Stannah Stairlifts

National Labor Relations Board - Board Decisions

Oct 31, 1997

324 N.L.R.B. 914 (N.L.R.B. 1997)

914
324 NLRB No. 141
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1996 unless otherwise indicated.
2 The General Counsel’s unopposed motion to correct the tran-
script, dated July 10, is granted.
3 The Respondent is a wholly owned subsidiary of a company
based in England, Stannah Stairlifts, Ltd.
Stannah Stairlifts, Inc. and Local 4, International
Union of Elevator Constructors, AFL–CIO.
Cases 1–CA–33867 and 1–RC–20418
October 31, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On June 13, 1997, Administrative Law Judge Robert
T. Wallace issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed an answering brief. The General
Counsel and the Respondent also filed a joint motion
requesting reconsideration and clarification of the
judge’s decision.
The National Labor Relations Board has considered
the decision in light of the exceptions and briefs, in-
cluding the joint motion, and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order except as explained below.
In his decision, the judge ruled on the unfair labor
practice allegations and a challenged ballot, but he did
not address the Employer’s ‘‘Objections and Addi-
tional Objection’’ to the representation election, which
were consolidated with the unfair labor practice pro-
ceeding. The General Counsel’s and the Respondent’s
joint motion requests that the judge rule on the election
objections.
In light of the joint motion, we have decided to
sever the representation case and remand the proceed-
ing to the judge to address the election objections.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
IT IS FURTHER ORDERED that Cases 1–CA–33867
and 1–RC–20418 are severed and Case 1–RC–20418 is
remanded to Administrative Law Judge Robert T. Wal-
lace to prepare and serve on the parties a supplemental
decision addressing the Employer’s ‘‘Objections and
Additional Objection’’ to the election in Case 1–RC–
20418. Copies of the supplemental decision shall be
served on all parties after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.
Don Firenze, Esq., for the General Counsel.
John F. Adkins and Sandra E. Kahn, Esqs. (Bingham, Dana
& Gould), of Boston, Massachusetts, for the Respondent.
Paul Kelly, Esq. (Segal, Roitman & Coleman), of Boston,
Massachusetts, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. These
cases were tried in Boston, Massachusetts, on June 19–20,
1996.1 In Case 1–CA–33867, the charge was filed on Feb-
ruary 26 and the complaint issued on May 21.
At issue in Case 1–CA–33867 is whether the Respondent
interrogated, threatened, and offered benefits to employees in
violation of Section 8(a)(1) of the National Labor Relations
Act (the Act) and whether it discharged, and otherwise dis-
ciplined, employee Leo Locurto in violation of Section
8(a)(3). The issue in Case 1–RC–20418 is whether Locurto’s
vote should be counted in a representation election.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering oral argument
of the General Counsel and a brief filed by the Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Massachusetts corporation, sells, in-
stalls, and services stairlifts from its facility in Hopkinton,
Massachusetts, and, in connection therewith, annually derives
gross revenues in excess of $500,000.3 It admits and I find
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. BACKGROUND
At all pertinent times, the Respondent’s complement of
nonclerical hourly employees consisted of three installers
(Dale Laughlin, Leo Locurto, and Joe Panzera) and one
warehouseman (Tony Cardarelli). For purposes of an election
held on March 20, the four employees were held to con-
stitute an appropriate collective-bargaining unit. At the elec-
tion, two employees voted for representation by the Union
and one voted against. The fourth ballot (Locurto’s) was
challenged by the Board agent because his name did not ap-
pear on the eligibility list furnished by the Company. He had
been discharged on February 28. Whether his vote should be
counted depends on determination of the lawfulness of his
discharge. The vote could be decisive against union represen-
tation only if he is found eligible and his vote is negative.
III. ALLEGED UNFAIR LABOR PRACTICES
By February 5, Laughlin, Locurto, and Panzera had signed
cards authorizing union representation; and by facsimile sent
that day a Board representative advised the Respondent’s
general manager (Michael Charteris) that a certification peti-
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915STANNAH STAIRLIFTS
4 Panzera was not present in the house when Edsall left, but he
corroborates Laughlin’s testimony as to the ‘‘kitchen’’ comment. For
his part, Locurto asserts that in parting Edsall told him, Panzera, and
Laughlin that ‘‘he hoped we knew what we were doing joining the
union because unions have reputations of a lot of layoffs [and] . . .
Stannah would not tolerate any union.’’ Neither Laughlin nor
Panzera recall those comments and both disclaim use of the word
‘‘union’’ by Edsall. Here, and at other points, Locurto appears to ex-
aggerate and shape the facts to suit his purposes and I decline to
accept his testimony.
