-
ees were represented by a union. Nor did any one give him
a union dues-checkoff card to fill out and sign. On employ-
ment with Promenade, all employees including Philippe were
unaware of any collective-bargaining agreement covering the
terms of employment at the Promenade Garage.1
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After a few months of employment, Philippe left Prome-
nade Garage to move to Boston, Massachusetts. Then in Au-
gust 1990, Philippe returned to Promenade looking for em-
ployment. Philippe spoke to Gratia, the Promenade manager,
and to Gary Schneeweiss (Gary). During this conversation,
Gary asked Gratia under what terms did Philippe leave
Promenade in 1988. Gratia told Gary that Philippe was a
good employee and left on good terms. Gary rehired
Philippe. Again, Philippe worked the 4 p.m. to midnight shift
during the weekdays and on the weekend, he worked 8 a.m.
to 8 p.m.
On his return to Promenade, no one advised Philippe that
the Promenade employees were being represented by a
union. Nor did any one give Philippe a dues-checkoff card.
Indeed, there is no credible evidence to establish that any
Promenade employee was aware that they were covered by
any collective-bargaining agreement.
In early 1991, Local 272 Business Agent Frank Gordon
(Gordon) discovered the Promenade Garage on East 75th
Street. As a Local 272 business agent, Gordon serviced the
Upper East Side of Manhattan parking garages and came
across the Promenade Garage while performing his business
agent responsibilities. Gordon met Gratia at the garage and
asked him if the garage employees were being represented by
Local 272. Gordon also asked Gratia if he had ever seen a
Local 272 business agent. Gratia said, ‘‘no,’’ to both of Gor-
don’s questions.
Thereafter, in late April 1991, Gordon returned to the
Promenade Garage and spoke to Gratia and Philippe. Gordon
asked Gratia and Philippe if the employees were being rep-
resented by a union. Gratia said that the only thing he knew
of a union was his Local 917 card. Gratia then showed Gor-
don a Teamsters union card which stated Local 917 on it.
Gratia also told Gordon that he had never seen a Local 917
business agent and that his boss had given him the card.
Gratia further told Gordon that he was not aware of any
collective-bargaining agreement covering the terms and con-
ditions of employment of the Promenade employees. Gratia
told Gordon that Local 917 has not done anything for him,
because when he had to see a doctor, Local 917 did not re-
imburse him for the visit.
Gordon also asked Gratia and Philippe what type of bene-
fits they received from Respondent. Gratia and Philippe ad-
vised Gordon that they did not receive sick leave, overtime,
or medical coverage.
Gordon then discussed Local 272 representation and the
advantages of being represented by Local 272. Gordon also
gave Gratia and Philippe Local 272 union cards. Gordon told
Gratia and Philippe that if they wanted to be represented by
Local 272, then they should read and sign the cards. Gordon
also told Gratia and Philippe that once they sign the cards,
then Local 272 would be able to write a letter of recognition
to Respondent in order to see if the Respondent would recog-
nize Local 272 as the employees’ collective-bargaining rep-
resentative. Gordon further told Gratia and Philippe that if
Respondent refused to recognize Local 272, then Local 272
could file a petition with the Board. Gordon, however, ad-
vised Gratia and Philippe that in order to file a petition with
the Board, a certain percentage of employees had to sign
cards.
Gratia and Philippe, in Gordon’s presence, read and signed
cards on April 30, 1991. They returned the signed cards to
Gordon that day. Gordon left additional cards with Gratia
and Philippe so that they could give them out to the other
employees.
A couple of days later, Philippe spoke to fellow employees
Mortimor Joseph (Joseph), Francois Philippe, and Nester
Martinez (Martinez) about Local 272. Philippe told Joseph,
Francois Philippe, and Martinez that if they wanted to be
represented by Local 272, then they should read and sign the
Local 272 cards. Francois Philippe read and signed a card in
Philippe’s presence on May 8, 1991.
Philippe read the card to Martinez since he forgot his
glasses that day. Philippe also filled in the blank spaces for
Martinez. Martinez signed the card in Philippe’s presence in
early May 1991. Francois Philippe and Martinez returned
signed cards to Philippe and in early May 1991, Philippe re-
turned Francois Philippe’s and Martinez’ cards to Gordon.
When Gordon met with Philippe and Gratia in late April
1991, Philippe and Gratia advised him that Michael
Schneeweiss (Michael) was the owner of the garage. On
learning who the owner was, Gordon spoke to the then Local
272 Recording Secretary Daniel Sullivan (Sullivan). Gordon
advised Sullivan that Michael was the owner of the Prome-
nade Garage and that Michael was also an employer-member
of the MGOA. Gordon and Sullivan then concluded that pur-
suant to ‘‘after acquired store’’ clause in their MGOA agree-
ment, of which Respondent was a member, the Promenade
facility would be covered on a showing of majority represen-
tation.
Gordon testified that a letter was then prepared advising
Respondent that Local 272 represented a majority of his em-
ployees at the Promenade facility and that pursuant to the
‘‘after acquired store’’ clause in the MGOA agreement the
Promenade employees were covered by such agreement. Ac-
cording to Gordon, demand letters are always sent out by
registered mail. Gordon did not see the letter mailed. Local
272 submitted no post office receipt of delivery. Respondent
denied receipt of such letter.
Notwithstanding, General Counsel’s contention that a pre-
sumption of receipt is applicable. I conclude such presump-
tion is not applicable in this case in view of Respondent’s
denial of receipt, Local 272’s failure to produce a receipt of
delivery, and in view of Respondent’s actions and conduct
following his receipt of a subsequent similar demand letter
dated August 20, 1991, admittedly received by Respondent.
Sometime on or about the beginning of August 1991, dur-
ing a telephone conversation between Gordon and Gary, Gor-
don must have brought up the subject that he had signed up
Respondent’s Promenade employees, because Gary accused
Gordon of coercing Respondent’s employees into signing
Local 272 cards. Gary also stated that he could choose any
union he wants to represent his employees. Gordon told Gary
that he intended to continue with his organizational cam-
paign.
After being accused of coercing Respondent’s employees,
Gordon went back to the Promenade Garage in mid-August
1991 to make sure the employees wanted to be represented
by Local 272. Gordon told the employees that he was having
problems with Respondent and that Gary had accused him of
forcing the employees to sign cards. Gordon also told the
employees that if they really wanted to be represented by
Local 272, then they should read and sign another Local 272
card.
