Wm. Chalson & Co.

National Labor Relations Board - Board Decisions

Sep 9, 1980

252 N.L.R.B. 25 (N.L.R.B. 1980)

WM. CHALSON & CO., INC.
Wm. Chalson & Co., Inc. and Amalgamated Jewel-
ry, Diamond and Watchcase Workers Union
Local No. 1, IJWU (AFL-CIO). Case 2-CA-
16339
September 9, 1980
DECISION AND ORDER
On April 15, 1980, Administrative Law Judge
Steven B. Fish issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a copy of his brief to the Administrative
Law Judge.
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, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Wm. Chalson
& Co., Inc., New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
l Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the r.levant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Produc
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.
Additionally, we are satisfied that Respondent's contentions that the
Administrative Law Judge was biased are without merit. There is noth-
ing in the record to suggest that his conduct at the hearing, his resolu-
tions of credibility, or the inferences he drew were affected by any bias
or prejudice.
I Chairman Fanning adheres to the position that an untimely with-
drawal from multiemployer bargaining does not, of itself, constitute a
violation of the Act. Rather, the refusal to execute and apply the contract
reached through multiemployer bargaining is the essential part of the
8(aX5) violation. Preston H. Haskell Company, 238 NLRB 943, fn I
(1978); Ringside Liquors. Inc. d/b/a Dino's Lounge, et al., 237 NLRB 30,
fn. 2 (1978); Independent Association of Steel Fabricators Inc., e a., 231
NLRB 264, fn. 2 (1977). See also Teamsters Union Local No. 378, affili-
ated with International Brotherhood of Teamsters. Chauffeurs. Warehouse-
men and Helpers of America (Olympia Automobile Dealers Association). 243
NLRB 1086, fn. I (1979). Accordingly, Chairman Fanning. while agree-
ing with his colleagues in all other respects herein, would not find that
Respondent's withdrawal from the unit, of itself, is violative of the At.
s Member Jenkins would compute interest in accordance with his par-
tial dissent in Olympic Medical Corporation, 250 NLRB No. 146 (1980)
252 NLRB No. 6
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge: On
March 26, 1979,' Amalgamated Jewelry, Diamond and
Watchcase Workers Union, IJWU, AFL-CIO, herein
called the Union, filed a charge in the instant case alleg-
ing that Wm. Chalson & Co., Inc., herein called Re-
spondent, violated Section 8(a)(1),(3), and (5) of the Act.
Pursuant thereto on May 7, and May 10, the Acting Re-
gional Director for Region 2 issued a complaint and a
corrected complaint with notices of hearing attached. On
September 27, the Regional Director for Region 2 issued
an order amending the corrected complaint. These docu-
ments allege that Respondent violated Section 8(a)(l),
(3), and (5) of the Act by laying off employees Elizabeth
Hansen and Frank DaRocha because they joined or as-
sisted the Union; condoning, approving, sponsoring, and
encouraging the circulation among its employees, and
their signing of, an antiunion petition; offering and prom-
ising to its employees a profit-sharing plan to induce its
employees to abandon their membership in and their ac-
tivity on behalf of the Union; withdrawing its recogni-
tion of the Union as the exclusive representative of Re-
spondent's employees in an appropriate unit, and refusing
to recognize and bargain with the Union as such repre-
sentative; and by refusing to abide by and execute a col-
lective-bargaining agreement entered into between the
Union and the Associated Jewelers Inc., herein called
the Association.
A hearing was held before me in New York, New
York, on October 15, 16, and 17.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, is engaged in
the manufacture and nonretail sale and distribution of
fine jewelry and related products, with its principal
office and place of business at 42 West 48th Street, New
York, New York. Annually, Respondent sells and ships
jewelry from its facility, valued in excess of $50,000 di-
rectly to points outside the State of New York. Respond-
ent amits, and I find that it is an empl. yer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I so find that the Union is and has
been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
' All dates are in 1979 unless otherwise stated.
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iii. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Since in or about 1933, Respondent has been a member
of the Association which is a multiemployer organization
existing for the purposes of negotiating collective-bar-
gaining agreements. During this same period of time,
pursuant to its membership in said Association, Respond-
ent has recognized and been under contract with the
Union as the representative of its production employees,
excluding office and factory clerical employees, porters,
messengers, nonproducing foremen, watchmen, all other
nonproducing employees, and all supervisors as defined
in Section 2(11) of the Act. Respondent has, since 1933,
designated the Association as its bargaining representa-
tive, and had abided by the collective-bargaining agree-
ments reached by the Association and the Union. It is
not disputed, and I find, that an Association-wide unit,
including Respondent's employees as described above, is
an appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
In December 1978, the Union notified the Association
of its intent to negotiate a contract to replace the agree-
ment then in effect, due to expire on February 28, 1979.
The Association thereafter, in a letter dated January 10,
1979, notified the Union that the Association is author-
ized and empowered to represent and negotiate for some
19 companies, including Respondent.
On January 18, negotiations commenced for a new
contract. Jointly negotiating with the Association was
another multiemployer Association, the Jewelry Manu-
facturers, Inc., herein called the JMA. 2 Each side was
represented by a negotiating committee. The chief
spokesmen and negotiators for the Union were Joseph
Tarantola, union president, and Jerome Sturm, union at-
torney, and for the Associations, Jack Glauberman and
Michael Applebaum, attorneys for JMA, and Ira Berger,
attorney for the Association. The Union presented its ini-
tial proposals in writing which included a 15-percent
wage increase, and various increases in cost of living,
pensions, welfare, sick leave, holidays, vacations, and
other benefits, as well as a demand for the contract expi-
ration date to be August 31.3 These proposals were ex-
plained by the Union and discussed briefly, and the meet-
ing ended after about an hour.
On January 30, another meeting occurred, at the Bilt-
more Hotel, with the same parties present. This meeting
which also lasted approximately an hour, consisted of
more detailed discussions of the proposals submitted by
the Union.
On February 5, the parties again met at the Biltmore
Hotel. At this session, the Associations submitted propos-
als. Those proposals consisted mainly of changes that the
Associations wanted in the new contract, such as raising
hours worked from 35 to 40, eliminating the contractual
prohibition on piecework incentive systems, increasing
2 The record does not establish how long the negotiations involving
the Association and JMA have been conducted jointly. Ira Berger. coun-
sel to and Assistant Director of the Association testified that negotiations
have been conducted jointly "for some time "
3 The demand for the expiration date to) be August 31 was the first
demand presented on the Union's list of proposals.
the trial period, eliminating cost-of-living provisions, in-
creasing the deductible on medical payments, and other
proposals which in whole or in part reduced current
benefits in the expired contract. The Associations' pro-
posals contained no wage increase, nor any increases in
any of the other benefits proposed by the Union. The
Union indicated that it would review the Associations'
proposals and would let the Associations know their
thinking on them.
The parties next met on February 15, when the Asso-
ciations' proposals were discussed fully. The Union told
the Associations that it "would not live" with their pro-
posals, and suggested that the parties address themselves
primarily to the union demands. Thereafter the negotia-
tions were primarily concerned with the Union's propos-
als and various counterproposals offered by the Associ-
ations. Although the Associations did not withdraw their
proposals for changing the contract, they were not
pressed, and Berger admitted the Associations had recog-
nized as of mid-February that the Union was not going
to accept the Associations' contract retrogressions.
