Colonie Hill Ltd.

National Labor Relations Board - Board Decisions

Aug 6, 1974

212 N.L.R.B. 747 (N.L.R.B. 1974)

COLONIE HILL LTD 747
Colonie Hill Ltd. and Mauro Squicciarini and James
Staats. Cases 29-CA-3457 and 29-CA-3462
August 6, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND KENNEDY
On February 25, 1974, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record I and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions i of the Administrative Law Judge and to
adopt his recommended Order, as modified below.
The Administrative Law Judge concluded that Re-
spondent violated Section 8(a)(1) and (2) by threaten-
ing employees with discharge unless theyjoined Local
100 Service Employees International Union, AFL-
CIO (hereafter Local 100), and also violated Section
8(a)(1), (2), and (3) by discriminatorily discharging
and refusing to reinstate Mauro Squicciarini 4 and by
reducing the pay of maintenance department employ-
ees. Respondent excepted to each of these conclu-
sions. We find merit only in its exception as to the
reduction in pay.
i Local 100 Service Employees International Union , AFL-CIO, appeared
at the hearing as Party in Interest
2 In sec . III, B, of his Decision, the Administrative Law Judge referred to
Mauro Squicciarmi 's having signed an authorization card on behalf of Local
775 He clearly meant to refer to Operating Engineers Local 30. and we
hereby correct the inadvertent error
J In concluding that Respondent violated Sec 8(a)(2) of the Act by contin-
uing to enforce the union-security provisions of a contract which it had
promised, pursuant to an informal settlement agreement of November 1972,
to cease enforcing, the Administrative Law Judge characterized the contract
as having been "the fruit of Respondent 's [presettlement] unfair labor prac-
tices," and stated that to permit continued enforcement of it "would be to
condone a continuation of the very unfair labor practices which the settle-
ment agreement was designed to cure " Since the complaint did not
allege that any presettlement conduct by Respondent was unlawful and the
lawfulness of that conduct was not litigated , it is improper to conclude from
the mere fact that Respondent executed a settlement agreement that its
presettlement conduct was unlawful . We therefore do not rely on the above
observations of the Administrative Law Judge in adopting his finding that
Respondent violated Sec. 8(a)(2)
° Although the Administrative Law Judge found that Respondent unlaw-
fully discharged Mauro Squiccianm and ordered it to post a notice that it
would reinstate him to his former or a substantially equivalent position, he
inadvertently failed to include in his Order a provision as to Squicciarini's
reinstatement The General Counsel excepted to this omission , and we shall
correct the recommended Order accordingly
It is undisputed that in April 1973 and the months
following, Respondent was experiencing severe finan-
cial difficulties which resulted in its laying off well
over 100 employees, approximately one-fourth of the
total employee complement, during that period. The
layoffs did not affect the maintenance employees.
Rather, during April Respondent reduced their pay,
beginning with that of Lockhart, the department su-
pervisor, which was cut from $360 to $300 per week.
Shortly afterwards, the pay of the other maintenance
employees, Squiccianni, Staats, Eckert, and Cabanas,
was uniformly reduced to $4.10 an hour. Respondent
contends that, as Walter Conlon, a high managerial
official, testified, the pay reductions were implement-
ed to ameliorate Respondent's deteriorating financial
condition.
The circumstances surrounding the pay reductions
support Respondent's contention. Their timing
strongly indicates that an economic motive underlay
them, since they were coincident with a general layoff
and severe financial problems.' Most importantly, the
reductions affected all maintenance employees, in-
cluding those who were indisputably Respondent's
partisians 6 While, as the Administrative Law Judge
seems to imply, Respondent could conceivably have
effected economies in maintenance by a layoff, we see
no reason to infer that the choice of a wage reduction
rather than a layoff evidenced either a discriminatory
motive or a lack of concern about a need to reduce
maintenance expenses. We also note that, consistent
with Respondent's asserted defense, when the cuts
were made, Conlon was told they were required be-
cause of Respondent's financial condition.'
