Greco & Haines, Inc.

National Labor Relations Board - Board Decisions

Mar 9, 1992

306 N.L.R.B. 634 (N.L.R.B. 1992)

634
306 NLRB No. 119
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union. The Respondent has
excepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the rel-
evant evidence convinces us that they are incorrect. 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.
2 We correct the following inadvertent errors in the judge’s deci-
sion. In the first sentence of the judge’s decision, the date of the
hearing should be 1991. Sec. II, par. 5, third sentence should read,
‘‘Neither Beach nor Kostka attended the July 25th union meeting,
and neither was denied the use of his van.’’ The next-to-the last
paragraph of sec. II should state that Sarracco testified that Greco
said that he knew that Sarracco had voted for the Union and wanted
to know why. These errors do not affect the result in this case.
3 We shall modify the judge’s recommended Order to require, in
accordance with his recommended remedy, that the Respondent re-
imburse the Sultzbach brothers for any reasonable out-of-pocket
transportation expenses that they may have suffered because they
were denied the use of the vans.
4 Member Oviatt finds it unnecessary to rely on testimony in the
Respondent’s case or on the negative inference drawn from the dis-
crediting of Respondent’s witness, Jeanne Connors. He finds ample
Greco & Haines, Inc. and International Brother-
hood of Teamsters, Local 443, AFL–CIO.1
Cases 34–CA–4851 and 34–RC–981
March 9, 1992
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 12, 1991, Administrative Law Judge Ray-
mond P. Green 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 exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
In its exceptions, the Respondent asserts that the
General Counsel failed to establish the ‘‘fundamental
prerequisite’’ that the employer knew of its employees’
union activity before engaging in allegedly unlawful
conduct. We find no merit to this contention. We agree
with the judge that the General Counsel made out a
prima facie case of discrimination, including the ele-
ment of knowledge of the employees’ union activities.
Under Board precedent, a prima facie case may be
established by the record as a whole and is not limited
to evidence presented by the General Counsel. Golden
Flake Snack Foods, 297 NLRB 594 fn. 2 (1990). Thus,
the absence of any legitimate basis for an action may
form part of the proof of the General Counsel’s case.
Wright Line, 251 NLRB 1083 fn. 12 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). In addition, circumstantial evidence is suffi-
cient to justify an inference of employer knowledge.
Dr. Frederick Davidowitz, D.D.S., 277 NLRB 1046
(1985). Accord: NLRB v. Long Island Airport Lim-
ousine Service), 468 F.2d 292, 295 (2d Cir. 1972).
Thus, under established precedent the judge could infer
knowledge from the following: the timing of the alleg-
edly discriminatory discharges and withdrawal of the
use of company vans within days of the union orga-
nizing meeting; the abrupt termination of the leading
union instigator and another union supporter who had
both received raises the preceding week; the implau-
sible and sometimes conflicting nature of the reasons
advanced by the Respondent for its actions; and the
union animus shown by the credited testimony of Al-
fred Signore that prior to the election company presi-
dent Guy Greco stated that ‘‘he needed to know who
was going to be voting for the union so he knew who
to keep.’’ In addition, once the judge discredited
Jeanne Connors’ testimony that she was not told of the
meeting until Saturday, July 28, he could conclude that
the opposite was true. NLRB v. Walton Mfg. Co., 369
U.S. 404, 408 (1962).
The Respondent contends that we should not con-
sider rebuttal evidence in determining whether the
General Counsel has established a prima facie case.
The Board’s precedent allows the judge to analyze the
prima facie case based on all record evidence. Further,
the Second Circuit, in which this case arises, recently
modified its view in Holo-Krome v. NLRB, 947 F.2d
588 (2d Cir. 1991), that rebuttal evidence should not
be considered until the General Counsel has presented
an adequate prima facie case. Upon the Board’s peti-
tion for rehearing in Holo-Krome, the court held that
‘‘[w]hen the Board reviews an ALJ’s decision, and
when a court of appeals reviews a Board decision, the
reviewing bodies should be able to examine the entire
record to determine if improper motivation has been
shown . . . .’’ (Emphasis added.) Finally, even ana-
lyzing the evidence as the Respondent proposes, we
still find that the General Counsel has presented a
prima facie case based on the following factors: the
abruptness and timing of the adverse actions; the Re-
spondent’s help-wanted advertisements for Service
Techs, which appeared in newspapers the same week
that Peter Sultzbach and Howard Wyllie were laid off
for ‘‘lack of work’’; testimony that two new employ-
ees were hired shortly after the discriminatees were
discharged; testimony that the two employees who did
not attend the union meeting did not lose the use of
vans for commuting to work; and the union animus re-
flected in the credited testimony of Alfred Signore
quoted above. Abbey’s Transportation Services, 284
NLRB 698 (1987), enfd. 837 F.2d 575 (2d Cir. 1988).4
635GRECO & HAINES, INC.
