Pollack Electric Co., Inc.

National Labor Relations Board - Board DecisionsAug 25, 1975

219 N.L.R.B. 1237 (N.L.R.B. 1975)

POLLACK ELECTRIC COMPANY 1237 Pollack Electric Company, Inc. and Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO. Cases 29-CA-3788 and 29-RC-2533 August 25, 1975 DECISION, ORDER, AND DIRECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On April 21, 1975, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. The General Coun- sel filed exceptions, a supporting brief, and an amendment to his exceptions. 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 rec and and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein.' In agreement with the Administrative Law Judge, we have sustained the challenge to the ballot of John Amorgianos and overruled challenges to the ballots of George Handrinos, Thomas Nastos, Gus Mousto- giannis, Eugene Moretti, Steve Krellenstein, and Al Recigno. Accordingly, we shall remand the represen- tation case to the Regional Director for Region 29 with directions that the ballots of the above-named employees whose challenges have been hereby over- ruled be opened and counted, and that a revised tally issue . If the revised tally establishes that Local Union No. 3, International Brotherhood of Electrical Work- ers, AFL-CIO, represents the majority of Respondent's employees in the appropriate unit, the Regional Director shall certify it as the collective- bargaining representative of the unit employees.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended 1 We agree with the General Counsel that the Administrative Law Judge should have included in his proposed Order the customary notice-posting requirement . We hereby correct that omission . In view of the number of non-English-speaking employees employed by the Respondent, we shall or- der that the attached notice be posted in Greek, as well as in English 2 We shall retain jurisdiction over the parties in the event the Union fails to achieve a majority of the valid votes cast in order to entertain an appro- priate and timely request for further remedial action. Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Pol- lack Electric Company, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as modified herein: 1. Insert the following after paragraph 1(d): "(e) In any other manner interfering with, re- straining, or coercing its employees in the exercise of their rights under Section 7 of the Act." 2. Insert the following after paragraph 2(d), relet- ter subsequent paragraphs accordingly, and insert the attached notice at the end of the Administrative Law Judge's Decision: "(e) Post at its premises in Brooklyn, New York, copies of the attached notice marked `Appendix.' 3 Copies of said notice, in both English and Greek, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's author- ized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material." 3. Insert the following after the last paragraph of the recommended Order: "IT IS ALSO ORDERED that the Regional Director open and count the ballots of George Handrinos, Thomas Nastos, Gus Moustogiannis, Eugene Moret- ti, Steve Krellenstein, and Al Recigno, and prepare and cause to be served on the parties a revised tally of ballots, upon the basis of which the Regional Di- rector shall issue the appropriate certification." DIRECTION It is hereby directed with regard to the election held on February 8, 1974, in Case 29-RC-2533, that the Regional Director for Region 29 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Decision, Order, and Direction, open and count the ballots of George Handrinos, Thomas Nastos, Gus Moustogiannis, Eugene Moret- ti, Steve Krellenstein, and Al Recigno, and thereafter prepare and cause to be served on the parties a re- vised tally of ballots, upon the basis of which the Regional Director shall issue the appropriate certifi- cation. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 219 NLRB No. 195 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off or otherwise discriminate against George Handrinos, Thomas Nastos, Gus Moustogiannis, Eugene Moretti, Steve Krellen- stein, and Al Recigno, or any other employee, with regard to their hire or tenure of employ- ment in order to discourage membership in or activities on behalf of Local Union No. 3, Inter- national Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. WE WILL NOT interrogate employees concern- ing their union activities. WE WILL NOT threaten our employees with loss of employment because of their engaging in union activities or selecting a union as their rep- resentative. WE WILL NOT promise our employees benefits for refraining from engaging in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, or to refrain from any or all such activities, ex- cept to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. The ap- propriate bargaining unit is: All electricians, electrical maintenance me- chanics and helpers employed by the Compa- ny at its Brooklyn, New York, premises, ex- cluding all other employees, guards and supervisors as defined in the Act. WE WILL send a letter to the above-named em- ployees stating we will cease and desist from the foregoing. WE WILL offer George Handrinos, Thomas Nastos, Gus Moustogiannis, Eugene Moretti, Steve Krellenstein, and Al Recigno immediate and full reinstatement to their former positions or, if such positions no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges. If those positions no longer exist, we will notify the aforesaid employees of their placement on a preferential hiring list for recall as their former or equivalent jobs arise. WE WILL pay George Handrinos, Thomas Nastos, Gus Moustogiannis, Eugene Moretti, Steve Krellenstein, and Al Recigno for the earn- ings lost because of the discrimination against them, with 6-percent interest. POLLACK ELECTRIC COMPANY, INC. