Ronald H. Laberge Consulting Civil Engineers and Municipal PlannersDownload PDFNational Labor Relations Board - Board DecisionsNov 27, 1970186 N.L.R.B. 852 (N.L.R.B. 1970) Copy Citation 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. Copy with citationCopy as parenthetical citation