Ste-Mel Signs, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1979

246 N.L.R.B. 1110 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ste-Mel Signs, Inc. and Teamsters Union Local No.
115, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America. Case 4-CA-9579
December 14, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On August 21, 1979, Administrative Law Judge Al-
vin Lieberman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
We agree with the Administrative Law Judge that
a bargaining order is appropriate herein. We note
that on July 17, 1978,2 the same day that the Union
made its demand for recognition, Respondent insti-
tuted a campaign among its employees the purpose of
which was to destroy existing union support. On that
day Respondent interrogated three employees con-
cerning their union adherence. Between then and ear-
ly September, in addition to other illegal interroga-
tions, it promised its employees increased wages if
they would "drop [the] . . . Union"; it claimed to
know who among its employees was supporting the
Union; it asserted its unwillingness to work with the
Union; it threatened to withdraw certain benefits be-
cause of the Union; and it threatened to curtail its
operations, close its plant, or move to another State if
the Union came in. It also unlawfully reduced the
work of three outside employees by discontinuing its
practice of letting them work in the plant during in-
clement weather. Accordingly, we find that the coer-
cive nature and extensiveness of Respondent's illegal
conduct here acted to undermine the employees' sup-
port of the Union and made the holding of a fair
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the
record and find no basis for reversing his findings.
I All dates hereinafter are in 1978 unless stated to be otherwise.
election unlikely.3 Further, we find that the authoriza-
tion cards signed by a majority of Respondent's em-
ployees are, in these circumstances, a more reliable
test of the employees' representation wishes than an
election would be.4
In so finding, we note that 8 of the 14 employees in
the unit were directly subjected to Respondent's ille-
gal conduct, and that the nature of the conduct was
such that it likely would be disseminated throughout
the plant, thereby impacting on all the unit employ-
ees.5 The Board has found that the pervasiveness of
unlawful conduct in a small employee complement
heightens its damaging effect. 6 Further, we rely on the
abundant use Respondent made of economic threats,
the chief weapon in its attempt to defeat the Union.
These threats included, inter alia, the claims made by
Respondent that if the Union came in it would close
its plant or move its operations to another State, it
would discontinue its service operation and take only
large jobs, and it would not permit its outdoor em-
ployees to work indoors during inclement weather. In
addition, Respondent asserted that the election of the
Union could result in the end of the employees' pen-
sion plan contributions.
The Board has long held that the threat of job loss
through plant closure or curtailment of operations se-
riously interferes with the employees' ability to make
choices freely in the election of a collective-bargain-
ing representative.7 The serious impact of such threats
was recognized by the Supreme Court when it noted
that they were among the most effective unfair labor
practices for destroying election conditions for a
longer period of time than other types of unfair labor
practices.8 Further, Respondent's threatened with-
drawal of economic benefits was an additional mes-
sage to the employees that if they cast the wrong vote
Respondent's retaliation could be formidable-
hardly the groundwork for a free and fair election.
In this connection, Respondent gave added impe-
tus to the message conveyed by its threats of reprisal
by denying three employees work which they would
have received absent their union activities. This dis-
criminatory conduct showed all the employees that
Respondent was willing and ready to carry out its
threats. In these circumstances, the effects of Respon-
3see N.L.R.B. v. Gissel Packing Co.. Inc., 395 U.s. 575 (1969), in which
the Supreme Court held, inter alia, that a bargaining order is appropriate
where the extensiveness of an employer's violations has "the tendency to
undermine majority strength and impede the election process." Respondent's
illegal conduct has produced that effect herein.
4 It is clear that Respondent, after "very carefully" examining the signed
authorization cards and noting "mentally" whose name was on each card.
did not impugn the authenticity of the signatures, nor was this done by
Respondent's counsel at the hearing.
5 See General Stencils, Inc., 195 NLRB 1109 (1972).
6
See ('handler Motors, Inc., 236 NLRB 1565 (1978).
7 See Hedstrom Company, 235 NLRB 1193 (1978).
8 See N L.R.B. v. Gissel Packing Co, supra at 611, fn. 31.
246 NLRB No. 177
1110
STE-MEL SIC
dent's unlawful conduct are particularly hard to dis-
pel by use of the traditional cease-and-desist order,
make whole remedy, and notice posting, so as to cre-
ate an atmosphere conducive to holding a free and
fair election.
As stated by the Board in Chandler Motors, Inc.,
supra, 236 NLRB at 1567:
In concluding that a bargaining order is ap-
propriate here, we have followed the Supreme
Court's admonition [in Gissel] to consider "the
extensiveness of [Respondent's] unfair labor
practices in terms of their past effect on election
conditions and the likelihood of their recurrence
in the future." The unfair labor practices' effect
had been detailed above. Obviously, actual effect
is difficult to ascertain precisely, and it is not
Board practice to take evidence on or consider
subjective reactions. But it has been the Board's
experience that unfair labor practices of the type
noted above are likely to leave a significant and
persistent imprint on employees. Here, that im-
print of the unfair labor practices is solidified be-
cause of the swiftness with which they occurred
and the number of employees directly affected.