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On January 28 and 29, 1975, I conducted a hearing at Brook- lyn, New York, to try issues raised by a complaint issued on December 6, 1974, on the basis of a charge filed by Local Union No. 3, International Brotherhood of Electri- cal Workers, AFL-CIO I on April 1, 1974. The complaint alleged that Pollack Electric Company, Inc.,2 by Ralph Pollack, president, and John Amorgianos, foreman, violat- ed Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (hereafter called the Act), by: (1) Interro- gating employees about their union activities; (2) warning and directing employees to refrain from supporting the Union; (3) threatening employees with discharge if they supported the Union; (4) promising employees benefits if they refrained from supporting the Union; and (5) laying off and failing and refusing to recall six employees because they supported the Union and/or engaged in activities pro- tected under the Act. The complaint was consolidated with Case 29-RC-2533 for hearing on: (1) Board agent challenges to the ballots of the six alleged discriminatees;3 (2) union challenge to the ballot of John Amorgianos. The Company denies it committed the acts alleged above, denies any violation of the Act, contends the Board agent's challenges should be sustained, and contends the Union's challenge should be overruled. The Company also contends it does not meet the Board's jurisdictional stan- dards and that Amorgianos was not a supervisor and agent of the Company acting on its behalf at any time pertinent. The issues are: (1) Jurisdiction; (2) whether Amorgianos at time pertinent was a supervisor and agent of the Compa- ny acting on its behalf; (3) whether the Company engaged in the discrimination alleged and thereby violated the Act; and (4) whether the challenges should be sustained or over- ruled. The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, to examine and cross-examine witnesses , to argue and file briefs. Briefs have been received from the General Counsel and the Company. Based upon my review of the entire record, observation of the witnesses , perusal of the briefs and research, I enter the following: 1 Hereafter called the Union or Local 3. 2 Hereafter called the Company 3 Based on the absence of their names from the list of eligible employees furnished by the Company FINDINGS OF FACT 1. JURISDICTION A. The Jurisdictional Facts POLLACK ELECTRIC COMPANY 1239 III. THE ALLEGED UNFAIR LABOR PRACTICES AND CHALLENGES A. The Employment Status of John Amorgianos The jurisdictional facts were either stipulated or admit- ted, namely, that, for several years prior to 1974, the Com- pany was engaged in electrical installation and repair in New York State, with its office and shop located in Brook- lyn, New York; that during 1973, the Company purchased goods and materials valued at $3,600 from firms in New York which in turn received those goods and materials from firms located outside New York; and that during 1973,4 the Company performed services valued at $18,294 for companies which were directly engaged in interstate commerce (Park Avenue 71st Street Corporation, $12,284; Polymer Research Corporation, $3,395; Sea Coast Towers, A Division of Alex Muss & Sons, Inc., $2,150; Man Size, Inc. d/b/a He Man or Man Size Shops, $465). B. The Board's Prior Ruling On November 14, 1974, the Board issued a ruling in Case 29-RC-2533 (reported at 214 NLRB No. 150) that it would effectuate the policies of the Act to assert its legal or statutory jurisdiction over the Company despite the Company's failure to meet its discretionary jurisdictional standards, on the basis of findings that: A company agent represented before the New York State Labor Relations Board that the Company met NLRB jurisdictional stan- dards; the Company did not question NLRB jurisdiction when the Union, in reliance upon that representation, filed a petition for certification with the NLRB; the Company did not question NLRB jurisdiction when the NLRB Re- gional Director conducted a hearing on the petition; the Company did not question jurisdiction when the Regional Director issued his decision asserting jurisdiction and di- recting an election; the Company did not appeal the Re- gional Director's decision asserting jurisdiction; the Com- pany, for the first time, asserted its failure to meet the NLRB's discretionary jurisdictional standards at the pre- hearing conference scheduled prior to hearing on the chal- lenged ballots and complaint issued against the Company;5 the Company clearly is within the NLRB's statutory juris- diction. In my judgment, I am bound by the above ruling. I therefore find and conclude that at all times pertinent the Company was engaged in commerce in a business af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION I find that at all times pertinent the Union was a labor organization within the meaning of Section 2(5) of the Act. The complaint alleges that the Company by its alleged foreman and supervisor, John Amorgianos, committed var- ious violations of the Act; the Union challenged the ballot cast by Amorgianos in the election on the ground he was a supervisor; the Company denies