On February 22, a meeting was held at the offices of
the JMA. According to Tarantola, the Union agreed at
this session to the principle of a 3-year contract and im-
plicitly agreed to therefore was the expiration date of the
contract. Berger on the other hand denies that the expi-
ration date was resolved at that time, and asserts that this
issue was a major problem throughout the negotiations. I
credit Berger's testimony on this issue, and find that the
expiration date was neither implicitly or explicitly agreed
to on February 22. I note that Tarantola admits that the
final expiration date agreed to of March 21 was a com-
promise reached late in negotiations. Moreover, it is un-
disputed that the Union was seeking a later expiration
date in order to have the contract expire during the busy
summer months for the Employers, so as to be able to
exert more significant economic pressure on the Employ-
er's operations.
The next meeting was held on February 26, again at
the Biltmore Hotel. The Union reduced its wage propos-
al from 15 percent across-the-board to 70 cents an hour
the first year of the contract and 60 cents per hour for
each of the next 2 years. The Associations then made
their first counterproposal, and offered a wage increase
of 25 cents per hour the first year and 30 cents per hour
for each of the next 2 years. The Union then caucused
and counteroffered 60, 50, and 50 cents for the 3 years.
The parties also discussed the issue of cost-of-living in-
creases, and the Associations offered a cost-of-living in-
crease of 1 percent which was rejected by the Union.
On February 27, the parties met again at the Biltmore.
The Associations made a new proposal on wages of 35,
30, and 30 cents for the 3 years, dropped their demand
on a deductible for medical coverage from $200 to $100,
and made a proposal to increase pension benefits by $10
per month. These proposals were rejected by the Union
as being inadequate.
The parties again met on February 28, the expiration
date of the preceding contract. At this meeting the Asso-
ciations submitted an additional counteroffer of 40, 35,
and 35 cents for the 3 years. The Union came back with
26
WM. CHALSON & CO., INC.
a proposal of 60, 60, and 50 cents per hour for the 3
years. The Union also reduced its pension demand from
$400 to $200 per month.
The Associations also offered $190 per month to the
pension fund,4 and a welfare increase of 12 cents for the
first year and nothing for the next 2 years.
The Union then rejected the Associations' proposals.
According to Berger, at that time the Associations had
computed their costs to be $1.43 per man hour under the
proposal rejected by the Union. The Union's proposals at
that time, according to Berger, were computed to be
$1.94 per man hour.
Berger testified that the Associations felt that the
Union's offer was so out of line that it made no sense for
the Associations to submit another offer at that "late
hour" on February 28. It was recognized by all parties
that the Union had a membership meeting scheduled for
7 p.m. that evening. Berger admitted in his testimony
that from the Employer's point of view it did not "make
any sense to negotiate any further, for lack of time [em-
phasis supplied], and the Union wasn't about to make an-
other counteroffer so we adjourned."
Glauberman, prior to adjournment, asked the Union to
submit the Associations' last offer to the membership
meeting, although Tarantola told him that he was afraid
that the membership would reject the offer. The offer
was submitted to the membership at the meeting that
evening and was rejected unanimously. The Associations
had met privately and decided that since it was expected
that the union meeting would result in a rejection of the
offer and a strike, that the Associations would lock out
their employees.
Prior to the union meeting, Glauberman called Taran-
tola and advised him that, unless the membership ap-
proved the contract, the Associations would lock out
their employees the next day. Tarantola replied that if
the membership rejected the proposals he would advise
the employees to report to work, and would be prepared
to continue negotiations at any time that Glauberman
was prepared to sit down. Glauberman replied "let's see
what happens." No date for an additional meeting was
set up at the close of the February 28 meeting. However,
this was not unusual, as on three to four prior occasions
during these negotiations dates had not been set at the
close of a meeting but were set up over the phone.
After the employees rejected the Associations' offer,
Tarantola called Glauberman and informed him of this
fact. Glauberman said that it was too late to stop the
lockout. Tarantola asked about another meeting and
Glauberman indicated that he would get back to his
members and get back to Tarantola on the matter.
The next day, March 1, about 50 percent of the Em-
ployers in both Associations locked their employees out.
A day or two later, John Kreidler of the New York
State Mediation Board called Tarantola. Kreidler, who
had called earlier to check on the progress of the negoti-
ations, asked how things were going. Tarantola replied
that the employees had just been locked out. Kreidler
asked if Tarantola thought the parties could get together
and Tarantola replied that he did. Kreidler then asked
4 The union contract provided for contributions of $180 per month
whether Tarantola thought that it would help for
Kreidler to use his good offices and whether the Associ-
ations would be willing to meet with him. Tarantola
agreed that it would be a good idea to meet with
Kreidler and that he thought that the Associations would
agree as well. Tarantola then called Glauberman and
told him of the conversation with Kreidler, and Glauber-
man agreed to meet as well.
A meeting was then arranged by Kreidler for March 7
at the New York State Mediation Board. At this session
Solomon Kreitman, who acted as the mediator since
Kreidler was unavailable, met separately with the parties
to familiarize himself with the situation and review the
positions of the parties.
On March 9, the parties again met at the Mediation
Board, this time with Kreidler acting as mediator. At this
session the parties reached agreement on hospitalization
coverage for employees on leaves of absence, vacation
pay for piecework settlers, and the posting of vacation
days-60 days prior to commencement of the vacations.5
On March 14, the parties again met at the Mediation
Board, discussed the outstanding issues, but reached no
agreements on any matters.
The parties met again on March 16, at Glauberman's
office. Kreidler suggested that it might be useful for the
entire negotiating committees to be present.6 There were
also agreements in concept reached on sick leave and
bereavement pay, but no specific agreements were nailed
down in these areas.
The Union and the Associations thereafter met five or
six more times in March and April and reached agree-
ment on April 16. 7
At no time during the entire bargaining process did
either side ever characterize or imply any offer as a
"final offer." In addition, at no time did either party
refuse to bargain further or state at negotiations that it
felt further bargaining would be futile or fruitless.
The agreement finally reached consisted of wage in-
creases of 55, 45, and 45 cents on wages; pension in-
crease from $180 to $220; cost-of-living increases with a
cap of 23 cents, a fourth week of vacation, and various
other contract improvements. According to Berger, the
total cost of the final package was computed to be an in-
crease of $1.76 per man, per hour.
A day or so before the Associations reached agree-
ment with the Union, B. F. Hirsch Co., herein called
Hirsch, a member of the JMA, withdrew from said Asso-
ciation, with the Union's consent, and commenced bar-
gaining on an individual basis. Sometime after the con-
tract with the Associations was agreed to, the Union
concluded an agreement with Hirsch. The record does
not reflect how the individual contract reached with
Hirsch compared with the contract executed with the
Associations, or whether the agreement reached with
s Based on the credited testimony of Tarantola. Berger could not
recall such agreements having been reached at this time, but his testimo-
n) in this area was evasive and uncertain
e From February 15 on the negotiation participants were the four or
five chief negotiators
7 Both Taramnola and Berger agree that the meeting of April 5 which
lasted until 5 a.m produced the most significant and substantial move-
ment towards reaching a contract
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hirsch in any way referred to or contemplated being in-
corporated with the Associations' agreement.
The record disclosed that Hirsch with 180-200 em-
ployees was one of the larger employers in the Associ-
ations. No other facts were presented as to the numbers
of employers in the Associations or the numbers of em-
ployees employed by the particular employer members
of the Associations.8
The contract entered into with the Associations, in
April, was a single document covering both the JMA
and AJI and referring to both as the "Association."
However, the prior contract entered into with AJI,
which expired on February 28, was a contract solely
with AJI, although as noted the contract was negotiated
jointly with MA.
Bernard Chalson, Respondent's president did not par-
ticipate in any of the negotiations set forth above. In
fact, during late February and early March, he was in
Florida. Upon his return to New York, on March 5,
Chalson called Tarantola and informed him that he
(Chalson) had heard that the Union was being intransi-
gent in negotiations. Chalson suggested to Tarantola that
nobody wins a war and offered his good offices to help
bring the parties together. He asked if Tarantola was
holding out on the issue of the effective date of the con-
tract. Tarantola said this was not so, and that everything
was negotiable.