evidence in the General Counsel’s case-in-chief, as described above,
to support the judge’s finding that the Respondent knew about Peter
Sultzbach’s and Howard Wyllie’s union activity prior to July 27.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Greco
& Haines, Inc., Derby, Connecticut, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(c).
‘‘(c) Offer to Peter and Charles Sultzbach the use of
vans for the purpose of commuting to and from work
and reimburse them for any reasonable out-of-pocket
transportation expenses that they may have suffered
because they were denied the use of the vans with in-
terest computed in the manner set forth in the remedy
section of this decision.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
DIRECTION
It is directed that Case 34–RC–981 is remanded to
the Regional Director for Region 34 who shall, within
14 days from the date of this Decision, Order, and Di-
rection, open and count the ballots of Peter Sultzbach
and Howard Wyllie. The Regional Director shall then
serve on the parties a revised tally of ballots and issue
the appropriate certification.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge employees because of their
union or protected concerted activity.
WE WILL NOT revoke employees’ benefits or privi-
leges because of employees’ union or protected con-
certed activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer, to the extent not already done, im-
mediate and full reinstatement to Peter Sultzbach and
Howard Wyllie to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them in the man-
ner set forth in the remedy section of the decision.
WE WILL remove from our files any reference to the
unlawful discharges of Peter Sultzbach and Howard
Wyllie and notify them in writing that this has been
done and that the disciplinary actions will not be used
against them in any way.
WE WILL offer to Peter and Charles Sultzbach the
use of vans for the purpose of commuting to and from
work and WE WILL reimburse them for any reasonable
out-of-pocket transportation expenses that they may
have suffered because they were denied the use of the
vans, with interest.
GRECO & HAINES, INC.
John S. F. Gross Esq. and Thomas R. Gibbons, Esq., for the
General Counsel.
Michael J. Soltis Esq. and Christopher Pinchiaroli Esq.
(Jackson, Lewis, Schnitzler & Krupman), for the Respond-
ent.
Norman Zolot Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Hartford, Connecticut, on April 1, 2, and 3,
1990. The charge and amended charge were filed on August
8 and September 28, 1990. The complaint was issued on
September 28, 1990.
In substance, the complaint alleged that the employer, for
discriminatory reasons, (1) discharged employees Peter
Sultzbach and Howard Wyllie and (2) withdrew from Peter
Sultzbach and Charles Sultzbach the privilege of using com-
pany vans to commute to and from work.
In Case 2–RC–981 the Union filed a petition for an elec-
tion on August 7, 1990. Pursuant to a Stipulated Election
Agreement, approved by the Regional Director on August
21, an election was held on September 13, 1990, in a unit
of all full-time and regular part-time mechanics, mechanic
helpers, drivers and servicemen employed by the Employer
at its Derby, Connecticut facility, excluding all other employ-
ees, salesmen, office clerical employees, and all guards, pro-
fessional employees and supervisors as defined in the Act.
Eight votes were cast in favor of the Petitioner, nine votes
were cast against and the votes of Peter Sultzbach and How-
ard Wyllie were challenged. Accordingly, challenges were
sufficient in number to affect the results of the election.
