Monarch Construction Corp.

National Labor Relations Board - Board Decisions

Nov 19, 1992

309 N.L.R.B. 538 (N.L.R.B. 1992)

538
309 NLRB No. 80
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We shall modify the judge’s conclusions of law and rec-
ommended Order to reflect his finding that the Respondent violated
Sec. 8(a)(1) of the Act by threatening to deny employees work as-
signments because of their union activities. We shall also issue a
new notice to employees.
Monarch Construction Corp. and Hallmark Interi-
ors, Inc. and Shopmen’s Local Union No. 455,
International Association of Bridge, Structural
and Ornamental Iron Workers, AFL–CIO.
Case 29–CA–15544
November 19, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 20, 1992, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The General
Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.1
AMENDED CONCLUSIONS OF LAW
Add the following after paragraph 3(c).
‘‘(d) Threatening to deny employees work assign-
ments because of their union activities.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mon-
arch Construction Corp. and Hallmark Interiors, Inc.,
Long Island City, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 1(d) and reletter
the subsequent paragraph.
‘‘(d) Threatening its employees with denial of work
assignments because of their union activities.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT interrogate our employees regarding
their knowledge of Shopmen’s Local Union No. 455,
International Association of Bridge, Structural and Or-
namental Iron Workers, AFL–CIO (the Union) or of
the union campaign.
WE WILL NOT create an impression among our em-
ployees that their activities on behalf of the Union are
under surveillance.
WE WILL NOT threaten our employees with the loss
of benefits, or the loss of wage increases or bonuses,
if they select the Union as their collective-bargaining
representative.
WE WILL NOT threaten to deny employees work as-
signments because of their union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
MONARCH CONSTRUCTION CORP. AND
HALLMARK INTERIORS, INC.
Saundra Rattner, Esq., for the General Counsel.
Ira Drogin, Esq. and Stephen L. Ferszt, Esq. (Todtman,
Young, Tunick, Nachamie, Hendler, Spizz & Drogin), for
the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on January 15 and 16, 1992, in Brooklyn,
New York. The complaint herein, which issued on April 26,
1991, was based upon an unfair labor practice charge and an
amended charge filed on February 26 and April 16, 1991, by
Shopmen’s Local Union No. 455, International Association
of Bridge, Structural and Ornamental Iron Workers, AFL–
CIO (the Union). The complaint alleges numerous 8(a)(1) al-
legations together with one 8(a)(3) allegation. It is alleged
539MONARCH CONSTRUCTION CORP.
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1990.
that in about August 1990,1 Monarch Construction Corp. and
Hallmark Interiors, Inc. (Respondent or Respondents), inter-
rogated its employees regarding their union activities and
threatened them with unspecified reprisals if they became or
remained members of the Union, or gave assistance or sup-
port to the Union. The complaint further alleges that on
about December 11, Respondent threatened to deny work as-
signments to its employees, threatened its employees with
layoff, and threatened to withhold a wage increase and an
annual bonus due to the employees if they became or re-
mained members of the Union or assisted the Union, advised
its employees that it would be futile to select the Union as
their collective-bargaining representative, and created an im-
pression among the employees that their union activities
were being kept under surveillance. The complaint also al-
leges that Respondent violated Section 8(a)(3) of the Act, on
about December 28, by failing and refusing to provide its
employee Devon Davidson with work assignments previously
given to him and by laying him off on that day. On the en-
tire record, including the briefs received from the parties, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Monarch Construction Corp. (Respondent Monarch) and
Hallmark Interiors, Inc. (Respondent Hallmark) are each
New York State corporations with their principal office of
business in Long Island City, New York, where they are en-
gaged in construction, fabrication, and installation and con-
stitute a single-integrated business enterprise and a single
employer within the meaning of the Act. During the past
year Respondent purchased and received at the Long Island
City facility goods and materials valued in excess of $50,000
directly from points located outside the State of New York.
