Santangelo & Co.

National Labor Relations Board - Board Decisions

Sep 27, 1965

154 N.L.R.B. 1649 (N.L.R.B. 1965)

SANTANGELO & CO. 1649
This Notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, detaced, or covered by any other material.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington, Telephone No. 682-4553.
APPENDIX C
NOTICE TO ALL MEMBERS OF BRICKLAYERS AND MASONS LOCAL UNION No. 3
AND TO ALL EMPLOYEES OF ELMER L. JOHNSON MASONRY CONSTRUCTION, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that.
WE WILL NOT induce or encourage individuals employed by Elmer L. Johnson
Masonry Construction, Inc., or any other persons engaged in commerce or in
an industry affecting commerce, to engage in a strike or refusal in the course of
their employment to use or handle any material or to perform any services
where an object thereof is to force or require their employer to cease doing
business with Purvis-Fedco, Inc.
WE WILL NOT threaten, coerce, or restrain Elmer L. Johnson Masonry Con-
struction, Inc., or any other person engaged in commerce or in an industry
affecting commerce, where an object thereof is to force or require said employer
to cease doing business with Purvis-Fedco, Inc.
BRICKLAYERS AND MASONS LOCAL UNION No. 3,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington, Telephone No. 682-4553.
Tony R. Santangelo , an Individual Proprietor d/b/a Santangelo
& Co. and International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local No. 452. Case
No. 27-CA-17-50. September 27,1965
DECISION AND ORDER
On June 14, 1965, Trial Examiner Ramey Donovan issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that he cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its pow-
ers in connection with this case to a three-member panel [Chairman
McCulloch and Members Jenkins and Zagoria].
154 NLRB No. 138.
206-446-66-col. 154-105
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, the brief,' and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that the Respondent, Tony R. Santangelo, An Individual Proprietor
d/b/a Santangelo & Co., Denver, Colorado, his officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial Exam-
iner's Recommended Order.
' The General Counsel's motion to strike Respondent ' s exceptions and brief is denied.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The charge of unfair labor practices in this case was filed by the above-named
Union on January 13, 1965. The complaint issued under date of February 23, 1965.
In issue were the jurisdiction of the Board and conduct alleged to be in violation of
Section 8(a)(1) and (5) of the Act. With all parties represented, the hearing was
held before Trial Examiner Ramey Donovan in Denvei, Colorado, on May 4, 1965.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
Respondent is an individual proprietor who engages in the wholesale fruit and
vegetable business in Denver, Colorado, as Santangelo & Co. In addition to the
proprietor, Tony Santangelo, the personnel of the Company consists of three driver-
warehousemen , Elizolde, Sisneros , and Del Real, plus a bookkeeper and a foreman.
On an annual basis, Respondent purchases fiuit and vegetables in an amount of at
least $200,000, principally from carlot wholesalers in Colorado. Substantially all,
or at least 95 percent, of the fruit and vegetables secured from the carlot wholesalers,
originate outside Colorado . The carlot wholesalers order their produce directly
from the out-of-State producers or suppliers, or in some cases, from the out-of-State
supplier's local representative; 1 the carlot wholesalers also order through, commis-
sion brokers.2 Respondent additionally, from September 1963, to September 1964,
supplied $7,000 worth of produce to the Lowry Air Force Base commissary, and,
from September 1964 to the time of the hearing, had supplied $12,000 worth of
produce to the same facility.
It is found that Respondent 's operations bring it within the jurisdictional standards
of the Act and within the Board's jurisdictional criteria. We also find that the
Union is a labor organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
In January 1965, the Union began organizational efforts among all the employees
working for companies in the wholesale market area where Respondent 's place of
'For instances , Sunkist Oranges has a representative in Colorado as does United Fruit
Company ( bananas).
2 Some specific annual purchases by Respondent from carlot wholesalers are: Federal
Fruit and Produce, $39 ,000; Famularo and Sons , $25,501 ; Pacific Fruit and Produce
Co., $6,969; Mile High Fruit and Vegetable Company, $12 ,000; Palmer and Sons, $14,120.
SANTANGELO & CO. 1651
business was located . Evidently as a result of such activity , the warehousemen-
truckdrivers of Respondent had talked among themselves for several days or a week
in early January about joining the Union According to Elizolde, one of the
Respondent's employees, "we all decided that [joining the Union] was the only way
to make any money...." 3
On Thursday, January 7, 1965, Elizolde and Del Real were on a lunch or coffee
break and were seated in a restaurant located in the wholesale market area At the
next table was Elizolde's brother-in-law, Evanglista, who was a warehouseman and
part-time salesman for the Denver Tomato Company, a concern in the area. Evan-
glista had evidently signed up with the Union himself and had talked to other employ-
ees about signing cards 4 As Elizolde and Del Real were sitting at their table, Elizolde
turned around and asked Evanglista, at the next table, it he had the union cards.
