Ronald H. Laberge Consulting Civil Engineers and Municipal Planners

National Labor Relations Board - Board Decisions

Nov 27, 1970

186 N.L.R.B. 852 (N.L.R.B. 1970)

852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ronald H . Laberge, d/b/a Ronald H. Laberge Consult-
ing Civil Engineers and Municipal Planners and
Local 545 D, International Union of Operating
Engineers, AFL-CIO. Cases 3-CA-3901 and
3-RC-4728
November 27, 1970
September 4, 1969 , among the Respondent 's employ-
ees, be , and it hereby is, set aside , and that Case
3-RC-4728 be remanded to the Regional Director for
Region 3 for the purpose of conducting a new election
at such time as he deems that circumstances permit
the free choice of a bargaining representative.
[Direction of second election 2 omitted from
publication.]
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 9, 1970, Trial Examiner William J. Brown
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the
Respondent has not engaged in certain other alleged
unfair labor practices and recommended dismissal of
those allegations of the complaint. He further found
that certain conduct by the Respondent interfered
with and affected the results of the election in Case
3-RC-4728 and recommended that the election be set
aside and that a new one be directed. Thereafter, the
Respondent and the General Counsel filed exceptions
to the Trial Examiner's Decision and supporting
briefs and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Ronald H. Laberge, d/b/a Ronald
H. Laberge Consulting Civil Engineers and Municipal
Planners, Albany, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the election held on
I We agree with the Trial Examiner that James Cesare was laid off
because of his union activities , in violation of Section 8(a)(3) of the Act. In
doing so, however , we do not rely, as did the Trial Examiner in part, on
Respondent 's offer to Cesare of unconditional reinstatement as indicating a
discriminating intent in layoff.
2 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236; N.LR.B. v. Wyman-Gordon Co., 394 U.S.
759. Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 3 within 7 days
after the date of issuance of the Notice of Second Election by the Regional
Director. The Regional Director shall make the list available to all parties
to the election . No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances . Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed.
TRIAL EXAMINER'S DECISION
and
REPORT ON OBJECTIONS
WILLIAM J. BROWN, Trial Examiner: This consolidated
proceeding under Sections 9 and 10 of the National Labor
Relations Act, as amended, hereinafter referred to as the
Act, came on to be heard before Trial Examiner Brown at
Albany, New York, on February 18-20 and March 3-6,
1970. The petition in the representation case had been filed
July 28, 1969,1 by Local 545 D, International Union of
Operating Engineers, AFL-CIO, Petitioner-Charging Par-
ty, hereinafter referred to as the Union, a Stipulation for
Certification Upon Consent Election approved August 21,
and an election conducted September 4, resulting in
employee rejection of union representation by vote of 5 to 4
among the 9 eligible voters.2 The original charge in the
complaint case was filed October 10, and on January 7,
1970, the Board's Regional Director for Region 3 issued the
complaint herein and ordered consolidation of the
complaint case with hearing on union objections to conduct
affecting results of the election. The complaint alleges and
the answer denies the commission of unfair labor practices
defined in Section 8(a)(1), (3), and (5) of the Act.
At the hearing the parties appeared and participated as
noted above with full opportunity to present evidence and
argument on the issues. Subsequent to the close of the
hearing a brief was received on behalf of Ronald H.
LaBerge, d/b/a Ronald H. LaBerge Consulting Civil
Engineers and Municipal Planners, Respondent-Employer,
I Dates hereinafter, unless otherwise noted , relate to the calendar year
1969.
2 The parties agreed that Robert Cashin was a supervisor and not
eligible to vote.
