MZ Movers, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1999

330 N.L.R.B. 309 (N.L.R.B. 1999)

MZ MOVERS, INC. 309
MZ Movers, Inc. and Michael Zreik and Local 338,
International Brotherhood of Teamsters. Case
34–CA–8736
November 30, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
Upon charges and amended charges filed by the Union
on February 24, April 22, and May 26, 1999, the General
Counsel of the National Labor Relations Board issued a
complaint on May 27, 1999,1 against MZ Movers, Inc.
and Michael Zreik (collectively referred to as the Re-
spondent), alleging that they have violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act.
Although properly served copies of the charges, the
complaint, and the amendment to the complaint, the Re-
spondent failed to file an answer.
On July 14, 1999, the General Counsel filed a Motion
for Summary Judgment with the Board. On July 16,
1999, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent filed no
response. The allegations in the motion are therefore
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letters dated June 10, and June 25, 1999, notified the
Respondent that unless an answer were received by June
17 and July 8, respectively, a Motion for Summary
Judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent MZ Movers, Inc., a
New York corporation, with an office and place of busi-
ness in White Plains, New York, has been engaged in the
business of storing and delivering furniture. During the
12-month period ending April 30, 1999, Respondent MZ,
in conducting its business operations described above,
purchased and received at its White Plains facility goods
valued in excess of $50,000 directly from points located
outside the State of New York. Respondent Michael
Zreik is Respondent MZ’s president and sole owner and
officer. We find that Respondent MZ is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.

1 An amendment to the complaint issued on June 15, 1999.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent MZ, by its supervisor and agent Michael
Zreik, at its facility:
(a) About February 16, 1999, threatened employees
with discharge for engaging in union and other protected
activities.
(b) About February 16, 1999, interrogated employees
about their union activities.
(c) About February 17, 1999, created an impression
among its employees that their union activities were un-
der surveillance.
(d) About February 17 and 23, 1999, informed em-
ployees that they were being discharged because of their
union activities.
(e) About February 19, 1999, informed employees that
they had to refrain from engaging in union activities in
order to continue their employment with Respondent
MZ.
(f) About February 19, 1999, conditioned continued
employment with Respondent MZ upon the signing of a
document in which the employees agreed to withdraw
their support from and cease any activity on behalf of the
Union.
On about February 18, 1999, Respondent MZ, by its
supervisor and agent Foreman Andrew Krzewicki, in a
truck on the way to its facility:
(a) Threatened employees with loss of employment for
engaging in union and other protected concerted activi-
ties.
(b) Created an impression among its employees that
their union activities were under surveillance by Respon-
dent MZ.
(c) Informed employees that it would be futile to select
the Union as their collective-bargaining representative.
(d) Interrogated employees about their union activities.
(e) Informed employees that other employees had been
discharged because of their union activities.
On about February 15, 1999, Respondent MZ, by
Zreik, assigned employee Robert Jackson, a leading un-
ion organizer, to more onerous and rigorous work.
About February 18, 19, and 22, 1999, Respondent MZ,
by Zreik, denied work to employee Pete Simmons, a
leading union organizer.
Respondent MZ, by Zreik, on about February 17,
1999, terminated employees Pete Simmons and Charles
330 NLRB No. 38
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 310
Taylor; on about February 19, 1999, terminated employ-
ees Derek Schmidt and Robert Jackson; and on about
February 23, 1999, terminated employee Matthew Mills.
Since about February 15, 1999, Respondent MZ, by
Zreik, has reduced the wages of employees Jackson,
Mills, Simmons, and Taylor.
The Respondents assigned employee Jackson to more
onerous and rigorous work, denied work to employee
Simmons, reduced the wages of employees Jackson,
Mills, Simmons, and Taylor, and terminated employees
Jackson, Mills, Schmidt, Simmons, and Taylor because
the named employees joined the Union and engaged in
concerted activities, and to discourage employees from
engaging in these activities.
The following employees of Respondent MZ, consist-
ing of approximately 12 employees, constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:

All full-time and regular part-time drivers, helpers and
loaders employed by Respondent MZ at its White
Plains, New York facility; but excluding all non-payroll
employees, the foreman, the operations manager, sales
representatives, office clerical employees, and guards,
professional employees and other supervisors as de-
fined in the Act.