that Amorgianos at any time was its foreman, supervisor, and agent. Since this issue is crucial to later issues, it shall be re- solved at this time. Ralph Pollack, the owner and president of the Compa- ny 6 testified that in 1970, he had two employees-Amorgi- anos and Carl Coltenmeyer; that on April 23, 1971, his work force was reduced to one employee-Carl Colten- meyer (Amorgianos went to Greece); in June 1971, he hired Al Recigno, increasing his work force back to two employees; in August 1971, Amorgianos returned from Greece, applied for reemployment and was hired, increas- ing the work force to three employees; in July, his work force increased to five employees, inasmuch as he hired George Handrinos, Thomas Nastos, and Gus Moustogian- nis between March and July of that year, while retaining Amorgianos and Recigno and losing Coltenmeyer; in Sep- tember, he hired Eugene Moretti, increasing his work force to six employees; in November, he hired Steve Krellen- stein , increasing his work force to seven employees; in De- cember, he terminated Handrinos, Nastos, Moustogiannis, and Moretti, reducing his work force to three employees (Amorgianos, Recigno, and Krellenstein); and in January 1974, he terminated Recigno and Krellenstein, reducing his work force to one employee-Amorgianos. Pollack testified he never granted Amorgianos any au- thority to hire or fire employees, grant wage increases, or grant requests for time off; he laid out all the work and directed its performance for all his employees, at all times; at all times, Amorgianos was simply a working electrician; he and Amorgianos owned station wagons and he utilized Amorgianos' services in transporting men to some of the jobs while he took others to other jobs, compensating Amorgianos for use of his vehicle; and that he utilized Amorgianos to convey his orders and instructions to fellow Greeks employed by the Company because their English was limited and Amorgianos was fluent in Greek. Amorgianos did not testify. Recigno testified he was hired by Pollack in June of 1971; the Company had one other employee at the time- Carl Coltenmeyer; in later 1971, Pollack hired Amorgianos as his third employee;? Amorgianos ran Pollack' s business while Pollack took a vacation in 1971, and directed Recigno's work during that vacation period; Amorgianos remained in the Company's employ after Pollack's return from his vacation and continued to direct Recigno's work; Amorgianos sent him home when he reported late for work; Amorgianos from time to time transferred his help- ers to other jobs and brought him helpers from other jobs; 6 An admitted supervisor and agent of the Company acting on its behalf 4 Read 1973 after all further date references omitting the year. at all times pertinent 5 The December 6, 1974, complaint with respect to the unfair labor prac- 7 Recigno testified he understood Amorgianos had previously been em- tice allegations is identical to a May 16, 1974, complaint . ployed by Pollack 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when he had an argument with Amorgianos over a radio in the shop , Amorgianos sent him home ; he saw Pollack the next day, asked Pollack if he could take his orders from Pollack and not from Amorgianos and Pollack replied Amorgianos was his foreman and he could not grant Recigno's request. George Handrinos testified he was interviewed and hired by Amorgianos s as an electrician at a rate of $2.50 an hour in late 1972 , after Amorgianos explained the job require- ments and was satisfied Handrinos could meet them; Amorgianos gave him his work assignments ; during his employ, he twice asked Amorgianos for raises and was in- creased to $3.75 per hour ; when he came in late , Amorgia- nos sent him home as a penalty ; Pollack saw him leaving and, when he told Pollack that Amorgianos sent him home because he was late , Pollack made no rejoinder. Thomas Nastos 9 testified that in February he was hired by Amorgianos as an electrician at a rate of $2.50 an hour; both Amorgianos and Pollack gave him work assignments; a few months after his hire, he asked Amorgianos for a raise and Amorgianos said all right , you have the raise (to $3); he subsequently asked Amorgianos for a second raise and, on not receiving it, asked Amorgianos again, upon which Amorgianos said to see Pollack ; he saw Pollack and Pollack stated Amorgianos told him about the raise, but he had forgotten about it and Nastos would receive it shortly, which he did (to $3.75); and he asked Amorgianos for time off and Amorgianos granted his request without any prior check with Pollack or anyone else. Steven Krellenstein testified he was hired in late August or early September ; Amorgianos laid out the work of the mechanics and helpers ; Amorgianos assigned both electri- cians or mechanics and their helpers to jobsites ; Amorgia- nos instructed both electricians or mechanics and their helpers concerning what work they would perform and how to perform it; Amorgianos transported both mechan- ics or electricians and their helpers to jobsites and decided which men were to work at various jobsites. Moustogiannis, who was hired in the spring , testified he received a telephone-call from Amorgianos , who stated he had secured Moustogiannis ' name from the Greek-Ameri- can Employment Agency and asked him if he was an elec- trician; he replied that he was ; Amorgianos asked him if he could come to work the following day ; he replied he could; Amorgianos gave him the address at a jobsite and told Moustogiannis