5 A Bell Atlantic billing record shows over 60 voice mail messages
were left on Locurto’s mobile phone during the period January 17
through February 11, and there is no indication that he had any
problem receiving them.
6 At trial, Locurto denied making threats or disparaging remarks
and claimed, among other things, that at the end of the call Edsall
‘‘kind of chuckled that I was being out of work and he asked me
how I liked the Union now. [And] . . . made accusations like,
‘‘Your family will pay for this because you’ll be out of work. You
won’t be able to pay your rent or child support.’’ In an affidavit pre-
viously taken by a Board agent he was more expansive, quoting
Edsall as stating: ‘‘Listen to me. If you and your friends think
you’re going to unionize this shop, you have another think coming
. . . Stannah will not pay mechanics $30 an hour to be in the Union
. . . . They would just as soon break your legs than [let] you come
in as a union member . . . . Your kids are going to pay for it be-
cause you are a stupid guinea bastard.’’ These ‘‘extra’’ details are
not of a type likely to be forgotten, and it appears probable that
Locurto did not mention them in his direct testimony perceiving that
doing so would not enhance his veracity. In any event, I view
Edsall’s account as more reliable and have credited it.
tion had been filed and that there would be a hearing in con-
nection therewith on February 20.
Larry Edsall was hired as the Respondent’s operations
manager on February 5. Two days later he made a brief ap-
pearance at a home in Brighton, Massachusetts, where an in-
stallation was in progress. Laughlin arrived after Edsall. He
claims to have overheard Edsall say to Panzera in the kitch-
en: ‘‘I hope you haven’t been pushed in a direction you
don’t want to be in.’’ Laughlin also claims that a short time
later as Edsall was leaving he made a passing comment that
he hoped ‘‘no one was being coerced.’’ Edsall denies making
either of the statements, asserting that Laughlin arrived at the
residence just as he was driving off. Both Locurto and
Panzera testified that Laughlin was present in the house
while Edsall was there, and I credit Laughlin’s account, find-
ing it probable that Edsall was aware of the unionization
drive and suspected that the installers were union support-
ers.4 However, Edsall’s statements amount to nothing more
than an expression of opinion given in a coercion-free con-
text. Blue Flash Express, 109 NLRB 591 (1954); and
Dieckbrader Express, 168 NLRB 867 (1967). Accordingly,
allegations that the incident involved unlawful interrogation
and of job loss will be dismissed.
Later that week Laughlin approached warehouseman
Cardarelli and told him that ‘‘Shit was going to hit the fan’’
because he, Panzera, and Locurto had joined the Union. Ad-
mittedly, he also told Cardarelli that ‘‘if . . . we won the
election and he didn’t want to become part of the Union . . .
he might lose his job.’’ Cardarelli did not offer to join them.
Thereafter he was excluded from their ‘‘shop talk’’ and felt
shunned. Within a few days he sought out Laughlin and told
him that despite their differences he hoped they would stay
friends.
Early in the morning on February 12—a day (Monday) on
which an ‘‘Installation Supervisor’’ (Steve Marriner) arrived
at the office from England to instruct Edsall in his new du-
ties—a minor crisis erupted when Locurto refused to accept
an assignment to install a ‘‘stand-up’’ stairlift, telling Edsall
standups were not legal in Massachusetts. Balked, Edsall re-
assigned him to another job. In late afternoon Edsall advised
Locurto via mobile voice mail that no work was available for
him on the next day. Locurto showed up at the office at 8
a.m., claiming he was unaware that his vehicle phone had a
voice mail capability.5 Locurto left after receiving 2 hours’
transit pay.
Later that day Edsall learned that the Company had not re-
ceived a check entrusted to Locurto by a customer. He
reached him at home and inquired about the matter. Locurto
responded with a loud torrent of abuse the tenor of which
is reflected in notes contemporaneously recorded by Edsall,
as follows:
I am tired of being accused of missing checks. Mike
[general manager Charteris] and I have had these dis-
cussions before, and I have had it with Mike. I am
going to take care of him and if you continue I will
take care of you. You don’t know who I am. You
would be amazed at all the people I know. I have the
State on my side. I have the union on my side. . . .
I will destroy Mike and in 30 days there won’t be any
Stannah. So if I were you I would be looking for an-
other job. I am sick and tired of these foreigners com-
ing over here and doing our jobs like that guy ‘‘Steve’’
[sic] Marriner.
