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National Labor Relations Board v. Lasaponara

decided: September 13, 1976.

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
A. LASAPONARA & SONS, INC., A WHOLLY OWNED SUBSIDIARY OF ERE INDUSTRIES, INC. AND ERE INDUSTRIES, INC., RESPONDENTS



Petition seeking enforcement of an order of the National Labor Relations Board.

Hays, Mulligan and Meskill, Circuit Judges.

Author: Hays

HAYS, Circuit Judge:

Petitioner National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) seeks enforcement of its order filed on June 30, 1975, adopting the findings and conclusions of the Administrative Law Judge that respondents have engaged in several unfair labor practices in violation of Sections 8(a)(1), (3) and (5) of the Act, 29 U.S.C. § 151 et seq.*fn1 We enforce the Board's order in all respects.

I. Withdrawal of Recognition and Unilateral Changes in the Terms of Employment

Respondent A. Lasaponara & Sons, Inc. (the "Company" or "Employer") is engaged in the manufacture and wholesale distribution of cheese and related products at its plant in Oriskany, New York. During the autumn of 1973 a majority of the production and maintenance employees at the Oriskany plant signed authorization cards designating the Mechanics Educational Society of America, AFL-CIO (the "Union") as their sole representative for the purposes of collective bargaining.*fn2 On December 3, 1973 Joseph Lasaponara, president of the Company, received a letter from James Kozma, an official of the Union, requesting Lasaponara to meet with Union representatives to negotiate a collective bargaining agreement. On December 5 the Union filed a petition for a representation election with the National Labor Relations Board and two days later informed the Company by letter that several of the Company's employees had been elected to the Union shop committee at the plant. Lasaponara contacted the president of the Oneida Development Corporation, Thomas Zappone, and requested him to meet with the Union to discuss the situation. Oneida Development Corporation had been instrumental in bringing the Company to Oriskany and it maintained certain authority with respect to any sale of ownership interests in the business. At his meeting with the Union representatives Kozma and James DeBella on December 10, Zappone explained his relationship to the Company and stated that the Company was currently engaged in merger discussions with another corporation which might be jeopardized by a representation election at that time. The Union officials replied that they had no wish to disrupt the negotiations and requested a meeting with Lasaponara so that a solution could be achieved.

On December 12, 1973 Kozma and DeBella met with Lasaponara and Zappone. The Board found that at the meeting Lasaponara stated that he had no objection to the Union but expressed concern that an election at that time could affect production and consequently upset merger negotiations. The Union officials informed Lasaponara that an election would be unnecessary because the Employer could voluntarily recognize the Union as its employees' exclusive bargaining agent on the basis of the authorization cards which the Union had secured from a majority of the Oriskany plant workers. In addition to voluntary recognition the Union officials proposed an immediate 25 cents per hour wage increase and a delay in formalizing a contract. There also was a discussion of certain other contract terms and Lasaponara stated that he would consider the Union's proposal.

On December 14, 1973 Lasaponara again met with Kozma and DeBella. According to credited testimony at the Board hearing Lasaponara stated that he was not willing to sign a contract with the Union at that time but that he would grant a 20 cents per hour wage increase if the Union would take it into account when negotiations for a full contract took place. The Union representatives agreed to the 20 cents figure provided that the Employer continued certain past practices concerning employment benefits and regular wage increases. The Board found that at the December 14 meeting Lasaponara agreed to sign a formal Recognition Agreement and begin full contract discussions with the Union on April 1, 1974 by which time it was assumed the merger negotiations would be completed. In return the Union representatives agreed to withdraw the election petition from the Board. On December 20, 1973 Kozma and DeBella presented the Employer's Production Manager, Fazzino, with the written Recognition Agreement for transmittal to Lasaponara.*fn3 On the same day the Union sent a withdrawal request to the NLRB which was granted on December 26.*fn4

Although the Company, as it had agreed, instituted the 20 cents per hour wage increase on December 24, 1973, Lasaponara failed to sign the formal Recognition Agreement. DeBella contacted Fazzino shortly after the 1st of January to inquire why the document had not been signed and returned. Fazzino told DeBella that the intervening holidays had delayed transmittal of the document to Lasaponara but that the Union would soon receive it. On February 5 DeBella spoke to Fazzino about certain employee complaints concerning health insurance coverage and wage increases and, on this occasion, again raised the matter of the unexecuted Recognition Agreement. Fazzino replied that Lasaponara had been very busy. The next day DeBella contacted Zappone in an attempt to arrange a meeting with Lasaponara. This effort was unsuccessful.