Respondents admits, and I find, that each are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
Sometime in about March, Davidson was informed by Roy
Shaw, a fellow employee that the Union was attempting to
organize Respondent’s employees. After that, Davidson as-
sisted Shaw in reminding the employees of the union meet-
ings. He signed a card for the Union on May 25 and the
Union filed its petition with the Board on July 30. The peti-
tion was received by Respondent on August 3. Respondent’s
president, Charles Saliba, testified that this was his first
knowledge of the Union’s organizational campaign. A few
days prior to receiving the petition, Saliba was visited by
Union Vice President Johan Bel at Respondent’s facility, al-
though there is no testimony as to what occurred at this
meeting. At the Board-conducted election on December 20,
a majority of the votes were cast for the Union; Davidson
was the Union’s observer at this election.
There is some dispute regarding the work that Davidson
was able to perform, and this has some relevance to his lay-
off. He began working for Respondent in about 1984; he was
hired ‘‘basically’’ as a cabinet maker, ‘‘but I do different
things.’’ Cabinet making was his principal job, and when
there was cabinet work to perform, he did that until it was
completed, and always with his foreman Cecil Clarke. If
there was no cabinet work to be done, he did other work,
such as carpentry, sheetrock and other work, and, principally,
with Clarke. Although he is neither an ironworker nor a
welder, he has performed this work, assisting other employ-
ees. He has never installed a hung ceiling for Respondent by
himself, but he has worked with other employees in install-
ing it. The last assignment he had was to spray paint more
than one of Respondent’s trucks; this took 2 or 3 weeks and
was not concluded at the time that he was laid off on De-
cember 28. The last cabinet work he performed for Respond-
ent was on December 11, when Saliba drove him to a job
in Rockaway; this will be discussed further, below.
Saliba testified that about 15 percent of the work that Re-
spondent receives has some cabinet work. Cabinet work is
not only the cabinets that people generally think about, but
it also encompasses benches (such as courtroom benches)
and, possibly, doors. A cabinetmaker sits at a bench at a ma-
chine and builds the cabinet and, possibly, installs it as well.
A carpenter does more varied work; he will install walls,
ceilings, doors, and other rough work. Because he didn’t al-
ways have enough cabinet work to keep Davidson busy all
the time, Saliba sometimes assigned him to other work ‘‘only
as a means of keeping him busy.’’ In this vein, he sometimes
assigned him to assist in sheet rock work, as well as cleaning
and other work. Saliba estimated that, on the average, David-
son spent 4 weeks of the year performing or assisting in car-
pentry type work, such as sheetrock. As to why he didn’t
previously layoff Davidson and other cabinetmakers when
there was no cabinet work to be done, he testified that you
can’t maintain a business in that manner because you hope
and assume that in a very short time you will have cabinet
work, and you can’t fire employees and hire new employees
each time you finish one job and begin a new one.
The initial allegation herein is that during the month of
August, Respondent, by Saliba, interrogated its employees re-
garding their union activities and threatened them with un-
specified reprisals if they supported the Union. Davidson tes-
tified that, in about July or August, while he and Cecil
Clarke were working on Saliba’s boat (it was also referred
to as the company boat), Saliba went inside the cabin of the
boat to answer the telephone and Davidson heard him use the
word ‘‘union’’ on the phone. Saliba came out of the cabin
and asked Davidson and Clarke if they knew anything about
the Union and they both answered ‘‘no.’’ Saliba then said
that whoever was in the Union ‘‘would get fucked.’’ Cecil
Clarke testified that, on the day in question, he and Davidson
were working on the decking of the boat, in the rear of the
boat; the phone was in the cabin of the boat, about eight feet
from where they were working. On that day, the phone rang
often, but he could not hear what Saliba said on the phone
because he closed the door behind him. On one occasion,
after speaking on the phone, Saliba came out of the cabin
and asked Clarke if he knew anything about some union
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
guys; Davidson was right next to him at the time. Clarke
said that he did not. Davidson said nothing, and Saliba never
said that whoever was in the Union would ‘‘get fucked.’’
Saliba testified that Clarke and Davidson did work on the
boat on the day in question (in July or August) and he never
made the statement attributed to him by Davidson, that who-
ever was in the Union would get fucked; in fact, at the time,
he was not aware that a union was attempting to organize
his employees. He did ask them: ‘‘Who were the strangers
in the shop recently.’’ He testified that while he was away
(a few weeks before the incident on the boat) someone came
to the facility; he learned ‘‘months later’’ that this person
was from the Union. ‘‘As a rule, nobody goes in my facility
without me knowing.’’ Clarke and Davidson both answered
no to his question. He did not ask them about the Union.