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent asserts that Connor’s diary shows that as early
as July 12, 1990, she contemplated placing a help wanted advertise-
ment. Assuming that this is true, I don’t know how this helps the
Respondent’s defence as it merely shows that during the busy season
(summer), the Company intended to hire additional employees. Sec-
ondly, although I accepted Connor’s diary into evidence, I do not
think that it has the kind of inherent trustworthiness of a normal
business record so as to overcome its hearsay aspects. Even a cur-
sory look at the diary, with its handwritten entries, many of which
are contained in the margins and in different inks, shows that it
would simply be too easy to insert, modify or delete entries after
the fact. While I do not suggest that this was done, I also do not
believe that the diary is the sort of evidence that should carry any
particular weight because of its tangibility. I also note that the diary,
as it contains entries on personal matters as well as business matters,
may not meet the definition of a business record pursuant to the
Fed.R.Evid. 803(6). (It did not qualify as a past recollection recorded
as no foundation was made showing that Connors recollection was
exhausted.)
On November 7, 1990, the Regional Director issued a re-
port on challenged ballots pursuant to which a hearing was
directed to determine the eligibility of the the two challenged
voters. As that raised issues also raised by the unfair labor
practice complaint, the two proceedings were consolidated by
order also dated November 7.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
In early July 1990, Peter Sultzbach contacted the Union
and thereafter talked to other employees about unionization.
On Wednesday, July 25, 1990, a union representative met
with about 17 of the Company’s service employees at the
home of Peter Sultzbach. At this meeting all of the employ-
ees present, except for Larry Gittings, signed cards author-
izing the Union to represent them. Two of the service em-
ployees, Danny Beach and Hank Kostka did not attend the
meeting.
Gittings indicated at the meeting that he wanted to discuss
the situation first with his girlfriend who was Shari Awalt.
Awalt worked in the office under the direction of the Com-
pany’s operations manager Jeanne Connors and she told
Connors about the meeting. Although Connors concedes that
she found out about the union meeting from Awalt, she as-
serts that she did not find out until the morning of Saturday,
July 28, 1990, when Awalt called her at the office. I find,
however, that Connor’s testimony regarding this to be uncon-
vincing and I believe that she obtained knowledge of the
union activity from Awalt on the evening of July 25 or at
the latest on July 26. In this regard, I note that in addition
to the improbable claim that Awalt waited 3 days before tell-
ing her, Connors asserted that although she (Connors) imme-
diately attempted on Saturday to contact the Company’s law-
yer (without success) she did not attempt to telephone com-
pany owner Guy Greco Sr. until Monday morning because
Greco did not come to the office over the weekend. Connors
also asserted that despite the Company’s alleged financial
distress, when Greco was told of the union meeting, he
shrugged it off and said; ‘‘What are you worried about, the
guys will be the guys.’’
On July 27, 1990, when they clocked out, Peter and
Charles Sultzbach found notes from Guy Greco Sr. stating:
Due to unfortunate economic strains & insurance
costs, etc as of right now tonight please do not take our
vehicles home anymore.
You will need your own transportation from tonight
on. We apologize for any inconvenience.
If you need a ride home tonight we would be willing
to provide you with one tonight only, because we real-
ize it’s short notice.
With respect to the above, both of the Sultzbach brothers
had been using company vans to drive to and from work. In
addition, Danny Beach and Hank Kostka had similar use of
company vans. Both of those employees, neither of whom at-
tended the July 25 union meeting, were denied the use of
their vans. The evidence indicates that on July 27, 1990, the
Company called in a help wanted advertisement to several
area newspapers.1 This ad, which ran from about July 31 to
August 1, read:
Service Tech-Full Time
Well Water Pump & Water filtration Co. seeks a few
exceptional individuals who are looking for a good,
steady job with company paid medical benefits, uni-
forms, and pension plan. Must have valid drivers li-
cense, clean driving record, and transportation to work.
Work week is Monday–Saturday, 8 AM–6 PM (at
least). Individual must be a hard working, motivated,
self starter. Experience preferred, but anyone with gen-
eral mechanical abilities and aptitude will be consid-
ered. Pay commensurate with ability and experience.
Apply in person:
GRECO & HAINES, INC.
On August 2, 1990, Peter Sultzbach and Howard Wyllie
were discharged and each was told that it was due to lack
of work.
During the same week of their discharge, two new em-
ployees Ed Cuevas and Dominick Sarracco were hired.
(Cuevas was hired at $10 per hour and Sarracco was hired
at $8 per hour. Both were hired as helpers.) Also, during that
same week the following payroll changes were made despite
Respondent’s assertion that it was trying to save money:
1. Larry Gittings got a raise from $13 to $14 per
hour.