The only direct evidence of unlawful motivation for
the pay reductions is Squicciarini's statement, which
the Administrative Law Judge credited, that
Respondent's personnel director, Troeckel, told him
that Staats' and Eckert's salaries were reduced be-
cause they were against Local 100. That statement,
however, is inconsistent with virtually all other record
evidence. There is no evidence that Staats or Eckert
5 The Administrative Law Judge found the timing of the cuts to be a
significant indicator of unlawful motive because one employee affected,
Staats, had in the previous month refused to Join Local 100. The record does
not indicate that Staats refused to join, but only that he failed to join Local
100 at the instant he was told he would have to join He Joined Local 100
later, attended at least one Local 100 meeting, an act which was not required
of him, and there is no evidence he had not joined Local 100 by the time the
cuts were made
6 Respondent cut the pay of Lockhart substantially, yet it had only 2
months before made him department supervisor in preference to Squicciari-
ni It also cut the pay of Cabanas , a relative of Walter Conlon, a high
management official
r The Administrative Law Judge found that the asserted economic basis
for the cuts conflicted with a statement which Squicciarini testified Local
100's president , O'Keefe , had attributed to Respondent's president ; namely,
that the wage reductions were instituted because Respondent no longer
needed skilled mechanics . Squiccianni 's testimony in this regard was plainly
hearsay and is of no substantial probative value.
212 NLRB No. 114
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opposed Local 100 at the time the cuts occurred, and,
what is more significant, neither Was singled out for
a pay reduction or otherwise treated differently from
other maintenance department employees. In view of
these facts, we are not persuaded that the reduction
of Staats' and Eckert's pay was, discriminatorily moti-
vated, nor that of other maintenance employees.
Since there is insufficient record evidence to support
the finding that the reduction of the maintenance em-
ployees' pay was anything but economically motivat-
ed, we shall dismiss the complaint allegation as to it.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the recom-
mended Order of the Administrative`Law Judge, as
modified below, and hereby orders that Respondent,
Colonie Hill Ltd., Hauppauge, New York, its officers,
agents, successors, and assigns , shall take the action
set forth in the said recommended Order as so modi-
fied:
1. Delete paragraphs 1(c) and 2(b), and reletter the
remaining paragraphs accordingly.
2. Substitute the following for paragraph 2(a):
"(a) Offer Mauro Squicciarini immediate and full
reinstatement to his former position or, if it is not
available, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and
privileges, and make him whole for any loss of pay
suffered as a result of the discrimination against him."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT- discharge employees or otherwise
discriminate against them because of their union
or other concerted activities. -
WE WILL NOT' in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Na-
tional Labor Relations Act, as amended, except
to the extent that such rights 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.
WE WILL offer Mauro Squicciarini immediate
and full reinstatement to his former position or,
if it is not available, to a substantially equivalent
position, without prejudice to his seniority and
other rights and privileges, and make him whole
for any loss of pay suffered as a result of the
discrimination against him.
WE WILL reimburse all present and former em-
ployees for any dues, initiation fees, or other
moneys they were required to pay to Local 100
from November 2, 1972, to August 1973, which
was the period during which we were not permit-
ted to enforce the union-security provision of the
March 4, 1972, contract we had with Local 100
because it had been set aside under the terms of
a settlement agreement with the National Labor
Relations Board.
Dated By
COLONIE HILL LTD.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor, Brook-
lyn, New York 11241, Telephone 212-596-3535.
DECISION
STATEMENT OF THE CASE
GEORGE J. BoTr, Administrative Law Judge: Upon
charges of unfair labor practices filed by the above-named
individuals,' the General Counsel of the National Labor
Relations Board issued a consolidated complaint and notice
of hearing on October 25, 1973, in which he alleged that
Colonie Hill Ltd., herein Respondent or Company, had
engaged in unfair labor practices in violation of Section
8(a)(1), (2), and (3) of the National Labor Relations Act, as
amended, herein called the Act. Respondent filed an answer
and a hearing was held before me in Brooklyn, New York,
on December 17 and 18, 1973. General Counsel,and Re-
spondent were represented at the hearing, but Local 100
Service Employees International Union, AFL-CIO, the
Party in Interest, herein called Local 100, although served
with a copy of the complaint, did not appear. Subsequent
to the hearing, General Counsel and Respondent filed briefs
1 The charge in Case 29-CA-3457 was filed on June 26, 1973, and in Case
29-CA-3462 on July 3, 1973
COLONIE HILL LTD.
which have been considered.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
Respondent, a New York corporation, operates a motel,
restaurant, golf course, and catering hall in Hauppauge,
Long Island. During the year prior to the issuance of the
complaint, Respondent derived gross revenues from the op-
eration of its business in excess of $500,000 and purchased
and had delivered to its Hauppauge facility, food, liquor,
and other materials valued in excess of $50,000, of which
goods valued in excess of $50,000 were transported to its
facility in interstate commerce directly from states of the
United States other than the State of New York.