The next allegation involves statements allegedly made by
Saliba to Davidson on about December 11 at Respondent’s
facility. Davidson testified that on that day, while he was in
the shop, Saliba approached him and said that there was no
more cabinet work and he had to lay he and Cecil Clarke
off. Saliba then said that his lawyer said that ‘‘he can cam-
paign now because it’s campaign time . . . and he can say
whatever he likes saying.’’ In answer to questions on cross-
examination, Davidson testified that Saliba also told him that
he knew that whatever he told them went back to the Union,
and, with the Union, if you are a cabinetmaker all you can
do is cabinetmaking, and if you are a carpenter all you can
do is carpentry. Upon being shown the affidavit he gave to
the Board by counsel for Respondent, Davidson remembered
that Saliba also told him that if he wanted to tell the Union
about his layoff, he could do so. Saliba testified that he did
not tell Davidson, on that day, that he would be laid off, nor
did he make any statement about ‘‘campaign time.’’ On that
morning he told Davidson that he would be going with him
to the Rockaway job, where they needed some help.
The next allegation involves statements allegedly made by
Saliba to Davidson, later that day, in the car on the way to
the Rockaway job. Davidson testified that while they were
driving to the Rockaway job, Saliba said that he was trying
to put bread in everybody’s mouth and ‘‘now we bring the
Union in.’’ Saliba also said that he could do a lot of things
for them, but the Union is there. Because of the Union he
could not give them a 50 cents or $1 raise. Saliba further
said that his lawyer said that because of the Union he cannot
give a bonus to his employees, but he could give them an
office party. Davidson told Saliba that he could say whatever
he wanted, but he could not tell him who to vote for. Saliba
then said that even when the Union was gone he would still
be in business. Saliba also said that he was going to speak
with everybody that was in the Union. Saliba testified that
he never discussed wage increases, bonuses or the Union
with Davidson, as Davidson testified to and that the con-
versation in the car was only about the Rockaway job. He
never spoke to him about the Union, wage increases and bo-
nuses, or that he wanted to put bread on everyone’s table.
Ronald McLean, who was employed by Respondent until
December 1991, testified that while he was driving with
Saliba and another employee, Kanhai on August 13, return-
ing from a job, Saliba said to Kanhai (who was sitting with
him in the front seat): ‘‘I hear you guys signed a Union
card.’’ Kanhai answered: ‘‘I don’t know what you are talking
about, Charlie.’’ Saliba then told them that if the Union came
in he would have to close the shop. He also told them that
if he were at the shop when the Union representative was
there he would have hit him across the head with a two by
four. General Counsel states that this testimony was solely
to establish animus on the part of Respondent, rather than an
8(a)(1) violation.
Davidson was laid off on December 28 and, at least up
to the time of the hearing herein, had not been recalled by
Respondent. He testified that on that day, while he was spray
painting one of Respondent’s trucks, Saliba approached him
in the afternoon and said that he was going to lay him off
because he had no more cabinet work. Davidson asked how
he could lay him off when the truck was not yet finished.
He said that he was the boss and he runs things. Saliba also
said that the Union said that if you are a cabinetmaker you
have to stick to cabinetmaking and if you are a painter, you
stick to painting. Saliba said that he would get someone to
complete the painting of the truck and told Davidson to take
a few days off and he would call him back. Davidson said
that he would pack his tools and Saliba said: ‘‘Trust me, I’ll
call you back.’’ He testified that as he was walking through
the facility on the way out, he overheard Saliba telling Mau-
rice Clarke, who is employed by Respondent as a foreman,
that he was getting rid of the union guys little by little. He
was about 15 feet away from them at the time. Saliba and
Maurice Clarke each testified that Saliba never made such a
statement to Clarke.