186 NLRB No. 126
RONALD H. LABERGE 853
hereinafter sometimes referred to as the Company, and has,
together with oral argument submitted at the close of the
hearing by the General Counsel, been fully considered. On
the entire record3 herein, and on the basis of my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT-EMPLOYER
I find, in accordance with the pleadings and evidence,
that the Company, an individual proprietorship with its
principal office in Albany, New York, is and has been at all
material times engaged in performing civil engineering and
related services. During the calendar year preceding
issuance of the complaint herein the Company received
revenues in excess of $150,000 for services; more than
$50,000 of such revenues were received for services
performed for the village of Colonie, New York, in
connection with projects financed in substantial part by the
United States Government. The Company concedes and I
find that it is an employer engaged in commerce within the
purview of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence establish that the Union is a
labor organization within the purview of Section 2(5) of the
Act.
bargaining representative of the signers. On the morning of
July 28 Scott called on Ronald H. LaBerge, owner of the
Company and hereinafter sometimes referred to as
LaBerge, and asked that LaBerge recognize the Union.
LaBerge testified that in the course of their conversation,
which, according to LaBerge lasted no more than a minute,
Scott did not assert a claim to majority status and made no
mention of authorization cards. I credit this testimony of
LaBerge. Scott told LaBerge he would have to petition the
Board for an election, a step which he forthwith proceeded
to take with results set forth above.
B. The Complaint Case
The complaint alleges, and the Company's answer denies,
that (1) in the period August 1 to September 9, the
Company engaged in various unfair labor practices in the
nature of threats respecting continuation of employment,
interrogation concerning union activities, promises and
grants of benefits as inducements to reject union represent-
ation, surveillance and the creation of the impression of
surveillance of union activities, and inducement of
employees to refrain from testifying in Board proceedings;
(2) the Company discharged Cashin on October 23, laid off
Cesare on October 24, and reduced employees' wages on
September 9, all in reprisal for employee participation in
concerted activities and to discourage employee support of
the Union; and (3) the Company unlawfully refused from
and after July 28 to bargain with the Union.
III. THE UNFAIR LABOR PRACTICES AND THE
OBJECTIONS TO CONDUCT AFFECTING THE RESULTS
OF THE ELECTION
A. Introduction and Summary of Events
This case concerns events occurring in the period July 22
to October 24, in the course of the Union's efforts to
organize and secure company recognition as exclusive
bargaining agent for the Company's employees engaged in
field survey and technical engineering work. There is a
substantial quantity of considerably cloudy and inconclu-
sive testimony as to the makeup of the unit which was both
appropriate and sought by the Union, but there appears to
be no basis for contesting the accuracy of a stipulation
entered into on August 20 by the Company and the Union
and establishing the exclusion as supervisors of Project
Managers Charles Homeyer, Clyde Robbins, and Robert
Cashin; the stipulation also establishes the employee and
voting eligibility status of employees Cesare, Dunbar,
Farrigan, Fitzgibbon, Green, Mooney, Maksymik, Moran,
and Tunney, in the appropriate bargaining unit, viz, all
employees engaged in field survey and other technical
engineering work.
Sometime prior to July 22 Cashin had asked Union
Business Agent Scott to discuss union representation with
company employees and on that night Scott met with
Cashin and a group of employees4 at the home of employee
Dunbar; Scott obtained employee signatures on five
authorization cards designating the Union as collective-
3 General Counsel's posthearing written motion to correct transcript is
unopposed and hereby granted
4 The employee group consisted of employees Dunbar, Farrigan,
1. Interference , Restraint, and Coercion
a. Threats
LaBerge is alleged to have, on or about August 4 at the
company parking lot, threatened employees with economic
reprisals if they joined or supported the Union. Mooney, a
union supporter, testified that on August 4, in the parking
lot, LaBerge solicited his support in opposing the Union
and when Mooney asked LaBerge what would happen in
the event the Union won the election, LaBerge said that in
that event he would close the doors and abandon his
company operations. Although LaBerge denied the utter-
ance of threats because of the instructions he had received
through counsel in the form of an employer's guide to
"Do's and Don't's" (when faced with union organization), I
credit Mooney's testimony and find that on the occasion
LaBerge threatened closing or curtailment of company
operations as a reprisal in the event of union organization
and thereby engaged in unfair labor practices within the
scope of Section 8(a)(1) of the Act.