177PROMENADE GARAGE CORP.
2 Michael Schneeweiss testified during the trial. He did not deny
this conversation.
3 Gratia testified that McKay gave the letter to the employees at
the meeting and made them sign it. However, McKay testified he
was in the hospital when the letters were distributed. McKay testi-
fied that he had these letters prepared because the employees ex-
pressed an interest in withdrawing their support from Local 272.
Philippe testified that he never told McKay that he wanted to with-
draw his support from Local 272. In addition, Gratia and Joseph did
not testify that they told McKay that they wanted to withdraw their
support from Local 272.
Philippe also spoke to some employees about signing an-
other Local 272 card. Philippe spoke to Martinez, Francois
Philippe, and to Joseph. Philippe told these employees that
if they still wanted to be represented by Local 272, then they
should read and sign another Local 272 card.
On August 27, 1991, Philippe and Francois Philippe read
and signed another Local 272 card. Francois Philippe signed
his card in Philippe’s presence. On August 28, 1991, Gratia
and Martinez read and signed another Local 272 card. Gratia
signed his card in Gordon’s presence and Martinez signed his
Local 272 card in Philippe’s presence. Thereafter, on August
30, l991, Joseph, in Gordon’s presence, read and signed an-
other Local 272 card. Gratia and Joseph gave their cards to
Gordon when they signed them in his presence. Philippe
gave Gordon the other signed cards in early September l991.
On August 20, 1991, Sullivan wrote another letter to Re-
spondent requesting that Respondent recognize Local 272 as
the exclusive representative of the Promenade employees. In
this letter, Sullivan also advised Respondent that Local 272
represented a majority of the employees. On September 10,
1991, Respondent, through its attorney, rejected Local 272’s
demand for recognition.
On September 9, 1991, Michael held a meeting with the
employees of Promenade and Local 917 Representative
Langston McKay (McKay). However, just prior to this meet-
ing, Michael initiated a conversation with Philippe and Gratia
at the Promenade Garage. Michael asked Philippe and Gratia
if they signed a Local 272 card. Philippe and Gratia said,
‘‘no.’’ Then Michael told Philippe and Gratia that he swore
on his mother’s grave that if they told him the truth, no one
would be fired. Philippe and Gratia told Michael that they
signed Local 272 cards. Michael then called Philippe a
‘‘troublemaker’’ and a ‘‘liar’’ because he first said that he
hadn’t signed a Local 272 card. Philippe told Michael that
he denied signing a Local 272 card because he was afraid
of losing his job. Michael then said, ‘‘time will tell.’’2
During the September 9 meeting with McKay, Michael
told the employees, Gratia, Joseph, Francois Philippe, and
Philippe, that Local 917 would give them the same benefits
that they would have received from Local 272. Michael also
gave out Local 917 union dues-checkoff authorization cards
to the employees for them to sign. Francois Philippe, Gratia,
and Joseph signed the Local 917 union dues-checkoff cards.
In addition, Michael handed out typed letters to the em-
ployees and told them to sign them.3 These letters stated that
the employees wanted to withdraw their authorization cards
from Local 272 because they did not want Local 272 as their
bargaining representative. Only Joseph, Gratia, and Martinez
signed the letter. These letters were eventually sent to Gor-
don. Prior to this meeting, Philippe had never seen a Local
917 representative. Michael never denied handing out such
letters.
Immediately after this meeting, Michael approached
Philippe and asked him why he would not sign the letter.
Michael also told Philippe that Local 917 is like his own
union, and that he could give the employees the same bene-
fits given by Local 272 because he is wise. Michael also told
Philippe that he always beats the system. Michael did not
rebut this testimony.
The day after this meeting with McKay and Michael,
Philippe received a copy of the Local 917 1989–1992 collec-
tive-bargaining agreement. Prior to this day, Philippe had
never seen the Local 917 contract.
A week or so later, Philippe spoke to Michael on the tele-
phone. Michael asked Philippe if he was satisfied with the
Local 917 representation. Philippe told Michael that he was
not satisfied with Local 917 because Local 917 provided less
medical coverage than Local 272. Philippe told Michael that
under the Local 917 contract, he only received approximately
12 percent of the cost of a doctor’s visit. However, under the
Local 272 contract, he would have received 80 percent. Mi-
chael told Philippe that he sounded ‘‘sour’’ and hung up the
phone. Michael never contradicted this testimony.
Within days following the above telephone conversation,
Respondent suspended Philippe because he clocked out of
work early. Philippe was scheduled to work a 12-hour day
and after feeling sick decided to clock out early. Martinez
was working with Philippe that day and remained at the ga-
rage. Gratia told Philippe that Michael was suspending him
for 1 week because he had clocked out early that day.
On November 4, 1991, another meeting was held with
Local 917 Representative McKay and Respondent’s employ-
ees. Philippe did not attend this meeting because he did not
have a babysitter for his child. Thereafter, on November 5,
1991, Philippe spoke to Gratia. Gratia told Philippe that Mi-
chael wanted to fire him, but that Gratia told him that
Philippe had not done anything wrong. Gratia also told
Philippe that Michael wanted to talk to Philippe because he
was going to transfer Philippe to another garage.
Later that day, Philippe met with Michael to discuss his
transfer. Michael told Philippe that he should resign. Philippe
told Michael that he could not resign because he had too
many responsibilities and he liked his job. Michael then told
Philippe that he was a leader and that he was always late.
Philippe asked Michael to look at his timecards because he
was not late. Michael told Philippe that the timeclock did not
work properly. Philippe then stated that if the timeclock was
broken, then everyone would be late. Michael then told
Philippe that he was going to be transferred to a new garage
because he (Michael) did not like his work ‘‘attitude.’’
Philippe called Michael’s office and was told by the sec-
retary to report to the Waterview Garage on East End Ave-
nue. Respondent also reduced Philippe’s hours from 40 hours
a week to 38 hours a week.
At the Waterview Garage, Philippe did not receive any in-
structions on how to record transactions. Caesar Silver, the
manager, only told Philippe how to park the cars. Philippe,
however, recorded the transactions on paper and put the
paper and the money in an envelope. Then at the end of his
shift, Philippe placed the envelope in a drawer. Philippe
credibly testified that he did not rip up any tickets, stubs, or
transaction sheets.
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The findings of facts were based primarily on the credible testi-
mony of Philippe, Gordon, and Gratia only when he testified against
Respondent’s interest.