Evanglista passed several cards to Elizolde. Elizolde then remarked that "the only
way we would probably get a raise was to join the Union" and Del Real said, "yes."
Evanglista spoke briefly about union wages and union benefits. Elizolde and Del
Real thereupon each filled out and signed a union card and returned it to Evanglista
After receiving the signed cards from Elizolde and Del Real, Evanglista remarked
that only one more card was needed . Evanglista saw Sisneros in the restaurant on
the same day, January 7, and told him that Elizolde and Del Real had signed union
cards. Evanglista then asked Sisneros to sign a card and the latter did so.1
We find that, on and after January 7, 1965, the Union repiesented all Respondent's
production employees in an appropriate unit. The said appropriate unit consisting
of all Respondent's employees, exclusive of office clerical employees, salesmen, guards,
professional employees, and supervisors as defined in the Act
On January 8, 1965, Friday, two representatives of the Union, Jones and Sutton,
came to Respondent's office in the morning. They spoke with Respondent, Sant-
angelo, identified themselves, and informed him that they represented his employees.
At the same time, Jones and Sutton, or one of them, handed Santangelo a letter and
either the original signed cards of the employees or photostatic copies thereof. The
letter, addressed to Respondent from the Union, in substance, stated that Respondent's
employees had designated the Union to represent them regarding conditions of
employment, and the appropriate unit was described; "proof" of the Union's majority
status was stated to be attached to the letter (the signed cards or photostats of the
signed cards ); a meeting was requested on January 11 for the purpose of negotiating
wages, hours, and other conditions of employment. Santangelo's only response was
that his employees had said nothing to him about signing up for the Union but he
stated that he would respond in a few days to the Union's request for negotiations.7
Some time later on January 8, probably in the afternoon, after the Union repre-
sentatives had left, Elizolde came to Respondent's office for his paycheck since Friday
was payday. Present in the office were Santangelo, Del Real, Sisneros, and Elizolde.
The latter testified credibly that Santangelo asked the employees if they had signed
the union cards and they said they had. Santangelo referred to a period in his past
when he was driving a truck and was considering joining the Union. He evidently
said that he had decided not to join 8 The proprietor, Santangelo, on January 8
remarked that he could put meters in his trucks and this would entail the employees'
operating on a stricter schedule; he also spoke critically about employee garnishments
i Ellzolde was not certain whether or not Sisneros had participated in these early dis-
cussions but Elizolde and Del Real were participants . Ellzolde was 20 years old and
Del Real was 21 Both had been driving trucks since they were 17 Sisneros 'eas 32 years
old.
4 He testified : "I talked to all of them . We all did, everyone in the market did"
I The card read: "I authorize Local 452 of the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America to represent me as my collective bar-
gaining agent" with spaces for name of company ; kind of work performed by signer;
wage rate ; address ; phone number , and signature.
6It is not clear whether Sisneros was entering or leaving the restaurant when lie had
the conversation with Evanglista . Sisneros testified that he "was drinking a few beers"
but does not claim to have been intoxicated or otherwise unaware of what he was doing.
Evanglista states that his conversation with Sisneros occurred during a regular break
period in the working day.
7 Sutton testified that he had handed the signed cards to Santangelo and, after the
latter looked at them, Sutton then took back the cards.
8 Santagelo testified that he never joined the Union but at one time had considered
the possibility.
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and lateness 0 and about accidents.10 Santangelo also informed the employees that
they would receive a raise in pay 11 Santangelo advised the men to think it over
about the Union. Thereupon, on the same occasion, in the presence of Santangelo,
according to Elizolde, ". . . we more or less came to an agreement that we wouldn't
join the Union because, well, he [Santangelo] didn't want us to." The three employees
then walked across the street where the union office was located for the purpose of
taking back their cards. The union office was closed, however, and at no subsequent
time did any of the employees contact the Union or make any effort to retrieve their
cards 12
Apparently Sisneros later spoke to Santangelo about the best way to get out of
the Union. Santangelo advised him to see Attorney Gross.13 Mrs. Gross was
Respondent's attorney who represented the Company in the instant proceeding.
Sisneros went to see Attorney Gross and she instructed him to bring Del Real to her
office also.14 Sisneros and Del Real then went to the office of Attorney Gross.
According to Del Real, the attorney discussed with him why he had signed,the union
card. He stated that he had done so because he had not wished to be the only one
who did not sign.'° Del Real and Sisneros then signed a statement on a letter that,
according to Del Real, had already been typed when he had first arrived at the
attorney's office.10
With respect to the wage increase which was promised by Santangelo to the
employee on January 8, following the visit of the union representatives to the Com-
e Elizolde had been involved in four garnishments and apparently he or the others had
been late on occasions
10 In cross-examining Del Real, Respondent's counsel asked:
Q. How many accidents have you had?
A. Three
Q. And Tony [Santangelo] talked to you about it, as to whether he should keep
you or not?