Respondent is an employer engaged in commerce within
the meaning of the Act.
11 THE LABOR ORGANIZATIONS INVOLVED
Local 100 Service Employees International Union, AFL-
CIO, herein called Local 100; Local 30 , international Union
of Operating Engineers , AFL-CIO , herein called Local 30;
and Plumbers Local Union 775 of the United Association
of the Plumbing and Pipe Fitting Industry of the United
States and Canada , AFL-CIO, herein called Local 775, are
labor organizations within the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Earlier Settlement Agreement and the Board Elec-
tion which Followed it
Pursuant to charges of unfair labor practices filed on
August 31, 1972, the General Counsel issued a complaint
alleging that Respondent had violated Section 8(a)(1), (2),
and (3) of the Act.
On November 2, 1972, an informal settlement was execu-
ted by Respondent, Local 100, and Local 164 Hotel and
Restaurant and Bartenders International Union, AFL-
CIO,2 in which Respondent agreed, inter alia, not to threat-
en employees with discharge if they refused to join Local
100; not to recognize Local 100 as bargaining representative
until certified by the Board; and not to give any force or
effect to a collective-bargaining contract with Local 100
executed on March 4, 1972. As is customary, the agreement
further provided that nothing in it should require Respon-
dent to vary or abandon any wage, hour, seniority, or other
substantive feature which it had established for its employ-
ees in agreement with Local 100.
Following the settlement agreement , a consent election
agreement was entered into providing for the holding of an
election on December 14, 1972, among employees in a unit
consisting of all full-time and regular part -time service and
maintenance employees.3
2 Local 164 is not involved in this case
749
On December 14, 1972, the election was held and Local
100, the only union on the ballot, won it by a very wide
margin. On December 26, 1972, the Regional Director of
the Board certified Local 100 as the statutory representative
of employees in a unit of service and maintenance employ-
ees.
B. Acts of Assistance to Local 100 after the Settlement
Agreement and before Certification
Mauro Squicciarini, a plumbing and maintenance em-
ployee who was alledgedly discharged because of his Local
30 activities, signed an authorization card on December 4,
1972, in which he designated Local 30 (Operating Engi-
neers) to represent him. He testified, without contradiction,
that he had three essentially similar conversations with Per-
sonnel Director Trockel in which Trockel told him that he
should sign up with Local 100 or be discharged. Squicciarini
argued that Local 100 was not the proper union to represent
the maintenance department but that Local 775 or Local 30
were, These conversations took place both before and after
he signed his card in Local 775 and before the Board elec-
tion.
Squicciarini also had a conversation with Walter Conlon
before the election in which he said Conlon told him to get
out of Local 30 and join Local 100 because he did not want
more than one union in the Company. Squicciarini said that
he also protested to Conlon that Local 100 was not the right
union for maintenance employees, but that Conlon still
urged him to get out of Local 30. He subsequently wrote to
that union and asked to withdraw.
Conlon testified that he had no conversations with Squic-
ciarini about unions but I do not credit his testimony. He
also testified that he did work for Respondent in December
1972 but rather for the architect in charge of the project.
Respondent's answer admits that Conlon is an agent of
Respondent, and I find on that ground and also because of
the nature of his functions which brought him into close
contact with employees, as revealed in his testimony, that
Respondent was responsible for his statements about
unions.4
C. Respondent 's Enforcement of the Union Security and the
Checkoff Provisions of the Old Contract with Local 100 af-
ter Local 100 's Certification and before the Execution of a
New Contract
It is clear that after Local 100 won the Board election and
was certified, Respondent, without entering into a new
agreement with Local 100, required all unit employees to
join Local 100. Squicciarini returned to work in January
1973 after a layoff for economic reasons. A week after his
return, Personnel Director Trockel asked him to join Local
100, but he refused. Employee Staats was reinstated in
March 1973, around the time that Werner Eckert was hired
3 On November 30, 1972, Local 775 (Plumbers) filed a petition to represent
the Company's maintenance mechanics, and on December 5, 1972, Local 30
(Operating Engineers) filed a motion to intervene in the pending election
proceeding, claiming to represent powerhouse and skilled maintenance em-
ployees Later, Local 30 and Local 775 withdrew their actions
Conlon testified that he "indirectly" told employees what to do
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a boilerroom attendant Shortly after his reinstatement,
while he was picking up his paycheck at the office, Staats
noticed that many employees were signing up with Local
100. Trockel told Staats that he also had to join, and when
Staats asked if he had 30 days to do so, Trockel replied that
he did not, because he had been employed earlier. Trockel
also told Staats that he would be out of a job if he did not
join Local 100. Staats walked away without joining Local
100 at that time, but he subsequently became a member.'