LaBerge (or Robbins) is alleged to have uttered threats of
economic reprisals against employee union support on or
about August 28 at the company office. Farrigan testified
that a week before the election he asked LaBerge what
would happen to employees who voted for the Union, to
which, according to Farrigan, LaBerge replied that in later
months they would be discharged. I found Farrigan a
credible witness on this matter and, notwithstanding
Maksymik , Mooney, and Moran Employee Cesare, who did not attend the
July 22 meeting , never signed a union authorization card , but acted as the
union observer at the election held on September 4
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LaBerge 's denial of uttering threats, I find that on the
occasion in question LaBerge threatened reprisals for union
support and engaged in the unfair labor practices alleged in
the complaint in this respect.
LaBerge is alleged to have engaged in unlawful threats on
an Albany street on the day of the election , September 4.
Farrigan testified that on September 4, he met LaBerge on
an Albany street about noon , some 4 hours before the
opening of the polls, and LaBerge told him that if
employees voted for the Union , LaBerge would lose his
mortgaged house and the Company would lose some jobs. I
credit Farrigan 's testimony and find that on the occasion in
question LaBerge engaged in unfair labor practices within
the scope of Section 8(a)(1) of the Act.
Robbins is alleged to have threatened economic reprisals
against union support on August 5 in the company office.
Mooney testified that on that date he was discussing the
Union with Robbins in the office and that Robbins, in reply
to Mooney 's question , stated that if the Union succeeded in
the election , LaBerge would stop the surveying operations
and contract that work out. Although Robbins conceded
that on the occasion in question , the subject of possible
plant closure arose, he denied that he threatened closure of
the plant or curtailment of operations and testified that he
reminded Mooney of the "Do's and Don 't's." I credit
Mooney's account and find that on this occasion Robbins
threatened the curtailment of job opportunities in the event
the Union succeeded in securing representative status.
LaBerge is alleged to have engaged in similar threats on
September 9, 4 days after the election , but while the
representation case was still pending final determination. I
am referred to no testimony which might form the basis of a
finding on this issue and I find none and recommend
dismissal of this count of the complaint.
b. Interrogation
The complaint alleges and the answer denies that
LaBerge on two occasions in August , and Robbins, by
telephone , on five occasions between the first union
meeting and the election , interrogated employees concern-
ing their and their fellow employees ' union activities.
Mooney testified that on August 4 he was engaged in
conversation with LaBerge and Homeyer in the course of
which LaBerge asked him if he knew that the Union had
approached the Company and thereafter solicited his help
in defeating the Union . Farrigan testified that after each
one of the five or six union meetings he attended LaBerge,
Robbins , or Homeyer asked him who had attended and
what was said . Cesare testified that , commencing in late
July, LaBerge on numerous occasions asked him how he
stood with respect to the Union . I credit the testimony of
Mooney, Farrigan , and Cesare. The company inquiries
above set forth are not set in circumstances guaranteeing
innocence of purpose as in the Blue Flash doctrine and
plainly constitute unfair labor practices within the scope of
Section 8(a)(I) of the Act.
c. Promises and grants of benefits
The complaint alleges and the answer denies that in the
period August I-September 9, LaBerge , on nine occasions,
and Robbins and Homeyer each on one occasion , promised
and/or granted benefits to employees in return for their
rejection of the Union.
With respect to Robbins , the allegations relate to a jobsite
in Colonie , New York, on a date believed to be early in
August . In this connection Farrigan testified that , about 5
days before the election and while he was working at the
Colonie jobsite , Robbins engaged him in conversation
about the union benefits in the field of education , health,
and welfare and informed him that if the Union did not get
in he would have the dollar equivalent of those benefits in
his pocket . Robbins' account of the conversation is that, in
response to Farrigan 's questions , he informed him that he
would be reviewed for a raise . I credit Farrigan's testimony
and conclude that at the time and place in question
Robbins promised him economic benefits to accrue in the
event the Union was rejected by employees in the
impending election.
Concerning the allegations relating to Homeyer , alleged
in the complaint to have occurred on or about August 4 in
an automobile at an unknown location , Mooney testified
that Homeyer was driving him home on that date and,
during the drive , told him that LaBerge had planned a
substantial salary increase for him and that it would be
forthcoming when the Union was defeated. I credit
Mooney's account and find that by this statement of
Homeyer the Company sought to induce Mooney to reject
the Union thereby engaging in unfair labor practices
defined in Section 8 (a)(l) of the Act.