A. Yes.
11 The pay increase became effective January 29.
is Regarding the walk across the street to the union office Elizolde was asked:
Q. When did you decide that you would go across the street?
A. When we got our checks that night.
Q. That all happened at the same time?
A. This was all within an hour, an hour and fifteen minutes.
Q. Were any reasons given by the men 9
A. Why they wanted them [the cards] back?
Q. Right.
A. No, it was just he [Santangelo] talked to us for a while, and we said we'd
see about getting them back.
13 Sisneros had worked for Respondent from about 1958-61. During that period, he
had occasion to require legal services and had been referred to Attorney Gross by someone
in Respondent's company. Sisneros returned to Respondent's employ in 1964
14Sisneros states that he had decided that he did not want the Union and had told
Del Real that he wished to get out of the Union. Del Real said that he also wanted to
get back his card When Sisneros spoke with Attorney Gross he had advised her that
Del Real also wanted to get out of the Union.
15 The exact date of the conferences between the attorney and Del Real and Sisneros is
not fixed. But it was subsequent to the events of January 8, previously described, in-
cluding the meeting in the company office with Santangelo, and no later than the follow-
ing Tuesday, January 12. Neither Sisneros nor Del Real, at the time of the May 1965
hearing, had been billed for any of these January legal services.
10 The letter was dated January 12 and was addressed to the Union and signed by
Attorney Gross. The letter stated that Sisneros and Del Real did not want union repre-
sentation and had requested Attorney Gross to advise the Union that their cards, signed
on January 7, were cancelled and withdrawn. The letter explained that the two em-
ployees bad signed because neither had wished to stand in the way of union representation,
each believing at the time that the other wanted the Union. In conclusion, the letter
declined to meet with the Union. At the bottom of the letter were the words: "We agree
with the statements made on our behalf in the above letter," followed by the signatures of
Sisneros and Del Real.
SANTANGELO & CO. 1653
pany, Santangelo testified that he had told the employees on that occasion that they
were all due for a raise after 6-month service with the Company. Santangelo gave
no testimony that any employee had ever been advised of this 6-month policy and
none of the employee witnesses testified to awareness of such a policy.17 Indeed,
Santangelo testified that "without them [the employees] knowing it" he had already
decided to raise them to $2 an hour but, on January 8, when discussing the matter of
a wage increase with the employees, they had said that others were receiving $2.05.
He thereupon agreed to the latter figure and it became effective January 29 18 The
raise apparently amounted to 55 cents an hour. Even the allegedly contemplated raise
to $2 an hour would have amounted to a 50-cent increase. While Respondent may
have given some thought to a wage increase before January 8, I find it unlikely that,
but for the advent of the union organizational effort and the signing of union cards
by the three employees, the substantial raise of January 29 would have been given.
I also find the evidence of a 6-month policy of wage increases to be unconvincing. If
there was such a policy, it would have been normal and in the interest of both the
employer and the employees for the employer to have made known such a policy well
in advance of the end of the 6-month period. Moreover, the 6-month period of all
these employees did not coincide although the raise pursuant to such alleged policy
was made simultaneously.
We find that on and since January 8, 1965, the Union represented a majority of the
employees in an appropriate unit. There was no fraud, misrepresentation, or coercion
involved in the signing of the union cards on January 7. Respondent did not enter-
tain a good-faith doubt of the Union's majority but utilized the period subsequent to
the Union's request for bargaining in order to undermine the Union's majority status.19
The afterthoughts and subjective thinking or ex post facto sentiments of some employ-
ees cannot negate the effect of their designation of the Union as then bargaining agent
nor excuse Respondent's refusal to fulfill its duty under the statute, particularly since
the evidence establishes that it was Respondent who gave the impetus to any change
of union sentiment among its employees
It is found that since January 8, 1965, Respondent has refused to bargain with the
Union in violation of Section 8(a) (5) and (1) of the Act. We find that the question-
ing, on January 8, of employees about whether they had signed union cards was in a
context of thinly veiled coercion since it was directly indicated and implied that
stricter and more adverse working conditions could or would result if the employees
persisted in their union adherence. Under all the circumstances, the promise and
granting of a wage increase had as its purpose and effect the granting of a material
benefit in return for the employee's abandonment of the Union. The circumstances
of the attempted withdrawal of the employees from the Union, sponsored and assisted
by Respondent, likewise constituted illegal interference with the rights guaranteed to
employees under the Act. All the foregoing conduct is found to be in violation of
Section 8 (a) (1) of the Act.