Additionally, significant testimony was not denied or rebutted by
Michael Schneeweiss. I conclude that Gratia is a totally incredible
witness. Gratia, throughout his entire testimony was visibly hostile
toward Philippe. You could see it in his fact (sic). Several times dur-
ing his testimony he actually looked at Philippe in a clearly angry
manner. In addition his voice displayed obvious anger, especially
when he described Philippe’s alleged poor job performance. More-
over, much of Gratia’s testimony is virtually unbelievable. He testi-
fied initially that Philippe on a daily basis, throughout both periods
of his employ, parked cars on the curb illegally, where they were
frequently ticketed by the New York City police, that he was always
late, and always left early. When pressed on how he could have rec-
ommended rehiring Philippe, he then contradicted his prior testimony
and testified that Philippe’s employment during his initial period was
satisfactory. When later confronted with this inconsistent testimony,
he testified that he told Respondent that Philippe was a good em-
ployee, even though he was not, so that Philippe could get the job,
because at that time they were friends. Gratia although admittedly
not a supervisor within the meaning of the Act, was the manager
of the Promenade facility and his duties clearly included reporting
such conduct to Respondent if it occurred. Yet he did not. Addition-
ally, Gratia who was admittedly not a supervisor within the meaning
of the Act, testified that he made the decision to suspend Philippe.
Such testimony was contradicted by Michael who testified that it
was he, Michael, who made the decision to suspend Philippe. I find
Gratia’s entire testimony incredible except where he testified as to
conduct against Respondent’s interest.
Mortimor Joseph, a Respondent witness, testified that he made
many complaints to Gratia about Philippe’s poor work. He testified
as to one incident which took place about 3 months before
Philippe’s suspension wherein he and Philippe had a confrontation
and Philippe chased him around the garage lot with a baseball bat.
He told Gratia and Gary Schneeweiss about such incident, yet no ac-
tion was taken against Philippe by Respondent. I find such testimony
simply unbelievable. Moreover, I was unimpressed with his de-
meanor. His recollection of facts was generally vague and I conclude
that he is not a credible witness.
Michael Schneeweiss is also not a credible witness. A review of
his entire testimony establishes that his recollection of the facts was
generally poor. Moreover, he failed to rebut or contradict other testi-
mony adverse to his interest as indicated throughout this decision.
Philippe, on the other hand, was a generally credible witness. He
displayed a good recollection of the facts. He was responsive to
questions put to him on both direct and cross-examination. I was
generally impressed with his demeanor. Moreover, much of his testi-
mony was neither rebutted nor contradicted by Respondent.
5 Dues were deducted from Gratia’s pay since at least November
1990.
Philippe worked at the Waterview Garage for 1 day. When
he returned to work on the second day, November 8, 1991,
Michael, by telephone, advised him that he was being dis-
charged. Philippe credibly testified that he asked Michael
why he was being discharged and that Michael would not
give him any reasons for his discharge. Philippe then asked
for a termination letter. Michael told Philippe to pick up a
termination letter from the manager of another Respondent
garage. Michael did not deliver the termination letter to
Philippe.
Philippe credibly testified that Michael did not tell him
that he failed to perform his work properly at the Waterview
Garage, or that his overall job performance was poor.
During his employment with Respondent, Philippe never
received any written warnings about lateness. Prior to being
discharge, Respondent never complained about Philippe’s
work performance. In addition, Respondent never told
Philippe that customers were complaining about his work
performance.4
Analysis and Conclusions
At trial, and in its brief, Respondent contended that the
Promenade employees were part of a multilocation unit cov-
ered by the Local 917 collective-bargaining agreement and
therefore could not be deemed a separate unit for the pur-
poses of collective bargaining. Yet, in its answer, Respondent
admitted the single plant unit alleged. General Counsel con-
tends that the Promenade employees were not part of a
multilocation unit and constitute a unit appropriate for collec-
tive bargaining.
It is basic Board law that a single plant unit is presump-
tively appropriate in the absence of a controlling history of
collective bargaining. United Artists Communications, 280
NLRB 1056 (1986), citing Penn Color, 249 NLRB 1117
(1980). In this case, Respondent failed to show that Prome-
nade was part of a multilocation unit. As set forth above, Re-
spondent in its answer admitted that the Promenade employ-
ees, alone, constituted a unit appropriate for the purposes of
collective bargaining.
In addition, the evidence shows that Respondent’s Prome-
nade employees were not covered by the Local 917 contract.
The employees clearly did not receive any benefits under the
Local 917 contract. Philippe credibly testified that prior to
September 1991, he had no knowledge of any collective-bar-
gaining agreement covering the terms and conditions of em-
ployment at the Promenade Garage. Philippe credibly testi-
fied that the Promenade employees did not receive sick
leave, overtime, or medical coverage. Nor were dues being
deducted from the employees’ paychecks.5 Moreover, Re-
spondent failed to contribute to the Local 17 pension and
health funds.
Moreover, the evidence shows that the Promenade employ-
ees and Respondent’s other garage employees received dif-
ferent terms and conditions of employment. John Burke, a
former president for Local 917, testified that in September
1991, Michael wanted to give only the Promenade employees
a wage increase. Thus, to this significant extent, Respondent
clearly treated the Promenade employees differently and sep-
arately from the other employees employed in other Re-
spondent garages.
Further the evidence establishes no employee interchange,
the absence of any shared bargaining history, and the dif-
ferent terms and conditions of employment.
On the basis of the above, it is clear that the Promenade
employees had no knowledge of the Local 917 contract, they
did not receive the contract benefits, nor did Respondent
contribute to the required Local 917 funds. Rather Respond-
ent in granting a wage increase to the Promenade employees
without granting a similar wage increase to the other units
under the Local 917 contract treated the Promenade employ-
ees as a separate facility. There is also no interchange or
shared bargaining history. Accordingly, I conclude the single
plant unit alleged by General Counsel is a single plant unit,
and an appropriate unit for bargaining. Such unit consists of:
All full-time and regular part-time Working Managers,
Washers, Floormen, Transporters, Attendants, Cashiers,
179PROMENADE GARAGE CORP.
employed by Respondent at its facility located at 530
East 75th Street, New York, N.Y., excluding office
clericals professional employees, guards and supervisors
as defined by the Act.
These employees clearly worked only at the Promenade
garage and shared a strong community of interest.