Simply stated, Respondent’s defense is that Davidson was
laid off because since about mid-1990 Respondent has had
little, if any, cabinet work to perform and it used Cecil
Clarke to perform all the cabinet work that it had. Davidson
testified that in about mid-1990, Respondent hired four cabi-
netmakers, including Pete Mancuso, for the Rockaway job,
which was a big job. When he was laid off on December 28,
of these four only Mancuso remained. Ronald McLean, who
was employed by Respondent as a welder until December
1991, testified that during 1990 Respondent hired two new
carpenters and three cabinetmakers. The carpenters were
commonly called Wu and Lee, and they usually worked as
a team. The cabinetmakers were Mancuso, Benito Gonzales
and a third person whose name he could not remember.
Mancuso and the two other cabinetmakers built cabinets that
were installed in the Rockaway job. Of these five new em-
ployees, Mancuso, Wu and Lee were laid off after Davidson;
Gonzales was laid off shortly before Davidson, and it is not
entirely clear when the remaining employee stopped working
for Respondent. He testified further that Mancuso returned to
Respondent’s employ in February 1991 and did mostly car-
pentry work and driving; he was laid off and called back two
more times during 1991. Wu was also called back and laid
off again during 1991, but he was uncertain when this oc-
curred. As far as he knows, Mancuso, Wu, and Lee were the
only carpenters or cabinetmakers who were reinstated during
1991. There appeared to be less work for Respondent in
1991 as compared to 1990.
Saliba testified that his business is very cyclical and that
he has never seen business as bad as it was in 1990 and
1991. His gross business in 1990 was about $7 million and
a little more than $6 million in 1991, but with little cabinet
work. The slowdown began in early 1990 and never recov-
ered. He kept his employees busy during 1990 because, in
that year, he purchased a building which, as part of the
541MONARCH CONSTRUCTION CORP.
2 As stated above, the unfair labor practice charges in this matter
were filed in February and April 1991. There is no record evidence
of any prior charges involving this employer.
3 In testifying about the layoff of his cabinetmakers, Saliba failed
to mention Hernandez.
4 In its brief, counsel for Respondent alleges that the reason
Davidson’s testimony should not be credited is that although David-
son testified that he told others of this interrogation, nobody was
called to corroborate this testimony and ‘‘John Bel was called as a
witness by General Counsel and never asked this line of question-
ing.’’ This is not so. On direct examination, Bel was asked whether
Davidson had told him of the August incident with Saliba; he said
that he had. When Bel was asked what Davidson told him, counsel
for Respondent objected on the ground that this was hearsay and I
sustained the objection. Counsel for Respondent also objected when
Davidson attempted to testify about which fellow employees he
spoke to about the incident.
agreement of purchase, required that he improve it to the
amount of about $450,000, which he did and concluded by
about July .He testified that he would have laid off a large
number of his employees at that time but for some charge
that had been filed against him: ‘‘We had to hang on to these
people due to the fact that we had this claim, unfair labor
board claim right about July. We had to carry these people
on for the rest of the year.’’2 He retained these employees
on the advice of counsel. A vast majority of his work comes
from large companies, such as Con Edison, AT&T and IBM.
He bids for this work on a regular basis and by early to mid-
1990 ‘‘There were not many bids to bid.’’ In December the
cabinetmakers in his employ were Cecil Clarke, Davidson,
Gonzales, Learie Hernandez, and Rupnarine Rampsaran.
Saliba testified further that by the end of November there
was no cabinet work to be performed and no cabinet work
to bid on. From that time until the end of December, he kept
his cabinetmakers busy with ‘‘very menial work,’’ like clean-
ing up and Davidson was assigned to spray paint one of Re-
spondent’s trucks. He did not lay them off earlier because he
hoped that ‘‘something else will break out in his trade.’’
Gonzales was laid off on December 21; Ramsaran, Clarke
and Davidson were all laid off at about the end of Decem-
ber.3 Clarke was recalled to employment and again laid off
on at least two occasions during 1991, and he was the only
cabinetmaker employed during 1991; he was the only one re-
called and no new cabinetmakers were hired during 1991. As
to why Clarke, rather than Davidson was recalled in 1991,
he testified: ‘‘Very simple. He was a foreman and he was
also the master craftsman.’’ Additionally, Davidson did not
have the proper license to drive Respondent’s trucks; Clarke
did. During 1991 he had very little cabinet work (about 6
week’s worth), not nearly enough to keep one cabinetmaker
busy. He kept Clarke busy doing ‘‘miscellaneous work,’’
cleaning up and answering the telephones, as well as doing
the small amount of cabinet work that he had. An additional
reason for keeping Clarke employed was that he would be
around in case Respondent received some cabinet work to
perform.