According to Chalson, as a result of this conversation,
and other discussions that he had with members of the
negotiating committee and reading newspaper reports of
negotiations, he felt that the "breakdown in negotiations
was going to continue for a long time." Accordingly, he
testified that a day or two later he called his attorney,
Richard Goldstein, to find out what his options were.
Chalson testified that his attorney told him that if the
people in the bargaining unit wanted to get out, then
perhaps Chalson could, if there was an impasse. Chalson
also testified that Goldstein asked him whether or not he
wanted to engage in separate negotiations with the
Union. Chalson replied that he was not prepared to do
that.
On cross-examination Chalson further amplified his
conversation with Goldstein and his views on his em-
loyees' desires vis-a-vis the Union.
Q. Did you also discuss the wishes of the em-
ployees? Wasn't that your testimony, that you dis-
cussed what the wishes of the employees were at
that time?
A. I said that I wanted to implement whatever
the wishes of the employees turned out to be.
Q. What do you mean by "whatever they turned
out to be?"
A. I didn't know what they would turn out to be.
Q. What made you think that something was
turning about?
A. Only my reaction to the general situation, Mr.
Cohen.
$ The record did establish that the Associate Jewelers Inc., herein
called AJI, was authorized to bargain for 19 Employers including Re-
spondent.
Q. But what did that have to do with the em-
ployees, with what the employees thought was best
for them?
A. As obviously appeared shortly thereafter, the
employees were dissatisfied with what the Union
was demanding of them.
Q. You had a hunch this was coming about?
A. No. As a matter of fact it came as a shock to
me.
On Tuesday afternoon March 13, Bruce Freeman,
shop foreman and an admitted supervisor, as well as
Chalson's nephew, informed employees Elizabeth Hansen
and Frank DaRocha that they were being laid off be-
cause of lack of work. They were told to call back the
following Monday to see if there was work available.
Hansen did not make any protest when told of her
layoff. DaRocha complained that he was not the least
senior employee in the shop,9 and Freeman replied that
he was being laid off for lack of work and besides, "you
know too much." Freeman did not explain what he
meant by this remark.
Hansen was the shop steward for Respondent, and had
been employed for 35 years. She had been laid off once
before sometime in 1950. She was also the only waxer in
the shop.
DaRocha was employed as a jeweler and had been
employed for 2 years.
Charlson testified concerning these layoffs, while
Bruce Freeman was not called to testify. Chalson con-
tended that work was slow and that it was necessary to
lay off employees. Chalson testified initially that Free-
man came to him the week before March 13 and told
him that he had no work for Hansen and DaRocha and
suggested that they be laid off. Allegedly, they discussed
laying them off on the Friday before March 13, but
Chalson suggested that since Respondents' payroll period
ends on Tuesday that they wait and see what happens
then. When work continued to be slow, Chalson instruct-
ed Freeman to lay them off and ask them to call on the
next Monday (March 21) to see if any work had come
in. Chalson admitted that he had no knowledge that ad-
ditional work would be coming in that week, but testi-
fied that he hoped work would come in, which it in fact
did. Neither Hansen or DaRocha called on March 19 as
instructed.
Hansen called on March 20 and was told by Freeman
that work had come in and to report for work on March
21. Chalson called DaRocha on the 20th and told him to
report to work on the 21st as well. Both Hansen and
DaRocha reported for work on March 21. In both of
these conversations, the employees were asked why they
had not called on Monday, March 19. Chalson testified
that he tried to reach both of them on Monday but was
unsuccessful.
I In fact there was another employee, who was not laid off, Carlos
Cerrato, who did have less seniority than DaRocha. The contract in ex-
istence between Respondent and the Union provides that seniority shall
be followed with respect to layoffs. No evidence was presented as to Re-
spondent's past practice with respect to layoffs.
28
WM. CHALSON & CO., INC.
Hansen admitted that work was slow at the time of
her layoff, but contends that work has been just as slow
in prior years and she was not laid off. Chalson admits
that work has been slow in prior years, and that he did
not lay off, but claims that this year his sons who are
now involved in the business do not agree with Chal-
son's past policy of keeping people on even if work is
slow. According to Chalson, his sons told him that he
was being paternalistic and that, "if we don't have work
then we just don't have it, and we should not try to
make work."
Testimony of other employees established that during
the 5 days that Hansen was laid off, her work was being
performed by either Bruce Freeman or Fred Lissaris, as-
sistant foreman.' o Some of these same employees also
testified that prior to Hansen's layoff, Lissaris or Free-
man would also perform similar work to Hansen. In this
connection, employee Hermogenes Regoso, Respondent's
own witness, testified he observed Lissaris performing
waxing work 2 or 3 hours a day during Hansen's layoff.
DaRocha also testified that he was not on speaking
terms with Lissaris and that Lissaris had accused him of
pilfering precious metal from the shop.
Chalson also testified that business was substantially
lower than last year and presented records which estab-
lished that Respondent's sales dollar volume in February
and March 1979 was 61 percent less than a comparable
period in 1978. Comparisons of jobs registered for these
months also showed significant declines in the latter
year.
However these same lists of job registrations show
that 49 orders came in on March 13, the day of the
layoff, which is more than double the amount of jobs
registered per day during the period of February and
March 1979.
Upon further examination, I find that Chalson appar-
ently changed his earlier testimony concerning his total
reliance on Bruce Freeman in deciding that there was no
work for Hansen and DaRocha. Chalson testified that
he, himself, looked at sales figures for 1978 and noticed
$227,300 for March 1978. He also claims that when he
saw that the first 10 days of March had billings of
$30,000 he "realized that we were in trouble."
Chalson also testified that during the week prior to
March 13, he laid off two nonunit employees, Hector
Santiago, a messenger, and Victoria Joseph, a reception-
ist-typist. Chalson further testified that he noticed that
these two employees had nothing to do in the office and
that they were doing crossword puzzles and reading the
papers. Thus he decided to lay them off. However, these
two employees were not told to call back the following
week to see if additional work had come in, and in fact
were not recalled to work by Respondent.
On March 15, Assistant Foreman Lissaris approached
employee Carlos Cerrato at his workbench. Lissaris told
Cerrato that he did not want the Union, and that the em-
ployees would be better off without the Union. Cerrato
asked Lissaris what benefits the employees would receive
if they left the Union. Lissaris replied that Cerrato
I0 Lisaris' status will be discussed more fully infra.
should not worry, "that Mr. Chalson was going to give
better benefits."
The next morning, March 16, around 9 a.m., Lissaris
had a conversation with Cerrato at his bench with no
one else present. Lissaris told Cerrato that he wanted to
get out of the Union and some people agreed with him.
Cerrato asked what kind of benefits the employees
would get if they were going to get out of the Union.
Lissaris replied that he was going to find out.
Employee Ivan Toral was also spoken to in the morn-
ing by Lissaris at his bench with no one else present. Lis-
saris and Toral discussed the fact that they did not want
to give the 10-percent assessment to the Union. 2 They
also talked about not being represented by the Union.
Hermogenes Regoso and Lissaris also spoke that
morning, and discussed their objections to the assess-
ment. Regoso said that he felt it was not fair since the
Union has a strike fund which should be used for the
purpose of supporting the employees locked out.
Also around 9 a.m. on March 16, employee Pat Nar-
dozza and Lissaris had a conversation in the shop. Free-
man was present but made no comments. Lissaris had a
piece of paper in his hand and said that the Union
wanted to take 10 percent out of employees' pay to sup-
port the employees locked out. Lissaris suggested that
the employees sign a petition to get out of the Union.
