A & A Maintenance Corp.

National Labor Relations Board - Board Decisions

Jun 16, 1965

152 N.L.R.B. 1617 (N.L.R.B. 1965)

A & A MAINTENANCE CORP. 1617
mortar as backup material to receive ceramic tile in the Roanoke Build-
ing at Minneapolis, Minnesota.
2. Operative Plasterers and Cement Masons International Associa-
tion, Plasterers and Cement Masons, Local No. 65, and Dan Gustaf-
son, are not entitled, by means proscribed by Section 8(b) (4) (D) of
the Act to force or require Twin City Tile and Marble to assign the
above work to plasterers.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Operative Plasterers and Cement Masons International
Association, Plasterers and Cement Masons, Local No. 65, and Dan
Gustafson, shall notify the Regional Director for Region 18, in writing,
whether they will or will not refrain from forcing or requiring Twin
City Tile and Marble Company, by means proscribed by Section 8(b)
(4) (D), to assign the work in dispute to plasterers rather than tile
layers.
A & A Maintenance Corp . and Taxi Drivers Organizing Commit-
tee, AFL-CIO. Case No. 2-CA-10292. June 16, 1965
DECISION AND ORDER
On March 12, 1965, Trial Examiner Ivar H. Peterson issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations -Vet, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner , and orders that
152 NLRB No. 157.
789-730-66-vol. 152-103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, A & A Maintenance Corp., New York, New York, its offi-
cers, agents, successors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges duly filed on October 2, 1964,1 by Taxi Drivers Organizing Com-
mittee, AFL-CIO, herein called the Union, the General Counsel of the National
Labor Relations Board, by the Acting Regional Director for Region 2, issued a
complaint on December 9 against A & A Maintenance Corp , herein called the
Respondent, alleging that the Respondent had engaged in certain conduct violative
of Section 8(a)(1) of the National Labor Relations Act, as amended. In its answer,
the Respondent denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Ivar H. Peterson in
New York, New York, on January 25, 1965. The General Counsel, the Respondent,
and the Union were represented by counsel and were afforded full opportunity to
participate in the hearing, and to argue orally and file briefs. No briefs have been
filed. The motion of the Respondent to dismiss the complaint, upon which ruling
was reserved, is disposed of in accordance with the findings and recommendations
below
Upon the basis of the entire record in the case, and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, and 19 affiliated companies named in
the complaint, operate as a single integrated business enterprise in furnishing taxicab
and related services in and about the city of New York, operating from the same
office and terminal. During the year preceding issuance of the complaint, the
Respondent and its affiliated companies derived gross revenues from taxicab opera-
tions in excess of $500,000. During the same period, the Respondent purchased
taxicabs, parts, and other goods and materials valued in excess of $50,000, of which
goods and materials valued in excess of $50,000 were received from enterprises
within the State of New York which in turn had received such goods and materials
directly from States other than the State of New York. The Respondent admits, and
I find, that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Union was formed in September 1964 by the executive board of the New York
City Central Labor Council to aid in organizing taxicab drivers in New York City.
It consists of representatives of affiliate members of the Central Labor Council and
an equal number of taxicab drivers. It appears that the Union succeeded a some-
what similar organization, known as Taxi Drivers Alliance, herein called TDA, which
theretofore had engaged in organizing activities among taxicab drivers. The function
of the Union is to assist in organizing taxicab drivers and to represent them in col-
lective bargaining. I find, contrary to the Respondent's contention, that TDA was,
and the Union is, a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint, as amended, alleges that the Respondent's president, Stanley Wissak,
engaged in certain conduct violative of Section 8(a)(1) of the Act. In paragraph 6
the complaint alleges that about the middle of August and on or about September 5,
Wissak "warned and directed its employees not to accept, sign or execute application
cards for TDA or the Union, and to destroy such application cards previously exe-
cuted and refrain from becoming or remaining members of TDA or of the Union,
and to refrain from giving any assistance or support to them." Paragraph 7 charges
that about the middle of September Wissak "offered, promised and granted to its
employees free automobile parts, and promised other benefits and improvements in
their working conditions and terms of employment to induce them to refrain from
i Except as otherwise noted, all dates refer to the year 1964
A & A MAINTENANCE CORP. 1619
becoming or remaining members of the Union, and to refrain from giving any assist-
ance or support to it, and to induce them to abandon their membership in and
activity on its behalf." The General Counsel presented two witnesses in support of
these allegations-John Murphy, who had been a driver employed by the Respondent
for about 5 years prior to his discharge on September 29,2 and James Martini, who
had worked for the Respondent 7 years as a driver and was still employed at the
time of the hearing.