The likelihood of recurrence of the unfair labor
practices is also difficult to ascertain. However,
given the swiftness and the thoroughness with
which Respondent responded to the Union's rec-
ognition request, the likelihood of Respondent
again engaging in illegal conduct is clearly pre-
sent. Accordingly, a bargaining order is appro-
priate here. In so concluding, we have noted the
argument that other remedies may be available
here as alternatives to a bargaining order. Rem-
edies such as a cease-and-desist order or the
mailing or reading of the notice to employees
have been suggested as blunting the need for a
bargaining order. We note, however, that this
same argument was rejected by the Supreme
Court in Gissel and, for the reasons given by the
Supreme Court there, we see no reason to adopt
that argument here.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Ste-Mel Signs, Inc.,
Philadelphia, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
1111
DECISION
STATEMENT OF THI CASE
ALVIN LIEBFRMAN. Administrative Law Judge: The hear-
ing in this proceeding, with all parties represented. was held
before me in Philadelphia, Pennsylvania, on March 26.
1979, upon the General Counsel's complaint and Respon-
dent's answer. In general, the issues litigated were whether
Respondent violated Section 8(a)( 1), (3), and (5) of the Na-
tional Labor Relations Act, as amended (Act).' More par-
ticularly, the questions for decision are as follows:
I. Did Respondent violate Section 8(a)(1) of the Act by,
as the complaint alleges, interrogating and threatening em-
ployees. creating the impression that employees' union ac-
tivity was under surveillance, impressing employees with
the futility of their being represented for the purpose of
collective bargaining by Teamsters Union Local No. 115
(Union)2 , and promising employees benefits to induce them
to refrain from supporting the Union?
2. Did Respondent violate Section 8(a)(3) of the Act by
reducing the work of employees in order to dissuade them
from supporting the Union?
3. Did Respondent violate Section 8(a)(5) of the Act by
refusing to recognize and bargain with the Union, the rep-
resentative of a majority of its employees in an appropriate
unit?
4. Assuming an affirmative answer to the foregoing ques-
tion, should a bargaining order issue?
Upon the entire record, upon my observation of the wit-
nesses and their demeanor while testifying, and having
taken into account the arguments made and the briefs sub-
mitted.' I make the following:
I Set forth below are the relevant provisions of the Sections of the Act to
which reference has been made in the text:
Sec. 8a) It shall be an unfair labor practice for an employer
(I) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7:
(3) by discrimination in regard in hire or tenure of employment to
encourage or discourage membership in any labor organization .
(5) to refuse to bargain collectively with the representatives of his
employees, subject to the provisions of section 9(a).
Insofar as pertinent, Secs. 7 and 9(a) ale as follows:
Sec. 7. Employees shall have the right to self-organization, to form.
join, or assist labor organizations. to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any or all such
activities .
Sec. 9(aJ Representatives designated or selected for the purposes of
collective bargaining b) the majority of the employees in a unit appro-
priate for such purposes, shall be the exclusive representatives of all the
employees in such unit for the purposes of collective bargaining in re-
spect to rates of pay. wages, hours of employment or other conditions of
employment ....
2 The Union's full designation appears in the caption
Although all the arguments of the parties and the authorinties cited b'
them. whether appearing in their briefs or made orall at the hearing. ma)
not he discussed. each has been carefulls eighed and considered
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FA('I would not warrant the imposition of the remedy sought by
the General Counsel.
1. JURISDICTION
Respondent, a Pennsylvania corporation, is engaged at
Philadelphia, Pennsylvania, in the manufacture, sale, instal-
lation, and servicing of interior and exterior signs. During
the 12 months preceding the issuance of the complaint Re-
spondent sold signs valued at more than $50,000 to custom-
ers located outside the Commonwealth of Pennsylvania.
Accordingly. I find that Respondent is engaged in com-
merce within the meaning of the Act, and that the assertion
of jurisdiction over this matter by the National Labor Rela-
tions Board is warranted.
II. '11tE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. INTRODUCTION
Briefly, this case is concerned with the Union's request
for recognition as the collective-bargaining representative
of Respondent's employees and for bargaining on their be-
half, to which Respondent did not accede, and certain sub-
sequent events. Included among the latter, the complaint
alleges, were violations of Section 8(a)(l) of the Act' en-
gaged in by Louis Cardonick and Melvin Cardonick, Re-
spondent's president and vice president, respectively. Also
among the events following the Union's bargaining request
was a change in Respondent's practice of permitting em-
ployees who worked outdoors to work in its shop during
inclement weather. This change, the complaint asserts, was
violative of Section 8(a)(3).
The General Counsel and the Union contend5 that Re-
spondent's refusal to recognize and bargain with the Union
transgressed Section 8(a)(5) of the Act. To remedy this, as
well as Respondent's claimed violations of Section 8(a)(1)
and (3), described in the General Counsel's brief as being
"pervasive and egregious unfair labor practices [precluding]
the holding of a fair election." the General Counsel urges
that a bargaining order issue.
Respondent denies the commission of the unfair labor
practices set forth in the complaint. 6 Respondent's position
respecting the General Counsel's plea that a bargaining or-
der issue is that, if, notwithstanding its denial of the com-
mission of the violations alleged in the complaint, it is
found that the violations were committed, such a finding
' The nature of these claimed violations appears above in my statement of
the questions for Decision.
The arguments of the General Counsel and the Union being similar, they
will be referred to hereinafter as the General Counsel's contentions.