Nardozza said that he did not want to and the conversa-
tion ended.
A little before noon, Nardozza was approached by
Freeman just as Nardozza was about to go to lunch.
Freeman asked Nardozza "why don't you want to sign?
I think you'd be better off without the union." Freeman
added, "you'll be taken care of, everything will be much
better than the union."
Shortly before I p.m., the seven employees of Re-
spondent employed on March 16 returned from lunch.' 3
Lissaris approached the workers in a group and showed
them a petition reading, "We the undersigned workers in
the shop of Wm. Chalson and Co., Inc., no longer wish
to be represented for collective bargaining purposes by
Local I of the Amalgamated Jewelry Diamond and
Watchcase Workers Union." Lissaris asked the employ-
ees to sign the petition. Various employees asked ques-
tions about what benefits they would receive if they left
the Union. Lissaris told the employees that he would
find out the answers to their questions and he then went
into Chalson's office two or three times in full view of
the workers and returned with responses to their queries.
Lissaris told the employees that if they left the Union
they would receive pension benefits and a profit-sharing
plan.i4 Lissaris also told the men that, if they left the
' Based on the testimony of Cerrato which is undenied. Lissaris who
did not testify was known as the assistant foreman, gave out work to em-
ployees, and shared an office with Supervisor Freeman. Lissaris was a
union member and did perform production work along with other unit
employees.
12 The Union had sent a letter to its members including Respondent's
employees, dated March 13, announcing that the Union had passed an as-
sessment of 10 percent from each member's salary in order to support the
members currently locked out by the Associations.
' As noted, Hansen and DaRocha were laid off at the time and were
not present
14 The union contract did not include a profit-shanng plan.
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, they would get better benefits and that Chalson
would give them benefits the Union was giving and
more. Carlos Cerrato asked why Chalson did not tell this
to the men personally. Lissaris replied that Chalson
could not speak directly with the men about the subject
since for him to do so would be against the law. All
seven employees then signed the petition. There was no
discussion concerning the lockout assessment at the time
the petition was signed. '5
After the petition was signed, Lissaris brought the pe-
tition into Chalson, showed it to him and asked what he
should do with it. Chalson told him to take the petition
to the National Labor Relations Board. 16
Chalson then called his attorney and informed him of
what had transpired. Goldstein told Chalson that if the
employees wished to implement the petition, it would be
necessary for Respondent to resign from the Association
and he agreed to do so. There was no discussion at this
time concerning the state of negotiations, and apparently
Chalson made no effort to find out. He did, however, on
March 16, send letters to the Association and the Union,
announcing that effective immediately Respondent was
withdrawing from the Association, withdrawing its des-
ignation of authority to the Association to represent it in
negotiations with the Union, and that it will not be
bound by any collective-bargaining agreement entered
into between the Association and the Union. The letters
state no reasons for the withdrawals. Chalson admitted in
his testimony that the reason for his withdrawal from the
Association was the petition signed by his employees.
On March 29, Respondent sent a letter to the Union,
advising it that "based on objective considerations we
have a good faith doubt that Local 1 represents a major-
ity of the employees who are employed by this Compa-
ny. Accordingly, we must decline to recognize Local I
as the bargaining agent for the employees of Wm. Chal-
son & Co., Inc."
Shortly after the withdrawal of recognition from the
Union, Respondent began signing up its employees for
the medical insurance plan then in effect for its nonunit
employees.
In late April or early May, Tarantola presented Chal-
son with a four- or five-page summary of the changes
'I The above facts are based on the essentially mutually corroborative
testimony of Cerrato, Nardozza, and Toral, which I credit. I discredit the
testimony of Regoso, insofar as he denies that better benefits were prom-
ised by Lissans. His testimony was filled with inconsistencies between his
earlier testimony as well as his affidavit. In addition, he asserted that Lis-
saris spoke to employees individually and that he only heard Lissaris' dis-
cussion with one other employee. Moreover, Regoso is still employed by
Respondent and admits that Chalson agreed to employ his brother Lito
upon Regoso's recommendation when Lito was still in the Phillipines. I
also discredit the testimony of Chalson that when Lissaris came into his
office to ask questions about benefits, the petition already contained five
names. Even Regoso's testimony contradicts Chalson on this point, as
does the mutually corroborative versions of Nardozza, Toral, and Cer-
rato. In addition I find it inherently improbable that employees would
sign the petition before sending Lissaris to finu out about what benefits
they would receive if they left the union. Chalson ill addition testified
that Lissaris asked him what benefits the employees would receive if they
left the Union. He allegedly replied that they would receive the same
benefits received by Respondent's unrepresented office clerical employ-
ees, which included a pension and a profit-sharing plan
'6 Based on Chalson's testimony, Lissaris was not called to testify by
either party. An RD petition was filed at the Board in Case 2-RD 965
on March 21.
from the old contract which had been agreed upon by
the Associations, and requested that Chalson sign the
contract agreed upon. Chalson replied that he would
think it over. Chalson testified that he then called a
meeting of the five unit employees then employed and
asked them if they wanted him to sign the contract. Ac-
cording to Chalson, all five employees without asking
what was in the contract, said no. Chalson thereafter re-
fused to execute the contract or to abide by its terms,
and to date has continued to refuse to do so.
III. CONCLUDING FINDINGS
A. Respondent's Withdrawalfrom the Association and
Withdrawal of Recognition from the Union
It is well settled that, absent mutual consent or unusual
circumstances, an employer may not withdraw from
multiemployer bargaining except upon unequivocal writ-
ten notice prior to the date set by the contract for modi-
fication or the agreed-upon date to begin multiemployer
negotiations. t7
It is conceded in the instant case that Respondent's
withdrawal from multiemployer bargaining herein was
made absent mutual consent and after negotiations com-
menced. The issue to be resolved therefore is whether
"unusual circumstances" existed at the time of Respond-
ent's withdrawal.
Respondent contends that an impasse existed in negoti-
ations at the time of its withdrawal from the Association
on March 16, and that this fact, under the law of various
circuit courts of appeals including the Second Circuit,
constitutes an unusual circumstance justifying Respond-
ent's withdrawal.
The General Counsel takes the position that no im-
passe existed at any time during the negotiations, and
that, even if said impasse existed, under Board law this
does not constitute an unusual circumstance justifying
withdrawal. 19
The first issue to be resolved therefore is whether or
not an impasse existed on March 16, when Respondent
withdrew from Association bargaining. Both the General
Counsel and Respondent cite with approval the Board's
decision in Taft Broadcasting Co., WDAF AM-FM TV, 20
wherein impasse was defined:
Whether a bargaining impasse exists is a matter
of judgment. The bargaining history, the good faith
of the parties in negotiations, the length of the ne-
gotiations, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of the
negotiations are all relevant factors to be considered
in deciding whether an impasse in bargaining exist-
ed.
17 Retail Associares Inc., 120 NLRB 388 (1958); Charles D. Bonanno
Linen Service Inc., 243 NLRB 1093 (1979).
1i N.L.R.B. v. Beck Engraving Co.. Inc., 522 F.2d 475 (3d Cir. 1975);
NL.R.B. v. Associated Shower Door, Inc., et al., 512 F.2d 230 (9th Cir.
1978).
' H- Way Billboard, Inc., 206 NLRB 22 (1973); Bonanno. supra.
20 163 NLRB 475 (1967).
30
WM. CHALSON & CO., INC.