Murphy became interested in the TDA early in July, and thereafter solicited signa-
tures to TDA authorization cards among fellow drivers and spoke to them about the
need for organization. After the Union succeeded the TDA, Murphy continued to be
active on its behalf.
The Respondent's drivers are divided into a day shift and a night shift, those on
the night shift taking over operation of the cabs between 3.30 and 5 p.m., depending
upon when the day-shift driver returns to the terminal On a day in the middle of
August Murphy, while waiting at the terminal for his cab to be serviced prior to
taking it out on the night shift, was approached by another driver, Sol Rodgen, who
wanted to sign a union card Murphy and Rodgen went up a stairway to a small
balcony locker area, at least partially visible from the floor of the terminal, where
Rodgen signed the card and paid Murphy $1 as an "initiation fee" and was given a
receipt by Murphy. According to Murphy, while the card signing was occurring,
Wissak "was downstairs . looking up through the stairs and watching .. . .
Murphy's testimony as to what next transpired is as follows:
Q. (By Mr. CRONIN.) What happened after that?
A. I went down the stairs, walked over to the grease rack.
In the meantime Mr. Wissak grabbed ahold of this other driver, Sol Rodgen;
took him into a little locker room and had him in there for a few minutes, and
all of a sudden the two of them came out and Wissak yelled over to me, "Hey,
give him back his card."
So I walked over. The man come to me and said, "Here," and offered me
the receipt and asked me for the card and I gave him the card.
He proceeded to tear up the card in front of Mr. Wissak and threw it in the
barrel.
I returned him his dollar and he gave me the receipt back, and there was a
lull for a while, for a few minutes.
Mr. Rodgen walked out the 52nd Street side door and then Mr. Wissak went
to work on me.
He wanted to know in a loud voice whether I was a union organizer. He
went into a tantrum that he don't want no union around here, he would put
the cars up against the wall .... Rather than have a union he would let the
cars lay against the wall and close the place down ... and he screamed that he
spent [would spend] thousands to keep the union out of the place.
Murphy testified that the mechanics on duty and two drivers, whom he named,
were present while Wissak made the foregoing statements. He admitted, on cross-
examination, that his prehearing affidavit did not include the statements he attrib-
uted to Wissak, namely, the inquiry whether he was an organizer, and that Wissak
said he did not want a union in the terminal, would close and put the cars "against
the wall" if a union came in , and would spend thousands to keep a union from
coming in. Murphy was positive, however, that Wissak had made the statements to
which he testified.
Wissak's account of the incident related by Murphy is as follows:
Q. On this August afternoon did you observe Mr. Murphy?
A. Yes.
Q. What was he doing?
A. Well, he was in the center of the floor talking to some of my drivers as
they pulled out. As the cars were waiting to go out, he would be talking to
them ... holding up the shift . . . . Murphy would be stopping some of the
drivers, the cars weren't going out fast enough .... So I told Murphy, "Please
leave the drivers alone." And he got indignant. He said, "I will do what I
want. You can't tell me what to do." He said, "You're no good," he said,
"your father ... threw you out five years ago because you were no good "
So I said to him, I said , "Will you please leave the drivers alone? I want to
get this shift out."
2 Murphy's discharge , although alleged as a violation of Section 8(a)(3) in the charge
filed herein , is not included in the complaint as an unfair labor practice.
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And he says, "I'll do what I want around here."
Then we had a couple of heated words ... then he got very indignant and
I thought he was going to start a fight with me, and I said, "I am not from
fighting people, let my shift go through." He was still disrupting my shift ....
Q. Was anything said by him to you about Tojo?
A. Yes. He called me, he said, "I know you, Tojo," and he has called me
that name .... He said, "I will be your boss yet, Tojo, you ......
Q. Was his voice loud?
A. As loud as mine. I think we both got a little heated ....
Q. And you walked away?
A. No, I think my manager came out and said stay away from him, "I'll
take care of him," something to that effect.
Q. Now, after that, when did you next see Mr. Murphy?
A. Well, I looked up in the drivers dressing room where the drivers have
their lockers , and I saw him talking to a Mr. Rodgen.
Q. What happened next?
A. Murphy went down and I went up and Mr. Rodgen asked me what hap-
pened . So I told him what he called me, "Tojo," and he said he'd be my boss,
and Rodgen told me that's the way he spoke with you.
The next thing I know Rodgen walked over to him, they had a couple of
words and Rodgen ripped up something and threw it in the wastepaper basket.