The evidence establishes that in early September 1991, just
before the Local 917 meeting began, Michael initiated a con-
versation with Philippe, Gratia was also present. During this
conversation, Michael asked Philippe and Gratia if they
signed authorization cards with Local 272. Initially Philippe
and Gratia gave a negative response because they were afraid
of losing their jobs. When Michael assured them that they
wouldn’t lose their jobs, Philippe and Gratia told Michael
that they did sign Local 272 cards.
General Counsel contends that Michael’s question con-
stitutes an interrogation in violation of Section 8(a)(1) of the
Act. I conclude such contention has merit. It is well settled
that in the totality of the circumstances of a case, the ques-
tioning of an unknown union adherent about his union senti-
ment constitutes an unlawful interrogation. Action Auto
Stores, 298 NLRB 875, 895 (1990); Sunnyvale Medical Clin-
ic, 277 NLRB 1217 (1985).
In the instant case, Philippe was an unknown Local 272
adherent before Michael questioned him about Local 272.
Michael may have known that some of the ‘‘men’’ signed
Local 272 cards, but there is no evidence that he knew about
Philippe’s Local 272 activities. In addition, Michael’s ques-
tion concerning Philippe’s union sentiment was not isolated,
casual, or conducted in a context free of union hostility or
other serious unfair labor practices. Rather, it was asked at
the same time Michael threatened Philippe with discharge
because of his support for Local 272.
Thus, from the totality of the circumstances, the evidence
establishes that Michael’s question was intended to determine
the extent of Local 272 support as well as to restrain, coerce,
and interfere with employees. Accordingly, I conclude that
Respondent interrogated Philippe in violation of Section
8(a)(1) of the Act. Thore, Inc., 296 NLRB 859 (1989), Gupta
Permold Corp., 289 NLRB 1234 (1988).
During the same conversation discussed above, Michael
called Philippe a ‘‘troublemaker’’ and a ‘‘liar.’’ Philippe then
told Michael that he initially hid the truth about signing a
Local 272 card because he was afraid of being fired. Michael
then told Philippe, ‘‘time will tell.’’
Michael’s complaint that Philippe was a ‘‘troublemaker’’
is evidence that Michael had strong animus toward Philippe
because of his support for Local 272. Knoxville Distribution
Co., 298 NLRB 688 (1990). Therefore, in light of this evi-
dence of animus, Michael’s statement, ‘‘time will tell,’’ was
clearly coercive and constitutes an implied threat to dis-
charge Philippe in violation of Section 8(a)(1) of the Act.
Honeycomb Plastics Corp., 288 NLRB 413 (1988), citing
Midland-Ross Corp., 239 NLRB 323 (1978), enfd. 617 F.2d
977 (3d Cir. 1980).
The evidence also establishes on September 9, 1991, after
the meeting with Local 917 Representative McKay, Michael
asked Philippe why he didn’t sign the letter concerning the
revocation of his Local 272 card. Michael told Philippe that
Local 917 was like his own union, that he was wise and that
he always beats the system.
General Counsel contends that Michael’s statement was in-
tended to convey to Philippe that his efforts to obtain union
representation from Local 272 were futile because Respond-
ent dealt only with his own union, Local 917. In view of Re-
spondent’s threat of discharge and interrogation, as discussed
above, Michael’s statement that Local 917 was like his own
union and that he always beats the system is a statement
clearly designed to chill Philippe’s right to exercise his Sec-
tion 7 rights. Accordingly, I conclude such statement was in
violation of Section 8(a)(1) of the Act. Money Radio, 297
NLRB 698, 702 (1990).
In determining whether Respondent violated Section
8(a)(1) and (3) of the Act by suspending, transferring, and
discharging Philippe, General Counsel has the burden of
proving that Philippe’s union activities were a motivating
factor in his suspension, transfer, and discharge. Once such
factors are established, the burden shifts to Respondent to es-
tablish the same actions would have taken place in the ab-
sence of such union activity.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v.
Transportation Management Corp., 462 U.S. 393, 398
(1983).
The evidence clearly establishes that Philippe was an ac-
tive Local 272 adherent. In April 1991 he spoke to Local
272 Business Agent Gordon about Local 272 and signed a
Local 272 authorization card. Thereafter, Philippe spoke to
his fellow employees about Local 272 and solicited their
support. As a result of Philippe’s organizing efforts the other
employees signed Local 272 cards.
Philippe’s organizing efforts continued in August 1991
when Gordon requested that the employees sign another
Local 272 authorization card. Philippe signed the card and
solicited Local 272 support from the other parking attendants
employed at Promenade Garage. By the end of August 1991,
Philippe obtained signed cards from Francois Philippe and
Nestor Martinez.
The evidence clearly establishes that Respondent had di-
rect knowledge of Philippe’s support for and activities on be-
half of Local 272 at the time it decided to suspend, transfer,
and discharge him. Pursuant to the unlawful interrogation,
described above, Philippe told Michael that he signed a
Local 272 card. In addition, Philippe’s refusal to sign the
September 1991 letter that revoked his Local 272 authoriza-
tion card is further evidence that Respondent had knowledge
of his support for Local 272. After the meeting, Michael
asked him why he didn’t sign the letter. Based on the above
evidence, I find that Respondent had certain knowledge of
Philippe’s support of Local 272 before it decided to suspend
Philippe in mid-September 1991, transfer him in early No-
vember 1991, and discharge Philippe on November 8, 1991.
The evidence, in this case clearly established a prima facie
case that Respondents’ motivation for suspending, transfer-
ring, and discharging Philippe was his support for and activi-
ties on behalf of Local 272. There is no doubt that Respond-
ent had strong animus toward Philippe because he supported
Local 272. The evidence of unlawful interrogation and threat
of discharge, described above, clearly establishes this. Bay
Metal Cabinets, 302 NLRB 152 (1991); Knoxville Distribu-
tion Co., 298 NLRB 688 (1990).
Moreover, Michael testified that he transferred Philippe
because he (Michael) didn’t like Philippe’s ‘‘work attitude.’’
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board has long held that an employer’s complaint about
an employee’s ‘‘attitude’’ was an euphemism for a prounion
attitude. Marion Steel Co., 278 NLRB 897, 899 (1986); Del
Rey Tortilleria, 272 NLRB 1106 fn. 21 (1984). Given the
8(a)(1) conduct, described above, I conclude that Respond-
ent’s use of the word ‘‘attitude’’ was an euphemism for a
Local 272 adherent and further evidence that Respondent
clearly disliked Philippe and disciplined Philippe because he
supported and engaged in activities on behalf of Local 272.