Saliba also testified about the carpenters that he employed
during this period; Mancuso was a carpenter (not a cabinet-
maker) who had been employed by Respondent years earlier.
He answered one of Respondent’s ads for a cabinetmaker
and returned to its employ. He was laid off on December 28,
recalled to work on January 17, 1991, laid off again on Janu-
ary 22, 1991, recalled on February 21, 1991, and was still
employed by Respondent at the time of the hearing herein.
He remained in Respondent’s employ during 1991 doing car-
pentry work, such as hanging doors and doing ceilings, work,
which he testified, Davidson could not do. In addition, he
could work on his own, whereas Davidson always worked
with Clarke. Lee was also laid off on December 28, recalled
on January 29, 1991 and laid off again on March 16, 1991.
He also did carpentry work that Davidson was unable to per-
form, and was capable of working on his own. Chuel
Yedum, previously identified as ‘‘Wu,’’ also was a carpenter
who was laid off on December 21, recalled on January 17,
1991, and again laid off on March 18, 1991. In addition, Re-
spondent employed Iosif Kornev, a carpenter who quit its
employ in 1989; he applied to work for Respondent, again,
on November 11, 1991, and was hired at that time. He was
chosen because he was a ‘‘very experienced carpenter and
supervisor.’’ He was the only carpenter or cabinetmaker who
was hired in 1991.
Marisabel Rodriguez, the controller and bookkeeper for
Respondent, testified about the proposals and bids received
by Respondent in 1990 and 1991. She testified that there was
very little cabinet work carried over from 1990 to 1991, and
what little there was, Clarke did. A large majority of the
work that Respondent received in 1991 was mechanical and
electrical work.
In order to disprove General Counsel’s argument of Union
animus, Counsel for Respondent adduced evidence of prior
dealings that Respondent had with other unions. Saliba testi-
fied that for about the last ten years Respondent has main-
tained collective-bargaining agreements with the Mason
Tenders Union covering its laborers. In addition, when Re-
spondent commenced operations it had collective-bargaining
relationships with the United Brotherhood of Carpenters and
Joiners and the Operating Engineers, which it no longer has.
Analysis
Evidence was adduced about three separate 8(a)(1) en-
counters. The first one was the allegation of the August situ-
ation on the boat. Davidson testified that Saliba asked he and
Clarke if they knew anything about the Union and they said
that they didn’t. Saliba then said that whoever was in the
Union ‘‘would get fucked.’’ Clarke testified that Saliba
merely asked him if he knew anything about some union
guys and he said that he didn’t. Saliba testified that he only
asked them if they knew who the strangers were that were
at the shop recently; he did not refer to them as ‘‘union’’
people, and did not learn until ‘‘months later’’ that they were
from the Union, and he did not say that whoever was in the
Union ‘‘would get fucked.’’ Neither Davidson nor Saliba
was, obviously, a incredible witness, but, at least, one was
not telling the truth.4 I found Saliba’s testimony about the
‘‘stranger’’ at the shop not credible and do not credit his tes-
timony about this incident. Because I found Cecil Clarke’s
testimony about this incident the most credible (even though
he was brought to the proceedings by Respondent, and was
still employed by Respondent, he readily testified to Saliba’s
question about the union guys) I credit his testimony over
that of Davidson and find that Saliba asked Davidson and
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I agree with counsel for Respondent that Saliba’s statement that
even when the Union was gone he would still be in business does
not violate Sec. 8(a)(1) of the Act as a statement of the futility of
selecting the Union and therefore recommend that this allegation be
dismissed.
Clarke if they knew anything about some union guys; they
answered that they did not.