6 In this connection, many of the complaint's allegations that Respondent
violated Sec. 8(aXI) of the Act are based on conduct ascribed to Melvin
Cardonick. Respondent's vice president. In support of these averments. wit-
nesses testified with specificity concerning Cardonick's conduct. To meet this
detailed testimony Cardonick, in the main, generally denied though filing an
answer to the complaint that he had engaged in the conduct imputed to him.
Cardonick's general denials in the face of specific testimony to the contrary
are unconvincing and entitled to no weight. Triumph Twist Drill Company,
237 NLRB 1442 (1978); Trumbull Asphalt Company, Inc., 219 NLRB 131,
133 (1975).
IV. PRELIMINARY FINDINGS AN) CON(CL.USIONS7
A. Respondent's Business
As previously noted, Respondent manufactures, sells,
and services signs.' The signs purchased by Respondent's
customers are fabricated in its shop and are installed inside
its customers' establishments or hung outside their prem-
ises. In either case the work involved is performed by Re-
spondent's employees.
In the winter of 1977-78 Respondent. in addition to its
usual shopwork, was engaged in a special project consisting
of manufacturing 56 signs for the Philadelphia parking au-
thority. This was an unusual situation which did not obtain
in the preceding or subsequent winters.
During the winters 1976-77 and 1977 78 when inclement
weather hampered the installation or servicing of outdoor
signs, Respondent's employees who did such work were
permitted, without loss of wages, to work in Respondent's
shop. There they performed various functions involved in
the manufacture of signs.9
B. The Appropriate Unit and its Complement
I find, as alleged in the complaint and admitted in the
answer, that the following unit of Respondent's employees
is appropriate for the purpose of collective bargaining:
All sign mechanics, helpers. painters and production
employees, but excluding all office clerical employees,
guards and supervisors as defined in the Act.
I further find that at all material times the complement of
this unit consisted of 14 employees.
C. The Union's Majority, and Its Bargaining Request
In June 1978, James Carr. a sign mechanic employed by
Respondent, requested the Union to organize Respondent's
employees. The Union undertook this task and by July 12,
1978,'° eight employees in the unit described above had
signed cards designating the Union as their collective-bar-
gaining representative. There being 14 employees in this
unit, the Union at this point, and at all other material times,
represented a majority of these employees.
On Monday, July 17, Joseph Yeoman, a representative of
the Union, came to Respondent's office, showed the signed
cards to Louis Cardonick and Melvin Cardonick, Respon-
dent's president and vice president, respectively, and orally
requested Respondent to recognize and bargain with the
Union. At the same time, Yeoman gave the Cardonicks a
7The purpose of these findings and conclusions is to furnish a frame of
reference within which to considet the facts relating to Respondent's alleged
unfair labor practices and to the conclusions to which they may give rise.
I Respondent's service work consists of repainng signs already installed.
9 As will be seen. Respondent changed this practice during the winter of
1978 79. As earlier noted, the complaint alleges that, by doing so. Respon-
dent violated Sec. 8(aH3) of the Act.
l0 All dates hereinafter mentioned without stating a year fall within 1978.
1112
STE-MEL SIGNS. INC.
written bargaining request and a recognition agreement al-
ready signed by an officer of the Union.
Upon receiving the cards Melvin Cardonick examined
them "very carefully," as he testified, and "noted [mentally]
whose name was on each card." After discussing with Yeo-
man the problems which might arise if Respondent's em-
ployees were represented by the Union (a Teamsters affili-
ate), rather than by a sign union, which Yeoman
minimized, Melvin Cardonick asked Yeoman to return on
Wednesday, July 19, and said, as Yeoman related, that in
the meanwhile he would "[check] out this deal about the
sign union."
On July 19. Louis Cardonick, Respondent's president,
told Yeoman that the matter had been referred to Respon-
dent's lawyer. from whom the Union would soon hear con-
cerning its request for recognition and bargaining. How-
ever. Respondent's lawyer never communicated with the
Union. Furthermore, Respondent never signed the recogni-
tion agreement presented to it on July 17. nor did it ever
bargain with the Union.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Alleged 8(a)(l) Violations"
I. The interrogation and threats
On July 17. 1978. soon after the Union had requested
recognition and bargaining, Respondent, without comply-
ing with any of the safeguards enumerated in Struksnes
Construction Co., Inc., 165 NLRB 1062, 1063 (1967), began
to interrogate employees concerning their having signed
union cards and other matters connected with the Union.' 2
In addition, between July 17 and August 16 Locher and
Prendergast were told by Louis and Melvin Cardonick.
jointly and severally, that if Respondent's employees per-
sisted in supporting the Union, Respondent would take re-
taliatory measures. The threats made by the Cardonicks
during this period consisted of elimination of service work
by Respondent, thereby resulting in reducing employees'
earnings, loss of jobs, discontinuance of a profit sharing
plan, plant closing or the removal of the plant to another
State, and establishment of job classifications, resulting in
loss of work by employees.
It needs no citation of authority to establish that the
threats cataloged above uttered by Louis and Melvin Car-
donick are violative of Section 8(a)( 1) of the Act. The inter-
rogation carried on by the Cardonicks also falls within the
ambit of Section 8(aX I1).
" As already noted, the complaint alleges that Respondent violated Sec.
8(a) I) of the Act by interrogating and threatening employees. creating the
impression that employees' union activity was under surveillance, impressing
employees with the futility of their being represented by the Union. and
promising employees benefits to induce them to refrain from supporting the
Union.