The timing of Philippe’s suspension, transfer, and dis-
charge is also strong evidence in support of Respondent’s
discriminatory motivation. Thus, within days following the
unlawful interrogation and threat of discharge, Respondent
suddenly suspended Philippe. Such timing is suspicious and
is evidence of a discriminatory motivation.
The evidence also established that after his suspension,
Philippe had a conversation with Michael about Local 917.
Wherein Michael asked him if he was satisfied with Local
917. Philippe told Michael that he was not satisfied with
Local 917 because the medical benefits were not as good as
Local 272’s benefits. Michael then told Philippe that he
sounded ‘‘sour.’’ Immediately after this conversation with
Michael, Respondent transferred Philippe to the Westview
Garage. After working at the Westview Garage for 1 day,
Respondent discharged Philippe.
Thus, I conclude that in view of Respondent’s knowledge
of Philippe’s union activity, its unlawful 8(a)(1) activity,
which included a threat of discharge, and the suspicious tim-
ing of the suspension, transfer, and discharge, the General
Counsel has established a strong prima facie case of dis-
criminatory motivation. The burden now shifts to Respondent
to establish the suspension, transfer, and discharge would
have taken place in the absence of such union activity.
Respondent contends that he suspended Philippe in mid-
September 1991 because he clocked out early because he felt
ill. Philippe credibly testified without contradiction that sev-
eral weeks after his suspension, fellow employee Nestor
Martinez clocked out early under similar circumstances and
received no discipline. Thus, I conclude that Respondent
clearly seized on this incident to suspend Philippe because of
his support for Local 272. The unrebutted evidence shows
disparate treatment. Pope Concrete Products, 305 NLRB 989
(1991).
Respondent also contended that Philippe was suspended
because he was always late, was uncooperative, and did not
perform his job properly. Yet Gratia who I have concluded
testified incredibly as to such conduct, never reported it to
Respondent. Thus I find that Respondent failed to offer cred-
ible testimony to support such contention. Moreover, even if
Gratia’s testimony were credited, I would conclude such con-
duct was long condoned until Philippe engaged in union ac-
tivity and Respondent acquired knowledge of such activity.
Respondent also contended that a reason for Philippe’s
suspension was the alleged baseball bat incident between
Philippe and employee Joseph, wherein Joseph testified that
Philippe threatened to hit him with a baseball bat and that
he reported this incident to Gary and Gratia. In view of my
credibility resolutions I conclude such incident never hap-
pened and was never reported to Respondent. However, even
if these events took place as Respondent’s witnesses testified,
Philippe was suspended 3 months following the alleged inci-
dent. Such delay in discipline clearly rebuts Respondent’s
contention that it was the baseball bat incident that contrib-
uted to Philippe’s suspension. If such action had taken place
and had it been reported to Respondent, immediate discipline
would be reasonably expected.
Thus, I conclude that Respondent has failed to meet its
Wright Line burden and accordingly conclude that by sus-
pending Philippe for 1 week, Respondent violated Section
8(a)(1) and (3) of the Act.
On November 5, 1991, Philippe was transferred from the
Promenade facility to Respondent’s Westview facility. Short-
ly before his transfer he had a conversation with Michael
over the telephone where Michael asked Philippe about his
feelings toward Local 917 and if he was satisfied with Local
917 when Philippe told him that he was not satisfied with
Local 917 because the medical coverage was not as good as
the Local 272 coverage, Michael told Philippe that he sound-
ed ‘‘sour.’’
On or about November 5, Philippe had a face-to-face con-
versation with Michael, Michael initially asked Philippe to
resign. When Philippe refused to resign, Michael then trans-
ferred him to the Westview Garage. During this conversa-
tion, Michael called Philippe a ‘‘leader’’ and accused him of
always being late. Philippe denied that he was always late
and insisted that Michael examine the timecards. Michael
then said that the timeclock was broken. Philippe then told
Michael that if the timeclock was broken, then everyone
would be late.
At the trial, Michael testified that Philippe was transferred
because Philippe was ‘‘not working out at the garage,’’ and
because ‘‘the other men didn’t want to work with [him].’’
Michael also testified that he transferred Philippe because he
didn’t like Philippe’s ‘‘work attitude.’’
I conclude that Respondent’s reasons for Philippe’s trans-
fer were pretextual. The transfer followed Respondent’s un-
lawful activity described above, which included a threat to
discharge and a discriminatory suspension. Further the trans-
fer took place shortly after Michael accused Philippe of
being ‘‘sour’’ about Local 917 representation, and imme-
diately after Michael complained to Philippe about his
‘‘work attitude.’’ Such comments as turning ‘‘sour’’ or com-
plaints about ‘‘work attitude’’ are common euphemisms for
a union adherent. Marion Steel, supra; Del Rey Tortilleria,
supra. Under these circumstances, I conclude Respondent’s
reasons for Philippe’s transfer were pretextual and conclude
that Respondent has failed to meet its Wright Line burden.
Accordingly, I conclude that by transferring Philippe, Re-
spondent violated Section 8(a)(1) and (3) of the Act.
Respondent discharged Philippe on November 8, 1991, 1
day after his transfer. Philippe credibly testified that at the
time he was discharged Respondent did not give a reason for
the discharge. Rather, by telephone, Michael merely advised
Philippe that he no longer worked for Respondent. When
Philippe asked Michael why he was discharged, Michael just
told him that the garage was his place and if Philippe didn’t
leave right away, he would call the police.
Pursuant to Philippe’s request, Michael did prepare a dis-
missal letter. In this letter, Michael stated that Philippe was
discharged because of the ‘‘continuing problems with
[Philippe’s] work.’’ Michael further stated that Philippe’s
work problems included lateness, and his inability to perform
his job at the Westview Garage.
181PROMENADE GARAGE CORP.
6 Although Michael testified that he did advise Philippe of the rea-
sons for his discharge, at the time he was discharged, I have con-
cluded he is not a credible witness and accordingly his testimony as
to this issue is not credited.
7 Gratis testified that Local 917 Representative McKay handed out
these letters. However, McKay denied this and testified that he was
in the hospital when the above letters were handed out. This is an
additional reason for concluding that Gratia was not a credible wit-
ness. 8 It appears only Gratia was a Local 917 member at this time.