2. Alfred Signore got a raise from $11.50 to $12.50
per hour.
3. Thomas Jankowsky got a raise from $7 to $7.50
per hour.
4. Roger Vance got a raise from $8 to $9.50 per
hour.
637GRECO & HAINES, INC.
2 In a pretrial affidavit, Connors stated that the ‘‘list’’ consisted of
employees Sultzbach, Wyllie, Cook, and Jankowsky. In her testi-
mony, however, the ‘‘list’’ consisted of Sultzbach, Wyllie, Cook,
Brown, and Anderson.
3 As of July 27, 1990, Peter Sultzbach was earning $12 per hour
and Howard Wyllie was earning $7 per hour. Both had received
raises about a week before they were discharged.
4 R. Exh. 4 is a summary of the sales of pumps, tanks, and units
covering the periods from 1987 through 1990. It shows a steady
drop in the sale of all units from 3422 in 1987 to 3003 in 1988 to
2742 in 1989 and 2661 in 1990. The exhibit does not show, how-
ever, the revenues from service operations which, according to Con-
nors, were successfully intensified during 1990.
5 Even if the evidence showed that layoffs were appropriate to the
Company’s business situation, the Company’s explanations as to
why it chose Wyllie and Sultzbach was unconvincing. While assert-
ing that Wyllie was not a good employee (albeit low paid), and that
Sultzbach was paid too much, both received raises the week imme-
diately preceding their discharges. (Sultzbach received an earlier
raise in March 1990 from $10 per hour to $11.50 per hour.) Al-
though Respondent described Wyllie as being unkempt, Connors as-
serted, at the hearing, that this was not a reason for his discharge.
This was, however, inconsistent with her pretrial affidavit.
6 The Respondent asserted that in 1990 and before August 2, 1990,
there were several instances where service employees were either
laid off, dismissed, or quit without being replaced. This testimony
was contradicted by the Company’s payroll records. Despite testi-
mony that no one was hired to replace Martin Brown and Alex An-
derson, the records show that after their layoffs, Thomas Jankowsky
Continued
In early September 1990, about a week before the election,
Alfred Signore credibly testified that Guy Greco Sr. told him
that he ‘‘needed to know who was going to be voting for
the union so he knew who to keep.’’
Also, newly hired employee Sarracco credibly testified that
in early September 1990 Guy Greco Sr. said that he knew
that Sarracco intended to vote for the Union and wanted to
know why.
On October 13, 1990, the Respondent offered Peter
Sultzbach employment. As a result, Sultzbach returned to
work. Wyllie however has not been offered employment by
the Company.
III. DISCUSSION
Regarding the discharges of Sultzbach and Wyllie, the Re-
spondent asserts that the Company decided to let two people
go because of financial considerations (i.e., to save money).
It contends that the selection of these two employees was
made on the basis of their relative value versus their relative
cost. In the case of Peter Sultzbach, the Company asserts that
although he was a good worker, he was not worth the
amount of money he was earning at the time of his layoff.
($12 per hour) In Wyllie’s case, the Company asserts that al-
though he was not getting paid much ($7 per hour), his work
was so poor that he was chosen for that reason.
The Company asserts that due to a downturn in new home
construction, which began in 1988, the Company has been
hard pressed to maintain its previous level of business. It as-
serted that in January 1990 it began to seriously contemplate
cost cutting measures and that in March 1990, it was decided
to lay off excess employees if at the end of the busy season,
business had not improved over the previous year. Both Con-
nors and Greco asserted that in March they discussed their
employees and made up a list of those employees who would
be likely candidates for layoff if that was necessary. While
both kept referring in their testimony to a ‘‘list’’ there was
in fact no such list ever compiled as a physical document.
Accordingly, the assertion that Wyllie and Sultzbach were
placed on a list of potential employees to be laid off, is an
assertion without any recorded basis.2
While the Respondent claims that it intended to lay off
employees before the start of its slow season, the fact is that
August 2, 1990, was in the middle of the busy season. Thus,
according to Connors and demonstrated by Respondent’s ex-
hibit 4, the slow months of Respondent’s business run from
late October through February and the busy months run from
May through September. Further, the Company, according to
Connors is often short handed during the summer months
due in part to an increase in business and employee vaca-
tions.