to report to him at that jobsite the following day; he went to the jobsite the next day, found Amorgia- nos, Amorgianos stated he was hired , and put him to work without a prior check with anyone ; he was introduced by another employee to Pollack the next day ; Pollack asked Amorgianos at that time at what rate he hired Moustogian- nis; Amorgianos replied he hired Moustogiannis at a rate of $2.50 an hour ; Moustogiannis asked Amorgianos for a day off on one occasion , and Amorgianos granted his re- quest immediately. The parties stipulated that Moustogiannis would testify as did Handrinos if his testimony continued ; the parties further stipulated that, if Eugene Moretti were called to testify, he would testify as Krellenstein testified. While Pollack testified generally that Amorgianos did not have any authority to hire , to fire , to grant increases, to grant time off, or to direct the work of other employees, the Company did not refute the testimony of Recigno, Handri- nos, Nastos , Krellenstein, Moustogiannis , and Moretti, to specific instances wherein Amorgianos interviewed and hired employees ; set initial rates ; laid out and directed work ; changed work assignments ; granted (or at the very least, effectively recommended) wage increases; granted requests for time off; sent employees home when they re- ported late for work ; acted as Pollack 's vacation replace- ment ; was recognized and treated both by Pollack and the employees as the Company's foreman in the commission of those acts and by Pollack's conduct and statements.10 On the basis of that unrefuted specific testimony, which I credit , I find and conclude that at all times pertinent Amorgianos possessed and exercised the powers of a super- visor and agent of Company acting on its behalf, and that Pollack simply exercised the normal prerogative of an own- er, to overrule , countermand , modify , or affirm , those ac- tions of his foreman which he did not approve of. Having so found, I recommend that the Union 's chal- lenge to Amorgianos ' ballot be sustained and that ballot be discarded. B. The Alleged Discriminatory Interrogations , Threats, Promises, and Layoffs 1. Preliminary It is undisputed that Moretti influenced Nastos and Krellenstein to accompany him to the offices of Local 3 on October 1, where the three of them signed cards authoriz- ing Local 3 to act as their collective -bargaining representa- tive; that Handrinos signed a card as soon as he learned of their action (he was on vacation on October 1) -on Octo- ber 4-and both Moustogiannis and Recigno subsequently signed cards (on October II and November 29). The Company 's first awareness of its employees' interest in representation by Local 3 occurred several weeks after Moretti , et al. made their October 1 visit to Local 3's office; the complaint alleged that Amorgianos learned of that in- terest several weeks after October 1, whereupon he threat- ened them with discharge if they sought Local 3 represen- tation. This constituted the earliest allegation of unfair labor practice . It, and the later alleged violations, shall be dis- cussed in time sequence below. 8 Both Amorgianos and Handrinos immigrated to the United States from Greece ; Handnnos was referred to the Company for employment by the Greek-Amencan Employment Agency, which specialized in securing em- ployment for Greek immigrants ; Handrinos was referred to the Company 10 Note for example , Pollack's failure to comment on Handrinos' report for possible employment by the Agency and told to speak to Amorgianos . that he had been sent home by Amorgianos for reporting in late and 9 Nastos was hired through the same agency which referred Handrinos , in Pollack's statement to Recigno that Amorgianos was his foreman and he the same manner . could not grant Recigno's request that he take his orders only from Pollack. POLLACK ELECTRIC COMPANY 2. The alleged Amorgianos' late October/early November threat The incident began in late October or early November when two of Local 3's representatives approached Amorgi- anos and Nastos while they were en route to a company jobsite in Amorgianos' station wagon. Amorgianos had stopped to purchase fuel when two Local 3 representatives approached and one inquired concerning Amorgianos' in- terest in Local 3's representation of the Company's em- ployees. Amorgianos replied he did not like Local 3. The representative asked Nastos how he felt. Nastos said he would have to think about it. The representative asked Nastos how many employees the Company had. Nastos informed him there were six. The representative gave Nas- tos six authorization cards and departed. As Nastos and Amorgianos proceeded toward the jobsite after leaving the station Amorgianos commented that Pollack did not like Local 3, its wage scales were too high ; if the employees signed up with Local 3, they would lose their jobs. When Amorgianos and Nastos arrived at the jobsite Moretti, Handrinos, and Moustogiannis were there work- ing. Nastos told them of his meeting with the Local 3 repre- sentative and the representative 's handing him six cards; Amorgianos repeated his comments that Pollack was op- posed to Local 3 and if the four signed, they would lose their ljobs. Nastos thereupon threw the cards into a trash can.' On the basis of the foregoing, I find that, in late October or early November, the Company by Amorgianos threat- ened Nastos, Handrinos, Moustogiannis, and Moretti with discharge if they signed cards authorizing Local 3 to act as their