2 The interrogation was camed on by Louis and Melvin Cardonick. The
employees interrogated, the dates of their interrogations, and the persons
who questioned them are as follows: Scott Locher, interrogated on Jul) 17
by Louis and Melvin Cardonick and on August 16 by Melvin Cardonick:
Harry Gizzi, interrogated on July 17 by Louis and Melvin Cardonick:
Thomas Prendergast. interrogated on July 17 by Melvin Cardonick and on
July 18 by Louis and Melvin Cardonick: and John Zebley, interrogated
dunng summer 1978 by Louis Cardonick.
In Struksnes, supra, the Board set forth five criteria for
determining the lawfulness of interrogation of employees
concerning their relationship to a union. One of these, not
complied with here,'' is that "assurances against reprisal are
given." This being the case, I find that the questioning of
Respondent's employees were coercive and, therefore, in
derogation of their rights guaranteed in Section 7 of the
Act.
Furthermore, insofar as Locher and Prendergast are con-
cerned, the threats made to them were inherently coercive.
thereby imparting a coercive nature to their interrogations.
Merle Lindsey Chevrolet, Inc., 231 NLRB 478. 483 (1977).
Accordingly, I conclude that Respondent violated Sec-
tion 8(a)(l) of the Act by coercively interrogating and
threatening employees.
2. Creating the impression that employees' union activity
was under surveillance
On August 16, 1978, Locher and Melvin Cardonick. Re-
spondent's vice president, talked about the Union and a
representation election which, it was thought, would soon
be held.' During their conversation Cardonick stated. as
L.oche - testified, that "if there is a vote for the Union it
would be ... Jimmy Carr an employee] ... if there was an)
additional votes [he] would know who the first four people
would be [and] if there was a fifth vote, it would be [his.
Locher's]."
For an employer to tell an employee shortly before a
scheduled election that he knows which employees would
vote for the union is to create the impression that the em-
ployees' union activity is under surveillance. Shop-Rite Su-
permarket, Inc., 231 NLRB 500. 506 (1977). Conduct of this
type by an employer is violative of Section 8(a)(I) of the
Act because it "tendIs] to restrain and interfere with . . .
employees in the exercise of their rights guaranteed under
the Act." Mitchell Plastics. Incorporated, 159 NLRB 1574.
1576 (1966).
Accordingly. I conclude that Respondent further violated
Section 8(a)( i) of the Act by creating the impression that
employees' union activity was under surveillance.
3. Impressing employees with the futility of their being
represented by the Union
On July 18, 1978, a day after the Union had requested
recognition and bargaining, Louis Cardonick told Thomas
Prendergast. an employee, that Respondent "would never
go with the Union [and] wanted no part of the Union." In
similar vein, on August I . Louis Cardonick said to Vincent
Gizzi, another employee, that although he "was not trying
to tell [Gizzi] how to vote,r . . . there is no way (Respondent
would] work with this Union."
' My discussion of only one of the Struksnes standards should not be
construed as an indication that I am satisfied that the other four were met.
" As represented by counsel in their opening statements. an election had
been scheduled for August 22. but was canceled upon the filing of the
Union's charge on August 17.
5 Cardonick's statement had reference to the election then scheduled for
August 22. See fn. 14 for details concerning the scheduling of the election
and its cancellation.
1113
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
A few days later, on August 16, Melvin Cardonick stated
to Scott Locher, also employed by Respondent, that "if the
Union wins [the election] he would offer [the Union] mini-
mum wage and then go on a vacation to Europe when [the
Union] refused."' 6
Section 7 of the Act provides, in part, that employees
"shall have the right . . . to bargain collectively through
representatives of their own choosing." An Employer who
impresses upon employees that their exercising this right
would be futile violates Section 8(a)(1). Marathon Metallic
Building Company, 224 NLRB 121, 124 (1976).
Respondent violated the Act by doing so. By telling em-
ployees that Respondent would not deal with the Union
and that, even if the Union prevailed at the election it was
thought would soon be held Respondent would not "work
with the Union" or, alternatively, would make the Union a
wage offer it knew the Union would reject, Respondent em-
phatically brought home to its employees that their being
represented by the Union would be useless.
Accordingly, I conclude that, by impressing upon em-
ployees the futility of their being represented by the Union,
Respondent again violated Section 8(a)(1) of the Act.
4. Promising benefits
In late August or early September 1978, several employ-
ees, including Thomas Prendergast and Melvin Cardonick,
were talking about the Union. The employees informed
Cardonick, as Prendergast testified, that they were support-
ing the Union because their "salaries ... weren't near the
sign union salaries." Cardonick told the employees that he
would "match the sign union salaries and benefits for a year
if [they forgot] about the Union [and] if [they] would drop
[the] Teamsters' Union."
In N.L.R.B. v. Exchange Parts Company, 375 U.S. 405,
409 (1964), the Supreme Court held that Section 8(a)(1) of
the Act proscribes an employer's promise of benefits to his
employees to influence them to refrain from supporting a
union. More need not be said insofar as this phase of the
case is concerned.
Accordingly, I conclude that, by promising benefits to its
employees to induce them to abandon the Union, Respon-
dent once more violated Section 8(a)(1) of the Act.