The Respondent’s assertion that it laid off employees
Wyllie and Sultzbach on August 2 because of financial dis-
tress is contradicted by the facts that it hired two employees
within the same week. Moreover, the new employee’s rates
of pay were comparable to the combined pay rates of Wyllie
and Sultzbach.3 As it was conceded that new employees re-
quire a 2- to 3-month period of time to be trained to their
tasks, the hiring of the two new employees after the dis-
charge of Wyllie and Sultzbach makes no sense at all.
Even the employer’s explanations require explanations. Al-
though contending that it intended to save money by laying
off the high priced Peter Sultzbach, it hired Ed Cuevas at
$10 per hour, a rate of pay that was higher than that paid
to any other helper. To explain this, Connors asserted that an
exception was made because Cuevas had a plumber’s license
and could do certain work that the Company’s employees
could not do. Thus, the Respondent asserts that in an effort
to save money, it hired an untested man at a higher rate of
pay because he might be able to perform work that the Com-
pany did not then offer to the public.
Respondent argued that even though Cuevas and Sarracco
together earned almost the same rate of pay as Sultzbach and
Wyllie, money would be saved because the Company would
not have to pay medical insurance and other benefits for a
period of time. Yet the help wanted advertisement explicitly
stated that such benefits would be paid to anyone hired. The
explanation then offered was that this was a previously used
advertisement which, for simplicity’s sake, was used again.
The Respondent’s contention that it laid off Sultzbach and
Wyllie in order to save money was contradicted not only by
the immediate hiring of two new employees but also by the
evidence showing that four other employees received sub-
stantial pay increases during the same week.
Whatever the state of the Company’s business at the end
of July 1990,4 the evidence in my opinion, establishes that
the Company did not intend to reduce costs by reducing pay-
roll expenses insofar as its service employees. If anything,
the Company increased its payroll expenses from the period
immediately before the discharge of Sultzbach and Wyllie to
the period immediately afterwards.5 (At the beginning of
March 1990 the Company, according to its payroll records,
employed 18 service employees. In August 1990 the number
of its service employees stood at 17.)6
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and David O’Donnel were hired in May 1990 and that Derek
Palange was hired in late June 1990.
7 In the case of Peter Sultzbach, the credible evidence shows that
he was allowed to use a company van in exchange for his agreement
to go off the Company’s health insurance plan and become a bene-
ficiary on his wife’s insurance plan.
Given the timing of the discharges, the pretextual nature
of the claimed reasons and the credited testimony of Alfred
Signore, it is my opinion that the General Counsel has made
out a strong prima facie case that employees Peter Sultzbach
and Howard Wyllie were discharged because of their union
activities. Pursuant to Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), once the General Counsel has made out a prima facie
showing to support an inference that protected conduct was
a motivating factor in a discharge, the burden shifts to the
employer to demonstrate ‘‘by a preponderance of the evi-
dence that the same action would have taken place even in
the absence of the protected conduct.’’
I have indicated above some of the contradictions in the
Respondent’s defenses. Suffice it to say that the asserted rea-
sons for the discharge of the two employees were, to my
mind, unpersuasive. Therefore, it is concluded that by dis-
charging Peter Sultzbach and Howard Wyllie on August 2,
1990, the Respondent violated Section 8(a)(1) and (3) of the
Act. By the same token, as these employees were unlawfully
discharged, they were eligible voters in the election held on
September 13, 1990, and their ballots should be opened and
counted.
I also conclude that the Respondent violated the Act by
disallowing Peter and Charles Sultzbach from using company
vans to drive to and from work.
As of July 26, 1990, there were four employees including
the Sultzbach brothers who for various reasons were allowed
to use company vans to commute to and from work.7 On
July 27, 2 days after the union meeting at Peter Sultzbach’s
house, the Company took away their use of the vans. The
two employees who did not attend the union meeting were
allowed to keep the vans. Connors testified that over a period
of at least 6 months she observed, on about 8 to 10 occa-
sions, that Charles Sultzbach parked his van at a local pub
after work. She also testified that over this period of time,
she advised Guy Greco Sr., without success, to revoke
Charles Sultzbach’s privilege of using the van. The evidence
also shows that on one occasion, in March or April 1990,
Connors held a meeting with the employees where, among
other things, she warned them about abusing the privilege of
using company vans for private purposes. Peter Sultzbach ac-
knowledged that Connor’s comments probably were related
to the fact that his brother took the van to a neighborhood
bar.
