Swing Staging Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1980

251 N.L.R.B. 563 (N.L.R.B. 1980)

SSA'ING STAGING INC 56h
Swing Staging Inc. and United Brotherhood of Car-
penters and Joiners of America, Local 2946,
AFL-CIO. Cases 2-CA-16500 and 2-CA-
16740
August 26, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.I O, AND
TRUESDALE
On May 30, 1980, Administrative Law Judge
Howard Edelman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Swing Staging
Inc., Bronx, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Make Steve Vario, Sam Alvino, Neville
Minott, Philip Boeckle, and Henry DeRuiter vhole
for any loss of wages or other benefits that they
may have suffered as a result of the discrimination
practiced against them by paying each of them a
sum equal to what they would have earned, less
any net interim earnings, plus interest."
2. Delete from paragraph 2(f) the words "the re-
ceipt of this Decision" and substitute therefor the
words "this Order."
3. Substitute the attached notice for that of the
Administrative Law Judge.
i We halve modified the Administrative Law Judge's recommended
Order to more fully conform to his findings We also modify the pro-
posed notice to conform with the pro' isions of the recommended Order
251 NLRB No. 90
APPENDIX
NoTICE To EMPLOYES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE Wl. I. NOT refuse to recognize and bar-
gain collectively and in good faith, upon re-
quest, with United Brotherhood of Carpenters
and Joiners of America, Local 2946, AFL-
CIO, herein called the Union, as the exclusive
bargaining representative of all full-time and
regular part-time production and maintenance
employees employed by us, with respect to
rates of pay, hours, and other terms and condi-
tions of employment.
WE WILL. NOT discharge or otherwise dis-
criminate against employees because of their
activities on behalf of the Union or any other
labor organization.
WE WILL NOT interrogate employees con-
cerning their activities on behalf of the Union
or any other labor organization.
WE WIt.L NOT threaten employees with a
cessation of operations and other reprisals in
order to discourage them from joining the
Union or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed them
by Section 7 of the Act.
WE WILL offer Steve Vairo immediate and
full reinstatement to his former job or, if such
job no longer exists, to a substantially equiva-
lent position without prejudice to his seniority
or other rights and privileges.
WE WILL make Steve Vairo, Sam Alvino,
Neville Minott, Philip Boeckle, and Henry
DeRuiter whole for any loss of wages or other
benefits that they may have suffered as a result
of our discrimination against them by paying
each of them a sum equal to what they would
have earned, less any net interim earnings, plus
interest.
WE WILL, upon request, recognize and bar-
gain collectively and in good faith with the
Union as the exclusive bargaining representa-
tive of the employees in the appropriate unit
with respect to rates of pay, hours, and other
terms and conditions of employment, and, if an
agreement is reached, embody same in a
signed contract.
SWING STAGING INC.
SWING STAING IN 3
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMI NI OF1 HI CASE
HOWARD EI)ILMAN, Administrative Law Judge: This
case came to hearing before me on December 17 and 18,
1979, and January 28, 1980, in New York, New York.
The complaint in Case 2-CA-16500 issued on July 20,
1979, upon a charge filed on June 7, 1979, by United
Brotherhood of Carpenters and Joiners of America,
Local 2947, AFL-CIO, herein called the Union. The
complaint and order ammending complaint in Case 2-
CA-16740 issued on October 22 and December 11, 1979,
respectively, upon a charge filed by the Union on Sep-
tember 14, 1979.'
The consolidated complaint alleged inter alia that Re-
spondent Swing Staging Inc., herein called Respondent,
violated Section 8(a)(5) of the Act by refusing to recog-
nize and bargain with the Union following its certifica-
tion on August 17, 1979, as the collective-bargaining rep-
resentative in a unit of all full-time and regular part-time
production and maintenance employees employed by Re-
spondent. The complaint also alleged that Respondent
violated Section 8(a)(3) of the Act by discriminatorily
laying off five unit employees during the months of Jan-
uary, February, and March 1979, and violated Section
8(a)(1) of the Act by unlawfully interrogating and threat-
ening its employees.
Answers were filed by Respondent denying jurisdic-
tion of Respondent by the Board and denying all allega-
tions of the complaints which alleged the commission of
unfair labor practices by Respondent.
On January 28, 1980, during the course of the hearing,
counsel for Respondent "for the limited purpose of these
proceedings" moved to amend the answer to the above
complaint by admitting all allegations of the complaint,
except those allegations alleging conclusions that by the
acts and conduct alleged therein Respondent violated
Section 8(a)(1), (3), and (5) of the Act, which were
denied. Respondent counsel's motion to amend its
answer was granted.
