Supro Neon Corp.

National Labor Relations Board - Board Decisions

Jul 14, 1994

314 N.L.R.B. 382 (N.L.R.B. 1994)

382
314 NLRB No. 75
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were filed to the judge’s finding that the Respond-
ent violated Sec. 8(a)(1) and (5) by failing to honor the provisions
of the settlement agreement reached between the parties on October
29, 1992, resolving the issues raised in the unfair labor practice
charge in Case 2–CA–25964.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 The motion filed by counsel for the General Counsel to correct
obvious transcript errors is granted. The motion is added to the for-
mal papers as G.C. Exh. 1(f).
Supro Neon Corporation and International Brother-
hood of Electrical Workers, Local 1968, AFL–
CIO. Case 2–CA–26549
July 14, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On March 23, 1994, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
order that the Respondent, Supro Neon Corporation,
Yonkers, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Julie L. Kaufman, Esq., for the General Counsel.
Stuart Kirshenbaum, Esq., for the Respondent.
Vincent F. O’Hara, Esq. (Holm, Krisel & O’Hara), of New
York City, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges that Supro Neon Corporation (the Respondent),
in violation of Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act), has failed and refused to honor re-
quests by the International Brotherhood of Electrical Work-
ers, Local 1968, AFL–CIO (the Union) to sign an agreement
after a settlement as to its terms was reached on August 29,
1992, referring to both a settlement agreement resolving
issues raised by an earlier unfair labor practice charge filed
by the Union and to an accord as to the provisions of a re-
newal collective-bargaining agreement. All dates hereafter
are for 1992 unless stated otherwise.
The Respondent’s answer, as amended at the hearing, de-
nies that agreement was reached.
I heard this case in New York City on January 5, 1994.
Upon the entire record,1 including my observation of the de-
meanor of the witnesses and after considering the briefs filed
by counsel for the General Counsel, the Union and the Re-
spondent, I make the following
FINDINGS OF FACT
I. COMMERCE
The Respondent is a corporation of the State of New York
engaged in the manufacturing, installation, and maintenance
of neon and electrical signs. In its operations annually, it
meets the Board’s nonretail standard for the assertion of ju-
risdiction.
II. LABOR ORGANIZATION
For about 30 years, the Union has represented the employ-
ees of the Respondent who do the manufacturing, installing,
maintenance, and related work on its signs. Its last signed
agreement with the Respondent was effective January 1,
1990, to December 31, 1992.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A meeting was held on October 29 at a restaurant between
the Union and the Respondent. The union officials present
were Diana Kaman, its president then, Steven Kaman, then
its assistant business manager, and its former attorney, Mi-
chael Badman. Present for the Respondent were its President
Michael Flora, its Secretary-Treasurer Dominick Tolli, and
its Attorney Stuart Kirshenbaum. The meeting lasted for
about 4 hours.
Diane Kaman gave the following account that was cor-
roborated on all essential points by Steven Kaman’s. The
meeting had been scheduled to discuss settling the unfair
labor practice charge the Union had filed in August in Case
2–CA–25964, alleging that the Respondent had unlawfully
discharged two named employees. At the outset of the meet-
ing, Tolli insisted that they also discuss terms for a collec-
tive-bargaining agreement to replace the one then in effect,
scheduled to expire on December 31, 1992. Tolli also stated
that any settlement of the unfair labor practice case would
be contingent upon their reaching agreement on a new con-
tract. She and Tolli then discussed terms for resolving the
unfair labor practice case. In doing so, she reduced the total
wage and benefit demands for the two employees from
$12,000 to $5500 with allowance for the Respondent to pay
moneys due trust funds on their behalf over a period of time.
Tolli agreed to the lowered demands. She noted on a sheet
of paper the terms thereof. At that point, the union officials
caucused to outline demands for the renewal contract. When
the meeting reconvened, she presented those demands to
Tolli. In the ensuing negotiations, she, inter alia, lowered
these demands to which Tolli assented, agreed to issue a side
letter sought by Tolli pertaining to the Union’s efforts to
reach out to employees of nonunion competitors of the Re-
spondent, agreed to set up a special category for newly hired
383SUPRO NEON CORP.
employees under which they would initially receive lower
wages, and obtained agreement that the Respondent would in
essence see that one of its employees would comply with the
union-security provisions of the collective-bargaining agree-
ment. Having thus reached an accord on the renewal con-
tract, she gave Kirshenbaum her notes thereon, which in-
cluded her notes, referred to above, as to the terms settling
the unfair labor practice charge. He and Tolli reviewed these
notes and agreed that they were correct. She asked that ev-
eryone initial the notes to confirm them. Kirshenbaum, who
had been anxious to leave the meeting to attend his daugh-
ter’s birthday party, stated that was not necessary and that
they could all show their trust by handshakes. Reluctantly,
the Union’s officials shook hands with the Respondent’s. The
meeting ended with Badman telling Kirshenbaum that he
would send him drafts incorporating the agreements reached.
Tolli was the only witness for the Respondent. He testified
very generally, asserting that the Union was there only to try
to ‘‘jam (an agreement) down his throat.’’ He acknowledged
that there was some discussion of the items referred to in
Diana Kaman’s testimony, including the fact that she kept
notes while at the meeting and that Kirshenbaum told Bad-
man, while leaving, to ‘‘put it in draft form and send it to
us.’’
I credit the Kamans’ accounts as they were vivid and de-
tailed and as the subsequent events buttressed them.
On November 4, Badman sent Kirshenbaum a draft ‘‘Stip-
ulation of Settlement’’ which set out the terms agreed upon
on October 29 as to the unfair labor practice charge, one pro-
vision of which was that the Union would request with-
drawal of that charge. Bauman’s letter accompanying that
draft spelled out seven points agreed on for the renewal con-
tract. On November 12, Kirshenbaum responded. He re-
quested that a nonadmissions clause be added to the stipula-