In sum, Respondent's violations of Section 8(a)( ) of the
Act consisted of:
1. Coercively interrogating employees concerning the
Union.
2. Threatening employees with reprisals for supporting
the Union.
3. Creating the impression that employees' union activity
was under surveillance.
4. Impressing upon employees that their support of the
Union was futile.
5. Promising benefits to employees to induce them to
abandon the Union.
'6 The findings in this and the preceding paragraph are based upon, and
the quotations appearing in the text are taken from, testimony given by
Prendergast. Gizzi, and Locher.
B. Respondent 's Alleged 8(a)(3) I'iolationl'
1. Facts concerning Respondent's alleged 8(a)(3) violation
As earlier found, during the winters of 1976 77 and
1977-78 when inclement weather interfered with the instal-
lation or servicing of outdoor signs, employees who per-
formed such work were permitted, without loss of wages, to
work in Respondent's shop. This practice was not followed
in the winter of 1978-79.
In that winter employees whose duties required them to
work outdoors were not allowed to do indoor shopwork
during inclement weather. Instead, when the weather was
bad they were either sent home or told not to report for
work. In either case this resulted in a loss of wages which
would otherwise have been earned had the employees con-
cerned been permitted to work in Respondent's shop as
they did during prior winters.
The reason for this restriction in 1978 79 winter work
imposed by Respondent on outside employees were given
to Thomas Prendergast, in outdoor worker, by Melvin Car-
donick in November 1978. At that time Cardonick told
Prendergast, as the latter testified without contradiction,
that "during the winter when the weather gets bad the em-
ployees that work outside every day would not be able to
work inside the shop during ... inclement weather... until
this union thing is straightened out."'
The change in Respondent's practice concerning outside
work in the winter of 1978 79 was foreshadowed by Melvin
Cardonick on August 16, 1978. On that day, while talking
with Scott Locher, an employee who sometimes worked
outdoors, about the election then scheduled for August 22,
Cardonick stated, as Locher testified without specific con-
tradiction, that "if the [Union] won [he] would have the
classification of outdoor man and indoor man and . .. on
rainy days the outdoor man would not be able to work
indoors as they were up to this point."
On February 7, 1979, Prendergast voiced an objection to
Louis Cardonick at his being sent home because it was
snowing, rather than being permitted to work in Respon-
dent's shop as had been the practice during the previous
winter. Cardonick replied, as Prendergast related, that "it
wasn't [his] idea to bring the Union in."
As a result of the change in Respondent's policy here
under consideration three employees, Prendergast, James
Carr, and David Jarrell,'9 suffered a diminution of working
time and lost wages during the winter of 1978 79.
2. Contentions and concluding findings concerning
Respondent's 8(a)(3) violation
The General Counsel argues that the change in Respon-
dent's practice concerning indoor work by outside employ-
ees during the 1978-79 winter was brought about by the
'" The complaint alleges that Respondent violated Sec. 8(a)(3) of the Act
by "refusing [since about December 5, 19781 to permit .. employees to work
during periods of inclement weather . . . because [theyl supported . . the
Union."
1s Cardonick's "union thing" remarks was an obvious reference to the
Union's earlier request for recognition.
19 Like Prendergast, Carr and Jarrell were outdoor workers.
1114
STE-MEL SIGNS. INC
Union's request for recognition in July 1978 and, accord-
ingly, violated Section 8(a)(3) of the Act. Taking issue with
this argument, Respondent contends that it was an insuffi-
ciency of shopwork in the winter of 1978-79 and not the
Union's appearance in July 1978 which moved it to change
its practice.
To bolster its position Respondent points to the fact that
during the winter of 1977-78 a large amount of shopwork
was available, generated by the special project on which it
was then engaged.?0 It further asserts, concerning the 1976
77 winter, that the volume of its shopwork was equally
great, although it does not appear that Respondent was
working on a project similar to the Philadelphia parking
authority job. Turning then to the winter of 1978-79, Re-
spondent maintains that its shopwork had fallen off in that
period to the point where there was nothing for outside
workers of do there. As Respondent states on brief in this
regard, its "failure to provide inside [shop] work [to outside
employees] on bad weather days [in the winter of 1978 79]
resulted only from the unavailability of such work."
Respondent did not support its latter contention or its
contention concerning the amount of shopwork available
during winter 1976-77 by offering its business records in
evidence. Nor did it explain its failure to do so. This creates
a doubt as to the validity of Respondent's position regard-
ing the volume of work in its shop during the 1976-77 and
1978-79 winters.2'
However, a finding as to whether there was less
shopwork to be done in winter of 1978-79 than in the pre-
vious two winters need not be made. This is so because the
evidence establishes that the advent of the Union brought
about the change in Respondent's practice in winter 1978
79 and not any diminution of shopwork that winter. This is
made plain by Melvin Cardonick's 22 statement to Thomas
Prendergast, an outside employee, that "during the winter
. . . when the weather gets bad [outside] employees . . .
would not be able to work inside the shop . . . until this
union thing is straightened out."
I find, therefore, that Respondent's refusal during winter
1978 79 to permit James Carr, David Jarrell, and Thomas
Prendergast, outside employees, to work in its shop when
they were unable, because of inclement weather, to work
outdoors was occasioned by the Union's request for recog-
nition. I further find that in this manner Respondent "dis-
criminat[ed] in regard to [a] condition of employment" of its
outside employees, within the meaning of Section 8(a)(3) of
the Act.