At a union meeting held on February 14, 1999, a ma-
jority of the unit designated and selected the Union as
their representative for the purposes of collective bar-
gaining with Respondent MZ. At all times since Febru-
ary 14, 1999, based on Section 9(a) of the Act, the Union
has been the exclusive collective-bargaining representa-
tive of the unit.
By letter dated February 16, 1999, and received by Re-
spondent MZ on February 17, 1999, the Union requested
that Respondent MZ recognize it and bargain collectively
as the exclusive collective-bargaining representative of
the unit.
Since about February 17, 1999, Respondent MZ, by
Zreik, has failed and refused to recognize and bargain
with the Union as the exclusive collective-bargaining
representative of the unit.
CONCLUSION OF LAW
The Respondents have interfered with, restrained, and
coerced employees in the exercise of the rights guaran-
teed them by Section 7 of the Act in violation of Section
8(a)(1) of the Act by: (1) threatening employees with
discharge for engaging in union and other protected con-
certed activities; (2) interrogating employees about their
union activities; (3) creating the impression among em-
ployees that their union activities were under surveil-
lance; (4) informing employees that they were being dis-
charged because of their union activities and that they
had to refrain from union activities in order to continue
their employment; (5) conditioning continued employ-
ment on the signing of a document in which employees
agreed to withdraw their support and cease any activity
on behalf of the Union; and (6) informing employees that
it would be futile to select the Union as their collective-
bargaining representative.
In addition, by terminating employees, assigning them
more onerous work, denying them work, and reducing
their wages, the Respondents have discriminated in re-
gard to the hire or tenure or terms and conditions of em-
ployment of its employees, thereby discouraging mem-
bership in a labor organization in violation of Section
8(a)(3) and (1) of the Act.
Further, by failing and refusing to recognize and bar-
gain with the Union as the exclusive collective-
bargaining representative of the unit employees since
about February 17, 1999, the Respondents have violated
Section 8(a)(5) and (1) of the Act.
The Respondent’s above-described unfair labor prac-
tices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(1)
and (3) of the Act by terminating Robert Jackson, Mat-
thew Mills, Derek Schmidt, Pete Simmons, and Charles
Taylor, we shall order the Respondent to offer them full
reinstatement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights and privileges previously enjoyed. In addition, we
shall order the Respondent to make them whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). The
Respondent shall also be required to remove from its
files any references to the employees’ unlawful dis-
charges, and to notify the discriminatees in writing that
this has been done.
In addition, we shall order the Respondent to make
employees Jackson, Mills, Simmons, and Taylor whole
for any loss of earnings and other benefits suffered as a
result of the Respondent’s unlawful denial of work to
Simmons and the unlawful reduction of these four em-
ployees’ wages. Backpay in this regard shall be com-
puted in accordance with Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 2d 502 (6th Cir. 1971),
with interest as prescribed in New Horizons for the Re-
tarded, supra.
The complaint alleges that the Respondent’s violations
of Section 8(a)(1) and (3) are “so serious and substantial
MZ MOVERS, INC. 311
in character that the possibility of erasing the effects of
these unfair labor practices and of conducting a fair elec-
tion by the use of traditional remedies is slight, and the
employees’ sentiments regarding representation, having
been expressed through authorization cards, would, on
balance, be protected better by the issuance of a bargain-
ing order than by traditional remedies alone.” In accord
with the complaint, we find that a bargaining order is
warranted in this case under the principles set forth in
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
Under Gissel, the Board will issue a bargaining order,
absent an election, in two categories of cases. The first
category involves “exceptional cases” marked by unfair
labor practices so “outrageous” and “pervasive” that tra-
ditional remedies cannot erase their coercive effects, thus
rendering a fair election impossible. The second cate-
gory involves “less extraordinary cases marked by less
pervasive practices which nonetheless have a tendency to
undermine majority strength and impede the election
processes.” In this second category of cases, the “possi-
bility of erasing the effects of past practices and of ensur-
ing a fair election . . . by the use of traditional remedies,
although present, is slight and . . . employee sentiments
once expressed [by authorization] cards would, on bal-
ance, be better protected by a bargaining order.” Id. at
613– 615.
On the basis of our findings here, we conclude that a
bargaining order is necessary to remedy the Respon-
dent’s unfair labor practices under the second category of
the Gissel standards. Those findings are based on allega-
tions that are uncontested and must be accepted as fact as
a result of the Respondent’s failure to answer the General
Counsel’s allegations. Indeed, the General Counsel has
pled only the Gissel category II standards in his com-
plaint, and the Respondent has admitted by not answer-
ing the complaint only the category II justification for a
bargaining order.2 First, we have found that the Union
attained majority status in the unit on February 14, 1999,
and that it has been the unit employees’ collective-
bargaining representative since that date. We have also
found that within 9 days after that date, Michael Zreik,
the Respondent’s president and sole owner, discharged 5
of the 12 unit employees—including two leading union
organizers—because they had joined the Union and en-
gaged in protected concerted activities. In addition,
within the first week after the majority of the unit se-
lected the Union, Zreik reduced the wages of four em-
ployees, denied work to an employee who was a leading
union organizer, and assigned more onerous work to an-
other leading union organizer.
Further, during the 5 days after the unit designated the
Union as its bargaining representative, President Zreik

