N.L.R.B. v. Gordon
| Decision Date | 30 May 1986 |
| Docket Number | No. 770,D,770 |
| Citation | 792 F.2d 29 |
| Parties | 122 L.R.R.M. (BNA) 2489, 104 Lab.Cas. P 11,853 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Eli GORDON, Gerald Tillinger and Seymour Tillinger, a Copartnership d/b/a Balsam Village Management Company, Respondents. ocket 85-4157. |
| Court | U.S. Court of Appeals — Second Circuit |
Margaret Bezou, Washington, D.C. (Rosemary M. Collyer, Gen. Counsel, N.L.R.B., John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Elinor Hadley Stillman, Michael David Fox, Attys., Washington, D.C., on brief), for petitioner.
Lawrence Solotoff, Great Neck, N.Y. (Joel Spivak, Solotoff & Spivak, Great Neck, N.Y., on brief), for respondents.
Before MESKILL, NEWMAN and KEARSE, Circuit Judges.
Petitioner National Labor Relations Board (the "Board") seeks enforcement of its order issued on December 14, 1984, finding principally that respondents Eli Gordon, Gerald Tillinger, Seymour Tillinger, and their partnership, Balsam Village Management Company (collectively the "Company"), had committed unfair labor practices in violation of Secs. 8(a)(1) and (3) of the National Labor Relations Act (the "Act"), as amended, 29 U.S.C. Secs. 158(a)(1) and (3) (1982), by threatening to discharge and discharging three Company employees for their pursuit of union membership. The Board order required the Company principally to cease and desist from interfering
with its employees' statutory rights and to bargain with Local 32B-32J, Service Employees International Union, AFL-CIO (the "Union"), as the bargaining representative of its employees in an appropriate unit. In opposition to the petition for enforcement, the Company contends principally that the Board's finding that it engaged in unfair labor practices should be overturned and that, in light of 100% employee turnover in the bargaining unit, a bargaining order is inappropriate. We reject both contentions and grant the petition for enforcement.
Prior to February 1983, the Company employed a three-person maintenance crew, consisting of Carlos Casal, Mario Aguila, and Daniel Santos, for the care of a 45-building apartment complex operated by the Company. Each of the three had been employed by the Company for a number of years without any substantial complaint as to their performance. According to the testimony of these employees, which was expressly credited by the Board's Administrative Law Judge ("ALJ"), the following events occurred in early 1983.
In January 1983, Casal, Aguila, and Santos joined the Union and signed cards authorizing the Union to represent them in collective bargaining. The Union mailed receipts for the employees' initiation fees to Casal at the Company's office, mistakenly believing this to be Casal's home address. The receipts, in an envelope showing the Union's name and return address and bearing the words in capital letters, arrived at the Company's office not later than January 27, or 28, when Casal saw the envelope on Gerald Tillinger's desk.
The envelope was not given to Casal until Wednesday, February 2. On February 4, Casal was summoned to a meeting with Gerald Tillinger and Gordon and was told that the Company could not afford unions. Casal was instructed to try to persuade Aguila and Santos to leave the Union. When Casal replied that Aguila and Santos would not renounce the Union, Gordon instructed him to tell them that unless they renounced the Union Gordon also told Casal that if Casal did not cooperate and get them out of the Union, the Company would have to "accept" Casal's "resignation."
Casal conveyed Gordon's message to Aguila and Santos, both of whom told Casal they would remain in the Union. When Casal relayed this response to Gordon and added that he too would remain in the Union, Gordon told Casal, "if you're going to stick to the union, ... then I accept your resignation also." He continued to urge Casal to renounce the Union himself and to persuade the other two to renounce it also. Later that afternoon, when Aguila and Santos went to the Company office to pick up their pay checks, they were discharged--told by Gordon that their jobs were being eliminated.
The Company's version of these events, presented principally by Gordon, was that Gordon told Casal that Aguila and Santos would be discharged because the Company did not need employees to do cleaning, and that because of this, Casal resigned. Gerald Tillinger, who, according to both sides, was present during the pertinent events, did not testify. The ALJ found Gordon to be "a poor quality witness."
On February 8, the discharged employees began picketing the Company's premises. On February 25, Gordon approached them on the sidewalk and told them that they could return to their jobs if they renounced the Union. They continued to picket until mid-April. In the meantime, the Union sent the Company a request to meet and bargain; the Company did not respond. The Company proceeded to hire six persons to perform the work of the discharged employees. One was hired in On June 8, the Company offered reinstatement to Casal, Aguila, and Santos. All declined.
February, two in early April, and the others in June and August. None of the replacements was a union member.
Unfair labor practice charges were filed by the Union, and a complaint was issued by the Board's Acting Regional Director. Following a hearing, the ALJ found the facts as set forth above and concluded that the Company had violated Secs. 8(a)(1) and (3) of the Act by threatening to discharge the three employees unless they renounced their support for the Union and by discharging them because of their union membership. He found that the Company had violated Secs. 8(a)(1) and (5) of the Act by refusing to recognize and bargain with the Union. He recommended that the Company be ordered (1) to make the discharged employees whole, (2) to cease and desist from interfering with employees' exercise of their statutory rights, and (3) to bargain with the Union upon request.
In a Decision and Order dated December 14, 1984 ("Board Decision"), the Board unanimously agreed with the ALJ that the Company had violated Secs. 8(a)(1) and (3) of the Act and adopted the ALJ's first two recommendations. With one member dissenting, the Board concluded that these violations warranted the issuance of a "Gissel " order, see NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), requiring the Company to bargain with the Union. The Company was ordered principally to cease interfering with employees' exercise of their statutory rights, and to bargain with the Union. The Board petitions for enforcement of this order.
In opposition to the Board's petition for enforcement of its order, the Company contends principally (1) that the finding that the Company unlawfully threatened or discharged the three workers was unwarranted, and (2) that a bargaining order was improper. We find no merit in either contention, and we enforce the order.
The Company's challenge to the findings that it engaged in unfair labor practices by threatening to discharge and discharging Casal, Aguila, and Santos because of their adherence to the Union need not detain us long. The Board's findings that an employer has committed unfair labor practices in violation of the Act are entitled to affirmance on review if they are reasonable and supported by substantial evidence in the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); NLRB v. Pace Oldsmobile, Inc., 681 F.2d 99, 100 (2d Cir.1982) (per curiam) ("Pace I "). When its findings are based on the ALJ's assessment of the credibility of the witnesses, they will not be "overturned unless they are 'hopelessly incredible' or they 'flatly contradict' either the 'law of nature' or 'undisputed documentary testimony.' " NLRB v. J. Coty Messenger Service, Inc., 763 F.2d 92, 96 (2d Cir.1985) (quoting NLRB v. American Geri-Care, Inc., 697 F.2d 56, 60 (2d Cir.1982), cert. denied, 461 U.S. 906, 103 S.Ct. 1876, 76 L.Ed.2d 807 (1983)).
In the present case, the employees testified to the events as described in Part I above. Their testimony, which was supported by the timing and sequence of events not in substantial dispute, was neither inherently incredible nor disputed by any documentary evidence, and it was expressly credited by the ALJ. The contrary testimony by Gordon, discredited by the ALJ, and the Company's office manager was insufficient to require the ALJ to disbelieve the versions of the events testified to by Casal, Aguila, and Santos. In light of all the testimony, there was plainly substantial evidence in the record to support the Board's findings that the Company threatened to and did discharge its three maintenance employees on account of their union membership.
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