collective-bargaining representative, and thereby vio- lated Section 8(a)(1) of the Act. 3. The alleged November 30 interrogation On or about November 23, Local 3 filed a petition for certification as the collective-bargaining representative of the Company's electrician-mechanics and helpers with the New York State Labor Relations Board (hereafter called NYSLRB). On November 29, that board mailed a letter advising the Company the petition had been filed and scheduling a conference thereon for December 7. The letter was opened by Pollack at the shop the follow- ing day, Friday, November 30, while most of the employ- ees were in the shop. On opening the letter, Pollack stated some of the em- ployees had joined Local 3 and asked who had joined. There was no response. Amorgianos repeated Pollack's question, first in English and then in Greek. There still was no response. Amorgianos then stated in Greek, be a man, tell the truth, state who joined. Nastos responded, stating he joined the Union. Moustogiannis also stated that he also joined the Union. Both answered in Greek. Amorgianos asked them why they did that without telling him (in 11 The above findings are based on the uncontradicted testimony of Nas- tos as corroborated by Handrinos (concerning Amorgianos ' remarks at the jobsite ) and the parties' stipulation that Moustogiannis would testify to the same effect as Handrinos . As noted heretofore , Amorgianos did not testify. 1241 Greek), turned to Pollack, and told Pollack ( in English) that Nastos and Moustogiannis admitted they joined the Union. Pollack did not comment.12 On the basis of the foregoing, I find that,-on November 30, the Company by Pollack and Amorgianos interrogated the Company's employees concerning their union activities and thereby violated Section 8(a)(1) of the Act. 4. The alleged first (December 1) discriminatory layoffs and promises The day after Pollack's receipt of the Union's NYSLRB petition (Friday, November 30) and his and Amorgianos' interrogation of the employees (Saturday, December 1), Amorgianos telephoned Nastos at Nastos' home, told Nas- tos he and the other employees were laid off and stated that he told Nastos earlier if the employees joined the Union this would happen. Amorgianos telephoned Mous- togiannis and made the same remarks to him. Handrinos was at Nastos' home. Nastos repeated Amor- gianos ' remarks to Handrinos. Nastos and Handrinos tele- phoned the other employees-Moretti, Moustogiannis, Krellenstein , and Recigno-and told them what had hap- pened. They all agreed to go to Local 3's office the follow- ing Monday, December 3. When Handrinos returned home his wife informed him Amorgianos had telephoned and wanted him to call back. Handrinos called Amorgianos and Amorgianos asked him if he had talked to any of the other employees. Handrinos replied that he had. Amorgianos stated that Handrinos knew what had happened-they were all laid off. Handri- nos confirmed he was so informed. Either that day (December 1) or on the following day, Amorgianos telephoned Krellenstein. He told Krellenstein if he joined the Union he wouldn't be working for Pollack but, if he stayed with Pollack, he would have a job and receive more money and benefits; he then asked Krellen- stein which Krellenstein wanted. Krellenstein replied he wanted to stay with Pollack and work. Amorgianos advised Krellenstein he would be in touch with him later.13 On the basis of the foregoing, I find that on December 1 the Company by Amorgianos notified Nastos and Mousto- giannis that all the Company's employees were laid off be- cause of their union activities and thereby violated Section 8(aXI) and (3) of the Act; I further find on the basis of the foregoing that the Company by Amorgianos on December I and 2 threatened Krellenstein with discharge if he sup- ported the Union and promised Krellenstein wage and other benefit improvements if Krellenstein refrained from supporting the Union, thereby violating Section 8(a)(1) of the Act. 12 These findings are based on the mutually corroborative testimony of Handrinos , Nastos. and Krellenstem and the parties' stipulation that Mous- togiannis would testify the same as Handrinos. and Moretti would testify the same as Krellenstem. 17 The above findings are based on the uncontradicted testimony of Nas- tos. Handrinos. and Krellenstem and the parties' stipulation that Mousto- giannis if called to testify would testify to receiving a telephone call from Amorgianos on December I and hearing Amorgianos make the same re- marks he made to Nastos. 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The alleged December 3 interrogation and promise After conferring with the Union on Monday, December 3, the employees proceeded to the Company's shop to pick up their tools . Amorgianos opened the shop and, while the men were picking up their tools , went to the telephone. On completing his call, he asked the men to wait for Pollack's arrival, which they did. When Pollack arrived, he asked the men what was hap- pening . They replied that, since they had been fired by Amorgianos, they came to pick up their tools. Pollack re- plied he was the boss, they were not fired, but were laid off because work was slow. He went on to ask them why they joined Local 3. Nastos replied they joined to secure better pay and benefits. Pollack stated they should have talked to him first, there were better unions than Local 3 which he could have gotten them into and, if they hadn't gone be- hind his back, he would have helped them do so. One