tion of settlement and observed, as to the seven points, that
one contained a typographical error and that the Union
should clarify minor matters on two of the other points. Bad-
man wrote him on November 19 to correct the typographical
error and to clarify the two other points.
On December 4, Badman wrote Kirshenbaum, enclosing a
settlement agreement which incorporated the terms of the
agreement reached as to the unfair labor practice charge. In
his letter, he advised Kirshenbaum that if this matter is not
settled within 10 days, the charge would be reactivated. As
discussed below, the Union had asked that the charge be
withdrawn.
On December 11, he sent Kirshenbaum a draft of the re-
newal collective-bargaining agreement, along with a copy of
the side letter agreed on at the October 29 meeting.
Kirshenbaum did not reply to either of these letters.
Steven Kaman met with Tolli and Flora on February 11,
1993. He related credibly that Tolli stated that he wanted the
Union to first withdraw the charge (in Case 2–CA–25964)
and that the Respondent would then sign the contract. When
Kaman demurred, Tolli complained that the Respondent was
losing money. According to Kaman, the discussion then
‘‘went South,’’ in that Flora said, among other things, that
the Union ‘‘could go to hell’’ and that he ‘‘would spend
moneys on attorneys first.’’ Steven Kaman also testified that,
several days later, he tried to reach Tolli by telephone and
that he spoke with Flora instead, who told him that there was
no settlement, that they would ‘‘go the hard way, to court.’’
I credit his accounts as to those discussions.
On February 19, 1993, Badman wrote Kirshenbaum. With
his letter, he enclosed two copies of the renewal collective-
bargaining agreement. He requested that Respondent sign one
copy and return it. There was no response. On March 25,
1993, he repeated his request in another letter to
Kirshenbaum, again to no avail.
On December 2, Badman had written the Board’s Regional
Office to ‘‘conditionally withdraw’’ the charge in Case 2–
CA–25964, noting that the withdrawal ‘‘is contingent on a
successful settlement being reached by the parties.’’ On De-
cember 16, the Regional Director approved the conditional
request. On June 28, 1993, the Regional Director approved
the Union’s request to withdraw that charge, advising that
the complaint in the instant cast is being issued. The import
of the foregoing, apparent from the testimony of Steven
Kaman is that unfair labor practice charge in Case 2–CA–
25964 is part of ‘‘the case we’re here today about.’’
As of the date of the hearing, the Respondent had one em-
ployee performing unit work. Flora and Tolli worked with
him. The two employees named in the unfair labor practice
charge in Case 2–CA–25964 were on layoff and also on a
preferential recall list.
The Respondent’s failure to sign the agreed-on contract,
despite repeated requests therefor by the Union, constitutes
a breach of its duty to bargain collectively as set out in Sec-
tion 8(d) of the Act. See Dynaserv Industries, 307 NLRB
326 (1992).
I find that the Respondent’s failure to honor the provisions
of the settlement agreement pertaining to the resolution
reached on August 29 of the issues raised by the unfair labor
practice charge in Case 2–CA–25964 is also a violation of
its duty to bargain collectively. See Standard Roofing Co.,
290 NLRB 193, 196 (1988).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(1) and (5) of the Act by
having failed and refused to honor the requests of the Union
to execute a collective-bargaining agreement containing the
wage rates, hours, and other terms and conditions of employ-
ment of its employees who are engaged in the manufacture,
installation, and maintenance of neon and electrical signs and
by having failed to honor the settlement agreement which re-
solved the issues involved in Case 2–CA–25964.
4. The foregoing unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an un-
fair labor practice, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
I shall further recommend that the Respondent be ordered
to sign the collective-bargaining-agreement sent it on Feb-
ruary 19, 1993, and the settlement agreement sent it on De-
cember 9, 1992. The Respondent shall also be ordered to
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
make whole its employees for all losses they incurred by rea-
son of the Respondent’s failure to honor those agreement to
be computed in accordance with the formula set out in F. W.
Woolworth Co., 90 NLRB 289 (1977), with interest thereon
as set forth in New Horizons for the Retarded, 283 NLRB
1173 (1987). The Union will be reimbursed by the Respond-
ent for all dues and initiation fees owed by the Respondent
under the agreement under the formula in Ogle Protection
Service, 183 NLRB 682 (1970), with interest under New Ho-
rizons, supra. Moneys due by the Respondent to the benefit
funds are to be paid in accordance with Merryweather Opti-
cal Co., 240 NLRB 1213, 1216 fn. 2 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Supro Neon Corporation, Yonkers, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the
Union, International Brotherhood of Electrical Workers,
Local 1968, AFL–CIO by not honoring the Union’s request
to sign agreements on which accord has been reached.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of its employ-
ees of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Sign and forward to the Union the collective-bar-
gaining agreement sent it on February 19, 1993, and the set-
tlement agreement sent it on December 4, 1992.
(b) Make whole the employees, the Union and the trust
funds for all losses suffered as a result of its failure to honor
the provisions of those agreements—in accordance with the
methods set out in the remedy section of the decision.
(c) Preserve and, on 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 other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Yonkers, New York, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail or refuse to sign any contract containing
terms we had agreed on with the Union, International Broth-
erhood of Electrical Workers, Local 1968, AFL–CIO when
requested to do so by the Union.
WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce our employees in the exercise of
their rights under Section 7 of the Act.
WE WILL sign and honor the agreements sent us by the
Union on December 4, 1992, and February 19, 1993.
WE WILL make whole, with interest, our employees, the
Union, and trust funds for all losses incurred as a result of
our failure to comply with the provisions of those agree-
ments.
SUPRO NEON CORPORATION