Respondent contends that impasse existed as of Febru-
ary 28, the date that the contract expired, and that the
impasse continued through March 16, the date of Re-
spondent's withdrawal. Respondent notes that after the
Union rejected the Associations' offer of February 28,
the parties were still far apart on all major issues, no fur-
ther meetings were scheduled, the contract was not ex-
tended, and some of the Associations members locked
out their employees. In view of these combinations of
factors, Respondent urges a finding that an impasse exist-
ed as of February 28. I disagree. The factors cited by
Respondent are insufficient to establish the existence of
an impasse.
The Board has held consistently that the existence of a
strike (and by analogy, a lockout), does not indicate that
an impasse has been reached. 21 It is clear that in the in-
stant case the lockout and the contract expiration do not
reflect the existence of an impasse. The lockout was
called, it appears, primarily due to the Associations' mis-
taken impression that the Union would strike on March
I.
While it is true that as of February 28, the parties
were still far apart on many major issues, there is no
question that the bargaining did reflect movement on
both sides. There had been only eight bargaining ses-
sions, and it was not until the sixth session on February
26 when the Associations presented their first wage
offer. Over the next three sessions both sides changed
their positions on wages, pension, and hospitalization
benefits, the three key areas in the negotiations. Al-
though no new meeting date was set up at the close of
the February 28 session, this was primarily due to Glau-
berman's request that the Union vote on the Associations
last offer, and in fact was not an unusual procedure in
these negotiations.2 2
Moreover, in any event the failure to set up another
meeting at the close of a session does not establish the
existence of an impasse. 23
Berger, the Associations' counsel and Respondent's
witness, admitted that the pressures of time, and the ne-
cessity to present the Associations' offer to the member-
ship were largely responsible for the meeting breaking
up without further bargaining. Thus, although agreement
was not reached on most significant issues, this "afforded
Respondent no warrant for equating this session to a last
ditch effort at reaching agreement, nor was there any
contemporaneous understanding by the parties to that
effect. 2 4
F. A. Reynolds Co., Inc.,25 seems most analagous to the
factual situation existing herein. The Administrative Law
Judge, affirmed by the Board, noted that admittedly
slow-moving negotiations, comprising only seven ses-
sions, do not qualify as marathon sessions. He found that
"the foregoing is not a picture of rapidly moving negoti-
2z Seven Motors Ltd. d/b/a Mazda South, et al., 233 NLRB 1198 (1977);
J. H. Bonck Co.. Inc.. 170 NLRB 1471 (1968); Burgess Mining & Construc-
tion Corporation, 239 NLRB 92 (1978)
22 As noted, other sessions had ended without a new date being set for
a meeting.
23 Preston H. Haskell Company, 238 NLRB 943 (1978); Supak and Sons
Manufacturnng Corporation, 192 NLRB 1228 (1971).
a4 Supak and Sons, supra at 1243.
2" 173 NLRB 418 (1968).
ations, but neither is it one of negotiations caught in the
doldrums."2 6 The Administraitve Law Judge further
found that although the Union's last concessions were
moderate (the same 5-cent-per-hour reduction as in the
present case), they "negated the proposition that there
was no prospect of further movement." 27
Additionally, the Administrative Law Judge highlight-
ed what I deem to be a highly significant factor in evalu-
ating the existence of an impasse. That is the fact that the
Associations had not as yet considered the significance
and effect of the employees' unanimous rejection of their
last offer. As the Administrative Law Judge quite co-
gently pointed out:
Respondent was not negotiating an ordinary busi-
ness contract with someone who could go else-
where or with whom it could choose not to deal.
An employer seeking in good faith to reach agree-
ment will give serious consideration to the extent
and strength of his employees' feelings as to matters
at issue.28
After the February 28 rejection of the Associations'
offer by the employees, there was a brief hiatus in nego-
tiations until March 7, due largely to the problems in-
volved in the Associations' partial lockout. The parties
met four times between March 7 and March 16 at the
New York State Mediation Board. Three issues were re-
solved on March 9, medical coverage for employees on
leave, vacation pay for piecework setters, and posting
vacation days. Although these were not major issues,
some progress was still being made. Respondent relies
heavily on Berger's testimony that, at the March meet-
ings that he attended (only the meetings of March 7 and
March 9), the Union's position had become more rigid
and that the Union had no expectation neither the the
desire to change its position. However, this rather self-
serving, conclusionary testimony must be read along
with Berger's further testimony concerning his assess-
ment of thq negotiations and the Associations' bargaining
strategy. Berger admitted that there was movement and
changes during the negotiations, but the movement was
so small that from the Employers' point of view they felt
that there was no possibility of arriving at an agreement
on that date. Berger admitted that the Associations knew
that their offer of February 28 was not their final offer,
and that further offers would be made by them, but that
they had concluded that they would make an additional
offer until the Union changed its position. Thus it is clear
that bargaining had continuously been conducted, and
was still in active progress when Respondent withdrew
from the Association on March 16, and that no impasse
existed at that time.
Even were i to find that an impasse existed on March
16, Respondent was still not privileged to withdraw from
the Association. The Board has, in Bonanno, supra, reaf-
firmed its longstanding position that impasse is not an un-
usual circumstance justifying withdrawal from multiem-
26 Id at 424
27 Ibid.
2s 173 Nl.R at 425
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer bargaining. Moreover, it must be noted that Re-
spondent's withdrawal was not motivated in any way by
the alleged existence of an impasse. Chalson admitted
that, although he thought that there was an impasse as of
February 28, he did not withdraw at that time because
he did not wish to break up the Association or to engage
in individual bargaining with the Union. His decision to
withdraw from the Association, I find, was solely attrib-
utable to the fact that his employees executed the peti-
tion seeking to withdraw from the Union on March 16.
Noted in this regard is the fact that no reason was given
by Respondent at the time of its withdrawal from the
Association and the fact that Chalson was unaware of
the status of negotiations of March 16.29
In Acme Wire Works, Inc., 229 NLRB 333 (1977), the
Administrative Law Judge, affirmed by the Board, citing
Retail Associates, found that "it is axiomatic that the deci-
sion to withdraw from multiemployer bargaining must be
made in good faith with the utilization of a different
course of bargaining on an individual basis."3 0
This holding is consistent with the underlying ration-
ale of the various circuit court opinions, which reject the
Board's approach that impasse is not an unusual circum-
stance justifying withdrawal from multiemployer bar-
gaining. The courts stress the imbalance in bargaining
weapons that the Board creates by permitting the Union
to enter into individual contracts with some employers in
a multiemployer unit, while binding the remaining mem-
bers to the Association contract. This sanctioning of
"whipsawing" employers the courts believe to be unfair,
and therefore have permitted employers, after impasse,
to withdraw from multiemployer bargaining upon notifi-
cation to the Union. It follows from an analysis of the
reasoning of the Courts' opinions in these cases that the
existence of the impasse should be responsible for the
employer's withdrawal and that individual bargaining
with the Union be contemplated by the withdrawing em-
ployer, in order to justify the withdrawal from such
group bargaining. The issue is skirted by the Second Cir-
cuit in Independent Steel Fabricators, supra, where the
court found that it was not significant that respondents
failed to attribute their withdrawal to an impasse in their
letter to the Union. The Court found that in the context
of that case, Respondent's invocation of the impasse doc-
trine does not appear to be an "afterthought." However,
the facts in the instant case clearly establish and I so find
that Respondent's invocation of the impasse doctrine
herein was such an afterthought.31 Accordingly, since
Respondent's desire to withdraw from the unit was not
motivated by the alleged "impasse," this is further sup-
2 Chalson made no effort to check on what progress if any was made
during the negotiations from February 28 through March 16. He testified
that his knowledge of the progress in bargaining was gleaned partially
from reading newspaper accounts of the meetings. When pressed further
on this point, it became clear that Chalson did not see these newspaper
articles until after he withdrew from the Association. Thus, it is obvious
that the alleged impasse had no effect on Chalson's decision to withdraw.
but that such action was taken due to the antiunion petition signed by his
employees.