According to Eckert's uncontradicted testimony, Supervi-
sor Lockhart told him and Staats that they would lose their
jobs unless they joined Local 100.
Peter Napolitano, Respondent's assistant personnel di-
rector and assistant comptroller, testified that the Company
and Local 100 did not enter into a new contract after the
certification until sometime in July 1973. He also testified,
however, that the "substantive terms" of the initial contract,
including union security and checkoff, were applied after
the certification. He explained that he made the decision on
this after discussing the matter with Russo, another assistant
personnel director, and that they "assumed" that after Lo-
cal 100 was certified that the old agreement could be en-
forced "in toto" until a new agreement was executed. He did
not discuss the matter with Local 100, he said.
Conlon, who described his position with Respondent as
"liason" between the "owners" and Respondent, which
manages the project, testified that he met President O'Keefe
of Local 100 in the office of Delillo, Respondent's president,
in March 1973. He said that Delillo explained that since
O'Keefe was Local 100's president, matters involving union
representation should be discussed with him. Delillo also
"indicated" "that there was an agreement in effect and had
been in effect . . and that until a new agreement was .. .
hammered out . . . the agreement that was in effect prior
would continue in effect and that there would be a continui-
ty under that old agreement," according to Conlon. Neither
Delillo nor O'Keefe testified. I agree with General Counsel's
contention that Conlon's hearsay testimony is of no proba-
tive value on the question of the existence of an agreement
to extend the old contract, but in any case, even if it were
credited it would establish nothing more than an informal
understanding between O'Keefe and Delillo, not binding on
Respondent's employees in the circumstances of this case.
D. Squicciarini's Discharge
As found above, Squicciarini signed a union card for
Local 30 on December 4, 1972, and resisted and argued
against Trockel's and Conlon's efforts to convince him to
join Local 100.
According to his credited testimony, when Squicciarini
was reinstated after a layoff in February 1973, Napolitano
promised him the job of supervisor to replace Dickerson
who was retiring. Shortly after Squicciarini returned to work
Trockel again asked him to join Local 100, but he refused,
5 About a week or two later, Staats and Eckert were informed by Supervi-
sor Neilson that their salaries were being cut from $5 00 per hour to $4 10
per hour, because they had tojoin Local 100 and be paid according to Local
100's scale The action of Respondent of cutting salaries is a separate issue
in the case
telling Trockel that he was a supervisor. Trockel indicated
that he knew of no records to support that claim. About two
weeks later, Squicciarini was told by supervisor Neilson that
Lockhart was being placed in charge of the maintenance
department. Squicciarmi complained to Napolitano about
this, but Napolitano advised him that his uncle (Delillo) had
given Neilson complete authority to choose his own supervi-
sor.
In April 1973, maintenance employees Staats and Eckert
had their hourly rates reduced Squicciarmi testified, with-
out contradiction, that Trockel told him about the cuts and
attributed them to the fact that Staats and Eckert were
against Local 100. He also told him, however, that
Squiccianni's pay would not be reduced
On May 6, 1973, however, Squicciarini's pay as well as the
pay of the other employee (Cabanas) in the maintenance
department was cut. When Squicciarini complained to Con-
lon about the reduction, he said he would check into the
matter and get back to Squicciarini, but he never did.
According to the uncontradicted testimony of Squiccian-
ni and Staats, President O'Keefe of Local 100 told him that
Delillo had informed him that because he no longer needed
maintenance mechanics or boilerroom engineers, he intend-
ed to pay only the union scale for maintenance men and
boilerroom attendants. This was why their pay had been
cut, O'Keefe explained, but he also advised them that they
need not perform the more difficult and technical assign-
ments they normally did since they were not being paid for
it. The employees conveyed this information to Supervisors
Neilson and Lockhart, who told them that they would be
fired immediately if they did not fully perform.
Squicciarini was on Naval Reserve duty from June 3 to
June 20, and a week after his return to work, he was termi-
nated. Lockhart told him the Company did not need him,
and Neilson said the Company did not like his work.