In early March, 1974 DeBella again contacted Fazzino to discuss the proposed layoff of certain employees, including several members of the Union committee. DeBella contended that such a layoff would be improper and that the Union would file charges if it took place. Fazzino discussed the matter with Lasaponara and the layoff was not effectuated. In addition, DeBella spoke directly with Lasaponara on March 5 about certain other employee complaints. Lasaponara suggested that DeBella put these grievances into writing and the latter did so in a letter dated March 8.

In the meantime merger discussions were continuing between the Company and respondent ERE Industries, Inc. ("ERE") which was to purchase all the Company's stock. DeBella was made aware of this in March by Zappone who also gave DeBella the name and telephone number of Frank Oddi, the president of ERE. On March 27, 1974, Oddi addressed the Company's employees telling them in effect that he was to be the new president of A. Lasaponara & Sons, Inc., and that the employment benefits provided by the parent company, ERE, would be extended to them. On April 1, DeBella placed a telephone call to Oddi and, failing to reach him, left a message requesting that he call the Union. It was determined by the Board that Oddi was apprised of the call but never returned it. On April 23 ERE assumed ownership of the Company.*fn5 On May 1 the changes in the employment conditions of the Company promised by Oddi were put into effect.

On the basis of the foregoing findings the Board held that the Company violated Sections 8(a)(5) and (1) of the Act, 29 U.S.C. $S 158(a)(5), (1),*fn6 by withdrawing recognition from the Union and refusing to bargain collectively and by unilaterally changing the terms and conditions of employment of its employees. We agree. Once a collective bargaining agent is voluntarily recognized by an employer as the representative of its employees the bargaining relationship must be permitted to continue and recognition may not be withdrawn at will. See N.L.R.B. v. Broad Street Hospital and Medical Center, 452 F.2d 302 (3d Cir. 1971); N.L.R.B. v. San Clemente Publishing Corp., 408 F.2d 367 (9th Cir. 1969). Unilateral changes in the terms of employment made by an employer in disregard of the duly-recognized collective bargaining agent is a well established violation of the employer's statutory duty to bargain collectively. N.L.R.B. v. Katz, 369 U.S. 736, 8 L. Ed. 2d 230, 82 S. Ct. 1107 (1962); N.L.R.B. v. General Electric Co., 418 F.2d 736, 746 (2d Cir. 1969), cert. denied, 397 U.S. 965, 25 L. Ed. 2d 257, 90 S. Ct. 995 (1970). The only issue here is whether the Board correctly determined that the Employer voluntarily recognized the Union as the representative of its employees at the December 14 meeting between Lasaponara and the Union officials, Kozma and DeBella.*fn7 We hold that this conclusion is fully supported by substantial evidence on the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1951).

Respondents argue that Lasaponara agreed on December 14 to recognize the Union only in the event that the business was not sold, and that therefore the Union at that time agreed to defer its demand for recognition until the merger negotiations were finished. However, the sole evidence supporting this position is Lasaponara's own testimony which the Administrative Law Judge declined to credit. On the other hand, the Board's finding of oral recognition on December 14 is supported by testimony of the Union officials Kozma and DeBella and by subsequently occurring events including (1) the fact that although the Union officials had secured authorization cards from a majority of the employees they had agreed to the Employer's request to forego an election and withdrew their petition to the Board, (2) the institution of a 20 cents per hour wage increase by the Employer shortly after December 14, which had been requested by the Union officials at that meeting, and (3) supervisor Fazzino's grievance adjustments with Union representative DeBella acting on behalf of certain employees. The inferences that the board drew from these incidents are reasonable and must therefore stand. Universal Camera Corp. v. N.L.R.B., supra. Since the Employer's voluntary oral recognition of the Union as the collective bargaining agent of its employees on December 14 is binding, N.L.R.B. v. Broad Street Hospital, supra at 305, the fact that Lasaponara never signed the formal Recognition Agreement is immaterial. Under these circumstances the Company's refusal to bargain with the ...


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