of the employees asked Pollack if they weren't fired, what should they do. Pollack replied they should go home and he would call them when he needed them.14 Recigno and Krellenstem remained in the shop after the rest of the employees left with their tools. After the other employees left, Pollack asked them what their views were about the Union. They did not respond. Pollack stated he would talk to them again later." Based on the foregoing, I find and conclude that the Company by Pollack on December 3 impliedly promised his employees he would get them into a better union if they abandoned their support of Local 3 and interrogated them concerning their reasons for supporting Local 3, thereby violating Section 8(a)(1) of the Act. I further find and conclude that the Company, by Pol- lack, on December 3 separately interrogated Recigno and Krellenstem concerning their views on unionism and there- by additionally violated Section 8(a)(1) of the Act. 6. The alleged December 4 interrogation On December 4 Pollack telephoned Ricigno at his home and asked Recigno whether he told the Union his current pay rate . Recigno replied he did not go to the union hall. Pollack asked him who went to the union hall. Recigno replied he did not know, since he didn't go. Pollack in- structed Recigno to come back to work the following day- 16 On the basis of the foregoing, I find and conclude that on December 4 the Company by Pollack interrogated Re- cigno concerning the union activities of other employees and thereby violated Section 8(a)(1) of the Act. 7. The alleged December 7 interrogation Recigno and Krellenstein were called back to work on December 5 and worked thereafter to January 11, 1974. On 14 The foregoing findings are based on the mutually corroborative testi- mony of Handrinos , Krellenstem , and Recigno i5 This finding is based on the testimony of Recigno. 16 The foregoing finding is based on the uncontradicted testimony of Re- cigno. December 7, Krellenstein had a discussion with Amorgia- nos in the shop. Amorgianos told Krellenstein the three Greeks (Handrinos Moustogiannis, and Nastos) would never be accepted by Local 3 due to their difficulties with the English language ; that neither would Krellenstein be accepted, because he did not have enough experience; and that only Recigno would be able to get in. Amorgianos then asked Krellenstein if he was still interested in Local 3 representation. Krellenstein replied he was only interested in working and gaining experience in the electrical field.17 Based upon the foregoing, I find that the Company by Amorgianos on December 7 interrogated Krellenstein con- cerning his continued interest in union representation and thereby violated Section 8(a)(1) of the Act. 8. The alleged final (December 7 and January 11) discriminatory layoffs As noted heretofore (in the section of this Decision enti- tled Jurisdiction) the Union filed its original petition for certification as collective-bargaining representative of the Company's electrician-mechanics and helpers with the NYSLRB in November; on November 30 the Company first learned of the filing of that petition; and on December 7 the Company, at a prehearing conference before the NYSLRB, indicated jurisdiction lay with the NLRB rather than the NYSLRB. On December 5, Pollack called Handrinos, Nastos and Moustogiannis in for 1 day's work; namely, on Thursday, December 6. On the following day, December 7, which was the same day the NYSLRB hearing was held, he again laid them off. In a conversation with Handrinos on the latter date, Pollack told Handrinos to take his tools home, he would call him again if he needed him. The Company nev- er again called Handrinos, Nastos, or Moustogiannis (or Moretti after his December 1 layoff). The Union, in reliance upon the Company representa- tion at the NYSLRB December 7 conference that the NLRB had jurisdiction, filed its petition with the NLRB on December 19. At that time Recigno and Krellenstein were still em- ployed by the Company. They were recalled on December 6 and worked continuously from December 6. A hearing was scheduled on the NLRB petition for Jan- uary 11. That same day, Recigno, Krellenstein, and a third employee hired sometime in December were laid off. Re- cigno and Krellenstein have never been recalled. All employees who testified (Handrinos, Krellenstein, Moretti, Nastos, and Recigno) stated there was work re- maining to be done at the various jobsites where they were employed at the time they were laid off. The Company did not deny this was so, but contended the work had diminished to the degree Pollack and Amor- gianos could accomplish it without the help of any addi- tional employees. The Company contends the six employees were laid off and never replaced because the volume of work declined from and after December 1. 