Connors testified that on the evening of July 26, 1990, she
saw the van used by Charles Sultzbach at the bar. (Charles
Sultzbach was not called to rebut this assertion and I there-
fore shall conclude that he did in fact drive the van to the
local bar.) Connors also testified that when she told Guy
Greco about the situation, the latter finally told Connors to
do what she thought best. According to Connors, she there-
upon decided to take away the van from Charles Sultzbach.
She testified that she also decided to take the van away from
Peter Sultzbach, essentially because she believed that Charles
would prevail upon his brother to give him a ride in Peter’s
van. Connors testified that another reason she decided to take
away Peter’s van was because she ‘‘knew’’ that she was
about to lay him off the following week. (As described
above, it is concluded that the Respondent discharged Peter
Sultzbach because of union considerations.)
Contrary to Connors, Guy Greco Sr. testified that financial
considerations were the primary reason that the vans were
taken away from the Sultzbachs. And in fact that is the rea-
son asserted in the memorandum explaining the decision to
the Sultzbach brothers.
While the Respondent makes out a colorable claim as to
why it took away the van from Charles Sultzbach on July
27, 1990, the reasons it advances for its decision vis-a-vis
Peter Sultzbach strike me as being nonsequiters. I therefore
have no difficulty in concluding that the action of dis-
allowing Peter Sultzbach from using a company van was mo-
tivated by antiunion considerations. Moreover, it seems to
me that after tolerating the conduct of Charles Sultzbach’s
for more than 6 months, the timing of the decision, 2 days
after the union meeting, is more than suggestive of an illegal
motivation regarding his use of the van.
CONCLUSIONS OF LAW
1. By discharging employees Peter Sultzbach and Howard
Wyllie on August 2, 1990, the Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act.
2. By revoking the van use privileges of Peter and Charles
Sultzbach, on July 27, 1990, the Respondent has violated
Section 8(a)(1) and (3) of the Act.
3. The ballots of Peter Sultzbach and Howard Wyllie
should be opened and counted in the election held in Case
34–RC–981.
4. The aforementioned violations of the Act affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having discriminatorily discharged Peter
Sultzbach and Howard Wyllie on August 2, 1990, it must
offer them reinstatement and make them whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). Further, Respondent must remove from its files any
reference to these discharges and notify the employee that
this has been done and that the discharges will not be used
against them in any way.
Further, I recommend that the Respondent allow the
Sultzbach brothers to resume using company vans but only
for commuting purposes. It is also recommended that the Re-
spondent reimburse them for any reasonable out of pocket
transportation expenses that they may have suffered because
they were denied the use of the vans.
Insofar as the representation case is concerned, I rec-
ommend that the ballots of Peter Sultzbach and Howard
Wyllie be opened and counted, that a revised tally of ballots
be issued and that if the Union obtains a majority of the
639GRECO & HAINES, INC.
8 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.
9 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.’’
valid votes counted, that it be certified as the collective-bar-
gaining representative for the employees in the bargaining
unit described in the Stipulation For Certification Upon Con-
sent Election. If the Union does not obtain a majority of the
valid votes counted, it is recommended that a Certification
of Results be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Greco & Haines, Inc., Derby, Con-
necticut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their union or pro-
tected concerted activities.
(b) Revoking employee benefits or privileges because of
their union or protected concerted activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer, to the extent not already done, immediate and
full reinstatement to Peter Sultzbach and Howard Wyllie to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any references to the unlawful
discharges of Peter Sultzbach and Howard Wyllie and notify
them in writing, that this has been done and that the discipli-
nary actions will not be used against them in any way.
(c) Offer to Peter and Charles Sultzbach the use of vans
for the purpose of commuting to and from work.
(d) 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.
(e) Post at its facility in Derby, Connecticut, copies of the
attached notice marked ‘‘Appendix.’’9 Copies of the notice,
on forms provided by the Regional Director for Region 34
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.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the petition in Case
34–RC–981 be remanded to the Regional Director for Re-
gion 34 for action consistent with the findings in this Deci-
sion.