5o 229 NLRB at 336.
3J N.LR.B. v. Tulsa Sheet Metal Workers Inc., 367 F.2d 55, 58, and 63
(10th Cir. 1966), enfg. 149 NLRB 1487 (1964).
port for finding that Respondent cannot lawfully rely
upon such an impasse to justify such withdrawal.3 2
Respondent argues alternatively that under the Board's
Bonanno decision, which defines the type of interim
agreements sanctioned by the Board, Respondent's with-
drawal from the Association is justified. In Bonanno, the
Board, in reaffirming its disagreement with the circuit
courts' position that impasse is an unusual circumstance
justifying withdrawal from group bargaining, discussed
the types of interim agreements which it believes were
destructive of group bargaining. Respondent argues that
the Union's actions in bargaining an individual contract
with B. F. Hirsch, one of the largest employers in the
JMA, which contract has not been shown to meet the
criteria of an "interim" agreement under Bonanno, cre-
ates withdrawal rights for Respondent. Respondent urges
that this conduct by the Union undermines the integrity
of the multiemployer unit and is bound to affect the sta-
bility of the unit. Thus Respondent would be privileged
to withdraw from the multiemployer unit. 33
The first problem with Respondent's contention cen-
ters on the issue of appropriate unit. Hirsch was a
member of JMA and not a member of AJI, the Associ-
ation to which Respondent belonged. Although the two
Associations have bargained jointly for a contract, and
the new contract executed by the Associations was a
single document, I have found that the appropriate unit
for bargaining covering Respondent's employees is the
AJI. I note that prior contracts had been executed sepa-
rately, and each Association has a separate and distinct
membership. Therefore since no members of AJI were
permitted to withdraw, Hirsch's withdrawal from the
JMA cannot be said to have affected the stability of the
separate appropriate unit of the members of the AJI.
However, even if Respondent's argument that since
the two Associations have conducted joint negotiations
Hirsch's withdrawal can be said to have affected the sta-
bility of the AJI, were accepted, Respondent would still
not be privileged to withdraw from the Association.
The Board has clarified its Bonanno decision with re-
spect to the execution of separate agreements with mem-
bers of multiemployer units. In a series of three related
cases,3 4 the Board held that "it does not follow ipso facto
that execution of individual separate contracts with
former Association members either proves an intention
to destroy, or necessarily causes the fragmentation of a
multiemployer unit. Rather, the facts of each case must
be assessed in order to ascertain the impact of the par-
ties' conduct upon the continued viability of multiem-
ployer bargaining."
An examination of the facts in Tobey reveals a very
close parallel to the facts of the instant case. In Tobey the
union permitted two employers to withdraw from an as-
sociation and entered into separate contracts with these
32 Birkenwald Inc.. d/b/a Birkenvwald Distributing Co., 243 NLRB No.
55 (1979).
"a Typographic Service Co., et al. 238 NLRB 1565 (1978); Cornell Type-
setting Company, et al., 212 NLRH 918 (1974).
s' Tobey Fine Papers of Kansas City, Divisions of Distribix. Inc., 245
NLRB No. 181 (1979); Butler Paper Company. Division of Great Northern
Nekoosa Corporation, 245 NLRB No 182 (1979); Graham Paper Company.
Division of Jim Walter Paper. Inc., 245 NLRB No. 180 (1979).
32
WM. CHALSON & CO., INC.
employers. One of the employers permitted to withdraw
was the largest employer in the association, and the com-
bined actions of the two employers had the effect of di-
minishing employee complement by 14 and 42 percent,
respectively."3
Following the withdrawals, the union in Tobey contin-
ued to negotiate with the remaining members of the asso-
ciation and eventually reached agreement with the asso-
ciation on terms of a new contract. In addition, the re-
spondents therein all withdrew from the association at
the same time that they filed RM petitions at the Board,
alleging that a majority of their employees no longer
wish to be represented by the Union.
The Board found that in those circumstances, respond-
ents' withdrawals were not justified by union conduct
which it asserts was inimical to group bargaining and
substantially weakened and fragmented the association
bargaining unit. The Board's reasoning which applies
equally to the facts in the instant case is as follows:
Rather, we view the Union's and Association's con-
tinued bargaining efforts and successful conclusion
as a forceful rebuttal to Respondent's charge that
the Union's earlier conduct manifested a rejection
of multiemployer bargaining and had a fatal impact
upon it. Moreover, we note that the concurrent
withdrawals and filings of representation petitions
were, in each case, expressly tied to an expression
of doubt as to the Union's majority support among
the respective employees rather than predicated
upon the impasse, strike, objectionable union con-
duct, or any deficiency in the Association or its via-
bility. [245 NLRB No. 181, sl. op., p. 11 (1979).]
The Board also distinguished Typographic Service,
supra, where 7 out of 17 employer members were permit-
ted to withdraw from the Association, and offered to
cease strike activities in return for these Employer's
abandonment of the Association's contract proposals.
This conduct thereby dissolved the viability of the mul-
tiemployer bargaining unit.
The facts of the instant case clearly fall within Tobey
rather than Typographic Service. Thus only one employ-
er was permitted to withdraw from the Associations,3 6
bargaining continued with the Associations after Hirsch's
withdrawal, and agreement with the Associations was
reached shortly after the withdrawal of Hirsch was per-
mitted. In addition, as in Tobey, Respondent's withdrawal
from the Association was tied to an expression of doubt
as to the Union's majority support among its employees,
"s As noted, the record in the instant case does not establish the total
number of employers or employees in the two Associations. It does estab-
lish that Hirsch is one of the largest employers in the Associations em-
ploying 180-200 employees. The record also reveals that there are 19 em-
ployer members in the AJI alone. Thus it is doubtful whether Hirsch's
withdrawal would diminish the employer or employee complement of the
two Associations in excess of the 14 and 42 percent as in Tobey.
3' See also Birkenwald, Inc. d/b/a Birkenwald Distribution Company,
243 NLRB 1151 (1979), where the Board found the execution of a sepa-
rate agreement with the largest employer in the Association of II em-
ployers, comprising 30 percent of the employee membership in the Asso-
ciation, was found not to be sufficient fragmentation of the unit to consti-
tute an unusual circumstance justifying withdrawal from the unit.
rather than predicated upon the impasse or any deficien-
cy in the Association or its viability.
Accordingly, I find that Respondent's untimely with-
drawal from multiemployer bargaining was unwarranted,
and that by that conduct and its subsequent refusal to ex-
ecute or abide by the Associationwide collective-bargain-
ing agreement, Respondent has violated Section 8(a)(1)
and (5) of the Act.
In addition, Respondent has further violated Section
8(a)(l) and (5) of the Act by withdrawing recognition
from the Union. Since the appropriate unit is the mul-
tiemployer Association unit, the fact that a majority of
Respondent's employees withdrew their support from
the Union is immaterial, and does not permit Respondent
to refuse to recognize or bargain with the Union.3 7
B. The Antiunion Petition
The corrected complaint alleges that Respondent,
acting through Bernard Chalson, Bruce Freemen, and
Fred Lissaris, condoned, approved, sponsored, and en-
couraged the circulation among its employees and their
signing of an antiunion petition, and offered and prom-
ised to its employees a profit-sharing plan to induce its
employees to abandon their membership in, and their ac-
tivity on behalf of the Union.
The evidence established that Supervisor Freeman was
present on the morning of March 16, when Fred Lissaris
spoke to employee Nardozza about signing an antiunion
petition. Nardozza said that he did not want to do so.