I conclude that the reasons advanced by Respondent in its
dismissal letter are pretextual. Respondent’s initial failure to
inform Philippe of the reasons for his discharge at the time
of his discharge is evidence that Respondent’s reasons are
suspect. Troxel Co., 305 NLRB 536 (1991).6
In addition, Respondent’s failure to advise Philippe that he
had a behavioral problem prior to his discharge is evidence
that Respondent’s reasons are post ad hoc rationalizations for
its real and unlawful motives. Bay Metal Cabinets, supra, cit-
ing Prototype Plastics, 284 NLRB 711 (1987); Selox, Inc.,
222 NLRB 497 (1976).
As set forth above, Philippe credibly testified that he did
not have a lateness problem while employed with Respond-
ent. This was not contradicted by any credible evidence. He
never received a written warning for such alleged problem.
In fact, Respondent never produced any written warnings or
any timecards at trial which would establish such alleged
lateness. Philippe also credibly testified that he was never ad-
vised that he was uncooperative or failed to perform his job
properly.
Respondent’s failure to produce evidence of some discipli-
nary action taken against Philippe prior to his protected ac-
tivities adds credibility to Philippe’s credible testimony. An
employer would usually take some action against an em-
ployee, even a written warning or an internal memo, given
the conduct alleged by Respondent to have been committed
by Philippe. In addition, Respondent’s failure to produce
timecards shows that Philippe really didn’t have a lateness
problem. Thus, failure to produce such evidence shows that
Respondent really didn’t have a problem with Philippe and
never discussed any work performance problem with him.
Accordingly, I conclude that Respondent has utterly failed
to meet its Wright Line burden and further conclude by its
suspension, transfer, and discharge, Respondent engaged in
desperate acts in violation of Section 8(a)(1) and (3) of the
Act.
An employer violates the Act by soliciting employees to
revoke any union authorization cards they may have signed.
Aircraft Hydro-Forming, Inc., 221 NLRB 581, 583 (1975).
The credible evidence established that Michael solicited
Respondent’s employees to sign letters which revoked their
Local 272 authorization cards, which had been signed volun-
tarily and were valid cards.
During the early September 1991 meeting, called by Re-
spondent, Michael handed out and told the employees to sign
petitions which stated that the employees wanted to withdraw
their Local 272 authorization cards. These petitions were al-
ready typed and addressed to Local 272. As set forth above
Michael never denied that he handed the petitions out to the
employees.7
McKay testified that the employees, at the early September
1991 meeting, expressed their dissatisfaction with Local 272
and an interest in withdrawing their Local 272 cards. McKay
further testified that on the employees’ request, he explained
how they could withdraw their Local 272 cards, and agreed
to have the Local 917 secretary type the revocation letter for
the employees. However, Gratia and Joseph, who testified on
behalf of Respondent never corroborated McKay’s testimony.
Accordingly, I do not credit McKay’s testimony on this
issue.
Accordingly, I conclude that Respondent unlawfully as-
sisted Local 917 in violation of Section 8(a)(1) and (2) of
the Act. Rose Printing Co., 289 NLRB 252, 270–271 (1988);
Cummins Component Plant, 259 NLRB 456 (1981); Aircraft
Hydro-Forming, Inc., supra.
It is undisputed that Respondent distributed Local 917
dues-checkoff cards to its employees at the September 9,
1991 meeting. Michael handed the Local 917 dues-checkoff
cards to the employees and had them sign the cards. Re-
spondent never denied this conduct. Respondent also engaged
in this conduct at a time when it committed other unfair
labor practices and at a time when Local 917 did not rep-
resent an uncoerced majority in an appropriate unit. Accord-
ingly, I conclude that Respondent’s conduct constitutes an
unlawful solicitation in violation of Section 8(a)(1) and (2)
of the Act. Shenandoah Coal Co., 305 NLRB 1071 (1992);
Jayar Metal Corp., 297 NLRB 603, 608 (1990); Capitol
Transit, 289 NLRB 777 (1988).
Although Respondent presented evidence to suggest that it
entered into a collective-bargaining agreement with Local
917 in December 1990, the evidence clearly establishes that
Local 917 did not represent an uncoerced majority of Re-
spondent’s at its facility in issue, employees at this time. As
set forth and discussed above, I have concluded that a
multiplant unit, including the Promenade Garage, is not an
appropriate unit given the nature of Respondent’s overall
parking garage operation. I also concluded that a single plant
unit was the appropriate unit at Respondent’s Promenade Ga-
rage facility. In this unit, Respondent and Local 917 failed
to produce any evidence that Local 917 represented a major-
ity of the employees in December 1990, or at any other time
thereafter. In this connection, Respondent failed to produce
dues-checkoff cards from that period and Local 917 failed to
produce union authorization cards.8
It is clear that all the employees, including Gratia were
never advised nor aware that Local 917 represented the em-
ployees. Nor did Respondent give a Local 917 dues-checkoff
card to any of its employees until after it became aware of
Local 272’s organizational activity. Further, none of the
terms of the alleged contract were enforced until Respondent
became aware of Local 272’s organizational activity.
Thus, I conclude that Respondent violated Section 8(a)(1)
and (2) of the Act by recognizing Local 917, when Local
917 did not represent a majority of Respondent’s employees.
Jayar Metal Corp., supra; Gold Standard Enterprises, 249
NLRB 356 (1980); Bell Energy Management Corp., 291
NLRB 168, 179 (1988).
Under current Board law, it is unlawful for an employer
to suddenly enforce the terms of a contract after it had been
dormant almost from its inception in order to thwart the ef-
forts of the employees to seek representation from another
union. United Artists Communications, 280, NLRB 1056,
1065 (1986); Metropolitan Alloys Corp., 233 NLRB 966
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 A review of Respondent’s payroll record for the months of April,
May, and June 1991 reveal the following. The payroll list contained
five names: Philome Philippe, Nestor Martinez, Mortimor Joseph,
Jean H. Gratia (Herve), and Francois Philippe (an employee by the
name of Bobby Williams only worked the first 2 weeks of April,
and Gary clearly is not an employee as defined by the Act). A re-
view of the Local 272 cards signed in late April and early May 1991
reveal the following. The Local 272 cards were signed and returned
to Local 272 by four of the five employees listed on Respondent’s
payroll list. Philome Philippe, Nestor Martinez, Jean Gratia, and
Francois Philippe read, signed, and returned Local 272 cards by
early May 1991. Thus, a majority of Respondent’s employees signed
Local 272 authorization cards by early May 1991. Local 272 contin-
ued to represent a majority of Respondent’s employees as of August
1991. In this regard Respondent’s payroll list in August 1991 con-
tains five (5) employees. The names of these employees are
Philippe, Francois Philippe, Joseph Gratia, and Martinez. The evi-
dence further shows that these five employees signed Local 272
cards in late August 1991.