The complaint alleges and the answer denies promises of
benefits in return for rejection of the Union on the part of
LaBerge on nine separate occasions between August 1 and
September 9. Dunbar testified that on August 1 LaBerge
talked to him from about 11 a.m. until the end of the
workday at 5 o 'clock and , among other matters , stated that
after the election was over he would reevaluate everyone's
salary and there would be increases . I credit the testimony
of Dunbar and find that on the occasion in question
LaBerge's promise of increases constituted interference,
restraint, and coercion within the ambit of Section 8(a)(l)
of the Act.
Mooney testified that on August 4 LaBerge told him that
things were going to get better with respect to pay raises
when the Union was defeated ; also, according to Mooney,
LaBerge repeated this promise frequently during the
preelection period . I credit Mooney 's account and find that
on August 4 and on several other occasions LaBerge
interfered with employee rights under the Act by promising
pay increases in return for employee rejection of the Union,
thereby engaging in unfair labor practices within the scope
of Section 8(a)(1) of the Act.
d . Surveillance and/or impression of surveillance
The complaint alleges that on or about September 2 at
the company office LaBerge engaged in and/or created the
impression of engaging in surveillance of employee union
activity . The only evidence apparently relating to this
aspect of the complaint appears to be that of Maksymik to
the effect that on September 2 in the office LaBerge said to
him that the election probabilities looked like a four to four
division with Maksymik having the deciding vote . While I
credit the testimony of Maksymik , this evidence is plainly
insufficient to warrant an inference that the Company
RONALD H . LABERGE 855
engaged in surveillance or that it created the impression
thereof.
e. Ordering employee surveillance
It is alleged in the complaint that on or about August 4 in
an automobile Homeyer instructed employees to engage in
surveillance of the union activities of other employees. This
has reference to the automobile ride given Mooney on that
date as mentioned above. Mooney testified that in the
course of the drive Homeyer told him that he wanted him to
"fink" on the Union and report back to him or to LaBerge.
Homeyer denied Mooney's account and testified that he
strictly followed the "Do's and Don 't's." I credit Mooney's
testimony and find that in this automobile ride Homeyer
urged Mooney to report back to management concerning
the organizational activities of employees , thereby engaging
in unfair labor practices within the scope of Section 8(a)(1)
of the Act.
that on a date believed to lie between August 13 and 20,
LaBerge instructed and encouraged employees to refrain
from giving testimony before the Board.
Cesare testified that in the interval between the two
hearings in the representation case , i.e., between August 13
and 20 , LaBerge came to his office and asked him whether
he was a white horse , i.e., for the Company, or a black
horse , i.e., for the Union , and then asked him to tell the
Union that he would not testify at the then pending second
hearing. When Cesare raised the possibility of being
subpenaed , LaBerge , according to Cesare , conceded that in
that event he would have to testify . LaBerge conceded
talking to Cesare in this period concerning testimony as to
Cesare's possible supervisory status but denied requesting
anyone to refrain from giving testimony on the matter. I
credit LaBerge 's denial and recommend dismissal of the
allegations of the complaint in this respect.
2. Discrimination
f. Anticipatory refusal to bargain
The complaint alleges and the answer denies that on
August 1 Robbins told employees that the Company would
not accept, recognize , or bargain with the Union . Dunbar
testified that on August 1 he had a talk with Robbins at the
office in the course of which Robbins said that LaBerge
would never sign a contract if the Union won the election
and that the representation issue could be prolonged for at
least 2 years. Robbins denied having a conversation with
any employee on August 1. I credit Dunbar 's testimony on
this issue and find that on the occasion in question the
Company engaged in an unfair labor practice within the
scope of Section 8(a)(1) of the Act.
g. Instructing employees to dissuade fellow
employees from joining or assisting the union
LaBerge and Robbins are alleged in the complaint to
have, on August 4, and September 3, respectively,
instructed and persuaded employees to encourage fellow
employees to refrain from joining or assisting the Union.