Although Freeman said nothing at the time, later on in
the day, just before lunch, he approached Nardozza in
the shop. Freeman asked why Nardozza did not want to
sign, and added that he would be better off without the
Union. Freeman concluded his remarks by saying
"You'll be taken care of, everything will be much better
than the Union." I find that these remarks by Freeman
constitute an implied promise of benefits to employees to
induce them to abandon their support of the Union in
violation of Section 8(a)(1) of the Act.38
The antiunion petition was solicited by Lissaris shortly
before I p.m. that same day. The employees asked ques-
tions about what benefits they would receive if they left
the Union. Lissaris, before answering these questions, on
two or three occasions went into Bernard Chalson's
office and returned with answers. He told the employees
that they would receive a profit-sharing plan (which the
employees did not have under the Union), and that gen-
erally they would receive better benefits from Respond-
ent if they signed the petition and left the Union.
The issue to be determined therefore is whether or not
Respondent is responsible for the conduct of Lissaris in
these circumstances. The critical issue in making a deter-
mination whether an employee had the apparent authori-
ty to act for Respondent, is whether, under all the cir-
cumstances, the employees would reasonably believe that
the employee was reflecting company policy, and speak-
3" Bel-Window. Division of Balknap Glass Company, 240 NLRB 1315
(1979); Sheridan Creations. Inc., 148 NLRB 1503 (1964), enfd 401 F.2d
673 (2d Cir. 1966).
38 Vincent C. Vandemotter, d/b/a Rex Printing Company, 227 NLRB
1144 (1977); Berbiglia. Inc., 233 NLRB 1476 (1977).
33
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing and acting for management.
3 9 Based on my review
of the evidence in this record, I am persuaded that em-
ployees would reasonably believe that Lissaris was re-
flecting company policy and speaking for management in
connection with his solicitation of the petition and that
Respondent is responsible for Lissaris' activities relating
to such solicitation.
Lissaris was more than just an employee, as he was
known as an assistant foreman, shared an office with Su-
pervisor Freeman and did distribute work to employees.
What I find most significant, however, are the circum-
stances of the actual solicitation of the petition. Lissaris,
in full view of the employees, went in and out of Chal-
son's office and came back with answers to the employ-
ees' questions about what benefits they would receive if
they left the Union. Moreover, Lissaris, in response to
Cerrato's question as to why Chalson did not give the
men the answers himself, told the employees that Chal-
son could not speak directly with the men about the sub-
ject, since for him (Chalson) to do so would be against
the law. These circumstances are highly indicative of
management support and approval of Lissaris' actions.
40
In addition, the fact that Supervisor Freeman violated
Section 8(a)(l) of the Act, as noted, by promising bene-
fits to induce signing of the petition, further demon-
strates to employees that Lissaris' similar conduct was
reflective of management's attitude toward said peti-
tion.4
Thus in summary I find as did the Board in Communi-
ty Cash Stores, Inc., supra, that Lissaris in his activities
focusing on the solicitation of antiunion statements, in
which Respondent could not lawfully engage, acted as
Respondent's emissary. The solicitation campaign was
implicitly adopted and supported by Respondent's super-
visors, and employees could reasonably believe that Lis-
saris reflected company policy. Respondent is therefore
responsible for Lissaris' conduct in soliciting the petition,
and has violated Section 8(a)(l) of the Act by sponsor-
ing, condoning, and encouraging the execution of such
petition. 42
Moreover, Lissaris' statements to employees that they
would receive better benefits, including a profit-sharing
plan if they withdrew from the Union, constitute unlaw-
ful promises of benefit calculated to persuade employees
to rid themselves of the Union in violation of Section
8(a)(l) of the Act. Maywood Plant of Grede Plastics, A Di-
visions of Grede Foundaries Inc., 235 NLRB 363 (1978);
a9 Community Cash Stores, Inc., 238 NLRB 265 (1978).
40 Delridge Associates, Inc d/b/a Dellridge Nursing Home, 234 NLRB
595 (1978); Haynes Industries, Inc., 232 NLRB 1092 (1977) Pepi
Cola
Bottling Company of St. Mary's, Inc., 200 NLRB 922 (1972); Dorsey Labo-
ratory, Division of Sandoz, Inc., 239 NLRB 857 (1978).
4 American Lumber Sales, Inc., 229 NLRB 414 (1977); Columbia
Building Materials. Inc., 239 NLRB 1342 (1979); Community ('ash Stores,
Inc.. supra.
42 The possibility that Chalson himself had a larger role in the spon-
sorship of the petition than is apparent, is raised by Chalson's
testimony
under cross-examination Chalson admitted that he discussed
decertifica-
tion with his attorney a week prior to the circulation of the petition
He
further admitted that he told his attorney at that time that he wanted
to
implement the desires of his employees "whatever they turned
out to be "
When asked what made him think that something was turning
about, his
response was "only my reaction to the general situation" and "as
obvi-
ously appeared shortly thereafter the employees were dissatisfied
with
what the Union was demanding of them."
Royal Himmel Distributing Co., 203 NLRB 370 (1973);
Columbia Building, supra; Berbiglia, supra.
43
C. The Layoffs of Hansen and DaRocha
Hansen and DaRocha were informed on the afternoon
of Tuesday, March 13, by Bruce Freeman that there was
no work for them, and that they were laid off. They
were told to call back on Monday, March 19, to see if
any work had come in for them. On March 16, as noted,
the petition was circulated at Respondent's premises and,
as I have found above, was sponsored, condoned, and
encouraged by Respondent. Hansen was the shop ste-
ward, was the only waxer in the shop, had over 30
years' experience, and had not been laid off since 1950.
Moreover, work ordinarily performed by Hansen was
done by Freeman and Lissaris during the period of her
layoff.
These facts tend to support the General Counsel's
theory that Hansen was laid off in order that she would
not be present in the shop to interfere with the decertifi-
cation petition.
An examination of Respondent's defense only rein-
forces the conclusion that the layoffs were violative of
the Act. Respondent contends that work was unusually
slow during the time of the layoff, and there was simply
not enough work for Hansen or DaRocha to perform.
Respondent points to the fact that two nonunit employ-
ees were laid off the week before. However, it is signifi-
cant that when these nonunit employees were laid off,
they were not told to call back to see if work had come
in, and in fact have not been recalled. Yet, Chalson al-
though admitting that he had no basis for knowing
whether or not there would be work coming in for
Hansen or DaRocha, instructed them to call on Monday,
the 19th, to see if there was work available for them.
This leads me to believe that although work was some-
what slow during this period, Respondent did in fact
have work for Hansen and DaRocha on March 13, but
laid them off in order that they not be present during the
circulation of the decertification petition. My conclusion
in this regard is fortified by Respondent's own records
which indicate that on March 13, the very day the lay-
offs were announced, 49 jobs came in to Respondent,
nearly double the amount of jobs registered for any
other day during the 2-month period of February and
March.
I also find it significant that Respondent did not call
Bruce Freeman to testify. Freeman, Respondent's super-
visor, and the nephew of Bernard Chalson, was, accord-
ing to Chalson, the one who made the selection of
Hansen and DaRocha for layoff. Yet, Freeman was not
called as a witness, nor was any explanation offered why
he was not called. "Where relevant evidence which
would properly be part of a case is within the control of
4A Respondent argues that the reason that employees signed the peti-
tion was due to the Union's attempt to assess 10 percent of
the employees
salaries to support the locked-out union members employed by other
em-
ployers. Although I find that this was a factor in the minds of some
of
the employees, I am also persuaded that the unlawful promises
of benefit
made by Lissaris and Freeman also contributed substantially to the deci-
sion of the employees to sign the petition to withdraw their support
from
the Union.