IV. THE REMEDY
The customary remedial action for the type of unfair labor practices found herein
is recommended, namely, that Respondent cease its unfair labor practices and, upon
request, bargain with the Union as the collective-bargaining agent of its employees
in the appropriate unit and, if agreement is reached, embody it in a signed contract.
CONCLUSIONS OF LAW
1. By refusing to recognize and to bargain with the Union, iespondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
2. By interfering with and restraining its employees in the exercise of the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
u Elizolde testified that when, on January 8, Santangelo promised the employees a raise,
he gave no explanation.
Is All three employees received the raise at the same time Sisneros had been working
since June or July 1964 and was In Respondent's employ several weeks before Elizolde."
Del Real had commenced work in August 1964.
19 N L R.B. v. Trimfit of California, Inc , 211 F. 2d 206, 209 (C A. 9) ; Joy Silk Mills,
Inc. v. N.L R .B., 185 F. 2d 732, 741 (C.A D C ), cert. denied 341 U.S 914.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire record, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that Tony R. Santangelo, an individual proprietor, d/b/a Santangelo &
Co., his officers, agents, successors, and assigns shall:
1. Cease and desist from.
(a) Interfering with, restraining, or coercing his employees in the exercise of their
rights under Section 7 of the Act by promising or giving rewards or detriments to the
employees for the purpose of interfering with their union activities or by interrogating
employees in a coercive context with respect to their union activities.
(b) In any like or related manner, interfering with, restraining, or coercing his
employees in the exercise of their right to self-organization, to form, loin or assist
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 452 or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except as affected by a contract requiring union mem-
bership as a condition of employment.
(c) Refusing to recognize and to bargain collectively with the aforementioned
Local No. 452 of the Teamsters Union.
2. Take the following affirmative action to effectuate the policies of the Act and to
remedy the unfair labor practices:
(a) Upon request, bargain collectively with Local No. 452 of the Teamsters Union
as the collective-bargaining agent of the employees in the appropriate unit and if
agreement is reached embody the agreement in a signed contract. The appropriate
unit is:
All employees of Respondent employed at its places of business in Denver, Colo-
rado, excluding office clericals, salesmen, guards, professional employees, and super-
visors as defined in the Act.
(b) Post at his place of business in Denver, Colorado, copies of the attached notice
marked "Appendix." 20 Copies of such notice, to be furnished by the Regional
Director for Region 27 of the Board, shall, after being duly signed by an authorized
representative of Respondent, be posted immediately upon receipt thereof, and be
maintained for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not altered, defaced,
or covered by other material.
(c) Notify the said Regional Director, in writing, within 20 days from receipt if
this Decision, what steps Respondent has taken to comply therewith,2l
20 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If this Order is enforced by a decree of a United States Court of
Appeals, the notice shall be further amended by substituting for the words "a Decision
and Order," the words, "a Decree of the United States Court of Appeals, Enforcing
an Order"
211f this Recommended Order is adopted by the Board, this provision shall be modified
to read. "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of their rights under the law to be represented by Local No. 452 of the Teamsters
Union or by any other union and to join Local No. 452 or any other union.
WE WILL NOT promise or give rewards or detriments or coercively question our
employees for the purpose of interfering with their rights to join unions of their
own choosing
Our employees are free to join or assist Local No 452 of the Teamsters Union
or any other union and to bargain collectively through a union or to refrain from
any and all such activity except as affected by a negotiated contract that by its
terms requires membership in a union.
PETROPOULOS BROTHERS APPLIANCES, INC. 1655
Upon request, we will bargain collectively with Local No. 452 of the Team-
sters Union as the collective bargaining agent for our employees in the appro-
priate unit. The appropriate unit is:
All our employees employed at our place of business in Denver, Colorado,
excluding office clericals, salesmen, guards, professional employees, and
supervisors as defined in the law.
TONY R. SANTANGELO, D/B/A SANTANGELO & CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 609 Railway
Exchange Building, 17th and Champa Streets, Denver, Colorado, Telephone No. 534-
4151, Extension 513.
Petropoulos Brothers Appliances, Inc. and Retail , Wholesale and
Department Store Union , AFI-CIO. Cases Nos. 13-CA-6869
and 13-RC-10450. September 27,1965
DECISION AND ORDER
On July 2, 1965, Trial Examiner C. W. Whittemore issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging 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 Deci-
sion. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that those allegations be dismissed. There-
after, the Respondent filed exceptions to the Trial Examiner's Decision
and a supporting brief ; and the General Counsel filed cross-exceptions
and a supporting 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 [Members Fanning, Brown, and Zagoria].
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, cross-exceptions, briefs, and the
entire record in this proceeding, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, with the modi-
fications noted below.
1. We agree with the Trial Examiner that the Respondent inter-
fered with, restrained, and coerced its employees in violation of Sec-
tion 8(a) (1) of the Act, by interrogating employee Drake as to his
154 NLRB No. 140.