Mooney testified that on August 4, as he and Homeyer
were walking with LaBerge in the company parking lot to
Homeyer's automobile , LaBerge told him that the Compa-
ny wanted Mooney's help in defeating the Union because
some of the younger employees looked up to Mooney. I
credit this testimony of Mooney and find that the
allegations of the complaint in this regard are supported by
credible testimony.
Robbins is alleged to have similarly instructed employees
on September 3, both by telephone and in the company
office. Farrigan testified that on the day before the election,
September 3, Robbins talked to him in the company office
and urged him to convince Maksymik that he should vote
against the Union. Although Robbins denied such action, I
credit Farrigan's account and find that the allegations of
the complaint are supported by his testimony.
h. Instructing employees to refuse to give testimony
It is alleged in the complaint and denied in the answer
a. Robert Cashm
Robert Cashin, contended to be an employee by the
General Counsel and a supervisor by the Company, was
discharged on October 23 (G.C. Exh. 21 ). At that time he
was the senior employee in point of service . The Company's
letter terminating him states that his discharge was due to
his lack of effort . Cashin made the initial contact with the
Union and attended all or almost all the organizational
meetings conducted by Scott. At material times his title was
project coordinator and in the Company's Office Manual,
dated May 1969 (G.C. Exh. 3), he was listed separately
under that title , immediately below Robbins and Homeyer,
three steps above those technicians who are admittedly unit
employees , and one step above Schellkopf, listed as staff
consultant.
There are additional impressive indicia of the status of
Cashin as a supervisor above and beyond the company
manual (which, incidentally , was promulgated ante (item
motam) and the stipulation in the representation case. Thus
the testimony of Ernest Netz , a former employee of the
Company who worked under Cashin 's direction on a
Coxsackie Dam project, indicates that Netz was discharged
by LaBerge on the recommendation of Cashin. Also,
according to the testimony of LaBerge, Cashin was in
charge of the Colome Sewer job for the period from
summer of 1968 until his discharge in which period neither
Robbins nor Homeyer had occasion to visit the job and
LaBerge himself seldom visited it . The mayor of the village
testified that he had frequent consultation with Cashin who
informed him that he had the responsibility to check up on
the work of one surveying crew , sometimes two. Fabiani, a
short-term employee of the Company on the Colonie Sewer
project , testified that he worked under Dunbar on that
project and that Dunbar reported to Cashin. The evidence
also establishes that Cashin reported rules' infractions and
effectively recommended promotions. Fabiani was dis-
charged by LaBerge only 2 weeks after Cashin informed
him that LaBerge was thinking of firing him. I conclude
that Cashin was a supervisor within the meaning of Section
2(l 1) of the Act.
Cashin was primarily responsible for union organization
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among company employees, having arranged the employ-
ees' meeting with Scott and having informed employees at
the meeting that he was himself a member of the Union.
LaBerge acquired knowledge of Cashin's activity on behalf
of the union organizational campaign at least as early as
August 7.
The decision to discharge Cashin was made by LaBerge
on July 18, prior to the inception of the union organization-
al campaign, but the discharge was deferred due to a
combination of some timidity on LaBerge's part and
Cashin's vacation absence. At the time, Cashin was
working on a project known as the Colonie Sewer job and
his testimony is that he spent the last 3 months of his
employment in the office writing legal descriptions for
easements on that project. The evidence establishes that
there were about 150 easements involved in the Colonie
Sewer job and that Cashin charged 333 hours to their
preparation. The testimony of Donald W. Selee, a licensed
land surveyor and president of the New York State Land
Surveyors Association with extensive experience in the field
and an admitted expert in the field, establishes that the
normal expectancy of a man of Cashin's qualifications
would require only 120 hours.