2 In view of the pleadings, we find it unnecessary to pass on whether
a bargaining order is warranted under category I of the Gissel stan-
dards.
and Foreman Krzewicki engaged in a series of threats
and other actions that delivered the unmistakable mes-
sage to unit employees that they would be discharged if
they did not immediately cease their union activities and
withdraw their support from the Union. Thus, in re-
sponse to the employees’ selection of the Union as their
bargaining representative, the Respondent’s highest offi-
cial swiftly reacted with the discharges of almost half of
this small unit. Indeed, Zreik informed some of them
that they were being discharged because of their union
activities. And, just 2 days after receiving the Union’s
recognition request and after having unlawfully dis-
charged union supporters Simmons and Taylor, Zreik
insisted that employees sign a document withdrawing
support from the Union as a condition of continued em-
ployment. Zreik required employees to sign this docu-
ment on the day that he unlawfully discharged the third
and fourth of the five discriminatees. On that same date,
Zreik also told employees who had not been unlawfully
fired that they had to refrain from engaging in union ac-
tivities in order to remain employed by the Respondent.
In addition, the Respondent’s foreman told employees
that their fellow employees had been terminated because
of their union activities.
In view of the magnitude and scope of the discharges
and the threats in the context of the size of this unit, there
is a strong likelihood that the Respondent’s unfair labor
practices will have a pervasive and lasting deleterious
effect on the Respondent’s employees’ exercise of their
Section 7 rights. The complaint, on its face, mentions
only the names of the five employees who were the vic-
tims of 8(a)(3) conduct. Although it is probable that a
hearing would show that other employees were aware of
this misconduct or were victims of 8(a)(1) conduct, we
cannot, on the pleadings, make this finding. However,
we think that the pleadings nonetheless furnish the basis
for a Gissel II bargaining order. In this regard, we note
that (1) almost one-half of the unit was victimized by
8(a)(3) conduct; (2) there was extensive 8(a)(1) conduct;
(3) many of the violations were committed by the Re-
spondent’s president and sole owner; (4) the unit is a
small one; and (5) the Respondent, by its nonanswer, has
admitted that the unlawful conduct “is so serious and
substantial in character that the possibility of erasing the
effects of these unfair labor practices and of conducting a
fair election by the use of traditional remedies is slight,
and the employees’ sentiments regarding representation,
having been expressed through authorization cards,
would, on balance, be protected better by the issuance of
a bargaining order than by traditional remedies alone.”
This case is distinguishable from prior no-answer
summary judgment proceedings in which the Board de-
clined to grant the General Counsel’s request for a Gissel
bargaining order. See, e.g., Center State Beef & Veal
Co., 327 NLRB 1246 (1999); Imperial Floral Distribu-
tors, 319 NLRB 147 (1995); FJN Mfg., 305 NLRB 656
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 312
(1991); Bravo Mechanical, 300 NLRB 1019 (1990);
Control & Electrical System Specialists, 299 NLRB 642
(1990); Binney’s Casting Co., 285 NLRB 1095 (1987);
Michigan Expediting Service, 282 NLRB 210 (1986);
Handy Dan’s Convenience Store, 275 NLRB 394 (1985);
and Power Jet Cleaning, Inc., 270 NLRB 975 (1984).
In the cited cases, the Board found that the respective
complaints did not allege sufficient facts to enable the
Board to evaluate the pervasiveness of the violations.
For example, in those cases, the complaints, in one or
more respects, did not allege the size of the units, the
number of employees directly affected by the violations,
the extent of dissemination, if any, of the violations
among the employees not directly affected by them, or
the identity of the perpetrator of the unfair labor practice.
In marked contrast to those cases, however, here the
complaint alleges sufficient facts on which to assess the
pervasiveness of the unfair labor practices and to sustain
a category II order. Thus, in the instant case we know
the size of the unit, and that at least 5 members, if not all,
of that 12-person unit were directly affected by the viola-
tions, which included discharge and insistence that em-
ployees cease their union activities as a condition of con-
tinued employment. We also know the identity of the
management officials who committed all of the viola-
tions: its president, sole owner and officer, and its fore-
man. We conclude that there are no material facts bear-
ing on the appropriateness of a bargaining order that are
absent from the complaint. Accordingly, we find that the
General Counsel has demonstrated that a bargaining or-
der is warranted to remedy the Respondent’s unlawful
conduct.
ORDER
The National Labor Relations Board orders that the
Respondents, MZ Movers, Inc. and Michael Zreik, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge for engag-
ing in union and other protected concerted activities.
(b) Interrogating employees about their union activi-
ties.
(c) Creating the impression among employees that
their union activities are under surveillance.
(d) Informing employees that they were being dis-
charged because of their union activities; that they must
refrain from union activities in order to continue their
employment; that other employees had been discharged
because of their union activities; and that it would be
futile for them to select the Union as their collective-
bargaining representative.
(e) Conditioning employment upon the signing of a
document in which employees agree to withdraw their
support from and cease any activity on behalf of the Un-
ion.
(f) Assigning employees more onerous and rigorous
work because they engage in union activities.
(g) Denying employees work because they engage in
union activities.
(h) Reducing employees’ wages because they engage
in union activities.
(i) Discharging or otherwise discriminating against
employees because they form, join, or assist the Union,
or because they engage in concerted activities.
(j) Refusing and failing to recognize and bargain with
Local 338, International Brotherhood of Teamsters as the
exclusive collective-bargaining representative of the em-
ployees in the appropriate unit set forth below.
(k) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Robert Jackson, Matthew Mills, Derek Schmidt, Pete
Simmons, and Charles Taylor full reinstatement to their
former jobs or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges previously en-
joyed.
(b) Make employees Jackson, Mills, Schmidt, Sim-
mons, and Taylor whole for any loss of earnings and
other benefits suffered as a result of their unlawful dis-
charges, in the manner set forth in the remedy section of
this decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges of employees Jackson, Mills, Schmidt, Simmons,
and Taylor, and within 3 days thereafter, notify them in
writing that this has been done and that their discharges
will not be used against them in any way.
(d) Make employee Simmons whole for any loss of
earnings and other benefits suffered as a result of the
Respondent’s denying him work on February 18, 19, and
22, 1999, in the manner set forth in the remedy section of
this decision.
(e) Make employees Jackson, Mills, Simmons, and
Taylor whole for any loss of earnings and other benefits
suffered as a result of the Respondent’s reduction of their
wages since February 15, 1999, in the manner set forth in
the remedy section of this decision.
(f) On request, recognize and bargain with Local 338,
International Brotherhood of Teamsters as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