In addition, Respondent failed to show that these cards were taint-
ed or that the employees were coerced into signing the cards. Thus,
Local 272 clearly represented a valid majority.
(1977), enfd. 624 F.2d 743 (6th Cir. 1980). As set forth
above, in early September 1991, Respondent suddenly de-
cided to enforce the Local 917 contract in order to discour-
age employees from engaging in protected activities and in
order to thwart Local 272’s organizing campaign.
The evidence clearly shows that Respondent by early Sep-
tember 1991 learned about Local 272’s organizing campaign
and of Local 272’s majority status.
Additionally, I conclude that Respondent’s rush to enforce
a dormant Local 917 contract in September 1991 and its ea-
gerness to make retroactive, Local 917’s contractual pay-
ments were done in order to thwart Local 272’s organizing
efforts and to prevent its employees from engaging in pro-
tected activity. Such conduct is clearly unlawful and violative
of Section 8(a)(1) and (2). Metropolitan Alloys Corp., supra;
United Artists Communications, supra.
As discussed above, Respondent unlawfully recognized
Local 917 in September 1991 when Local 917 did not rep-
resent an uncoerced majority of Respondent’s employees. In
addition, Respondent entered into Local 917’s 1989–1992
collective-bargaining agreement, which contained a union-se-
curity clause, when Local 917 did not represent an uncoerced
majority of Respondent’s employees. Respondent began to
enforce Local 917’s 1989–1992 contract in September 1991,
including the deduction of union dues from the employees’
paychecks, pursuant to the contract’s union-security clause,
and began to make the other contractual contributions. In
light of Respondent’s unlawful recognition and assistance, as
described above, Respondent violated Section 8(a)(1), (2),
and (3) of the Act by entering into and enforcing the Local
917 1989–1992 contract, which had a union-security clause.
Jayar Metal Corp., supra; Famous Castings Corp., 308
NLRB No. 16 (July 31, 1992) (not reported in Board vol-
umes).
Respondent also violated the same sections of the Act
when it entered into a successor agreement on September 11,
1992. Respondent has never established to date that Local
917 represents an uncoerced majority of Respondent’s em-
ployees.
It is well settled that ‘‘additional store clauses’’ are valid
in situations where the employees affected are not denied
their right to have a say in the selection of their bargaining
representative. Alpha Beta Co., 294 NLRB 228, 229 (1989).
It is also well settled that these clauses can require recogni-
tion on proof of majority status by a union. Alpha Beta Co.,
supra. Thus, an employer who fails to recognize a union with
majority status, pursuant to an ‘‘additional store clause,’’
violates Section 8(a)(1) and (5) of the Act. In the instant
case, Respondent violated the Act by failing and refusing to
recognize Local 272 pursuant to the ‘‘additional store
clause’’ contained in the MGOA contract.
The record is clear that since 1956, Respondent has been
a member of the MGOA. As a member of MGOA, Respond-
ent has authorized the MGOA to bargain on its behalf with
Local 272. The most recent MGOA/Local 272 contract had
a duration period from February 6, 1989, until February 5,
1992, and contained an ‘‘additional stores clause.’’ Article V,
section 5 of the contract which provides in pertinent part:
In the event the Employer takes over the operation of
a garage or parking establishment within the geographic
area . . . that is not covered by a union contract, then
the provisions of the contract shall immediately take
full force and effect.
Based on this contract language, it is clear that Respondent
has waived its right to an election and has agreed to recog-
nize Local 272 whenever it opened up a new garage that was
within the geographic area and that was not covered by a
union contract. The evidence establishes that since August
20, 1991, when Respondent admittedly received Local 272’s
demand for recognition, it was required to recognize and
apply the MGOA agreement to employees employed at the
Promenade facility pursuant to its ‘‘additional store clause,’’
since Local 272 had a valid card majority in this unit at the
time it demanded recognition.
In this connection Local 272 Representative Gordon and
Philippe credibly testified that in late April and early May
1991, they witnessed a majority of Respondent’s employees
read and sign Local 272 authorization cards. Further, Gordon
and Philippe credibly testified that prior to the signing of the
cards, they explained to the employees that if they were in-
terested in being represented by Local 272, then they should
sign a Local 272 card. Based on the above evidence it is
clear that since early May 1991, Local 272 had a valid card
majority. Koons Ford of Annapolis, 282 NLRB 506, 514
(1986), citing McEwen Mfg. Co., 172 NLRB 990, 992
(1968), enfd. sub nom. Amalgamated Clothing Workers v.
NLRB, 419 F.2d 1207, 1209–1210 (D.C. Cir. 1969), cert. de-
nied 397 U.S. 988 (1970).9
After obtaining a valid card majority, Local 272, by at
least a letter dated August 20, 1991, advised Respondent of
its majority status. In this letter, Local 272 also demanded
recognition pursuant to the ‘‘additional stores clause’’ con-
tained in its MGOA contract. Respondent thereafter by letter
dated September 10, 1991, refused to recognize Local 272.
I conclude that the ‘‘additional stores clause’’ in the MGOA
contract applied to Respondent’s Promenade Garage, and that
Respondent was required to recognize Local 272, since Local
272 clearly represented a majority of Respondent’s employ-
ees. By such failure, Respondent violated Section 8(a)(1) and
(5) of the Act.
183PROMENADE GARAGE CORP.
I also conclude that Respondent’s failure to implement the
above agreement as to its Promenade employees further vio-
lates Section 8(a)(1) and (5) of the Act.
Respondent contends that the Local 917 1989–1992 con-
tract contains an ‘‘additional stores clause’’ which required
it to recognize Local 917 as the representative of its Prome-
nade employees. Article I of the Local 917 contract does
state in pertinent part that:
The Employer hereby recognizes the Union as the sole
and exclusive bargaining agent for its full-time employ-
ees . . . at the following locations now or thereafter ac-
quired by said Employer.
I find such contention without merit. Under the Alpha Beta
analysis, Respondent, pursuant to an ‘‘additional stores
clause, is required to recognize a union once that union has
established a valid card majority. As discussed above, there
is no evidence that a majority of Respondent’s employees
were interested in Local 917. Rather, the valid Local 272
cards clearly show that Respondent’s employees wanted
Local 272 to represent them. Thus, Respondent’s failure to
show that Local 917 represented an uncoerced majority pro-
hibits Respondent from recognizing Local 917 pursuant to an
‘‘additional stores clause.’’