34
WM. CHALSON & CO., INC.
a party, whose interest it would naturally be to produce
it, and he fails to do so, without satisfactory explanation,
the trier of fact may draw an inference that such evi-
dence would have been unfavorable to him."44
Accordingly, I conclude that the failure of Respondent
to produce Freeman in this case, "irresistably" 4 5 calls
for the application of this rule, and permits me to draw
the inference, which I do, that Freeman's testimony
would be unfavorable to the defense of Respondent's lay-
offs of Hansen and DaRocha. 46
Therefore, I find that a preponderance of the evidence
establishes that Hansen and DaRocha 4 7 were laid off in
violation of Section 8(a)(1) and (3) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the
Act. In this connection, I shall recommend that Re-
spondent immediately sign and implement the agreement
reached between the Union and Associate Jewelers, Inc.,
and give retroactive effect as of March 21, 1979 (The
Carvel Company and C And D Plumbing and Heating
Company, 226 NLRB 111 (1976)), and make employees
whole for any loss of earnings suffered since then as a
result of its failure to apply the said agreement. Backpay
is to be computed in accordance with Ogle Protection
Service, Inc., 183 NLRB 682 (1970), with interest thereon
as perscribed in Florida Steel Corporation, 231 NLRB 651
(1977).48 Nothing herein is to be construed as requiring
Respondent to recoup wages or benefits already received
by its employees. Respondent will also be directed to
make payments into the various funds on behalf of those
employees in the unit for whom such contributions
would have been made had Respondent not unlawfully
repudiated the collective-bargaining agreement. Vin
James Plastering Company, 226 NLRB 125 (1976).
I shall also recommend that Respondent make whole
its employees Elizabeth Hansen and Frank DaRocha for
any loss of earnings suffered by them as a result of their
unlawful layoff. The backpay provided herein shall be
computed, with interest, in the manner prescribed in F
W. Woolworth Company, 90 NLRB 289 (1950); and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).
Upon the foregoing findings of fact and upon the
entire record in this proceeding, I make the following:
44 Martin Luther King, Sr. Nursing Center, 231 NLRB 15 (1977).
's Gulf-Wandes Corporation, 233 NLRB 772 (1977).
46 Pyro Mining Company. Inc., 233 NLRB 233 (1977); Fred Stark and
Jamaica 201 St Corp., Inc., 213 NLRB 209 (1974); Goodyear Tire and
Rubber Company Highway Transportation Department, 190 NLRB 84
(1971); Gulf Wandes, supra, Martin Luther King. supra.
'7 DaRocha was not a union official, nor did he engage in any union
activities. However, I find that DaRocha was selected for layoff by Free-
man because it was known that he did not get along with Lissaris and or
in order to justify the concurrent layoff of Hansen I again rely, in part,
in making this finding, upon the adverse inference that I draw from Free-
man's failure to testify as set forth above.
4' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCI.USIONS OF LAW
1. Respondent Wm. Chalson & Co., Inc., is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Amalgamated Jewelry, Diamond and Watchcase
Worker Union Local No. 1, IJWU, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. The Union is, and has been at all times material
herein, the exclusive bargaining representative of the em-
ployees of Respondent in the following appropriate bar-
gaining unit:
All production employees, employed by the em-
ployer members of the Associated Jewelers Inc., but
excluding office and factory clerical employees,
porters, messengers, professional employees, non
producing employees and all supervisors as defined
in Section 2(11) of the Act.
4. By its untimely unilateral withdrawal from the mul-
tiemployer unit, and by its subsequent refusal to sign and
implement the collective-bargaining agreement reached
between the Union and the Association, on April 16,
1979, effective March 21, 1979, and by its withdrawal of
recognition from the Union as the collective-bargaining
representative of its employees, Respondent has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(l) and (5) of the Act.
5. By sponsoring, condoning, and encouraging the cir-
culation among its employees and their signing of an an-
tiunion petition, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the Act.
6. Promising its employees a profit-sharing plan, better
benefits, and other improvements in their terms and con-
ditions of employment, in order to induce its employees
to sign an antiunion petition or otherwise reject the
Union as their bargaining representative, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(l) and (5) of the Act.
7. By laying off its employees Elizabeth Hansen and
Frank DaRocha in order to discourage membership in
the Union, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER49
The Respondent, Wm. Chalson & Co., Inc., New
York, New York, its officers, agents, successors, and as-
signs, shall:
49 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
Continued
35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. Cease and desist from:
(a) Sponsoring, condoning, or encouraging the circula-
tion among its employees, and their signing of, an antiun-
ion petition.
(b) Promising its employees a profit-sharing plan,
better benefits, or other improvements in their terms and
conditions of employment, in order to induce its employ-
ees to sign an antiunion petition or otherwise reject the
Amalgamated Jewelry, Diamond and Watchcase Worker
Union Local No. , I.J.W.U., AFL-CIO, herein called
the Union, as their bargaining representative.
(c) Laying off or otherwise discriminating against its
employees, in regard to hire and tenure of employment,
in order to discourage membership and activities on
behalf of the Union.
(d) Refusing to recognize or bargain collectively with
the Union, as the exclusive bargaining representative of
its employees in the appropriate multiemployer bargain-
ing unit.
(e) Refusing to sign and implement the 1979-82 collec-
tive-bargaining agreement reached between the Union
and the Associated Jewelers Inc., with respect to the em-
ployees in the appropriate unit.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act, as amended.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Forthwith sign and implement the above-described
agreement and give retroactive effect thereto from
March 21, 1979.
(b) Make whole its employees in the appropriate bar-
gaining unit for any loss of pay or other employment
benefits which they may have suffered by reason of its
refusal to sign and implement the aforesaid agreement in
the manner set forth in the section of this Decision, enti-
tled "The Remedy."
(c) Make whole its employees Elizabeth Hansen and
Frank DaRocha for any loss of earnings they may have
suffered as a result of the discrimination practiced against
them in the manner set forth in the section of this Deci-
sion, "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payments records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its New York, New York, facility copies of
the attached notice marked "Appendix." 50 Copies of said
notice, on forms provided by the Regional Director for
Region 2, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
8o In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity
to present their evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice. We
therefore notify you that:
WE WILL NOT sponsor, condone, or encourage
the circulation among our employees, and the sign-
ing of, an antiunion petition.
WE WILL NOT promise our employees a profit-
sharing plan, better benefits, or other improvements
in their terms and conditions of employment, in
order to induce our employees to sign an anti-union
petition or otherwise reject the Amalgamated Jew-
elry, Diamond and Watchcase Workers Union
Local No. , IJWU, AFL-CIO, herein called Union
as their collective-bargaining representative.
WE WILL NOT layoff or otherwise discriminate
against our employees, in regard to hire or tenure of
employment, in order to discourage membership in
the Union.
WE WILL NOT refuse to recognize or bargain col-
lectively with the Union as the exclusive bargaining
representative of the employees in a appropriate
multi-employer bargaining unit, or refuse to sign or
implement the 1979-82 contract between the Union
and the member-employers of the Associated Jewel-
ers Inc.
WE WILL NOT in any like or related manner, in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the National Labor Relations Act.
WE WILL forthwith sign and implement the
above-mentioned contract and gave retroactive
effect thereto to March 21, 1979.
WE WILL make our employees whole in the ap-
propriate bargaining unit for any loss of pay or
other employment benefits they may have suffered
by reason of our refusal to sign and implement the
aforesaid collective-bargaining agreement, with in-
terest.
WE WIL.L make whole Elizabeth Hansen and
Frank DaRocha for any loss they may have suf-
fered by reason of our discrimination practiced
against them, with interest.
WM. CHALSON & CO., INC.
36