All full-time and regular part-time drivers, helpers and
loaders employed by Respondent MZ at its White
Plains, New York facility; but excluding all non-payroll
MZ MOVERS, INC. 313
employees, the foreman, the operations manager, sales
representatives, office clerical employees, and guards,
professional employees and other supervisors as de-
fined in the Act.

(g) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in White Plains, New York, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
34, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondents and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondents to ensure that the notices are not al-
tered, defaced or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 15,
1999.
(i ) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondents have taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT threaten you with discharge for engaging
in union and other protected concerted activities.
WE WILL NOT interrogate you about your union activi-
ties.
WE WILL NOT create the impression among you that
your union activities are under surveillance.
WE WILL NOT inform you that you were being dis-
charged because of your union activities; that you must
refrain from union activities in order to continue your

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
employment; that other employees had been discharged
because of their union activities; and that it would be
futile for you to select the Union as your collective-
bargaining representative.
WE WILL NOT condition employment upon your signing
of a document in which you agree to withdraw your sup-
port from and cease any activity on behalf of the Union.
WE WILL NOT assign you more onerous and rigorous
work because you engage in union activities.
WE WILL NOT deny you work because you engage in
union activities.
WE WILL NOT reduce your wages because you engage
in union activities.
WE WILL NOT discharge or otherwise discriminate
against you because you form, join, or assist the Union,
or because you engage in concerted activities.
WE WILL NOT refuse and fail to recognize and bargain
with Local 338, International Brotherhood of Teamsters
as the exclusive collective-bargaining representative of
the employees in the appropriate unit set forth below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Robert Jackson, Matthew Mills, Derek Schmidt,
Pete Simmons, and Charles Taylor full reinstatement to
their former jobs or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed.
WE WILL make employees Jackson, Mills, Schmidt,
Simmons, and Taylor whole for any loss of earnings and
other benefits suffered as a result of their unlawful dis-
charges, with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charges of employees Jackson, Mills, Schmidt, Simmons,
and Taylor, and within 3 days thereafter, notify them in
writing that this has been done and that their discharges
will not be used against them in any way.
WE WILL make employee Simmons whole for any loss
of earnings and other benefits suffered as a result of our
denying him work on February 18, 19, and 22, 1999,
with interest.
WE WILL make employees Jackson, Mills, Simmons,
and Taylor whole for any loss of earnings and other
benefits suffered as a result of our reduction of their
wages since February 15, 1999, with interest.
WE WILL, on request, recognize and bargain with Local
338, International Brotherhood of Teamsters as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit on terms and
conditions of employment, and if an understanding is
reached, embody the understanding in a signed agree-
ment:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 314
All full-time and regular part-time drivers, helpers and
loaders employed by us at our White Plains, New York
facility; but excluding all non-payroll employees, the
foreman, the operations manager, sales representatives,
office clerical employees, and guards, professional em-
ployees and other supervisors as defined in the Act.

MZ MOVERS, INC. AND MICHAEL ZREIK