In Rossmore House, 269 NLRB 1196 (1984), the Board
decided that in determining whether interrogations violate
Section 8(a)(1) of the Act, the test is whether, under all the
circumstances, the interrogation reasonably tends to restrain,
coerce or interfere with the employees’ Section 7 rights. One
of the circumstances to consider is whether the employee
who was interrogated was an open and active union sup-
porter. Subsequently, in Sunnyvale Medical Clinic, 277
NLRB 1217 (1985), the Board stated that it disapproved of
a per se approach in making these determinations, and will
take into account the circumstances surrounding the interro-
gation and the reality of the workplace. Bo-Ed, Inc., 281
NLRB 226 (1986). All the circumstances of this question on
the boat present a difficult, borderline question of legality.
The question was asked by Saliba, Respondent’s owner, for
not valid reason (since I do not credit his testimony about
the ‘‘strangers in the shop’’). As the petition was filed on
July 30, it may be that in one of Saliba’s telephone calls on
the boat he learned that the petition was received and that
prompted the question to Davidson and Clarke. In addition,
neither Davidson nor Clarke were open and active union sup-
porters. On the other hand, Saliba did not follow this ques-
tion with further questions, nor was it accompanied by coer-
cive statements. However, because the questioner, Saliba,
was the boss, and Davidson and Clarke both lied to him be-
cause they were afraid what would happen if they admitted
knowing about the Union, I find that this interrogation vio-
lates Section 8(a)(1) of the Act. Benjamin Coal Co., 294
NLRB 572 at 583.
The next allegations involve one-on-one statements alleg-
edly made by Saliba to Davidson on December 11;5 the first
conversation allegedly took place in the shop. The next one,
in the car on the way to the Rockaway job. In the earlier
situation, after telling Davidson that he would have to lay
him off because he had no more cabinet work, Saliba said
that his lawyer said that he could begin campaigning and
saying whatever he wanted, and that he knew what he told
him went back to the Union. Saliba also told him that ‘‘with
the Union’’ a cabinetmaker can only make cabinets and a
carpenter can only do carpentry. Saliba denies this entire al-
leged conversation, testifying that on that morning he only
told Davidson that they would be going to the Rockaway
job. As stated above, Davidson v. Saliba is a difficult credi-
bility determination especially without the assistance of a
third party’s testimony, which is not present in the December
11 allegations. In this instance, I credit Davidson’s testi-
mony. This situation occurred nine days prior to the Board
election; in this situation, it would not be unusual for an em-
ployer to inform an employee that his lawyer told him that
he could commence his campaign and, in that regard, to also
tell his employee of certain union restrictions that could ef-
fect his employment. Considering Davidson’s apparent credi-
bility, and with no obvious reasons to discredit him in this
situation, I therefore credit his testimony over that of Saliba.
This allegation involves the prediction of the effects of
unionization. An employer can, of course, tell his employees
that if they vote to bring in a union, they may lose some
benefits (usually flexibility and the ability to speak directly
to their boss) during the negotiating process. As the Supreme
Court stated in NLRB v. Gissel Packing Co., 395 U.S. 575
at 618: ‘‘In such a case, however, the prediction must be
carefully phrased on the basis of objective fact to convey an
employer’s belief as to demonstrably probable consequences
beyond his control.’’ Saliba’s statement to Davidson is a
classic example of the threats that Gissel was meant to pro-
hibit; he first told Davidson that he had to lay him off be-
cause there was no more cabinet work in the shop. In telling
him of the alleged union restrictions on what work the em-
ployees are allowed to perform, he did not say that this could
be the result of negotiations with the Union or that the Union
would insist on this work restriction and that he might have
to agree to such a provision. He made it automatic, when the
Union comes in this is what happens. I therefore find that
this threat violates Section 8(a)(1) of the Act. Rexall Corp.,
265 NLRB 121 (1982). I also find that Saliba’s statement to
Davidson that he knew that whatever he told him went back
to the Union constitutes an impression of surveillance in vio-
lation of Section 8(a)(1) of the Act. Although General Coun-
sel, at the hearing, amended the complaint to allege that it
occurred in the car on the way to the jobsite, whereas the
complaint originally (correctly) alleged that it occurred at the
Queens facility, this was fully litigated and Respondent was
not prejudiced by this error.