Neilson and Lockhart did not testify. Assistant Personnel
Director Napolitano testified that Neilson told him in April
that Squicciarmi was slowing down in his work. He said he
watched Squicciarini closely and on one occasion saw him
walking in the halls when he thought he should be elsewhere
working. He also clearly indicated at another point in the
record, however, that his opinion of Squicciarini's work was
based on conversations with Neilson, Squicciarini's superi-
or.
Joseph Cabanas worked in the maintenance department
with Squicciarini He does not have the latter's skills and
probably can be accurately described as a plumber's or
mechanic's helper He testified that when Lockhart was
made supervisor instead of Squicciarini, the latter resented
it and began to work slowly. He expressed bitterness by
stating that he "had had it" at Colonie Hill and intended to
take home the special tools that he owned and used in his
work. Cabanas said there was "harmony" before Lockhart
was appointed, but after that he had to carry the "brunt of
the load " He was able to remember only two examples, he
said, of slow work on Squicciarini's part. In one case, after
inspecting a leaking pipe, Squicciarini left to get some tools
and took too long to return. In another, Squiccianni took
two or three days to complete a job which should have taken
a day. Cabanas said he made no complaints to management
about these incidents or about Squicciarini generally.
COLONIE HILL LTD.
Squicciarmi admitted that he was disappointed when
Lockhart got the supervisor job after Napolitano had prom-
ised it to him, but he credibly testified that when Napolitano
explained that Delillo had authorized Neilson to choose his
own man, he spoke with Neilson, told him that he would
work with Lockhart, and that thereafter there were no hard
feelings. He also credibly testified, without contradiction,
that no supervisor ever expressed dissatisfaction with his
work or said he was slowing down, and he added that, in
April and May, he was complimented by Lockhart, Neilson
and Conlon about work he had performed. He also denied
the substance and the implications of Cabanas' testimony
about slowing down.
In my opinion, based on my observation of the witnesses
and their testimony, Cabanas and Napolitano exaggerated
Squiccianni's attitude toward his work and his performance
after Lockhart was made supervisor. Moreover, Cabanas
made no reports about Squicciarini to management and
Napolitano admitted that his opinion of Squiccianni was
based on conversations with Neilson and very little else. I
find that Squicciarini's performance did not begin to deteri-
orate in March 1973, and that there was no justification for
his termination on that ground.
E. Reducing the Pay of the Maintenance Department
Employees
The complaint alleges that Respondent reduced the pay
of maintenance department employees because they joined
and assisted Local 30 and refrained from joining Local 100
and because they engaged in other concerted activity. It
appears from the testimony that Respondent reduced the
wages of all maintenance department employees in April
1973. Napolitano testified, without contradiction, that the
Company first cut Supervisor Lockhart's salary from $360
to $300 per week and next reduced Eckert and Staats to an
hourly rate of $4.10. Shortly thereafter, Squicciarini and
Cabanas were cut to $4.10.
Napolitano testified that because Respondent' s business
was poor in March it decided to cut its overhead in areas
such as maintenance and security, which did not generate
income. As a result, the maintenance department employees
had their wages reduced as indicated, and in April, May and
June, Respondent laid off over 100 persons. Although many
of the persons laid off were regular part-time waiters, Na-
politano testified credibly that full-time employees, such as
security personnel, clericals and a bartender, were also laid
off. Only maintenance department personnel, however, re-
ceived a cut in pay.
As indicated earlier , when Supervisors Neilson and Lock-
hart announced the cut to Staats and Eckert, they described
it as being in conformity with Local 100's wage scale. Noth-
ing was said about economy. Squicciarini was told by Per-
sonnel Director Trockel, as found above, that Staats' and
Eckert's wages were lowered because they opposed Local
100, and he added that Squicciarini's pay would remain the
same . When Squicciarini did receive a wage cut not long
after, he sought out Conlon and complained about it, re-
minding Conlon that he had assured him that he would be
taken care of if he joined Local 100. He testified that Conlon
was "shocked" and promised to investigate, but he did not
751
hear from him again on the subject. Conlon testified that he
did investigate but discovered that Squicciarini's case was
only a part of a larger financial problem.