I credit LaBerge's testimony that he determined upon the
discharge of Cashin prior to the July 28 visit of Scott and I
conclude that the evidence does not preponderate in favor
of the conclusion that the discharge constituted an unfair
labor practice under the Act.
b. Wage reduction
With respect to the allegations of the complaint to the
effect that on or about September 9, the Company
discriminatorily reduced employees' wages, it appears from
the oral argument submitted by General Counsel that these
allegations relate to Cashin and Cesare. The evidence
indicates that for some period of time prior to the second
hearing in the representation case Cashin and Cesare had
an arrangement with LaBerge whereby they submitted
semimonthly expense vouchers in the amount of $50 of
which they would return $37.50 to LaBerge, resulting in a
net to each of $25 per month or $300 per year. This
arrangement was discontinued by LaBerge about the time
of the election. The evidence indicates that the matter of
expense vouchers became known generally during the
pendency of the election proceedings. It cannot be
concluded that the decision to eliminate them was based on
discriminatory motivations and I recommend dismissal of
the allegations of unfair labor practices in their elimination.
c. James Cesare
Cesare was hired in July 1968, and thereafter worked as
an assistant engineer until his layoff effective on October
24.5 Although he attended three union organizational
meetings and served as union observer at the election, he
never signed a union card. On January 22, 1970, LaBerge
sent him a telegram offering unconditional reinstatement to
his former position with conditions of employment equal or
superior to those prevailing at the time of his layoff. Cesare
never replied to the telegram.
When initially hired by the Company Cesare accepted a
lesser salary than at his previous employment on LaBerge's
promise of an increase after 6 months. Shortly before the
expiration of the 6-month period, LaBerge increased his
take-home pay by the device of issuing to him a check for
expenses not actually incurred, a practice which continued
until sometime after the inception of the union campaign.
In oral argument General Counsel bottomed his case
respecting the layoff of Cesare on evidence tending to
establish that the Company had never experienced a layoff
and that a substantial increase in employment opportuni-
ties was anticipated. The Company asserts that, notwith-
standing any anticipated increase in work, Cesare was laid
off for conduct amounting to insubordination. Thus,
according to the testimony of LaBerge, Cesare revealed an
insubordination and hostility exemplified by his refusal to
use his own automobile for transportation to projects,
notwithstanding a longstanding practice whereby employ-
ees furnished their own cars and were reimbursed for the
costs involved, and also by deliberately idling in the
Company's offices. I credit Cesare's denial of improper
conduct in the Company's offices and his account of the
automobile episode to the effect that he had given advance
notice to LaBerge of the unavailability of his family
automobile. I do not credit LaBerge's testimony that
insubordination and deliberate disobedience account for
the layoff. Rather, I am convinced that if Cesare had in fact
engaged in the conduct attributed to him he would have
been discharged, not laid off, and would not subsequently
have been offered unconditional reinstatement. The
evidence indicates to me that Cesare was one of the few
employees known, by virtue of his serving as union
observer at the election, to be a "black hat-bad guy," and
since I am convinced that the assigned reason for his layoff
is not the genuine reason, I conclude that his sympathy for
the Union, as revealed by his service as election observer,
was a substantial motivating factor in the layoff.
Since Cesare, by inaction, rejected an offer of uncondi-
tional reinstatement on January 22, 1970, I conclude that he
is not now entitled to unconditional reinstatement but only
to backpay for the period October 24, 1969, through
January 22, 1970.
3. The refusal to bargain
The complaint alleges and the answer denies that the
Company engaged in unfair labor practices within the
scope of Section 8(a)(5) and (1) of the Act by refusing to
bargain with the Union from and after July 28. On that date
Scott, having secured sixs union authorization cards, called
on LaBerge at the latter's office. Scott introduced himself as
the Union's business representative and requested recogni-
tion of the Union; LaBerge told Scott that he had a meeting
to prepare for and asked that Scott arrange an appointment
with him. There is no indication that Scott offered to show
5 Notice of the layoff came in an October 20 letter from LaBerge stating 6 Including Cashin's card which, as found above, must be excluded in
that the layoff would be temporary and that when new projects were determining majority status since it is that of a supervisor . The remaining
available he would be considered for reinstatement. The complaint also five constitute a majority in the unit of eligible employees.
alleges a discriminatory reduction in wages on September 9.