All parties to this proceeding were advised by me that
in view of Respondent's admissions there would appear
to be no factual issues to litigate. Counsel for the Gener-
al Counsel rested. Counsel for the Union and for Re-
spondent submitted no evidence. 2
The hearing which commenced on December 17. 1979, originally in-
volved only the complaint in Case 2-CA-16500. However, during the
course Of the hearing Respondent Swing Staging Inc. moved to stay this
hearing pending a determination of Respondent's motion to consolidate
Case 2-CA-16500 with Case 2-CA 16740 This motion was opposed by
counsel for the General Counsel and counsel for the Union. Respondent's
motion was denied on December 17. 1979, by me. Subsequently. on Janu-
ary 8 1980. counsel for the General Counsel moved to consolidate Case
2-CA-16500 with Case 2-CA-16740. Counsel for the General Counsel
alleged in his motion that both cases raised common issues of fact and
law and that consolidation would avoid unnecessary cost and delay All
parties joined in this motion On January 24. 1980. by mailgram I granted
the above motion by counsel for the General Counsel and ordered that
said cases be consolidated.
I On December 17 and 18. Charles Claytor. a witness called by coun-
sel fir the General Counsel gave testimony. In view of the amended
answer by counsel for Respondent described above, the estimony of
Claytor was not considered by me in making findings of fact and conclu-
sions oif law.
Accordingly, there being no disputed issues of fact,
this case is submitted for decision on the admissions by
Respondent to the allegations of the consolidated com-
plaint, upon which I make the following:
FINI)IN(;S OF FACI AND CONCI.USIONS OF LA\w: t
I. JURISDICTION
1. At all times material herein, Respondent has been a
New York corporation with an office and place of busi-
ness in Bronx, New York, where it has been at all times
material herein engaged in the servicing and supply of
scaffolds.
Respondent, during the past year, in the course and
conduct of its operations, which period is representative
of its operations generally, purchased and received at its
Bronx, New York, facility products, goods, and materials
valued in excess of $50,000 directly from points outside
the State of New York.
2. Respondent is now, and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE I ABOR ORG;ANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of
America, Local 2947, AFL-CIO, herein called the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
IIll. IHE A.LEGED UNFAIR LABOR PRACTICES
A. Supervisory Status
At all times material herein, John Pantanelli was the
president of Respondent, and is now, and has been, at all
times material herein a supervisor of Respondent acting
on its behalf.
B. The Unit
All full-time and regular part-time production and
maintenance employees employed by Respondent at its
facility located at 775 Tiffany Street, Bronx, New York,
excluding office clerical employees, salesmen, guards,
and supervisors as defined in Section 2(11) of the Act,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
C. The 9(a) Status
1. On March 2, 1979, the employees of Respondent, in
the unit described above in section B, participated in a
secret-ballot election conducted under the supervision of
the Regional Director for Region 2 wherein a majority
of the valid votes counted plus challenged ballots were
cast for the Union, thereby designating and selecting said
Union as their representative for the purposes of collec-
tive bargaining with Respondent. On August 17, 1979,
' Counsel fior the General Counsel submitted a brief in support of the
consolidated complaint. Counsel fir he Union and counsel for Respond-
ent did not file briefs.
SWING STAGING INC 565
the Union was certified as the exclusive collective-bar-
gaining representative of the employees in said unit.
2. At all times since August 17, 1979, the Union, by
virtue of Section 9(a) of the Act, has been and is now
the exclusive representative of all the employees in the
unit described herein for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment.
D. The Request To Bargain
On or about September 12 and October 23, 1979, the
Union requested Respondent to bargain collectively with
it as the exclusive collective-bargaining representative of
Respondent's employees, in the unit described above in
section B, with respect to their rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
E. The Unlawful Conduct
1. Since on or about September 12, 1979, Respondent
failed and refused to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of its employees in the unit described above.
2. (a) On January 26, 1979, Respondent laid off em-
ployee Steve Vairo and since that date and until March
5, 1979, has failed and refused to reinstate or offer to re-
instate Vairo to his former position of employment.
(b) On February 2, 1979, Respondent laid off employ-
ee Sam Alvino and since that date and until March 5,
1979, has failed and refused to reinstate or offer to rein-
state Alvino to his former position of employment.
(c) On February 2, 1979, Respondent laid off employ-
ees Neville Minott and Philip Boeckle and since that
date and until on or about February 6, 1979, has failed
and refused to reinstate or offer to reinstate Minott and
Boeckle to their former positions of employment.
(d) On February 2, 1979, Respondent laid off employ-
ee Henry DeRuiter and since that date and until on or
about February 7, 1979, has failed and refused to rein-
state DeRuiter to his former position of employment.