F. Analysis and Conclusions
1. Threatening employees with discharge if they failed to
join Local 100
The collective-bargaining contract dated March 4, 1972,
between Respondent and Local 100 contained a clause re-
quiring all employees to join the Union within designated
periods, but after the contract was, by virtue of the settle-
ment agreement dated November 2, 1972, disposing of un-
fair labor practice charges filed against Respondent, set
aside and declared to be of no force and effect, Respondent
and Local 100 did not execute a new agreement until July
1973. Nevertheless, during the period when there was no
contract requiring membership in Local 100, Respondent,
by its agents Trockel and Lockhart, solicited employees to
join Local 100 and threatened them with discharge if they
did not. This conduct was exactly like the actions Respon-
dent had advised its employees, in a notice to them posted
pursuant to the settlement agreement, it would no longer
engage in, and it also appears to have been in the same vein
as other conduct occurring after the settlement agreement
and before Local 100's certification .6 Respondent has,
therefore, engaged in a continuous course of conduct in
support of Local 100 to date.
Respondent contends that when it enforced the union-
security provision of the March 4, 1972, agreement with
Local 100 after it was certified but before a new contract
was executed, it was merely doing what the settlement
agreement and the law permits. Respondent's argument, in
my opinion, is based on a misreading of the settlement
agreement and a misunderstanding of the policies of the
Act.
As Respondent points out, the settlement agreement not
only required it not to give any force or effect to the March
4, 1972, contract, but also provided that nothing in it shall
"require Respondent Colonie to vary or abandon any wage,
hour, seniority, or other substantive feature which it has
established for its employees in agreement with Respon-
dent, Local 100, or to prejudice the assertion by its employ-
ees of any rights they may have derived as a result of said
agreement." Relying on the quoted language from the set-
tlement agreement and another provision by which it under-
took to withdraw recognition from Local 100 as
representative of its employees unless and until Local 100
shall have been certified by the Board, Respondent argues
that all the terms of the initial labor agreement with Local
100 were only "non-operative" until Local 100 was certified.
It concludes that when certification occurred, recognition
and full enforcement of the contract could be reinstituted.
6 Trockel threatened Squicciarini with discharge in November and Decem-
ber 1972 if he did not join Local 100 Conlon also told him before the
December 14 election, on which Local 100's certification rests, to withdraw
from Local 30 and join Local 100 These statements were, in all probability,
all outside the Sec 10(b) period and cannot, therefore, constitute unfair labor
practices, but they have been considered for whatever light they shed on
Respondent's conduct within the 10(b) period and on its motives
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The misreading of the settlement agreement is in the conten-
tion, in effect, that the union-security provision of the old
contract was merely suspended or dormant prior to certifi-
cation and was revived by the Board's certificate.
The settlement agreement set aside the contract between
Respondent and Local 100. The contract was a fruit of
Respondent's unfair labor practices and the Board was em-
powered to invalidate it, but the rights of individual employ-
ees under the contract were not affected by the Board's
action.' The language in the settlement agreement which
provides that Respondent shall not be required to abandon
wages or other substantive terms of employment established
for its employees pursuant to the contract is for the benefit
and protection of the employees, not Respondent. It can
hardly be contended that forcing all employees to join Local
100 in the absence of a valid union-security agreement is an
action for their benefit or protection.8 To the contrary, to
permit Respondent and Local 100 to continue to enforce
such a provision after Local 100's certification when it had
been declared to be of no force and effect and a new agree-
ment has not been signed would be to condone a continua-
tion of the very unfair labor practices when the settlement
agreement was designed to cure and to deny employees
their right not to join Local 100 until 30 days after a valid
new union-security agreement had been signed and they
had been told of it.
Admittedly, after certification of Local 100, no new
agreement was executed until July 1973. I have also found
no probative evidence to support the suggestion that Local
100's president and Respondent's president met after the
certification and agreed to continue operating under the old
contract, but even if they had, I conclude that important
employee rights should not hang precariously on the legal
significance of a private meeting in which nothing was re-
duced to writing, particularly where an earlier agreement
had been set aside and the employees so notified and further
advised that they would not be threatened with discharge if
they failed to join Local 100.9 In such circumstances, em-
ployees are entitled to remain free of union restraints until
a new agreement is signed and they are made aware of their
obligations under it.l
I find and conclude, on the basis of the facts set forth
above, that Respondent, by requiring employees to join
Local 100 and threatening them with discharge if they did
not, at a time when no valid collective-bargaining contract
requiring union membership was in existence, lent substan-
tial support and assistance to Local 100 and interfered with,
restrained, and coerced employees, all in violation of Sec-
tion 8(a)(1) and (2) of the Act.