17 This finding is based on the uncontradicted testimony of Krellenstein POLLACK ELECTRIC COMPANY 1243 There is no question the Company performed less work after December 1;IS the question, however, is whether it declined because Pollack followed the deliberate policy of reducing the amount of new or added business he would perform after he learned of, and in order to thwart, his employees' interest in Local 3 representation. I find this is what he did. Both Amorgianos and Pollack made it clear to the employees that the Company would terminate their employment if they sought and secured rep- resentation by Local 3 for the purpose of bargaining collec- tively with the Company concerning their rates of pay, wages, hours and working conditions. When the employees disregarded that warning, Pollack simply gradually re- duced his commitments after December 1 to a point he and Amorgianos could perform the work, laying off the rest of the employees.19 I therefore find and conclude that the Company laid off Moretti on December 1, Handrinos, Moustogiannis and Nastos on December 7, and Krellenstein and Recigno on January 11, 1974, to thwart those employees' effort to se- cure representation by Local 3 and to avoid bargaining collectively with that organization concerning its employ- ees' rates of pay, wages , hours and working conditions and thereby violated Section 8(a)(1) and (3) of the Act. 9. The unit and the question concerning representation a. The unit On January 16, 1974, the Regional Director for Region 29 found the following to be an appropriate unit for the purpose of collective bargaining: "All electricians, electri- cal maintenance mechanics and helpers employed by the employer at its Brooklyn, New York, premises, excluding all other employees, guards and supervisors as defined in the Act." I find and conclude that the aforesaid unit is appropriate for collective bargaining purposes within the meaning of Section 9 of the Act. b. The question concerning representation The Regional Director also directed an election for Feb- ruary 8, 1974, to decide whether or not the employees in the aforesaid unit desired to be represented by Local 3. Handrinos, Krellenstein, Moretti, Moustogiannis, Nas- tos, and Recigno appeared and cast ballots at the February 8, 1974, election. Their ballots were challenged by the Board agent conducting the election on the ground their names did not appear on the eligible voters' list. Findings have been entered heretofore that Handrinos, Moretti, Moustogiannis, Nastos, Krellenstein, and Recigno were laid off prior to February 8, 1974, and that none of them subsequently were recalled. Findings have also been entered that the Company re- is Pollack's testimony to a lower gross in 1974 than in 1973 is uncontra- dicted. 19 Pollack testified his gross in 1973 was $75,000, in 1974, $26,000 1 do not credit his testimony that the drop was solely attributable to a drop in business orders, in view of the direct correlation between his threats, layoffs, and drop in gross. duced its workload and terminated the above-named em- ployees to chill or thwart their effort to secure representa- tion by Local 3 in bargaining collectively on their behalf with the Company concerning their rates of pay, wages, hours, and working conditions. Having found the aforesaid employees were discrimina- torily discharged, I further find they were employees of the Company at the time of the election, a question concerning their representation exists, their ballots should be opened and counted, and an appropriate certification should be issued based upon a tally of their ballots. CONCLUSIONS OF LAW 1. The Company at all times pertinent was an employer engaged in commerce in a business affecting commerce and Local 3 was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 2. At all times pertinent Pollack and Amorgianos were supervisors and agents of the Company acting on its be- half. 3. The following employees of the Company constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All electricians, electrical maintenance mechanics and helpers employed by the Company at its Brooklyn, New York, premises, excluding all other employees, guards and supervisors as defined in the Act. 4. The Union's February 8, 1974, challenge to the ballot cast by Amorgianos shall be sustained inasmuch as he is a supervisor and the Board agent's challenges to the ballots cast on February 8, 1974, by Handrinos, Krellenstein, Moretti , Moustogiannis , Nastos, and Recigno shall be overruled and their ballots shall be counted, inasmuch as they retained employee status with the Company at the time of the election. 5. The Company violated Section 8(a)(1) of the Act by: (a) Amorgianos' threat and warning in late October or early November- to employees against seeking representa- tion by Local 3 and loss of jobs if they did. (b) Pollack's and Amorgianos' interrogation of employ- ees concerning their union activities on November 30. (c) Amorgianos' December 1 or 2 threat to discharge Krellenstein if he supported Local 3 and promise of wage and other improvements if he refrained from supporting Local 3. (d) Pollack's December 3 interrogation of employees concerning their union activities and promise that he would get them into a better union if they refrained from supporting Local 3. (e) Pollack's December 4 interrogation of Recigno con- cerning his union activities. (f) Amorgianos' December 7 interrogation of Krellen- stein concerning his union activities. 