Accordingly, I conclude that by not permitting, because
of the Union's advent, James Carr, David Jarrell, and
Thomas Prendergast, employees who worked outdoors, to
work in its shop on days during winter 1978-79 when in-
clement weather interfered with outdoor work, Respondent
violated Section 8(aX3) of the Act.
x As I have found, in this connection, this consisted of the fabrication of
56 signs for the Philadelphia parking authority.
21 "A litigant's unexplained failure to offer matenal evidence warrants the
inference that, if he adduced the evidence, it would not support his position."
Bechtel Corporation, 141 NLRB 844. 845. 852 (1963).
1 I will be remembered that Melvin Cardonick is Respondent's vice pres-
ident.
C. Respondent s 411leged 8(a)5) I iolation
The complaint alleges that Respondent violated Section
8(a)(5) of the Act by refusing to recognize and bargain with
the Union. It further alleges. as an integral part of this
unfair labor practice, Respondent's independent violations
of the Act.
As I have found, on July 17, 1978, after a majority of'
Respondent's employees in an appropriate unit" had signed
cards designating the Union to be their collective-bargain-
ing representative, the Union requested respondent to rec-
ognize and bargain with it. Respondent has never acceded
to this request. Not only did Respondent not bargain with
the Union, but also hard on the heels of the Union's bar-
gaining request, it began to engage in a series of serious
unfair labor practices."
"In determining whether an employer unlawfully refused
to bargain by an outright refusal to recognize a union repre-
senting a majority of its employees in an appropriate unit,
as is the case here, the employer's conduct when faced with
the union's bargaining request must be assessed. If, in such
a situation, the employer engages in serious unfair labor
practices, it also violates Section 8(a)(5) of the Act." Shop-
Rite Supermarket, Inc., 231 NLRB 500, 507 (1977).
As has been found, Respondent engaged in serious unfair
labor practices. Furthermore, Respondent began to commit
these unfair labor practices within hours after the Union
made its bargaining request.
Accordingly, considering the nature of Respondent's un-
fair labor practices and the immediacy of their commission,
I conclude that by not recognizing and bargaining with the
Union, Respondent violated Section 8(a)(5) of the Act.
VI. THE EFFECT OF T UNFAIR L.ABOR PRACTICES UPON
(COMMERCE
Respondent's unfair labor practices occurring in connec-
tion with its operations set forth in section 1, above, have a
close, intimate, and substantial relationship to trade. traffic.
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VII THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)( 1), (3). and (5)
1J As I have also found, the unit involved consists of "sign mechanics,
helpers and production employees."
24 Unfair labor practices of the type Respondent has been found to have
committed have been held by the Board to be senous in nature See, in this
connection, Irving N Rothkin, d/h/a Irv's Market, 179 NLRB 832 (1969).
enfd. 434 F.2d 1051 (6th Cir. 1970) (coercive interrogation): Four H'minds
Industries. Inc.. 228 NLRB 1124 (1977). and Milgo Industrial, Inc. 203
NLRB 1196. 1200-01 (1973) (threats of job loss and plant closure): Olson
Bodies, Inc., 206 NLRB 779 (1973) (creating impression of surveillance): The
Trane Company (Clarksville Manufacturing Division), 137 NLRB 1506. 1510
(19621 (impressing employees with the futility of supporting a union), and
De Luca Brothers, Inc., 201 NLRB 327. 333 (1973) (promising benefits).
Also. it cannot be gainsaid that depriving employees of work opportunities
and thereby reducing their wages, as Respondent did by changing its prac-
tice concerning inside work by outside employees, is an unfair labor practice
of a most senous nature. Cf. Cohen Bros. Fruit Company, 166 NLRB 88 90
(1967).
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, my Order will require Respondent to cease and
desist therefrom and to take such affirmative action as will
effectuate the purposes of the Act. Concerning the latter,
the General Counsel urges, and Respondent resists. the en-
try of a bargaining order.
In support of its position Respondent argues that, even
were it to be found that it had engaged in the unfair labor
practices alleged in the complaint, such a finding would not
warrant the issuance of a bargaining order. As Respondent
states on brief in this regard, "even viewing the testimony in
a light most favorable to the General Counsel, the conduct
of Respondent is not nearly as severe as that which was
evident in the circuit court cases wherein the Board's grant
of a bargaining order was reversed."25
I do not agree that Respondent's unfair labor practices
were of insufficient severity to warrant a bargaining order.
In brief recapitulation, Respondent's unfair labor practices,
in addition to depriving outside employees of wages they
would have earned had they been permitted to work in-
doors when the weather was inclement during the 1978-
1979 winter, included threats to reduce employees' earnings
by eliminating service work, to establish job classifications
which would result in loss of work by employees, to close its
plant or move it to another State, a promise of benefits to
induce employees to abandon the Union, and impressing
upon employees the futility of voting for the Union in an
election it was thought would soon be held. Not only are
these unfair labor practices serious, but they are also severe
enough to undermine the Union's majority and taint a rep-
resentation election.26
"[W]here an employer has committed independent unfair
labor practices which have made the holding of a fair elec-
tion unlikely or which have in fact undermined a union's
majority [where] the possibility of erasing [their] effects ...
and of ensuring a fair election . . . is slight [and where]
employee sentiment once expressed through cards would,
on balance, be better protected by a bargaining order, then
such an order should issue." N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575, 610. 614-615 (1969). The standards nec-
essary for the issuance of a bargaining order laid down in
Gissel are present here.