2. Squicciarini's discharge
As far as the record in this case discloses, it was only the
maintenance department employees who opposed the assis-
tance which Respondent gave to Local 100 in order to have
only one union represent its employees. It was the mainte-
nance department which had a petition and a motion to
intervene filed by Local 775 and Local 30 to represent them,
and it was Squicciarini, an older and more experienced
employee in the maintenance department, who resisted
company official's attempts to have him join Local 100,
arguing that maintenance department employees would be
better represented by Local 30 or Local 775.
After Local 100 won the Board election and was certified
in December 1972, Respondent could have reasonably be-
lieved that the problem of dissent in the maintenance de-
partment was solved and that one union would represent its
employees. But when Squicciarini and Staats, another main-
tenance department employee, were called back to work in
early 1973, both refused to join Local 100 when Personnel
Director Trockel asked them to.
Shortly after Staats refused to join Local 100, his and
newly hired maintenance employee Eckert's hourly rates
were reduced, an action which I find not to have been based
upon economic considerations, and not long thereafter
Squicciarini and the fourth rank-and-file employee in the
department had their pay cut.
Squicciarini complained about his pay cut to Conlon and
to Local 100's president, O'Keefe, in late May 1973.
O'Keefe told Squicciarini and Staats that Delillo,
Respondent's president, had informed him that he had cut
their rates because he no longer needed skilled mechanics,
and he suggested that in that case they should refuse to
perform skilled maintenance tasks when asked. When
Squicciarini told Supervisors Neilson and Lockhart about
O'Keefe's suggestion, they told him he would be fired on the
spot if he complied with it. 11
Shortly after the above conversations, Squicciarini left for
two weeks of Naval Reserve duty, and a week after his
return he was terminated.
These facts, as summarized and as set forth in greater
detail earlier, establish a strong prima facie case that Squic-
ciarini was terminated illegally because he was a trouble-
some threat to Local 100's continued representation of the
maintenance department. On the other hand, I have found
Respondent's explanation for Squicciarini's termination in-
credible. Since Respondent has not overcome the plain in-
ference that it was discriminatorily motivated in discharging
Squicciarini, I conclude that it violated Section 8(a)(1), (2),
and (3) of the Act by discharging him.
7 See National Licorice Company v N.L R B, 309 U.S 350, 365 (1940)
8 See International Association of Bridge, Structural and Reinforced Iron
Workers Union, Local 378 AFL-CIO (Judson Steel Corporation), 192 NLRB
1069, 1075 (1971)
9 Employee Staats was not even given the statutory 30 days to join Local
100, which is evidence that, after the certification, Respondent acted as if the
rights and obligations of all parties had automatically reverted to what they
were before the settlement agreement
10 See Judson Steel Corporation, supra, at 1075, Rocket and Guided Missile
Lodge 946, International Association of Machinists and Aerospace Workers,
AFL-CIO (Aerojet-General Corporation), 186 NLRB 561, 562 (1970)
3. Reducing the pay of maintenance
department employees
Although economic conditions forced Respondent to lay
off over 100 employees during April, May, and June 1973,
Respondent's defense that these same economic conditions
caused the salary cuts in the maintenance department is not
convincing on its own , because it appears that only the
11 As noted earlier , Delillo, Neilson , and Lockhart did not testify.
COLONIE HILL LTD
salaries in the maintenance department were cut, and the
Company rehired Staats and hired Eckert in the mainte-
nance department shortly before it cut their wages. In addi-
tion, not only does the defense appear questionable in the
light of other record facts, but it is contradicted by other
evidence.
As in the case of Squicciarini's discharge, the timing of
the cuts is significant. Staats and Eckert were notified of
theirs not long after Staats refused to join Local 100. Re-
spondent also gave conflicting reasons for the reductions.
Its defense at the hearing was economic, but Delillo told
O'Keefe that the cuts were instituted because Respondent
no longer needed skilled mechanics Finally, Squicciarini
testified, without contradiction, that Personnel Director
Trockel told him that Staats' and Eckert' s salaries were
reduced because they were against Local 100.
I find and conclude, on the basis of the above consider-
ations, that Respondent's action in regard to maintenance
department salaries was not motivated by economic consid-
erations but was a reprisal because of the maintenance de-
partment employees' opposition to Local 100 and their
leanings toward another labor organization. By such con-
duct, Respondent violated Section 8(a)(1), (2), and (3) of the
Act.