Wissak further testified that he had not asked Rodgen if he had signed a union
card and that he had not instructed Rodgen to tear up his card. He denied having
asked Murphy if he was a union organizer, or having told him that he did not want
a union in the garage, that he would put the cars against the wall and sell out if
the Union came in, or that he would spend thousands to beat the Union. He spe-
cifically denied that he told Murphy to give the union card back to Rodgen.
On cross-examination, Wissak acknowledged the truth of the statement made in
his prehearing affidavit, that he "might have told a man who I saw receive a card
from Murphy to tear it up," but could not recall whether that man was Rodgen.
On about September 5, driver Martini was approached by a member of the
Union's organizing committee, not employed by the Respondent, as Martini was
having a cup of coffee in the lunchroom adjacent to the terminal. Martini agreed
to sign a card, and then the following occurred:
While I was signing the card Mr. Wissak walked in and he saw me, he says,
"Don't you know that that is a slap in the face direct to me?"
I says, "I don't think I done anything wrong."
He says, "You don't have to sign with the union."
I says, "Look, I am only making an investment. If it is to help myself, fine;
if not, I only lost a dollar."
He said, "Well, you shouldn't have done that."
I said, "Look, what I do out of the garage is my own business. It doesn't
concern you a bit."
And he said a few words and he walked out ....
Two weeks after the foregoing incident, Martini approached Wissak in the garage
and asked Wissak if he would put certain parts in his (Martini's) own car; Martini
testified the following then occurred:
Q. (By Mr. CRONIN.) By car you mean your own car?
A. My own private car which I want to pay for it. I didn't want it done for
nothing.
And he [Wissaki told me, he said, "Don't worry about it. We will do the
work on one condition, you will give me a signed affidavit that you have noth-
ing to do with the union."
I told him I already signed a pledge and I am willing to go along and let it
go at that, and I had my car fixed somewhere else.
Martini testified, on cross-examination, that his prehearing statement was wrong
in attributing to Wissak the words "You do not have to pay" for the work he asked
Wissak to perform on his car, and that in fact he had told Wissak he wanted to
pay, to which Wissak replied he need not worry and that the work would be per-
formed on condition he execute an affidavit repudiating the Union. Martini fur-
ther testified he had called the error to the attention of counsel for the General
Counsel prior to testifying, after having reread his statement, because he didn't wish
to "make anybody believe that I was getting the work done for nothing." He also
A & A MAINTENANCE CORP. 1621
acknowledged that , in the prehearing interview , he had not mentioned Wissak's
request that he gave an affidavit repudiating the Union , but insisted that Wissak had
made that request.
Regarding the lunchroom incident , Wissak testified he was there having a cup of
coffee and as he finished he saw Martini and another man in a booth . Wissak saw
Martini "hand this man a dollar," whereupon he went over to Martini and asked,
"Is that the best you can do with your dollar?" He denied telling Martini that
signing the union card was a slap in the face to him or that Martini should not have
done so. According to Wissak , Martini on a number of occasions asked him to fix
Martini's private car, the last time being the Friday before the hearing . He testi-
fied, "I might have told him in September that I would try to fix his car," but denied
saying he would do so on condition that Martini sign an affidavit withdrawing from
the Union.
Both Murphy and Martini appeared to me to be honest witnesses who were sincerely
endeavoring to relate the truth. Their versions of the incidents are consistent and
plausible, and both of them stood up well under vigorous and skillful cross-examina-
tion. Wissak, on the other hand, impressed me much less favorably. His account of
the encounter with Murphy seems considerably exaggerated , particularly concerning
the extent and openness of Murphy 's solicitation and the claimed defiant reaction of
Murphy to his request not to interfere with the drivers. Murphy did not impress me
as a rash and belligerent individual, who with little or no provocation would tell his
employer "I will do what I want" and appear to be ready to start a fight. Equally
unbelievable is Wissak's testimony that Rodgen, after Wissak had related to him that
Murphy had referred to Wissak as "Tojo" and said he would be Wissak's boss, appar-
ently repented his action in signing the union card and, without more, went over to
Murphy, retrieved his card, and then tore it up. Neither Rodgen nor the garage
manager, who according to Wissak intervened by saying he would "take care of
Murphy, testified; no claim or showing was made that either of them was unavailable.
I accept the testimony of Murphy and Martini and do not credit the testimony of
Wissak where it is in conflict.