Edsall waited until Locurto calmed down and again asked
about the check. Locurto told him he followed regular prac-
tice and put it ‘‘in the box’’ at the office. Edsall then in-
formed Locurto that he should stay away another day as
there was no work available for him until Thursday. Based
on Edsall’s account of the incident, Charteris issued a
‘‘FINAL WRITTEN WARNING’’ to Locurto on February
16. In the concluding paragraph, he advised him that any fur-
ther instances of such outbursts or insubordination would be
cause for discharge. Although entitled to appeal under
Stannah’s progressive disciplinary rules, Locurto opted not to
do so.6
The 2-day layoff probably was not warranted by lack of
work. There is no history of prior layoffs. Moreover, there
was a backlog of ‘‘free’’ service calls required under warran-
ties and this type of work normally was assigned during
slack periods. However, I am not persuaded that the layoff
had anything to do with union involvement on the part of
Locurto. Instead, it appears likely that Edsall acted to chas-
tise Locurto for refusing the standup installation job on Feb-
ruary 12 and for his outburst on February 13—matters not
within the purview of the Act. In these circumstances, allega-
tions that the calls involved implied threats of layoffs and job
loss, and that Locurto was discriminatorily issued a warning
and laid off because his sympathy and support for the Union,
will be dismissed.
Installation Supervisor Marriner, a ‘‘management team’’
member, was sent over from England principally to train
newly hired Operations Manager Edsall. On prior visits he
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916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Laughlin claims he decided to keep his distance from Marriner
because during his last visit Marriner abandoned a girl he had im-
pregnated and Laughlin no longer regarded him as a decent person.
However, he never mentioned that reason to Marriner.
8 On cross-examination Laughlin adds a detail. He claims Marriner
during the third conversation also said, ‘‘he had come over from
England for the specific reason to try to steer me away from the
Union.’’
9 Among other things Laughlin, on April 19 in a mobile phone call
to Edsall punctuated by his screaming and frequent use of the ‘‘F’’
word, refused a work assignment, stating: ‘‘I’m not doing anything
unless its in writing. I don’t like your fucking attitude. If you want
me to do anything, put it in writing. That’s what you told me to do.
You know I’ve had it with you and Mike [Charteris]. I know Mike
is pulling the strings, but you are getting as bad as he is. Larry
[Edsall], I don’t have anything personal against you, but I’ve had it
with Mike and Peter Gilbert [a vice president of Stannah stationed
in England]. I’m not going to make threats like Leo [Locurto] did.
I’m just going to do it. If you think the last article in the paper was
bad, wait till you see the next one. I’ve had it with these fucking
pussy Englishmen, any [sic] you’re becoming a pussy just like
them.’’ Then, after accusing Gilbert of using company money to pay
for his whores, Laughlin continued: ‘‘I don’t want to hurt the
Stannah Company. I’m going to ruin Peter Gilbert.’’
10 For example. Panzera when walking by Cardarelli in the ware-
house would sing ‘‘Secret Agent Man’’ while Laughlin and Locurto
would chuckle as he did so. Indeed, they chucked as Panzera testi-
fied about the matter.
11 Laughlin was away from the dock area repositioning his van. He
returned about 30 seconds after the altercation began.
12 At this point a tape of the conversation runs out after recording
1 minute of the encounter. Cardarelli claims he placed the recorder
in a bag near the door and activated it at 8 a.m. to verify his sus-
picions of harassment.
13 Locurto ‘‘guesses’’ Laughlin ‘‘said something about Cardarelli
‘being office or English’ or whatever’’ and that Laughlin’s remark
‘‘hit a bad nerve’’ in Cardarelli. He claims Cardarelli grabbed him
from behind, pulled him around, stood on my toes, and yelled, ‘‘If
you have anything to say, say it to my face . . .’’ and that he
[Locurto] pulled himself away and shouted back ‘‘I have no prob-
lems’’; that Cardarelli then said, ‘‘I’m going to kick your ass, punch
your face in and mop the dock floor with you’’ and kept repeating
he was going to hit me; that I replied, ‘‘I don’t want to fight. If
I swing back at you, there’s a possibility I’ll lose my job . . . if
had socialized regularly with Laughlin and the two had be-
come good friends. Indeed on his last visit he vacationed at
Laughlin’s place on Cape Cod and got to know his wife and
children. But on this visit, Laughlin—assertedly for reasons
unrelated to the Union7—decided to have nothing to do with
Marriner.
According to Laughlin, Marriner spoke to him privately on
three occasions in the warehouse over a 4-day period in mid-
February. During the initial conversation he reminded
Laughlin of past good times and how much he wanted to
continue their friendship, adding that ‘‘because of the Union
he wasn’t allowed to be friends with me or to give me
Christmas presents he had brought over for my children.’’