If it were ultimately determined that the Local 272 after
acquired store clause was not applicable, I would conclude
that a bargaining order is warranted under NLRB v. Gissel
Parking Co., 395 U.S. 575 (1969). It is clear from the record
that in early May 1991, Local 272 enjoyed an uncoerced
support of an overwhelming majority of Respondent’s em-
ployees in an appropriate unit. Local 272, in May 1991, ob-
tained four authorization cards from the five unit employees
employed by Respondent in April and May 1991. In addi-
tion, it is also clear that as of late August 1991, Local 272
continued to enjoy uncoerced support from a majority of Re-
spondent’s employees. In late August 1991, all five employ-
ees employed by Respondent at that time signed Local 272
authorization cards.
When faced with a legitimate organizing campaign of
Local 272, and a demand for recognition by Local 272 on
August 20, 1991, Respondent immediately embarked on a
sustained campaign of unfair labor practices, which included
interrogating employees about their support for Local 272;
threatening employees with discharge because they supported
Local 272; threatening employees that it would be futile to
support Local 272; suspending, transferring, and discharging
the chief Local 272 organizer; and entering into a collective-
bargaining agreement with Local 917 at a time when Local
917 did not enjoy uncoerced support from a majority of unit
employees. Respondent also promised to pay their dues to
Local 917.
I conclude such conduct by Respondent constitutes ‘‘hall-
mark’’ violations of the Act. The swiftness and timing of Re-
spondent’s misconduct, which began immediately after Local
272 made its demand for recognition, justify the issuance of
a remedial bargaining order inasmuch as such conduct re-
duces the possibility of erasing the lingering effects of the
unfair labor practices and of conducting a fair election by
traditional means. Yolo Transport, 286 NLRB 1087, 1094
(1987); Gissel Packing, supra.
The Board has long held that the discharge of employees
who begin the union movement and who obtain more than
one signed authorization card, is the most serious violation
of employees’ Section 7 rights to engage in self-organization.
Food Cart Market, 286 NLRB 1016, 1029 (1987). In fact,
in Food Cart Market, supra, the Board held that such termi-
nations are the ‘‘most severe penalty that an employer can
inflict for union activity.’’ Id. Accordingly, such terminations
constitute ‘‘hallmark violations which will support the
issuance of a bargaining order.’’ Id. citing Eastern Steel, 253
NLRB 1230 (1981), enfd. 671 F.2d 104, 108 (3d Cir. 1982);
Churchill’s Supermarkets, 285 NLRB 138, 142–143 (1987).
In addition, the Board has held that unlawful assistance to
a minority labor organization which interferes with the self-
organizational activity of employees, coupled with other hall-
mark violations, are of the type of unfair labor practices
which tend to undermine majority strength for the legitimate
union and make it unlikely and improbable that a fair elec-
tion can be held. Comet Corp., 261 NLRB 1414, 1447
(1982).
Local 917 contends that since the instant case concerns
two competing Teamsters locals claiming the right to rep-
resent the same bargaining unit, the representation issue
should be decided by the Teamsters’ Joint Council 16 which
has already notified Local 272 and Local 917 that such issue
is presently pending a joint board decision, rather than the
National Labor Relations Board. I find Local 917’s conten-
tion to be without merit. It is clear and well settled that rep-
resentation issues involve the application of basic statutory
policy, and are matters for decision exclusively by the Board.
San Diego Building Trades Council v. Garman, 359 U.S.
236 (1959); Port Chester Nursing Home, 269 NLRB 150,
155, 156 (1984), see also cases cited therein; Spielberg Mfg.
Co., 112 NLRB 1080 (1959).
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices within the meaning of the Act, I shall
recommend it cease and desist therefrom and take certain af-
firmative action to effectuate the policies of the Act.
Since I have found that Respondent discriminatorily sus-
pended and discharged its employee Philome Philippe, I shall
recommend that Respondent make Philippe whole for any
loss of earnings he may have suffered by reason of the dis-
crimination against him from the date of his discharge until
the date of his offer of reinstatement. Respondent uncondi-
tionally offered to reinstate Philippe on May 12, 1993.
Philippe waived reinstatement. Therefore, the backpay period
shall be from his discharge by Respondent on May 8, 1991,
until Respondent’s valid offer of reinstatement on May 12,
1993. There is also backpay due to Philippe for the 3-day
suspension, described above.
Backpay for the above employee shall be computed in ac-
cordance with the formula approved in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
I shall also recommend that Respondent expunge from its
records any reference to such unlawful termination and to
provide written notice of such expunction to Philippe, and to
inform him that Respondent’s unlawful conduct will not be
used as a basis for further personnel actions concerning him.
Sterling Sugars, 261 NLRB 472 (1982).
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 272 and Local 917 are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Interrogating employees about their union support.
(b) Threatening employees with discharge because they
support a union.
(c) Threatening employees it would be futile for them to
support a union.
(d) Soliciting and coercing employees to sign dues-check-
off authorizations for Local 917 or any other union.
(e) Soliciting employees to sign petitions which revoke
their membership in Local 272 or any other union.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by suspending, transferring, and discharging its employee
Philome Philippe because of his activities on behalf of Local
272.
5. Respondent violated Section 8(a)(1) and (2) of the Act
by recognizing and bargaining with Local 917 as the exclu-
sive bargaining representative of its Promenade facility at a
time when Local 917 did not represent an uncoerced major-
ity of Respondent’s employees.
6. Respondent violated Section 8(a)(1), (2), and (3) of the
Act by enforcing and maintaining a collective-bargaining
agreement with Local 917 containing a union-security clause
and a dues-checkoff provision, at a time when Local 917 did
not represent an uncoerced majority of Respondent’s employ-
ees.
7. Respondent violated Section 8(a)(1) and (5) of the Act
by refusing to recognize and bargain with Local 272 as the
exclusive bargaining representative of its employees em-
ployed at the Promenade Garage in the unit found appro-
priate as set forth below:
All full-time and regular part-time working managers,
washers, floormen, transporters, attendants, cashiers,
employed by Respondent at its facility located at 530
East 75th St., New York, New York, excluding office
clericals, professional employees, guards and super-
visors as defined by the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
[Recommended Order omitted from publication.]