Upon the basis of Murphy's testimony, which I credit, and Wissak's admission in
his prehearing statement that he "might" have told a man he had seen receive a union
card from Murphy to tear it up, I find that Wissak did tell Rodgen to retrieve and
destroy the union card Rodgen had signed, and that Wissak further told Murphy that
he would close the terminal rather than have the Union come in and would spend
thousands of dollars to defeat the Union, and that the Respondent thereby violated
Section 8(a)(1) of the Act. I also find that Wissak's statement to Martini, that Mar-
tini's action in signing a union card was a "slap in the face " and that Martini should
not have done so, and Wissak's later statement that the Respondent would repair Mar-
tini's car on condition that Martini sign an affidavit withdrawing from the Union, con-
stitute restraint and coercion violative of Section 8(a)(1) of the Act.
Except as found above, the Respondent has not engaged in any other conduct
violative of the Act Accordingly, it will be recommended that the allegation that the
Respondent "offered, promised and granted to its employees free automobile parts,
and promised.. . improvements in their working conditions and terms of employment"
to induce employees to withhold support from or to abandon the Union, be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have aclose, intimate , and substantial relation to trade , traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
It having been found that the Respondent interfered with , restrained , and coerced
its employees in the exercise of their rights under the Act, it will be recommended
that it cease and desist therefrom and post an appropriate notice.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following-
CONCLUSIONS OF Low
1. A & A Maintenance Corp. is an employer engaged in commerce within the
meaning of Section 2 ( 2), (6), and (7) of the Act.
2. Taxi Drivers Alliance was, and Taxi Drivers Organizing Committee, AFL-CIO,
is, a labor organization within the meaning of Section 2 (5) of the Act.
1622 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
3 By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) and Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that the Respondent, A & A Mainte-
nance Corp., New York, New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Warning or directing employees not to sign, or to destroy, cards designat-
ing Taxi Drivers Organizing Committee, AFL-CIO, as their collective-bargaining
representative.
(b) Coercively thieatening employees with closure of operations or the expendi-
ture of funds to induce employees not to join or support Taxi Drivers Organizing
Committee, AFL-CIO, or any other labor organization
(c) Conditioning the performance of repair work on employee automobiles upon
withdrawal of support from Taxi Drivers Organizing Committee, AFL-CIO, or any
other labor organization.
(d) In any like or related manner interfering with, restraining, or coercing employ-
ees in the exercise of their right to self-organization, to form labor organizations, to
join or assist Taxi Drivers Organizing Committee, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or piotection, or to refrain from engaging in such activities.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Post at its terminal in New York, New York, copies of the attached notice
marked "Appendix." 3 Copies of said notice, to be furnished by the Regional
Director for Region 2, shall, after being duly signed by a representative of the
Respondent, be posted by the Respondent immediately upon receipt thereof, and main-
tained for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 2, in writing, within 20 days from the
date of receipt of this Decision and Recommended Order, what steps the Respondent
has taken to comply herewith .4
It is further recommended that the complaint be dismissed insofar as it alleges
violations of Section 8(a) (1) of the Act not specifically found herein.
In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order "
4 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 2, in writing, within
10 days from the date of this Order, what steps it has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify you that:
WE WILL NOT warn or direct employees not to sign, or to destroy, cards
designating Taxi Drivers Organizing Committee , AFL-CIO, as their collective-
bargaining representative.
WE WILL NOT coercively threaten employees with closure of operations or
the expenditure of funds to induce employees not to join or support the above-
named or any other labor organization.
WE WILL NOT condition the performance of repair work on employee auto-
mobiles upon withdrawal of support from the above -named or any other labor
organization.
SULLY-MILLER CONTRACTING COMPANY 1623
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form, join,
or assist Taxi Drivers Organizing Committee , AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, or to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , 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 as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
All our employees are free to become or remain , or to refrain from becoming or
remaining , members of the above -named union or any other labor organization,
except to the extent that such right may be affected by an agreement in conformity
with Section 8(a) (3) of the Act.
A & A MAINTENANCE CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500,
if they have any question concerning this notice or compliance with its provisions.
Sully-Miller Contracting Company and Valentin Lucero
Construction Teamsters Union , Local 606 and Valentin Lucero.
Cases Nos. 01-CA-5755 and 21-CB-2252. June 16, 1965
DECISION AND ORDER
On March 5, 1965, Trial Examiner Henry S. Salim issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent Company and the Respondent
Union each filed exceptions to the Trial Examiner's Decision and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations for the reasons noted below.
Respondent Company discharged employee Lucero as demanded by
Respondent Union after the latter threatened to "shut the job down."
152 NLRB No. 159.