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Kaynard v. Mmic Inc.

decided: May 17, 1984.

SAMUEL M. KAYNARD, REGIONAL DIRECTOR OF REGION 29 OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, PETITIONER-APPELLEE,
v.
MMIC, INC., RESPONDENT-APPELLANT



Appeal from a temporary injunction entered on motion of the National Labor Relations Board in the Eastern District of New York, Jacob Mishler, District Judge, pursuant to § 10(j) of the National Labor Relations Act, amended, 29 U.S.C. § 160(j) (1982), on the ground that the employer's anti-union activity was so egregious and coercive that an interim bargaining order and a cease and desist order were just and proper.

Friendly, Timbers and Meskill, Circuit Judges.

Author: Timbers

TIMBERS, Circuit Judge:

This is an appeal from a temporary injunction entered on motion of the National Labor Relations Board, in the Eastern District of New York, Jacob Mishler, District Judge, pursuant to § 10(j) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(j) (1982) (the Act), pending the Board's disposition of charges of unfair labor practices against the employer, MMIC, Inc. (the company). The Board's Regional Director, in seeking the temporary injunction, requested a cease and desist order and an order requiring the employer to bargain with Shopmen's Local Union 455, International Association of Bridge, Structural and Ornamental Workers, AFL-CIO (the union). The court granted the temporary injunction, including the request for an interim bargaining order.*fn1 We affirm and order that double costs and $1,000 damages be assessed against the company.

I.

We summarize those facts and prior proceedings believed necessary to an understanding of the legal issues which we decide today. All events occurred in the fall of 1982, except as otherwise stated.

The company is engaged in the manufacture and installation of ornamental iron products. The Marchese brothers, Dennis and Anthony, are the only shareholders, officers, and directors of the company. Their father, Joseph Marchese, works for the company but is not compensated.

In September 1982, certain of the company's employees contacted the union regarding representation. Authorization cards were distributed. Four of the five employees signed the cards and turned them over to a union representative, Schifano. On October 1, Schifano arrived at the company's place of business and introduced himself to Dennis, the company's president. Schifano informed Dennis that the union represented a majority of the employees and demanded recognition. Dennis responded angrily that the union never would get in. Dennis then picked up a piece of iron pipe and threatened to hit Schifano on the head if he did not leave. At this time an employee appeared at the office door and witnessed Dennis' continuing threats against Schifano. Dennis later informed an employee that he had chased away a union representative. Dennis questioned this employee regarding his involvement with the union. On the following day, October 2, Dennis assembled the employees, read a telegram from Schifano demanding recognition and questioned the employees regarding their involvement with the union. Dennis announced that, if the employees had signed anything with the union, he would close the shop.

Later the same day, Dennis showed two employees a sample letter renouncing the union. He asked the employees to write and sign such letters, stating that otherwise they would lose their jobs. During this same conversation, Dennis promised, for the first time, to grant health benefits. When one employee, Dashner, refused to sign a renunciation letter, Dennis ordered him out of the shop. Joseph and Anthony Marchese later told Dashner that he could have a day to think about his decision. That night, Dennis visited Dashner at his home and promised to give him a $3.00 raise rather than the $2.00 raise previously promised. He also told Dashner that another employee, Teskowich, was the union's organizer and would be fired in the morning.

On October 3, Dennis fired Teskowich for his union activities. On the same day, Dennis again demanded that two employees sign renunciation letters. Teskowich later was rehired on the condition that he sign a renunciation letter.

On October 12, during the continuing union campaign, Dennis promised the employees medical benefits and better vacation benefits.

On October 18, Dennis compelled two employees who Dennis perceived to be union leaders to lift heavier and heavier loads, while denying them, without explanation, the use of mechanical aids usually available to them.

The company also threatened employees just before the union representation election and conducted surveillance of employee conversations, meetings and other union activities.

On November 1, the Board conducted an election. The tally of ballots was inconclusive because three of the five ...


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