RONALD H. LABERGE
the authorization cards or that LaBerge asked that he do so
although an affidavit of LaBerge prepared at the time
supports Scott's testimony that he asked to discuss
recognition of the Union. There is no indication that
LaBerge raised any question as to the Union's majority
status at that time. Following the meeting Scott proceeded
to the Board's Regional Office and filed the petition in Case
3-RC-4728.
The Company contends that the authorization cards, all
secured at the July 22 meeting at Dunbar's home, are
invalid as proof of the Union's representative status in that
they were obtained through direct and open assistance of a
supervisor, Cashin. As noted above I find the evidence to
establish the supervisory status of Cashin. The evidence
also establishes that Cashin played a significant role in
securing employee signature on the cards. Cashin made the
initial contact with the Union, introduced Scott at the first
meeting, and attended all or almost all subsequent
organizational meetings. He also informed employees at the
first meeting that he was himself a member of the Union.
He solicited union support from Mooney, Farrigan,
Dunbar, and Tunny. No employee appears to have been as
active as Cashin in drumming up support for the Union.
The evidence leaves no doubt but that Cashin was the
dominant force in the union organization campaign.
In view of the finding above set forth to the effect that
Cashin was, as stipulated in the representation proceedings,
a supervisor at all material times, it is concluded that the
Union's majority status as shown by the authorization
cards was substantially influenced by Cashin's prounion
activities and cannot serve as the basis for a bargaining
order. Welding & Industrial Products, Ltd, & Carbonic
Products Corp, 167 NLRB No. 129. It is, therefore,
recommended that the allegations respecting Section
8(a)(5) of the Act be dismissed.
C. The Representation Case
The union objections to conduct affecting the results of
the September 4 election allege that on August 4 and
thereafter the Company created an atmosphere making it
impossible for employees to exercise a free choice by the
issuance of "untrue, false, misleading and incorrect facts
concerning the Union." It is also alleged that "by other acts
and conduct the Employer interfered with the employees'
free choice in the election." The Union presented no
evidence and filed no brief; we need concern ourselves only
with "other Acts and conduct." In view of the findings set
forth above to the effect that in the critical period-July 28
to September 4-the Company engaged in numerous unfair
labor practices within the scope of Section 8(a)(1) and of
such a nature as inevitably to affect the employees' freedom
of choice in the election it will be recommended that the
election be set aside and that proceedings in the representa-
tion case be severed from the complaint case and remanded
to the Regional Director for the conduct of a second
election at such time as in his judgment the effects of the
unfair labor practices have been dissipated.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
857
The activities of the Company set forth in section III,
above, and there found to constitute unfair labor practices
occurring in connection with the business operations of the
Company as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing such commerce
and the free flow thereof.
V. THE REMEDY
In view of the findings above set forth to the effect that
the Company has engaged in unfair labor practices
affecting commerce, it will be recommended that it be
required to cease and desist therefrom and, in view of the
findings of discriminatory layoff, from any unfair labor
practices. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532
(C.A. 4). It will be recommended that the Company pay
backpay to Cesare for the period October 25 through
January 22, 1970, such backpay to be computed in
accordance with the remedial relief policies outlines in F.
W. Woolworth Company Co., 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716. With respect to
the representation case it is recommended that it be served
and remanded to the Regional Director as hereinbefore set
forth.
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the purview
of Section 2(5) of the Act.
3. By threatening employees with closure of the Albany
operation and with loss of job opportunities as a
consequence of union organization and with discharge of
union supporters, the Company has engaged in unfair labor
practices defined in Section 8(a)(1) of the Act.
4. By interrogating employees concerning the union
campaign and the identity of employee supporters of the
Union, the Company has engaged in unfair labor practices
defined in Section 8(a)(1) of the Act.
5. By promising employees wage increases in return for
their rejection of the Union, the Company has engaged in
unfair labor practices as defined in Section 8(a)(1) of the
Act.
6. By urging an employee to note and report back to
company supervisors concerning employee union activity,
the Company has engaged in unfair labor practices within
the scope of Section 8(a)(1) of the Act.