(e) On March 8, 1979, Respondent laid off employee
Steve Vairo and since that date has failed and refused
and continues to fail and refuse to reinstate or offer to
reinstate Vairo to his former position of employment.
(f) Respondent engaged in the conduct described
above in subparagraphs (a) through (e) because the em-
ployees named therein joined, supported, and assisted the
Union, and engaged in concerted activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection, and in order to discourage employees from en-
gaging in such activities or other concerted activities for
the purpose of collective bargaining or other mutual aid
and protection.
3. On various occasions between January 26, 1979, and
February 2, 1979, and between March 5, 1979, and April
30, 1979, Respondent, acting through John Pantanelli, its
president and an agent of Respondent acting on its
behalf, did the following:
(a) Interrogated its employees at Respondent's facility
concerning their union activities.
(b) Threatened its employees at Respondent's facility
that Respondent would go to any lengths to keep the
Union out and would cease operations if the employees
selected the Union to represent them.
4. By the acts and conduct described above in section
E, paragraphs 1, 2, and 3, and by each of said acts, Re-
spondent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing, em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act, and Respondent thereby has been
engaging in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
5. By the acts and conduct described above in section
E, paragraph 2, and by each of the said acts, Respondent
has discriminated, and is discriminating, in regard to the
hire, tenure, or terms and conditions of employment of
its employees, thereby discouraging membership in a
labor organization, and Respondent therebv has been en-
gaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
6. By the acts and conduct described above in section
E, paragraph , and by each of the said acts, Respondent
has failed and refused and is failing and refusing to bar-
gain collectively and in good faith with the Union,
which is the bargaining representative of the employees
described above, and Respondent thereby has been en-
gaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent violated Section
8(a)(1), (3), and (5) of the Act, it is recommended that
they cease and desist therefrom and take certain affirma-
tive action necessary to effectuate the policies of the
Act. It is recommended that Respondent be directed to
recognize upon request and bargain collectively and in
good faith upon request with the Union as the exclusive
bargaining agent of the employees in the appropriate
unit, about terms and conditions of their employment
and, if an agreement is reached, embody the agreement
in a signed contract.
To remedy Respondent's discriminatory layoffs it will
be recommended that Respondent be directed to offer
reinstatement to Steve Vairo and to make whole Steve
Vairo, Sam Alvino, Neville Minott, Philip Boeckle, and
Henry DeRuiter for any loss of wages or benefits they
may have sustained from the date of their layoff to the
date of Respondent's offer of reinstatement.
Loss of earnings shall be computed as prescribed in F
W. Woolworth Company, 90 NLRB 289 (1950), plus inter-
est as set forth in Isis Plumbing & Heuating Co., 138
NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977).
On the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of
the Act, I issue the following recommended:
SWING STAGING I C
566 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
ORDER 4
The Respondent Swing Staging Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively and
in good faith upon request with United Brotherhood of
Carpenters and Joiners of America, Local 2947, AFL-
CIO, herein called the Union, as the exclusive bargaining
representative of all full-time and regular part-time pro-
duction and maintenance employees employed by Re-
spondent, with respect to rates of pay, hours, and other
terms and conditions of employment.
(b) Discharging or otherwise discriminating against
employees because of any activities on behalf of the
Union or any other labor organization.
(c) Interrogating employees concerning their activities
on behalf of the Union or any other labor organization.
(d) Threatening employees with a cessation of oper-
ations and other reprisals in order to discourage them
from joining the Union or any other labor organization.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer to Steve Vairo immediate and full reinstate-
ment to his former job or, if such job no longer exists, to
a substantially equivalent position without prejudice to
his seniority or other rights and privileges.
4 In the event no exceptions are filed as provided in Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, 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 waived for all purposes.
(b) Make whole Steve Vairo, Sam Alvino, Neville
Minott, Philip Boeckle, and Henry DeRuitel, for any
loss of wages or other benefits that they may have sus-
tained as a result of Respondent's discrimination against
them.
(c) Upon request, recognize and bargain collectively
and in good faith with the Union as the exclusive bar-
gaining representative of the employees in the appropri-
ate unit with respect to rates of pay, hours, and other
terms and conditions of employment and, if an agreement
is reached, embody same in a signed contract.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying all pay-
roll records, social security reports, bank records, finan-
cial statements, work orders, sales records, cash receipt
and disbursement records, and all other records neces-
sary to analyze and determine the amount of backpay
due, rights of employment, and compliance with the bar-
gaining obligations under the terms of this Order.
(e) Post at its premises in Bronx, New York, copies of
the attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director for
Region 2, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive 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 cov-
ered by any other material.
(f) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
7 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."