He went on to say, ‘‘Stannah had never been union, would
never be union, that I would lose my job . . . that they
would bring outside contractors in to take my position . . .
would close shop and move to another State or close down
completely and just move right out of the country before
they would go union . . . that if I would change my mind
and the old Dale [Laughlin] were to come back I could be
forgiven and brought back in with open arms by Mike
[Charteris].’’ Also—‘‘to give me an out . . . so that I could
turn tail and run back—’’ he kept blaming Leo [Locurto] for
being the agitator, stating that he (Locurto) and Panzera were
going to be fired eventually. He claims the second and third
conversations were basically ‘‘exact’’ repetitions of the first
with Marriner ‘‘saying the same thing over and over.’’8
For his part, Marriner states that Laughlin rebuffed his
several overtures to resume their friendship; and he denies
making any of the statements attributed to him.
I decline to credit Laughlin’s account. He harbors a great
deal of personal hostility toward Stannah officials,9 including
Marriner, and I am not persuaded that his account is un-
tainted thereby. Therefore, the allegations that Marriner told
him Stannah would not tolerate a union and threatened him
with job loss if he voted for the Union (and rewards if he
voted against) will be dismissed.
At 8 a.m. on Friday, February 23, warehouseman
Cardarelli opened the warehouse doors, including the rollup
dock entrance, and then went to his desk 60 feet away. He
was resentful of being shunned by the installers and made
the butt of their jibes;10 and since February 14 some of his
specialized tools had disappeared, signs he had placed in the
loading dock area had been turned upside down, and he had
received several ‘‘hang-up’’ phone calls. He suspected those
happenings were related to his failure to support the Union.
At 8:15 a.m. while the installers were at the dock loading
a van, two company officials (Del Hoadley and Marriner) ar-
rived and proceeded toward the dock entrance, with Hoadley
carrying a supply of coffee and doughnuts. Laughlin yelled
to them ‘‘Are those for us?’’ Hoadley replied, ‘‘None for
Americans. You are bad boys.’’ The installers laughed and
Laughlin called back, ‘‘Did you bring some for Tony
[Cardarelli]?’’ When Hoadley said, ‘‘Yes,’’ Laughlin joked
‘‘So Tony isn’t an American?’’ Again, the installers laughed.
Cardarelli, however, overheard the latter remark and
laughter and became enraged. He ran out to the dock where
Panzera and Locurto were standing11 and shouted: ‘‘I have
nothing against either one of you. You want fucking some-
thing to say to me, say it to my fucking face.’’ Locurto
yelled: ‘‘Fuck you!,’’ bellied up to Cardarelli, and with
hands rigidly at his sides kept taunting: ‘‘Hit me!, Hit me!,
Hit me! . . . Why don’t you fuckin hit me boy.’’ Cardarelli,
apparently heeding Marriner’s warning: ‘‘Tony he wants you
to get at him,’’ replied only with words: ‘‘Go fuckin do your
job . . . . Don’t fucking talk behind my back. I don’t like
it. . . . I’d love to fucking hit you. . . . Come on around
here around five o’clock tonight.’’12 All the while Locurto
kept up the ‘‘hit me’’ taunts. Cardarelli then turned and
walked back toward his desk. Locurto followed urging him
to fight off the premises calling him a chicken and a faggot.
Apparently agreeing to fight, Cardarelli followed Locurto
who opened the exit door by slamming his shoulder into it.
With Locurto outside, Cardarelli proceeded to shut the door,
saying, ‘‘If I’m not there start without me’’ and again
walked toward his desk.
Locurto was not finished. He ran around to the dock plat-
form area and, looking in at Cardarelli, screamed: ‘‘I’m
going to get a van full of niggers to come down and kick
the shit out of all you Englishmen. I’ll hunt you down. They
will find you dead somewhere. That’s the way the Sicilians
do it.’’ The whole incident lasted about 3 minutes.13
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917STANNAH STAIRLIFTS
you want . . . this badly . . . to fight me, we should take it down
the street’’; that Marriner ‘‘over and over’’ urged Cardarelli to ‘‘Go
ahead and hit him,’’ adding in between ‘‘that will teach him to go
union’’; that Cardarelli agreed to go down the street but then
‘‘pushed me’’ through the door, saying, ‘‘[I]f I’m not there, start
without me’’; and that he (Locurto) went back to loading his van
ignoring Cardarelli who continued shouting at me. Laughlin and
Panzera support Locurto’s account with some exceptions. Contrary
to Locurto, Laughlin states that Locurto kept up a rhythmic chant
‘‘Hit me, hit me’’; and that after being pushed out the door by
Cardarelli, Locurto ran around to the dock platform and taunted
Cardarelli for being a ‘‘pussy’’ for not fighting. Panzera recalls that
at the end, Locurto, in a loud tone of voice, said to him and
Laughlin: ‘‘Ever hear the sound of a baseball bat makes when it hits
a head.’’ I have credited Cardarelli’s account as more probable.