7. By informing an employee that the Company would
never sign a contract with the Union if it won the election,
the Company has engaged in unfair labor practices defined
in Section 8(a)(1) of the Act.
8. By urging employees to campaign against the Union
among fellow employees, the Company has engaged in
unfair labor practices defined in Section 8(a)(1) of the Act.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. By laying off and refusing until January 22 to
reinstate employee James Cesare in reprisal for his support
of and assistance to the Union, the Company has engaged
in unfair labor practices within the scope of Section 8(a)(3)
and (I) of the Act.
10. Except as specifically found herein the Company
has not engaged in unfair labor practices defined in the Act.
11. The Company has engaged in conduct affecting the
results of the election herein involved and that election
should be set aside for further proceedings before the
Regional Director.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case, it
is recommended that the Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with office closure and/or loss
of job opportunities as consequences of union organization
of employees.
(b) Interrogating employees concerning union organiza-
tional activity and/or the identity of employee supporters
of the Union.
(c) Promising employees benefits in return for their
rejection of the Union as a bargaining representative.
(d) Urging employees to note and report to the Company
concerning employee activity on behalf of the Union.
(e) Informing employees that it would never sign a
contract with the Union if the Union won a Board-
conducted representation election.
fellow employees.
(f) Urging employees to campaign against the Unions
among fellow employees.
(g) Laying off employees in reprisal for their support of
the Union.
(h) In any manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Make James Cesare whole for loss of earnings in the
period October 24, 1969, through January 22, 1970, in the
manner above entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze and give effect to the backpay requirements of this
Decision.
(c) Post at its Albany office copies of the attached notice
marked "Appendix." 7 Copies of said notice, on forms
provided by the Regional Director for Region 3, shall, after
being duly signed by Ronald LaBerge, be posted immedi-
ately upon receipt thereof and be maintained thereafter for
a period of 60 consecutive days, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to ensure that said notices are not altered,
defaced or covered by other material.
(d) Notify the Regional Director for Region 3, in writing,
within 20 days from receipt of this Decision, what steps
have been taken to comply with the terms hereof.8
IT IS ALSO RECOMMENDED that the election herein
involved be set aside and proceedings in the representation
case be remanded to the Regional Director as above noted.
IT IS FINALLY RECOMMENDED that the complaint be
dismissed with respect to allegations therein of unfair labor
practices not herein specifically found to have been
engaged in.
7 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 , recommendations , 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 . In the event
that the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
8 In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read : "Notify the Regional Director for
Region 3, in writing , within 10 days from receipt of this Order, what steps
the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with closing of our
office nor with loss of jobs as a result of organization of
employees by Local 545 D, International Union of
Operating Engineers, AFL-CIO, or any other union.
WE WILL NOT promise employees wage increases or
other benefits if they reject the above-named or any
other union.
WE WILL NOT question employees concerning their
activity or the activity of other employees on behalf of
the above-named or any other union, nor will we urge
employees to report to us on employee activity on
behalf of the above-named or other union.
WE WILL NOT urge employees to campaign against
the Union.
WE WILL pay James Cesare backpay with interest for
the period when we laid him off on October 24, 1969,
until he refused reinstatement on January 22, 1970.
WE WILL NOT lay off or otherwise discriminate
against employees in reprisal for their support of the
above-named or any other union.
All our employees are free to join or assist the above-
named or any other labor organization in accordance with
the National Labor Relations Act, as amended.
RONALD H. LABERGE,
d/b/a
RONALD H. LABERGE
CONSULTING CIVIL
ENGINEERS AND MUNICIPLE
PLANNERS
(Employer)
Dated By
(Representative) (Title)
RONALD H. LABERGE 859
This is an official notice and must not be defaced by Any questions concerning this notice or compliance with
anyone . its provisions, may be directed to the Board's Office,
This notice must remain posted for 60 consecutive days Seventh Floor , Drislane Building, 60 Chapel Street,
from the date of posting and must not be altered , defaced , Albany, New York 12207 , Telephone 518-472-2215.
or covered by any other material.