6. The Company violated Section 8(a)(1) and (3) of the Act by: (a) Amorgianos' December 1 layoff of Handrinos, Krel- lenstein , Moretti, Moustogiannis, Nastos, and Recigno for supporting Local 3. (b) The Company's December 1 termination of Moretti, December 7 termination of Handrinos, Moustogiannis, 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Nastos , and January 11, 1974, termination of Krellen- stein and Recigno , to chill or thwart those employees ef- forts to secure representation by Local 3 for the purpose of bargaining collectively with the Company concerning their rates of pay , wages , hours , and working conditions. THE REMEDY Having found that the Company engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that the Company be directed to cease and desist therefrom and to take affirmative action de- signed to effectuate the purposes of the Act. I shall recom- mend that the Company be ordered to cease and desist from interrogating its employees concerning their support of Local 3, threatening its employees with discharge for seeking Local 3's representation, promising its employees benefits if they refrain from seeking Local 3's representa- tion and, reducing its business and laying off its employees to thwart its employees' efforts to secure Local 3's repre- sentation and to avoid bargaining collectively with Local 3 concerning its employees' rates of pay, wages, hours, and conditions of employment. I shall recommend that the Company be ordered to send a letter to Handrinos, Krellenstein, Moretti , Moustogian- nis, Nastos , and Recigno stating it will cease and desist from the foregoing;20 that the Company be ordered to re- call the six employees just named to their former or sub- stantially equivalent jobs if they exist (if necessary, dis- charging any replacements); that if any one or more of the employees are not recalled they shall be placed on a prefer- ential hiring list and recalled as need arises for their serv- ices; and that the Company make the six employees named above whole for any wage losses they suffered by reason of the discrimination practiced by the Company against them by payment to them of the sum of money they would have earned had they remained in the Company's employ for a period commencing with the date of their termination and ending on the date they secured substantially equivalent employment .21 The employees' lost wages shall be comput- ed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950) with interest at 6 percent computed in accordance with the formula pre- scribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend that the Union's challenge to the ballot cast by Amorgianos in the February 8, 1974, election be sustained, the Board agent's challenges to ballots cast by the six employees named above at that election be over- ruled, a tally of those employees' ballots be prepared, and a certification based thereupon be issued. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: 20 The record at the January 28-29, 1975, hearing disclosed that Amorgia- nos, the foreman , was the only person in the Company's employ; it would be pointless to post notices. 2 See Darlington Manufacturing Company, 139 NLRB 241, 255 (1962). ORDER22 Respondent, Pollack Electric Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their activi- ties on behalf of Local 3, International Brotherhood of Electrical Workers, AFL-CIO. (b) Threatening its employees with discharge for seeking representation by the above union. (c) Promising its employees benefits for refraining from seeking Local 3 representation. (d) Reducing its business and laying off its employees to thwart its employees' efforts to secure representation by Local 3 and to avoid bargaining collectively with Local 3 concerning its employees' rates of pay, wages, hours and working conditions. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Send a letter to George Handrinos, Stephen Krellen- stein , Eugene Moretti, Gus Moustogiannis, Thomas Nas- tos, and Albert Recigno stating it will cease and desist from interrogating them concerning their activities on behalf of Local 3, threatening them with discharge if they seek repre- sentation by Local 3 or any other labor organization, promising them benefits if they refrain from seeking repre- sentation by Local 3, and reducing its business and laying them off to thwart their effort to secure representation by Local 3 and to avoid bargaining with Local 3 concerning their rates of pay, wages, hours, and working conditions. (b) In the same letter, offer the aforesaid employees im- mediate and full reinstatement to their former jobs or sub- stantially equivalent jobs if their former jobs no longer ex- ist, if necessary discharging any replacements; if those jobs do not exist, notify the aforesaid employees of their place- ment on a preferential hiring list for recall as their former or equivalent jobs arise; advise the aforesaid employees they shall be made whole in the manner set forth in the Remedy section of this Decision. (c) Make the aforesaid employer's employees whole in the manner set out in the Remedy section of this Decision. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all rec- ords necessary for the determination of the amount of backpay and any other payments and obligations due un- der this recommended Order. (e) Notify the Regional Director for Region 29, in writ- ing, within 20 days from receipt of this Order, what steps the Company has taken to comply herewith23 (f) The following employees of the Company constitute a unit appropriate for the purpose of collective bargaining 13 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations . be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes 33 In the event that 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." POLLACK ELECTRIC COMPANY 1245 within the meaning of Section 9(b) of the Act: guards and supervisors as defined in the Act. All electricians, electrical maintenance mechanics and (g) A question affecting commerce exists concerning the helpers employed by the Company at its Brooklyn, representation ththe e meaning Company's fsSe employees in the ctions 9(c)(1) afore- New York, premises, excluding all other employees, and (7) of the Act.