Here, too, I distrust Locurto’s account. Among other things, it sig-
nificantly differs from the agreed-on tape transcript.
14 If pressed I would credit Walton over Panzera and Laughlin, ba-
sically because I have no confidence in their veracity for reasons
stated earlier in this decision.
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
When Charteris arrived an hour later, Cardarelli related to
him what happened, and later in the day reported the threats
to the police. On the following Monday, Cardarelli was given
a written warning by Charteris for engaging in verbal abuse
during the incident. At the same time Locurto was suspended
‘‘pending a final decision’’ for making threats. Two days’
(February 28) later the suspension was converted to dis-
charge.
I find that Stannah had ample reason for the discharge and
that Locurto’s union involvement played no part in the deci-
sion. The circumstance that a lesser punishment was meted
out to Cardarelli does not involve discriminatory treatment.
Cardarelli’s principal dereliction (verbal abuse) is far less se-
rious than Locurto’s (death threat) and the latter had pre-
viously received a final written warning while the former had
not.
On February 29, 20 days before the scheduled representa-
tion election, Stannah’s president (David Walton) arrived at
the Hopkinton office after a business visit to Toronto, Can-
ada. After greeting everyone in the office he went out to the
warehouse to greet senior installer Laughlin who he had met
on prior visits.
According to Laughlin, after saying, ‘‘Hello,’’ Walton in-
quired, ‘‘You’re our longest employee, I guess?’’ Laughlin
agreed and then added, ‘‘It’s too bad that things have come
to the point where we are now, but we just feel insecure in
our jobs.’’ He specifically mentioned Locurto’s suspension as
being unfair, and asked Walton to look into the matter. Wal-
ton replied that he knew Mike (Charteris) would not be un-
fair and went on to praise Laughlin as a loyal and valued
employee, adding that ‘‘[i]f I were to remain a loyal em-
ployee I would be greatly rewarded . . . this is a family
business, and we don’t need outside people to resolve inter-
nal problems.’’
At that point, Panzera (who had been working a short dis-
tance away) came over and told Walton that he was not
being treated fairly and was not getting the respect he de-
served. The conversation ended at that point with Walton
saying he would investigate and take what we said into con-
sideration.
Panzera claims he joined Walton and Laughlin after over-
hearing Walton say, ‘‘People that have been with Stannah
and—faithful employees—they’re taken care of down the
road’’; that he (Panzera) complained that talking to Mike was
like talking to a brick wall, that Mike always says, ‘‘No, no,
no’’ when employees discuss things with him (like need for
better tools); and that Mike favors the sales staff over install-
ers. In that regard, Panzera told Walton about how at the
Christmas party Mike praised the sales staff and ignored the
installers’ contribution. Also, he recalls that Walton replied
that ‘‘he couldn’t understand how it came down to this
point.’’
Walton’s account generally accords with that of Laughlin
and Panzera. But Walton recalls that Laughlin’s principal
concern was whether Stannah’s efforts to obtain a court rul-
ing that stairlift installation did not require use of licensed
mechanics would result in his being laid off or discharged
in favor of someone who would do his job for less money.
He assured Laughlin that Stannah had a corporate culture of
loyalty to employees, that he ‘‘didn’t need to fear deregula-
tion for his job,’’ that Stannah would not sack long-term
loyal employees, and that ‘‘loyalty was a two-way street,’’
i.e., he could expect the Company to be loyal in return.
I decline to find that the conversation involved a promise
that loyal employees would be rewarded if they rejected the
Union, as alleged in the complaint. Walton’s statements,
even if Laughlin and Panzera are credited,14 amount to noth-
ing more than a vague assurance that Stannah would do all
it could to retain hard working employees and to treat them
fairly. This conclusion is reinforced by the absence of any
showing of threats or coercion to employees because of their
union sympathies. Further there is no indication that Walton
equated employee ‘‘loyalty’’ with antiunionism. See Gallo-
way School Lines, 308 NLRB 33, 37 (1992).
CONCLUSION OF LAW
For the reasons stated above, I conclude that the evidence
fails to establish any violation of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
ORDER
The complaint is dismissed; and the proceeding in Case 1–
RC–20418 is remanded to the District Director for disposi-
tion consistent with this Order.
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