Accordingly. my Order will require Respondent to bar-
gain with the Union on request. My Order will also require
Respondent to make James Carr, David Jarrell, and
Thomas Prendergast whole for any losses they may have
suffered by reason of the discrimination practiced against
them as found above in the sections of this Decision dealing
with Respondent's violation of Section 8(a)(3) of the Act.
Any backpay found to be due to Carr, Jarrell, and Prender-
gast shall be computed in accordance with the formula set
" The cases referred to by Respondent are First Lakeiood Associates v.
N.L.R.B., 582 F.2d 416 (7th Cir. 1978): N.L.R.B. v. Armcor Industries, Inc.,
535 F.2d 239 (3d Cir. 1976); and Peerless of America, Inc. v. N L.R.B., 484
F.2d 1108 (7th Cir. 1973).
1 If Respondent's unfair labor practices had been limited only to its
threats, these alone were "likely to have the most substantive impact upon
employee attitudes and reactions land] may well be sufficiently pervasive in
their impact to prevent a fair election and to undermine a union's support."
Cohen Bros. Fruit Conmpany, supra.
forth in F W. Woolworth C(ompan, 90 NLRB 289 (1950),
and shall include interest in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977). 2
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CON(ClUSIONS ()F LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act and in engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By the following conduct Respondent has engaged in,
and is engaging in, unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act:
(a) Coercively interrogating employees concerning their
having signed union cards and concerning other matters
relating to the Union.
(b) Threatening to eliminate service work, to discontinue
a profit-sharing plan, to close its plant or move it to another
State, and to establish job classifications resulting in the loss
of work by employees.
(c) Creating the impression that employees' union ac-
tivity was under surveillance.
(d) Impressing upon employees the futility of supporting
the Union.
(e) Promising benefits to employees to dissuade them
from supporting the Union.
4. By not permitting, because of the Union's advent,
James Carr, David Jarrell, and Thomas Prendergast, em-
ployees who worked outdoors, to work in its shop on days
during winter of 1978 79 when inclement weather inter-
fered with outdoor work, thereby discouraging membership
in the Union, Respondent has engaged, and is engaging in.
unfair labor practices within the meaning of Section 8(a)(3)
and () of the Act.
5. All sign mechanics, helpers, painters, and production
employees in Respondent's employ. but excluding all office
clerical employees, guards, and supervisors as defined in the
Act constitute a unit appropriate for collective bargaining.
6. At all material times the Union has represented a ma-
jority of the employees in the unit set forth in Conclusion of
Law 5 above.
7. By failing and refusing since July 17, 1978, to recog-
nize, and bargain with, the Union as the exclusive collec-
tive-bargaining representative of the employees in the unit
set forth in Conclusion of Law 5, above, Respondent has
engaged in, and is engaging in. unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
8. The unfair labor practices engaged in by Respondent,
as set forth in Conclusions of Law 3, 4, and 7. above, affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
2 See, generally. Ios Pluming & Heating Co, 138 NL.RB 716 (1962).
1116
STE-MEL SIGNS. INC.
tined in the National Labor Relations Act, as
TIamenled.
The Respondent, Ste-Mel Signs. Inc., Philadelphia. Penn-
sylvania, its officers, agents, successors, and assigns. shall:
I. Cease and desist from:
(a) Coercively interrogating employees concerning their
attitudes toward, knowledge of, activities on behalf of, or as
to any other matter relating to, Teamsters Union Local No.
115, affiliated with International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America., or
any other labor organization.
(b) Threatening employees with the elimination of ser-
vice work, the discontinuance of profit-sharing plans, the
closing or moving of its plant, the establishment of job clas-
sifications which would result in the loss of work by em-
ployees, or with any other form of reprisal, or effectuating
any such threats, for joining, assisting, or in any' manner
supporting, Teamsters Union Local No. 115, affiliated with
International Brotherhood of Teamsters. Chauffeurs, Ware-
housemen and Helpers of America, or any other labor or-
ganization.
(c) Engaging. attempting to engage, or giving employees
the impression that it is engaging, in surveillance of emplo -
ees' union activities.
(d) Impressing upon employees that it would he futile fr
them to join, assist, support in any manner, or select as their
collective-bargaining representative Teamsters Union Local
No. 115. affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization.
(e) Promising or granting wage increases or any other
form of benefits to dissuade employees from joining. assist-
ing, or, in any manner supporting, Teamsters Union Local
No. 115, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
or any other labor organization.
(f) Discouraging membership in Teamsters Union I.ocal
No. 115, affiliated with International Brotherhood of Team-
sters, Chauffeurs. Warehousemen and Helpers of America.
or any other labor organization. by failing or refusing to
permit outside employees to work in its shop when inclem-
ent weather interferes with outside work, or by discriminat-
ing in any other manner against employees in regard to hire
or tenure of employment or any term or condition of em-
ployment.