For the same reasons as stated above, I also credit the tes-
timony of Davidson over Saliba regarding the statements
made in the car regarding the denial of a wage increase and
a bonus. In this context, a statement that ‘‘because of the
Union,’’ he could not give the employees a wage increase
and a bonus clearly violates Section 8(a)(1) of the Act, and
I so find.
The final allegation herein is that the layoff of Davidson
on December 28 violated Section 8(a)(1) and (3) of the Act.
I find that General Counsel has sustained its initial burden
under Wright Line, 251 NLRB 1083 (1980). Davidson was
the Union’s observer only 8 days before the layoff, and in
6 years of employment with Respondent he had never pre-
viously been laid off. In addition, the statements that Saliba
made to Davidson in August and on December 11 clearly es-
tablish some union animus on the part of Respondent, even
if it has had contracts with other unions and still has a con-
tract with one union. The ultimate issue is therefore whether
Respondent has satisfied its burden of establishing that Da-
vidson would have been laid off even absent the Union and
his observer status for the Union. I find that Respondent has
satisfied its burden herein.
Initially, I discredit Davidson’s testimony that he over-
heard Saliba tell Maurice Clarke that he was getting rid of
the union guys little by little. This was denied by Clarke
(and Saliba), who I found to be a credible witness. Addition-
ally, I find it highly unlikely that Saliba would say such a
thing within the hearing of an employee whom he had just
laid off. Saliba impressed me as a savvy employer who
would be more careful than that. More importantly, I be-
lieved Respondent’s economic defense to the layoff. Al-
though I generally credited the testimony of Davidson over
Saliba, I did not find Saliba to be a totally incredible witness.
543MONARCH CONSTRUCTION CORP.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
I found Rodriguez to be a very credible witness supporting
Respondent’s defense that there was very little cabinet work
to perform in 1991 and, what little there was, was performed
by Cecil Clarke. This testimony is further supported by the
fact that all of the cabinetmakers and carpenters were laid off
beginning in December and most (in addition to Davidson)
were still not called back by the time of the hearing. In fact,
Cecil Clarke was laid off on two or three occasions in about
early 1991. The level of cabinet work at the shop must have
been low as Davidson spent his final 3 weeks of employment
with Respondent spray painting trucks. Finally, General
Counsel alleges that Respondent laid off Davidson because
he acted as the Union’s observer at the Board-conducted
election on December 20. However, the testimony establishes
that 9 days prior to the election Saliba told him that he was
going to lay him off because of the lack of cabinet work.
There is no evidence that Saliba was then aware that David-
son had signed a card for the Union; in fact, in August, both
Davidson and Cecil Clarke denied any knowledge of the
union campaign. For all these reasons I find that Respondent
has sustained its burden, and I recommend that the allegation
that the layoff of Davidson violated Section 8(a)(1) and (3)
of the Act be dismissed.
CONCLUSIONS OF LAW
1. Respondents Monarch and Hallmark constitute a single-
integrated business enterprise and each is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act in the
following manner:
(a) Interrogating its employees regarding their knowledge
of the Union and the union campaign.
(b) Creating an impression among its employees that their
union activities were under surveillance.
(c) Threatening its employees with the loss of benefits, in-
cluding wage increases and bonuses, if the Union became
their collective-bargaining representative.
4. The Respondent did not further violate the Act as also
alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and the
on entire record, I issue the following recommended
ORDER6
The Respondent, Monarch Construction Corp. and Hall-
mark Interiors, Inc., its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interrogating its employees regarding their knowledge
of the Union and the union campaign.
(b) Creating an impression among its employees that their
union activities were under surveillance by Respondent.
(c) Threatening employees with the loss of some benefits,
including wage increases and bonuses, if they selected the
Union as their collective-bargaining representative.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their Section
7 rights.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility or facilities in Queens, New York,
copies of the attached notice marked ‘‘Appendix.’’7 Copies
of the notice, on forms provided by the Regional Director for
Region 29, after being signed by Respondent’s authorized
representative, shall be posted by Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER ORDERED that the complaint is dismissed as
to allegations not specifically found herein.