IV THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor prac-
tices found herein and take certain affirmative action, as
provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Mauro Squicciarini, it will be recommended that
Respondent be ordered to offer him immediate and full
reinstatement to his former job, or, if his job no longer
exists , to a substantially equivalent position without preju-
dice to his seniority or other rights and privileges. It will be
further recommended that Respondent be ordered to reim-
burse him for any loss of pay he many have suffered as a
result of his discriminatory discharge in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289, 291-293
(1950), together with 6 percent interest thereon in accor-
dance with Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Having found that Respondent illegally reduced the rates
of pay of its employees Staats, Squicciarini, Eckert and
other employees in the maintenance department, I shall also
recommend that said employees be made whole for losses
suffered with interest thereon.
It has also been found that Respondent unlawfully assist-
ed Local 100 by requiring employees to join said Union
when there was no legal agreement in effect requiring it, and
by discharging Squicciarini and reducing his pay and the
pay of other employees in the maintenance department. The
normal remedy for such assistance would be another Order
requiring the withdrawal of recognition from Local 100 un-
til certified and nullifying any agreement it obtained as a
result of the unfair labor practices. Local 100 has been
certified by the Board, however, after winning an election
in the appropriate unit by an overwhelming majority of
753
those voting. Although it was assisted by Respondent after
the election, as I have found, it was a certified majority
representative of employees when it executed its July 1973
agreement I see no practical goal to be attained by having
Local 100 tested in another election or by setting aside the
July 1973 agreement. Since, however, Respondent, enforced
the March 1972 labor contract after it had been set aside
and required employees to join and pay dues to Local 100
when no valid agreement requiring it existed, a practical,
fair and sufficient remedy for such conduct, it seems to me,
would be to have Respondent reimburse employees for any
dues, initiation fees or other monies they paid Local 100
from November 2, 1972, the date of the execution of the
settlement agreement, to a date 30 days after the effective
date of the July 1973 contract or the beginning of their
employment, whichever is later,12 with interest, and I shall
so recommend.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. Local 100, Local 775, and Local 30 are labor organiza-
tions within the meaning of the Act.
3. By threatening employees with discharge unless they
joined Local 100, Respondent violated Section 8(a)(1) and
(2) of the Act.
4. By discharging and refusing to reinstate Mauro Squic-
ciarini, Respondent violated Section 8(a)(1), (2), and (3) of
the Act.
5. By reducing the pay of Staats, Eckert, Squicciarini and
other employees in the maintenance department, Respon-
dent violated Section 8(a)(1), (2), and (3) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices 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:
ORDER 13
Respondent, Colonie Hill Ltd., Hauppauge, New York,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Contributing support and assistance to Local 100 or
any other labor organization of its employees.
(b) Discharging employees or otherwise discriminating
against them because of their union activities.
(c) Reducing the pay of employees because they oppose
Local 100 or desire another labor organization to represent
them.
12 In accordance with the first proviso to Sec 8(a)(3) of the Act
" In the event no exceptions are filed as provided by Sec 10246 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 become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any other manner interfering with, restraining, or
coercing its employees in their exercise of the rights guaran-
teed in Section 7 of the Act except to the extent that such
rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment
as authorized in Section 8(a)(3) of the Act.
2. Take the following action necessary to effectuate the
policies of the Act:
(a) Make whole Mauro Squicciarini for any loss of pay
he may have suffered as the result of his discharge, in the
manner set forth above in the section entitled "The Reme-
dy"
(b) Make whole Squicciarini, Staats, Eckert and other
employees in the maintenance department for wages lost by
reason of the reduction in their pay, as set forth in the
section entitled "The Remedy."
(c) Reimburse all present and former employees for any
dues, initiation fees, or other monies they paid Local 100
while Respondent was enforcing the terms of the March 4,
1972, labor agreement with Local 100, in the manner set
forth in the section entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay or other monies due under
the terms of this Order.
(e) Post at its Hauppauge, New York, facility, copies of
the attached notice marked "Appendix." 14 Copies of said
notice, on forms provided by the Regional Director for
Region 29, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof in conspicuous
places, including all places where notices to employees are
customarily posted, and be maintained by it for 60 consecu-
tive days. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material. 15
(f) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent has
taken to comply herewith.
14 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
15 Consistent with my recommendation not to order Respondent to with-
draw recognition from Local 100 and to cease giving effect to its July 1973
contract, the notice has been tailored so as not to confuse the employees who
read it Thus, since the existing contract contains a union-security clause, the
notice does not assure employees that Respondent will not threaten them
with discharge if they do not join Local 100 Similarly, assistance to Local
100 is not abjured , because the existing contract itself is a form of assistance,
and to attempt to make a distinction between legal and illegal assistance
would add more confusion