(g) Failing or refusing to recognize Teamsters Union Lo-
cal No. 115. affiliated with International Brotherhood of
Teamsters, Chauffeurs. Warehousemen and Helpers of
America, as the exclusive collective-bargaining representa-
tive of its employees in the following appropriate unit:
All sign mechanics, helpers. painters and production
employees in respondent's employ, hut excluding all
office clerical employees, guards and supervisors as de-
.2 In the event no exceptions are filed as provided hs Se, 102.46 of the
Rules and Regulations of the National I.Labor Relations Board. the findings.
conclusions, and Order herein shall. as provided in Sec. 102.48 of the Rules
and Regulations, be adopted h the Board and become is indings. conclu-
sions, and Order, and all objections thereto shall be deemed ai.ied tor al.
purposes
or failing or refusing upon request to bargain with the
aboe-narmed labor organization respecting rates of pay.
wages, hours, or other terms or conditions of employment
of its employees in the aforesaid appropriate unit.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization. to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing. or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 of the National Labor
Relations Act, as amended. or to refrain from any or all
such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment in conformity
with Section 8(a)(3) of the Act.
2. Take the following affirmative action which, it is
found. will effectuate the policies of the Act:
(a) Make James Carr, David Jarrell. and Thomas Pren-
dergast whole in the manner set forth in the section of this
Decision entitled "T'he Remedy" for any loss of earnings
the, may have suffered by reason of the discrimination
practiced against them.
(b) Preserve and, upon request, make available to the
Board or its agents. for examination and copying, all pay-
roll records, social securits pay ment records. timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Upon request, bargain with Teamsters Union Local
No. 11 5, affiliated with International Brotherhood of Team-
sters, Chauffeurs. Warehousemen and Helpers of America.
as the exclusive collective-bargaining representative of the
employees in the aforesaid appropriate unit respecting rates
of' pa., wages, hours. or other terms or conditions of em-
ploy-ment and, if an understanding is reached, embody such
understanding in a signed agreement.
(d) Post at its premises in Philadelphia, Pennsylvania.
copies of the attached marked "Appendix."2t Copies of said
notice, on form provided by the Regional Director for Re-
gion 4, after being duly signed by Respondent's representa-
tive, shall he posted by Respondent immediately upon re-
ceipt thereofl and be maintained by it for 60 consecutive
dabs thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced. or covered by any other
material.
(e) Notify the Regional Director for Region 4, in writing.
within 20 days from the date of this Order. what steps Re-
spondent has taken to comply herewith.
" In the event that this Order is enforced b .i Judgment of a United
States ( ourt of Appeals. the :ords In the notice reading Posted hi Order of
the National Labor Relaltions Bard" shall read "Posled Pursuant to a Judg-
ment of the United States (Court o1f Appeals Enforcing an Order ,f the Na-
tin;al labor Relations Board "
ORDER 2s
I 17
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
No-I(cE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present evidence and arguments, it has been decided that
we, Ste-Mel Signs, Inc.. have violated the National Labor
Relations Act, as amended. We have therefore been or-
dered to post this notice and carry out its terms.
WE will.E NOT question you about anything con-
nected with Teamsters Union Local No. 115, or any
other union.
WE Will. NOI do any of the following things and WE
Wll. NO] threaten to do them because you signed a
card for, joined, helped, or supported Teamsters Union
l.ocal No. 115, or any other union:
I. Discontinue our profit-sharing plan.
2. Close our plant.
3. Move our plant.
4. Set up job classifications which will result in
your losing work.
5. Eliminate service work.
WEi wii.i. NOr spy on your union activity or make
you believe that we have spied, or are spying, on your
union activity.
WE WU.ll. Nor say or do anything to make you be-
lieve that it would be useless for you to join, support,
or help Teamsters Union L.ocal No. 115, or any other
union.
WE Wll.L NOTr say or do anything to make you be-
lieve that it would be useless for you to select Team-
sters Union Local No. 115, or any other union, as your
collective-bargaining representative.
WE WIlll. NOT give you and WE WIll. NO't promise to
give you pay raises or anything else to make you want
to reject or refuse to join, support, or help Teamsters
Union Local No. 115, or any other union.
WE wl.. N01 punish you for joining, supporting or
helping Teamsters Union Local No. 115, or any other
union, by refusing to permit you to work in our shop
when bad weather prevents you from working outside.
WE WII.l. NOT in any other way interfere with any
right given you by the National l.abor Relations Act.
As it has been decided that we refused to permit James
Carr., David Jarrell, and Thomas Prendergast to work
in our shop during bad weather in the winter of 1978
79 because they joined, supported, and helped Team-
sters Union Local No. 115.
WE WILll pay James Carr., David Jarrell, and
Thomas Prendergast any wages they lost.
WE WI[.. recognize Teamsters Union Local No. 115
as your union.
WE Wll.., if we are asked to do so, bargain with
Teamsters Union I.ocal No. 115, about your rates of
pay, wages, working hours, and other matters relating
to your work. If we come to an agreement about any of
these things with Teamsters Union Local No. 115, WE
wilL.. put that agreement in writing and sign it.
All our employees are free, without any objection from
us, to become or remain members of Teamsters Union Lo-
cal No. 115, or any other union.
WE WII.ll respect y'our right to form any union, to
support any union, to help any union, and to deal with
us through any' union. WtE WEiL. also respect your right
not to do any of these things, except as required by
law.
S1E-MEL. SIGNS, IN('.
1118